Chabad Lubavitch of Litchfield County Inc et al v. Litchfield et al
Filing
366
RULING granting in part and denying in part 350 Motion for Attorney Fees. For the reasons stated herein, the Chabads Motion for Appellate Attorneys Fees (Doc. No. 350) is granted in part and denied in part. The court awards a total of $54,849 .25 in appellate attorney fees, which reflects the calculation above, see supra Section III(A). In addition, the court awards $4,457.17 in appellate costs, for a total monetary award of $59,306.42.The Chabad will be entitled to interest on the appellate attorneys fees awarded in this Order from the date of judgment once such judgment enters. The court also holds that the Chabad is entitled to interest on the courts previous award of $717,405.95, at a rate of 2.31%, computed beginning on May 23, 2018. As of March 31, 2020, the amount of such interest is $31,087.76. Signed by Judge Janet C. Hall on 3/31/2020. (Lewis, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHABAD LUBAVITCH OF
LITCHFIELD COUNTY, INC., et al.,
Plaintiffs,
v.
BOROUGH OF LITCHFIELD,
CONNECTICUT, et al.,
Defendants.
:
:
:
:
:
:
:
:
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CIVIL ACTION NO.
3:09-CV-1419 (JCH)
MARCH 31, 2020
RULING RE: MOTION FOR ATTORNEY FEES AND COSTS (DOC. NO. 350)
I.
INTRODUCTION
This action arose out of the Historic District Commission of the Borough of
Litchfield (the “Commission”)’s denial of the Chabad Lubavitch of Litchfield County (“the
Chabad”)’s application for a Certificate of Appropriateness. The Chabad alleged that
the Commission’s denial substantially burdened its religious exercise, in violation of the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), section 2000cc et
seq. of title 42 of the United States Code. After a bench trial and a ruling largely in favor
of the Chabad, this court granted the Chabad’s Motion for Attorney’s Fees and Costs
incurred at the trial stage. See Ruling on Mot. for Attorney’s Fees (Doc. No. 345). The
Commission and its co-defendant, the Borough of Litchfield (“the Borough”), appealed
this court’s Order granting attorney’s fees and costs, and the Chabad cross-appealed.
See Mandate (Doc. No. 351); Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield
Historic Dist. Comm'n, 934 F.3d 238 (2d Cir. 2019).
The Chabad now seeks attorney’s fees related to that appeal. See Motion for
Appellate Attorney’s Fees (Doc. No. 350). The defendants oppose that Motion in part.
1
See Defs.’ Mem. in Opp. to Mot. for Attorney’s Fees (Doc. No. 354). For the reasons
below, the Chabad’s Motion for Appellate Attorney Fees and Costs is granted in part
and denied in part.
II.
BACKGROUND AND PROCEDURAL POSTURE
The Chabad first filed its Complaint in 2009. See Compl (Doc. No. 1). In its
initial Complaint, the Chabad, along with Rabbi Joseph Eisenbach, asserted, inter alia,
claims under the First and Fourteenth Amendments and Substantial Burden,
Nondiscrimination, and Equal Terms claims under RLUIPA. The original suit was
brought against the Commission, the Town of Litchfield, and several Doe defendants.
See id. The Town of Litchfield moved to dismiss all claims against it, and the Chabad
substituted the Borough of Litchfield in place of the Town in its Second Amended
Complaint. See Second Am. Compl. (Doc. No. 24). By the Third Amended Complaint,
the plaintiffs had substituted named members of the Commission for the Doe
defendants. See Third Am. Compl. (Doc. No. 54).
This court granted summary judgment in favor of the defendants on all claims.
See Ruling (Doc. No. 169); Chabad Lubavitch v. Borough of Litchfield, 796 F. Supp. 2d
333 (D. Conn. 2011). The Chabad appealed this court’s judgment, and the Second
Circuit remanded the case, vacating that judgment with respect to two of the claims: the
Substantial Burden claim and the Nondiscrimination claim. See Chabad Lubavitch of
Litchfield Cty., Inc. v. Litchfield Historic Dist. Com’n, 768 F.3d 183 (2d Cir. 2014). The
Second Circuit dismissed all claims against one of the Commission members, see id. at
187 n.1, and the plaintiffs subsequently voluntarily withdrew all claims against the other
two Commission members. On the eve of trial, Rabbi Eisenbach voluntarily withdrew
from the case as a plaintiff.
