UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-20692
BARBARA COLEMAN,
Plaintiff-Appellee,
VERSUS
HOUSTON INDEPENDENT SCHOOL DISTRICT; ANDRE HORNSBY; ANITA ELLIS; and PARLEE CRAWFORD,
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Texas (H-95-CV-3942)
November 8, 1999 Before SMITH, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:*
Defendants appeal from the district court’s order granting
attorney fees in the amount of $107,000 and costs in the amount of
$4,947.43. We vacate the district court’s order granting attorney
fees and render judgment reducing the amount of the fee award.
I. BACKGROUND
Houston Independent School District teacher Barbara Coleman
sued HISD, district superintendent Andre Hornsby, Ryan Middle
School principal Anita Ellis, and Jones High School principal
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Parlee Crawford, alleging that she was denied a position as an
assistant principal at both Ryan Middle School and Jones High
School because she is white, in violation of the Equal Protection
Clause and 42 U.S.C. §§ 1981, 1983 and 1985. Coleman’s theory of
the case was that HISD was exercising a racial preference in favor
of Hispanic administrators.
Coleman’s complaint identified two separate incidents of
intentional discrimination; she named HISD, Hornsby, and Ellis with
respect to the district’s failure to give her a position as the
assistant principal of Ryan Middle School, and named HISD, Hornsby,
and Crawford with respect to the district’s failure to give her a
position as an assistant principal at Jones High School. After
substantial discovery and several motions hearings, defendant
Crawford was granted qualified immunity. Defendant Hornsby was
also granted qualified immunity, but only as to Coleman’s claims
that she was denied an assistant principal position at Jones High
School. Defendants Hornsby and Ellis were denied qualified
immunity with respect to Coleman’s claims that she was denied a
position at Ryan Middle School.
Defendant Ellis, but not Hornsby, appealed the district
court’s denial of qualified immunity to this Court, which resulted
in a published opinion reversing the district court’s denial of
qualified immunity on narrow legal grounds. See Coleman v. City of
Houston, 113 F.3d 528, 534-35 (5th Cir. 1997). We did not,
however, render judgment granting Ellis qualified immunity. To the
contrary, the Court expressly left open the question of whether
2 other grounds might exist for denying qualified immunity on remand.
Id. The district court did not dismiss the claims against Ellis on
remand, and those claims remained in the suit, along with Coleman’s
claims against HISD and Coleman’s claims that Hornsby discriminated
against her with respect to an assistant principal position at Ryan
Middle School.
Coleman then settled the case. The settlement afforded
Coleman: (1) a permanent administrative position as an assistant
principal; (2) an administrator’s contract that would qualify her
for further promotions; and (3) compensation in the form of back
pay for the time period during which she was denied a promotion.
The settlement did not otherwise provide for the recovery of
compensatory or punitive damages.
The parties were unable to agree on the amount of attorney
fees that Coleman was entitled to recover as the “prevailing
party,” see 42 U.S.C. § 1988, and Coleman filed a petition for fees
and costs in the district court in March 1998. At that time, the
case had been pending for almost three years. Coleman requested
$159,597.75 in attorney and support staff fees and $4,947.43 in
costs.2
Coleman’s request included attorney fees in the amount of
2 Coleman’s initial fee request actually requested $107,131 in attorney fees, to be enhanced by a 1.5 multiplier for a total of $160,696.50 in attorney fees. The figures in the original petition were based upon an erroneous calculation of the total number of hours set forth in the supporting documentation. Coleman later submitted a page correcting the number of hours and total amount of billed fees to $ 106,398.59. Coleman did not, however, correct the total request to reflect the lower figure of $159,597.75 after the multiplier was applied.
3 $85,962.50, including $73,062.50 for the services of partners
Stuart and Carol Nelkin (calculated as 208.75 hours at
$350.00/hour), $9,350 for the services of first-year associate
Kenneth Krock (calculated as 46.75 hours at $200.00/hour), and
$3,550 for the services of an unidentified associate, “MFH”
(calculated as 17.75 hours at $200.00/hour). Coleman also
requested $19,900 for the work of four para-professionals,
including $12,700 for work done by law clerk Kenneth Krock before
he passed the bar exam (calculated as 158.75 hours at $80.00/hour),
$5,500 for the work of paralegal “EBB” (calculated as 68.75 hours
at $80.00), $960 for the work of paralegal “WSL” (calculated as 12
hours at $80.00/hour), and $740 for the work of paralegal “CLC”
(calculated as 9.25 hours at $80.00). As a final element, Coleman
requested $536 for the overtime services of certain clerical staff.
