Reed v. Rhodes

• Decision Date: 26 April 1996
• Docket Number: No. 1:73 CV 1300.,1:73 CV 1300.
• Citation: 934 F. Supp. 1492
• Parties: Robert A. REED, et al., Plaintiffs, v. James A. RHODES, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

934 F. Supp. 1492

Robert A. REED, et al., Plaintiffs, v. James A. RHODES, et al., Defendants.

No. 1:73 CV 1300.

United States District Court, N.D. Ohio, Eastern Division.

April 26, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas I. Atkins, Brooklyn, NY, James L. Hardiman, Cleveland, Ohio, David W. Whitaker, Beachwood, Ohio, for Plaintiffs.

Wanda Rembert Arnold, Cleveland Board of Education, Law Department, Cleveland, Ohio, for Local Defendants.

Stephen M. O'Bryan, Margaret Anne Cannon, Kelley, McCann & Livingston, Cleveland, Ohio, Mark O'Neill, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for State Defendants.

ORDER

KRUPANSKY, Circuit Judge, Sitting by Designation.

Pursuant to 42 U.S.C. § 1988(b), the Court is charged with the authority and responsibility of reviewing and, within its discretion, awarding reasonable attorneys fees to the prevailing party "in any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, or 1983...."

Before the Court, for the second time, is the application of plaintiffs' counsel Thomas I. Atkins (Atkins), 135 Eastern Parkway, Apt. # 11-B-1, Brooklyn, New York 11238, for legal services performed between the dates of 7/6/94-8/4/95 at a rate of $340.00/hour, accrued in half-hour (30-minute) increments, for a total of $126,401.04, plus out-of-pocket costs and a fee submission for the consultation services of a Dr. Robert L. Green at $75.00/hour, accrued in half-hour (30-minute) increments, for an additional $36,057.50, for an aggregate of $162,458.54;¹ the application of James L. Hardiman (Hardiman) of Cleveland, Ohio for legal services performed between 3/2/92 through 12/28/92 at $175.00/hour, for a total of $20,256.25, 1/7/93 through 12/22/93 at $175/hour, for a total of $74,200.50, 1/6/94 through 12/30/94 at $200/hour, for a total of $119,300.00, and 1/3/95 through 8/31/95 at $225/hour, for a total of $50,006.25, accrued in half-hour (30-minute) increments, with out-of-pocket expenses of $386, for an aggregate of $263,786.00;² and the application of David W. Whitaker (Whitaker) of Beachwood, Ohio from 11/22/92 through 12/28/92 at a rate of $160/hour, for the period between 1/7/93 and 12/22/93 at $160/hour, for the period between 1/14/94 and 12/27/94 at $160/hour, and for the period 1/8/95 and 9/1/95 at $160/hour, all accrued in half-hour (30-minute) increments, for a total of $102,307.99,³ plus out-of-pocket expenses of $427.00, for an aggregate of $102,734.99, aggregating a grand total for all applications submitted by plaintiffs' counsel of $528,979.53.

Subsequent to the initial fee submissions and after they had been proffered to the Court's Legal Advisory Commission for review and comment (Appendix A), plaintiffs' counsel on October 25, 1996 jointly filed a pleading styled a Motion for an Interim Award of Fees and Costs, with supporting briefs. The motion requested an interim payment of fees and costs to Thomas I. Atkins in the amount of $63,200.52, plus $18,028.75 to Dr. Robert L. Green, his consultant, for a total of $81,229.27; to James L. Hardiman in the amount of $131,893.00; and to David W. Whitaker in the amount of $51,153.95. (The above figures have been recalculated and corrected).

The Court recognized its discretionary authority to award reasonable interim attorneys fees to a prevailing party in a 42 U.S.C. § 1983 action arising from infringements of protected constitutional rights; however, because a preliminary examination of the initial fee applications and supporting logs disclosed practices and line entries of material concern to both the Legal Advisory Commission and the Court, and because the form and substance of each application reflected relevant ambiguities which solicited explanation and/or reconciliation, the Court, upon approving payment of interim fees in the following amounts:

                    Thomas I. Atkins    $ 42,133.68
                    Robert L. Green       12,019.17
                    James L. Hardiman     87,926.47
                    David W. Whitaker     33,388.86
                

returned the fee requisitions to the respective petitioners for resubmission after a reassessment of their individual fee requests pursuant to a twenty-page contemporaneously-issued interim order (Appendix B), wherein the Court attempted to correct the petitioners' misconceptions of prevailing legal precedent which addressed the issues of legal fee awards, and wherein the Court identified, with particularity, the areas of ambiguity which prompted its concern.