2
By the time trial commenced, the case had evolved from a two-plaintiff, twelvedefendant, twelve-count action to an action by a single plaintiff, the Chabad, against two
defendants, the Borough and the Commission, on one claim for injunctive relief,
Substantial Burden under RLUIPA. Following a three-day bench trial, the court issued a
bench Ruling finding that the Commission’s denial of the Chabad’s application for a
certificate of appropriateness substantially burdened the Chabad’s religious exercise.
See Bench Ruling (Doc. No. 325) at 46–47. The court issued a mandatory injunction
ordering the Chabad to submit an amended application for a certificate of
appropriateness and ordering the Commission to approve the Chabad’s amended
application. Id. at 70–71. As this court summarized in a previous Ruling, “the court
agreed with the Chabad’s position that its religious exercise was substantially burdened,
but disagreed with the Chabad’s position as to the extent of the burden.” See Ruling on
Mot. for Attorney’s Fees (Doc. No. 345) at 3.
In 2017, the Chabad moved for an award of attorney’s fees and costs, and this
court granted the Chabad’s Motion for Attorney Fees and Costs in the amount of
$717,405.95. Id. at 31. The court denied fees incurred during the administrative
proceedings that proceeded the Chabad’s federal complaint. Id. at 15-17. The Borough
and the Commission appealed, and the Chabad cross-appealed. See Mandate (Doc.
No. 351-1) at 3; Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist.
Comm'n, 934 F.3d at 241. The Second Circuit agreed that the Chabad was “entitled to
attorney’s fees as a prevailing party, that it may not obtain fees for the administrative
proceedings . . . , and that the [district court’s] 50 percent reduction [in attorney’s fees,
3
to reflect the Chabad’s partial success] was appropriate.” Chabad Lubavitch of
Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm'n, 934 F.3d at 241.
The Chabad then filed the Motion for Appellate Attorney Fees and Costs (Doc.
No. 350) that is the subject of this Ruling. The Chabad argues that it is entitled to
appellate fees and costs in the amount of $87,536.17, pursuant to section 1988 of title
42 of the United States Code. Mot. for Appellate Attorney’s Fees and Costs (Doc. No.
350) at 1; see also Mem. in Supp. of Mot. for Appellate Attorney’s Fees (Doc. No. 350).
It also seeks costs for the out-of-pocket expenses incurred in pursuing the appeal, and
post-judgment interest on both the first order of trial attorney’s fees and, if this court
should so order, on any award of appellate attorney’s fees. Id. Finally, the Chabad
requests an order that the Defendant “assess property owners to pay for the fee award
and judgment.” Id.
III.
DISCUSSION
A.
Appellate Attorney Fees
1. Whether the Chabad is a “prevailing party” entitled to attorney fees
The Chabad argues that it is “entitled to recover all attorney’s fees and costs
expended on appeal,” pursuant to section 1988 of title 42 of the United States Code.
See Mem. in Supp. of Mot. for Appellate Attorney’s Fees at 3. Pursuant to section
1988,
[i]n any action or proceeding to enforce a provision of . . . the
Religious Land Use and Institutionalized Persons Act of 2000
. . . the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as
part of the costs . . . .
42 U.S.C. § 1988(b). The Second Circuit has stated that “[p]revailing parties under
Section 1988 are . . . entitled to recover a reasonable fee for preparing and defending a
4
fee application. That includes attorneys’ fees incurred as a result of appeals related to
the defense of a fee award.” Hines v. City of Albany, 862 F.3d 215, 223 (2d Cir. 2017)
(emphasis added) (internal citations omitted).
The court concludes that the Chabad is a “prevailing party” under section 1988
for the purpose of appellate attorney fees related to its defense of the award of trial
attorney’s fees. For the purposes of obtaining appellate attorney fees, “[i]t suffices that
the plaintiffs were the prevailing party on the merits of their claim and successfully
defended against the defendants’ challenge to [the] award [of attorney’s fees].” Id.
Such is exactly the case here. This court concluded that the Chabad was the
“prevailing party” on the merits of its claims and granted it attorney’s fees and costs.
See Ruling on Mot. for Attorney’s Fees (Doc. No. 345) at 6-11 (rejecting defendants’
arguments that the Chabad is not a prevailing party); id. at 11-15 (concluding that a
reduction was appropriate to account for the Chabad’s “partial success”). The Chabad
successfully defended against the defendants’ challenge to that finding and award. See
Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm'n, 934 F.3d at
243-44 (agreeing that the Chabad “became a prevailing party when it obtained a
beneficial ‘enforceable judgment.’”) (quotation omitted); id. at 245 (concluding that the
reduction was within the district court’s discretion). Therefore, the Chabad is a
prevailing party for the purpose of appellate attorney’s fees.