Coleman also argued that applicable precedent justified application
of a 1.5 multiplier as an enhancement to the requested lodestar
amount of $106,398.50, for a total fee request of $159,597.75, plus
the $4,947.43 in costs and expenses.
The defendants responded with lengthy and specific objections
to the fee petition. With respect to the number of hours
reasonably expended, the defendants argued that the district court
should exclude from any fee award: (1) hours expended on, or with
certain limited exceptions, during the prior Fifth Circuit appeal;
(2) duplicative hours billed by a law clerk for attending, rather
than conducting or participating in, depositions; (3) duplicative
hours billed by Stuart Nelkin for certain client communications;
4 (4) unnecessary hours spent discussing unrelated or tangentially
related issues with the Texas Comptroller or the press; (5)
unnecessary hours billed for “legal research” before the first
pretrial conference; (6) excessive hours billed as client
communications; (7) unjustified separate billings for clerical
staff overtime; and (8) several hours billed by paralegal staff at
$80.00/hour for “filing documents.” With respect to the reasonable
hourly rate for participating attorneys, the defendants argued that
the Nelkins’ $350.00/hour rate was excessive, even for well-
qualified lawyers experienced in the civil rights area. The
defendants further argued that the $200.00/hour rate billed by the
newly-graduated, first-year associate Kenneth Krock and the
unidentified “MFH” was excessive.
Following a brief contested hearing on the matter, the
district court awarded Coleman $107,000 in attorney and support
staff fees and $4,947.43 in costs. The district court’s award of
attorney fees approximated the total number of hours requested at
the hourly rates submitted,3 but reduced Coleman’s $159,597.75
request by refusing to allow the requested 1.5 multiplier.
HISD and the individual defendants appeal. The defendants
concede Coleman is entitled to recover some attorney fees, but
argue by way of various categorical and specific challenges that
3 Coleman’s corrected request, excluding any multiplier, was in the amount of $106,398.50, plus $4,947.43 in costs, for a total of $111,345.93. The record does not reflect, either in the relevant pleadings or in the transcript of the hearing on attorney fees, how the district court reached the final award figure of $107,000 plus costs.
5 the award of attorney and support staff fees should be reduced to
$20,959.50. Defendants make no challenge to the amount of costs
awarded, and Coleman has not cross-appealed the district court’s
refusal to apply a 1.5 multiplier to enhance the amount of billed
fees. Having reviewed Coleman’s fee petition in light of the
record and the applicable precedent, we conclude that the district
court either ignored or failed to adequately address certain merit-
worthy objections raised by the defendants when making the award of
attorney fees. We therefore vacate the district court’s order
granting Coleman $107,000 in attorney fees plus $4,947.43 in costs
and render judgment reducing the award of fees as set forth in this
opinion.
II. APPLICABLE LEGAL PRINCIPLES
This Circuit has defined a two-step process for determining
“reasonable” attorney fees pursuant to 42 U.S.C. § 1988. First,
the district court must calculate a lodestar fee, which is the
product of the number of hours reasonably expended on the case and
the hourly rate that is reasonable for the participating lawyers.
See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir.
1998). The lodestar determination is not mechanistic, and the
district court’s determination of the lodestar amount should not be
guided solely by the billing records or the rates requested in the
fee petition. See, e.g., Hensley v. Eckerhart, 103 S. Ct. 1933,
1939-40 (1983); Abrams v. Baylor College of Medicine, 805 F.2d 528,
536 (5th Cir. 1986). Rather, the district court is required to
6 identify from the fee petition those hours that were “reasonably”
expended on the litigation. When making that determination, the
district court is obligated to scrutinize the billing records
carefully and to exclude excessive, duplicative, or otherwise
unnecessary entries. See City of Riverside v. Rivera, 106 S. Ct.
