Berberena v. Coler, 84-1458

• Decision Date: 31 January 1985
• Docket Number: No. 84-1458,84-1458
• Citation: 753 F.2d 629
• Parties: Dinorah BERBERENA, Rebecca Weaver, on behalf of themselves, their minor children and all others similarly situated, and Karen Simpson, Plaintiffs-Appellees, v. Gregory COLER, successor in office to Jeffrey C. Miller, as Director of the Illinois Department of Public Aid, and the Illinois Department of Public Aid, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 629

753 F.2d 629

Dinorah BERBERENA, Rebecca Weaver, on behalf of themselves their minor children and all others similarly situated, and Karen Simpson, Plaintiffs-Appellees, v. Gregory COLER, successor in office to Jeffrey C. Miller, as Director of the Illinois Department of Public Aid and the Illinois Department of Public Aid, Defendants-Appellants.

No. 84-1458.

United States Court of Appeals Seventh Circuit.

Argued Nov. 7, 1984.

Decided Jan. 31, 1985.

Aviva Futorian, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiffs-appellees.

Katherine M. Marshall, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

Before FLAUM, Circuit Judge, and PELL, Senior Circuit Judge, and WISDOM, Senior Circuit Judge. ^*

WISDOM, Senior Circuit Judge.

This appeal presents the question whether the district court abused its discretion in awarding attorneys fees to civil rights plaintiffs by refusing to impose a compensation rate differential for in-court as against out-of-court work and by refusing reductions in the number of compensable hours for duplication and vagueness of documentation. The district court rejected a magistrate's recommendation of such reductions and rate differentials, and awarded the plaintiffs their full requested fee of $46,664.45 for about 600 hours of work. We find no clear abuse of discretion and affirm the award.

I.

The plaintiffs filed a class action in 1981 under 28 U.S.C. Sec. 2201, 42 U.S.C. Sec. 1983, and the Social Security Act, 42 U.S.C. Sec. 601 et seq., challenging the method by which the Illinois Department of Public Aid (IDPA) calculated the eligibility of low income working parents for Aid to Families with Dependent Children (AFDC). In particular, the plaintiffs alleged that IDPA's refusal to disregard the plaintiffs' work-related child care expenses in calculating eligibility for benefits violated the Social Security Act and the due process clause of the Fourteenth Amendment. The plaintiffs were represented by three attorneys employed by the Legal Assistance Foundation of Chicago and a private attorney who represented a named plaintiff who was also an employee of the Legal Assistance Foundation of Chicago. ¹

In 1982 a consent decree was entered in which the defendants agreed to provide the plaintiff class all of the relief requested. In 1983 the plaintiffs filed for attorneys fees under 42 U.S.C. Sec. 1988 for their work on the consent decree. Section 1988 provides that, in any action to enforce a provision of 42 U.S.C. Sec. 1983, "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. Sec. 1988 (1982). The plaintiffs requested $46,664.45 in attorneys fees for about 600 hours of work by four attorneys.

The district court referred the plaintiffs' motion for attorneys fees to a magistrate. The magistrate recommended that the recoverable fees be reduced to $28,504.15 for two reasons. First, she recommended that the court impose a rate differential for in-court and out-of-court work, lowering the out-of-court rate for three of the attorneys by $20 from the original flat rate requested. ² She recommended that the out-of-court rate for a fourth attorney, whose out-of-court work consisted solely of attending conferences with her co-counsel and reviewing drafts of their briefs and memos, be reduced by $40 an hour.

Second, the magistrate recommended that the compensable hours be reduced by 122 hours because of duplication of effort and vagueness in documentation. The magistrate found duplication because only two of the plaintiffs' four attorneys bore the main responsibility for the litigation. The magistrate found that, of the remaining two attorneys, one was retained so that at least two attorneys were present at all crucial stages of the case to ensure that no plaintiffs' attorney would have to litigate alone if the other could not be present. The other was necessary to avoid a potential conflict of interest. The magistrate ruled that these two attorneys should not be awarded their total requested fees because their presence was not essential in all phases of the case. She ruled that their time spent on substantive legal work, such as attending court or drafting memoranda and briefs, was compensable, but their time spent in attending strategy conferences and similar meetings was not compensable.

