Planned Parenthood, Sioux Falls Clinic v. Miller, s. 94-3326
| Citation | 70 F.3d 517 |
| Decision Date | 05 October 1995 |
| Docket Number | 94-3398,Nos. 94-3326,s. 94-3326 |
| Parties | PLANNED PARENTHOOD, SIOUX FALLS CLINIC; Buck J. Williams, M.D.; and Women's Medical Services, P.C., Appellees/Cross-Appellants, v. Walter D. MILLER, Governor, in his official capacity, and Mark W. Barnett, Attorney General, in his official capacity, Appellants/Cross-Appellees. . Submitted: |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Lori A. Chaiten, Sonnenschein & Nath, Chicago, IL, Michael B. Crew, Crew & Crew, Sioux Falls, SD, Dara Klassel, Beth Otten, Roger K. Evans, Planned Parenthood Federation of America, Legal Action for Reproductive Rights, New York City, Colleen K. Connell, American Civil Liberties Union, Inc., Roger Baldwin Foundation, Chicago, IL, for Planned Parenthood, Sioux Falls Clinic, Buck J. Williams, M.D. and Women's Medical Services, P.C.
Frank E. Geaghan, Mark W. Barnett, John P. Guhin, Attorney General's Office, Pierre, S.D. for Appellants/Cross-Appellees.
Clarke D. Forsythe, Paul Benjamin Linton, Americans United for Life, Chicago, IL, for Members of the South Dakota Legislature, Amicus Curiae.
Kathryn Kolbert, Priscilla J. Smith, The Center for Reproductive Law & Policy, New York City, for American College of Obstetricians and Gynecologists, Amicus Curiae and American Medical Womens' Association, Amicus Curiae.
Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and FAGG, Circuit Judges.
This matter is now before us on the motion of Planned Parenthood and others, appellees and cross-appellants, for an award of attorneys' fees and expenses under 42 U.S.C. Sec. 1988. The movants are clearly the prevailing parties, having obtained significant relief and having won most of the issues in the case. The question we must decide is how much to award.
The movants, whom we shall call plaintiffs, request an award of fees for the services of five lawyers. The total amount requested for lawyers' fees is $34,599. The request is made up as follows:
Requested
Hours x Rate/hr. = Award
Dara Klassel 92.9 $210 $19,509
Beth Otten 24.5 200 4,900
Roger Evans 7.0 260 1,820
Colleen Connell 28.20 210 5,922
Susan Wishnick 15.30 160 2,448
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TOTAL = $34,599
Two main issues need to be decided. First, what is the appropriate hourly rate? The rates requested are said to be (and we have no reason to doubt it) the prevailing rates in the Chicago market for legal services. The State of South Dakota argues that lower rates, those prevailing in the South Dakota market, should be awarded. According to the affidavit of Lawrence Long, Chief Deputy Attorney General of South Dakota, lawyers with adequate expertise are available to undertake this type of case in South Dakota. The State suggests a fee of $150 an hour. We agree in part. We have no doubt that competent South Dakota lawyers could have handled this case, and handled it well. The lawyers who actually appeared for the plaintiffs, though, do this kind of work routinely. They are leaders in the field of reproductive-rights law. They have extensive experience. Because of this, we believe they were able to handle the case in a shorter length of time than a local lawyer, without comparable experience, would have needed. We find that a rate higher than $150 an hour is appropriate, and we see no reason to reject plaintiffs' evidence concerning the Chicago market.
The other issue concerns the extent to which plaintiffs have prevailed. They agree that they did not prevail with respect to South Dakota's requirement that a woman be provided with certain specified information 24 hours before an abortion, hours spent on this issue have been excluded from their request. They are requesting compensation, however, for time spent on the issue of severability. This issue accounted for all or virtually all of the time of two of the lawyers, Beth Otten (24.5 hours) and Susan Wishnick (15.30 hours). It also accounted for 4 hours of the time of Colleen K. Connell. Plaintiffs argue that it does not matter that they did not prevail on this issue. They cite Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983), for the following proposition:
Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a...
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