Faith Action For Community Equity et al v. State of Hawaii et al

Filing 285

ORDER GRANTING MOTION FOR ATTORNEYS' FEES re 276 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/1/2015. "Plaintiffs' motion for attorneys fees is granted. Plaintiffs are awarded $50,000.00 in fees." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FAITH ACTION FOR COMMUNITY
EQUITY, et al.,

)
)
)
)
Plaintiffs,
)
)
vs.
)
)
HAWAII DEPARTMENT OF
)
TRANSPORTATION, et al.,
)
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00450 SOM/RLP
ORDER GRANTING MOTION FOR
ATTORNEYS’ FEES

ORDER GRANTING MOTION FOR ATTORNEYS’ FEES
I.

INTRODUCTION.
The court has before it a motion for attorneys’ fees

filed by Plaintiffs Faith Action for Community Equity (“FACE”)
and Tochiro Kochiro Kovac (collectively, “Plaintiffs”).
Plaintiffs seek $50,000.00 in attorneys’ fees pursuant to a
settlement agreement between the parties in this case.

The

motion is granted.
II.

BACKGROUND.
The court and the parties are familiar with the factual

background of this case.

The court, therefore, includes only

information relevant to disposition of the motion for attorneys’
fees in this section.
The parties reached a settlement agreement on the eve
of trial.

Pursuant to that agreement, the issue of attorneys’

fees was reserved for this court’s resolution according to “(1)

whether the terms of the settlement agreement and accompanying
documents entitle Plaintiffs to be deemed prevailing parties; and
(2) whether Plaintiffs are responsible for causing Defendants to
change their position by offering translated [driver’s license]
examinations in 2014.”

See ECF No. 276-3, PageID # 6358.

The

parties agreed that any award of attorneys’ fees could not exceed
$50,000.00.

See id.

On June 29, 2015, Plaintiffs filed their motion for
attorneys’ fees, seeking an award of $50,000.00 pursuant to the
settlement agreement.

See ECF No. 276, PageID # 6319.

Plaintiffs contend that the terms of the settlement agreement,
along with the stipulation for dismissal and order, make them
prevailing parties.

See ECF No. 276-1, PageID # 6326.

Plaintiffs also contend that they are responsible for Defendants’
decision to offer translated driver’s license examinations in
2014.

See id.

Plaintiffs note that the $50,000.00 requested is

a fraction of the $382,108.40 in attorneys’ fees incurred from
September 2013 to June 1, 2015.

See id. at PageID # 6327.

In their opposition, Defendants contend that Plaintiffs
lack standing to pursue an award of attorneys’ fees.
279, PageID #s 6610-16.

See ECF No.

In the alternative, Defendants challenge

Plaintiffs’ alleged status as prevailing parties and object to

2

certain fee entries.
III.

See id. at PageID #s 6616-35.

MR. KOVAC IS A PARTY TO THE SETTLEMENT AGREEMENT.
Defendants contend that Mr. Kovac is not a party to the

settlement agreement and therefore is not entitled to an award of
attorneys’ fees pursuant to that agreement.
PageID #s 6608, 6619.

See ECF No. 279,

Defendants are incorrect.

The settlement

agreement specifically discusses the circumstances under which
“Plaintiffs” will be entitled to attorneys’ fees.
276-3, PageID # 6358.

See ECF No.

Further, agreement to the terms of the

settlement agreement was the consideration Defendants provided to
Mr. Kovac in exchange for dismissal of his claims.
IV.

PLAINTIFFS ARE PREVAILING PARTIES.
A party that prevails under 42 U.S.C. § 1983 may be

awarded a reasonable attorney’s fee.

See 42 U.S.C. § 1988(b).

“Litigation that results in an enforceable settlement agreement
can confer ‘prevailing party’ status on a plaintiff.”

La

Asociacion de Trabajadores de Lake Forest v. City of Lake Forest,
624 F.3d 1083, 1089 (9th Cir. 2010).

The Ninth Circuit uses the

following three-part test in determining whether a settlement
agreement confers prevailing party status: “(1) judicial
enforcement; (2) material alteration of the legal relationship
between the parties; and (3) actual relief on the merits of the
plaintiff’s claims.”