The magistrate recommended further reductions in the compensable time because of vagueness in documentation. She found that entries in the plaintiffs' time sheets such as "notes of meeting" and "Discussion with Diane, Aviva" were too vague and general to be compensable, while entries such as "edit complaint" and "redraft consent decree" were acceptable. The magistrate found that a total of 95.45 hours should be disallowed for vagueness.

The district court declined to adopt the magistrate's recommendations and awarded the full fee requested. With respect to the proposed rate differential, the court noted that it "is not uncommon for the bulk of work in welfare litigation to occur out of court" and that a differential compensation rate "might discourage settlement or encourage attorneys to seek unnecessary court time". Berberena v. Miller, No. 81 C 5776, at 2-3 (N.D.Ill. Feb. 6, 1984) (order granting attorneys fees for work on the consent decree). The court concluded that "in light of the significant results obtained by this litigation and the fact that most of the major work in the case occurred out of court for this particular case situation, we must reject the otherwise useful fee distinction between in-court and out-of-court work". Id. at 3.

The court also declined to reduce the compensable hours for duplication of effort. The court found that the plaintiffs "were not guilty of 'legal overkill' ". Id. The court noted that one of the four attorneys was necessary to represent a plaintiff employed by the Legal Assistance Foundation to avoid a potential conflict of interest. The court also refused to disallow time spent in meetings in which three or four of the plaintiffs' counsel were present because "this was a difficult case, and involvement in such meetings may indeed have been crucial to subsequent participation in the case". Id. The court also found that an examination of the time sheets of the two attorneys who were not the principal attorneys in the case revealed "no duplication of effort or improper utilization of time". Id. Finally, the court concluded that a "[r]eview of time sheets for all attorneys also convinces us that reductions due to vagueness would not be appropriate here. The documentation of time spent upon this case is adequate to sustain plaintiffs' fee request." Id. Accordingly, the court granted the full fee requested of $46,664.45, and the defendants appealed.

II.

A. The Standard of Review.

The Supreme Court has concluded that "the 'product of reasonable hours times a reasonable rate' normally provides a 'reasonable' attorney's fee within the meaning of [Sec. 1988]". Blum v. Stenson, --- U.S. ----, ----, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891, 901 (1984) (quoting Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The district court has considerable discretion to determine what constitutes a reasonable rate and a reasonable number of hours under the circumstances at hand. Its determination may be set aside on appeal only for a clear abuse of discretion. E.g., Freeman v. Franzen, 695 F.2d 485, 494 (7th Cir.1982), cert. denied sub nom. Branche v. Freeman, --- U.S. ----, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983). This discretion under Sec. 1988 "is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, 76 L.Ed.2d at 53.

The defendants urge on appeal that the district court abused its discretion in refusing to adopt the recommendations of the magistrate. They argue that the district court's opinion was perfunctory and erroneously refused to reduce the compensable hours for duplication and vagueness of documentation and to impose a rate differential for in-court and out-of-court time. We shall consider each contention in turn.

B. The District Court Was Not Required to Use Rate Differentials.

The defendants argue that application of across-the-board hourly rates in this case without regard to the nature of the services performed results in over-compensation of services not meriting maximum hourly rates. In particular, the defendants point to hours on the plaintiffs' time sheets for work done out-of-court that they insist should have been compensated at lower rates: 128 hours in conferences with co-counsel; 63 hours conferring with clients, opposing counsel, and others; 40 hours of telephone conversations; 25 hours reviewing documents and conferring with a state representative about future legislation and preparing press releases.

Courts in this circuit have applied differential rates in awarding attorneys fees. For example, in Entertainment Concepts, III, Inc. v. Maciejewski, 514 F.Supp. 1378 (N.D.Ill.1981), the court found that it would be unfair to allow the plaintiff's attorneys to be compensated at the flat rate of $100 an hour for every hour spent on the case, because many hours spent outside the courtroom either should have been delegated to a non-attorney or were spent in telephone conversations by the plaintiff with his two attorneys, many of which the court found unnecessary. Accordingly, the court held that $50 an hour was a reasonable hourly rate for work performed outside the courtroom and $100 was a reasonable hourly rate for courtroom work. ³ This Court has stated, however, that imposition of rate differentials is not required:

In Miller v. Carson, 563 F.2d 741, 756 (5th Cir.1977), the court ruled that the trial judge's award setting...