NAACP, Detroit Branch v. Detroit Police Officers Association, Civ. A. No. 80-73693.

Citation620 F. Supp. 1173
Decision Date21 October 1985
Docket NumberCiv. A. No. 80-73693.
PartiesNAACP, DETROIT BRANCH; the Guardians, Inc.; Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; Evin Fobbs; John Hawkins; Helen Poelinitz; on behalf of themselves and all others similarly situated, Plaintiffs, v. DETROIT POLICE OFFICERS ASSOCIATION (DPOA); David Watroba, President of the DPOA; City of Detroit, a Michigan Municipal Corporation; Mayor Coleman A. Young; Detroit Police Department; Board of Police Commissioners; Chief William Hart; Governor William Milliken; and the Michigan Employment Relations Commission, Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)

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Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich., Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst. Corp. Counsel, Detroit, Mich., for defendants City of Detroit, Mayor Coleman A. Young, Detroit Police Dept., Bd. of Police Com'rs, Chief William Hart.

Walter S. Nussbaum, Mara Kalnins-Ghafari, Detroit, Mich., for defendants Detroit Police Officers Ass'n, David Watroba, President of DPOA.

Thomas Atkins, Brooklyn, N.Y., Barnhart and Mirer by Jeanne Mirer, Gary Benjamin, James W. McGinnis, Detroit, Mich., for plaintiffs.

OPINION

GILMORE, District Judge.

Following trial on this matter,1 plaintiffs filed a petition for attorney fees and costs to be assessed against defendants Detroit Police Officers Association (DPOA) and the City of Detroit pursuant to 42 U.S.C. § 1988, which states in pertinent part:

In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980 and 1981 of the Revised Statutes 42 U.S.C. §§ 1981-1983, 1985, 1986 ..., 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.

On January 17, 1985, the Court held an evidentiary hearing on the motion for fees, and it became clear that the parties disputed the validity, appropriateness and compensability of both the fees and costs sought by plaintiffs. In addition, the DPOA argued that no fees should be assessed against it since the plaintiffs had not prevailed against it in a §§ 1981, 1982, 1983, or 1985 claim.

The Court referred the matter to Magistrate Komives, as a Special Master, to conduct an evidentiary hearing on the following issues:

A. As to fees sought:
1. The actual time being sought by each of the claimants.
2. The appropriateness of the time claimed, as demonstrated by relevant documentation.
3. The extent to which there is impermissible duplication.
4. The extent to which the time for which compensation is sought is reasonable.
5. Specification of which time claimed is allocable to the City defendants, the DPOA, or both.
6. Circumstances pertaining to adjusting the lodestar fee.
7. With the exception of the appropriate rate to be applied, which the Court shall decide, determinations about any other factual matters relating to fees that the parties may put into dispute.
B. As to costs:
1. Determination of what costs are being claimed.
2. Determination of the appropriateness of the costs claimed, in light of relative documentation.
3. Allocation of costs to the DPOA, City defendant, or both.
4. The extent to which the costs claimed are reasonable.
5. Any other factors relating to costs that the plaintiffs may put into dispute.

The Magistrate held six days of hearings, and out of the morass of factual disputes prepared an extremely thorough and helpful Report and Recommendation, as well as exhaustive findings on the factual issues before him. In view of the fact that the referral was to the Magistrate as a Special Master, this Court will review the Magistrate's findings under a clearly erroneous standard. See Brown v. Wesley's Quaker Maid, 771 F.2d 952 (6th Cir.1985.)

In addition, there are legal issues not referred to the Magistrate that this Court must determine. These include the threshold question whether the plaintiffs were prevailing parties in this action, the question whether the DPOA is liable for plaintiffs' fees and costs, and the question of how the fees and costs award should be allocated between the two defendants. Part I of this opinion will discuss these issues. Part II will determine the reasonable rate per hour to be paid to the various attorneys in the case. Part III will determine the number of reasonably compensable hours. Part IV will determine costs.

