Edwards et al v. Beck et al

Filing 68

ORDER granting in part and denying in part 59 Motion for Attorney Fees. Plaintiffs are awarded $65,580 in attorneys fees and $3,445.45 in costs. Signed by Judge Susan Webber Wright on 6/9/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
LOUIS JERRY EDWARDS, M.D., on
behalf of himself and his patients, ET
AL.
Plaintiffs
V.
JOSEPH M. BECK, M.D., President of
the Arkansas State Medical Board, and
his successors in office, in their official
capacities, ET AL.
Defendants

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NO: 4:13CV00224 SWW

ORDER
Plaintiffs are physicians who provide abortion services in Arkansas, and they brought this
lawsuit under 42 U.S.C. § 1983, challenging the constitutionality of the Arkansas Human
Heartbeat Protection Act, codified at Ark. Code Ann. §§ 20-16-1301 through 1306. Defendants
are members of the Arkansas State Medical Board, sued in their official capacities. Plaintiffs
charged that the Act banned pre-viability abortions in violation of the Fourteenth amendment,
and they sought preliminary and permanent injunctive relief barring Defendants from enforcing
any portion of the Act. The Court granted Plaintiffs’ motion for a preliminary injunction, and
by order and judgment entered March 14, 2014, the Court permanently enjoined Defendants
from enforcing portions of the Act that prohibited physicians from performing abortions at or
after twelve weeks’ gestation when a fetal heartbeat is detected. However, the Court found that
other provisions that require physicians to test for a fetal heartbeat and, if a heartbeat is detected,
discuss with the patient the probability of carrying the fetus to term are constitutional and
severable from the twelve-week ban.

Now before the Court is Plaintiffs’ motion for attorneys’ fees and costs (ECF Nos. 59,
60), Defendants’ response in opposition (ECF No. 61), and Plaintiffs’ reply (ECF No. 65). After
careful consideration, and for reasons that follow, Plaintiffs’ motion is granted in part and denied
in part. Plaintiffs are awarded $65,580 in attorneys’ fees and $3,445.45 in costs.
Motion for Attorneys’ Fees
Plaintiffs petition the Court for $76,560 in attorneys’ fees based on 255.2 hours of work
performed by four plaintiff attorneys, whose proposed hourly rate is $300. Title 42 U.S.C.
§ 1988(b) provides that in federal civil rights actions “the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee as part of the costs . . . ” 42 U.S.C. § 1988(b). A
plaintiff achieves prevailing party status when actual relief on the merits of his claim materially
alters the legal relationship between the parties by modifying the defendant's behavior in a way
that directly benefits the plaintiff. Here, Plaintiffs successfully blocked Defendants’ ability to
enforce the prohibition on abortions at or after twelve weeks when a fetal heartbeat is detected,
and there is no question that they are prevailing parties.
Plaintiffs bear the burden of establishing entitlement to an award by documenting the
appropriate hours expended and hourly rates. See Fish v. St. Cloud State University, 295 F.3d
849, 851 (8th Cir. 2002)(quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct.
1933(1983)). The procedure used in calculating attorneys fees is to compute the base “lodestar”
figure by multiplying the number of hours reasonably expended by a reasonable hourly rate. Id.
Reasonable Hourly Rate
“A reasonable hourly rate is usually the ordinary rate for similar work in the community
where the case has been litigated.” Id.(citing Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir.

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2001). The “requested rates [should be] in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum
v. Stenson, 465 U.S. 886, 895-96 n.11, 104 S.Ct. 1541, 1547-48 n.11 (1984). Defendants do not
dispute the reasonableness of the hourly rate charged in this case, and the Court finds that $300
is a reasonable hourly rate for this local market and that a local attorney possessing experience
and skill similar to Plaintiffs’ counsel would command an hourly rate of $300.1
Hours Reasonably Expended
“The party seeking an award of fees should submit evidence supporting the hours worked
and the rates claimed. Where documentation of hours is inadequate, the district court may
reduce the award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1439
(1983). “Counsel for the prevailing party should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary.” Id.
Plaintiffs provide the affidavits of their attorneys–Bettina Brownstein, Holly Dickson,
Stephanie Toti, and Susan Talcott Camp–and each attorney provides a detailed itemization of the
hours of work she devoted to this case. See ECF Nos. 59-2, 59-3, 59-4, 59-5. Brownstein, who
served as lead counsel, reports 83.2 hours; Dickson reports 15.4 hours; Toti reports 74.70 hours;
and Camp reports 81.9 hours. Each attorney includes a description of tasks performed and
testifies that her itemization does not include time spent on matters on which Plaintiffs did not
prevail, particularly the severability issue.

