BIRD v. Sumter County Board of Education et al

Filing 87

ORDER for Plaintiff to submit evidence regarding the reasonableness of his requested attorney's fees within 14 days of entry of this Order. Defendant may file a response to such evidence, if filed, within 14 days of Plaintiff's submission of said evidence. Failure to submit the proper evidence may result in the denial of Plaintiff's request for attorney's fees. Ordered by U.S. District Judge W LOUIS SANDS on 4/3/14. (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
WILLIAM BIRD,
Plaintiff,
v.
SUMTER COUNTY
BOARD OF EDUCATION, et al.,
Defendants.

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CASE NO.: 1:12-CV-76 (WLS)

ORDER
On May 22, 2012, Plaintiff filed a complaint for temporary and injunctive relief,
as well as a declaratory judgment that the Sumter County Board of Education voting
districts violated the constitutional one person, one vote standard. (Doc. 1.) The Court
granted a temporary restraining order and prevented elections from occurring on July
31, 2012. (Doc. 50.) Although the Court appointed advisers to assist with redrawing the
districts, an opinion from the United States Supreme Court rendered the matter moot
before the districts were redrawn. (Docs. 70 & 75.) As such, the matter was dismissed
without prejudice. (Doc. 82.) On November 11, 2013, Plaintiff filed the Motion for
Costs and Fees currently under review. (Doc. 84.) Subsequently, Defendants filed a
Response and Plaintiff filed a Reply. (Docs. 85 & 86.) As such, Plaintiff’s Motion is ripe
for review. See M.D. GA. L.R. 7.3.1.
DISCUSSION
I.

Prevailing party standard
A prevailing party in a civil rights case is entitled to an award of attorney’s fees

under 42 U.S.C. § 1988. “The touchstone of the prevailing party inquiry . . . is the
material alteration of the legal relationship of the parties in a manner which Congress
sought to promote in the fee statute.” Sole v. Wyner, 551 U.S. 74, 82 (2007) (citing Tex.
State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 789, 792-93 (1989)). The Eleventh
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Circuit “has interpreted this language to require either ‘(1) a situation where a party has
been awarded by the court at least some relief on the merits of his claim or (2) a judicial
imprimatur on the change in the legal relationship between the parties.’ ” Common
Cause/Georgia v. Billups, 554 F.3d 1340, 1356 (11th Cir. 2009) (citing Smalbein v. City of
Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003) (per curiam)).

“[A] preliminary

injunction on the merits . . . entitles one to prevailing party status and an award of
attorney’s fees” unless “reversed, dissolved, or otherwise undone by the final decision
in the same case.” Common Cause, 554 F.3d at 1356.
In Kansas Judicial Watch v. Stout, 653 F.3d 1230 (10th Cir. 2011), the Tenth Circuit
discussed the “prevailing party” standard in the context of preliminary injunctions.
The Court contrasted two scenarios; one where the plaintiff achieved “prevailing party”
status, and the other where the plaintiff did not. In Dahlem v. Bd. of Educ., 901 F.2d 1508
(10th Cir. 1990), a high-school senior sued his high school because he was not permitted
to join the girls’ gymnastic team and the school did not have a boys’ team. Id. at 1510.
The district court granted a preliminary injunction that allowed him to participate on
the girls’ gymnastic team. Id. During the pendency of the defendants’ interlocutory
appeal, the plaintiff graduated from high school, thus rendering the matter moot. Id.
The Tenth Circuit held that the Dahlem plaintiff was a “prevailing party” because “the
district court’s order granting preliminary relief explicitly stated that there was a
substantial likelihood that Dahlem would ultimately prevail on his claim.” Stout, 653
F.3d at 1235-36 (citing Dahlem, 901 F.2d at 1511-12). The Dahlem Court explained that
the plaintiff prevailed because “[h]e brought suit so that he could participate in
interscholastic gymnastics during his senior year [and b]ecause of the district court’s
preliminary injunction, he did so participate.” Dahlem, 901 F.2d at 1513.
The Tenth Circuit reached a different conclusion, however, in Biodiversity
Conservation Alliance v. Stem, 519 F.3d 1226 (10th Cir. 2008). In that case, the plaintiff
brought suit after the U.S. Forest Service authorized a sale of timber in the Cement
Region of the Black Hills National Forest, and sought to enjoin an imminent timber sale.
Id. at 1227-28. The district court granted an injunction to maintain the status quo and

