Leroy v. City of Houston

• Decision Date: 01 August 1986
• Docket Number: H-73-1650 and H-75-1731.,Civ. A. No. H-78-2174
• Citation: 648 F. Supp. 537
• Parties: Moses LEROY, et al., Plaintiffs, v. CITY OF HOUSTON, et al., Defendants. GREATER HOUSTON CIVIL COUNCIL, INC., Plaintiff, v. Frank MANN, Defendant. Moses LEROY, Plaintiff, v. CITY OF HOUSTON, Defendant.
• Court: U.S. District Court — Southern District of Texas

648 F. Supp. 537

Moses LEROY, et al., Plaintiffs, v. CITY OF HOUSTON, et al., Defendants.

GREATER HOUSTON CIVIL COUNCIL, INC., Plaintiff, v. Frank MANN, Defendant.

Moses LEROY, Plaintiff, v. CITY OF HOUSTON, Defendant.

Civ. A. Nos. H-78-2174, H-73-1650 and H-75-1731.

United States District Court, S.D. Texas, Houston Division.

August 1, 1986.

COPYRIGHT MATERIAL OMITTED

L.A. Greene, Jr., Houston, Tex., George Korbel, Jessie Bottello, Craig Washington, Frumencio Reyes, San Antonio, Tex., David Boddie, Houston, Tex., for plaintiffs.

Denise R. Ferguson, Asst. U.S. Atty., Houston, Tex., for U.S.

Robert M. Collie, Jr., City Atty., John R. Whittington, Jr., John E. Fisher, Sr., Asst. City Atty., Houston, Tex., Paul F. Hancock, Civ. Rights Div., Dept. of Justice, Washington, D.C., for defendants.

Mark A. Posner, Dept. of Justice, Washington, D.C., amicus curiae.

MEMORANDUM OPINION AND ORDER

McDONALD, District Judge.

Pending before the Court are the Motions for Attorneys' Fees of L.A. ("Al") Greene, George Korbel, Jesse Botello, Craig Washington, and Frumencio Reyes. Having considered the arguments of the parties and the applicable law, the Court is of the opinion that the Motions should be GRANTED. The filing and the litigation of the cases for which Plaintiffs seek attorneys' fees and Plaintiffs' attorneys' unceasing efforts before the Department of Justice were essential catalysts to the City of Houston's adoption of a new system of electing its City Council members. The Plaintiffs were prevailing parties and should be awarded fees for services performed. The amount of the award is set forth in the tables made a part of this Opinion.

The first case, styled Greater Houston Civil Council, Inc. v. Mann, C.A. No. H-73-1650, was a constitutional challenge to Houston's system of electing its City Council members in at-large elections. The case was decided adversely to Plaintiffs at trial, and was appealed to the Fifth Circuit. During the pendency of the appeal, Houston adopted a mixed system of election for City Council members, utilizing both at-large and single-member district elections. The case was declared to be moot and was remanded to the district court for a determination on attorneys' fees. The second case, Moses Leroy v. City of Houston, C.A. No. H-75-1731, was a challenge under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. ž 1973c (1982), after Houston annexed land, did not secure preclearance from the Department of Justice or declaratory judgment from the District Court for the District of Columbia, and attempted to hold an election. The court hearing Leroy refused Plaintiffs' requested injunction and the case was closed after the Justice Department precleared the changes. The third case, Moses Leroy v. City of Houston, C.A. No. 78-2174 hereinafter referred to as "Leroy II", also challenged an election scheduled to be held after annexations that had not been precleared or declared not to violate ž 5 by the District of Columbia court.¹ During the pendency of this litigation Plaintiffs' lawyers met with officials of the Department of Justice who were considering the City's request for preclearance.

I. The legal standards relevant to attorneys' fee awards.

Questions to be considered when making an award of attorneys' fees are: who is the prevailing party; for what services, if any, performed before an administrative agency may the prevailing party be compensated; how are fees computed; and how does the multiplier apply. Plaintiffs' lawyers have requested fees under 42 U.S.C. ž 1988 and ž 1973l (e), which respectively provide that:

In any action or proceeding to enforce a provision of Sections 1981, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318 ... or 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.