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The Court has reviewed the affidavits of Plaintiffs’ attorneys Bettina Brownstein, ECF
No. 59-1; Susan Talcott Camp, ECF No. 59-3; Stephanie Toti, ECF No. 59-5; and Holly
Dickson, ECF No. 59-6. The Court finds that each attorney has significant experience litigating
civil rights cases.
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Defendants object that many of the hours claimed were unnecessary or unrelated to the
prosecution of Plaintiffs’ successful claim. First, Defendants contend that Plaintiffs’ award
should not include fees for 43.3 hours expended between the entry of the preliminary injunction
and the entry of the permanent injunction. They contend that the Court’s order granting
preliminary injunctive relief clearly signaled that the Court would permanently enjoin
enforcement of the twelve-week abortion ban and that the only issue remaining was severability.
According to Defendants, “there was no need for Plaintiffs to put forth any additional argument
or effort regarding the issue on which Plaintiff’s ultimately prevailed after the Court’s grant of a
preliminary injunction and the State’s concession2 that the Court would grant a permanent
injunction on that issue.” ECF No. 61.
Plaintiffs correctly note that the findings of fact and conclusions of law made by a court
granting a preliminary injunction are not binding. See University of Texas v. Camenisch, 451
U.S. 390, 395, 101 S. Ct. 1830, 1834 (1981)(citations omitted). Plaintiffs’ counsel had a
continuing duty to zealously prosecute Plaintiffs’ claims to a final judgment, and the Court finds
that the 43.3 hours at issue were reasonably expended.
Second, Defendants assert that Plaintiffs should not be compensated for fees they
incurred in connection with their opposition to Concept of Truth, Inc.’s motion for intervention,
which the Court denied. Concept of Truth sought to intervene for the purpose of defending the
Act, and the State filed a response stating that it did not oppose intervention. Concept of Truth’s

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Following entry of the preliminary injunction that enjoined Defendants from enforcing
any part of the Act, Defendants moved for summary judgment on the issue of severability. In a
supporting brief, Defendants restated their position that the Act, in its entirety, passes
constitutional scrutiny, but they stated that “the prohibition of abortion after twelve weeks’
gestation . . . has been and will be invalidated by the Court.” ECF No. 42, at 6.
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position was adverse to Plaintiffs’, and the Court finds that Plaintiffs’ opposition to intervention
was directly related to the prosecution of their constitutional claim. The Court finds no authority
that precludes the award of attorneys’ fees incurred in opposing a motion to intervene by a
would-be adverse party and finds that such an award is appropriate in this case. See Jenkins by
Agyei v. State of Mo., 967 F.2d 1248, 1250-52 (8th Cir. 1992)(allowing the prevailing party to
recover, from the defendant, attorneys’ fees incurred in defending against an intervention).
Third, Defendants argue that attorney hours reported by Camp and Toti should be
excluded from the fee award. Specifically, Defendants argue that it was not reasonable to have
these attorneys present at the preliminary injunction hearing, and they correctly note that only
Brownstein presented oral argument and that Dickson was present to assist Brownstein.
Defendants further note that Camp and Toti, who traveled from New York to attend the hearing,
request a total $10,980 in fees based on travel time, time spent preparing for the hearing in moot
argument, and time in attendance at the hearing.
Plaintiffs respond that Camp and Toti have considerable experience in reproductive
rights cases, including work in recent challenges to abortion statutes in Arizona and North
Dakota, and that their knowledge and experience spared local counsel many hours of analysis,
preparation, and research. However, Plaintiffs do not explain why it was necessary to have
Camp and Toti attend the preliminary injunction hearing.
In a school desegregation case, the Eighth Circuit held that given the complexity and
magnitude of the litigation, it was not unreasonable for a defendant school district to send two
attorneys to attend oral argument and that an attending attorney’s charges for travel and
attendance were reasonable even though he did not participate in oral argument. Here, the issues

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and arguments presented at the preliminary injunction hearing were straight-forward and
concerned well-settled law. See Little Rock School Dist. v. Arkansas, 674 F.3d 990, 995 (8th Cir.
2012). The Court finds that it was not necessary to have Camp and Toti in attendance at the
hearing and will therefore reduce the fee award by $10,980.
Fourth, Defendants ask the Court to reduce the requested fee award by fifty percent based
on Plaintiffs’ limited success. However, in arriving at the requested fee award, Plaintiffs
excluded the time spent on the issue of severability. The Court finds that the requested award
adequately accounts for Plaintiffs’ limited success.
Motion for Costs
Rule 54(d) of the Federal Rules of Civil Procedure “codifies the presumption that ... costs
will be awarded to prevailing parties.” Police Retirement Sys. v. Midwest Inv. Advisory Serv.,
940 F.2d 351, 358-59 (8th Cir. 1991). Rule 54(d)(1) provides that a prevailing party shall be
allowed costs, other than attorney fees, unless otherwise directed by the court or unless a federal
statute or other rules provide for costs.3 Plaintiffs seek payment for expenses and costs totaling
$3,445.45, and Defendants specifically state that the State has no objection to the taxation of
costs in the amount claimed. Without objection, the Court will award Plaintiffs costs in the
amount of $3,445.45.
IT IS THEREFORE ORDERED that Plaintiffs’ motion for attorneys’ fees (ECF No. 59)

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Title 28 U.S.C. § 1920 defines the expenses that may be taxed as costs under Rule
54(d)(1). These include (1) fees of the clerk and marshal; (2) fees of the court reporter for all or
any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and
disbursements for printing and witnesses; (4) fees for exemplification and copies of papers
necessarily obtained for use in the case; (5) docket fees under [28 U.S.C. § 1923]; and (6)
compensation of court appointed experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services under 28 U.S.C. § 1828.
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is GRANTED IN PART AND DENIED IN PART. Plaintiffs are awarded $65,580 in attorneys’
fees and $3,445.45 in costs.
IT IS SO ORDERED THIS 9TH DAY OF JUNE, 2014.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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