The defendants argue that the Chabad cannot seek attorneys’ fees related to its
cross-appeal, as the Chabad was not the “prevailing party” for the purposes of the
cross-appeal. See Defs.’ Opp. to Mot. for Appellate Attorney’s Fees (Doc. No. 354) at
2-3. As the Chabad’s cross-appeal was denied, the court agrees. See Chabad
5
Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm'n, 934 F.3d at 244-45;
Farrar v. Hobby, 506 U.S. 103, 111 (1992). As the Supreme Court wrote in Hensley v.
Eckerhart, 461 U.S. 424 (1983), although a “fee award should not be reduced simply
because the plaintiff failed to prevail on every contention raised in the lawsuit,” the
“most critical factor is the degree of success obtained.” Hensley, 461 U.S. at 435-36.
“If . . . a plaintiff has achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate may be
an excessive amount. This will be true even where the plaintiff's claims were
interrelated, nonfrivolous, and raised in good faith.” Id. at 436. Here, the Chabad did
not prevail on any of the claims it raised in its cross-appeal, which were separate and
distinct from the issues in the direct appeal. See Chabad Lubavitch of Litchfield Cty.,
Inc. v. Litchfield Historic Dist. Comm'n, 934 F.3d at 245 (“In these circumstances, the
District Court acted within its discretion by awarding no fees for those [administrative]
proceedings. . . . The Court acted within its discretion in concluding that a 50 percent
reduction was warranted . . .”). Therefore, the court will award appellate attorney’s fees
related to defending the appeal of the award of trial attorney’s fees, but it will not award
appellate attorney’s fees related to the unsuccessful cross-appeal.
2. Whether the fees requested are reasonable
Of course, fees awarded pursuant to section 1988 must be “reasonable.” 42
U.S.C. § 1988. As discussed in the court’s Ruling on the Chabad’s Motion for Attorney
Fees (Doc. No. 345), in order to determine reasonable attorney fees pursuant to
section 1988, the court calculates a “lodestar figure” by multiplying a reasonable hourly
rate by the number of hours reasonably expended on the case. See Ruling on Mot. for
6
Attorney Fees (Doc. No. 345) at 18; Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552
(2010).
First, the court must determine a reasonable hourly rate. In determining a
reasonable hourly rate, the court takes account of “all case-specific variables,” Arbor Hill
Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 522 F.3d 182, 189 (2d Cir.
2008), and considers factors such as “(1) the time and labor required; (2) the novelty
and difficulty of the questions; (3) the level of skill required to perform the legal service
properly; . . . (5) the attorney’s customary hourly rate; . . . [and] (9) the experience,
reputation and ability of the attorney[ ],” id. at 186 n.3 (citation omitted). It also
considers prevailing rates in the district. Farbotko v. Clinton Cty. of N.Y., 433 F.3d 204,
209 (2d Cir. 2005). In its previous Ruling, this court found the requested rates
“reasonable in light of the experience of the individuals billing and the market rates in
the District of Connecticut.” See Ruling on Mot. for Attorney Fees (Doc. No. 345) at 20.
The defendants did not challenge those hourly rates on appeal, and the plaintiff has not
adjusted those rates in its current Motion. Therefore, as it did in its previous Ruling on
trial attorney’s fees, the court finds that the hourly rates are reasonable for the purposes
of the Chabad’s Motion for Appellate Attorney Fees. See id.
Having concluded that the requested rates are reasonable, the court next
analyzes whether the hours expended were necessary and appropriate for the appeal.
The Chabad has submitted exhibits documenting its attorneys’ time related to the
appeal, and the defendants have argued, in response, that certain activities should not
be considered by the court in the lodestar calculation.
7
The court agrees with the defendants in part. First, as discussed above, the
court agrees that the Chabad’s attorneys should not be awarded fees for their work
related to the cross-appeal, as the Chabad was not the “prevailing party” on the crossappeal. Thus, the court will exclude entries for time spent on the cross-appeal. For
example, the timesheets include entries such as: “Receive and review letter from
attorney Dalton regarding cross-appeal of Order granting fees and costs,” see Defs.’ Ex.
A (Doc. No. 355) at 4; “Draft e-mail to co-counsel analyzing potential cross-appeal
issues,” see id. at 7; and “Preparation of appellate brief with attention to cross appeal
arguments,” see id. at 12. Such entries, and similar ones, will be subtracted from the
court’s total calculation of attorney’s fees. As there are multiple entries for work done
solely on the cross-appeal, the court does not list them here. Rather, all such entries
are listed in Appendix A.
