Leroy v. City of Houston

• Decision Date: 30 July 1990
• Docket Number: 88-2813 and 89-2180,Nos. 88-2506,s. 88-2506
• Citation: 906 F.2d 1068
• Parties: Moses LEROY, et al., Plaintiffs-Appellees, v. The CITY OF HOUSTON, et al., Defendants-Appellants. GREATER HOUSTON CIVIC COUNCIL, et al., Plaintiffs-Appellees, v. Frank MANN, et al., Defendants, City of Houston, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1068

906 F.2d 1068

17 Fed.R.Serv.3d 406

Moses LEROY, et al., Plaintiffs-Appellees, v. The CITY OF HOUSTON, et al., Defendants-Appellants.

GREATER HOUSTON CIVIC COUNCIL, et al., Plaintiffs-Appellees, v. Frank MANN, et al., Defendants, City of Houston, et al., Defendants-Appellants.

Nos. 88-2506, 88-2813 and 89-2180.

United States Court of Appeals Fifth Circuit.

July 30, 1990.

As Corrected Sept. 14, 1990.

Robert J. Collins, John E. Fisher, Sr. Asst. City Attys., Clarence A. West, City Atty., and John Whittington, Asst. City Atty., City of Houston Legal Dept., Houston, Tex., for defendants-appellants.

J. Patrick Wiseman, Austin, Tex., L.A. Greene, Jr., David Boddie, Houston, Tex., Jesse Bottello, and George Korbel, San Antonio, Tex., for Moses Leroy, et al.

Appeals from the United States District Court for the Southern District of Texas.

Before JOHNSON, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

These consolidated appeals by defendant The City of Houston (the City) from attorneys' fees awards are sequels to our prior decision in this same litigation in Leroy v. City of Houston, 831 F.2d 576 (5th Cir.1987) (Leroy IV ), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988).

Context Facts and Proceedings

The earlier history of this litigation is detailed in Leroy IV, and we outline it here only to place the present appeal in context.

In December 1973, plaintiffs-appellees, black and Hispanic voters in Houston, Texas, commenced an action in the United States District Court for the Southern District of Texas, alleging that the at-large system of electing the Houston City Council unconstitutionally diluted their votes. Greater Houston Civic Council v. Mann, 440 F.Supp. 696 (S.D.Tex.1977) (Mann ). In 1975, before Mann came to trial, the same and related plaintiffs, represented by the same counsel, commenced another action in the same court, seeking to enjoin a City election on the ground that it included voters living in predominantly white areas which had been made part of the City by annexations that had not been precleared by the Department of Justice under section 5 of the Voting Rights Act, 42 U.S.C. Sec. 1973c. Leroy v. City of Houston, No. H-75-1731 (S.D.Tex.) (Leroy I ). In 1975, Mann was tried on the merits for some five and a half weeks and in March 1977, the district court entered judgment for the defendants, finding that the at-large system did not unconstitutionally dilute minority votes. Plaintiffs appealed Mann to this Court. In 1978, the district court dismissed Leroy I with prejudice, and denied plaintiffs' request for attorneys' fees, because their challenged annexations had been submitted to the Attorney General under section 5 before the complaint had been served on the City and had been precleared. No appeal was taken from the dismissal of Leroy I.

The Leroy I court's having denied plaintiffs' request to amend to also challenge certain 1977 annexations for lack of section 5 preclearance, the plaintiffs through the same attorneys in November 1978 filed a separate complaint in the same court, seeking to enjoin those annexations and a special bond election set for January 1979 in the thus expanded City. Leroy v. City of Houston, No. H-78-2174 (S.D.Tex.) (Leroy II ). Shortly thereafter, the United States filed in the same court another suit against the City, seeking the same relief, and in December 1978 these two suits were consolidated. The City then submitted its 1977 and 1978 annexations to the Justice Department for section 5 review. The attorneys for the plaintiffs urged the Justice Department to object to the annexations under section 5, and the Justice Department did object to fourteen of them, but precleared a referendum election to adopt a mixed single-member and at-large plan for the City's council elections. This mixed plan having been approved at that election, the Attorney General in September 1979 precleared the annexations (and the mixed plan) under section 5. The parties to the Mann appeal, which by that time had been fully briefed and argued but had not been decided, then informed this Court that it had become moot, and thereafter, in December 1979, we accordingly remanded Mann to the district court for consideration of plaintiffs' request for attorneys' fees.

The attorneys' fees matter lay essentially dormant in the district court for some years. Then, after certain preliminary matters were disposed of in 1984, ¹ the district court held a hearing on the attorneys' fees claim over some ten days in April and May 1985. On August 1, 1986, the district court entered an opinion and judgment awarding the plaintiffs' attorneys the total sum of $1,025,232.40 in fees ($984,801.50) and expenses ($40,430.92) against the City. ² Leroy v. City of Houston, 648 F.Supp. 537, 577-78 (S.D.Tex.1986) (Leroy III ). The City promptly appealed to this Court.

