Hart v. Bourque

• Decision Date: 12 August 1986
• Docket Number: No. 85-1629,85-1629
• Citation: 798 F.2d 519
• Parties: Jean HART as Administratrix of the Estate of Levi Hart, Plaintiff, Appellee, v. Richard W. BOURQUE, Jr., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 519

798 F.2d 519

Jean HART as Administratrix of the Estate of Levi Hart Plaintiff, Appellee, v. Richard W. BOURQUE, Jr., et al., Defendants, Appellants.

No. 85-1629.

United States Court of Appeals First Circuit.

Argued Jan. 6, 1986.

Decided Aug. 12, 1986.

Steven P. Perlmutter, Asst. Corp. Counsel, City of Boston Law Dept., with whom Harrison & Maguire, P.C., Boston, Mass., was on brief, for defendants, appellants.

Ellen K. Wade, with whom Henry F. Owens, III, and Owens & Associates, Boston, Mass., were on brief, for plaintiff, appellee.

Before BREYER, Circuit Judge, ALDRICH and ROSENN, ^* Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

This is defendants' appeal from an allowance of counsel fees to plaintiff following the settlement (except for the amount of fees) of a Title 42 U.S.C. Sec. 1983 suit, with pendent counts, 608 F.Supp. 1091. Both sides describe it as a cause celebre on account of the incident out of which it arose. Because of the fee claims advanced, and the controversies engaged in by both sides, we, fearing it might become a cause celebre for another, and improper reason, postponed to our summer lull the detailed consideration that seemed called for.

On July 15, 1980, Levi Hart, a 14-year-old black youth, was caught up with by Boston Police Officer Richard W. Bourque, Jr., while trying to escape arrest. In the scuffle Hart's skull was cracked and he was shot by Bourque's revolver. Negroid hair was found on the butt of the revolver. Hart died without regaining consciousness. An inquest judge found "ample cause to believe" the death to have been due to illegal conduct by Bourque.

The police account was considerably different, but offered no explanation for the hair. Ultimately, both state and federal grand juries refused to indict. In the meantime this suit followed shortly after the inquest, plaintiff, Jean Hart, his mother, suing as Levi Hart's administratrix. Named defendants in addition to Bourque and the City of Boston were Kevin H. White, its Mayor, Joseph Jordan, its Police Commissioner, and Newman Flanagan, the Suffolk County District Attorney, all in their personal and official capacities. On September 12, 1983 the suit was settled prior to trial, for $167,500, dismissing with prejudice against all defendants, but reserving attorneys' fees and expenses, to be determined by the court if the parties should not agree. Agreement proving impossible, the matter was submitted to the court, and its findings being unacceptable to defendants, this appeal followed.

The first question is the scope of the fee obligation. The settlement agreement, which stated that no defendant conceded liability, released and discharged all defendants in every respect, "except that Jean Hart retains her right to attorneys' fees from the City of Boston." A controversy developed as to what was to be included. Defendants contended that plaintiff had not "prevailed" against the individual defendants; hence, not only should they not be accountable for fees, but, in measuring the fee due from the City, there should be excluded any separate services attributable only to claims against the individual defendants. For this was cited Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The court cut this short by holding that plaintiff "prevailed" against all defendants. This seems somewhat of a heavy ax. Witness, particularly, the District Attorney, against whom no claim can be imagined. See Imbler v. Pachtman, 424 U.S. 409, 424-31, 96 S.Ct. 984, 992-95, 47 L.Ed.2d 128 (1976). At the same time, the result seems a fair interpretation of the scope intended. On the other hand, the court's entering a final order charging all the individual defendants personally directly violated the release agreement. The court's failure to correct this is unfathomable, and resulted in collection efforts directed against them. Equally unaccountable is the fact that the fee order was directed against the individual defendants only, omitting the City altogether, except in a later order with respect to interest.

