Loranger v. Stierheim

• Decision Date: 04 January 1994
• Docket Number: No. 88-5179,88-5179
• Citation: 10 F.3d 776
• Parties: William L. LORANGER, individually and as surviving son and sole heir of Carolyn M. Loranger, deceased, and as personal representative of the estate of Carolyn M. Loranger, Plaintiff-Appellant, v. Merrett STIERHEIM, etc., et al., Defendants, Stuart Simon, individually and in his former capacity as county attorney for Metropolitan Dade County, Stanley Price, individually and in his official capacity as assistant county attorney for Metropolitan Dade County, Stuart Sobel, individually and in his official capacity as assistant county attorney for Metropolitan Dade County, William Powell, individually and in his official capacity as director of the Metropolitan Dade County Public Works Department and his successors in office, Gonzaldo Gonzalez, individually and in his official capacity as an employee of the Public Works Department of Metropolitan Dade County, Jack Chazen, individually and in his official capacity as former employee of the Public Works Department of Metropolitan Dade County, John Doe, individually and in his (their) official capacity(ies) as employees of Metropolitan Dade County, and Metropolitan Dade County, a political subdivision of the State of Florida, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 776

10 F.3d 776

William L. LORANGER, individually and as surviving son and sole heir of Carolyn M. Loranger, deceased, and as personal representative of the estate of Carolyn M. Loranger, Plaintiff-Appellant, v. Merrett STIERHEIM, etc., et al., Defendants, Stuart Simon, individually and in his former capacity as

county attorney for Metropolitan Dade County, Stanley Price,

individually and in his official capacity as assistant

county attorney for Metropolitan Dade County, Stuart Sobel,

individually and in his official capacity as assistant

county attorney for Metropolitan Dade County, William

Powell, individually and in his official capacity as

director of the Metropolitan Dade County Public Works

Department and his successors in office, Gonzaldo Gonzalez,

individually and in his official capacity as an employee of

the Public Works Department of Metropolitan Dade County,

Jack Chazen, individually and in his official capacity as

former employee of the Public Works Department of

Metropolitan Dade County, John Doe, individually and in his

(their) official capacity(ies) as employees of Metropolitan

Dade County, and Metropolitan Dade County, a political

subdivision of the State of Florida, Defendants-Appellees.

No. 88-5179.

United States Court of Appeals, Eleventh Circuit.

Jan. 4, 1994.

Michael D. Ray, Neil D. Kolner, Miami, FL, for appellant.

James J. Allen, Asst. County Atty., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

Before COX, Circuit Judge, JOHNSON, Senior Circuit Judge, and ATKINS ^*, Senior District Judge.

PER CURIAM:

As no member of this panel, nor any other judge in regular active service on this court, has requested that this court be polled on rehearing en banc (Rule 35, Fed.R.App.P.; 11th Cir.Rule 35-5), the suggestion of rehearing en banc is DENIED. However, the original panel hereby grants rehearing, withdraws the previous panel opinion dated September 28, 1993, published at 3 F.3d 356 (11th Cir.1993), and substitutes therefor the following opinion:

I. BACKGROUND

This appeal arises out of a dispute between William Loranger ("Loranger") and Dade County, Florida (the "County") regarding a 30' hedge of orange jasmine trees located on Loranger's property (the "hedge"). Between 1978 and 1979, the County issued numerous citations directing Loranger to cut the hedge to 4'. ¹ Loranger balked. In 1980, Loranger brought an action in state court seeking to enjoin the County from interfering with the hedge. The County counterclaimed against Loranger alleging trespass. Thereafter, Loranger amended his complaint by asserting several civil rights claims. Before the state court could dispose of the case on its merits, Loranger voluntarily dismissed his claims. The County prevailed on its counterclaim.

In 1981, Loranger initiated an action in federal court that gives rise to this appeal. Loranger sued the County, as well as County officials (collectively, the "defendants"), alleging violations of his due process, equal protection and first amendment rights. The district court dismissed Loranger's complaint with leave to amend, holding that the defendants were absolutely immune from suit. Loranger moved to vacate. The district court denied that motion, dismissing Loranger's complaint with prejudice. On appeal, this court reversed and remanded. Loranger v. Stierheim, 696 F.2d 1006 (11th Cir.1982). On remand, the district court directed a verdict for the defendants on the due process claim. The first amendment and equal protection claims went to a jury which returned a verdict of $20,000 in favor of Loranger.