In addition, some entries reflect work on both the cross-appeal and the response
to the defendants’ appeal. For example, the timesheets include entries such as:
“Receive and review Opinion of Second Circuit on Order granting fees and costs,” see
Defs.’ Ex. A (Doc. No. 355) at 5; “Confer . . . regarding 2d Cir. appeal and substantive
and procedural strategy associated with cross-appeal,” see id. at 7; and “Continued
preparation of Response Brief and Opening Brief on Appeal,” see id. at 12. The court
has determined that the fees for this work should be reduced by 50%. As there are
multiple entries for work done on both the appeal and the cross-appeal, the court does
not list them here. Rather, all such entries are listed in Appendix A, which indicates
which entries will be subtracted, in half, from the court’s total calculation of attorney’s
fees.
8
Further, the defendants have identified, in Exhibit B, entries that are, in their
view, vague or related to “excessive, redundant or otherwise unnecessary hours,”
Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009). Because the court cannot determine if
these entries, objected to in Defendants’ Exhibit B, are for the appeal or cross-appeal,
the court reduces the following entries as vague or excessive by 50%:
•
On page 231 of Defs.’ Ex. B (Doc. 355), the entry for “Prepare
Acknowledgement and Notice of Appearance form and proof of service for
appeal,” dated 7/10/2018.
•
On page 23 of Defs.’ Ex. B (Doc. 355), the entry for “Review various
orders filed by Second Circuit,” dated 7/10/2018.
•
On page 25 of Defs.’ Ex. B (Doc. No. 355), the entry for “Continued
preparation of Brief on Appeal,” dated 7/19/2018.
•
On page 27 of Defs.’ Ex. B (Doc. 355), the entry for “Additional
preparation of brief on appeal; prepare list of documents to include in
appendices,” dated 9/21/2018.
•
On page 29 of Defs.’ Ex. B. (Doc. 355), the entry for “Continued
preparation of principal arguments in appellate brief, continued review of
documents,” dated 10/3/2018.
See Defs.’ Ex. B. (Doc. No. 355) at 23-29.
In summary, having determined that some entries reflect work on the crossappeal and should be excluded, that some entries reflect work partly on the cross-
1 The page numbers used refer to the page numbers in the CM/ECF header for the Defendants’
Exhibits A and B (Doc. No. 355).
9
appeal and should be reduced, and that some entries are too vague to determine
whether they represent work done on the appeal or cross-appeal, the court subtracts a
total of $27,493.75 from the total amount of attorney’s fees the Chabad seeks,
$82,343.2 See Appendix A; Mot. for Attorney’s Fees at 1. The court will award a total of
$ 54,849.25 ($82,343 – $27,493.75) in attorney’s fees related to the Chabad’s
successful defense of the appeal of this court’s Ruling granting attorney’s fees and
costs at the trial level.
B.
Out-of-pocket Expenses
The Chabad also argues that its attorneys are entitled to recover the out-ofpocket costs they incurred during the appeal. Mot. for Appellate Attorney’s Fees at 12.
The Chabad’s attorneys seek a total of $5,193.17 in costs. Mot. for Appellate Attorney’s
Fees at 1, 12. The defendants argue that any costs related to the cross-appeal should
not be granted pursuant to section 1988, because the Chabad did not succeed on that
cross-appeal. Defs.’ Opp. to Mot. for Appellate Attorney’s Fees at 5. The defendants
also argue that the court should not award costs for Attorney Dalton’s admission fee to
the Second Circuit Court of Appeals. Id.
As discussed above, section 1988 empowers the court, “in its discretion, [to]
allow the prevailing party” the costs of an action under the RLUIPA. 42 U.S.C. §
1988(b). “[A]ttorney's fees awards include those reasonable out-of-pocket expenses
incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 763 (2d Cir. 1998); see also Kuzma v. Internal Revenue
2 Some of this reduction relates to Attorney Dalton’s admission to the Second Circuit, as
discussed infra at page 11.
10
Service, 821 F.2d 930, 933-34 (2d Cir. 1987) (“Identifiable, out-of-pocket disbursements
for items such as photocopying, travel and telephone costs are generally taxable under
§ 1988 and are often distinguished from nonrecoverable routine office overhead, which
must normally be absorbed within the attorney's hourly rate.”)
The court agrees with the defendants in part as to the Chabad’s request for
costs. Costs related solely to the cross-appeal should not be awarded, as the Chabad
is not a prevailing party. Therefore, it subtracts the filing fee for the cross-appeal,
$505.00. See Pl.’s Ex. 5 (Doc. No. 350-1) at 46 (listing $505.00 “filing fee for the
appeal” on 6/20/2018, when the Chabad filed its cross- appeal).
