Stormans Inc. v. Selecky

• Decision Date: 05 November 2012
• Docket Number: Case No. C07–5374 RBL.
• Citation: 906 F.Supp.2d 1093
• Parties: STORMANS INCORPORATED, et al., Plaintiffs, v. Mary SELECKY, Secretary of the Washington State Department of Health, et al., Defendants, and Judith Billings, et al., Intervenors.
• Court: U.S. District Court — Western District of Washington

906 F.Supp.2d 1093

STORMANS INCORPORATED, et al., Plaintiffs,

v. Mary SELECKY, Secretary of the Washington State Department of Health, et al., Defendants,andJudith Billings, et al., Intervenors.

Case No. C07–5374 RBL.

United States District Court,

W.D. Washington,

at Tacoma.

Nov. 5, 2012.

Kristen K. Waggoner, Steven Thomas O'Ban, Ellis Li & McKinstry, Seattle, WA, Luke W. Goodrich, Eric N. Kniffin, The Becket Fund for Religious Liberty, Steven H. Aden, Alliance Defense Fund, Washington, DC, Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ, for Plaintiffs.

Alan D. Copsey, Joyce A. Roper, Rene David Tomisser, Olympia, WA, for Defendants.

ORDER

[Dkts. Nos. 570, 578]

RONALD B. LEIGHTON, District Judge.

THIS MATTER is before the Court on Plaintiffs' Motions for Bill of Costs and Attorneys' Fees and Expenses (Dkts.# 570, 578). Plaintiffs, two individual pharmacists and a corporate pharmacy, challenged Washington State Board of Pharmacy regulations which compelled pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over sincere religious beliefs against the practice. The contraceptives are known as Plan B and ella, and act as an emergency contraceptive taken after unprotected sex. The regulations at issue were two 2007 Board of Pharmacy rules known as the “delivery rule” and the “stocking rule.” The State of Washington represented the Defendants, individuals sued in their official capacities, charged with the promulgation, interpretation and enforcement of the Board of Pharmacy regulations. Defendant Intervenors were individuals personally concerned about access to lawful medications in Washington. The remaining Intervenors were women of childbearing age interested in access to Plan B.

Plaintiffs challenged the regulations as violating their right to substantive due process; their right to free exercise of religion; and their right to equal protection. After five years of litigation, on February 22, 2012, this Court held that the regulations, while facially acceptable, were applied to Plaintiffs in an unconstitutional manner. Defendants were permanently enjoined from enforcing the regulations against Plaintiffs. Defendants have appealed the permanent injunction. Plaintiffs now seek attorneys' fees and costs only related to trial.

I. BACKGROUND

A. Procedural History.

This case encompassed novel issues of law and spanned over five years with an interlocutory appeal and two stipulated stays. Plaintiffs commenced this litigation on July 25, 2007, the day before the challengedBoard of Pharmacy rules became effective. Over the Plaintiff's objection, the Intervenors were added on September 27, 2007. On November 8, 2007 524 F.Supp.2d 1245 (W.D.Wash.2007), this Court enjoined Defendants from enforcing the challenged regulations, and refused to stay the injunction while the Defendants and the Intervenors appealed. While the Ninth Circuit decision was pending, the parties agreed to stay the litigation and of the enforcement of the rules against Plaintiffs. On October 28, 2009, 586 F.3d 1109 (9th Cir.2009), the Ninth Circuit reversed this Court's injunction.

The litigation resumed, and in 2010, Plaintiffs and Defendants (over the Intervenors' objections) agreed to stay the litigation pending a new Board rulemaking process. The effort was aimed at alleviating the concerns of Plaintiffs regarding the stocking and delivery rules, which would have made the litigation moot. Pls.' Reply at 6 (Dkt. # 630). Plaintiffs actively participated in this process. Ultimately, the Board did not change the challenged rules.

Throughout this case, media coverage closely followed the proceedings. Id. Plaintiffs engaged in media and lobbying activities during the rulemaking process, and in response to boycotts of Plaintiff Stormans' pharmacy. Id.

During the course of this case, twenty-five depositions were taken, and over 50,000 pages of documents were produced. Pls.' Mot. for Fees at 14 (Dkt. # 578). The litigation included public records requests, discovery requests to parties and third-parties, and multiple discovery disputes brought before the Court. A twelve day trial began on November 28, 2011. On February 22, 2012, 854 F.Supp.2d 925 (W.D.Wash.2012), the Court issued a permanent injunction. Defendants concede that Plaintiffs are the prevailing parties.

B. Plaintiffs' Attorneys.

Plaintiffs were represented by the Seattle law firm Ellis, Li and McKinstry (ELM) from the litigation's inception. ELM has gained notoriety for its representation of clients with constitutional rights cases, specifically with first amendment issues. Decl. of O'Ban at 9 (Dkt. # 579). Five ELM attorneys worked closely on this case: Kristen Waggoner, Steve O'Ban, Troy Brinkman, Geoff Enns, and Katherine Anderson. Due to financial constraints on the plaintiffs, their counsel sought assistance from public interest law firms Alliance Defense Fund (ADF) and The Becket Fund for Religious Liberty (Becket) to “share the litigation burden.” Id. at 6.

