Doe v. City of Albuquerque

Filing 54

[9937627] Motion filed by Appellee Mr. John Doe for attorney fees. Served on: 01/26/2012. Manner of service: ECF/NDA. BKE [Entered: 01/26/2012 02:32 PM]

Case No. 10-2102
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN DOE,
Plaintiff-Appellee,
v.
CITY OF ALBUQUERQUE,
Defendant-Appellant.
_________________________________________________________________
On Appeal from the United States District Court
for the District of New Mexico
The Honorable M. Christina Armijo
United States District Judge
Case No. 08-CV-1041 MCA/LFG
__________________________________________________________________
APPELLEE’S OPPOSED MOTION FOR AN ORDER AWARDING
APPELLATE ATTORNEYS’ FEES, EXPENSES AND COSTS AND
REMANDING TO THE DISTRICT COURT FOR DETERMINATION
_______________________________________________________________
Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.
__________________________________________________________________
Plaintiff-Appellee John Doe, through the undersigned counsel, respectfully
moves this Court for an Order awarding him appellate attorneys’ fees, expenses,
and costs. As grounds, Appellee states:
1. On April 19, 2010, following the district court’s entry of summary judgment
for Plaintiff-Appellee John Doe, Plaintiff-Appellee timely filed in the district

court an Unopposed Motion to Stay Proceedings Relating to Plaintiff’s
Motion for Attorneys’ Fees and Expenses and Plaintiff’s Bill of Costs
(hereinafter “Fee Motion”). See Exhibit 1, attached hereto. In his Fee
Motion, Plaintiff-Appellee John Doe stated the following grounds for the
relief sought therein:
As a matter of judicial economy and efficiency, proceedings in th[e
district court] related to attorneys’ fees and litigation expenses
pursuant to 42 U.S.C. § 1988 and statutory costs should be stayed
pending the resolution of defendant’s appeal [to this Court] on the
merits. If plaintiff prevails on appeal, then the issue of fees and costs,
as well as plaintiff’s appellate fees and costs, may be addressed after
remand in a single proceeding before th[e district court]. If plaintiff
does not prevail on appeal, his entitlement to fees and costs will have
been extinguished and any work undertaken by th[e district court] and
counsel for the parties on the issues of fees and costs in advance of the
resolution of the appeal will have been wasted.
Exhibit 1, at page 2, ¶ 4 (emphasis supplied).
2. Defendant-Appellant City of Albuquerque concurred in Appellee’s Fee
Motion. See, Id. at page 1, ¶ 1.
3. On April 20, 2010, the district court granted Plaintiff-Appellee’s Fee
Motion. See Exhibit 2 (Order), attached hereto.
4. Defendant-Appellant City of Albuquerque appealed the district court’s grant
of summary judgment to Plaintiff-Appellee John Doe. On January 20,
2012, this Court affirmed the district court’s grant of summary judgment to

Plaintiff-Appellee John Doe. See Opinion and Judgment (10-2102), entered
January 20, 2012.
5. As a result, Appellee John Doe is the prevailing party on this appeal;
Defendant-Appellant City of Albuquerque has until February 3, 2012 to file
a motion seeking rehearing from this panel, or rehearing en banc, before the
mandate issues. Given this procedural posture, the instant motion is timely
filed in this Court.
6. For purposes of 42 U.S.C. § 1988, Appellee John Doe has “succeeded on a
‘significant issue in litigation,’” (see, In re Kansas Congressional Districts
Reapportionment Cases, 745 F.2d 610, 612 (10th Cir. 1984), quoting Hensley
v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939 (1983)), specifically, the
First Amendment to the U.S. Constitution in this 42 U.S.C. § 1983 civil
rights action, and thus, as the prevailing party in the district court and on this
appeal, is entitled to an award of reasonable appellate attorneys’ fees and
expenses under 42 U.S.C. § 1988, and statutory appellate costs pursuant to
Fed. R. App. P. 39 and 28 U.S.C. § 1920, in addition to those attorneys’
fees, expenses and costs incurred during litigation in the district court. See
Exhibits 1 and 2.

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7. Accordingly, Appellee John Doe respectfully requests an Order from this
Court granting him reasonable appellate attorneys’ fees, expenses, and costs
pursuant to 42 U.S.C. § 1988, Fed. R. App. P. 39 and 28 U.S.C. § 1920.
8. Further, Appellee John Doe also respectfully requests that, as contemplated
by the parties and consistent with its longstanding practice, this Court
remand to the district court for its determination of those appellate attorneys’
fees, expenses, and costs, along with its determination of fees, expenses and
costs incurred in the district court. See Exhibits 1 and 2. See also, e.g., Roth
v. Green, 466 F.3d 1179 (10th Cir. 2006) (remanding to district court for
determination of appellate attorneys’ fees and costs); Kansas
Reapportionment, 745 F.2d at 614 (same) (citations omitted).
9. Defendant-Appellant City of Albuquerque opposes this motion.
WHEREFORE, Appellee John Doe respectfully requests that this Court grant
the relief sought herein.

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Respectfully submitted,
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, SCHOENBURG &
BIENVENU, LLP
/s/ Brendan K. Egan 1.26.2012
Richard W. Hughes
Brendan K. Egan
Cooperating Attorneys, New Mexico Civil
Liberties Foundation
500 4th Street NW, Suite 400
Albuquerque, New Mexico 87102
[phone]
AMERICAN CIVIL LIBERTIES UNION OF
NEW MEXICO
/s/ Laura Schauer Ives 1.26.2012
Laura Schauer Ives
Managing Attorney
P.O. Box 566
Albuquerque, NM 87103
[phone]
Attorneys for Plaintiff-Appellee

/s/ Philip B. Davis 1.26.2012
Philip B. Davis
Co-Legal Director, ACLU-NM
814 Marquette Avenue, NW
Albuquerque, NM 87102
[phone]
[e-mail]
Plaintiff’s Fee Counsel
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CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that all required privacy redactions have been made and,
with the exception of those redactions, every document submitted in Digital Form
or scanned PDF format is an exact copy of the written document filed with the
Clerk. I also certify that the digital submissions have been scanned on January 26,
2012 for viruses with the most recent version of a commercial virus scanning
program Prevx 3.0 v3.05.220 and, according to the program, are free of viruses.

/s/ Brendan K. Egan 1.26.2012
Brendan K. Egan

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 26, 2012, I filed the foregoing
pleading electronically through the appellate CM/ECF system and caused the
following parties and/or counsel to be served electronically through the CM/ECF
system:
Gregory S. Wheeler
Peter H. Pierotti
Assistant Albuquerque City Attorneys
P.O. Box 2248
Albuquerque, NM 87103
Attorneys for Defendant-Appellant
/s/ Brendan K. Egan 1.26.2012
Brendan K. Egan

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