Willie M. By Singer v. Hunt
| Citation | 564 F. Supp. 363 |
| Decision Date | 02 June 1983 |
| Docket Number | No. C-C-79-294-M.,C-C-79-294-M. |
| Parties | WILLIE M., a minor; Jeanette M., a minor; Tom H., a minor; Timothy B., a minor, all By their next friend, Albert SINGER, on behalf of themselves and all others similarly situated, Plaintiffs, v. James B. HUNT, Jr., Governor, State of North Carolina; Sarah T. Morrow, Secretary, Department of Human Resources, State of North Carolina; A. Craig Phillips, State Superintendent of Public Instruction, State of North Carolina; David Bruton, Chairman, North Carolina State Board of Education; Hosea C. Brower, Director, Samarkand Manor, Division of Youth Services, Department of Human Resources, State of North Carolina; C.B. Hayslett, Director, C.A. Dillon School, Division of Youth Services, Department of Human Resources, State of North Carolina; Field Montgomery, Director, Cherry Hospital, Division of Mental Health, Mental Retardation and Substance Abuse Services, Department of Human Resources, State of North Carolina; John A. Williams, State Budget Officer, State of North Carolina; J.A. Porter, Controller, Department of Public Instruction, State of North Carolina; George Bason, District Court Judge, 10th Judicial District, State of North Carolina; Larry T. Black, District Court Judge, 26th Judicial District, State of North Carolina, Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
Robert D. McDonnell, Charlotte, N.C., for Willie M.
John A. Decker, Carolina Legal Assistance for Mental Health, Raleigh, N.C., for Jeanette M.
Loren M. Warboys, Elizabeth J. Jameson and Mark I. Soler, Juvenile Justice Legal Advocacy Project, San Francisco, Cal., for Tom H.
J. Jerome Hartzell, Akins, Mann & Pike, Raleigh, N.C., for Timothy B.
Carolina Legal Assistance for the Mentally Handicapped, Raleigh, N.C., for Singer.
Everette Noland, Steven Mansfield Shaber, William F. O'Connell, N.C. Dept. of Justice, Raleigh, N.C., for Hunt.
E. Osborne Ayscue, Jr., Helms, Mulliss & Johnston, Charlotte, N.C., for Bason and Black.
William Trott, Young, Moore, Henderson & Alvis, Marci L. White, Raleigh, N.C., Dr. James D. Clements, Atlanta, Ga., Robert E. Bridges, J. David Jones, Donald E. Taylor, Carolyn I. Thornton, pro se., for Review Bd.
SECOND INTERIM FEE AWARD
Plaintiffs' counsel filed a motion for award of attorneys' fees, defendants responded to the motion, and plaintiffs' counsel filed a reply. Parties notified the court that no hearing was needed because the parties' positions were fully set forth in the briefs. The court, in its discretion and after review of the file, determines that fees for plaintiffs' counsel should be awarded and that the amounts set out below for such fees are reasonable.
In setting attorneys' fees, the court is required to consider twelve guidelines originally set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and adopted by the Fourth Circuit Court of Appeals in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir.1978). The Fourth Circuit, in a later case, Anderson v. Morris, 658 F.2d 246 (4th Cir.1981), reviewed the manner in which the Johnson guidelines are to be applied by district courts. A base amount for the fee award is to be determined by multiplying the number of hours reasonably expended on the case by the customary hourly rate of compensation (guidelines one and five). This amount is then adjusted up or down by the court on the basis of the other Johnson factors. In accord with plaintiffs' counsel's request, a decision on the amount of this adjustment will be postponed until the determination of the final fee award.
Following that practice, I make findings as follows:
1. The time and labor expended. — Plaintiffs document 1,339.10 hours spent on this case by eight different lawyers, and 8.0 hours of paralegal time, for the 20-month period from November, 1980, until June, 1982. That time has been spent implementing the stipulations agreed to by the parties, monitoring defendants' compliance with those stipulations, and litigating contested issues about the meaning of those stipulations.
Defendants object to an award of fees for total hours spent because (1) plaintiffs did not prevail in the litigation of class membership issues, and (2) some hours spent were wasteful, duplicative, or devoted to matters unrelated to the litigation.