Id. (internal quotation marks and brackets

omitted).

3

The parties agree that their settlement agreement meets
the first prong of the three-part test.

See ECF No. 276-1,

PageID # 6336; ECF No. 279, PageID # 6609.

This court’s

retention of jurisdiction over the parties’ settlement agreement
constitutes judicial enforcement for prevailing party purposes.
See Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir. 2008)
(finding sufficient judicial imprimatur when “the district court
dismissed Plaintiff’s case pursuant to a settlement agreement
between the parties under which the court retained jurisdiction
to enforce the settlement”); Richard S. v. Dep’t of Developmental
Servs. of Cal., 317 F.3d 1080, 1088 (9th Cir. 2003) (“Through
their legally enforceable settlement agreement and the district
court’s retention of jurisdiction, plaintiffs obtained a
‘judicial imprimatur’ that alters the legal relationship of the
parties.” (internal quotation marks omitted)); Haw. Def. Found.
v. City & Cnty. of Honolulu, Civ. No. 12-00469 JMS-RLP, 2014 WL
2804445, at *3 (D. Haw. Apr. 22, 2014) (“A legally enforceable
settlement agreement that provides that the court retains
jurisdiction over the issue of attorneys’ fees is sufficient to
convey ‘judicial imprimatur’ over the settlement.”).
Defendants contend, however, that the settlement
agreement does not satisfy the second and third prongs of the
three-part test.

See ECF No. 279, PageID # 6609.

disagrees.

4

This court

The settlement agreement materially altered the legal
relationship between the parties.

A material alteration occurs

when a settlement agreement “allows one party to require the
other party ‘to do something it otherwise would not be required
to do.’”

See Jankey, 537 F.3d at 1130 (quoting Fischer v.

SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000)).

In this

case, the settlement agreement requires Defendants to continue
offering translated driver’s examinations for five years in the
twelve languages offered at the time of the agreement.
No. 276-3, PageID # 6358.

See ECF

The agreement also bars withdrawal of

translated examinations if additional questions need to be added
to the examinations.

See id.

Those additions must be made

without any lapse in the availability of translated examinations.
See id.

Pursuant to the settlement, the parties are also

obligated to work cooperatively to review the Chuukese
translation of the driver’s examination for possible translation
to another dialect.

See id.

Each of these terms imposes a

requirement that Defendants have all along maintained they are
not otherwise subject to.

If Defendants fail to meet any of

these obligations, Plaintiffs may enforce them.

See id.

Although Defendants contend that the enforcement
provision is just a “standard provision” and that “it is not a
material difference that FACE can revisit the terms of its nonmonetary settlement,” ECF No. 279, PageID # 6619, neither of

5

those statements is persuasive.

The United States Supreme Court

notes that a “material alteration of the legal relationship
between the parties occurs [when] the plaintiff becomes entitled
to enforce a judgment, consent decree, or settlement against the
defendant.”

Farrar v. Hobby, 506 U.S. 103, 113 (1992).

That is

because, through enforcement, “the plaintiff can force the
defendant to do something he otherwise would not have to do.”
See Fischer, 214 F.3d at 1118.
According to Defendants, “[t]he State agreed to certain
conduct . . . that it was already going to implement.”
279, PageID # 6618.

ECF No.

Even if this is so, the agreement legally

requires those actions and permits this court to enforce the
agreement’s terms if a violation occurs.

See Trabajadores, 624

F.3d at 1089-90 (“Nor is there any doubt that the legal
relationship between the parties was materially altered by the
agreement. . . . . [W]hile everything Appellees are required to
do as a result of the settlement agreement is couched in terms of
existing policies, Appellees were not necessarily subject to the
jurisdiction of a federal court for violating those policies
until the settlement agreement was signed.”); Saint John’s
Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d
1054, 1059 (9th Cir. 2009) (“[E]ven if the Agreement required
[the defendant] to do only what it was already doing, it was
undisputed that [the defendant’s] behavior became legally

6

required rather than voluntary as a result of the Agreement.”).
Defendants also appear to argue that the settlement
agreement could not have materially altered the legal
relationship between the parties because the agreement “provides
no monetary benefit to Plaintiffs.”

ECF No. 279, PageID # 6618.

