Tomazzoli v. Sheedy

• Decision Date: 21 May 1986
• Docket Number: No. 85-2805,85-2805
• Citation: 804 F.2d 93
• Parties: 42 Empl. Prac. Dec. P 36,754 Catherine L. TOMAZZOLI, Plaintiff-Appellant, v. Michael SHEEDY and Christian County, Illinois, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 93

804 F.2d 93

42 Empl. Prac. Dec. P 36,754

Catherine L. TOMAZZOLI, Plaintiff-Appellant, v. Michael SHEEDY and Christian County, Illinois, Defendants-Appellees.

No. 85-2805.

United States Court of Appeals Seventh Circuit.

Submitted May 21, 1986. ^*

Decided Oct. 24, 1986.

Mary Lee Leahy, Leahy & Leahy, Springfield, Ill., for plaintiff-appellant.

Val C. Simhauser Heckenkamp, Simhauser & Drake, P.C., Springfield, Ill., for defendants-appellees.

Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.

PER CURIAM.

Appellant Catherine Tomazzoli settled her employment discrimination case (brought under 42 U.S.C. Sec. 1983) against Christian County, Illinois and one of its deputy sheriffs for $5,000 on the day of trial. As part of the settlement, the parties also agreed that the district court would determine what amount of attorney's fees to award under 42 U.S.C. Sec. 1988. The court found that Tomazzoli was "clearly the prevailing party" and awarded $60 in costs (though later increased on reconsideration to $421) and $6,000 in attorney's fees following a hearing on the matter. Dissatisfied with the fee award, Tomazzoli appealed. We affirm.

I

Tomazzoli's attorney, Mary Lee Leahy, claims that the district court erred both in setting her hourly rate at $75 and in determining that 80 hours was a reasonable number of hours for the proper presentation of the case (including the Section 1988 fee hearing). Leahy claims that $100 per hour is the reasonable rate for her services and 117.25 hours were spent to settle the case and present the fee application. In support of her claim, Leahy prepared and submitted a 5-page statement of the legal services rendered up through the filing of her fee petition, logging the date on which the services were performed, a short explanation of what was done, and the amount of time (in 1/4-hours) spent on each task or combination of tasks. The statement, along with a detailed "Resume of Education, Training and Experience," was attached to an affidavit in which Leahy attested that $100.00 per hour is a reasonable rate for [the] services rendered."

In addition to her own, Leahy filed the affidavits of two attorneys who, like Leahy, practice in the Central District of Illinois--one, Patricia Benassi, has an office in Peoria and the other, Steven Beckett, in Champaign. Leahy practices law in Springfield. Benassi states that "[a] substantial portion of [her] legal work involves civil rights cases, employment discrimination cases, and labor relations matters"; she attests that her "customary and usual fee on all civil rights cases and employment discrimination cases is $100 per hour plus expenses...." Similarly, Beckett states that he handles plaintiffs' civil rights cases "in federal district courts in Nebraska, Missouri, Wisconsin, and Illinois, and ... in the Seventh and Eighth Circuit Courts of Appeals, and the United States Supreme Court" and "believes the prevailing market rate for the State of Illinois for attorneys, in cases in the United States District Court for the Southern District of Illinois, is $100 per hour." ¹

In response, appellees' counsel, Val Simhauser, submitted the affidavit of Dwight O'Keefe, an attorney who practices in Springfield and devotes a portion of his practice to the defense of civil rights claims; O'Keefe goes on to state that he is "acquainted with the fees charged by or awarded to plaintiffs' attorneys in the U.S. District Court, Central District of Illinois, Springfield Division" and "believe[s] the prevailing rate for plaintiffs' attorneys in employment discrimination cases is $65.00 to $75.00 per hour." In addition to the O'Keefe affidavit, Simhauser (who, according to Martindale-Hubbell, was admitted to the bar in 1980) attested that he spent 83 1/4 hours on the case. At the fee hearing, Simhauser further stated that he billed the insurance carrier that he represented $55 per hour for his time while a partner in the firm charged $75 though he also acknowledged that partners in his firm charge as much as $100 per hour for other litigation.

Appellees' primary challenge in the district court to the fee petition was based on comparison of the requested fee with a fee award made in another civil rights case (Kolar v. Gutschenritter, No. 80-3064) from the Central District of Illinois that the Leahy firm handled several years earlier. In that case, the Leahy firm was awarded (on November 3, 1981) $75 per hour and "racked up 90.25 hours" which "included taking at least 12 depositions and a two-day jury trial." Appellees argued that an award of $75 per hour in November 1981 did not justify an award of $100 four years later and found it "difficult to believe that Attorney Leahy spent more time in this case than in Kolar," estimating that "Leahy spent no more than 50 hours" on the instant case. As such, appellees maintained that Leahy inflated her time "to an intolerable degree" and called for the complete denial of fees.

