Lee, et al v. Randolph Bd of Ed, et al
Filing
338
ORDER that the plaintiffs' motions for attorney's fees and expenses 305 319 are granted and that the plaintiffs have and recover from defendant Randolph County Board of Education, the sum of $266,600.00 for attorneys' fees and $ 4,715.06 for expenses, for a total of $271,315.06. Signed by Honorable Judge Myron H. Thompson on 8/8/2012. (jg, ) (Main Document 338 replaced on 8/8/2012 to reflect a correct pdf) (jg, ).
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
ANTHONY T. LEE, et al.,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor
and Amicus Curiae,
NATIONAL EDUCATION
ASSOCIATION, INC.,
Plaintiff-Intervenor,
v.
RANDOLPH COUNTY BOARD OF
EDUCATION, et al.,
Defendants.
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CIVIL ACTION NO.
3:70cv847-MHT
(WO)
OPINION AND ORDER
This long-standing Alabama elementary and secondary
school-desegregation case is again before the court, this
time on new motions for attorneys’ fees and expenses
filed by the plaintiffs’ counsel pursuant to 42 U.S.C.
§
1988.
The
plaintiffs’
counsel
seek
a
total
of
$ 364,815.06 from defendant Randolph County Board of
Education.
The court will award $ 271,315.06.
The court will not repeat the extensive history of
this litigation, which is set forth in some detail in
Lee v. Randolph County Bd. of Edu., 885 F. Supp. 1526,
1527-1528 (M.D. Ala. 1995), and which is adopted by the
court today.
extensive
The court will also not set forth again the
law
that
governs
the
award
of
fees
and
expenses, which law is also laid out in detail in the
Randolph County case and which is adopted by the court
today as well.
The court will also not set forth how
this law, in particular the 12 factors articulated in
Johnson v. Georgia Highway Express Company, Inc., 488
F.2d 714 (5th Cir. 1974), and other governing and binding
law, applies to the requested fees and expenses, which
application is also set forth in the Randolph County case
and which the court adopts as well except to the extent
the
circumstances
of
that
case
differ
circumstances now presented to the court.
2
from
the
It is against this factual background that the court
now goes through the following well-established threestep process to determine the allowable fees and expenses
in this case: (1) whether the plaintiffs are prevailing
parties, Randolph County, 885 F. Supp. at 1528; (2) what
the lodestar (the number of hours spent--tempered by
billing judgment--multiplied by a reasonable market rate
in the local area, id.) is; (3) and whether the lodestar
should be adjusted upward or downward.
Id. at 1532.
The plaintiffs’ attorneys are Solomon S. Seay, Jr.,
Kenneth L. Thomas, and Stanley F. Gray.
Seay’s requested
fees (843 hours x $ 400.00 = $ 337,200.00) and expenses
($ 4,501.17) total $ 341,701.17.
Thomas’s requested fees
(27 hours x $ 300.00 = $ 8,100.00) and expenses ($ 89.09)
total $ 8,189.09.
Gray’s requested fees (59.2 hours x
$ 250.00 = $ 14,800.00) and expenses ($ 124.80) total
$14,924.80.
The
fees
and
expenses
for
all
three
attorneys span from 1995 through 2011 and are as follows:
3
Namea
Rates
Hours
Fees
Expenses
Subtotals
Seay
$ 400
843
$ 337,200.00
$ 4,501.17
$ 341,701.17
Thomas
$ 300
27
8,100.00
89.09
8,189.09
Gray
$ 250
59.2
14,800.00
124.80
14,924.80
$ 360,100.00
$ 4,715.06
$ 364,815.06
Totals
The school board does not object to, and, indeed,
essentially
stipulates,
that
the
plaintiffs
are
the
prevailing parties and that they are entitled to recover
fees
and
attorneys.
expenses
for
the
services
of
these
three
The school board also concedes that Seay’s
“contribution to constitutional progress in this state is
without equal,” Response of Defendant (doc. no. 322) at 2,
see
also
Robinson
v.
Alabama
State
Department
of
Education, 727 F. Supp. 1422, 1428, (M.D. Ala. 1989)
(“Seay is generally considered to be, in the area of
school-related litigation, one of the most experienced and
respected
aff’d,
members
in
the
Alabama
legal
community.”),
918 F.2d 183 (11th Cir. 1980) (table); Shuford v.
Alabama State Board of Education, 846 F. Supp. 1511, 1518
(M.D. Ala. 1994) (Seay is “highly respected as one of the
best civil rights attorney in the nation”), and that Gray
4
and
Thomas
attorneys.”
are
“experienced,
absolutely
first
rate
Response of Defendant (doc. no. 322) at 2.