Defendants cite no authority for the proposition that a
prevailing party must have obtained monetary benefit.

The Ninth

Circuit, in fact, has specifically determined that monetary
relief is unncessary.

See Fischer, 214 F.3d at 1118.

Defendants seek to minimize the effect of the
settlement agreement by arguing that it “does not allow FACE to
dictate whether [the Hawaii Department of Transportation] must
provide translated versions of the driver’s license test, because
the parties agreed that: [‘]The terms of the agreement may be
overridden if the federal government orders the state to take
action that differs from the terms of this agreement.[’]”

ECF

No. 279, PageID # 6618.
The settlement agreement does acknowledge the
possibility that federal government action may override
settlement terms.

But this acknowledgment does not negate the

material alteration in the legal relationship between the parties
absent action by the federal government inconsistent with the
settlement agreement.
With respect to the third prong of the prevailing party

7

analysis, Plaintiffs correctly argue that they obtained actual
relief on the merits of their claims through the settlement
agreement.
To satisfy the third prong, “a plaintiff must receive
some actual relief that serves the goals of the claim in his or
her complaint.”

Trabajadores, 624 F.3d at 1090.

Plaintiffs’

Complaint clearly indicates that their claims were filed to
ensure access to translated driver’s license examinations.
e.g., ECF No. 60, PageID #s 904-05.

See,

Throughout this lawsuit,

Plaintiffs have expressed concern with the long period that
translated examinations were unavailable following legislation
requiring that one new question be added.

See, e.g., ECF No. 60,

PageID #s 916-17; ECF No. 134, PageID #s 2121-22, 2141, 2143.
The settlement agreement requires Defendants to offer translated
driver’s examinations for five years in the twelve languages
offered at the time of the agreement, and to update translated
examinations without any lapse in the availability of
translations.

See ECF No. 276-3, PageID # 6358.

These

settlement terms provide Plaintiffs with actual relief going
directly to their claims.

See Saint John’s, 574 F.3d at 1059

(“If the plaintiff has succeeded on any significant issue in
litigation which achieved some of the benefit the parties sought
in bringing suit, the plaintiff has crossed the threshold to a
fee award of some kind.” (internal quotation marks and brackets

8

omitted)).
The settlement agreement also requires Plaintiffs to
demonstrate that they were “responsible for causing Defendants to
change their position by offering translated examinations in
2014.”

See ECF No. 276-3, PageID # 6358.

Plaintiffs argue that

they were indeed responsible for Defendants’ decision to
reinstate translated examinations that had previously been
offered and to provide additional translations in Chuukese,
Marshallese, Ilocano, and Spanish.
6336.

See ECF No. 276-1, PageID #

The court agrees.
Offering translated examinations was clearly not a high

priority for Defendants once the translated examinations became
unavailable in October 2008.

See, e.g., ECF No. 276-11, PageID #

6384 (“It was just lower priority with all of the other health
and safety issues and programs that were moving along.”).

Nearly

five and a half years passed before translated examinations were
reinstated.

For translations previously offered, only a single

new question had to be translated and answered!

This lengthy

delay cuts against Defendants’ contention that the decision to
offer translated examinations in March 2014 had nothing to do
with Plaintiffs or this litigation.

See, e.g., ECF No. 279,

PageID # 6617 (“[B]ecause HDOT had always planned on offering
translated driver’s license tests, it went forward with that plan
without regard to the institution of this lawsuit.”).

9

In an internal Department of Transportation memorandum
dated July 23, 2013, FACE’s efforts are specifically cited as a
reason for the decision to reinstate translated examinations.
See ECF No. 276-4, PageID #s 6359-60.

The memorandum notes that,

from April to June 2013, FACE had repeatedly requested meetings
with the Director of the Department of Transportation regarding
the translated examinations, and that various state officials met
with FACE on April 26, 2013, “[i]n an effort to address FACE’s
concerns.”

See id. at PageID # 6359.

The memorandum requests

funding for translated examinations, noting that the decision to
reinstate translated examinations was “[b]ased on [the Motor
Vehicle Safety Office’s] intent to reinstate the translation
program, combined with FACE’s recommendations and [the Office of
Civil Rights’] review of compliance with [the Department of
Transportation’s] Language Access Plan.”

