Davis v. City of Abbeville, 80-3557
| Decision Date | 08 January 1981 |
| Docket Number | No. 80-3557,80-3557 |
| Citation | 633 F.2d 1161 |
| Parties | Gwendolyn DAVIS et al., Plaintiffs-Appellants, v. CITY OF ABBEVILLE et al., Defendants-Appellees. Summary Calendar. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry C. Remm, Jr., Lafayette, La., for plaintiffs-appellants.
Gordon P. Sandoz, II, Abbeville, La., for defendants-appellees.
Appeal from the United States District Court for the Western District of Louisiana.
Before BROWN, POLITZ and TATE, Circuit Judges.
This is an appeal by the plaintiffs, Davis and Brailey, of an attorney's fees award in their favor as the prevailing parties under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. After obtaining a consent decree in a § 1983 civil rights action against the defendant, the City of Abbeville, the plaintiffs sought an attorney's fees award under § 1988. Following hearing on the motion, the district court awarded the plaintiffs the amount of $1,000 in attorney's fees, approximately half that requested. On appeal, the plaintiffs claim that the award is inadequate and should be vacated because of the district court's failure to address the criteria set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), in making the award. We affirm the district court award, finding no abuse of discretion.
The plaintiffs, Davis and Brailey, brought this civil rights action under 42 U.S.C. § 1983, suing on behalf of themselves and others similarly situated, for injunctive relief prohibiting the city of Abbeville from terminating their utility service absent adequate due process procedures under the Fourteenth Amendment. Immediately thereafter negotiations were held between the plaintiffs and the city, which resulted in continued utility service to the named plaintiffs and the sending of a letter, at city expense, to each non-commercial customer whose service had been terminated but had not yet been reconnected. The letter provided the location, time and procedure by which representatives of the city would consider reinstating former utility service pending the resolution of any disputes over utility bills and their payment. A status conference was also held between the parties, which culminated in the entering of a consent decree according to which the city agreed to afford its utility customers a pre-termination notice and opportunity for hearing. A final judgment was entered by the court below approximately six months after the institution of the proceedings, according to a joint application of the parties based upon their stipulation for a settlement.
The plaintiffs subsequently brought a motion for an award of costs and attorney's fees pursuant to 42 U.S.C. § 1988. This motion was accompanied by supporting affidavits reflecting the going hourly rate for attorney's fees in civil rights litigation in the area, a daily record of the plaintiffs' attorney's hours spent in processing this suit and activities performed, a request for a fee award of $2,402.50 at a rate of $50 per hour, and a memorandum in support of the plaintiffs' motion for attorney's fees. Following a hearing, the district court ordered that the plaintiffs be awarded attorney's fees in the sum of $1,000, with each of the parties to bear their own costs. The plaintiffs then moved, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, for an order altering or amending the order granting their attorney's fees and denying their costs in the action. This motion, too, was accompanied by supporting affidavits and memoranda. After hearing on the motion, the district court ordered that the defendant, the city of Abbeville, be cast for all court costs, but refused to allow an increase in the attorney's fees award. The plaintiffs now appeal the district court's original order granting attorney's fees in the amount of $1,000 as altered and amended by the court's second order, casting the defendants with court costs.
The plaintiffs, appealing the attorney's fees awards as inadequate, ask this court to reverse on the basis that the district court failed to articulate the effect that the Johnson criteria had on its attorney's fees award determination.
In determining the reasonableness of an attorney's fee award, we are limited to considering whether the district court abused its discretion. Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980); Norwood v. Harrison, 581 F.2d 518, 520 (5th Cir. 1978); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). This determination rests upon a careful review of the basis upon which the district court made its award, including its consideration of each criteria set forth in Johnson, supra, at 417-419.
On numerous occasions, panels within this circuit have required that the district court articulate how the Johnson factors affected its attorney's fee award, and have remanded the case for such an explication to facilitate appellate review. See Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir. 1980); Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575 (5th Cir. 1980); King v. McCord, 621 F.2d 205 (5th Cir. 1980); Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980); Gay v. Board of Trustees of San Jacinto College, 608 F.2d 127 (5th Cir. 1979); Davis v. Fletcher, 598 F.2d 469 (5th Cir. 1979); Sweeney v. Vindale Corp., 574 F.2d 1296 (5th Cir. 1978); Fain v. Caddo Parish Police Jury, 564 F.2d 707 (5th Cir. 1977); Matter of First Colonial Corp. of America, 544 F.2d 1291 (5th Cir. 1977), cert. denied 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); Miller v. Mackey Intern'l Inc., 515 F.2d 241 (5th Cir. 1975); Mims v. Wilson, 514 F.2d 106 (5th Cir. 1975); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1974), cert. denied 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). But see E.E.O.C. v. Strasburger, Price, Kelton, Martin and Unis, 626 F.2d 1272 (5th Cir. 1980); Wolf v. Frank, 555 F.2d 1213 (5th Cir. 1977).
We ultimately determine that, despite the absence of Johnson articulation, we should not remand for such articulation in the present case under the present circumstances.
For one thing, it is apparent from the limited record before us as designated by the appellant that indeed the district court did have before it the plaintiff's persuasive memoranda as to the application of the Johnson factors on both the original hearing on the motion for attorney's fees and again on the hearing on the motion to amend such order. We are unable to hold on the record before us that the district court failed or refused to consider the Johnson factors in making its award.
Unfortunately neither the colloquy nor the court's rulings at the hearings on these motions were recorded. 1 The mere failure to take steps to assure preservation for appellate review of the district court's reasons for its rulings by itself should not, in the absence of obvious abuse of discretion, require the expense and delay of a remand that is unlikely to change the eventual result. Cf. Wolf v. Frank, supra, 555 F.2d at 1217. By a remand, the...
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...affidavits submitted in this case. See, e. g., Morrow v. Finch, 642 F.2d 823 (5th Cir. 1981) ($100/hour); Davis v. City of Abbeville, 633 F.2d 1161 (5th Cir. 1981) ($50/hour); Neely v. City of Grenada, 624 F.2d 547 (5th Cir. 1980) ($100/hour); Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980)......
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..."This determination rests upon a careful review of the basis upon which the district court made its award," Davis v. City of Abbeville, 633 F.2d 1161, 1163 (5th Cir. 1981), including its evaluation of the case in terms of each of the Johnson criteria. teachers an attorneys' fee award of $24......
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