2686, 2691 (1986); Hensley, 103 S. Ct. at 1939; Abrams, 805 F.2d at
536. The district court should also consider whether the work
performed was “‘legal work in the strict sense,’ or was merely
clerical work that happened to be performed by a lawyer.” Abrams,
805 F.2d at 536 (quoting Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717 (5th Cir. 1974)).
Similarly, the district court must determine reasonable hourly
rates for the billing attorneys or paralegals. A reasonable hourly
rate is determined with reference to the prevailing market rate in
the relevant legal community for similar work. See Leroy v. City
of Houston, 906 F.2d 1068, 1079 (5th Cir. 1990). While the hourly
rate must be “adequate to attract competent counsel,” the “measure
is not the rates which lions at the bar may command.” Id.
(internal quotations omitted). The burden of demonstrating
reasonableness is on the fee applicant. See id. Factual deter-
minations relating to the number of hours reasonably expended and
the reasonable hourly rate are reviewed for clear error. See
Migis, 135 F.3d at 1047.
In the second step, the district court must consider whether
the circumstances of the case merit an upward or downward
adjustment of the lodestar amount. That determination is informed
7 by a consideration of the twelve factors defined in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974).
Those factors are: (1) the time and labor required; (2) the novelty
and difficulty of the legal issues; (3) the skill required to
perform the legal service properly; (4) the preclusion of other
employment by the attorney as a result of taking the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or other circumstances; (8) the
monetary amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) whether
the case is undesirable; (11) the nature and duration of the
professional relationship with the client; and (12) awards in
similar cases. See, e.g., Rivera, 106 S. Ct. at 2691 n.3. The
Johnson factors are favorably cited in both the House and Senate
Reports accompanying 42 U.S.C. § 1988, and have likewise been
adopted by the Supreme Court. See, e.g., id. at 2691.
The Johnson factors are more than just a laundry list of
factors to be systematically passed upon once a determination of
the lodestar amount is made. Indeed, this Court has emphasized
that the Johnson factors are relevant to and may often “govern the
determination of reasonableness itself.” Abrams, 805 F.2d at 536.
The district court’s application of the Johnson factors, its
decision whether to depart from the lodestar amount, and thus, the
ultimate fee award, are reviewed for an abuse of discretion. See
Migis, 135 F.3d at 1047; Louisiana Power & Light Co. v. Kellstrom,
50 F.3d 319, 329 (5th Cir. 1995).
8 In this appeal, the defendants challenge the district court’s
determination of the reasonable number of hours expended and its
final determination that the fee request was reasonable.
III. THE REASONABLE NUMBER OF HOURS
The district court did not enter an order addressing the
defendant’s specific objections to Coleman’s fee petition, and the
transcript of the brief hearing in the district court provides the
only discussion of the district court’s reasoning. The district
court first held that Coleman was a “prevailing party” and
therefore entitled to attorney fees. See 42 U.S.C. § 1988. The
defendants do not directly challenge that finding on appeal. The
district court then rejected any approach that would require a
segregation of successful arguments as opposed to unsuccessful
arguments for the purpose of parsing the fee award. Using that
rationale, the district court addressed and rejected the
defendants’ argument that Coleman should not recover for hours that
were billed for or during defendant Ellis’ appeal from the district
court’s order denying qualified immunity. The district court did
not otherwise address the defendants’ specific challenges to the
number of hours reasonably expended on the litigation.
A. The Prior Appeal
On appeal, the defendants argue that Coleman should not
recover for any hours expended on the Fifth Circuit appeal, which
the defendants say Coleman “lost,” and defendant Ellis “won.”
9 As an initial matter, we note that Ellis did not unambiguously
“win” the appeal. While it is true that this Court reversed the
district court’s order denying summary judgment, our prior opinion
is narrowly drafted to find error with the assumption used by the
district court to deny qualified immunity; that is, that Ellis
might still be liable to Coleman even if Ellis did not
intentionally discriminate against Coleman because Hornsby’s
discriminatory intent, if any, could be imputed to Ellis. See
Coleman, 113 F.3d at 535 (“[W]e emphasize that our decision in this
interlocutory appeal is limited to the narrow legal proposition
that a district court may not impute the alleged discriminatory
motivations of a superior to a subordinate for purposes of the
qualified immunity analysis.”). The opinion does not render
judgment that Ellis is entitled to qualified immunity, and in fact,
expressly leaves open the question of whether an order denying
qualified immunity might otherwise be appropriate, stating:
[W]e express no opinion as to whether the court erred in assuming that Ellis did not intentionally discriminate against Coleman; nor do we consider whether a genuine issue of material fact exists concerning the allegations of intentional discrimination on the part of Ellis. On remand, the district court is free to entertain this alternate ground for denying qualified immunity.