See id. at PageID #

6360 (emphasis added).
To support their argument that the decision to offer
translated examinations in 2014 had nothing to do with
Plaintiffs, Defendants cite deposition testimony from Clifton
Harty stating that “[t]he decision to translate was made in 2013,
but the translations weren’t made available again until March
17th, 2014.”

ECF No. 279-2, PageID #6642.

This statement gives

absolutely no indication of the motivation behind Defendants’
decision to offer translated examinations in 2014.

10

That is, the

testimony does not indicate that the timing of the reinstatement
of translations was independent of this lawsuit.
The Department of Transportation memorandum stating
that Plaintiffs did indeed have an impact on Defendants’ decision
to reinstate translated examinations, along with Defendants’
general awareness of and concern with Plaintiffs’ efforts,
undermines Defendants’ argument that Plaintiffs were not
responsible for the decision to offer translated examinations in
2014.

See ECF No. 135-25, PageID # 2344 (email correspondence

from Department of Transportation indicating that future meeting
with FACE “just got pretty important” because FACE had presented
petition for translated examinations).

On a more fundamental

level, it is difficult to believe that the decision to offer
translated examinations in 2014 had nothing to do with Plaintiffs
when there is remarkable overlap between Plaintiffs’ involvement
and Defendants’ efforts to reinstate translated examinations
after little to no progress for many years.
Defendants argue, in the alternative, that even if
Plaintiffs caused Defendants to change their priorities, “it was
unquestionably FACE’s advocacy and not its litigation that caused
any such change.”

ECF No. 279, PageID # 6623.

Defendants note

that the July 23, 2013, Department of Transportation memorandum
requesting funding for translated examinations preceded the start
of this litigation, making it “illogical to claim that this

11

litigation caused HDOT to issue the memorandum.”

See id. at

PageID #s 6622-23.
This court is unpersuaded by Defendants’ argument.

It

was because Plaintiffs’ “advocacy” efforts did not immediately
yield results that Plaintiffs proceeded with litigation.
Translated examinations were not reinstated until March 2014,
several months after this lawsuit was filed.

If it was

Plaintiffs’ mere request that caused translations to be
reinstated, it is hard to understand why the translations were
not reinstated sooner and why this lawsuit has been so
contentious.
Plaintiffs demonstrate that they are prevailing parties
under Ninth Circuit case law and the settlement agreement.

As a

result, Plaintiffs are entitled to reasonable attorneys’ fees.
See 42 U.S.C. § 1988(b).
V.

PLAINTIFFS ARE ENTITLED TO $50,000.00 IN ATTORNEYS’
FEES.
The calculation of an award of reasonable attorneys’

fees is generally based on the traditional “lodestar” method set
forth in Hensley v. Eckerhart, 461 U.S. 424 (1983).
214 F.3d at 1119.

See Fischer,

A reasonable fee is determined by multiplying

“the number of hours reasonably expended on the litigation” by “a
reasonable hourly rate.”

Hensley, 461 U.S. at 433 (1983).

resulting lodestar figure is presumptively reasonable.

The

See

Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996);
12

Cunningham v. Cnty. of Los Angeles, 879 F.2d 481, 484 (9th Cir.
1988).
A court may adjust the lodestar figure based on several
factors, including: the time and labor involved, the preclusion
of other employment by the attorney due to acceptance of the
case, the customary fee, time limitations imposed by the client
or the circumstances, the “undesirability” of the case, the
nature and length of the professional relationship with the
client, and awards in similar cases.

See Booth v. Wong, Civ. No.

10-00680 DKW-RLP, 2015 WL 4663994, at *2 (D. Haw. July 17, 2015),
report and recommendation adopted, Civ. No. 10-00680 DKW-RLP,
2015 WL 4676343 (D. Haw. Aug. 5, 2015); see also Fischer, 214
F.3d at 1119; Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70
(9th Cir. 1975).
In this case, the settlement agreement reached between
the parties limits any fee award to $50,000.00.

See ECF No. 276-

3, PageID # 6358.
A.

Reasonable Hourly Rate.

The reasonableness of an hourly rate is determined
based on consideration of the experience, skill, and reputation
of the attorney requesting fees.