I

In order to recover attorney fees under § 1988, a plaintiff must be a prevailing party. In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Court pointed out:

A plaintiff must be a "prevailing party" to recover an attorney's fee under § 1988. The standard for making this threshold determination has been framed in various ways. A typical formulation is that "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (CA1 1978). This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is "reasonable."

Id. at 433, 103 S.Ct. at 1939.

Although the Magistrate made specific findings regarding the extent to which plaintiff prevailed, the question of whether plaintiff is a prevailing party is a legal question not subject to the clearly erroneous review standard used for the Magistrate's Findings of Fact. Nonetheless, the Court agrees with the Magistrate that plaintiffs did prevail against both the City of Detroit and the DPOA.

The plaintiffs had significant successes against the City. The Court determined that the City had breached its affirmative obligations to the plaintiffs, in violation of their rights under the Fourteenth Amendment. The Court ordered significant relief, including the recall of all black police officers laid off in 1979 and 1980, and the recall of all white officers laid off. The Court further enjoined the City from suspending, discharging or laying off any police officers in the future, except for disciplinary reasons, without prior approval of the Court. Finally, the Court determined that the City had an affirmative duty to take all necessary steps to eliminate all vestiges of prior employment discrimination in the Detroit Police Department.

The City argues that the plaintiffs in fact did not prevail against them because it succeeded in it biggest objective, that is, the defense against any money claims. The City argues that, at most, plaintiffs won an acceleration of recalls, since the City intended to make some recalls anyway. The Court rejects this argument. There is no question but that the plaintiffs prevailed against the City. The fact that money claims and back pay were not ordered does not mean that plaintiffs were not prevailing parties. Plaintiffs succeeded in many significant issues in the litigation, which achieved much of the benefit the parties sought in bringing suit. Therefore, under Hensley, the plaintiffs were prevailing parties against the City of Detroit.

By the same token, plaintiffs were prevailing parties against the DPOA. The Court found that the DPOA breached its duty of fair representation under Michigan law. This was a significant issue. The Court ordered, as a remedy of this breach of duty, the establishment of reasonable representation of black officers in the leadership structure of the DPOA within 12 months of the opinion. The DPOA really does not argue that plaintiffs did not prevail, and as a threshold matter it is clear that plaintiffs were prevailing parties against the DPOA. The DPOA argues, rather, that no fees should be awarded against it because it was not held liable under § 1981, or any other civil rights statute.

The Court rejects the DPOA's argument that plaintiffs cannot recover attorney fees against it under § 1988 because it was not held liable for any violation of §§ 1981, 1983 or 1985. The resolution of this question requires an analysis of the Court's holding in the underlying case, as well as analysis of the legislative history of § 1988 and the cases interpreting § 1988.

In its opinion deciding this case, NAACP v. Detroit Police Officers Association, 591 F.Supp. 1194 (E.D.Mich.1984), the Court found that under Michigan law the DPOA breached the duty of fair representation owed to its black members. In discussing the DPOA's breach, this Court said:

This finding of liability of the DPOA is not predicated upon any legal finding that its defense of a bona fide seniority system was per se wrong. It is recognized that there have been no prior judicial findings of intentional racial discrimination against the DPOA as there were against the City of Detroit, and it is well recognized by this Court that Title VII protects from liability bona fide seniority systems. See Teamsters and Stotts, supra. It was the DPOA's action as a whole, not the defense of any particular position, that was unreasonable and breached the duty of fair representation here.

Id. 1219.

As to plaintiffs other claims, the Court held:

The Court finds no liability of the DPOA under the Thirteenth Amendment. It has found no case law applying to the Thirteenth Amendment under the facts of this case, and declines to do so here. The Court finds no reason to consider the claim under 42 U.S.C. 1981 in light of the result reached here. The Court finds no violation of 42 U.S.C. § 1985(3).

Id. at 1220 (emphasis added).

The legislative history of § 1988 indicates that the Congress intended fees to be awarded in such situations. In Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980), the Supreme Court discussed this legislative history in a footnote:

The legislative history makes it clear that Congress intended fees to be awarded where a
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