Lilienthal v. City of Suffolk

• Decision Date: 18 June 2004
• Docket Number: No. 2:03CV229.,2:03CV229.
• Citation: 322 F.Supp.2d 667
• Parties: J.R. LILIENTHAL, Plaintiff, v. CITY OF SUFFOLK, and Mark R. Outlaw, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

Page 667

322 F.Supp.2d 667

J.R. LILIENTHAL, Plaintiff, v. CITY OF SUFFOLK, and Mark R. Outlaw, Defendants.

No. 2:03CV229.

United States District Court, E.D. Virginia, Norfolk Division.

June 18, 2004.

Douglas L. Steele, Thomas A. Woodley, Woodley & McGillivary, Washington, DC, Gregory A. Giordano, Shuttleworth, Ruloff, Giordano & Swain, Virginia Beach, VA, Counsel for Plaintiff.

Robert W. McFarland, Stacy M. Landis, McGuireWoods, LLP, Norfolk, VA, Counsel for Defendants.

OPINION AND ORDER

REBECCA BEACH SMITH, District Judge.

This matter comes before the court on plaintiff's petition for an award of attorneys fees and costs. For the reasons set forth below, the petition is GRANTED in part, and DENIED in part.

I. Factual and Procedural History¹

Plaintiff J.R. Lilienthal is a lieutenant in the fire department of the City of Suffolk, where Mark R. Outlaw ("Fire Chief Outlaw") is the Fire Chief. In addition, plaintiff has been the President of the Suffolk Professional Fire and Rescue Association since 1998.

On several occasions prior to September 24, 2002, plaintiff spoke to the City Council and employees of the City Manager's Office on various topics concerning the fire department. Plaintiff also associated with members of the City Council, City Manager's Office, and individual city department directors in the course of addressing fire department matters.

On September 25, 2002, Fire Chief Outlaw met with plaintiff, and handed to plaintiff a memorandum regarding his previous communications with city officials on fire department issues. Plaintiff believes that the policy stated in the September 2002 memorandum violates his First Amendment rights of free speech and association. Since receiving the September 2002 memorandum, plaintiff refrained from addressing substantive fire department matters with the City Council, members of the City Manager's Office, or other department directors.

On October 28, 2002, and on several subsequent occasions, plaintiff requested that the policy expressed in the September 2002 memorandum be rescinded. On March 6, 2003, the City of Suffolk responded to plaintiff's requests by stating that the September 2002 memorandum did not violate plaintiff's constitutional rights. On March 25, 2003, plaintiff filed this lawsuit under 42 U.S.C. § 1983, seeking a declaratory judgment, an injunction, compensatory damages, and punitive damages. (Compl. at 11.)

On March 10, 2004, a hearing was scheduled before United States Magistrate Judge James E. Bradberry. Prior to the hearing, the court inquired of plaintiff and Fire Chief Outlaw whether they had spoken at any length about the September 2002 memorandum. (Mar. 18, 2004, Order at 1.) The parties replied in the negative. (Id.) Accordingly, the court advised the litigants and their counsel that the matter would be continued to the following week, and that plaintiff and Fire Chief Outlaw were to meet and discuss whether the matters raised within the September 2002 memorandum could be resolved in a way that would avoid continuing litigation. (Id.)

On March 17, 2004, the parties reconvened before Judge Bradberry and informed the court that, with the exception of one phrase, they had reached agreement on a memorandum expressing a mutually satisfying statement of policy. (Tr. at 2.) Defendants preferred a formulation stating that the new memorandum "supplements" the September 2002 memorandum. (Id.) Plaintiff preferred a formulation stating that the new memorandum "supersedes and replaces" the September 2002 memorandum. (Id.) The court suggested that the parties delete any reference to whether the March 2004 memorandum supplements or replaces the September 2002 memorandum, and instead include language to clearly indicate that the March 2004 memorandum states governing policy. (Id. at 5-7.) The parties agreed to this proposal, and adopted the following as the opening paragraph of the new memorandum:

This document is intended to govern the nature, scope and place/circumstances under which fire employees may engage in discussion of issues related to the fire and emergency services of Suffolk, Virginia.