Further, the court will not award costs to cover Attorney Dalton’s admission fee to
the Second Circuit Court of Appeals. The list of expenses includes an entry for $221 for
“admission to court fee,” as well as $10 for a certificate of good standing. See Pl.’s Ex.
5 (Doc. 350-1) at 46. Another District Court in this Circuit found that a fee for bar
admission renewal and the work related to that bar admission renewal was not
reasonable, reasoning that, “[w]hen an attorney agrees to represent a client in litigation,
it is expected that he is already qualified to litigate the case.” Mister Sprout, Inc. v.
Williams Farms Produce Sales, Inc., 881 F. Supp. 2d 482, 491, 492 (S.D.N.Y. 2012).
The court agrees with this reasoning and disallows both the admission fee and the time
entries related to Attorney Dalton’s admission to the Second Circuit. See Appendix A.
In summary, the court subtracts a total of $736 in costs, because it finds that
such costs are related either to the cross-appeal or to Attorney Dalton’s admission to
the Second Circuit. It will award a total of $4,457.17 ($5,193.17-$736) in costs related
11
to the Chabad’s successful defense of the appeal of this court’s Ruling granting
attorney’s fees and costs at the trial level.
C.
Interest
In addition, the Chabad seeks post-judgment interest on both the original award
of attorney’s fees and, if granted, on any award of appellate attorney’s fees. See Mem.
in Supp. of Mot. for Appellate Attorney’s Fees at 8. The defendants do not address the
Chabad’s request for post-judgment interest. See generally Defs.’ Opp. to Mot. for
Appellate Attorney’s Fees.
The Chabad argues that it is entitled “to collect interest on two distinct monetary
awards,” the original award of attorney’s fees for work at the trial level, and any award of
appellate attorney’s fees awarded as a result of the instant Motion. See Mem. in Supp.
of Mot. for Appellate Attorney’s Fees at 8. As to the original award, the Chabad
identifies two potential dates of “judgment” in its briefing: November 2, 2017, the date
the judgment in this case was entered on the merits, or, in the alternative, May 23,
2018, the date the court quantified the amount owed in attorney’s fees. Id. at 9.
The court first considers whether it should award interest as of the date of the
judgment on the merits. Some courts in this district have allowed post-judgment interest
to accrue “from the time that the plaintiff was entitled to those costs, regardless of when
they are quantified.” See Hubbard v. Total Commc'ns, Inc., 623 F. Supp. 2d. 270, 271
(D. Conn. 2009); Albahary v. City & Town of Bristol, Conn., 96 F. Supp. 2d 121, 124 (D.
Conn. 2000). However, in this court’s view, as the Third, Seventh, and Tenth Circuits
have held, “post-judgment interest on an attorney's fee award runs from the date that
the District Court enters a judgment quantifying the amount of fees owed to the
prevailing party.” Eaves v. Cty. of Cape May, 239 F.3d 527, 542 (3d Cir. 2001)
12
(emphasis added); see also MidAmerica Federal Sav. & Loan Ass’n v. Shearson /
American Express, Inc., 962 F.2d 1470, 1476 (10th Cir. 1992); Fleming v. County of
Kane, State of Ill., 898 F.2d 553, 565 (7th Cir. 1990). Those Circuits emphasize that,
before the amount of fees is clearly ascertained, interest is inappropriate. See
MidAmerica, 962 F.2d at 1476 (“Any available postjudgment interest began to accrue on
April 22, 1991, the date the fees were meaningfully ascertained and included in a final,
appealable judgment.”); Fleming, 898 F.2d at 565 (“Prior to the date the judgment on
attorney’s fees was entered, plaintiff’s attorneys’ claim for unpaid attorney’s fees was
unliquidated and, as such, not entitled to interest.”).
Although the Second Circuit has not ruled conclusively on the issue of when
post-judgment interest on attorney’s fees begins to accrue, it has held, in an
unpublished decision, that “post-judgment interest would be inappropriate [where] the
judgment was not adequately ascertained.” Padberg v. Giuliani, 295 F. App'x 455, 457
(2d Cir. 2008); see also Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,
835-36 (1990) (concluding that post-judgment interest runs from the date of the entry of
judgment, rather than the date of a verdict, based on the language of section 1961;
noting that the purpose of post-judgment interest is to “compensate the successful
plaintiff for being deprived of compensation for the loss from the time between the
ascertainment of the damage and the payment.”) Padberg supports this court’s
conclusion that post-judgment interest on attorney’s fees is not inappropriate where the
amount of fees was not “meaningfully ascertained,” MidAmerica, 962 F.2d at 1476.