See Webb v. Ada Cnty., 285 F.3d

829, 840 (9th Cir. 2002); Robinson v. Plourde, 717 F. Supp. 2d
1092, 1097 (D. Haw. 2010).

A reasonable hourly rate should

reflect the prevailing market rates in the community.

13

Jordan v.

Multnomah Cnty., 815 F.2d 1258, 1262 (9th Cir. 1987); Robinson,
717 F. Supp. 2d at 1097 (D. Haw. 2010).
Plaintiffs have requested the following hourly rates
for work performed by Alston Hunt Floyd & Ing and Hawaii
Appleseed Center for Law and Economic Justice:
Name

Title

Rate/Hour

Years of
Experience

Paul Alston

Partner

$592

43

Gavin Thornton (at
Appleseed)

Director

$240

12

J. Blaine Rogers

Partner

$325

8

John-Anderson L.
Meyer

Of Counsel

$250

8

Claire Wong Black

Associate

$225, $250

8

Michelle N. Comeau

Associate

$210

8

Lucas Myers

Associate

$185

5

Zachary DiIonno

Associate

$165, $175

1

Kelly Guadagno

Paralegal

$125, $130

20

Iris Takane

Paralegal

$145

24

Brian Morrow,
Joshua Michaels,
and Kenneth Kaufman

Law Clerks

$125

0

Jya Bunch

Document
Analyst

$50

Not provided

ECF No. 276-1, PageID # 6340.

Defendants do not specifically

object to the reasonableness of any hourly rate.
This court’s knowledge of the community’s prevailing
rates, the hourly rates generally granted by the court, the
14

court’s familiarity with this case, and the information provided
by counsel support the conclusion that the hourly rates requested
for Gavin Thornton and Jya Bunch are reasonable.

See BlueEarth

Biofuels, LLC v. Hawaiian Elec. Co., Civ. No. 09-00181 LEK-KSC,
2015 WL 881577, at *13 (D. Haw. Feb. 27, 2015) (permitting rate
of $50 per hour for document analyst); Valencia v. Carrington
Mortgage Servs., LLC, Civ. No. 10-00558 LEK-RLP, 2013 WL 3223628,
at *8 (D. Haw. June 25, 2013) (permitting rate of $250 per hour
for partner with twelve years of experience).
This court need not expressly approve the hourly rates
for the attorneys, law clerks, and paralegals at Alston Hunt
because, even if this court only approved lower rates, Plaintiffs
would be entitled to $50,000 in fees.

Without ruling on whether

the requested hourly rates for the Alton Hunt attorneys, law
clerks, and paralegals are or are not reasonable, this court,
recognizing that it makes no difference in this case, will treat
the applicable hourly rates as lower than requested.
Name

Requested Hourly
Rate

Hourly Rate Applied
Here

Paul Alston

$592

$425

J. Blaine Rogers

$325

$250

John-Anderson L.
Meyer

$250

$200

Claire Wong Black

$225, $250

$190

Michelle N. Comeau

$210

$190

Lucas Myers

$185

$175
15

Zachary DiIonno

$165, $175

$140

Kelly Guadagno
(paralegal)

$125, $130

$95

Iris Takane
(paralegal)

$145

$100

Brian Morrow,
Joshua Michaels, and
Kenneth Kaufman

$125

$100

See Booth, 2015 WL 4663994, at *3-4 (permitting rates of $500 per
hour, $100 per hour, and $95 per hour for Paul Alston, Iris
Takane, and Kelly Guadagno, respectively); BlueEarth, 2015 WL
881577, at *13 (permitting rate of $100 for law clerks, $140 for
a first-year associate, $190 for an attorney with 8 years of
experience, and $425 for Paul Alston); Valencia, 2013 WL 3223628,
at *8 (permitting rate of $175 per hour for a fifth-year
associate).
B.

Reasonable Hours Expended.

The party seeking fees “bears the burden of documenting
the appropriate hours expended in the litigation and must submit
evidence in support of those hours worked.”
987 F.2d 1392, 1397 (9th Cir. 1992).

Gates v. Deukmejian,

The opposing party then has

the burden of rebuttal “that requires submission of evidence to
the district court challenging the accuracy and reasonableness of
the hours charged or the facts asserted by the prevailing party
in its submitted affidavits.”

