Sebastian v. Texas Dept. of Corrections

• Decision Date: 28 February 1983
• Docket Number: Civ. A. No. H-81-2112.
• Citation: 558 F. Supp. 507
• Parties: Rosemary SEBASTIAN, Plaintiff, v. TEXAS DEPARTMENT OF CORRECTIONS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

558 F. Supp. 507

Rosemary SEBASTIAN, Plaintiff, v. TEXAS DEPARTMENT OF CORRECTIONS, et al., Defendants.

Civ. A. No. H-81-2112.

United States District Court, S.D. Texas, Houston Division.

February 28, 1983.

COPYRIGHT MATERIAL OMITTED

Eliot P. Tucker, Mandell & Wright, and Evelyn Jo Wilson, Susman & McGowan, Houston, Tex., for plaintiff.

Theresa Ann Kraatz, Chris Hanger and James R. Meyers, Asst. Attys. Gen., Austin, Tex., for defendants.

ORDER

CARL O. BUE, Jr., District Judge.

In a previous order entered by this Court on September 23, 1982, plaintiff was directed to submit an affidavit setting out the proposed amounts which would compensate for her certain losses caused by defendants' noncompliance with the preliminary injunction in this case. Those losses were enumerated by the Court as three days of vacation time spent to prepare for the contempt hearing, costs of court for the hearing, attorneys' fees, damage to her professional reputation and mental stress. The plaintiff has followed the Court's directive, and the affidavit was so filed.

The proper aim of judicial sanctions for civil contempt is "full remedial relief". McComb v. Jacksonville, 336 U.S. 187, 193, 69 S.Ct. 497, 500, 93 L.Ed. 599 (1949). "The only limitation upon the sanctions imposed is that they be remedial or coercive but not penal." Florida Steel Corp. v. NLRB, 648 F.2d 233, 239 (5th Cir.1981).

A plaintiff's right to a compensatory fine is contingent upon the outcome of the main cause. Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 828 (5th Cir.1976). However, this does not mean that since damages are not recoverable in a Title VII action,¹ a compensatory fine may not be levied for noncompliance with an injunction in a Title VII case. This principle was demonstrated in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Based on the facts of that case, the Supreme Court explained that although the Eleventh Amendment would bar a monetary recovery of damages against the state, a compensatory fine could nevertheless be paid from state funds. Id. at 691-92, 98 S.Ct. at 2573-74. In its explanation, the Court stated: "Civil contempt may also be punished by a remedial fine, which compensates the party who won the injunction for the effects of his opponent's noncompliance." Id. at 691, 98 S.Ct. at 2573.

The Fifth Circuit Court of Appeals in Clark v. Boynton, 362 F.2d 992 (5th Cir.1966), specified the basic requirements for a compensatory fine:

Of course, several things are required if a compensatory "penalty" is to be imposed in a civil contempt. One certainly is a clear indication of the party to whom it is to be paid. Another is a sufficient record basis for the propriety of such an award and, in a broad sense at least, the amount of it. Ordinarily, of course, the civil contempt fine "must not exceed the actual loss to the complainant caused by respondent's violation of the decree in the main cause plus complainant's reasonable expenses in the proceedings necessitated in presenting the contempt for the judgment of the court."

Id. at 998. For the law quoted the Fifth Circuit relied on the First Circuit case of Parker v. United States, 153 F.2d 66, 71 (1st Cir.1946) which stated: "An order imposing a compensatory fine in a civil contempt proceeding is thus somewhat analogous to a tort judgment for damages caused by wrongful conduct." Parker, supra, at 70. Stated another way, compensatory civil contempt reimburses the injured party for the losses and expenses incurred because of his adversary's noncompliance. This includes losses flowing from noncompliance and expenses reasonably and necessarily incurred in the attempt to enforce compliance. Norman Bridge Drug Co., supra, at 827. There must be evidence showing the amount of the loss, since the court must have some basis for determining both the amount and the reasonableness of the costs claimed. Allied Materials Corp. v. Superior Products Co., 620 F.2d 224, 227 (10th Cir.1980).

In the Court's prior Order of September 23, 1982, the Court found certain losses which included damage to plaintiff's professional reputation, mental distress and humiliation.² It was the Court's conclusion that these losses were caused by defendants' noncompliance with the Court's injunction. The plaintiff testified as to these losses at the contempt hearing, and at the Court's direction she proposed figures in an affidavit which she believed would be reasonable compensation. In awarding a compensatory fine in a civil contempt proceeding, the question of amount falls within the broad discretion of the trial court. Mead Johnson & Co. v. Baby's Formula Service, Inc., 402 F.2d 23 (5th Cir.1968). Accordingly, it is the Court's duty to determine the amount which is reasonable in view of the circumstances.