In an opinion issued November 12, 1987, we held that plaintiffs' counsel were not entitled to any attorneys' fees for any of their work on Leroy I or before the Justice Department in reference to preclearance ³; that they were entitled under 42 U.S.C. Sec. 1973l (e) to recover fees for services in Mann and Leroy II; that the district court erred in applying a contingency enhancement multiplier to the lodestar fee; that the district court improperly awarded expert witness fees; and that the district court committed various errors in its analysis and consideration of the lodestar fee. Leroy IV, 831 F.2d at 580-86. We concluded by stating:

"After careful review of the record, this court holds that to award $1 million in attorneys' fees and expenses was excessive and an abuse of discretion.... We have laboriously reviewed the record in light of the district court's opinion, the parties' contentions, and the considerations outlined in this opinion. We believe a fair, indeed ample award of $693,805 ¹⁶ remunerates the ultimately successful efforts of plaintiffs' counsel and fulfills the goal of the Voting Rights Act. The excess amount awarded by the district court was founded on erroneous legal analysis and in part upon an abuse of its discretion. We therefore vacate the judgment of the district court, and remand for entry of a judgment in the amount of $693,805.00."

The plaintiffs did not seek rehearing or certiorari in respect to our Leroy IV decision. We denied the City's suggestion for rehearing en banc (which we also treated as a petition for rehearing) on December 28, 1987, and our Leroy IV mandate issued on January 8, 1988. Neither our opinion nor mandate contains any instructions as to interest. The mandate provides that costs on appeal be taxed equally against the parties. The City filed a petition for writ of certiorari on March 28, 1988, which the United States Supreme Court denied on May 16, 1988. 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988).

Meanwhile, after our mandate issued in Leroy IV, the plaintiffs, on February 5, 1988, filed a "prayer for judgment" in the district court, seeking judgment in the amount of $710,235.92, with interest from August 1, 1986. The $710,235.92 was composed of the $693,805 which we had directed that judgment be entered for plus $16,430.92 of expenses included in the August 1, 1986 district court judgment (Leroy III ) which plaintiffs contended we had not disturbed on appeal. A nonevidentiary hearing was held on the plaintiffs' prayer for judgment on April 15, 1988, and the City, which was permitted to file an out-of-time response, contended that interest should run only from the date of the district court's judgment pursuant to our mandate, and that our Leroy IV decision and mandate likewise precluded the award of the $16,430.92 expenses. After the conclusion of the hearing, the district court on April 15, 1988, rendered judgment (docketed April 18) for plaintiffs for $693,805 with interest thereon from August 1, 1986, reserving the matters of the $16,430.92 expenses and attorneys' fees for presenting the prayer for judgment. On May 16, the City filed its notice of appeal from this judgment (our cause No. 88-2506).

On May 26, 1988, plaintiffs issued a notice to take the Mayor of the City's oral deposition on June 3, ⁴ and the City moved to quash and for a protective order on May 27. The plaintiffs, on May 27, also caused a writ of execution to be issued on the April 15, 1988 judgment, ⁵ and the City, on May 31, moved to stay the judgment pending appeal. A hearing on both these motions was held on June 2, and the district court at that time denied the motion to stay and the motion to quash deposition, and the deposition was taken by videotape on June 3. However, on June 6, the district court entered an order, signed and approved by counsel for all parties, which "granted in part and denied in part" the City's motion for stay by staying pending appeal so much, and only so much, of the April 15, 1988 judgment as awarded interest from August 1, 1986 to April 15, 1988, and providing with respect to the balance of the April 15, 1988 judgment that "the City of Houston is hereby ordered to pay that amount within ten days of this order." ⁶ Two days later, the City paid that amount, $693,805, plus $9,061 as interest thereon from April 15, 1988 and (apparently) costs.

On July 22, 1988, the district court held a hearing on plaintiffs' entitlement to attorneys' fees for services after August 1, 1986 when its Leroy III judgment was rendered. On August 13, 1988, the court entered a judgment decreeing that plaintiffs were awarded the following: (a) $311,625 as attorneys' fees, and $16,488.57 as expenses, for services from August 1, 1986 through July 22, 1988; plus (b) "$16,430.92 in expenses previously ordered by the Court" (in its August 1, 1986 judgment). The City filed a notice of appeal from this order on August 23, 1988 (our cause No. 88-2813). ⁷

Discussion

1. Interest from August 1, 1986 to April 15, 1988

The City's initial contention is that the district...