(Mar. 18, 2004, Order at 2.)

Throughout the hearing, the court clearly and repeatedly stated its opinion that although the settlement arrived at obviated the need to decide whether constitutional rights had been violated, the nature of the settlement merited the award of attorneys fees.² The court was equally clear in its opinion that the nature of the settlement and the relief obtained merited a partial, rather than complete, award of attorneys fees.³ The court ordered that plaintiff submit his petition for fees by April 14, 2004, with defendants' objections to be filed by May 14, 2004, and plaintiff's rebuttal to be filed by May 24, 2004. All filings have been submitted as ordered, and the matter is now ripe for review.

II. Legal Standards

In any action brought under 42 U.S.C. § 1983, "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. § 1988. A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting S.Rep. No. 94-1011, at 4 (1976)). The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Id. at 437, 103 S.Ct. 1933.

The Supreme Court announced in Farrar v. Hobby the standard for qualifying as a prevailing party for purposes of § 1988:

[A] civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of judgment or settlement.

506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). "In short, a plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Id.

In determining a reasonable attorneys fee, the proper first step is to calculate the lodestar amount, which results from multiplying "the number of hours reasonably expended on the litigation times a reasonable hourly rate." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). To make this calculation, the court must necessarily exclude any hours that are "excessive, redundant, or otherwise unnecessary," and therefore not reasonably expended on the litigation. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. This process requires the use of the same "billing judgment" that guides a lawyer in private practice in billing his client. Id.

Although a properly calculated lodestar figure is presumed to be a reasonable fee, Del. Valley Citizens' Council for Clean Air, 478 U.S. at 565, 106 S.Ct. 3088, the court's discretion to award fees necessarily "encompass[es] the ability to depart from the lodestar in appropriate circumstances." Carroll v. Wolpoff & Abramson, 53 F.3d 626, 629 (4th Cir.1995). Certain considerations, including the twelve factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974),⁴ may lead the court to adjust a fee upward or downward from the lodestar. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. The "most critical factor" in determining the reasonableness of a fee award is "the degree of success obtained" by the plaintiff. Id. at 436, 103 S.Ct. 1933. When a plaintiff has achieved "only partial or limited success," the district court "may simply reduce the award to account for the limited success." Id. at 436-37, 103 S.Ct. 1933; Carroll, 53 F.3d at 629.

III. Analysis

Plaintiff seeks an award of attorneys fees in the amount of $132,938.50, and expenses in the amount of $13,968.06. Defendants raise three main arguments in opposition to plaintiff's requested fees: (1) plaintiff is not a "prevailing party" within the meaning of § 1988, and therefore not entitled to attorneys fees; (2) the hours actually expended by plaintiff's counsel were excessive; and (3) plaintiff's award should be reduced to account for limited success on the merits.⁵

A. Plaintiff's Status as a Prevailing Party

Defendants assert that plaintiff is not a prevailing party within the meaning of § 1988 because this dispute was resolved without deciding the merits of plaintiff's constitutional claims or nullifying the September 2002 memorandum. Despite these contentions, plaintiff has achieved sufficient relief on his claims to merit the award of attorneys fees.

At the March 17, 2004, hearing, Judge Bradberry aptly described the nature and purpose of this litigation:

[T]he fact of the matter is that this particular document has affected what [plaintiff] has chosen to do or not chosen to do, and so the resolution of the issue is entirely appropriate because the whole purpose of bringing this action is to try and resolve exactly what firefighters can do in the department.

(Tr. at 5.) In bringing this suit, plaintiff sought to "create an environment where [he] doesn't face a prospect of discipline for exercising what may be a legitimate right to express concern." (Id. at 6.)

The settlement here provides plaintiff with meaningful relief on his claims. As Judge Bradberry sensibly observed, determining whether the March 2004 memorandum nullifies, supplements, replaces, clarifies, abolishes, or complements the September 2002 memorandum is an unnecessary exercise in wordplay. (Id. at 3-8.) Plainly declaring the March 2004 memorandum to be governing fire department policy is sufficient to...