The plaintiff has attempted to measure mental distress, an abstract loss, in concrete terms. After reviewing the calculations, the Court finds that the amounts proposed are excessive in certain respects. First, the salary which is paid to plaintiff is not paid to her for her job satisfaction. Consequently, plaintiff's claim of 80% of her salary cannot be said to be correlated to her loss. Indeed, it is difficult to place a monetary value on job satisfaction. It is more reasonable to think that a person works primarily for a monetary reward, that is, the salary, with the ancillary reward of satisfaction. The Court designates 25% per day as the figure which represents loss of job satisfaction, and calculations using this rate yield a total of $4950 for mental distress and loss of professional reputation.³ As to the plaintiff's leisure and sleeping time, the Court is aware of claimed continuing mental distress away from the job. But the plaintiff is removed from the source of the problem temporarily in such instances, and the losses are presumably much less. Accordingly, for the mental anguish suffered away from work, the Court awards a lump sum compensatory amount of $1000. The total, then, to be awarded to plaintiff for her loss of reputation, mental distress and humiliation is $5950.

As to the remaining losses caused by defendants' noncompliance, attorney's fees and the costs of bringing the proceedings will be allowed. Lance v. Plummer, 353 F.2d 585, 592 (5th Cir.1965). Plaintiff stated in her affidavit that her salary at the time of the contempt hearing was $126 per work day, and, hence, $378 will be awarded for the three days used in preparing for the hearing. Additionally, plaintiff spent one day to prepare her affidavit at the Court's direction, and her rate of pay was $137 per work day at that time. A total of $515 will be awarded to plaintiff for her preparation for the contempt proceeding. Plaintiff's two attorneys have submitted documentation of miscellaneous expenses necessary to prepare for the hearing, and that total is $726.70. After examining the documents submitted, the Court concludes that such expenditures are reasonable and that they will be awarded to plaintiff as well.

The law governing the last item in the compensatory fine, attorneys' fees, was addressed by the Fifth Circuit in Cook v. Ochsner Foundation Hospital, 559 F.2d 270 (5th Cir.1977). There it was stated that an award of attorneys' fees in cases of civil contempt is left to the discretion of the trial court. Further, it was held that it matters not whether the disobedience is willful. Even though the act of noncompliance is unintentional, the court has the inherent authority to award attorneys' fees in a civil contempt proceeding. Finally, the Court in Cook gave explicit instructions that the lower court must make specific findings and conclusions by following the elements set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Consequently, to determine the appropriateness of attorneys' fees to be awarded in the present case, the Court proceeds to the application of the twelve factors of Johnson. Although all of the twelve factors must be considered, the Court will pay "special heed to Johnson criteria numbers (1) the time and labor involved, (5) the customary fee, (8) the amount involved and the results obtained, and (9) the experience, reputation and ability of counsel." Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 583 (5th Cir.1980).

(1) The Time and Labor Required

In determining the reasonableness of attorney's fees the necessary starting point is to assess the amount of time spent by counsel on the case. Johnson v. Georgia Highway Express, supra, at 717. In addition to the time-sheet affidavits submitted by counsel, the Court should weigh the hours claimed by counsel in light of the Court's own experience and observations and fashion a total time allowance which rationally reflects the services rendered. Id.; McDonald v. Oliver, 525 F.2d 1217, 1233 (5th Cir.), cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976). Moreover, the time expended by counsel directed towards the merits of the case should be distinguished from investigation, clerical work, and other work which, although performed by an attorney, could be performed by a layperson. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3rd Cir.1973); Foster v. Boise-Cascade, Inc., 420 F.Supp. 674 (S.D.Tex.1976), aff'd, 577 F.2d 335 (5th Cir. 1978). In addition, counsel should indicate whether the person performing each task is a partner, associate or paralegal. Johnson v. Georgia Highway Express, supra, at 718-719.

Plaintiff's counsel have submitted various affidavits detailing the nature of the services rendered by each of them in representing plaintiff at the contempt hearing and the amount of time spent on such services. According to the affidavits, both attorneys seek an award of fees based upon having spent a total of 118.7 hours in preparing for and prosecuting the motion for contempt. In addition, there were 7.85 hours spent by paralegals in assisting the...