Idaho Building and Construction Trades Council, AFL-CIO et al v. Wasden

Filing 83

MEMORANDUM DECISION AND ORDER granting 72 Motion for Attorney Fees. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IDAHO BUILDING AND
CONSTRUCTION TRADES COUNCIL,
AFL-CIO, and SOUTHWEST IDAHO
BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO,

Case No. 1:11-cv-00253-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
LAWRENCE G. WASDEN, in his
official capacity as ATTORNEY
GENERAL FOR THE STATE OF
IDAHO,
Defendant.

INTRODUCTION
Before the Court is Plaintiffs’ Motion for Attorney Fees (Dkt. 72). The matters
are fully briefed and at issue. Being familiar with the record and having considered the
briefing, the Court will grant Plaintiffs’ Motion for Attorney Fees (Dkt.72).

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiffs, Idaho Building and Construction Trades Council, AFL-CIO and the
Southwest Idaho Building and Construction Trades Council, AFL-CIO (collectively
“Trades Councils”), brought suit against Idaho Attorney General Lawrence G. Wasden,
challenging two recent amendments to Idaho’s Right-to-Work Act. Compl., Dkt. 1.Trade
Councils alleged that these amendments—the “Open Access to Work Act,” Idaho Code
§44-2013, and the “Fairness in Contracting Act,” Idaho Code §44-2012—interfered with
the rights created by the National Labor Relations Act (“NLRA”) and were therefore
preempted. Id.
Trade Councils moved for a preliminary injunction to prevent the enforcement of
the two amendments. Mot. Prelim. Inj., Dkt. 2. Wasden opposed the motion. Inland
Pacific Chapter of Associated Builders and Contractors, Inc. (“IPC ABC”), filed an
amicus brief in support of Wasden’s position. The Court heard oral arguments, and
issued a preliminary injunction. Order, Dkt. 23.
Having succeeded at the preliminary injunction stage, Trade Councils moved to
resolve the case on summary judgment, which is where the litigation became more
complex. Wasden, as well as amicus curiae IPC ABC, opposed the motion. In addition,
Wasden also filed a cross-motion for summary judgment, which IPC ABC and the
National Right to Work Legal Defense Foundation (“NRTW”) supported by filing
amicus briefs. IPC ABC also sought to intervene. Accordingly, Trade Councils
responded – not only to Wasden’s opposing briefing but also to the issues raise in the

MEMORANDUM DECISION AND ORDER - 2

amicus brief opposing the motion, IPC ABC’s motion to intervene, and finally, to
Wasden’s cross-motion for summary judgment and the two associated amicus briefs.
The Court ultimately granted Trade Councils’ summary judgment motion. Order, Dkt.
67.
Throughout this litigation, two law firms represented Trade Councils—the Boise
law firm of Herzfeld & Piotrowski, LLP, and the Washington, D.C. law firm of Sherman,
Dunn, Cohen, Leifer & Yellig, P.C. (“Sherman Dunn”). Trade Councils now seek
attorney fees for these firms under the Civil Rights Attorney’s Fees Awards Act of 1976,
42 U.S.C. §1988.
LEGAL STANDARD
While under the traditional American rule every party bears its own cost of
litigation, an exception is created in § 1988 “to ensure effective access to the judicial
process for persons with civil rights grievances.” Hensley v. Eckhart, 461 U.S. 424, 429
(1983). That statute provides for attorney fees in “any action or proceeding to enforce a
provision of [section 1983].” 42 U.S.C. § 1988(b).
Under the statute “a prevailing plaintiff should ordinarily recover an attorney’s fee
unless special circumstances would render such an award unjust. Mendez v. County of
San Bernardino, 540 F.3d 1109, 1124 (9th Cir. 2008). Awarding attorney fees in these
cases is “the rule rather than the exception.” American Broadcasting Companies, Inc. v.
Miller, 550 F.3d 786, 787 (9th Cir. 2008).

