Rum Creek Coal Sales, Inc v. Caperton

• Decision Date: 25 July 1994
• Docket Number: D,AFL-CI,No. 93-1540,93-1540
• Citation: 31 F.3d 169
• Parties: 146 L.R.R.M. (BNA) 2923, 63 USLW 2082 RUM CREEK COAL SALES, INCORPORATED, Plaintiff-Appellant, v. Honorable W. Gaston CAPERTON; Colonel J.R. Buckalew; Captain A.W. (Gene) Bumgardner; Sergeant Glen A. Ables; Sergeant David L. Belcher; Sergeant B.R. Chafin; Sergeant P.D. Clemons; Corporal W.E. McGraw, II; Trooper C.E. Akers; Trooper K.W. Cordial; Trooper W.R. Gibson; Trooper C.P. Miller; Trooper J.B. Schoolcraft; Trooper B.A. Sloan; Trooper Gary R. Tincher, and other officers of the West Virginia State Police whose identity is presently unknown to Plaintiff, Defendants-Appellees, and West Virginia State Federation,efendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 169

31 F.3d 169

146 L.R.R.M. (BNA) 2923, 63 USLW 2082

RUM CREEK COAL SALES, INCORPORATED, Plaintiff-Appellant, v. Honorable W. Gaston CAPERTON; Colonel J.R. Buckalew;

Captain A.W. (Gene) Bumgardner; Sergeant Glen A. Ables;

Sergeant David L. Belcher; Sergeant B.R. Chafin; Sergeant

P.D. Clemons; Corporal W.E. McGraw, II; Trooper C.E.

Akers; Trooper K.W. Cordial; Trooper W.R. Gibson; Trooper

C.P. Miller; Trooper J.B. Schoolcraft; Trooper B.A.

Sloan; Trooper Gary R. Tincher, and other officers of the

West Virginia State Police whose identity is presently

unknown to Plaintiff, Defendants-Appellees,

and

West Virginia State Federation, AFL-CIO, Defendant.

No. 93-1540.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 10, 1993.

Decided July 25, 1994.

ARGUED: Paul Michael Thompson, Hunton & Williams, Richmond, VA, for appellant. Jan L. Fox, Sp. Asst. Atty. Gen., Steptoe & Johnson, Charleston, WV, for appellees. ON BRIEF: James P. Naughton, Bruin S. Richardson, III, Hunton & Williams, Richmond, VA; Forrest H. Roles, Donna C. Kelly, Smith, Heenan & Althen, Charleston, WV, for appellant. Teresa L. Sage, Asst. Atty. Gen., South Charleston, WV, for appellees.

Before WIDENER, MURNAGHAN, and NIEMEYER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Judge WIDENER and Judge MURNAGHAN concurred in part. Judge WIDENER wrote a concurring opinion and Judge MURNAGHAN wrote an opinion concurring in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

This case, now here for the third time, presents issues relating to the proper allowance of attorneys fees to be awarded under 42 U.S.C. Sec. 1988. As the prevailing party under 42 U.S.C. Sec. 1983, Rum Creek Coal Sales, Inc., petitioned the district court for an award of $802,389 for fees and expenses incurred by its attorneys through January 1993. The district court awarded $406,857. Contending that the district court's reduction was the product of legal error and constituted an abuse of discretion, Rum Creek Coal seeks an award of the full amount requested in its petition, together with (1) $72,373 for the post-petition period between January 1993 and May 31, 1993, before this appeal; (2) $20,000 for this appeal; and (3) a 5% overall enhancement for extraordinary success, for a total award of $939,501. To avoid further litigation, a possible fourth appeal, and attendant expenses, it requests that we determine the amount of the award, rather than remanding the case on the issue of attorney's fees.

On review of the district court's award, we affirm in part and reverse in part, allowing Rum Creek Coal $709,234.31 for fees and expenses through January 1993. To cover the fees and expenses incurred after that date, on which we have inadequate data on which to make an award, we remand the case to the district court for entry of an additional award.

I

This litigation arose from a coal strike in 1989 by the United Mine Workers of America against Rum Creek Coal Sales, Inc. and other companies. Picketing strikers formed picket lines and barricades across Rum Creek Coal's private access roads with fallen trees, logs, and scrap appliances, and they threw rocks and other projectiles at Rum Creek's trucks in an effort to close down the coal mines. During the course of the strike, trucks were damaged and disabled and people were injured. The district court, when considering a preliminary injunction, characterized the conduct as "savagery" and called it "uncivilized." The company contended that millions of dollars' worth of damages were caused.

Rum Creek Coal's efforts to enlist the police to establish order met with little success. While the police would maintain patrols on public property at some distance from the violent barricades, they refused to enforce trespass laws on company property during a labor dispute. The policy of the West Virginia Department of Public Safety, based on West Virginia statutes, was that arrests may be made on private property for all criminal acts except trespass during a labor dispute. The Department deliberately refrained from "interfering in matters involving labor demonstrations or trespass on private roads or lands in connection therewith." As a consequence, the police were ineffective in preventing the violence.