Id. (footnote omitted).
On remand, Ellis did not seek, and was not granted, dismissal
from the case in her individual capacity. Thus, Coleman’s claims
against Ellis were live claims at the time the parties reached
settlement. Indeed, Coleman’s claims against HISD, Ellis, and
Hornsby as to the Ryan Middle School position were the only live
10 claims remaining to be settled when the parties agreed to settle
the case. Crawford and Hornsby had already been granted qualified
immunity as to Coleman’s claims relating to the Jones High School
position. The defendants’ argument that the appeal was an
unqualified success for their side is without merit. Thus, it is
reasonable to say, on the force of the settlement, that Coleman
“prevailed” in her claims against Ellis.
Moreover, there is ample authority for the proposition that a
partially prevailing party may recover all reasonably incurred
attorney fees, even though the party did not prevail on all claims,
as to all defendants, or as to all issues in a matter. See, e.g.,
Hensley, 103 S. Ct. at 1940 (1983); Kellstrom, 50 F.3d at 327; Cobb
v. Miller, 818 F.2d 1227, 1233 (5th Cir. 1987). When the plaintiff
has prevailed as to some claims, and failed as to others, the key
is whether the successful and unsuccessful claims are based upon
the same facts and legal theories, i.e. whether the claims are
related. See Hensley, 103 S. Ct. at 1940. When the successful and
unsuccessful claims involve a “common core of facts” or are based
upon “related legal theories,” then attorney fees incurred in the
presentation of unsuccessful claims are recoverable on the theory
that they contributed to the plaintiff’s ultimate success. Id.
Similarly, a prevailing party may not recover for hours devoted
solely to claims against defendants as to whom the plaintiff did
not prevail. See Kellstrom, 50 F.3d at 327. “But when claims
against multiple parties share a common core of facts or related
legal theories, a fee applicant may claim all hours reasonably
11 necessary to litigate those issues.” Id. (internal quotations
omitted).
In this case, Coleman named HISD, Hornsby, and Ellis in her
claim that she was denied a position at Ryan Middle School.
Although Ellis appealed the district court’s denial of qualified
immunity from suit, she was never granted qualified immunity or
otherwise dismissed from the suit prior to settlement of the claims
against her. Thus, the claims against Ellis at the time of appeal
and the claims ultimately settled in Coleman’s favor are identical.
We conclude that the district court did not clearly err by
including as a category certain hours billed as a consequence of
Ellis’ prior appeal on the issue of qualified immunity.
Neither did the district court clearly err by including time
billed during the pendency of the appeal. The defendants argue
that Coleman should not be able to recover for hours billed while
the appeal was pending because the case was stayed in the district
court between March 29, 1996 and May 19, 1997, when this Court
issued its opinion in Coleman.
We disagree. Ellis appealed in April 1996. Although the case
was later closed for statistical purposes in July 1996, Coleman
filed a motion for leave to amend her pleadings, together with an
amended complaint, while the appeal was pending in January 1997.
Moreover, Coleman’s attorneys were also pursuing an EEOC right to
sue letter while the appeal was pending.
Defendants acknowledge that Coleman was continuing work on an
amended complaint and the EEOC right to sue letter, and do not
12 argue that the time billed for those activities should be excluded
from Coleman’s recovery. Rather, the defendants argue that time
not clearly tied to either the Fifth Circuit appeal, the amended
complaint, or the EEOC right to sue letter should be excluded.
Having conducted an independent review of the billing records,
we are able to find only 20 otherwise recoverable attorney hours
(11.75 billed by Stuart Nelkin at $350.00 and 8.25 billed by
Kenneth Krock at $200.00/hour), and 6.5 otherwise recoverable
support staff hours (all billed by Kenneth Krock before he was
admitted to the bar) that fall within this category. Most of these
hours are billed for either meeting with or reviewing
correspondence from Coleman or opposing counsel. Many of these
hours are clustered around significant events occurring in the
appeal, such as the designation of the appellate record, the filing
of the appellate briefs, and oral argument. While more detailed
entries specifying the reason for certain calls or meetings would
certainly have been desirable, we cannot, on the basis of this
record, conclude that the district court erred by including these
hours as a category of recoverable time.