Thus, the court will not award post-judgment interest on attorney’s fees as of the date of
the judgment on the merits, November 2, 2017.
13
However, the award of attorney’s fees was “meaningfully ascertained,”
MidAmerica, 962 F.2d at 1476, on May 23, 2018, when the court issued its Ruling on
trial attorney’s fees. See Ruling on Mot. for Attorney’s Fees (Doc. No. 345). That
Ruling was affirmed on appeal. The Second Circuit has held that a judgment “affirmed
on appeal accrues interest from the date of the original entry.” Lewis v. Whelan, 99
F.3d 542, 545 (2d Cir. 1996) (citing Estate of Calloway v. Marvel Entertainment Group,
9 F.3d 237, 241–42 (2d Cir.1993), cert. denied, 511 U.S. 1081 (1994)); see also Fed. R.
App. P. 37 (“Unless the law provides otherwise, if a money judgment in a civil case is
affirmed, whatever interest is allowed by law is payable from the date when the district
court's judgment was entered.”) Therefore, because the trial attorney’s fees award was
fairly ascertained as of May 23, 2018, and because this court’s Ruling on that award
was affirmed on appeal, interest is payable from May 23, 2018.
Pursuant to section 1961, “[s]uch interest shall be calculated from the date of the
entry of the judgment, at a rate equal to the weekly average 1-year constant maturity
Treasury yield, as published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding[ ] the date of the judgment.” 28 U.S.C.A. § 1961(a).
That rate, for the week preceding May 23, 2018, is 2.31%. See Board of Governors of
the Federal Reserve System, Data Download Program, Treasury Constant Maturities,
https://www.federalreserve.gov/datadownload. At an annual interest rate of 2.31%,
computed to the day and compounded annually, the original award of $717,405.95 has
accrued $31,087.76 in interest as of March 31, 2020. See 28 U.S.C. § 1961(b).
Regarding the appellate attorney’s fees awarded in this Order, once a judgment
on the issue of appellate attorney’s fees enters, the Chabad will be entitled to interest
14
on such fees “calculated from the date of the entry of the judgment.” 28 U.S.C. § 1961.
The average interest rate for the week of 3/23/2020 – 3/27/2020 is 0.17%. Therefore,
as of the date of the entry of this Order, the $59,828.92 awarded in appellate attorney’s
fees will accrue interest, compounded annually, at a rate of 0.17%.
D.
Post-Judgment Remedy
Finally, the Chabad asks this court to “order the Borough of Litchfield to assess
the property owners to pay for the judgment.” Mot. for Appellate Attorney’s Fees at 9.
The Chabad states that, during oral arguments before the Second Circuit Court of
Appeals, counsel for the defendants indicated that a fee award would require the
Borough of Litchfield to assess the property owners to ypay for the fee award. Id.
Because “it takes time to have properties assessed and the tax bill sent out for
payment,” the Chabad requests that this court order the defendants to “begin the
assessment process so that the same will occur in the Winter 2020 property tax bills
and payment will be made 30 days after collection.” Id. at 10. The defendants argue
that the Chabad has provided “no authority, statutory or otherwise, which would allow
such an order.” Defs.’ Opp. to Mot. for Appellate Attorney’s Fees at 5. The Chabad, in
response, argues that “the authority to create the debt implies an obligation to pay it,”
and that the “Borough undoubtedly has an obligation to pay” the debt it incurred in this
litigation. Reply in Supp. of Mot. for Appellate Attorney’s Fees (Doc. No. 356) at 2-3.
The court has issued a Notice accompanying this Ruling, which requests further
briefing on this issue.
IV.
CONCLUSION
For the reasons stated above, the Chabad’s Motion for Appellate Attorney’s Fees
(Doc. No. 350) is granted in part and denied in part. The court awards a total of
15
$54,849.25 in appellate attorney fees, which reflects the calculation above, see supra
Section III(A). In addition, the court awards $4,457.17 in appellate costs, for a total
monetary award of $ 59,306.42.The Chabad will be entitled to interest on the appellate
attorney’s fees awarded in this Order from the date of judgment once such judgment
enters.
The court also holds that the Chabad is entitled to interest on the court’s previous
award of $717,405.95, at a rate of 2.31%, computed beginning on May 23, 2018. As of
March 31, 2020, the amount of such interest is $31,087.76.
SO ORDERED.
