Ecos, Inc. v. Brinegar

• Decision Date: 01 October 1987
• Docket Number: No. C-352-D-72.,C-352-D-72.
• Citation: 671 F. Supp. 381
• Parties: ECOS, INC.; Drew Diehl; Associated Students of Duke University; Steve Schewel and Henry Beck, Members of Associated Students of Duke University; and John Robertson, Plaintiffs, Crest Street Community Council, Inc. and Willie Patterson, Plaintiffs/Intervenors, v. Claude S. BRINEGAR, Secretary of United States Department of Transportation; T.J. Morawski, Division Engineer, Federal Highway Administration; McLaughlin D. Faircloth, Commissioner, North Carolina State Highway Commission; W.F. Caddell, Jr., Planning and Research Engineer, North Carolina State Highway Commission; and Nello Teer Company, A Corporation, Defendants.
• Court: U.S. District Court — Middle District of North Carolina

671 F. Supp. 381

ECOS, INC.; Drew Diehl; Associated Students of Duke University; Steve Schewel and Henry Beck, Members of Associated Students of Duke University; and John Robertson, Plaintiffs, Crest Street Community Council, Inc. and Willie Patterson, Plaintiffs/Intervenors, v. Claude S. BRINEGAR, Secretary of United States Department of Transportation; T.J. Morawski, Division Engineer, Federal Highway Administration; McLaughlin D. Faircloth, Commissioner, North Carolina State Highway Commission; W.F. Caddell, Jr., Planning and Research Engineer, North Carolina State Highway Commission; and Nello Teer Company, A Corporation, Defendants.

No. C-352-D-72.

United States District Court, M.D. North Carolina, Durham Division.

October 1, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael D. Calhoun, Durham, N.C., for plaintiffs/intervenors.

Lacy H. Thornburg, Atty. Gen., and James B. Richmond, Sp. Deputy Atty. Gen., for North Carolina State Highway Com'n.

MEMORANDUM OPINION

GORDON, Senior District Judge:

A "request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). As this case illustrates, this quote expresses a laudable, but frequently ignored, sentiment. The parties herein have spent considerable time during the last five years litigating over attorney's fees. At present, plaintiffs/intervenors' motion for attorney's fees is, for the fourth time, before a court for a ruling.

FACTS

In 1959, the City of Durham, North Carolina, recognized the need for a highway through the city. Planning for such a highway ensued. The Durham City Council conducted public hearings, consulted with the State Highway Commission, and hired a consulting firm to develop a plan for the highway. The public supported construction of the highway and expressed little, if any, opposition to the proposed location. Accordingly, in early 1968, the City of Durham and the State Highway Commission adopted a plan to construct a highway known as the East-West Freeway. Shortly thereafter, construction began on certain portions of the highway. In November 1972, preliminary construction began on the portion of the highway that extends from Chapel Hill Street to Erwin Road. This portion of the highway was part of the plan to connect Chapel Hill Street to Interstate Highway 85. Objections, in the form of two legal proceedings, ensued.

In December of 1972, plaintiffs ECOS et al. sued to enjoin construction of the Chapel Hill Street to Interstate-85 portion of the freeway. Plaintiffs alleged, among other things, that the highway would have a disastrous effect on the human environment in contravention of the National Environmental Policy Act of 1969 and would destroy public parkland and recreation areas in violation of the Department of Transportation Act of 1966 and the Federal-Aid to Highway Act of 1968. This court entered an order, on February 20, 1973, denying plaintiffs request to enjoin the construction between Chapel Hill Street and Erwin Road. This order, however, enjoined defendants from proceeding with the highway segment between Erwin Road and Interstate-85 until defendants complied with several federal laws governing the construction of highways. The Fourth Circuit affirmed this order on November 5, 1973.

On November 8, 1973, the parties entered a consent judgment whereby plaintiffs agreed to dismiss a portion of their lawsuit and defendants agreed to study and reconsider certain portions of its plans. Defendants conducted these studies and filed the results with the court during 1973 and 1974. Thereafter, the parties apparently conducted negotiations. During this time, the formal litigation lay dormant; the parties did not file any documents with the court between November 6, 1974 and August 27, 1982.