We attach no consequences to these errors, which can be corrected in due course, and we shall hereafter refer to the defendants in the singular. But while we accept the court's including all services in the fee, it does enter into the overall picture. Included in plaintiff's asserted justifications for the large number of hours claimed are "the complicated legal issues associated with proving supervisory and municipal liability for federal civil rights claims, the number of different causes of action, and the number of separate defendants." The court accepted this, saying it was a "particularly complex case." True, supervisory and municipal liability do raise issues. However, in its characterization the court failed to consider that much of the complexity was unnecessary, and of plaintiff's own making. Even in 7 causes of action, 64 paragraphs and 28 pages, we must wonder what claims there were against the mayor personally, or the district attorney, and, correspondingly, how fees were to be increased because of the "undesirability of taking a case against influential public officials." And, again, we wonder how plaintiff could have standing to seek an injunction against Officer Bourque's remaining on the force, a claim later abandoned, but significantly charged for.

To turn to the merits, on December 6, 1983 plaintiff filed a motion for attorneys' fees: for lead counsel, Mr. Owens, 121.73 hours, at $150 per hour; six associates, 792.92 hours, at $80 per hour; five law students, 890 hours, at $30 per hour; a total of $108,393 plus "an appropriate multiplier," subsequently specified to be 50 percent, plus expenses of $12,000. Thereafter, in response to defendant's motion for a breakdown, plaintiff submitted detailed affidavits. Following extensive briefing, the court, on April 19, 1984, sought to discuss settlement, but this failed, assertedly, and not contradicted, because plaintiff refused to move. A year later, on May 3, 1985, the court filed a memorandum and order awarding fees of $43,478, plus a 20 percent multiplier, a total of $50,974, plus $7,398 for expenses, "plus interest" (to be considered later). In its detailed recital it reduced counsels' hours from 910.61 to 610.83; reduced the hourly charges claimed, and rejected charges for law students altogether.

Because, on a preliminary look at the record, even 610 hours constitutes one-third of a year's billing time for one lawyer; and, from the standpoint of preparation, all possible witnesses had testified in over 800 pages at the inquest, with, also, two grand jury proceedings with largely available transcripts, and the case was settled without trial, we suspected exaggeration, and felt this appeal required particular scrutiny. We especially noted plaintiff's still maintained claim that her original "fee application reflected attention to detail and the exercise of sound billing judgment," and indicated "counsel's restraint," and "self-imposed economies," and "obvious attempts to limit claims." The called-for careful review confirmed our initial suspicions.

As we have said, there were seven lawyers: Mr. Owens and, from time to time, six associates. The court's approach was to:

divide the itemized time into separately compensable categories: (1) court appearances and preparation therefor; (2) review and drafting of pleadings and memoranda, and depositions and preparation therefor; (3) conferences and substantive phone calls; (4) legal research; and (5) administrative and clerical tasks.

The court finds that the following respective number of hours were reasonably expended by members of the defense (sic) team:

(A) Henry F. Owens, III

1) 12.01 hours

2) 52.5 hours

3) 41.38 hours

4) 10.32 hours

5) zero hours

for a total of 116.21 hours.

Stopping there, Mr. Owens's submission contained 58 items, totalling 121.71 hours. It is not apparent which 5.5 hours the court rejected, but we note that under item (1) it allowed 4 hours less than Mr. Owens claimed. This would correspond with two court hearings the defendant indicated he did not attend. Mr. Owens in fact made no claim for legal research (4). Plaintiff says that the 10.32 hours the court allowed for legal research could relate to "strategy discussions" and "conferences with law students," and we can accept that, there being nothing else. However, 52.5 hours for reviewing pleadings and memoranda leaves us at a total loss for identification. Other findings leave us with similar difficulties.

With respect to plaintiff's claim that her fee application reflects "sound billing judgment," we turn to Ms. Althea Lloyd, as to whom the court found as follows.

1) 7 hours

2) 118 hours

3) 69.5 hours

4) 59 hours

5) 1.25 hours

Total--254.75 hours

Ms. Lloyd's list contains 317 items, totalling 431.87 hours. For "soundness" it includes such matters as 7 hours for proofreading, a secretarial job; (other lawyers charged even more hours for proofreading); hand delivery of papers and mailing packages, in one instance 1.2 hours ($96); arranging with travel agency for flight tickets (to take a deposition) 2 hours ($160). As another spot example, Ms. Lloyd charged 7 hours for a "strategy discussion" with Mr. Owens and co-counsel Wade. Apart from the fact that this flags an extraordinary discussion, the other participants each charged .5 hours. Again, on October 5 and 7, 1982 Ms. Lloyd charged for time spent in federal court to read grand jury minutes although the district court did...