42 U.S.C. ž 1988.

In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendments, 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.²

42 U.S.C. ž 1973l (e).

The Supreme Court in Henlsey v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (footnote omitted), outlined the purposes of the statutes in one of its most recent discussions of ž 1988:

In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), this court reaffirmed the "American Rule" that each party in a lawsuit ordinarily shall bear its own attorney's fees unless there is express statutory authorization to the contrary. In response Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. ž 1988, authorizing the district courts to award a reasonable attorney's fee to prevailing parties in civil rights litigation. The purpose of ž 1988 is to ensure "effective access to the judicial process" for persons with civil rights grievances. H.R.Rep. No. 94-1558, p. 1 (1976). Accordingly, a prevailing plaintiff "`should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" S.Rep. No. 94-1011, p. 4 (1976), U.S.Code Cong. & Admin.News 1976, p. 5912 (quoting Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968).

Unfortunately, awarding fees for civil rights litigation has also spawned, in many instances, "a second major litigation" over those fees. See id. at 437, 103 S.Ct. at 1941; see also Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 29 (D.C.Cir.1984), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985) (court "aghast" at number of hours devoted solely to fee request); Tasby v. Wright, 550 F.Supp. 262, 285 (N.D.Tex.1982) (main case and fee award litigation constitute "seemingly endless legal struggle"); In re Fine Paper Antitrust Litigation, 98 F.R.D. 48, 68 (E.D.Pa.1983), (task of awarding fees in antitrust suit "not ... an easy one" when judge has to consider voluminous time records, objections thereto, and 41 days of testimony regarding fee petitions) rev'd in part on other grounds, 751 F.2d 562 (3d Cir.1984). The court can attest to the lengthiness and difficulty of awarding fees in the case at bar, the process having taken over three years for the court to reach the point where it could decide the issues. Along the way, inter alia, the court has granted the Defendants four continuances on hearings and has allowed innumerable extensions of time for filings. The Defendants also sought unsuccessfully to recuse the court. See In re City of Houston, 745 F.2d 925 (5th Cir.1984). Plaintiffs' lawyers alone have expended 1737 hours.³

In reaching its decision on attorneys' fees, the court must consider and apply four legal standards. The first two standards concern the question of entitlement to fees, i.e., who is a "prevailing party" under the statute and for what administrative work, if any, prevailing parties can be compensated. The second two standards relate to the computation of fees to which a party may be entitled, viz., the viability of the so-called Johnson factors⁴ and under what circumstance multipliers are to be used. The court will address each of these legal issues individually, and then proceed to discuss how those factors apply to the cases at bar.

The first standard requiring discussion is the definition of "prevailing party." The statute allows only prevailing parties to receive fees. The parties in the cases at bar⁵ offer different formulations of the test for determining who is a prevailing party. Plaintiffs' lawyers contend that the Supreme Court has set out a standard, in Hensley v. Eckerhart, 461 U.S. 424, 429-30, 103 S.Ct. 1933, 1937-38, 76 L.Ed.2d 40 (1983). However, the Supreme Court did not adopt the standard as its own, but merely recognized that the First Circuit had enunciated a standard. The Supreme Court appears not to have adopted any definition of "prevailing party," and the Court must therefore turn to the Fifth Circuit's recent opinion on the subject, Hennigan v. Ouachita Parish School Board, 749 F.2d 1148 (5th Cir.1985).

In Hennigan, the Fifth Circuit reversed a decision by a district court judge that a plaintiff was not a prevailing party. Judge Rubin, writing for the panel, acknowledged that:

The Fifth Circuit opinions have not articulated a consistent standard for measuring whether a plaintiff whose efforts did not result in a judgment in his favor has succeeded sufficiently to be a prevailing party. The district judge may understandably have been misled, for we have phrased the test differently, in a number of opinions.

Id. at 1151 (footnote omitted). The opinion goes on to explain the burden a fee applicant carries:

Despite their variety, all of our prior formulations of the applicable criteria have certain elements in common. All recognize the initial need to identify the goal that the plaintiff sought to achieve in bringing his civil rights action. Although the opinions have not always identified the precise legal or factual condition that the plaintiff sought to change, all have determined the nature of the benefit the plaintiff hoped to gain, or the burden of which he hoped to be relieved, by bringing the lawsuit.

Using this as a benchmark, the first element that must be established by a plaintiff claiming prevailing party status is whether, as a practical matter, the plaintiff's goal was achieved. This is determined in this circuit by applying the central-issue test. In other circuits, as we have discussed, the plaintiff need "succeed only on any significant issue in the litigation which achieves some of the benefit he sought in bringing suit." When the plaintiff's goal has been achieved by the defendant's unilateral action, the plaintiff must of course also show that the lawsuit caused the defendant to act,

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