Grendel's Den, Inc. v. Larkin

• Decision Date: 05 December 1984
• Docket Number: Nos. 84-1313,84-1314,s. 84-1313
• Citation: 749 F.2d 945
• Parties: GRENDEL'S DEN, INC., Plaintiff, Appellee, v. John P. LARKIN, et al., Defendants, Appellees, Cambridge License Commission, Defendant, Appellant. GRENDEL'S DEN, INC., Plaintiff, Appellee, v. John P. LARKIN, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 945

749 F.2d 945

GRENDEL'S DEN, INC., Plaintiff, Appellee, v. John P. LARKIN, et al., Defendants, Appellees, Cambridge License Commission, Defendant, Appellant.

GRENDEL'S DEN, INC., Plaintiff, Appellee, v. John P. LARKIN, et al., Defendants, Appellants.

Nos. 84-1313, 84-1314.

United States Court of Appeals First Circuit.

Dec. 5, 1984.

Judith S. Yogman, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for John P. Larkin, et al.

Russell B. Higley, City Sol., Cambridge, Mass., with whom Birge Albright, Cambridge, Mass., was on brief, for Cambridge License Com'n.

Jonathan Shapiro, Boston, Mass., with whom Stern & Shapiro, Boston, Mass., was on brief, for Grendel's Den, Inc.

Before COFFIN, Circuit Judge, COWEN, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

COFFIN, Circuit Judge.

Appellants challenge an award of attorney's fees. Arguing that the district court abused its discretion by granting an award which was not "reasonable" within the meaning of the Fees Act, 42 U.S.C. Sec. 1988, appellants ask us to modify it. After carefully reviewing the district court's opinion, as well as the evidence submitted to support appellee's original fees application, we conclude that the district court's analysis was in some respects erroneous and the resulting award excessive. In view of the already protracted and expensive proceedings and the adequacy of the existing record for fee decision purposes, we make our own modifications to the award.

A. BACKGROUND

1. The Underlying Case

Appellee, Grendel's Den, Inc. (Grendel's), commenced this action on November 7 1977, after its application for a liquor license had been denied by appellants, the Cambridge License Commission (CLC) and the Alcoholic Beverage Control Commission of Massachusetts (ABCC). The primary charge, brought under 42 U.S.C. Sec. 1983, was that Mass.Gen.Laws Ann. ch. 138, Sec. 16C (section 16C), which permitted a church to "veto" the issuance of a liquor license to an establishment located within five hundred feet of the church, violated the Establishment Clause of the First Amendment. ¹ In this case Grendel's license application had been denied because the Holy Cross Armenian Catholic Parish (the Church) of Cambridge, Massachusetts, filed a written objection with the CLC. Also included in the complaint were charges of violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as of violations of the federal antitrust laws and the constitution and laws of Massachusetts. These charges subsequently proved to be of secondary importance in the case, which was ultimately resolved solely on the First Amendment question.

After the CLC and the ABCC filed an initial motion to dismiss, all parties agreed, and the district court ordered, that further proceedings be continued pending resolution of the same issues in a similar action then before the Supreme Judicial Court of Massachusetts. On January 17, 1979, the Supreme Judicial Court upheld the validity of section 16C under both federal and state law, Arno v. Alcoholic Beverages Control Commission, 377 Mass. 83, 384 N.E.2d 1223 (1979). Subsequently, the CLC and the ABCC renewed their motion to dismiss, which was denied on January 14, 1980.

On April 14, 1980, the parties stipulated to all material facts necessary to resolve the federal constitutional claims and to determine whether the state action exemption to the reach of the Sherman Act applied to Grendel's antitrust claim. Each party then applied for partial summary judgment on these issues. On August 14, 1980, the district court rejected the Equal Protection claim but entered judgment in favor of Grendel's on the First Amendment and Due Process claims and denied defendants' motion to dismiss the antitrust claim. On September 10, 1980, this court granted the CLC and the ABCC leave to appeal pursuant to 28 U.S.C. Sec. 1292(b). After hearing oral argument, the panel reversed the judgment of the district court with respect to the constitutional issues and expressed doubts as to the viability of the antitrust claim. Grendel's Den, Inc. v. Goodwin, 662 F.2d 88 (1st Cir.1981). Rehearing en banc was subsequently granted, however, and on July 28, 1981, this court vacated its earlier judgment and affirmed the judgment of the district court. Grendel's Den, Inc. v. Goodwin, 662 F.2d 102 (1st Cir.1981). Holding that section 16C, on its face, violated the Establishment Clause, we did not reach the Due Process or antitrust issues in our second decision. Id. at 104.

