American Civil Liberties Union of Georgia v. Barnes

Decision Date23 February 1999
Docket NumberNo. 98-8075,98-8075
PartiesAMERICAN CIVIL LIBERTIES UNION OF GEORGIA; The Aids Survival Project; et al., Plaintiffs-Appellees, v. Roy BARNES; in his official capacity as Governor of the State of Georgia; and Thurbert E. Baker, in his official capacity as Attorney General of the State of Georgia, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Daniel M. Formby, Asst. Atty. Gen., David A. Runnion, Christopher P. Galanek, Powell, Goldstein, Frazer & Murphy, LLP, Atlanta, GA, for Defendants-Appellants.

Gerald Weber, James S. McClain, Atlanta, GA, Christopher A. Hansen, Ann Beeson, New York City, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before COX, CARNES and HULL, Circuit Judges.

CARNES, Circuit Judge:

After prevailing in a 42 U.S.C. § 1983 action to enjoin enforcement of a Georgia statute, the plaintiffs filed a 42 U.S.C. § 1988 application for attorney fees and expenses. They sought a total of $238,866.49, and the district court entered an order awarding them that full amount plus an unexplained excess of $810.65. The defendants, the Governor and Attorney General of Georgia, appeal the order.

We conclude that the district court's award of attorney fees and expenses in that amount was an abuse of discretion, because: a) excessive hours were claimed for drafting the complaint and the briefs; b) excessive hours were claimed in connection with a status conference and a demonstration conducted for the court; c) hours were claimed for time that was not expended on the litigation; d) non-local rates were claimed for some New York attorneys when local attorneys were available to do the work; e) travel expenses were claimed in connection with unnecessary work done by New York attorneys; and f) the plaintiffs were awarded an amount exceeding that sought in their fee application.


On September 24, 1996, the fourteen plaintiffs, "a group of individuals and organization members who communicate over the Internet," filed a 179 paragraph complaint under 42 U.S.C. § 1983 challenging the constitutionality of O.C.G.A. § 16-9-93.1, and seeking to prevent its enforcement. See ACLU of Georgia v. Miller, 977 F.Supp. 1228, 1230 (N.D.Ga.1997). That recently enacted Georgia criminal statute prohibited Internet transmissions which falsely identified the sender, or which used trade names or logos falsely stating or implying that the sender was legally authorized to use them. See id.

With the complaint, the plaintiffs also filed a motion for a preliminary injunction, a supporting brief, and fourteen affidavits. The defendants responded with an opposing brief, six supporting affidavits, and a motion to dismiss. The plaintiffs then filed a reply brief in support of the motion for a preliminary injunction and a brief in opposition to the motion to dismiss.

On January 8, 1997, the district court held a forty-minute status conference at which it decided that an evidentiary hearing on the motion for preliminary injunction would not be necessary. The court did agree, however, to allow the plaintiffs to present a two-hour demonstration on Internet technology. On January 30, 1997, the plaintiffs presented that demonstration, which consisted primarily of a Georgia Institute of Technology professor showing various features of the Internet to the court.

On June 23, 1997, the district court entered a preliminary injunction against enforcement of the statute, concluding that the plaintiffs were substantially likely to establish that the statute "imposes content-based restrictions which are not narrowly tailored to achieve the state's purported compelling interest" and "is overbroad and void for vagueness." Miller, 977 F.Supp. at 1232. By subsequent agreement of the parties, the preliminary injunction was made permanent on August 7, 1997. See id. at 1235. No discovery, evidentiary hearings, oral argument, trial, or other proceedings occurred during the eleven months the case was pending. No appeal was taken from the injunction.

After prevailing, the plaintiffs filed an application, with accompanying brief and affidavits, seeking reasonable attorney fees and expenses pursuant to 42 U.S.C. § 1988. The application sought payment for the legal services of five attorneys and their paralegals. Those five attorneys were the two lead counsel, Mr. McClain (an Atlanta attorney in private practice) and Mr. Weber (an Atlanta ACLU attorney); and three additional attorneys: Mr. Thorpe (an Atlanta attorney in private practice), Mr. Hansen (a New York ACLU attorney), and Ms. Beeson (a New York ACLU attorney).

In opposition to the fee application, the defendants filed an opposing brief, affidavits and a chart with color-coded categorization of the requesting attorneys' time sheets detailing what the defendants alleged were excessive, unreasonable, and duplicative hours included in the application. In response to the defendants' opposition, the plaintiffs did not submit any additional evidence or seek an evidentiary hearing. They did, however, file a reply in which they withdrew claimed hours and expenses totaling $3297.70. 1 After that concession, the plaintiffs' fee application sought the sum of $233,075.25 in attorney fees (for 1072.95 hours of attorney and paralegal work) and $5,791.24 in expenses, for a total of $238,866.49.

The district court entered an order finding that both the number of hours claimed and the billing rates requested by the plaintiffs were reasonable. It then awarded the plaintiffs $239,677.14, one hundred percent of the amount requested, plus an unexplained excess of $810.65.


We review a district court's order awarding attorney fees for an abuse of discretion. See, e.g., Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387, 1389 (11th Cir.1997). "An abuse of discretion occurs if the judge fails to apply the proper legal standard or to follow proper procedures in making the determination, or bases an award upon findings of fact that are clearly erroneous." In re Hillsborough Holdings Corp., 127 F.3d 1398, 1401 (11th Cir.1997) (internal citation and quotation omitted). "Although a district court has wide discretion in performing these calculations," Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994), "[t]he court's order on attorney[ ] fees must allow meaningful review--the district court must articulate the decisions it made, give principled reasons for those decisions, and show its calculation." Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir.1988).


A reasonable attorney fees award under 42 U.S.C. § 1988 is "properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984). "This 'lodestar' may then be adjusted for the results obtained." Loranger, 10 F.3d at 781. In addition, "all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under § 1988." Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983).

The "fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman, 836 F.2d at 1303. That burden includes "supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate. Further, fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.... A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or stage of the case." Id. (citations omitted)


The defendants' contention that the district court should not have awarded the plaintiffs $239,677.14 requires us to address whether the district court abused its discretion in (1) determining the number of hours the plaintiffs' attorneys reasonably expended; (2) awarding the New York attorneys Hansen and Beeson non-local rates in calculating the reasonable hourly rate for their services; (3) failing to exclude any of the plaintiffs' attorneys' expenses; and (4) awarding the plaintiffs an amount exceeding that requested in their fee application. We will discuss each of those issues in turn.


Part of the district court's task in calculating the lodestar is determining the number of hours reasonably expended on the case. Here, the plaintiffs' fee application claimed that the five attorneys and their paralegals reasonably expended 1072.95 hours on this case. The district court found that number of hours to be reasonable. Contending to the contrary, the defendants argue that hours should have been excluded from that total both because the plaintiffs' attorneys did not exercise sufficient billing judgment, and because some hours included were not expended on the litigation. We will address each of those arguments separately.

1. Lack of Billing Judgment

Fee applicants must exercise what the Supreme Court has termed "billing judgment." Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983). That means they must exclude from their fee applications "excessive, redundant, or otherwise unnecessary [hours]," id., which are hours "that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel." Norman, 836 F.2d at 1301 (emphasis in original)....

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