MEMORANDUM DECISION AND ORDER - 3

Once it is determined that the movant was the prevailing party entitled to fees
under the statute, the court must determine the reasonable amount of attorney fees.
Hensley, 461 U.S. at 432. This determination is done through a “‘hybrid approach’ under
which the district court should first determine the lodestar amount…then, in its
discretion, adjust the amount” in light of other considerations. Lyttle v. Carl, 382 F.3d
978, 988 (9th Cir. 2004) (edited for clarity).
The lodestar amount is, in turn, calculated by totaling the number of hours
reasonably expended in the litigation, and multiplying that total by a reasonable hourly
rate. Id. While historically courts have considered a number of factors, many of these
factors have since been subsumed into the lodestar calculation. See Perdue v. Kenny A ex
rel Winn, 130 S.Ct. 1662, 1674 (2010); Mendez, 540 F.3d 1128-29 (inadequate
documentation such as block-billing); Cunningham v. County of Los Angeles, 879 F.2d
481 (9th Cir. 1988) (results obtained, and quality of representation). The remaining
factors are those that may, in exceptional circumstances, justify adjusting the lodestar
amount with a multiplier. Perdue, 130 S.Ct. at 1673; Cunningham, 879 F.2d at 487-88
(i.e. “Johnson/Kerr factors that have not been subsumed in the lodestar calculation”). But
when a factor is properly subsumed within the lodestar calculation, that factor should not
be used to adjust the lodestar amount. Id.
ANALYSIS
The Court starts its analysis by noting that Wasden concedes that Trade Councils
is the prevailing party under §1988. Resp. Mot.at 2, Dkt. 81. Wasden also implicitly

MEMORANDUM DECISION AND ORDER - 4

concedes, and the Court finds, that no special circumstances exist in this case, which
would take the case outside the general rule that a court should grant attorney fees under
§1988. Id. Thus, the Court need only determine the reasonable amount of attorney fees
using a lodestar calculation and whether exceptional circumstances warrant modifying
the lodestar amount.
1.

Lodestar Calculation of Reasonable Attorney Fees
Because Wasden raises concerns regarding both steps of the lodestar calculation –

the number of the hours billed and the reasonable rate – both will be addressed.
A.

Reasonable Hours

To determine a reasonable number of hours, a court is first “obligated” to consider
the results obtained and extent of success “in calculating the lodestar figure.” Morales, 96
F3d. at 364 (citing Hensley, 461 U.S. at 436). The extent of success is considered because
a movant should not recover for efforts spent on unfounded claims or unsuccessful
endeavors. See Mendez, 540 F.3d at 1128-29 (including such hours would constitute “bad
faith”). Here, Trade Councils achieved success on all their claims; therefore, the Court
need not apportion the hours according to claim or redact hours spent on fruitless efforts.
Beyond the results obtained, a court must also determine if the hours billed were
“excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Hours may
be excessive when they indicate “overstaffing of a case” or are supported by “inadequate
documentation.” Id. Especially problematic is “block-billed hours,” which prevent a court
from meaningful evaluation of the hours billed. Mendez, 540 F.3d at 1128-29. Courts,

MEMORANDUM DECISION AND ORDER - 5

however, are tasked to consider the reasonableness of the documented hours without
resort to blanket measures such as “an across-the-board reduction or rejection of all
hours.” Mendez, 540 F.3d at 1129.
To help in determining whether hours were appropriately billed, it is productive to
start with an objective scale that the non-movant will not dispute—the hours Wasden
spent on the litigation. The Court’s analysis does not end there however. Instead a careful
analysis requires going through each stage of the litigation to determine the reasonable
hours spent on the litigation.
As with the litigation, the Court will start with the complaint. Wasden agrees that
the 16.7 hours spent in drafting was reasonable; however, he reasons that 5.8 spent by
other attorneys reviewing the complaint to be unjustified. But a thorough review of the
complaint by the parties ensures that all the attorneys are “on the same page,” and helps
not only their litigants’ efforts but helps the court. Thus, the time billed on the complaint
seems acceptable.
Next the Court turns to review of hours spent on the preliminary injunction
motion. It is here that Wasden raises his main concern—in general the amount of time
spent by Trade Councils was far greater than the amount Wasden spent on the same
process. While such disparity does raise concerns with the Court, it does not, by itself,
determine if the hours billed are justifiable.
To conscientiously determine the hours, the Court must consider the hours in
context. For example here, while Piotrowski “devoted substantial time” to researching

