Berry v. School Dist. of City of Benton Harbor

• Decision Date: 24 July 1986
• Docket Number: Civ. A. No. 9.
• Citation: 703 F. Supp. 1277
• Parties: Barbara Jean BERRY, et al., Plaintiffs, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

703 F. Supp. 1277

Barbara Jean BERRY, et al., Plaintiffs, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR, et al., Defendants.

Civ. A. No. 9.

United States District Court, W.D. Michigan, Southern Division.

July 24, 1986.

John D. Tully, Warner, Norcross & Judd, Grand Rapids, Mich., Stephen C. Small, Small & Small, Benton Harbor, Mich., for Benton Harbor.

E. Michael Stafford, Farhat, Burns & Story, P.C., Lansing, Mich., for Coloma Bd. of Educ.

Francis A. Jones, III, John L. Crow, Hartwig, Crow, Jones & Postelli, St. Joseph, Mich., for Eau Claire Bd. of Educ.

James E. Riley, Asst. Atty. Gen., Lansing, Mich., for State of Mich. Lee Boothby, Boothby, Huff & Yingst, Berrien Springs, Mich., for intervening defendants Fulner, et al.

Thomas Atkins, Teresa Demchak, General Counsel, NAACP Sp. Contribution Fund, Brooklyn Heights, N.Y., Duane Elston, NAACP Sp. Contribution Fund, Detroit, Mich., Dean Michael J. Stolee, Fox Pointe, Wis. (court appointed), for plaintiffs.

Thomas J. Nordberg, Thrun, Maatsch & Nordberg, P.C., Lansing, Mich., for Berrien Co. Inter. School Dist.

Arthur Przybylowicz, Foster, Swift, Collins & Coey, Lansing, Mich., for MEA.

OPINION GRANTING ATTORNEYS' FEES AND COSTS

HILLMAN, Chief Judge.

This case is currently pending before the court on the petition of plaintiffs' counsel for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988. On November 9, 1984, plaintiffs' counsel first petitioned this court for an award of attorneys' fees and costs. After several preliminary meetings between the parties, this court presided over a meeting of plaintiffs' and defendants' attorneys on September 6, 1985. At that meeting, all counsel agreed that an award of attorneys' fees should be accomplished without further litigation and on the basis of counsel's filed affidavits and legal briefs. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). The following opinion presents this court's findings of fact and conclusions of law after careful review of the record and evaluation of counsel's submitted affidavits and briefs.

FACTUAL and PROCEDURAL BACKGROUND

Plaintiffs, black public school students and their parents, originally filed this lawsuit in 1967 against the School District of the City of Benton Harbor, Michigan alleging de jure segregation in the Benton Harbor Area School District ("BHASD").¹ Defendants are now the BHASD; the Michigan State Board of Education and other State officials ("State defendants"); the Berrien County Intermediate School District ("BCISD"); Coloma Community Schools; and Eau Claire Public Schools. This court and United States District Judge Noel P. Fox found defendants liable for de jure race discrimination in the BHASD. Subsequently, this court, on May 1, 1981, entered a desegregation plan to remedy the constitutional violations by defendants. Through the joint efforts of all parties in this litigation, that plan has slowly but steadily been accepted and successful.

Over the past 19 years, "this case has presented in one form or another almost all the issues which are possible in a school desegregation case." Berry v. School District of the City of Benton Harbor, 698 F.2d 813, 814 (6th Cir.1983). No need exists at this time to recount the struggles and events involved in this case. The following published opinions present adequate and detailed histories of this litigation: Berry v. School District of the City of Benton Harbor, 698 F.2d 813 (6th Cir. 1983), 505 F.2d 238 (6th Cir.1974), 564 F.Supp. 617 (W.D.Mi.1983), 515 F.Supp. 344 (W.D.Mi.1981), 494 F.Supp. 118 (W.D.Mi. 1980), 467 F.Supp. 630 (W.D.Mi.1978), 442 F.Supp. 1280 (W.D.Mi.1977).