Id. at 1397-98.

Work that is

“excessive, redundant, or otherwise unnecessary” is not
16

compensable.

See Hensley, 461 U.S. at 434; BlueEarth, 2015 WL

881577, at *14.

The district court has “a great deal of

discretion in determining the reasonableness” of a fee request.
Gates, 987 F.2d at 1398.
Defendants object to certain expenditures of time on
the ground that Plaintiffs’ counsel violated the Rules of
Professional Conduct.

According to Defendants, “The time records

submitted by Plaintiffs show that their attorneys (1) knowingly
failed to turn over relevant evidence that had been requested in
discovery, (2) improperly contacted State officials concerning
the subject matter of this lawsuit without the consent of the
Attorney General’s Office, (3) misrepresented the extent of their
collaboration with the United States Department of Justice, and
(4) billed for time spent speaking to the press about this
litigation.”

ECF No. 279, PageID # 6625.

Many, if not all, of

these arguments are irrelevant to Plaintiffs’ fee request.
For example, Defendants’ argument that Plaintiffs’
counsel deliberately failed to produce various YouTube videos
involves a discovery issue immaterial to the present motion.
Even if this court were inclined to address purported discovery
violations at this time, Defendants fail to demonstrate that the
YouTube videos in question were responsive to any discovery
request.

While the two videos are recordings of oral

communications, they do not appear to be “written or electronic

17

communications between [Plaintiffs] and the Hawaii Department of
Transportation.”

See ECF No. 279-4, PageID # 6653; ECF No. 279,

PageID # 6626.
Even if the court accepted all of Defendants’
objections to Plaintiffs’ fee request and excluded the time
associated with those objections, Plaintiffs would be entitled to
the requested fee award of $50,000.00.1
more than $50,000.00 in this litigation.

Plaintiffs incurred far
After reviewing the

timesheets submitted by Plaintiffs, this court concludes that at
least $50,000.00 was reasonably and necessarily incurred.2

1

In their opposition, Defendants say that they “challenge
all time entries in the Motion.” ECF No. 279, PageID # 6633.
Local Rule 54.3(f) requires that “[t]he responsive memorandum in
opposition to a motion for attorneys’ fees and related nontaxable
expenses shall identify with specificity all disputed issues of
law and fact, each disputed time entry, and each disputed expense
item.” Defendants may not rely on a blanket objection to all
time entries. Therefore, any time entry not specifically
identified is not considered objected to by Defendants.
2

Defendants argue that this court should require
Plaintiffs’ counsel to resubmit their timesheets to include only
compensable entries. That request is denied.
The case Defendants rely on, De-Occupy Honolulu v. City &
County of Honolulu, Civ. No. 12-00668 JMS-KSC, 2015 WL 1013834
(D. Haw. Mar. 9, 2015), involved timesheets that were “rife with
non-compensable entries.” See Civ. No. 12-668, ECF No. 221,
PageID # 4867. That is not the case here.
A party seeking attorneys’ fees “should make a good faith
effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary,” Hensley, 461 U.S. at 434,
but the mere inclusion of an allegedly noncompensable entry does
not necessarily require resubmission of timesheets. Plaintiffs
are not obligated to imagine everything Defendants may complain
about and to submit complaint-free timesheets.
18

Although many different combinations of time entries
could lead to an award of $50,000.00 in reasonable and necessary
fees for Plaintiffs, this court outlines the following as one
example of a $50,0000.00 fee award:
Name

Litigation
Phase

Hours

Rate

Total

$425

Paul Alston
Motions
Practice
Attending
Court
Hearings

0.5

$212.50

3.7

$1,572.50
$240

Gavin
Thornton
Depositions

24.2

$5,808.00
$190

Claire Wong
Black
Depositions

92.2

$17,518.00

Motions
Practice

101.3

$19,247.00

Attending
Court
Hearings

5.2

$988.00

Trial
Preparation

14.9

$2,831.00
$175

Lucas Myers
Depositions

3.3

$577.50

Motions
Practice

8

$1,400.00
$50,154.50

19

IV.