Leahy responded to the charges arguing that appellees' accusations were "totally false and misleading" and that a comparison to Kolar was inappropriate; she moved to strike both appellees' memorandum and the attached affidavit and filed a supporting memorandum. Claiming that it was necessary for her to respond, Leahy also moved for 6.75 hours of additional fees. Leahy's motions prompted a further response by appellees. The court immediately scheduled the matter for hearing on August 23, 1985, and directed the parties to "[b]e prepared for a full-blown discussion of cases from this Circuit dealing with the award of such fees." Neither party presented further evidence at the hearing, and the court issued its written decision on the same day.

II

Tomazzoli is entitled to attorney's fees, see Lovell v. City of Kankakee, 783 F.2d 95, 96 (7th Cir.1986) (settlement of case prior to formal adjudication on merits not a bar to recovery of attorney's fees); the only question is the amount. The fee applicant bears the burden of documenting to the satisfaction of the district court " 'the appropriate hours expended and hourly rates.' " Zabkowicz v. West Bend Co., 789 F.2d 540, 548 & n. 8 (7th Cir.1986) (Title VII action). ² Further, the applicant is expected to exercise "billing judgment" in calculating his or her fee; excessive, redundant or otherwise unnecessary hours are to be omitted from the fee submission, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), and the applicant should command no more than an appropriate market rate, see Blum v. Stenson, 465 U.S. 886, 895 & n. 11, 104 S.Ct. 1541, 1547 & n. 11, 79 L.Ed.2d 891 (1984). See also Kirchoff v. Flynn, 786 F.2d 320, 325 (7th Cir.1986) ("billing judgment" involves a complex array of considerations); Kritzer, et al., Understanding the Costs of Litigation: The Case of the Hourly-Fee Lawyer, 1984 Am. Bar Found. Research J. 559. The respondent then may challenge the reasonableness or accuracy of the rates or hours. See Blum v. Stenson, 465 U.S. at 892 n. 5, 104 S.Ct. at 1545 n. 5. " 'When ... the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product [rate times hours ³] is presumed to be the reasonable fee' to which counsel is entitled." Pennsylvania v. Delaware Valley Citizens' Council For Clean Air, --- U.S. ---, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (emphasis in original), quoting Blum v. Stenson, 465 U.S. at 897, 104 S.Ct. at 1548. This is in keeping with Congress' intent that it is "necessary to compensate lawyers for all time reasonably expended on a case" "[i]n order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances." City of Riverside v. Rivera, --- U.S. ---, 106 S.Ct. 2686, 2696, 91 L.Ed.2d 466 (1986) (footnote omitted). ⁴

The district court's objective is to determine the market rate for the services reasonably required to produce the victory, Kirchoff v. Flynn, 786 F.2d at 328; if an attorney cannot expect this "opportunity wage," i.e., "the compensation he could obtain by representing paying clients," courts will not be able to induce attorneys to take civil rights cases. Id. at 326. See also S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5913 (Congress' intent in enacting Section 1988 was to encourage the enforcement of constitutional rights through the award of "fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.") Of course, the district court in its discretion may exclude from the time to be compensated those hours it believes are based on inaccurate or misleading records. Zabkowicz v. West Bend Co., 789 F.2d at 550.

Once established an appellate court should not disturb a district court's fee award unless the court commits an error of law in the computation or has abused its discretion in calculating the amount. Lynch v. City of Milwaukee, 747 F.2d 423, 426 (7th Cir.1984); see also Pennsylvania v. Delaware Valley Citizens' Council For Clean Air, 106 S.Ct. at 3100 (Blackmun, J., concurring in part and dissenting in part) ("The proper standard of review of an attorney's fee award is abuse of discretion.") While "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate," Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939, "the method of calculating a fee award rests within [the district court's] sound discretion." Gekas v. Attorney Registration and Disciplinary Commission, 793 F.2d 846, 851 (7th Cir.1986) (per curiam). There is no one correct formula for determining a fee award, and therefore the district court's calculation is anything but an arithmetical exercise. Evans v. Jeff D., --- U.S. ---, 106 S.Ct. 1531, 1542 & n. 26, 89 L.Ed.2d 747 (1986). Nonetheless, if the district...