Arbor Hill Concerned Citizens v. County of Albany

• Decision Date: 20 May 2004
• Docket Number: Docket No. 03-9204.,Docket No. 03-9132.
• Parties: ARBOR HILL CONCERNED CITIZENS NEIGHBORHOOD ASSOCIATION, et al., Plaintiffs-Appellants, v. COUNTY OF ALBANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

369 F.3d 91

ARBOR HILL CONCERNED CITIZENS NEIGHBORHOOD ASSOCIATION, et al., Plaintiffs-Appellants, v. COUNTY OF ALBANY, et al., Defendants-Appellees.

Docket No. 03-9132.

Docket No. 03-9204.

United States Court of Appeals, Second Circuit.

Motion: February 24, 2004.

Final papers submitted March 18, 2004.

Decided: May 20, 2004.

COPYRIGHT MATERIAL OMITTED

Gibson, Dunn & Crutcher (Mitchell A. Karlan, New York, New York, DerOhannesian & DerOhannesian, Albany, New York, Lawyers' Committee for Civil Rights Under Law, Washington, DC, of counsel), for Plaintiffs-Appellants.

Michael C. Lynch, Albany County Attorney, Albany, New York, for Defendants-Appellees.

Before: NEWMAN, KEARSE, and CALABRESI, Circuit Judges.

PER CURIAM.

This motion for appellate fees primarily concerns the issue of whether such fees should be based on the prevailing hourly rate in the district where the case was tried or at the location where the reviewing court sits. Plaintiffs Arbor Hill Concerned Citizens Neighborhood Association et al. who, on appeal, obtained reversal of an order of the United States District Court for the Northern District of New York ("Northern District") refusing to order special elections for the Albany County Legislature as a remedy for established violations of the Voting Rights Act of 1965, 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2000) ("VRA"), see Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 357 F.3d 260, 263 (2d Cir.2004) ("Arbor Hill I"), move in this Court under the VRA for an award of $122,753.07 in costs and attorney's fees in connection with their successful appeal. Defendant County of Albany ("the County") opposes the motion, contending principally that plaintiffs are not prevailing parties, that prior proceedings make a fee award unavailable, and that the amount requested is unreasonable because, inter alia, plaintiffs seek a fee calculated largely with reference to the legal rates prevailing in New York City, rather than in the Northern District. The County also contends that certain components of the request are excessive. For the reasons that follow, we grant the motion for a reasonable attorney's fee, and we refer the motion to the district court for resolution of certain disputed items and for the determination of a reasonable fee calculated with reference to prevailing rates for legal services in the Northern District, unless the district court finds that there are exceptional circumstances warranting reference to rates prevailing in Manhattan.

This action, asserting a VRA challenge to a legislative redistricting plan adopted by the County, was commenced in April 2003 in Albany, within the Northern District, and was litigated in that district. The facts and procedural history of the litigation are detailed in Arbor Hill I, 357 F.3d at 261-62, and in district court opinions, Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 281 F.Supp.2d 436, 439-42 (N.D.N.Y.2003), and Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 289 F.Supp.2d 269, 271-73 (N.D.N.Y.2003), familiarity with which is assumed.

Both in the district court and on the present appeal, plaintiffs were represented by three law offices: the Albany firm of DerOhannesian & DerOhannesian ("D & D"), the Manhattan office of Gibson, Dunn & Crutcher ("GD & C") located in the Southern District of New York, and The Lawyers' Committee for Civil Rights Under Law ("LCCRUL") based in Washington, D.C. As modified in their reply papers, plaintiffs' present application seeks for the appeal, fees for those three firms totaling $109,281.60, plus $13,471.47 in costs and disbursements. The affidavits and time records presented in support of the application include submissions from D & D seeking $9,281.25 in fees plus $2,763.43 in costs, from LCCRUL seeking a fee of $1,575, and from GD & C seeking approximately $98,500 in fees (the precise total being unclear in light of a revision in the GD & C request and a discrepancy in the total amount originally requested) (compare Plaintiffs-Appellants' Application for Attorneys' Fees and Costs dated February 17, 2004 ("Plaintiffs' Fee Application"), at 1 and 6 (requesting "$114,442.50"), with id. at 9 (requesting "$114,255.00")) plus $10,708.04 in costs. D & D states that its request is based on the rates prevailing for comparable legal services in the Northern District; LCCRUL and GD & C have based their requests on the rates for legal services prevailing in Washington, D.C., and the Southern District of New York respectively.