DEFENDANTS’ STANDING ARGUMENT IS REJECTED.
On May 15, 2014, with trial scheduled to begin less

than two weeks later, Defendants filed a “Request to Discuss
Threshold Matter,” seeking to challenge FACE’s standing.
No. 262.

See ECF

Because the parties ultimately reached a settlement

agreement, that request was never ruled on by this court.
In opposition to Plaintiffs’ motion for attorneys’
fees, Defendants seek to resurrect their “Request to Discuss
Threshold Matter,” again contending that FACE lacks standing for
the reasons articulated in that request.

Defendants now add that

this court’s alleged lack of jurisdiction extends to any award of
attorneys’ fees to FACE.

ECF No. 279, PageID # 6610.

As

Defendants put it, “Because FACE lacked standing to maintain this
lawsuit, it also lacks standing to be deemed a prevailing party
in order to collect attorneys’ fees.”

Id.

This court rejects Defendants’ argument.

The issue of

standing is no longer relevant, given the settlement agreement
under which this court retains jurisdiction to resolve postsettlement matters.

See Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 381 (1994) (“If the parties wish to provide
for the court’s enforcement of a dismissal-producing settlement
agreement, they can seek to do so.”).

Defendants agreed in the

settlement agreement that Plaintiffs could seek attorneys’ fees,
and the court is considering Plaintiffs’ motion pursuant to that

20

agreement.

See ECF No. 276-3, PageID # 6358.
Defendants were (or at least should have been) fully

aware that agreement to the settlement of Plaintiffs’ claims
would obviate the need for this court to address Defendants’
“Request to Discuss Threshold Matter,” which raised the same
standing argument Defendants now reassert.

While this court sees

no need to address that request at this time, the court is
surprised to see Defendants brimming with confidence that their
request would have been granted.
Moreover, Defendants had ample opportunity to challenge
FACE’s standing earlier.

Defendants unsuccessfully challenged

FACE’s standing on two prior occasions.

See ECF Nos. 80, 151.

Defendants argued that their third attempt, the “Request to
Discuss Threshold Matter” filed shortly before trial, was
triggered by Plaintiffs’ counsel’s statement in an opposition to
a motion in limine that “FACE is an organization; it has no
national origin.”

See ECF No. 262, PageID # 6170.

The status of

FACE as an organization, however, was apparent from the start of
the lawsuit.
It is also unclear to this court how Defendants can
plausibly cabin their standing argument to Plaintiffs’
entitlement to attorneys’ fees.

While contending that this court

lacks jurisdiction to award Plaintiffs attorneys’ fees,
Defendants concede that this court “approved the Settlement

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Agreement and retain[s] enforcement.”
6609.

ECF No. 279, PageID #

Under Defendants’ framework, if this court lacks

jurisdiction to award attorneys’ fees, a power specifically
contemplated by the terms of the settlement agreement, it should
likewise lack jurisdiction to enforce any of the other terms of
the settlement agreement.
In their opposition, Defendants go so far as to state
that they only agreed that FACE could seek attorneys’ fees
“because [they] knew that any prospective award of attorneys’
fees would be a violation of the United States Constitution.”
ECF No. 279, PageID #s 6617-18.
strange argument.

This is, to put it charitably, a

Defendants are saying either that (1)

Defendants agreed that FACE could, if it won its fee motion, get
what Defendants consider an unconstitutional fee award, or (2)
Defendants were agreeing to something while all along planning to
disavow the agreement as prohibited.

The latter is not at all

the same as arguing that Plaintiffs were not prevailing parties.
This court will not permit Defendants to reap the benefits of the
settlement agreement (e.g., avoidance of trial and the potential
for liability, including a money judgment and an even greater fee
award, plus costs), while seeking to avoid the burdens imposed by
the settlement agreement (e.g., the potential for attorneys’
fees).
Defendants’ standing argument is rejected.

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V.

CONCLUSION.
Plaintiffs’ motion for attorneys’ fees is granted.

Plaintiffs are awarded $50,000.00 in fees.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 1, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Faith Action for Community Equity, et al. v. Hawaii Department of
Transportation, et al.; Civ. No. 13-00450 SOM/RLP; ORDER GRANTING MOTION FOR
ATTORNEYS’ FEES

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