Souza v. Southworth

• Decision Date: 01 November 1977
• Docket Number: No. 77-1245,77-1245
• Citation: 564 F.2d 609
• Parties: Anthony SOUZA et al., Plaintiffs, Appellees, v. Bradford SOUTHWORTH et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 609

564 F.2d 609

Anthony SOUZA et al., Plaintiffs, Appellees, v. Bradford SOUTHWORTH et al., Defendants, Appellants.

No. 77-1245.

United States Court of Appeals First Circuit.

Argued Sept. 8, 1977.

Decided Nov. 1, 1977.

Harold E. Krause, Jr., Sp. Asst. Atty. Gen., with whom Julius C. Michaelson, Atty. Gen., Providence, R. I., was on brief, for defendants, appellants.

Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., was on brief, for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WOLLENBERG, District Judge. ^*

LEVIN H. CAMPBELL, Circuit Judge.

The prolonged path of this litigation began in the summer of 1973, when Rhode Island prison authorities attempted to evict the Inmate Legal Assistance Program from the state's Adult Correctional Institutions. The district court ordered the state to reinstate the program. Souza v. Travisono, 368 F.Supp. 959 (D.R.I. 1973). The subsequent Supreme Court decision in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), mandated affirmance of a portion of this order, and we remanded the balance of the case to the district court for a determination of whether the prisoners had a constitutional right to counselling by law students for purposes other than attacking their convictions or seeking redress for constitutional violations. Souza v. Travisono (Souza I), 498 F.2d 1120 (1st Cir. 1974). The district court then awarded the plaintiffs costs of $464.85 and fees of $11,340.00, $2,040.00 and $1,776.00 for three private counsel. On appeal from that award, this court held the size of the attorneys' fees excessive and required compensation in line with that provided by the Criminal Justice Act, namely $30 per in-court hour and $20 per out-of-court hour. Souza v. Travisono (Souza II), 512 F.2d 1137 (1st Cir.), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975). The subsequent decision of the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), undermined the basis for even this limited fees award, and we remanded the case to provide plaintiffs' attorneys an opportunity to demonstrate the applicability of any of the exceptions recognized by Alyeska to the no-attorneys'-fees rule. While the case lay quiescent on the district court's docket, Congress amended 42 U.S.C. § 1988 to permit an award of attorneys' fees to parties who prevailed in suits such as this one, and the district court made a new award of $19,402.50, $2,040.00, and $1,776.00 to the three private counsel. The state appeals this award as excessive.

In the original fee-setting proceeding, the district court had determined that Attorney Gonnella had expended 189 hours in this matter, Attorney Angelone 34 hours, and Attorney Stern 29.6 hours. The court heard evidence from a local attorney as to the prevailing rate in the community for such litigation and made findings as to the importance and complexity of the case and the skill, experience, and performance of the attorneys. Accordingly, the court held that each should be compensated at the rate of $60.00 an hour for each hour billed. In the proceedings held subsequent to the enactment of amended 42 U.S.C. § 1988, the court received further evidence as to the nature of the services performed by the attorneys and the prevailing rates for such services in the Providence legal community. The court made reference to cases mentioned in the legislative history of the amendment that discuss factors to be considered in setting a reasonable fee, and then reaffirmed its earlier award. The court further found that Mr. Gonnella had expended 107.5 hours since the original proceeding and held that compensation for this time at the rate of $75 an hour would be reasonable.

After the district court made this new fee award, we decided King v. Greenblatt, 560 F.2d 1024 (1977), concerning the power conferred on a district court by the attorneys' fee amendment. We held in King that the restrictive standards of Souza II no longer would apply to cases pending at the time of the enactment. Instead of mechanically applying the Criminal Justice Act schedule, courts were empowered to exercise their sound discretion in setting reasonable fees, bounded by the factors mentioned in the legislative history and the ABA Code of Professional Responsibility. ¹ We required district courts critically to weigh claims for attorneys' fees, demanding a full and specific accounting for the time invested in the case and assessing whether that much time was necessary in light of possible duplication of effort or unnecessary use of counsel to perform non-legal work. Once time and labor had been critically evaluated, courts were to set a reasonable fee in light of the relevant criteria, taking care to avoid excessive reliance on "normal" local rates and instead tailoring the fee to the particular case:

Actual bills will frequently be lower, sometimes much lower, than that rate might indicate; on exceptional occasions they may however exceed it. While the modest Criminal Justice Act rates might allow a more mechanical application, an assumed marketplace rate is never to be applied across the board without regard to the difficulty of the work, the results achieved and all other relevant factors.