Dated this 31st day of March, 2020 at New Haven, Connecticut.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
16
APPENDIX A
TOTAL AMOUNT SUBTRACTED
Firm
Amount Subtracted
ALI
$
2,583.00
Halloran Sage
$
918.75
Dalton & Tomich
$
23,992.00
Total
$
27,493.75
Pg.
of
Def. Doc.
Ex. 355 Firm
Date
A
4 ALI
6/20/2018
A
4 ALI
6/22/2018
A
4 ALI
7/11/2018
A
4 ALI
7/19/2018
4 ALI
A
A
5 ALI
A
5 ALI
A
5 ALI
Item
Receive and review
letter from Attorney
Dalton regarding
cross-appeal of
Order granting fees
and costs
Receive and review
multiple items from
2d Cir re crossappeal
Receive and review
multiple items from
Second Circuit
regarding crossappeal of Order
granting fees and
costs
Initial drafting of
appearance for
Second Circuit
Amount
Billed ($)
Reduct- Amount
ion (%) Subtracted ($)
$
41.00
100% $
41.00
$
123.00
100% $
123.00
$
246.00
100% $
246.00
$
82.00
100% $
82.00
Reviewing file and
drafting letter to DOJ
7/25/2018 attonrey Langworthy $
41.00
50% $
20.50
50% $
348.50
50% $
779.00
50% $
184.50
Reviewing Chabad
10/22/2018 draft brief and cases $
697.00
Reviewing additional
cases for Chabad
10/24/2018 brief
$ 1,558.00
Receive and review
11/2/2018 Chabad final brief
$
369.00
1
APPENDIX A
A
5 ALI
1/2/2019
A
5 ALI
1/6/2019
A
5 ALI
8/14/2019
A
Halloran
7 Sage
6/19/2018
A
Halloran
7 Sage
6/19/2018
A
Halloran
7 Sage
6/20/2018
Receive and review
HDC reply brief
Reviewing cases
cited in HDC reply
brief
Receive and review
Opinion of 2d Cir on
Order granting fees
and costs
Draft Email to CoCounsel analyzing
potential crossappeal issues
Email from response
to Dan Dalton
regarding appeal
and possible crossappeal
Confer with Co
Counsel Regarding
Appeal
A
Halloran
7 Sage
Confer with Dan
Dalton and Dan
Krisch regarding 2d
Cir appeal and
substantive and
procedural strategy
associated with
7/5/2018 cross-appeal
A
Halloran
7 Sage
Review and revise
and draft additions
10/29/2018 to appellate brief. . .
A
A
$
328.00
50% $
164.00
$ 1,066.00
50% $
533.00
$
123.00
50% $
61.50
$
150.00
100% $
150.00
$
75.00
50% $
37.50
$
150.00
50% $
75.00
$
150.00
50% $
75.00
$ 1,162.50
50% $
581.25
Dalton &
10 Tomich
Prepare notice of
Cross Appeal;
application to admit
6/20/2018 in the Second Circuit $
492.00
100% $
492.00
Dalton &
10 Tomich
Complete Admission
for Appeal, review
local appellate rules,
multiple e-mails with
6/29/2018 local couns
$ 1,394.00
100% $
1,394.00
2
APPENDIX A
A
Dalton &
10 Tomich
7/5/2018
A
Dalton &
10 Tomich
7/6/2018
A
Dalton &
10 Tomich
7/9/2018
A
Dalton &
12 Tomich
7/11/2018
A
Dalton &
12 Tomich
7/12/2018
A
Dalton &
12 Tomich
7/13/2018
A
Dalton &
12 Tomich
7/13/2018
A
Dalton &
12 Tomich
7/16/2018
A
Dalton &
12 Tomich
7/17/2018
A
Dalton &
12 Tomich
7/18/2018
Review lower court
order on fees
Preparation of
outline re contents of
appellee brief and
cross appeal
Conference call with
local counsel re
appeal and corss
appeal
Begin preaparing
our Opening Brief for
cross-appeal
Continue
preparing/drafting
Response Brief to
Litchfield's appeal
and our Opening
Brief on App
Review of 2d Circuit
and US Supreme
Court case law re
attorney fees for
administrative
process
Preparation of
argument in
Opening Brief re
attoey fees for
administrative
proceedings
Continued
preparation of
Response Brief and
Opening Brief on
Appeal
Continued
preparation of Brief
on Appeal and
Cross Appeal
Continued
preparation of Brief
on appeal
3
$
687.50
50% $
343.75
$
357.50
50% $
178.75
$
137.50
50% $
68.75
$ 1,045.00
100% $
1,045.00
$ 1,237.50
50% $
618.75
$
440.00
100% $
440.00
$
687.50
100% $
687.50
$
412.50
50% $
206.25
$
770.00
50% $
385.00
$
440.00
50% $
220.00
APPENDIX A
A
Dalton &
12 Tomich
A
Dalton &
12 Tomich
Preparation of
appellate brief with
attention to cross
8/24/2018 appeal arguments
Continued
preparation of
8/27/2018 appellate brief
A
A
$
522.50
100% $
522.50
$
385.00
50% $
192.50
Dalton &
12 Tomich
Preparation of
appellate brief with
attention to crossappeal arguments;
additional review of
9/4/2018 . . .