ADF assisted ELM from early in the case, and after the Ninth Circuit appeal, Becket joined the litigation team. ADF and Becket attorneys assisted in strategy, research and drafting of the major briefs. Decl. of O'Ban at 7. ADF is a constitutional liberties organization and, like the other members of Plaintiffs' legal team, the ADF attorneys involved in this case work on complex constitutional cases involving First Amendment issues. Decl. of Aden at 4 (Dkt. # 585). Four ADF attorneys, based in Kansas, Arizona, and Washington D.C., worked on this case: Steven Aden, Amy Hilton, Gary McCaleb, and Eric Stanley. ADF seeks fees for all four attorneys.

Becket is a non-profit, public interest law firm that focuses on religious liberty law. Decl. of Goodrich at 2 (Dkt. # 590). Six Becket attorneys from Washington D.C. were involved in this litigation. Plaintiffs only seek fees for three of them; Luke Goodrich, Eric Kniffin, and Eric Rassbach. Id. at 4.

While ADF and Becket attorneys were hired to assist on this case, ELM attorneys Kristen Waggoner and Steve O'Ban were lead counsel. Ms. Waggoner has practiced with ELM since 1998 and has focused on constitutional, employment, and education law, and the representation of religious nonprofit organizations. Decl. of Waggoner at 2 (Dkt. # 580). Ms. Waggoner frequently teaches and speaks on these subjects. Id. Ms. Waggoner played an instrumental role in the prosecution of this case.

Mr. O'Ban has practiced law for nearly twenty-five years. Decl. of O'Ban at 7. In addition to teaching on constitutional law and issues facing churches and religious organizations, Mr. O'Ban frequently speaks on the subject at continuing legal education seminars. Id. at 8. Mr. O'Ban has successfully represented several religious organizations to protect religious liberty, free speech, and freedom of association interests. Id.

C. Plaintiffs' Motion for Attorneys' Fees, Expenses and Statutory Costs.

Plaintiffs seek fees and costs only from the State, and not from the Intervenors. Plaintiffs request $2,605,888.75 in total attorneys' fees for ELM, ADF and Becket attorneys. Decl. of Enns, Ex. B (Dkt. # 631). Of the total petition, ELM requests $2,015,822.50, ADF requests $131,950.00, and Becket requests $454,511.25.¹Id.

ELM requests fees for 7,225.50 hours, but Defendants calculate the number of hours, based upon ELM's records, as 6,143.80. Defs.' Resp. at 9 (Dkt. # 622). ADF's petition reflects 413.30 hours worked, and Becket's requests 894.750 hours worked.² Decl. of Enns. Each firm representing Plaintiffs has substantially reduced their request from the hours worked. For example, through the course of litigation, Ms. Waggoner wrote off hours monthly to reflect billing judgment and to accommodate Plaintiffs-a total of 1,144.60 hours worked by ELM attorneys and staff were deducted. Decl. of Waggoner. These write offs reflect hours for the following types of work: (1) all paralegal and clerical time; (2) time by attorneys who spent less than 25 hours on the case; (3) recorded time ELM considered a vague billing entry; and (4) time spent talking with the media or in related activities. Id. In addition to regular billing adjustments, ELM wrote off 664.60 hours for purposes of the fee request. Id.

Defendants argue that the fee petition includes five categories of non-recoverable fees: 1) fees incurred in litigating the Intervenors' claims, 2) fees incurred in third-party discovery disputes; 3) fees expended on media activities and lobbying; 4) fees associated with the fee petition that are excessive and include non-recoverable costs; and 5) fees inflated by Becket's billing practice. Defendants suggest awarding $1,767,787.30 in total for the fees of ELM, ADF, and Becket.

In addition to fees, Plaintiffs request $119,298.71 in expenses and statutory costs. Pls. Mot. for Fees at 20; Decl. of Waggoner, Exs. E, F. Of this amount, $39,538.85 is sought under 28 U.S.C. § 1920. Id.; Pls. Mot. for Costs. Defendantsobject to three categories of these statutory costs: (1) those related to HRC; (2) costs for deposition witnesses and transcripts which were not offered at trial; and (3) scanning costs that were voluntarily incurred. Defs.' Resp. to Pls.' Mot. for Costs at 2 (Dkt. # 597). The remaining $79,759.86 requested reflects expenses which would normally be passed onto a fee paying client in a 42 U.S.C. § 1988 action. Pls. Mot. for Fees at 20. Defendants object to recovery of expert fees and suggest reducing the expenses requested by $29,885.00.

II. DISCUSSION

The Court may award a reasonable attorney's fee, including litigation expenses and costs, to a “prevailing party” of a civil rights claim brought under 42 U.S.C. § 1983. 42 U.S.C. § 1988(b); Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In fact, a plaintiff who prevails under this section “should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Id...