Wilkinson v. Forst

• Decision Date: 08 February 1990
• Docket Number: Civ. No. H-80-755 (JAC).
• Citation: 729 F. Supp. 1416
• Court: U.S. District Court — District of Connecticut
• Parties: Bill WILKINSON and James Farrands v. Lester FORST, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Donald Long, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Austin McGuigan, Chief State's Attorney for the State of Connecticut at all times relevant hereto, in his official capacity; and the City of Meriden.

729 F. Supp. 1416

Bill WILKINSON and James Farrands v. Lester FORST, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Donald Long, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Austin McGuigan, Chief State's Attorney for the State of Connecticut at all times relevant hereto, in his official capacity; and the City of Meriden.

Civ. No. H-80-755 (JAC).

United States District Court, D. Connecticut,

February 8, 1990.

Philip D. Tegeler, Martha Stone, Connecticut Civil Liberties Union, and Matthew Horowitz, Blume & Elbaum, Hartford, Conn., for plaintiffs.

Steven R. Strom, Asst. Atty. Gen., Hartford, Conn., for defendants.

RULING ON MOTION FOR ATTORNEYS' FEES

JOSÉ A. CABRANES, District Judge:

This action was brought in 1980 against officials of the Connecticut State Police Department and a local police department, challenging defendants' practice of searches of those attending Ku Klux Klan rallies. On June 30, 1986, this court held that weapons searches at such rallies violated Klan members' Fourth Amendment rights, and the court enjoined state police from conducting such searches in the absence of individualized suspicion or probable cause. Wilkinson v. Forst, 639 F.Supp. 518 (D.Conn.1986). See also Wilkinson v. Forst, 591 F.Supp. 403 (D.Conn. 1984) (denying defendants' motions to dismiss and for summary judgment). The court later denied a post-judgment application by defendants to permit use of magnetometer searches for weapons at Klan rallies. Wilkinson v. Forst, 656 F.Supp. 710 (D.Conn.1986). On appeal, the Court of Appeals affirmed the injunction against pat-down and automobile searches without reasonable suspicion or probable cause, but reversed and remanded the order regarding magnetometer searches with a direction to modify the injunction to allow general magnetometer searches without regard to standards of reasonable suspicion or probable cause. Wilkinson v. Forst, 832 F.2d 1330 (2d Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 907 (1988). Plaintiffs thus prevailed substantially in all of the claims they initially asserted.

On remand, I held that no federal court prior authorization for magnetometer searches was required; that portal, not handheld, magnetometers should be used in the first instance in all reasonably foreseeable circumstances; and that defendants would not be ordered to purchase special or particular equipment and participate in training proposed by defendants. See Wilkinson v. Forst, 717 F.Supp. 49 (D.Conn. 1989). On September 5, 1989, plaintiffs applied for an award of costs and attorneys' fees pursuant to 42 U.S.C. § 1988. Defendants have opposed this application on a number of grounds.

DISCUSSION

A.

The starting point for determination of reasonable attorneys' fees is the "lodestar" figure. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) ("Delaware Valley"). The lodestar figure is calculated "by multiplying the reasonable number of hours expended times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). The Supreme Court has held that the lodestar figure should be accorded presumptive weight, Delaware Valley, 478 U.S. at 565, 106 S.Ct. at 3098, and is to be modified "only in certain `rare' and `exceptional' cases." Id. (citing Blum, 465 U.S. at 899, 104 S.Ct. at 1549).

Plaintiffs seek an award of fees in the amount of $315,230.85 for all work completed up to and including August 29, 1989 and $5,827.92 for all work after that date. They also move for costs in the amount of $11,205.85. The amount of $315,230.85 claimed for attorneys' fees prior to August 29, 1989 was calculated by beginning with a lodestar figure of $140,102.60, a figure arrived at by multiplying the time expended by the current market rates to compensate for delay in payment. The rates claimed are: $160/hr. for Martha Stone, $150/hr. for Matthew Horowitz, $150/hr. for Shelley White, $135/hr. for Shelley Geballe, $125/hr. for Philip Tegeler (each an attorney), and $15/hr. for Ken Lawrence (a law student intern). Plaintiffs also claim a 100% enhancement or "multiplier" for the contingent nature of the case, and an additional 25% enhancement for quality of representation and the results obtained.

B.