$ 1,457.50
100% $
1,457.50
Dalton &
14 Tomich
Additional
preparation of
argument attorney
fees for
administrative
hearing in brief on
9/5/2018 appeal
$
330.00
100% $
330.00
$
577.50
100% $
577.50
$
412.50
100% $
412.50
$ 1,237.50
100% $
1,237.50
$ 1,732.50
50% $
866.25
A
Dalton &
14 Tomich
A
Dalton &
14 Tomich
A
Dalton &
14 Tomich
A
Dalton &
14 Tomich
Continued
preparation of brief
on appeal with
attention to fees for
admin hearings and
9/6/2018 50% . . .
Continue drafting
cross appeal
arguments re admin
hearing fees and
9/7/2018 50% cut
Continue preparing
brief on appeal with
attention to
arguments re
administrative
9/10/2018 hearing fees
Additional review of
attorney fee filings
and order additional
review of bench
9/11/2018 ruling
4
APPENDIX A
A
Dalton &
14 Tomich
A
Dalton &
16 Tomich
A
Dalton &
16 Tomich
A
Dalton &
16 Tomich
Continue drafting
Brief on Appeal with
attention to nature of
the case, statement
9/20/2018 of facts . . .
$ 1,237.50
Continued
preparation of brief
10/2/2018 on appeal
$
852.50
Continue drafting of
principal arguments;
additional revisions /
finalizations to
10/4/2018 response argument $ 1,677.50
Continue
drafting/revising of
principal and
response
arguments;
continued revisions
10/5/2018 to factual
$ 1,540.00
A
Dalton &
16 Tomich
A
Dalton &
16 Tomich
Continued drafting of
brief with attention to
summary of
10/9/2018 attorney's fee ruling $ 1,320.00
Continue
preparing/finalizing
brief on appeal with
attention to our
arguments re admin
10/11/2018 hearings
$ 1,677.50
Dalton &
16 Tomich
Dalton &
16 Tomich
Finalize body of
brief; prepare table
of contents and table
10/12/2018 of authorities
$ 1,182.50
Finalize and file the
10/30/2018 appeal brief
$ 1,683.00
A
A
5
50% $
618.75
50% $
426.25
50% $
838.75
50% $
770.00
50% $
660.00
100% $
1,677.50
50% $
591.25
50% $
841.50
APPENDIX A
A
Dalton &
18 Tomich
A
Dalton &
18 Tomich
Review fee decision
and briefs to distill
oral argument points
4/25/2019 for Atty Dalton
$
943.00
Review briefs on
appeal for appellate
6/1/2019 argument
$ 1,517.00
A
Dalton &
18 Tomich
Prepare to argue
appeal; review briefs
6/3/2019 and new case law
$ 2,583.00
A
Dalton &
18 Tomich
A
Dalton &
18 Tomich
Continue to prepare
6/7/2019 for oral argument
$ 1,763.00
Review record,
prepare for oral
arguments regarding
6/8/2019 appeal
$ 2,173.00
B
Dalton &
23 Tomich
B
Dalton &
23 Tomich
B
Dalton &
25 Tomich
Prepare
Acknowledgement
and Notice of
Appearance form
and proof of service
7/10/2018 for appeal . . .
Review various
orders filed by
7/10/2018 Second Circuit
Continued
preparation of Brief
7/19/2018 on Appeal
B
B
TOTAL
50% $
471.50
50% $
758.50
50% $
1,291.50
50% $
881.50
50% $
1,086.50
$
110.00
50% $
55.00
$
82.50
50% $
41.25
$
687.50
50% $
343.75
Dalton &
27 Tomich
Additional
preparation of brief
on appeal; prepare
list of documents to
include in
9/21/2018 appendices
$
632.50
50% $
316.25
Dalton &
29 Tomich
Continued
preparation of
principal arguments
in appellate brief,
continued review of
10/3/2018 documents
$ 1,292.50
50% $
$
646.25
27,493.75
6
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