Islamic Center of Mississippi, Inc. v. City of Starkville, Miss.
| Decision Date | 30 June 1989 |
| Docket Number | No. 88-4530,88-4530 |
| Citation | 876 F.2d 465 |
| Parties | 54 Ed. Law Rep. 135 ISLAMIC CENTER OF MISSISSIPPI, INC., et al., Plaintiffs-Appellants, v. CITY OF STARKVILLE, MISSISSIPPI, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wilbur O. Colom, Columbus, Miss., for plaintiffs-appellants.
Dolton W. McAlpin, Lydia Quarles, Starkville, Miss., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before RUBIN, KING and GARWOOD, Circuit Judges.
The prevailing plaintiff in a civil-rights case contends that the district court abused its discretion when, in computing the lodestar for the award of attorney's fees under 42 U.S.C. Sec. 1988, it set the attorneys' hourly rates at less than the amounts they usually charge other clients, and refused to enhance the lodestar calculated on this basis either for contingency or delay in receipt of payment. We affirm the judgment in part, but because the district court did not adequately explain the reasons for its actions, we reverse it in part, and remand the case for further consideration.
The Islamic Center of Mississippi, Inc., an association of Muslim students attending Mississippi State University in Starkville Mississippi, sued the City of Starkville to compel it to issue a zoning exception permitting the Islamic Center to use a building as a mosque. The Islamic Center contended that the City's denial of its application violated its rights under the First and Fourteenth Amendments to the Constitution. Wilbur O. Colom and his associate, Dennis Harmon, a recent law school graduate, represented the Islamic Center without any promise of payment. If the suit were successful, Colom and Harmon would seek an award of attorney's fees pursuant to 42 U.S.C. Sec. 1988. If the suit failed, they would receive no fee.
After considerable discovery and other pretrial proceedings, the Islamic Center lost the bench trial, a six-hour hearing in the federal district court for the Northern District of Mississippi. It later obtained a reversal in the court of appeals and was awarded the relief it had sought. It then requested that the district court award it $118,342.55 as the attorney's fees and costs due the prevailing party: $39,574.50 for the work of their attorneys, based on a rate of $120 per hour for Colom and $90 per hour for Harmon; $78,269.00 as enhancement, based on the contingent nature of Colom's compensation and his delay in receiving payment; and $2,499.15 for costs incurred, other than court costs taxable under 28 U.S.C. Sec. 1920.
To substantiate the reasonableness of the hourly rate he had requested, which he attested was the rate he charged fee-paying clients, Colom submitted five affidavits from other lawyers practicing in the Northern District of Mississippi stating that the customary charge for complex civil-rights litigation in federal court ranged from $65 to $150 per hour.
To support his claim that the lodestar should be increased because he had represented the Islamic Center on a contingent basis, Colom filed a supplemental affidavit attesting: since 1982, he had had a sufficient number of clients able to pay an hourly rate to consume all of his time; he accepted contingency personal-injury and civil-rights cases "with an expectation of receiving a substantially higher rate per hour" when successful; he would not have taken this case had he not anticipated an enhancement of his hourly rate if he won; and most other law firms in the area would not accept such cases if success were to be recognized only by the award of the customary hourly rate. To emphasize this final point, Colom submitted two additional affidavits from local attorneys asserting that "[w]ithout enhancement of fees, ... the local legal market would not provide competent counsel to represent plaintiffs on a contingency fee basis."
To support his claim for a delay enhancement, Colom stated in his affidavit that he charges regular clients 18% interest per year for delinquent accounts, although the statutory rate of interest in Mississippi is 8% per year.
The City contended that the amounts sought as fees should not be paid, but offered no evidentiary materials contesting the factual affidavits submitted by Colom. It also contended that whatever the fees, the amount should not be increased for contingency or delay.