In addition to the ECOS litigation, members of the Crest Street community, a black neighborhood in Durham, expressed opposition to construction of the freeway through their community. "Crest Street" retained the North Carolina Legal Assistance Program to represent them concerning the highway construction through their community. In September 1978, Crest Street filed an administrative complaint with the United States Department of Transportation ("USDOT") alleging that defendants' actions violated several laws, including Title VI of the Civil Rights Act of 1964. Crest Street sought, among other things, prohibition of further highway construction until defendants complied with Title VI. The USDOT investigated Crest Street's complaint and, on February 20, 1980, issued a preliminary finding of reasonable cause to believe that construction of the freeway, according to the North Carolina Department of Transportation ("NCDOT") proposal, would constitute a prima facie violation of Title VI and USDOT Title VI regulations. The USDOT urged the parties to attempt to mediate the contested issues. Over the next two years, the parties conducted the suggested negotiations.

In 1982, negotiations between ECOS, Crest Street, and the defendants culminated. In February 1982, the parties reached a preliminary resolution of the case. Later, in August 1982, defendants moved to dissolve the order, entered by this court in 1973, enjoining construction of the freeway. In October 1982, Crest Street moved to intervene in this action and filed a proposed complaint asserting the claims raised in its administrative complaint. Shortly thereafter, the parties completed the drafting of a "Final Mitigation Plan" and the court entered a consent judgment effectuating this plan on December 14, 1982. Although the court never formally allowed Crest Street to intervene, Crest Street signed the consent judgment.

The consent judgment permitted the construction of the freeway to proceed on a modified basis. The highway construction through the Crest Street community proceeded. But the settlement required the NCDOT to take specified measures to mitigate the freeway's impact. The judgment also dissolved the existing injunction, dismissed the ECOS action, and required Crest Street to withdraw its administrative complaint. Crest Street's claim for attorney's fees against the state defendants, however, was dismissed without prejudice. Eventually, Crest Street filed an independent action to recover attorney's fees. After protracted litigation, the Supreme Court held that a claim for attorney's fees under 42 U.S.C. § 1988 may not be brought in an independent action. Crest Street Community Council, Inc. v. North Carolina Department of Transportation, 598 F.Supp. 258 (M.D.N.C.1984), rev'd, 769 F.2d 1025 (4th Cir.1985), rev'd, ___ U.S. ___, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986).

On December 24, 1986, Crest Street filed a motion for relief from judgment. Crest Street asked this court to vacate the portion of the consent judgment which dismissed their claim for attorney's fees. The court entered an order on March 31, 1987, granting this motion. Now, some fifteen years after the inception of this litigation, and five years after the settlement of the case's substantive issues, the court is called upon to decide the propriety of compelling the NCDOT to pay attorney's fees to Crest Street.

DISCUSSION

42 U.S.C. § 1988 provides that in "any action or proceeding to enforce a provision of ... 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." Unfortunately, deciding the propriety of awarding attorney's fees to Crest Street is not as easy as it might appear at first blush. The course taken by the litigants in this case has created enough difficult questions to make the most sadistic law professor or bar examiner squeal with delight. In particular, in order to resolve Crest's claim, the court must answer the following general questions:

1) Whether Crest Street is a party to this litigation in view of the fact that the court has not entered an order allowing intervention, and whether intervenors may recover statutory attorney's fees?

2) Whether Crest Street was "the prevailing party" in the ECOS litigation?

3) Whether Crest Street's administrative proceeding was a "proceeding to enforce" Title VI, and whether Crest Street can recover attorney's fees for work performed at the administrative level?

4) What amount of fees should the court award for the work of Crest Street's attorneys regarding the Title VI claims?

5) Should the court reduce the fee award to reflect the limited nature of Crest Street's success?

6) Whether the court should enhance the fee award to compensate for the contingency of success?

7) What amount of fees should Crest Street recover for the efforts expended to recover attorney's fees, and whether Crest Street can recover attorney's fees for the time spent in the separate litigation to recover attorney's fees?

8) What amount of costs, such as fees for expert witnesses, should the court allow to Crest Street's attorneys?

In addition to analyzing this legal quagmire, the court realizes that three different courts have voiced divergent judicial views as to the merits of Crest Street's petition. This court must, therefore, attempt to reconcile its conclusions with the opinions of these courts. For ease of discussion, the court will denominate these opinions as "Crest I" (district court opinion), "Crest II" (Fourth Circuit opinion), and "Crest III" (Supreme Court opinion). The court will now address, in the order presented, these issues.

I. Whether Crest Street Intervened and Whether Intervenors Can Recover Attorney's Fees?

Crest Street moved to intervene and to file a complaint alleging violation of several statutes, including Title VI, on October 15, 1982. The court never formally ruled on these motions. Nevertheless, the court entered a consent judgment on December 14, 1982 and allowed Crest Street to sign this judgment.

It...