Nevertheless the school board does question whether
Seay should be compensated at $ 400.00 an hour for time he
spent only monitoring this litigation between 1994 and
2011.
An overriding consideration for lawyers in seeking
to recover fees and for courts in determining what fees
may
be
recovered
is
“billing
judgment.”
Eckerhart, 461 U.S. 424, 437 (1983).
Hensley
v.
And this court uses
the term billing judgment to mean how lawyers, using
“common sense realism,” C.J.S. Attorney & Client § 404
(2004), bill in every-day practice; the term encompasses
the notion that
a “counsel fee is not a mere arithmetical
computation,” id. at n. 10, and that the number of hours
billed and the rate applied may vary depending on the
circumstances.
For example, as the former Fifth Circuit
Court of Appeals has stated, “A lawyer in private practice
may
vary
his
fee
for
similar
work
in
light
of
the
professional relationship of the client with his office.”
5
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 719
(5th Cir. 1974).
practice
might
Thus, for example, a lawyer in private
very
well
charge
a
higher
fee
for
litigation services (which, relatively speaking, might be
for a finite time, require a greater percentage of the
lawyer’s daily time, and put the lawyer’s reputation more
at risk) than for more routine or mundane services (which
might last over an extended period of time and thus be
worthy of some discount).
Here, similarly, it would make sense to charge a
higher fee for intense litigation toward a final judgment
than for more routine monitoring over an extended period
of time.
The court therefore does not believe that Seay
should receive the same hourly rate for monitoring (which
the school board concedes that he is entitled to be paid
for) as for active litigation.
Because it appears that
Seay engaged in both active litigation and monitoring for
the time period in question, the court chooses an inbetween, or average, figure of $ 295 an hour for Seay
6
rather than a higher figure for active litigation or a
lower figure for simple monitoring for all the hours
spent.
Seay’s approved rate is therefore $ 295 an hour,
for total fee of $ 248,685.00 (843 hours x $ 295.00).
The court also agrees with the school board that
Gray’s rate should be reduced from $ 250 to $ 200 an hour
for the same reason that Seay’s rate is reduced.
Finally,
the court concludes that a reduced rate from $ 300 to
$ 225 is adequate for Thomas, whose role in this stage of
the proceedings was, for the most part, that of pursuing
Seay’s
fees.
Gray’s
and
Thomas’s
hours
were
not
redundant.
The school board does not challenge the expenses
sought by Seay, Thomas, and Gray. The attorneys will
therefore recover all of their expenses, which total
$ 4,715.06.
Also an adjustment of the lodestar either upward or
downward is unwarranted.
The school board again argues
“that the court should consider the precarious financial
7
condition of the school district.”
F. Supp. at 1532.
Randolph County, 885
The court remains convinced, as it was
back in 1995, that, “Even assuming that this factor is
proper for the court’s consideration, the court is not
convinced that, in this case, this concern overrides the
directive of 42 U.S.C.A. § 1988 the award of attorney’s
fees to successful civil rights plaintiffs.”
Id.
The
most direct and effective way for the school board to
relieve itself of Seay’s fees and expenses is to bring
itself into compliance with the law as soon as possible.
The
plaintiffs
will
therefore
receive
fees
and
expenses as follows:
Names
Rates
Hours
Fees
Expenses
Subtotals
Seay
$ 295
843
$ 248,685.00
$ 4,501.17
$ 253,186.17
Thomas
$ 225
27
6,075.00
89.09
6,164.09
Gray
$ 200
59.2
11,840.00
124.80
11,964.80
$ 266,600.00
$ 4,715.06
$ 271,315.06
Totals
***
8
Accordingly,
it
is
ORDERED
that
the
plaintiffs’
motions for attorney’s fees and expenses (doc. nos. 305
and 319) are granted and that the plaintiffs have and
recover from defendant Randolph County Board of Education,
the sum of $ 266,600.00 for attorneys’ fees and $ 4,715.06
for expenses, for a total of $ 271,315.06.
DONE, this the 8th day of August, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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