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did not make a finding that the plaintiff had a substantial likelihood of prevailing on the
merits. Id. at 1228. The Tenth Circuit distinguished that case from Dahlem because
“[t]he injunction did not prevent the Forest Service from continuing to meet and plan in
regards to the Cement Project[,] grant the relief that [the plaintiff] sought[,] or address[]
whether the Cement Project was arbitrary and capricious.” Id. at 1232. In other words,
the plaintiff “won the right to have the status quo preserved, so that had it prevailed on
the merits, its victory would have meaning.” Id. (emphasis supplied).
In Kansas Judicial Watch, applying the principles from Dahlem and Stem, the Tenth
Circuit concluded that the plaintiffs were prevailing parties. The plaintiffs had brought
suit against individual members of the Kansas Commission on Judicial Qualifications
challenging the constitutionality of certain judicial canons. Id. at 1232-33. On the same
day that the plaintiffs brought suit, they moved for a preliminary injunction to prevent
the Commission from initiating disciplinary proceedings under the challenged cannons.
Id. at 1233. The district court concluded that the plaintiffs were likely to succeed on the
merits, concluded that the clauses were indeed unconstitutional, and granted the
preliminary injunction. Id. at 1239. The preliminary injunction was dissolved “only
after the Kansas Supreme Court amended the challenged canons and rendered [the
plaintiffs’] claims against the Commission moot.” Id. Under those facts, the Tenth
Circuit concluded that the plaintiffs were prevailing parties.
In Rogers Group v. City of Fayetteville, 683 F.3d 903 (8th Cir. 2012), the Eighth
Circuit discussed whether a preliminary injunction creates prevailing party status. The
plaintiffs in that case brought suit to enjoin the City of Fayetteville, Arkansas, from
enforcing an ordinance beginning on a date certain. Id. at 910. The Court noted that the
D.C. Circuit “identified ‘three core principles’ for a court to consider in construing the
term ‘prevailing party’ in federal fee-shifting statutes.” Id. (citing Select Milk Prods., Inc.
v. Johanns, 400 F.3d 939, 946 (D.C. Cir. 2005)) (internal citations omitted).

Those

principles are that a “prevailing party” induced a “court-ordered change in the legal
relationship between the plaintiff and the defendant”; “is a party in whose favor a
judgment is rendered”; and is not a “prevailing party merely by virtue of having

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acquired a judicial pronouncement unaccompanied by judicial relief.” Id. (citations
omitted).

The Rogers Group Court found that the plaintiff was a prevailing party

because the preliminary injunction blocked the defendant from enforcing an ordinance,
which the defendant planned to do on a date certain; a preliminary injunction is an
appealable order under 28 U.S.C. § 1292(a)(1); and the plaintiff received the exact
judicial relief it sought—a preliminary injunction that enjoined the implementation and
enforcement of a particular ordinance. Id. at 911.
In light of the various principles and factors discussed above, the Court finds
that Plaintiff is a prevailing party. In his Complaint, Plaintiff prayed for a declaratory
judgment that would declare unconstitutional the districts then-employed by the
Sumter County Board of Education and a temporary restraining order and permanent
injunction that would require the districts to be redrawn. In an Order issued by the
Court on June 21, 2012, after finding that Plaintiff had standing to bring this matter, the
Court granted Plaintiff’s request for a preliminary injunction because Plaintiff had
made the requisite showing that he was substantially likely to succeed on the merits, he
would suffer irreparable harm without the issuance of the injunction, the benefits of the
injunction outweighed any possible harm to Defendants, and the public interest was
largely aligned with Plaintiff’s cause of action.

(See Doc. 50.)

The result of that

injunction was that Defendants could no longer rely on the district configuration based
on the 2000 Census in any pending or future Board of Education district elections. (Id.
at 13.)

The elections that were scheduled for July 31, 2012, were enjoined and

suspended. (Id.) On March 28, 2013, the Court appointed the Legislative Congressional
Reapportionment Officer of the General Assembly of Georgia to advise the Court as to
the redrawing of the districts. (See Doc. 70.) It was not until June 25, 2013 that the
United States Supreme Court issued Shelby County, Alabama v. Holder, 133 S. Ct. (2013),
which rendered this matter moot. (See Doc. 75.)
Plaintiff achieved three goals with his suit: (1) he obtained a ruling that the
Sumter County Board of Education’s districts likely violated the constitutional one

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person, one vote standard; (2) he obtained a temporary restraining order1 that halted
elections for the Sumter County Board of Education and prevented an election from
occurring on July 31, 2012; and (3) he obtained an order appointing the Legislative and
Congressional Reapportionment Office of the General Assembly of the State of Georgia.
(Docs. 50 & 70.) Thus, similar to the plaintiffs in Dahlem and Rogers Group, Plaintiff
achieved his desired result—he prevented any further elections with malapportioned
districts. Unlike the plaintiff in Biodiversity, Plaintiff did not merely maintain the status
quo; he prevented an election from occurring and started the process of redrawing the
districts, and the Court noted that there was a substantial likelihood that Plaintiff would
succeed on the merits. Similar to Kansas Judicial Watch, the temporary restraining order
was dissolved only after the occurrence of the event that rendered the matter moot.
Based on the foregoing, the Court finds that Plaintiff is a prevailing party and thus
entitled to attorney’s fees under § 1988.2
II.