For the foregoing reasons, we hold that the district court did
not clearly err by refusing to reduce Coleman’s request for
attorney and support staff fees by excluding hours billed as a
consequence of, or during the prior appeal of this case to our
Court.
B. Duplicative and Unnecessary Entries
13 Defendants argue that Coleman should not be permitted to
recover attorney fees for hours that law clerk Kenneth Krock spent
attending, rather than participating in, or conducting depositions.
The billing records reflect that Krock spent at least 17 hours
attending depositions conducted by one of the Nelkins. Krock also
billed an additional six hours preparation time for the
depositions. The defendants challenge this time as duplicative and
unnecessary.
We agree. Coleman does not contend that Krock actively
participated, even in a supporting role, during the deposition.
“[H]ours spent in duplicative activity or spent in the passive role
of an observer while other attorneys perform[]” is generally not
recoverable. Flowers v. Wiley, 675 F.2d 704, 705 (5th Cir. 1982).
We conclude that the 17 hours billed as observation time should
have been excluded from the determination of reasonable hours by
the district court. That principle does not, however, require
exclusion of Krock’s preparation time, which could have been
legitimately incurred preparing materials for the partner’s use.
For the foregoing reasons, the number of hours submitted for
the work of law clerk Krock will be reduced by 17 hours in the
final fee award.
Defendants also object to certain facially duplicative
entries. For example, defendants challenge Stuart Nelkins’ dual
entries for client meetings on January 31, 1996, and for reading a
client letter on May 22, 1996. Having reviewed the record, and the
arguments of the parties, we agree that these entries are suspect.
14 A total of one hour will be deducted from the total number of hours
billed by Stuart Nelkin to account for these duplications.
Defendants also challenge an August 14, 1995 entry for 4.5
hours of “legal research” performed by law clerk Kenneth Krock.
Defendants argue the research was unnecessary, and alternatively,
that the entry is too vague to support recovery.
We disagree. There is nothing patently unreasonable about
conducting preliminary research on a case once it is initiated. In
addition, we have declined to find clear error when an award was
premised upon similar entries. See Kellstrom, 50 F.3d at 327. The
district court’s inclusion of the 4.5 hours billed by Kenneth Krock
on August 14, 1995 was not clearly erroneous.
Defendants also challenge the district court’s decision to
permit Coleman to recover for hours expended on what they claim are
unrelated matters. When investigating this case, Coleman’s lawyers
discovered that a Hispanic group had filed suit against HISD
alleging system-wide discrimination. Coleman’s position in this
litigation was that HISD inappropriately responded to that suit and
political pressure by exercising a racial preference in favor of
Hispanics. Defendants object to several hours billed to research
news articles and to obtain videotape records of the Hispanic
community’s protests against HISD.
Coleman’s counsel also learned that the Texas Comptroller was
conducting an audit of HISD, including their hiring and promotion
policies. Counsel claims that they were contacted by the
Comptroller for information about Coleman’s case and decided to
15 cooperate because they thought any resulting report would be
beneficial to her case. Defendants object to several hours billed
for conversations with the Texas Comptroller and for making copies
for the Comptroller.
Defendants argue that none of this time is recoverable because
it was not spent “on the litigation” of the matter, citing several
district court cases, including Watkins v. Fordice, 807 F. Supp.
406 (S.D. Miss. 1992) (holding that “plaintiffs' attorneys'
legislative lobbying work and their work relating to the Justice
Department's review of the State's Section 5 submission were not
‘necessary’ to advance the litigation.”). The cited cases prohibit
recovery for tangentially related investigation that benefits or
may benefit the attorney in more than one case. There is
undoubtedly a fine line between necessary investigation and
unjustified over billing. But counsel’s investigation of the suit
by Hispanics against HISD was clearly related to her theory that
HISD was systematically favoring Hispanic administrators. There
is, therefore, no error in the district court’s decision to include
the relatively few hours at issue as part of a reasonable
investigation of Coleman’s claims.