King, supra, 560 F.2d at 1027.

Our decision in King disposes immediately of two issues raised by this appeal, namely whether the parsimonious Souza standards still govern and whether amended 42 U.S.C. § 1988 applies to cases which were pending at the time of its passage only as to fee awards. ² Three substantial issues remain for determination here: whether the attorneys sufficiently accounted for the time spent on the case, whether the compensation applied in this case was within reasonable limits, and whether the district court had the power to award attorneys' fees for work performed in this court. ³

The state does not contest the accounting given by Mr. Stern, but argues that Messrs. Gonnella and Angelone failed to provide adequate substantiation of the work they performed. Both these attorneys had submitted affidavits to the court during the original fee-setting proceeding which set out the number of hours spent on various tasks, but neither had provided the underlying documentation on which the statement of hours was based. The state did not then dispute the figures, and Mr. Gonnella subsequently destroyed the time sheets from which he had derived his bill, thinking them to be no longer of any value. Mr. Angelone testified that he never had prepared time sheets, but rather calculated his account by comparing his pocket diary with docket entries of the court. Mr. Gonnella provided the state with time sheets for the hours he spent on the case subsequent to the disposition on the merits.

In King, we declared:

As a starting point the attorney or attorneys must submit to the court a detailed record of the time spent on the case and the duties performed. . . . The court must secure from the attorneys a full and specific accounting for their time; bills which simply list a certain number of hours and lack such important specifics as dates and the nature of the work performed during the hour or hours in question should be refused.

560 F.2d at 1027 (citation omitted). Neither Gonnella nor Angelone fully complied with this mandate. Mr. Gonnella did not submit to the court time sheets detailing his efforts throughout the litigation, and Mr. Angelone apparently had no records to submit. In a case arising after King, such a failure to document an attorney's time might merit disallowal, or at least drastic reduction, of a fee award. Given the circumstances of this litigation, however, it would be unfair to tax Gonnella and Angelone with more stringent standards developed years after the work was performed. Each gave the court sworn affidavits as to the time spent on the case and made at least some effort to itemize his account. Furthermore, while the state cannot be said to have waived an argument the legal foundation of which only recently has been clarified by this court, the fact that the state did not object to the documentation when it was first presented to the court, and has never contended Gonnella or Angelone in any way misrepresented the time spent on this case, militates in favor of accepting the finding below as to reimbursable hours.

The state next argues that the district court abused its discretion in determining that $60 an hour would constitute a reasonable fee for the work performed by Angelone, Gonnella, and Stern during 1973, and that $75 an hour would be reasonable for the time billed by Gonnella thereafter. For reasons that will be discussed herein, we address first the reasonableness of the fee set for work performed before the district court.

As we said in King, the assessment of a reasonable fee in a particular case rests within the sound discretion of the district court. 560 F.2d at 1026, citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). This means that we will look for a reasoned discussion of those factors that the court finds relevant. We do not require the court to discuss each of the twelve factors in every case. The district court here did refer to the criteria we subsequently endorsed in King, although it did so in a conclusory manner. The state points to evidence that Mr. Gonnella during 1973 received substantially less than $60 an hour for the bulk of his professional time, and that at that point in his career he had yet to accumulate a great deal of litigation experience. It further points out that an early consent order removed some of the difficulty of the litigation and, in any event, plaintiffs enjoyed only partial success on the merits. Juxtaposed against these contentions are the findings of the district court that these attorneys displayed skill...