896 F.2d 927 (5th Cir. 1990), 88-2570, Alberti v. Klevenhagen

Docket Nº:88-2570.
Citation:896 F.2d 927
Party Name:Lawrence R. ALBERTI, et al., Plaintiffs-Appellees, Cross-Appellants, v. Johnny KLEVENHAGEN, et al., Defendants-Appellants Cross-Appellees.
Case Date:March 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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896 F.2d 927 (5th Cir. 1990)

Lawrence R. ALBERTI, et al., Plaintiffs-Appellees, Cross-Appellants,


Johnny KLEVENHAGEN, et al., Defendants-Appellants Cross-Appellees.

No. 88-2570.

United States Court of Appeals, Fifth Circuit

March 21, 1990

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[Copyrighted Material Omitted]

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Roderick O. Lawrence, Lisa Rice, Houston, Tex., for defendants-appellants cross-appellees.

Jim Oitzinger, Houston, Tex., for Alberti, et al.

Appeals from the United States District Court for the Southern District of Texas.

Before LIVELY, 1 JOLLY, and HIGGINBOTHAM, Circuit Judges.


This is an appeal from an interim award of attorneys' fees to James Oitzinger and Gerald Birnberg pursuant to 42 U.S.C. Sec. 1988 for work performed in the first fifteen years of this suit testing conditions in the Harris County jail, filed in 1972 and still pending. The district court awarded attorneys' fees in the amount of $1,526,090.79 to Oitzinger and in the amount of $536,509.30 to Birnberg. We affirm in part, reverse in part, and remand.


On August 14, 1972, several lawyers filed this suit against members of the Harris County Commissioners Court and the Harris County Sheriff's Department on behalf of inmates in the Harris County Jail, alleging that the conditions of confinement denied constitutional and statutory rights. The district court certified a class on February 4, 1975, and then entered a consent judgment requiring, among other things, that defendants submit a plan to bring the jail facilities into compliance with federal and state standards, and providing for judicial review of its effectiveness. The court expressly retained jurisdiction to issue interim orders until the Commissioners Court and the Sheriff complied with the decree. Defendants submitted a plan, and on December 16, 1975, the court entered a supplemental memorandum and order requiring specified action to alleviate overcrowding and other conditions of confinement.

Thereafter, the court held compliance hearings and entered additional remedial orders on various issues. The first hearing was held in 1978 to approve defendants' construction plans for a new jail. The next hearings were held in the summer of 1982 and they concerned a move to a new jail and its staff. Hearings concerning the jail's staff followed in 1983, 1984, and 1985. Now, sixteen years after this suit was filed, the court still monitors compliance.

Oitzinger has represented the plaintiff class since the suit was filed. Birnberg became "trial" counsel in August 1975 and has served from that time until the present, although there has never been a trial. In December 1975, after the consent judgment was entered, the court appointed Oitzinger and Birnberg as ombudsmen. Oitzinger and Birnberg were charged as ombudsmen with monitoring defendants' compliance with the consent judgment and the December 16, 1975 order, and reporting to the court. We criticized the appointment, and on April 28, 1987, the court relieved Oitzinger and Birnberg of their duties as ombudsmen and appointed a special master to replace them. See Alberti v. Klevenhagen, 790 F.2d 1220, 1229-30 (5th Cir.1986).

The court conducted evidentiary hearings on attorneys' fees in November and December 1986 with live testimony, exhibits, depositions, and affidavits. The court considered hours expended during the period from filing until March 1, 1987. Alberti v. Sheriff of Harris County, 688 F.Supp. 1176, 1184 (S.D.Tex.1987). On September 1, 1987, the court entered an amended order awarding Oitzinger fees totaling $1,526,090.79 and awarding Birnberg fees totaling $536,509.30. Alberti v. Klevenhagen, 688 F.Supp. 1210 (S.D.Tex.1987).


In this circuit, to determine a reasonable fee, the district court considers the

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twelve factors enumerated in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974), in a three-step process: "(1) ascertain the nature and extent of the services supplied by the attorney; (2) value the services according to the customary fee and quality of the legal work; and (3) adjust the compensation on the basis of the other Johnson factors that may be of significance in the particular case." Leroy v. City of Houston, 831 F.2d 576, 583 n. 11 (5th Cir.1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988).