C. Client Communications
Defendants also argue that Coleman’s attorneys billed an
excessive amount of time for client communications. Coleman’s
counsel billed approximately 66 hours for activities that can be
characterized as client communications, such as meetings, telephone
16 calls, and either preparing correspondence to or reviewing
correspondence from the client.4 Defendants note that Coleman was
not deposed and that she was not asked to respond to any written
discovery. They therefore suspect that counsel was merely holding
Coleman’s hand and request that the time be reduced by fifty
percent. Defendants are particularly perturbed by the lengthy
phone calls and meetings because they believe many occurred during
normal working hours when HISD was already paying Coleman to work.
We consider this a very close issue. Attorneys are required
to exercise sound billing judgment, see Hensley, 103 S. Ct. at
1939-40, and the inclusion in this case of a large number of hours
for client communications, without any elaboration with respect to
the purpose or aim of the communication, and without any mention of
the objective to be sought with respect to such communication, is
sufficient to call the judgment of the billing attorneys into
question. On the other hand, we note that many of the client
communications billed in this case can be tied to significant
events in the litigation. To the extent that client communication
became excessive when the need arose, we note that only about one-
third of the hours billed as client communications were billed by
a partner at the higher $350.00/hour rate. Most of the hours
billed as client communications were in fact billed by support
staff rather than by attorneys.
4 As noted in the defendants’ briefs, an exact determination of the time spent on client communication is not possible because entries containing multiple tasks are not segregated.
17 It may well be that Coleman was more demanding than good
billing judgment allows. In any event, this case comes about as
close to the boundary between justifiable client communication and
indulgent over billing as we can imagine. Nonetheless, we are
ultimately persuaded by the deferential standard of review that we
are not able, on the basis of this record, to second-guess the
district court’s judgment. While we may disagree with respect to
the permissible number of hours that should have been expended
communicating with Ms. Coleman, we are not able to say that the
district court’s determination of the reasonable number of hours in
this regard is clearly erroneous. Likewise, we are not able to say
that the district court’s refusal to reduce the number of hours
reasonably requested was an abuse of discretion. For these
reasons, we conclude that the district court’s refusal to reduce
the number of hours billed as client communications is not clearly
erroneous.
D. Clerical Overtime
Defendants challenge 23.25 hours billed by clerical staff.
All of this time was billed as overtime. Defendants argue that,
without regard to the issue of whether clerical staff time can ever
be separately billed, there is no factual or legal justification
for permitting the Nelkins’ office staff to be compensated for
overtime. Neither the fee petition nor the briefs explain why
overtime was necessary. In addition, the district court expressly
noted, as part of its Johnson analysis, that there were no unusual
18 time restrictions in the case.
We agree. The 23.25 hours billed as clerical staff overtime
will be deducted from the total number of compensable hours. Our
holding in this regard eliminates the need to address whether the
hourly rates requested for those staff members were reasonable.
E. Clerical Work Performed by a Paralegal
Finally, the defendants raise certain objections to hours
billed by paralegal “WSL” at $80.00/hour for “filing documents.”
Paralegal expense is recoverable only to the extent that the work
performed is similar to that typically performed by lawyers. Allen
v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. Unit B
1982). Otherwise, paralegal expense is an unrecoverable overhead
expense. See id. “Of course, purely clerical or secretarial tasks
should not be billed at a paralegal rate, regardless of who
performs them.” Missouri v. Jenkins, 109 S. Ct. 2463, 2472 n.10
(1989).
Neither the record nor applicable precedent supports the use
of a relatively expensive paralegal to file documents. The 3.5
hours billed by paralegal “WSL” for “filing documents” will be
deducted from the total number of hours in the fee petition.
On the basis of the foregoing analysis the district court’s
determination of the number of hours reasonably billed will be
reduced as follows: Stuart Nelkin’s hours will be reduced from 194
to 191; Carol Nelkin’s hours will remain the same at 14.75 hours;
Kenneth Krock’s hours as an attorney will remain the same at 46.75
19 hours; “MFH”’s hours will remain the same at 17.75 hours; Kenneth
Krock’s hours as a law clerk will be reduced from 158.75 to 141.75;
paralegal “WSL”’s hours will be reduced from 12 to 8.5; paralegal
“EBB”’s hours will remain the same at 68.75; paralegal “CLC”’s
hours will remain the same at 9.25; and the 23.25 hours billed as
clerical overtime will be deleted entirely.
