Covington v. McNeese State Univ.

• Decision Date: 07 May 2013
• Docket Number: No. 2012–C–2182.,2012–C–2182.
• Citation: 118 So.3d 343
• Parties: Collette Josey COVINGTON and Jade Covington v. McNEESE STATE UNIVERSITY and the Board of Supervisors for the University of Louisiana System.
• Court: Louisiana Supreme Court

118 So.3d 343

Collette Josey COVINGTON and Jade Covington

v.McNEESE STATE UNIVERSITY and the Board of Supervisors for the University of Louisiana System.

No. 2012–C–2182.

Supreme Court of Louisiana.

May 7, 2013.

James D. Caldwell, Attorney General, Veron, Bice, Palermo & Wilson, J. Michael Veron, Esq., Alonzo P. Wilson, Esq., J. Rock Palermo, III, Esq., Lake Charles, LA, for Applicant.

Seth Hopkins, Esq., James Edward Hopkins Esq., Sulphur, LA, Law Office of James B. Doyle, APLC, James Buckner Doyle Esq., Heath Joseph Dorsey Esq., The Law Office of Lee A. Archer, Lee Ann Archer Esq., Lake Charles, LA, for Respondent.

GUIDRY, Justice.^*

[2012-2182 (La. 1]The plaintiffs prevailed in their action under the Americans with Disabilities Act and sought attorney's fees, costs, and expenses. The district court rendered a fee award in favor of the plaintiffs, but reduced the requested number of billable hours by 20%, set an hourly rate of $240, and declined to enhance the overall award. The plaintiffs and the defendants both appealed. The court of appeal amended the award for purposes of the lodestar calculation to increase the number of billable hours to the amount requested and the prevailing hourly rate to $265. The court of appeal further enhanced the fee award, finding the case to be “rare” and “exceptional” based upon the results achieved and the protracted and highly-contested litigation. For the reasons set forth above, we find no abuse of discretion in the district court's fee award. We therefore reverse the ruling of the court of appeal and reinstate the judgment of the district court.

[2012-2182 (La. 2]FACTS AND PROCEDURAL HISTORY

This case concerns a motion for attorney fees awarded to a prevailing party under the Americans with Disabilities Act (hereinafter, “ADA”). The underlying facts of the case were set forth in Covington v. McNeese State Univ., 08–505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667,writ denied,09–69 (La.3/6/09), 3 So.3d 491. In January 2001, Collette Covington was a student at McNeese State University. At the time, Covington required an electric wheelchair to traverse the campus due to a seizure disorder and orthopedic problems. She sustained injuries while attempting to exit a restroom in the Holbrook Student Union (hereinafter “Old Ranch”), the doorway of which was too narrow for her wheelchair to negotiate easily. It was ultimately determined there was not a single restroom in the entire Old Ranch building that was properly accessible to individuals with disabilities.

Covington sued McNeese and the University of Louisiana System for violations of the Americans with Disabilities Act (hereinafter, “ADA”). She alleged in her petition that she was injured while trying to use and exit a non-compliant restroom on the McNeese campus. She asserted the non-compliant restroom violated both the provisions of Title II of the ADA and La.Rev.Stat. 46:2254, which mandates “[A]n educational institution shall not: (1) Discriminate in any manner in the full utilization of the institution....” After years of protracted litigation, McNeese ultimately admitted that numerous ADA violations existed across its campus and that the university had expended little to no effort to bring the campus into compliance with the ADA since the law was passed in 1990, despite renovations on the campus during which federal law mandated compliance.

On a motion for summary judgment in 2007, the district court found there was no genuine issue of material fact in dispute regarding the following issues: 1) [2012-2182 (La. 3]McNeese did not have immunity under the Eleventh Amendment to the U.S. Constitution; 2) Covington was disabled as defined by the ADA at the time of the incident giving rise to the lawsuit; and 3) McNeese discriminated against Covington based on her disability. The court of appeal affirmed in a powerfully worded opinion, stating McNeese's deliberate ignorance of the federal mandate to provide accessibility to handicapped persons is “reminiscent of the intolerance of the past” and expressed amazement at the audacity of McNeese's decision to bring the case into an appellate court “where published, written opinion will forever memorialize its discrimination against this country's disabledcitizens.” McNeese State Univ., 996 So.2d at 687.