In step one the district court determines compensable hours from the attorney's time records, including only hours reasonably spent. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Counsel is required to "exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Id. Ideally, billing judgment is reflected in the fee application, showing not only hours claimed, but also hours written off. See Leroy, 831 F.2d at 576. The burden is on the fee petitioner to prove that the hours claimed were reasonably expended. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1941; Leroy, 831 F.2d at 586.

In step two the court selects "an appropriate hourly rate based on prevailing community standards for attorneys of similar experience in similar cases." Sims v. Jefferson Downs Racing Ass'n, 778 F.2d 1068, 1084 (5th Cir.1985). The number of compensable hours is then multiplied by the selected hourly rate to produce the "lodestar." Id.

Finally, the district court may, in appropriate cases, adjust the lodestar up or down in accordance with relevant Johnson factors not already included in the lodestar. "[T]he 'novelty [and] complexity of the issues,' 'the special skill and experience of counsel,' the 'quality of representation,' and the 'results obtained' from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware Valley I ); see also Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984). In adjusting the lodestar the court must be wary of the fact that the lodestar "is presumed to be the reasonable fee," Delaware Valley I, 478 U.S. at 564, 106 S.Ct. at 3098; Blum, 465 U.S. at 897, 104 S.Ct. at 1548, and that upward adjustments of the lodestar are appropriate only "in certain 'rare' and 'exceptional' cases, supported by both 'specific evidence' on the record and detailed findings by the lower courts," Delaware Valley I, 478 U.S. at 565, 106 S.Ct. at 3098. We review findings of fact supporting an award of attorneys' fees under the clearly erroneous standard, but review the award itself for abuse of discretion. Leroy, 831 F.2d at 584.

Defendants challenge: (1) the district court's acceptance in toto of Oitzinger's claim for 6,652 hours; 2 (2) the court's failure to distinguish between Oitzinger's role as plaintiff's attorney and his role as the court's ombudsman, and hence the failure to apply a lower rate to the ombudsman hours; 3 (3) the court's upward adjustment of the hourly rate for both Oitzinger and Birnberg based upon preclusion of other employment, time limitations imposed by the client under the circumstances, and case undesirability; (4) the court's enhancement of the lodestar for Oitzinger and Birnberg for risk of non-payment of fees; (5) the court's enhancement of the lodestar based upon the results obtained; (6) the court's adjustment for delay in receipt of payment; (7) the court's awarding of compensation to Oitzinger and Birnberg for trial of the attorneys' fees issues; and (8) the award of approximately $20,000 in costs for the services of special counsel

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associated by Oitzinger and Birnberg in connection with trial of the fee issues.


The district court accepted Oitzinger's claim of 6,652 hours in its entirety. Defendants point out that at least 4,611 of those hours were based upon reconstructed time records and urge that many of the hours were not reasonably expended. All of the reconstructed hours were accumulated before January 1, 1983, when we adopted Local Rule 47.8.1 requiring contemporaneous time records.


A fee application for pre-1983 services can succeed even if unsupported by contemporaneous time records, Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1094 (5th Cir.1982), modified on other grounds, 701 F.2d 542, 545 (5th Cir.1983) (en banc), overruled in part, International Woodworkers of America v. Champion International Corp., 790 F.2d 1174 (5th Cir.1986) aff'd sub nom., Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987); Harkless v. Sweeny Independent School Dist., 608 F.2d 594, 597 (5th Cir.1979), although contemporaneous time sheets are the "preferred practice," Webb v. Board of Education of Dyer County, Tennessee, 471 U.S. 234, 238 n. 6, 105 S.Ct. 1923, 1926 n. 6, 85 L.Ed.2d 233 (1985). At the same time we do not accept such claims at face value. Indeed, we recently reduced the average hourly rate by 13% for incomplete time records. 4 Leroy, 831 F.2d at 586 n. 16.

The district court found Oitzinger's time records were "reliable and essentially accurate calculations" of the time he expended, 688 F.Supp. at 1186, and that in addition to the time records submitted by Oitzinger "an abundance of other evidence" supported the hours he claimed including:

a. ... the Court's observation of work performed in the course of the lawsuit and the Court's familiarity with the case[;]

b. [t]he testimony of [Oitzinger] and the Court's assessment of [his] honesty and candor[;]

c. [t]he pleadings, court orders, memoranda of law and other reports and court records in the file of the case[;]

d. [e]xpert opinions of other attorneys opining as to the time which would have reasonably required...

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