The Court accorded plaintiffs' counsel forty-five days within which to reconsider their fee applications and produce evidence in a hearing before the Court, by affidavit, deposition, or otherwise to, inter alia, support their requested hourly rates and time commitments; to prove that their logged entries were meaningful, informational, and instructive; to support the relevance, scope, materiality, and/or necessity for the applicants' endless intratelephonic conversations between plaintiffs' multiple counsel; to evince the absence of duplicated effort; to prove that the hours billed were not excessive or otherwise unnecessary; and to prove that accruing expended time in half-hour (30-minute) increments was and is the accepted billing practice within the greater Cleveland, Ohio legal community.

Applicants have elected to respond to the Court's invitation by resubmitting their original applications with inconsequential amendments, together with the affidavits of two practicing attorneys attesting to prevailing hourly rates within the greater Cleveland legal community, and a Memorandum of Decision as to Attorneys Fees within the venue of the United States District Court of Massachusetts (Boston) authored by Judge Arthur W. Garrity, Jr. in Morgan v. Gittins, wherein he approved a $300/hour rate payable to Atkins in that desegregation case. Applicants have also submitted a brief in justification of their resubmitted fee applications.

The Court's December 29, 1995 interim order returning petitioners' fee requests for reassessment is, in material parts, reviewed and incorporated herein in the format of a final disposition.

The burden placed upon the Court by 42 U.S.C. § 1988 is a heavy one, particularly within the context of the instant case. In exercising its discretion in this highly controversial area, the Court must be ever mindful of fundamental principles that ensure fair, impartial, and equitable treatment of all interested parties, including their legal counsel.

It should be noted that the Court subscribes to and endorses the concept that the plaintiffs and all defendants, the State of Ohio Board of Education, the City of Cleveland School District, and its Board of Education should be free to retain the most qualified available legal talent of their own choice without interference from the Court.

The Court also subscribes to and endorses the universally accepted definition of reasonable legal fees enunciated by the Supreme Court, and echoed by every circuit court which has considered the issue in a school desegregation case, as "fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." Hensley v. Eckerhart, 461 U.S. 424, 430 n. 4, 103 S.Ct. 1933, 1938 n. 4, 76 L.Ed.2d 40 (1983).

More specifically,

to put these 12 guidelines into perspective and as a caveat to their application, courts must remember that they do not have a mandate under Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) to make the prevailing counsel rich. Concomitantly, the Section should not be implemented in a manner to make the private attorney general's position so lucrative as to ridicule the public attorney general. The statute was not passed for the benefit of attorneys but to enable litigants to obtain competent counsel worthy of a contest with the caliber of counsel available to their opposition and to fairly place the economical sic burden of Title VII litigation. Adequate compensation is necessary, however, to enable an attorney to serve his client effectively and to preserve the integrity and independence of the profession. The guidelines contained herein are merely an attempt to assist in this balancing process.⁴

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719-20 (5th Cir.1974) (emphasis added); see also Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974); aff'd, 550 F.2d 464 (9th Cir.1977), rev'd on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C.1975).

Hensley, 461 U.S. at 429, 103 S.Ct. at 1937, also dictates that "the amount of the fee, of course, must be determined on the facts of each case." This statement does not lighten the Court's burden in the case at bar but rather poses a material obstacle in pursuing a resolution because, on March 3, 1995, when the Cleveland School District was placed under the supervision of the Ohio Board of Education and its Superintendent of Instruction by this Court (a copy of its Order is attached for convenience as Appendix C), it was and continues to be hopelessly bankrupt. It had exhausted its half billion dollar annual budget, was confronting a shortfall of $30,000,000, and was in need of an immediate loan in that amount, which it was unable to negotiate. It required the funds to meet daily operating expenses and payroll until June 30, 1995 (the end of its fiscal year) because it had, during the 3½ short years immediately preceding the March 3, 1995 court order, escalated its indebtedness from $35 million to a staggering and irreversible $140 or more million as a direct result of politicized mismanagement.⁵

Although the fiscal condition of the District does not directly impact upon counsel's right to an award of reasonable attorneys fees, and this Court excludes it from consideration in arriving at a reasonable fee allowance, it recognizes, however, that every dollar of an excessive fee award is a...