American Humanist Association et al v. Baxter County, Arkansas et al

Filing 38

MEMORANDUM OPINION AND ORDER granting in part and denying in part 33 Motions for Attorney Fees, in favor of American Humanist Association, Dessa Blackthorn against Baxter County, Arkansas, Mickey Pendergrass in the amount of $52,358.76. Signed by Honorable Timothy L. Brooks on February 5, 2016. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

AMERICAN HUMANIST ASSOCIATION and
DESSA BLACKTHORN

v.

PLAINTIFFS

CASE NO. 3:14-CV-3126

BAXTER COUNTY, ARKANSAS and
MICKEY PENDERGRASS, Baxter County Judge,
in his official and individual capacities

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiffs American Humanist Association 's ("AHA")
and Dessa Blackthorn 's Motion for Attorney's Fees and Costs (Doc. 33), Brief in Support
(Doc. 34), and Supplement to Motion for Attorney 's Fees and Costs (Doc. 35); Defendants
Baxter County, Arkansas's and Mickey Pendergrass's (collectively , "the County")
Response in Opposition (Doc. 36) ; and AHA's and Ms. Blackthorn 's Reply (Doc. 37) . For
the reasons given below, Plaintiffs' Motion is GRANTED IN PART AND DENIED IN

PART.

I. BACKGROUND
AHA and Ms. Blackthorn brought suit under 42 U.S.C. § 1983 against the County
as well as against Mr. Pendergrass in his individual capacity, alleging violations of the
Establishment Clause of the First Amendment to the United States Constitution , arising
from the display of a nativity scene on the County's courthouse grounds during the
Christmas season. The Court granted summary judgment to AHA and Ms. Blackthorn
against the County, awarding the Plaintiffs declaratory and injunctive relief, along with
nominal damages. See Doc. 32 , p. 1. However, AHA's and Ms. Blackthorn 's claims
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against Mr. Pendergrass in his individual capacity were dismissed with prejudice under
the doctrine of qualified immunity. Id. at p. 2. Subsequently, AHA and Ms. Blackthorn
moved to recover their attorneys' fees and costs from the County. Doc. 33. This Motion
is now fully briefed and ripe for decision.
II. LEGAL STANDARD
42 U.S.C. § 1988 gives the Court discretion to award "a reasonable attorney's fee
as part of the costs" to the "prevailing party" in an action brought under 42 U.S.C. § 1983.
"[P]laintiffs may be considered 'prevailing parties' for attorney's fees purposes 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 (1983) (quoting
Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).

"Absent special

circumstances, a prevailing party should be awarded section 1988 fees as a matter of
course ."

Hatfield v. Hayes, 877 F.2d 717 , 719 (8th Cir. 1989) (quoting Kirchberg v.

Feenstra, 708 F.2d 991 , 998 (5th Cir. 1983)) (emphasis in original, alteration omitted).

The first step in determining a reasonable attorney's fee is the calculation of the
"lodestar, " which is "the number of hours worked multiplied by the prevailing hourly rates ,"
see Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 546 (2010), "reduce[d] ... for partial

success , if necessary ," Jensen v. Clarke , 94 F.3d 1191 , 1203 (8th Cir. 1996). Then , "in
extraordinary circumstances" the Court may adjust the lodestar, but "there is a strong
presumption that the lodestar is sufficient. " Perdue , 559 U.S. at 546. In determining
whether such extraordinary circumstances exist, the Court "may consider other factors
identified in Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714, 717-19 (5th Cir.
1974), though it should note that many of these factors usually are subsumed within the

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initial calculation of hours reasonably expended at a reasonable hourly rate ." 1 Hensley,
461 U.S. at 434 n.9. Always , though , "the most critical factor is the degree of success
obtained ." Id. at 436 . "[T)he fee award should not be reduced simply because the plaintiff
failed to prevail on every contention raised .in the lawsuit,"-especially when all of the
claims are based on a common core of facts or related legal theories; rather, the degree
of success should be ascertained by "focus[ing) on the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the litigation ." Id.
at 435 .

Ill. DISCUSSION
AHA and Ms. Blackthorn are clearly "prevailing parties" as contemplated by 42
U.S.C. § 1988. Although it is true that the Court awarded them relief only against the
County Defendants and not against Mr. Pendergrass in his individual capacity, it is also
true that Plaintiffs obtained every single form of relief requested in their Complaint, as
they did not seek compensatory or punitive damages. Compare Doc. 1, pp . 14-15 with
Doc. 32 . Regardless, then , of from which entity the relief was ultimately obtained , the
degree of Plaintiffs' success was effectively absolute .
Plaintiffs' attorneys Monica Miller, David Niose, and Gerry Schulze propose hourly
billing rates of $250 .00 , $325.00 , and $325.00 , respectively. Ms. Miller and Mr. Niose are