The County opposes the fee application in its entirety, contending (a) that plaintiffs are not prevailing parties, and (b) that during the district court proceedings it made an offer of judgment pursuant to Fed.R.Civ.P. 68, and that plaintiffs' failure to accept that offer forecloses any award of fees. Alternatively, the County contends that the fees and disbursements requested are excessive because, inter alia, GD & C's fee should be calculated in accordance with the legal rates prevailing in the Northern District and various charges are unreasonable.

For the reasons that follow, we conclude that plaintiffs are entitled to an award of fees and costs; but we conclude that certain charges are excessive or questionable, and that GD & C's fee should be calculated with reference to the rates for legal services prevailing in the Northern District, where the action was commenced and litigated, unless the district court finds, consistent with our discussion below, that there are exceptional circumstances that warrant the calculation of its fee based on rates prevailing in Manhattan.

A. Plaintiffs' Entitlement to Attorney's Fees

In an action under the VRA, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1973l (e). In determining entitlement to an award under the VRA, we apply the same standards that apply to awards under 42 U.S.C. § 1988. See generally West Virginia University Hospitals v. Casey, 499 U.S. 83, 96 n. 6, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) (VRA's fee-shifting provision "parallels § 1988").

The County argues that plaintiffs are not entitled to any award of fees for this appeal because such an award "is only authorized for `a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal.'" (Affidavit of County Attorney Michael C. Lynch dated February 26, 2004, ¶ 8 (quoting Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam) (discussing 42 U.S.C. § 1988) (emphasis in affidavit)).) This principle does not benefit the County. Plaintiffs brought this action contending that the County had violated the VRA; the district court agreed and ordered redistricting. When the district court denied the request for an injunction ordering special elections, plaintiffs appealed, and this Court reversed that ruling and ordered special elections. Thus, even though the appeal did not resolve all aspects of the case, plaintiffs gained a victory that cannot be undone. Both in the trial court and on appeal, plaintiffs clearly established their entitlement to, and have already received, at least "some relief on the merits of [their] claims."

Nor is there merit in the County's contention that a fee award to plaintiffs is foreclosed by an "Offer of Judgment" made by the County during the district court proceedings. Rule 68 provides that if a party makes a timely offer of judgment that is not accepted, and "the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Fed.R.Civ.P. 68. "Offers of judgment pursuant to Fed.R.Civ.P. 68 are construed according to ordinary contract principles." Goodheart Clothing Co. v. Laura Goodman Enterprises, Inc., 962 F.2d 268, 272 (2d Cir.1992). Under such principles, "a promise whose performance depends upon the mere will or inclination of the promisor" is not an offer whose acceptance creates a contract. Eastern Transportation Co. v. Blue Ridge Coal Corp., 159 F.2d 642, 643 (2d Cir.1947). Rather, the Restatement defines an "offer" as "the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it," Restatement (Second) of Contracts § 24 (1981) (emphasis added), and notes that "the key concept involves giving the addressee the apparent power to conclude a contract without further action by the other party," id. Reporter's Note Comment a (emphasis added).

The County's so-called "Offer of Judgment," made in an August 5, 2003 letter from County Attorney Lynch to plaintiffs' attorney Paul DerOhannesian II ("County Letter"), included a proposal for a revised redistricting plan; but the proposal was, by its terms, "subject to and contingent upon approval of the Albany County Legislature" (County Letter at 1). The County Letter indicated that the County's proposed undertakings would not be submitted to the Legislature for approval unless and until plaintiffs stated that the terms were acceptable to them; and it contained no representation that, if plaintiffs assented, the Legislature's approval was assured.

The contingent proposal made in the County Letter was not an offer within the meaning of ordinary contract principles, for acceptance by plaintiffs would not have created a contract without further action by the County's Legislature. The proposal thus did not constitute an "offer of judgment" within the meaning of Rule 68.

B. Calculation of a Lodestar

We find greater merit in the County's objection to the calculation of GD & C's fee on the basis of the rates for legal services prevailing in the Southern District of New York rather than those prevailing in the Northern District, the venue of the...