Amount of attorney’s fee due
To determine the appropriate amount of an award of attorney’s fees, the Court

multiplies the number of hours reasonably expended on a case by the reasonable or
customary hourly rate. This “lodestar” amount is then adjusted upward or downward
in light of the factors identified in Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974).3 Ordinarily, most of the Johnson factors will be reflected in the lodestar
itself—for example, time and rate—rather than in an adjustment of the lodestar. Blum v.
Stenson, 465 U.S. 886 (1984).

“A strong presumption that the lodestar figure . . .

The preliminary injunction was an appealable order under 28 U.S.C. § 1292(a)(1).
The Court notes that Defendants’ agreement at the hearing on the temporary restraining order that the
districts were malapportioned does not deprive Plaintiff of his status as a prevailing party. Even a
consent decree may afford a plaintiff prevailing party status. Am. Disability Ass’n v. Chmierlarz, 289 F.3d
1315, 1317 (11th Cir. 2002).
3 The Johnson factors are as follows:
1. The time and labor expended;
2. The novelty and difficulty of the questions raised;
3. The skill required to properly perform the legal services rendered;
4. The customary fee for like work;
5. The attorney’s opportunity costs in pressing the instant litigation;
6. The time limitations imposed by the client or circumstances;
7. The amount in controversy and the results obtained;
8. The experience, reputation, and ability of the attorney;
9. The undesirability of the case within the legal community in which the suit arose.
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represents a ‘reasonable fee’ is wholly consistent with the rationale behind the usual
fee-shifting statute.” Blanchard v. Bergeron, 489 U.S. 87, 95 (1989) (citing Pennsylvania v.
Del. Valley Citizens’ Counsel for Clean Air, 478 U.S. 546, 565 (1986)).
In support of his assertion that $250 is a reasonable hourly rate, Plaintiff offers
the following: (1) an order from this Court that awarded two attorneys in a similar case
$300 per hour over nine years ago; (2) citations of cases from the Middle District of
Alabama that awarded attorney’s fees in similar cases of $290 per hour in 1993 and
1994; and (3) an affidavit of a local attorney that attests to his belief that $250 per hour is
a reasonable rate.

“A reasonable hourly rate is the prevailing market rate in the

relevant legal community for similar services by lawyers of reasonably comparable
skills, experience, and reputation.” Norman v. Housing Authority of City of Montgomery,
836 F.2d 1292, 1299 (11th Cir. 1988) (citations omitted).

“[S]atisfactory evidence

necessarily must speak to rates actually billed and paid in similar lawsuits.” Id.

The

party seeking attorney’s fees bears the burden of demonstrating “that the requested rate
is in line with prevailing market rates.” Id. (citing NAACP v. City of Evergreen, 812 F.2d
1332, 1338 (11th Cir. 1987)).
The Court concludes that Plaintiff failed to provide sufficient evidence to
demonstrate that $250 per hour falls within a range of prevailing market rates in the
relevant legal community for similar services by lawyers of reasonably comparable
skills, experience, and reputation. See id. The affidavits submitted by Plaintiff only
attest to a local attorney’s belief that Plaintiff’s counsel’s rate is reasonable.

That

affidavit is insufficient under Eleventh Circuit case law. See id. Also, the old cases cited
by Plaintiff do not establish the prevailing market rate. The Court cannot properly
assume that inflation ensures that all rates charged today are reasonable as long as the
rates are less than rates charged ten years ago. Other factors may make that assumption
untrue and there is no evidence before the Court to support such assumption. Based on
the foregoing, Plaintiff is ORDERED to submit evidence regarding the reasonableness
of his requested attorney’s fees within fourteen (14) days of entry of this Order.
Defendant may file a response to such evidence, if filed, within fourteen (14) days of

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Plaintiff’s submission of said evidence. Failure to submit the proper evidence may
result in the denial of Plaintiff’s request for attorney’s fees.
SO ORDERED, this 3rd day of April 2014.

/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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