In December of 1985, one of Loranger's attorneys, Michael D. Ray ("Ray"), filed a motion for attorney's fees and costs pursuant to 42 U.S.C.A. Sec. 1988. ² Ray requested $944,775 in fees and $9,671.23 in costs. He bombarded the district court with a vast array of documents in support of his motion for fees and costs. In July 1986, Ray filed photocopies of "contemporaneous" time sheets totalling some 199 pages. Even the typed summary of the time sheets numbered some 82 pages. All in all, the motion, time sheets, and time summaries submitted by Ray exceeded some 400 pages. Such voluminous records reflect all work done by Ray in representing Loranger since 1979--in state trial and appellate courts, federal trial and appellate courts, and work independent of any litigation, state or federal.

The district court first ruled on Ray's motion in January of 1988, awarding $35,000 in attorney's fees and $3,181.50 in costs. Ray filed a suggestion for en banc review of the district court's initial fee award by the other judges of the Southern District of Florida. The district court did not circulate the suggestion for en banc review. Loranger, through Ray, moved to recuse the trial judge. The district court denied Loranger's motion for recusal. Loranger attempted to appeal. We declined to review the interlocutory order until final judgment.

Thereafter, the district court held a hearing on Ray's request for attorney's fees and costs. This time, the district court awarded Ray fees in the amount of $50,400, finding only 800 hours of the 2907 hours claimed to be allowable hours devoted to the federal litigation. In addition, the district court concluded that only 560 of those 800 hours were compensable. The district court found that a reasonable hourly rate was $75, and that in this case an upward adjustment to $90 was appropriate. Ray appeals from the district court's award, as well as its denial of his motion for recusal. We affirm the district court's order denying Loranger's motion for recusal but vacate the district court's fee order and remand for further consideration.

II. ISSUES ON APPEAL

In this opinion we address the following issues:

(1) Whether the district court abused its discretion in denying Ray's motion for recusal.

(2) Whether the district court erred in fashioning Ray's fee award.

III. STANDARD OF REVIEW

We review a district court's denial of a recusal motion for abuse of discretion. Jaffree v. Wallace, 837 F.2d 1461, 1465 (11th Cir.1988). Similarly, a district court's order on attorney's fees is reviewed for abuse of discretion. Popham v. City of Kennesaw, 820 F.2d 1570, 1581 (11th Cir.1987). Hence, a district court's order on attorney's fees must allow for meaningful review. See Norman v. Housing Auth., 836 F.2d 1292, 1304 (11th Cir.1988).

IV. CONTENTION OF THE PARTIES

Ray's arguments are prolix. In short, Ray contends that the district court erred in fashioning his award by (1) using an hourly rate of $90, (2) inadequately explaining the reduction in claimed hours, (3) failing to enhance the award as requested and (4) failing to award all the costs claimed. In addition, Ray argues that the district judge erred by failing to recuse himself from this case per 28 U.S.C.A. Sec. 455(a). Ray contends that (1) the two year delay between the motion for attorney's fees and the initial order, (2) the delay between our remand of the initial fee award and the district court's supplemental order, (3) the paucity of the initial award, and (4) the district court's failure to circulate Ray's petition for en banc review, all serve as evidence of the district judge's bias necessitating his recusal.

In response to Loranger's motion for recusal, defendants simply argue that the motion is without merit. That is, Ray offers no evidence that would cause a reasonable person to conclude that the lower court was biased.

As to the fee award, defendants assert two principal objections to Ray's fee request. First, they argue that the time compensable under 42 U.S.C. Sec. 1988 is the time that was reasonably expended on this lawsuit, and that Ray's fee request seeks compensation for time expended other than on this litigation. Accordingly, defendants argue that the district court correctly found that not all the time Ray claimed was compensable. Second, defendants challenge the time that Ray alleges was expended on this lawsuit. The defendant's objection to Ray's fee request is not that such time was not spent, but rather that the time spent was excessive--i.e., not reasonably expended in the conduct of the litigation--and that the exercise of "billing judgment" requires that the hours be reduced. Moreover, defendants contend that under such circumstances the district court was entitled to reduce Ray's request in gross rather than attempting the impossible task of itemizing those numerous hours for which Ray was not entitled to compensation.

V. DISCUSSION

A. Did the district court err in denying the motion for recusal?

Under Section 455(a) "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C.A. Sec. 455(a) (1993). Disqualification under section 455(a) is required only when the alleged bias is personal in nature, however. Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1020 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982). "[F]or a bias to be personal, and therefore disqualifying, it 'must stem from an extra-judicial source.' " In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 964 (5th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)). Thus, as a general rule, a judge's rulings in the same case are not valid grounds for recusal. Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481 (1921). ³

Every incident of alleged bias cited by Ray occurred during the district judge's handling of the motion for fees. As none of these grounds "stem from an extra-judicial source," we do not find that the district court abused its discretion in denying Loranger's motion for recusal.

However,...