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The Johnson factors are: (1) the time and labor required ; (2) the novelty and difficulty of
the questions ; (3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case ; (5) the customary
fee ; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or
the circumstances; (8) the amount involved and the results obtained ; (9) the experience,
reputation , and ability of the attorneys; (10) the undesirability of the case ; (11) the nature
and length of the professional relationship with the client; and (12) awards in similar
cases . 488 F.2d at 717-19.
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in-house attorneys at AHA's legal center-where Mr. Niose is the legal director-and Mr.
Schulze is an attorney at a private law firm . Ms. Miller has been practicing law since
2012 , Mr. Niose since 1990, and Mr. Schulze since 1983. Each of these attorneys
appears to have a level of expertise and experience in the complicated areas of
Establishment Clause and civil rights enforcement litigation that is unusually high for his
or her number of years in practice. Drawing on its "own experience and knowledge of
prevailing market rates ,'' Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2005), in the
rural and low cost-of-living Harrison Division of the Western District of Arkansas , Blum v.
Stenson , 465 U.S. 886 , 898 (1984) (courts should look to the prevailing market rates "in

the relevant community"), this Court concludes that hourly rates of $200 .00 , $300.00 , and
$300.00 would be high but reasonable rates for the excellent and legally complex work
that Ms. Miller, Mr. Niose, and Mr. Schulze performed on behalf of AHA and Ms.
Blackthorn .
Ms. Miller, Mr. Niose, and Mr. Schulze have submitted bills of 90.55 hours, 27 .25
hours, and 111. 7 hours , respectively, for their work on this case . After a careful review
of the time sheets, the Court concludes that 100% of Mr. Schulze's claimed hours and
32.00 of Ms. Miller's claimed hours constitute original and independent work product for
wh ich they should receive full credit and compensation , but that 100% of Mr. Niose's
cla imed hours and the remaining 58 .55 of Ms. Miller's claimed hours constitute essentially
duplicative supervision of Mr. Schulze's work that would result in unfair double-counting
if awarded in full. Therefore , the Court will calculate the lodestar in th is case as follows :
61.28 hours at a rate of $200 .00 per hour for Ms. Miller, plus 13.63 hours at a rate of

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$300.00 per hour for Mr. Niose, plus 111 .7 hours at a rate of $300 .00 per hour for Mr.
Schulze , equaling a total $49 ,855.00 .2 • 3
The Court will not make any adjustment to the lodestar. A downward adjustment
would be inappropriate because , as noted above, Plaintiffs obtained the full relief sought
in their Complaint. See Hensley, 461 U.S. at 435-36. An upward adjustment would be
inappropriate because there are no "extraordinary circumstances" here that would
overcome the "strong presumption" that the lodestar is sufficient, Perdue , 559 U.S . at
546 , and nearly all of the relevant Johnson factors , see n.1 , supra , have already been
subsumed within the Court's calculation of the lodestar, see Hensley, 461 U.S. at 434
n.9.4

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Defendants argue that Plaintiffs should not recover attorney fees for work undertaken
on this matter prior to the filing of the Complaint, but the Court disagrees. The Eighth
Circuit has upheld the recovery of attorneys' fees for pre-litigation work in a Title VII civil
rights enforcement action , see Warren v. Prejean , 301 F.3d 893 , 904 (8th Cir. 2002), and
this Court sees no reason to apply a different rule for civil rights enforcement actions
brought under 42 U.S.C. § 1983. And contrary to Defendants' characterization , § 1988's
language of "[i]n any action or proceeding" appears on its face not to refer to the time
when the recoverable fees were incurred, but rather simply to the time when the Court
may award such fees .
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The Court disagrees with Defendants' contention that the minimum billing increment of
.25 hours used by Ms. Miller and Mr. Niose is excessive. The Court understands from its
own experience that while this minimum billing increment is not as widely used as the
increment of 0.1 hours, it is nevertheless common and not unreasonable .
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The only two relevant Johnson factors that the Court believes were not subsumed within
its calculation of the lodestar are "the undesirability of the case" and "the nature and length
of the professional relationship with the client. " The Court does not believe either of these
factors ' presence here is so extraordinary as to permit an adjustment of the lodestar. With
regard to the former factor, the Court recognizes that the relief sought and obtained was
very politically unpopular; over the last several months, the Court has itself received a
substantial number of letters and emails voicing displeasure with its Judgment in this
case . However, civil rights enforcement actions are frequently unpopular, or at the very
least quite controversial ; in that context, the Court does not view this case as being an
extraordinary outlier.
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Finally, the Court has examined the list of costs submitted by Mr. Schulze , and
finds all of his claimed costs, totaling $2 ,503 .76 , to be appropriate and recoverable .
Defendants argue that some such costs , such as Mr. Schulze's mileage , hotel costs, and
postage , should be excluded because they are not taxable under 28 U.S.C. § 1920.
However, while Defendants are technically correct on this point, it is a point that makes
no practical difference as such costs are recoverable in full as reasonable attorney fees
under 42 U.S.C. § 1988. See Pinkham v. Camex, Inc. , 84 F.3d 292, 294-95 (8th Cir.
1996); Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2005). Defendants also argue
that some of the submitted costs lack sufficient detail to support a conclusion that they
are necessary, but again , the Court believes this is ultimately a distinction without a
difference. To whatever extent there might be insufficient detail to support the necessity
of a few of Mr. Schulze's claimed costs (per 28 U.S.C . § 1920), the Court finds there is
more than sufficient detail to support their reasonableness (per 42 U.S.C. § 1988). The
Court will award the full $2 ,503.76 of claimed costs, which in combination with the lodestar
results in a total award of $52 ,358.76.

IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Attorney's Fees and
Costs (Doc. 33) is GRANTED IN PART AND DENIED IN PART as follows : Defendants
Baxter County, Arkansas and Mickey Pendergrass (in his official capacity only) are
ordered to pay $52 ,358.76 in attorney fees and costs to Plaintiffs American Humanist
Association and Dessa Blackthorn .

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IT IS SO ORDERED on

this ~

day of Februa , 2016.

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