The CLC and the ABCC then appealed to the Supreme Court. The Court noted probable jurisdiction, heard oral argument, and on December 13, 1982, affirmed this court's en banc decision and that of the district court. Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). Shortly thereafter, the CLC issued a license to Grendel's over the opposition of the Church, and on April 1, 1983, Grendel's began serving alcoholic beverages. In July of 1983 the Massachusetts legislature amended Section 16C to bring it into compliance with the Supreme Court's decision. ²

2. Attorney's Fees Application

Having prevailed on its section 1983 claim, Grendel's applied to the district court for attorney's fees and costs pursuant to the Fees Act, 42 U.S.C. Sec. 1988. In support of the application, affidavits were filed by its counsel, Professors Laurence Tribe and David Rosenberg of Harvard Law School, and Mr. Ira Karasick. Each affidavit documented the individual's educational and professional background, summarized the role he played in the litigation, and described the legal services that he had performed and the expenses that he had incurred. Compensation was requested in the amount of $176,137.50 (640.5 hours at $275 per hour) for Professor Tribe, $21,750.00 (174 hours at $125 per hour) for Professor Rosenberg, and $15,747.50 (399 hours at hourly rates ranging from $25 to $75) for Mr. Karasick. Unfortunately, despite the duration of the litigation and the distinction of counsel, no contemporaneous time records were kept or submitted in support of these requests. ³ Also included were a request for an upward adjustment of 50 percent to reflect the contingent nature of the fee, the long delay in payment, and the significance of the results achieved, and a request for $7,489.68 in expenses.

The CLC and the ABCC responded by challenging the reasonableness of the time spent and the rates requested. On October 3, 1983, an evidentiary hearing was held. Professors Tribe and Rosenberg, Mr. Karasick, and an expert for the defendants gave testimony and were cross-examined regarding the accuracy of the time estimates and the reasonableness of the requested hourly rates. Affidavits, receipts and other documents were also introduced into evidence. After the hearing supplemental briefs were filed, and Grendel's filed a supplemental application for attorney's fees and expenses incurred in making the original application for fees. In this second application, Mr. Jonathan Shapiro sought compensation of $17,087.50 (for 136.7 hours at $125 per hour) and reimbursement for $261.23 in expenses.

On March 19, 1984, the district court issued an Opinion and Order, awarding all the itemized fees and expenses requested by Professors Tribe and Rosenberg but none to Mr. Karasick. The court found that the applicants' reconstruction of hours spent was "honest and reliable" and rejected the defendants' contention that much of applicant counsels' time had been spent on duplicative and unnecessary tasks. The court also found the evidence submitted in support of the requested hourly rates to be persuasive. It denied any award for Mr. Karasick's hours, however, on the ground that he had served primarily as a legal intern and that his costs should be considered as part of the overhead of Professors Tribe and Rosenberg. It commented that, although an upward adjustment would otherwise have been merited, failure to keep accurate time records precluded such an increase. Finally, the court found that Professors Tribe and Rosenberg had proven their expense claims. In April of 1984, the district court issued a brief Memorandum and Order, finding the second application for fees and expenses to be reasonable and awarding to Shapiro the full amount that he had requested. The court assessed one half of the total award against the CLC and one half against the ABCC.

On appeal, the CLC and ABCC ask this court to examine the evidence submitted at the hearing and to recalculate the award. They contend that the district court abused its discretion by failing to look critically at the alleged time spent on particular tasks, by failing to reduce the number of hours actually spent by a certain percentage to correct for the absence of contemporaneous time records, by setting hourly rates that were grossly excessive, and by reimbursing the attorneys for unnecessary or unwarranted expenses. Also, the CLC separately challenges the district court's assessment of one half of the award against it. It claims that it is a local entity, one of many in the state of Massachusetts, and that the ABCC, the statewide authority, should have been assessed the lion's share of the award, especially since the case presented a challenge to a state statute that the CLC was required to enforce. The CLC argues that the only fair way of apportioning the cost of enforcing this statute is to assess most of the award against the ABCC. We consider each of these contentions.

B. DISCUSSION

Although fee litigation as a substantial component of judicial time is a relatively new phenomenon, the general ground rules are well known. District courts have discretion when awarding fees and expenses under 42 U.S.C. Sec. 1988, Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), and appellate courts accord deference to the exercise of that discretion. It must, of...