Defendants object to plaintiffs' counsel recovering for 307 hours of time spent litigating two issues which arose after the consent judgment was entered — whether the class included (1) children confined in Department of Correction facilities (288.55 hours), and (2) persons who had reached their eighteenth birthday after September 2, 1980, but before being afforded appropriate services by the defendants (18.45 hours). Plaintiffs lost the age issue before the district court. Plaintiffs won the Department of Correction (DOC) issue before the district court, but lost on appeal. The Appeals Court entered an order that each side would bear its own costs.
In Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court held that:
... the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised.
___ U.S. at ___, 103 S.Ct. at 1943 (emphasis added).
Plaintiffs are the prevailing parties in this litigation. The suit resulted in a consent judgment providing millions of dollars worth of appropriate services to Willie M. class members. Proceedings brought by the plaintiffs to enforce defendants' compliance with the stipulations do not involve separate and distinct claims, but involve claims integrally related to the effective and appropriate provision of services mandated by the consent judgment.
Plaintiffs' counsel represent the class, as set out in the original complaint. The Review Panel, an independent group set up to oversee implementation of the stipulations, raised questions about whether the class included children confined in DOC facilities or persons who had aged out of the class before being provided services. A literal reading of the description of the class contained in the complaint could reasonably result in the inclusion of both groups of persons in the class. Plaintiffs' counsel were under an ethical obligation not to agree to an understanding of the stipulations which would prevent possible class members from receiving services. See Ethical Consideration 7-12 of the A.B.A. Code of Professional Responsibility; Cf., Fed.R. Civ.P. 23(a)(4).
Plaintiffs won substantial relief in this lawsuit; claims about the scope of the class are integrally bound to the implementation of that relief. Plaintiffs' counsel had an ethical obligation to litigate the issues in question; the time was reasonably expended and should be compensated. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 636 (6th Cir.1979); Disabled in Action v. Mayor and City Council of Baltimore, 685 F.2d 881, 886 (4th Cir.1982); Rivera v. City of Riverside, 679 F.2d 795, 797 (9th Cir.1982); Seigal v. Merrick, 619 F.2d 160, 164-65 (2d Cir.1980).
The defendants argue that an award of costs on appeal is a prerequisite to the award of fees for appellate work, citing Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982). This court declines to follow Buian. The circuits are split on the issue of whether a motion for attorneys' fees under § 1988 should be treated as a motion for costs or as a motion on an independent and collateral issue. The Fourth Circuit has not directly addressed the issue.
This court finds persuasive the reasoning of the eighth and ninth circuits that attorneys' fees are an independent and collateral issue. Metcalf v. Borba, 681 F.2d 1183 (9th Cir.1982); Obin v. District No. 9, International Association of Machinists and Aerospace Workers, 651 F.2d 574 (8th Cir.1981). Under Fed.R.App.P. 39 and Fed.R.Civ.P. 54(d), costs are easily ascertained, may be assessed by the clerk, and rarely give rise to any dispute or appeal. On the other hand, fees are assessed by the district court after thorough consideration of the criteria laid out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Further, a determination of fees usually involves consideration of briefs and affidavits from the attorneys. Frequently, hearings are held. The award of fees is often bitterly contested on appeal.
The potential amount of the fees award, the varied factors which must be considered by the court in reaching the fees decision, and the crucial role of the judge and parties in reaching that final determination render the fees/costs comparison strained at best.
White v. New Hampshire Department of Employment Security, 629 F.2d 697, 703 (1st Cir.1980), rev'd on other grounds, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), quoted with approval in Metcalf v. Borba, 681 F.2d at 1182; see also, Obin v. District No. 9, 651 F.2d at 580.
This court agrees with the conclusion of the eighth and ninth circuits that, although § 1988 describes attorneys' fees as costs, that label does not carry over to other provisions of the United States Code and the Federal Rules of Civil Procedure. Metcalf v. Borba, 681 F.2d at 1187; Obin v. District No. 9, 651 F.2d at 580; Cf. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (). The Court of Appeals...
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...forum to determine total cost and fees, including attorney's compensation, for prevailing party in that case); Willie M. by Singer v. Hunt, 564 F.Supp. 363 (W.D.N.C.1983), aff'd as modified, 732 F.2d 383 (4th Cir.1984) (specifically rejecting Buian rationale). To the contrary, the relevant ......
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