Birth Control Centers, Inc. v. Reizen

652 F. Supp. 192, 1986 U.S. Dist. LEXIS 16922
CourtDistrict Court, E.D. Michigan
DecidedDecember 4, 1986
DocketCiv. A. No. 80-70508
StatusPublished
Cited by1 cases

This text of 652 F. Supp. 192 (Birth Control Centers, Inc. v. Reizen) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Birth Control Centers, Inc. v. Reizen, 652 F. Supp. 192, 1986 U.S. Dist. LEXIS 16922 (E.D. Mich. 1986).

Opinion

MEMORANDUM OPINION AND ORDER

FEIKENS, District Judge.

Plaintiffs sued for judgment declaring Michigan’s regulation of abortion clinics unconstitutional.1 I rejected plaintiffs’ equal protection claims, but I did invalidate two individual regulations. 508 F.Supp. 1366 (1981). The United States Court of Appeals for the Sixth Circuit affirmed these rulings and, after considering an intervening decision of the United States Supreme Court,2 invalidated seven more regulations. 743 F.2d 352, 360-361, 367-368 (1984). Only three regulations survived attack.3 743 F.2d at 368.

Plaintiffs petition, pursuant to 42 U.S.C. § 1988, for an award of attorney fees. I scheduled a settlement conference for November 10, 1986. After the Assistant Attorney General reported on October 22, 1986 that the Attorney General had denied her authority to settle,4 I adjourned the conference. I am always reluctant to decide issues more efficiently left to negotiation, but the Attorney General’s posture leaves me no choice.

I. PREVAILING PARTY STATUS

Section 1988 authorizes an award only for “the prevailing party.” Defendant makes the specious claim that plaintiffs did not prevail because they failed to invalidate the regulatory scheme as a whole. Plaintiffs need not win everything they seek to justify a fee award; they prevail “ ‘if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978)). By successfully attacking nine individual regulations, plaintiffs easily satisfy this test.

II. LODESTAR ANALYSIS

Section 1988 authorizes “a reasonable attorney’s fee.” The lodestar, which is the product of hours reasonably spent times a reasonable hourly rate, “is presumed to be the reasonable fee.” Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). See also Pennsylvania v. Delaware Valley Citizens’ Council [195]*195for Clear Air, — U.S. -,---, 106 S.Ct. 3088, 3095-3099, 92 L.Ed.2d 439 (1986); Hensley, 461 U.S. at 433-434, 103 S.Ct. at 1939-1940.

A. Hourly Rates

Plaintiffs’ trial counsel, Bette Huster (“Huster”), requests $75 per hour. Appellate counsel, Frank Sussman (“Suss-man”), requests $175 per hour. Defendant admits that Huster’s request is reasonable, but objects to Sussman’s request.

I find both requests reasonable. Both lawyers ask for their customary rate. Huster Affidavit (June 30, 1986) at 115; Sussman Affidavit (July 8, 1986) at II 3(5). Sussman’s rate is reasonably higher than Huster’s rate because he is an abortion litigation expert who has participated personally in landmark Supreme Court litigation and “dozens of abortion-related cases since 1969.” Sussman Affidavit at 113(9). Moreover, Sussman’s request is comparable to effective rates other courts have recently awarded him.5

B. Hours

Huster requests compensation for 339.75 hours. Her two-hour request for August 4, 1980 and her one-hour request for April 24, 1980 are unreasonable because of inadequate description. The August entry contains no description, and the April entry contains only the unintelligible phrase: “Phone call to Lansing re Dentists, Cdrs., etc.” Huster Affidavit (attached time sheets). Her request of 12.75 hours for press briefings is also unreasonable. See, e.g., Zaldivar v. City of Los Angeles, 590 F.Supp. 852, 858 (C.D.Cal.1984), rev’d on other grounds, 780 F.2d 823 (9th Cir. 1986). Huster’s remaining 324 hours are reasonable and compensable. Sussman requests compensation for 81.2 hours, all of which are reasonable and compensable.

Defendant objects to eighteen hours Huster claims for administrative tasks such as scheduling hearings, securing signatures on affidavits, and filing papers with the court. These tasks are compensable. See, e.g., Johnson v. Georgia Highway Express, 488 F.2d 714, 717 (5th Cir. 1974). Although clerical workers are often able to handle these chores, sometimes an attorney’s personal attention is necessary to insure accuracy and reliability. Huster’s claim for a small number of hours at only $75 per hour is reasonable.

Defendant also objects that Huster exhibits lack of billing judgment and inefficiency by claiming 1.5 hours for a file review before filing the complaint, 1.5 hours for review of a four-page opinion, and approximately 60 hours for preparation of trial memoranda. These requests are not facially unreasonable, and defendant submits nothing but insinuation suggesting that a reasonable attorney of Huster’s experience and billing rate would spend less time on these tasks. The requests are reasonable.

Defendant objects to hours claimed by Sussman for two trips between Suss-man’s Kansas City office and Detroit, and insists that plaintiffs should have retained a local attorney. Plaintiffs retained Suss-man because of his unique experience, expertise, and reputation. The few hours he spent traveling between Kansas City and Detroit are reasonable. Cf. Danny Kresky Enterprises v. Magid, 716 F.2d 215, 216-217 (3d Cir.1983) (instructing district court to compensate 56.3 hours spent traveling between attorney’s Philadelphia office and Pittsburgh court where prevailing plaintiff retained attorney because of his experience and expertise).

Defendant also objects to Suss-man’s request for 8.3 hours (including travel time between Kansas City and Detroit) for a June 26, 1982 conference with plaintiffs. Defendant claims the time is unreasonably duplicative because Sussman used it to learn about facts already known to Huster. Plaintiffs justifiably retained ad[196]*196ditional counsel for appeal. Sussman reasonably spent a few hours getting to know his clients, discussing appeal strategy with them, and absorbing basic information about the case.

Finally, defendant objects to Suss-man’s request for 4.6 hours spent seeking an injunction preventing defendant from enforcing the challenged regulations against a non-party clinic during the appeal. Although plaintiffs never moved for class certification, the case directly affects all persons similarly situated to plaintiffs. Moreover, defendant’s counsel assured me in writing that he would not enforce the regulations against plaintiffs during the appeal.6 Under these circumstances, Suss-man’s request is reasonable.

C. Lodestar Calculation

Attorney Hours Rate Lodestar

Huster 324.00 $ 75/hr. $24,300

Sussman 81.20 $175/hr. $14,210

III. ADJUSTMENTS TO THE LODESTAR

A. Reduction

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Cite This Page — Counsel Stack

Bluebook (online)
652 F. Supp. 192, 1986 U.S. Dist. LEXIS 16922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birth-control-centers-inc-v-reizen-mied-1986.