Two West Virginia statutes underlying the policy of the Department of Public Safety required police to remain neutral during labor disputes and limited the enforcement of trespass laws. The "Neutrality Statute" provided that no police officer may "aid or assist either party" to a labor dispute, W. Va.Code Sec. 15-2-13, and the "Trespass Statute Proviso" stated that statutory trespass provisions "shall not apply in a labor dispute," W. Va.Code Sec. 61-3B-3.

Rum Creek Coal filed this action under 42 U.S.C. Sec. 1983 in November 1989, contending that these state statutes interfered with federal labor policy by changing the balance between employer and employee established by the National Labor Relations Act ("NLRA"). It contended that West Virginia's policy was preempted by the national labor policy and that the state statutes denied Rum Creek Coal rights guaranteed by the Equal Protection Clause and the Due Process Clause of the United States Constitution. Rum Creek Coal sought a declaratory judgment that the statutes were unconstitutional, and preliminary and permanent injunctions prohibiting enforcement of the statutes.

Following a four-day hearing in January 1990 on the motion for a preliminary injunction to bar enforcement of the Trespass Statute Proviso, the district court refused to order the preliminary injunction. On appeal, we reversed, concluding that the state's policy of withdrawing the general protection of the trespass statutes during a labor dispute conflicted with and was preempted by the NLRA. See Rum Creek Coal Sales, Inc. v. Caperton ("Rum Creek Coal I"), 926 F.2d 353 (4th Cir.1991). The Neutrality Statute was not addressed at that time.

On remand, Rum Creek Coal filed a motion for summary judgment on the merits of its claims, seeking a declaratory judgment that both the Trespass Statute Proviso and the Neutrality Statute were unconstitutional and a permanent injunction prohibiting their enforcement. At the same time, the district court granted the motion of the AFL-CIO to intervene and participate on behalf of the West Virginia defendants. Following discovery and briefing by all parties, the district court granted Rum Creek Coal's motion to declare the Trespass Statute Proviso unconstitutional, but it denied the motion with respect to the Neutrality Statute. On appeal, we again reversed, concluding that the Neutrality Statute likewise violated the federal policy governing labor relations and was therefore preempted. Rum Creek Coal Sales, Inc. v. Caperton ("Rum Creek Coal II"), 971 F.2d 1148 (4th Cir.1992).

Thereafter, Rum Creek Coal Company filed a petition for attorney's fees and costs incurred through January 1993 in the amount of $802,388.85, which it had paid to its two law firms, Hunton & Williams of Richmond, Virginia, and Smith, Heenan & Althen of Charleston, West Virginia. The matter was referred to a magistrate judge who disallowed $221,161 and approved the figure of $581,228, leaving open for the district court the possibility of a further across-the-board reduction. In making the reductions, the magistrate judge disallowed $11,008.75 in fees and expenses relating to media communications and public relations regarding the case; $1,203.75 in fees and expenses relating to an unsuccessful amicus brief; $33,839.54 in fees and expenses relating to an unsuccessful opposition to the AFL-CIO's motion to intervene; and $2,831.50 requested by Smith, Heenan & Althen for "general assistants." In addition to these specific reductions, the magistrate judge reduced the hourly rates charged by both law firms because he found them to be excessive. He relied on his own knowledge of the prevailing community rates in Charleston and on the attorneys' failure, when billing, to distinguish between in-court and out-of-court time. The magistrate judge acknowledged that the fee petition he was considering was one that had been recently revised by Rum Creek Coal to remove duplicate billings of about $8,800 which had been objected to by the defendants. Accordingly, he concluded that for those duplications "no reduction is necessary." Finally, the magistrate judge left for the district court a ruling on defendant's motion for an additional 20-30% reduction for "the excessive nature and unreasonable redundancy of plaintiff's billing procedures."

The district court conducted a de novo review of the magistrate judge's recommendations and adopted them in toto. Addressing the defendants' request that the fees requested should be reduced further by 20-30%, the district court stated that it was "of the opinion that because of the excessive nature and unreasonable redundancy of Plaintiff's work, this Court should make a thirty percent (30%) reduction on the fee application submitted." The court thus reduced Rum Creek Coal's fee request by another $174,370, allowing a total of $406,857 on Rum Creek Coal's petition for fees and expenses.

No further petition was submitted to the district court for fees and expenses incurred after January 1993, but in its brief for this appeal Rum Creek Coal states that it has incurred additional fees and expenses during the period from January 1993 through May 31, 1993, in the amount of $72,373.56. It also requests "approximately $20,000" for this appeal and an overall enhancement of 5% based on success. The total amount requested by Rum Creek Coal for fees and expenses is thus $939,500.53.

Rum Creek Coal urges what it acknowledges is unusual relief in requesting that we calculate the final award for attorney's fees and expenses because any remand order would only prolong the litigation and...