IV. THE REASONABLE HOURLY RATE
We must next consider the district court’s determination that
the hourly rates requested by Coleman’s counsel were reasonable.
Coleman requested that partners be compensated at the rate of
$350.00/hour, that associate attorneys be compensated at the rate
of $200.00/hour, and that the law clerk and the paralegals be
compensated at the rate of $80.00/hour. Defendants objected to
these rates, submitting evidence that the maximum reasonable
billing rate for an experienced partner would be about
$240.00/hour, while relatively new associates should be billed at
only $125.00/hour. The district court held that the highest
reasonable hourly rate would ordinarily be $250.00, but that
“because of the contingency,” the rate of $350.00/hour for
partners, with similar upward adjustments in the rates for
associates and paralegals, was justified.
Based upon our review of the record, we agree with the
district court that the reasonable hourly rates in this case are
much lower than those requested by Coleman. In our view, a
reasonable hourly rate for similar work in the relevant legal
20 market would place partner compensation at $250.00/hour, associate
compensation for Kenneth Krock and “MFH” at $125.00/hour, and law
clerk and paralegal compensation at $65.00/hour. We likewise agree
with the district court that some upward adjustment for contingency
is appropriate. Coleman presented evidence that the complexity of
civil rights litigation and the delay attending payment of the fees
in civil rights litigation potentially deters accomplished
practitioners from accepting such cases on a contingent fee basis.
Coleman claimed in the district court, and again on appeal, that
while she initially agreed to pay her attorney fees, the payment of
fees became, at some point, contingent upon a successful outcome.
While the terms of any contract engaging the attorneys’ services is
not determinative with respect to the reasonable hourly rate that
may be used to calculate a lodestar amount, we agree with Coleman
that the inherent risk of loss and the lengthy delay in recovering
attorney fees are material to our determination of a reasonable
hourly rate. See Blanchard v. Bergeron, 109 S. Ct. 939, 944-46
All things considered, however, and with due consideration of
the record evidence, we conclude that those factors justify a more
modest increase for partner compensation from $250.00/hour to
$275.00/hour, in associate compensation from $125.00/hour to
$137.00/hour, and in law clerk and paralegal compensation from
$65.00/hour to $72.00/hour. The district court’s decision setting
the reasonable hourly rates much higher because of a "contingency
factor" was clearly erroneous. The lodestar calculation carried
21 out below will be based upon those rates.
V. Overall Reasonableness under Johnson
Defendants also make several challenges to the overall award
on the basis of the Johnson factors. The most critical Johnson
factor is the degree of success obtained. See Hensley, 103 S. Ct.
at 1941. Defendants maintain that Coleman’s recovery was minute in
comparison to what she sought.
We disagree. The district court ordered HISD to place Coleman
in an administrative position comparable in status and pay to an
assistant principal position. Coleman’s salary in that position
was more than $7,000 higher than her teacher salary. At the
conclusion of the suit, the settlement provided that Coleman would
be given such a position permanently. Defendants also argue that
Coleman’s recovery of attorney fees is unreasonable because it is
disproportionate to her monetary recovery, citing Migis v. Pearle
Vision, Inc., 135 F.3d 1041 (5th Cir. 1998).
The Supreme Court has flatly rejected a bright-line rule that
attorney fees under § 1988 must be proportionate to the damages
recovered. See Rivera, 106 S. Ct. at 2697 (“We reject the
proposition that fee awards under § 1988 should necessarily be
proportionate to the amount of damages a civil rights plaintiff
actually recovers.”). Moreover, the extent of success is not
measured solely by monetary damages. See id. (“a civil rights
plaintiff often secures important social benefits that are not
reflected in nominal or relatively small damages awards.”). Thus,
22 while the amount of monetary damages recovered should be considered
as one of the twelve Johnson factors, it should not be given
determinative effect where the plaintiff has received other
meaningful relief.
Coleman’s victory in this case was substantial enough to
support the award of fees as modified by this opinion. We find no
abuse of discretion in the district court’s rejection of the
defendants’ arguments to the contrary.
CONCLUSION
The district court’s award of attorney and support staff fees
in the amount of $107,000, plus $4,947.43 in costs and expenses is
VACATED and judgment is RENDERED granting Coleman attorney and
support staff fees in the amount of $81,851.75, plus $4,947.43 in
costs and expenses.