As with other aspects of this case, in regards to the recovery of attorneys' fees individuals are not in two easily distinguishable groups. The several attorneys who represented plaintiffs during the long course of this case are divided into three groups. First, Paul R. Dimond represents attorneys Louis R. Lucas, Stuart J. Dunnings, Jr., Elijah Noel, Jr., and Teresa Demchak.² Second, Thomas I. Atkins represents himself and the Honorable Nathaniel R. Jones, a Judge on the United States Court of Appeals for the Sixth Circuit.³ Third, Grover G. Hankins, on behalf of the National Association for the Advancement of Colored People—Special Contribution Fund ("NAACP—SCF"), represents three attorneys for their legal representation of plaintiffs while employees of the NAACP— SCF: Michael H. Sussman, Thomas I. Atkins (for the period from May 1, 1980 until July 1, 1984), and Teresa Demchak (for the period from October, 1980 until November 15, 1982). Defendants have not joined together in opposition to this petition for attorneys' fees and costs. Instead, defendants have individually filed briefs with regard to the proper amount of an award and the proper apportionment of such award among the defendants.

DISCUSSION

This petition for attorneys' fees and costs requires this court to answer three general questions. First, are the plaintiffs a "prevailing party" within the meaning of 42 U.S.C. § 1988? Second, what is the proper amount of attorneys' fees and costs to be awarded in this case? Third, how should an award of attorneys' fees and costs be apportioned among the defendants?

A. Attorney Fee Awards in Civil Rights Actions.

Until recently federal courts used their general equity power in awarding attorney fees to prevailing parties in civil rights actions. In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court "reaffirmed the `American Rule' that each party in a lawsuit ordinarily shall bear its own attorney's fees unless there is express statutory authorization to the contrary." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed. 2d 40 (1983). Therefore, a federal court can only, with a few exceptions, grant attorney fees to a party when a statute authorizes such an award. In response to Alyeska Pipeline, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. Plaintiffs' counsel seek an award of attorneys' fees and costs under section 1988.

Section 1988 allows prevailing parties in civil rights litigation to recover their attorneys' fees. Specifically, section 1988 in pertinent part provides that:

"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, 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."

Litigation surrounding section 1988 centers around two issues: (1) whether plaintiff was a "prevailing party" and (2) what are "reasonable attorney's fees."

A plaintiff is a prevailing party under section 1988 "`if he succeeded on any significant issue in litigation which achieves some of the benefit the party sought in bringing the suit.'" Hensley, 461 U.S. at 433, 103 S.Ct. at 1393 (quoting Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978)). Several recent opinions from the Supreme Court and the Court of Appeals for the Sixth Circuit have answered many questions concerning how a court should determine what are reasonable attorney's fees under section 1988. In Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 642 (6th Cir.1979), the court of appeals applied an "analytical approach" in determining reasonable attorney's fees. In short, Northcross "advises that the attorney's normal hourly billing rate should be a key focal point in award determinations." Kelley v. Metropolitan County Board of Education, 773 F.2d 677, 683 (6th Cir.1985) (en banc). In making a determination of the reasonableness of attorney's fees, the analytical approach of Northcross includes two steps.

First, a court arrives at the standard or "lodestar" amount of attorney's fees, i.e., the product of a reasonable hourly rate and the hours of service. "A fee calculated in terms of hours of service provided is the fairest and most manageable approach." Northcross, 611 F.2d at 636. See also Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Therefore, a court should use the product of an attorney's total hours and a reasonable hourly rate as the starting point in awarding attorney fees. In evaluating an attorney's hourly rate, a court should consider the "prevailing market rates in the relevant community," Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), and the "attorney's normal hourly billing rate." Kelley, 773 F.2d at 683. In determining the amount of hours of service, a court should first look to the attorney's affidavit. A court should then adjust the hours of service to account for any duplication of other attorneys' services, frivolous claims, and padding. Only in reducing the amount of hours for duplicative services may a court reduce without specification a percentage of the documented total hours. In all other cases, a court should articulate its reasons for eliminating specific hours of service. See Northcross, 611 F.2d at 636-37.

Second, a court considers whether special circumstances require it to increase or decrease the lodestar award. In some cases the lodestar amount is not a reasonable attorney's fee. In such cases "that rate is not `reasonable', because it does not take into account special circumstances, such as unusual time constraint, or an unusually unpopular cause, which affect the market value of the services rendered. Perhaps the most significant factor in these cases which at times renders the routine hourly fee unreasonably low is the fact that the award is contingent upon success." Northcross, 611 F.2d at 638. The final factor mentioned in Northcross, the "contingency factor," is the chief means that plaintiffs' attorneys have of collecting an award beyond the lodestar amount and the most controversial. See Blum v....