Reviewing the Islamic Center's application for an award of attorney's fees according to the 12 factors listed in Johnson v. Georgia Highway Express, Inc., 1 the district court awarded Colom and Harmon $29,268.75 in attorney's fees, and $2,499.15 in expenses. Neither party contests the award of expenses.
The court determined the amount of attorney's fees by first calculating the "lodestar": multiplying the number of hours each attorney had worked by his hourly rate. The court found that Colom should be reimbursed for 261 hours of work, rather than the 272 1/3 hours claimed, and Harmon for 48 3/4 hours, rather than the 63 1/4 hours claimed. Neither party contests this finding. The court then set Colom's hourly rate at $100 and Harmon's at $65, finding that these billing rates "reflect[ed] the customary fee for similar work in the community and is a fair and reasonable fee which will adequately compensate counsel for their skill and efforts." From these figures, the court calculated the lodestar as follows:
Attorney Compensable Hours Allowable Rate Lodestar Fee
Wilbur O. Colom 261 $100.00 $26,100.00
Dennis Harmon 48.75 65.00 3,168.75
------------
$29,268.75
The court refused to enhance this amount. It found that the case was neither "novel [n]or difficult," and there was, therefore, no need to recompense counsel for taking any "unusual risk[s]." Although it found Colom to be a "very able and experienced civil rights litigator" whose "expertise in the constitutional arena has commanded the respect of th[e] court on many occasions," the court held that the "skill required ha[d] been adequately considered" in the original lodestar computation. The court declined to enhance the award based on counsel's contingent-fee arrangement, stating that there were "no unusual circumstances in this case." The court made no express finding concerning whether such an increase was necessary to induce competent counsel to accept such cases in the future, nor did it address whether the lodestar should be enhanced based upon the delay in payment of fees for legal services that Colom and Harmon had begun to render in 1985.
42 U.S.C. Sec. 1988 provides, in relevant part:
In any [civil-rights] action or proceeding, ... 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.
When the district court awards a fee pursuant to this statute, we review the district court's award only for an abuse of discretion. 2 Such a review, however limited, is possible only if the district court "provide[s] a concise but clear explanation of its reasons for the fee award," for "mere conclusory statement[s]" regarding the reasonableness of a fee are insufficient to withstand appellate review. 3
Colom contends that the district court erroneously calculated the lodestar when it fixed his and his associate's hourly rates at $100 and $65 per hour, respectively. While our review of the total award of attorney's fees is predicated on the precept that the award may be overturned only if the district court abused its discretion, a district court's determination of a "reasonable hourly rate" is a finding of fact subsidiary to the ultimate award and is, therefore, reviewable under the clearly-erroneous rubric. 4
In Blum v. Stenson, 5 the Supreme Court instructed district courts to calculate attorney's fees under section 1988 "according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel." 6 To "inform and assist" the district court in ascertaining the hourly rate at which attorneys are remunerated in the prevailing market, the Court required fee applicants
to produce satisfactory evidence--in addition to the attorney's own affidavits--that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable.... 7
Blum did not address, however, the circumstances under which a court may fix a rate other than the requested rate when that requested rate is not only the attorney's billing rate, but is also "in line with" rates "prevailing in the community for similar services by lawyers" who are reasonably comparable. 8
When an attorney's customary billing rate is the rate at which the attorney requests the lodestar be computed and that rate is within the range of prevailing market rates, the court should consider this rate when fixing the hourly rate to be allowed. 9 When that rate is not contested, it is prima facie reasonable. When the requested rate of compensation exceeds the attorney's usual charge but remains within the customary range in the community, the district court should consider whether the requested rate is reasonable. In doing so, the district court may increase the billing rates of attorneys in private practice who pursue noneconomic interests by "intentionally charg[ing] their poorer clients reduced rates," 10 since this adjustment would further the primary goal announced in Blum: standardizing among different parts of the private and public bar the hourly rate at which attorney's fees are awarded. 11 If the opposing party, on the other hand, urges that the fees be based on a rate lower than the...
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