Applying the standard of Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (party prevails "if they succeed on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit"), the court finds that plaintiffs have prevailed in the overall litigation. See also Texas State Teachers Assoc. v. Garland Indep. School Dist., ___ U.S. ___, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). A reduction in the fee is not justified merely because "prevailing plaintiff did not receive all the relief requested." Hensley v. Eckerhart, 461 U.S. at 435-436 n. 11, 103 S.Ct. at 1941 n. 11. In the instant case, plaintiffs obtained all the relief they originally sought. They did not receive the relief requested only with respect to the issue of magnetometer searches at Klan rallies, an issue raised by defendants after the ruling of the court in favor of plaintiffs (a ruling subsequently affirmed by the Court of Appeals). Indeed, the magnetometer issue was not even addressed in the court's original ruling; plaintiffs were fully successful with respect to the pat-down and automobile search issues that originally prompted the litigation. Even with respect to magnetometer searches, plaintiffs prevailed as to some, though far from all, issues regarding the appropriate procedures for conducting such searches. Thus, bearing in mind the Supreme Court's rejection of the mathematical approach of separating the arguably unsuccessful claims from successful ones, id., the court finds that the total number of hours expended by plaintiffs' counsel are not unreasonable in relation to the success achieved.

C.

Defendants nowhere challenge, and apparently concede, that the hours expended by counsel, except for those expended in connection with the fee application (an issue addressed below), are reasonable and that the rates claimed are reasonable current rates, see Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Costs and Attorneys' Fees (filed Nov. 7, 1989) at 7, but argue that historic, not current, rates should be used for years prior to 1987. It is clear that "an appropriate adjustment for delay in payment — whether by the application of current rather than historic hourly rates or otherwise" is consistent with the goals of fee-shifting statutes. See Missouri v. Jenkins, by Agyei, ___ U.S. ___, 109 S.Ct. 2463, 2471-72, 105 L.Ed.2d 229 (1989); Chambless v. Masters, Mates, and Pilots Pension Plan, 885 F.2d 1053, 1060 (2d Cir.1989). Nonetheless, "district courts retain latitude in determining how they will compensate prevailing attorneys for delay." See Chambless v. Masters, Mates, and Pilots Pension Plan, 885 F.2d at 1060 (post-Missouri case approving district court's award of historic rates for earlier phase of litigation where factor of delay had been considered by court in awarding "generous" historic rates). See also New York Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1152-53 (2d Cir.1983) (Newman, J.) (approving use of historic rates for earlier phase of litigation).

Accordingly, the court finds that plaintiffs' counsel should be awarded fees at current rates for the work performed in the years 1986-1989, and historic rates for the years 1980-1985. For attorneys Horowitz, Stone and White, who were involved in that early phase of the litigation, $125/hr. is an appropriate, and arguably generous, rate for the first few years of litigation. See, e.g., Hillburn v. Commissioner, Connecticut Department of Income Maintenance, 683 F.Supp. 23, 27 (D.Conn.1987), aff'd, 847 F.2d 835 (2d Cir. 1988) ($90/hr. is reasonable rate for experienced attorney in years 1982-1984). The court is persuaded that such an award adequately takes into account the factor of delay.

D.

Plaintiffs move for an enhancement award of 100% for contingency and an additional 25% for quality of representation and result obtained. It is, of course, only the "rare case" where an upward adjustment of the lodestar figure is justified. See Blum v. Stenson, 465 U.S. 886, 899, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891 (1984). The court finds that this case presents the extraordinary combination of circumstances under which a multiplier is appropriate. In particular, the court is persuaded that the difficulties of attracting counsel, risk of nonpayment in view of the prospect of multi-year litigation, and the personal, professional, and financial risks incurred by counsel in view of the extreme unpopularity of their client justify a 25% upward adjustment in fees. See, e.g., Lewis v. Coughlin, 801 F.2d 570, 573-76 (2d Cir.1986) (upward adjustment appropriate for contingent litigation); Fadhl v. City and County of San Francisco, 859 F.2d 649, 651 (9th Cir.1988) (upward adjustment of 100% in view of difficulty of attracting counsel in case at bar); McKenzie v. Kennickell, 684 F.Supp. 1097, 1103 (D.D.C.1988), aff'd, 875 F.2d 330 (D.C.Cir.1989) (upward adjustment of 50% in view of difficulty of attracting counsel in case at bar); Baird v. Bellotti, 616 F.Supp. 6, 9 (D.Mass.1984) (upward adjustment of 30% for representation of highly unpopular client). See also Affidavits by Attorneys Joseph D. Garrison, Michael P. Koskoff, Paul W. Orth, and David N. Rosen in Support of Plaintiffs' Motion for Costs and Attorneys' Fees (filed Oct. 16, 1989) (greater fees for cases taken on contingency basis are typical in Connecticut legal market; plaintiff would have substantial, if not...