McNeese eventually agreed to settle Covington's personal injury claim. After a Department of Justice investigation, McNeese, albeit slow in response, eventually agreed to bring its campus into compliance with the ADA. Covington subsequently filed a motion seeking an award of attorney fees for her six attorneys, requesting a single hourly rate of $265 per hour be applied uniformly to all hours recorded. Covington also requested an enhancement based upon the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (1974),¹ such as the novelty or difficulty of the claim, the time and labor required to litigate the claim, and the extent to which the case hindered the attorney's acceptance of other work. Covington's lead counsel, Seth Hopkins, who had graduated from law school in 1999, took on the case in 2001. For the next decade, counsel logged in excess of 5,400 hours of legal work without compensation. To [2012-2182 (La. 4]support himself, Covington's lead counsel worked as a staff attorney at a law firm in Houston, Texas. Counsel testified his continued involvement with his client's case had kept him from accepting more lucrative work.

After lengthy litigation and a six-day hearing, the district court ordered McNeese to pay attorney fees at the rate of $240 per hour for all six of Covington's attorneys, as well as costs and $41,570.47 in expenses.² The district court reduced lead counsel's request for 5489.5 hours in billable time by 20% to 4,391.6, citing counsel's inexperience in being an attorney and in ADA law. The district court denied the request for an enhancement of the assigned reasonable hourly rate, explaining the four factors urged by Covington's counsel in support of the enhancement had been taken into account in the lodestar calculation. In doing so, the district court noted the exception to the rule against enhancement is strictly limited to “rare and exceptional circumstances.” Perdue v. Kenny A. ex rel. Winn et al., 559 U.S. 542, 130 S.Ct. 1662, 1667, 176 L.Ed.2d 494 (2010).

Both Covington and McNeese appealed the district court's judgment. The court of appeal affirmed the lower court's award of attorney fees but amended the judgment to: 1) award lead counsel 5,489.5 billable hours; 2) set the reasonable hourly rate at $265 per hour; and 3) set the enhancement at nine and one-half percent. The court of appeal denied Covington's request for sanctions and her [2012-2182 (La. 5]motion to strike McNeese's reply brief, but it granted Covington's motion to strike certain passages from McNeese's brief. ³

We granted the defendant's writ application to consider the correctness of the court of appeal's decision. Covington v. McNeese State Univ., 12–2182 (La.12/14/12), 104 So.3d 427.

DISCUSSION

The Americans with Disabilities Act was passed in 1990 to remedy discrimination against persons with disabilities. 42 U.S.C. § 12101 et seq. The fee shifting statute within the ADA provides authority for the court to award a reasonable attorney fee to a successful plaintiff in ADA actions. 42 U.S.C. § 12205 (“[T]he court ..., in its discretion, may allow the prevailing party ... a reasonable attorney's fee, including litigation expenses, and costs”). As the appellate court noted, the attorney fee provision in the ADA is intended to encourage individuals injured by discriminatory practices to seek judicial redress, and “to ensure that the costs of violating civil rights laws [are] more fully borne by the violators, not the victims.” Newman v. Piggie Park Enter. Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The U.S. Supreme Court established in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), that the initial estimate of a reasonable attorney fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate, otherwise known as the “lodestar method.” A “reasonable hourly rate” is to be calculated according to the prevailing market rates in the relevant community. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). [2012-2182 (La. 6]“The amount of the fee, of course, must be determined on the facts of each case.” Hensley, 461 U.S. at 429, 103 S.Ct. at 1937.

The appellate court reviews an award of attorney's fees for an abuse of discretion. Corder v. Gates, 104 F.3d 247, 249 (9th Cir.1996); see also Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. The district court's factual determinations will not be set aside absent manifest error. Stobart v. State, Dep't of Trans. and Dev., 617 So.2d 880, 882 n. 2 (La.1993).

A. Reasonable Number of Hours Expended

McNeese first asserts the lower courts erred in not rejecting lead counsel's fee application in its entirety. McNeese vehemently claims the fee application is so riddled with errors and contradictions that reliability in the application should be deemed lacking. McNeese also complains of the lack of contemporaneous records and disputes counsel's efforts in reconstructing billing records, arguing the fee application should have been rejected on these bases as well. We find no error in the appellate court's rejection of this argument and adopt the court's reasoning in Part I of its opinion below. Covington v. McNeese State University, 11–1077, pp. 9–13, 98 So.3d 414, 423–25 (La.App. 3 Cir.2012).

Moreover, our review of the record reveals no clear error in the district court's finding that counsel provided sufficient documentation of his time working on the case. Although there is a “preference” for contemporaneous records, they are not absolutely necessary. See ...