MEMORANDUM DECISION AND ORDER - 6

federal preemption, he did not include these hours in the amount billed because they were
spent in his “efforts to dissuade the Idaho Legislature from passing the [challenged]
bills.” Piotrowski Aff. ¶ 9 Dkt. 72-3. Wasden, as attorney general, likely also had
reviewed the bill prior to the litigation, either by drafting or by reviewing the legality of
the bills. However, the Washington D.C. attorneys—Yellig, Bor, and Aguilar—did not
have a similar opportunity to prepare.
Because Yellig, Bor and Aguil did not have this “prep-work” done prior to the
litigation, they would understandably need some time to get up to speed on the specifics
of the Idaho bills. Using the hours spent by Wasden as a basis of comparison, it seems
appropriate to allow the Washington attorneys time to become similarly familiar with the
particular of the Idaho bills. Thus, the Court need not reduce the hours as Wasden
suggests.
This brings the Court to the summary judgment motion and cross motions to
determine whether reasonable time was spent on these motions. It is at this stage that
Wasden seeks the greatest reduction in hours. He contends that excessive time was spent
briefing the motions. Trade Councils accordingly counters that the increased time was
necessary because of the additional issues raised in the multiple amicus briefs. Review of
the hours reveals that the bulk of summary judgment briefing was done by the
Washington attorneys, with each of the three spending approximately the same amount of
time on the motions as Wasden did. Considering the additional issues raised by amicus

MEMORANDUM DECISION AND ORDER - 7

briefs, it seems reasonable that additional time was needed to brief the issues, and
therefore the Court need not reduce the hours spent addressing summary judgment.
Finally, Wasden finds fault with the amount of time spent opposing the motion to
intervene. It appears to Wasden that excessive time was spent for “a straightforward
analysis of a commonly-litigated procedural issue.” Resp. Mem. at 9, Dkt. 81. Rather, to
Wasden, it seems the “motion was used as an opportunity for Attorney Aguilar to
acquaint herself with [the intervention] standards.” Id. While Aguilar undoubtedly spent
some time familiarizing herself the standards and case law, the Court does not see
Aguilar’s efforts as merely “educational.” Rather, as with any young attorney, a small
amount of familiarization is subsumed in a lower billing rate. Ultimately here, Wasden’s
argument is more aptly directed at Aguillar’s billing rate, not at the hours billed.
Accounting for arithmetic errors made by counsel, the Court comes to the
following totals for reasonable hours billed: Yellig, 246.3; Bor, 187.9; Aguilar, 218.2;
Piotrowski, 137.9; Herzfeld, 2.2; Durand, .5.
B.

Reasonable Rate

After tallying the number of hours the litigation reasonably required, the lodestar
method requires evaluating the reasonableness of the rates charged. See Hensley, 461
U.S. at 433. Paramount in determining a reasonable rate is the “prevailing market rates in
the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984). The reasonable rate
is measured against the objective scale of “similar services by lawyers of reasonably
comparable skill, experience, and reputation.” Stevedoring Services of Am., Inc. v. Dir.,

MEMORANDUM DECISION AND ORDER - 8

Office of Workers Comp. Programs, 445 F. App'x 912, 913 (9th Cir. 2011) (citation
omitted).
Here, Trade Councils derived an hourly rate by reviewing this Court’s past
awards. Citing prior cases, Trade Councils arrives at an hourly rate for each attorney
based on their respective experience: $400 for Terry R. Yellig with 40 years’ experience;
$350 for Victoria L. Bor with 31 years’ experience; $175 for Esmeralda Aguilar, a
second year associate; $250 for James M. Piotrowski with 16 years’ experience; $250.00
for Alan Herzfeld with 29 years’ experience; and $185.00 for Marty Durand, a longtime
associate.
While Wasden attempts to distinguish the Court’s prior decision on the grounds
that the opposing party did not object to the hourly rate in many of those cases, this
actually undermines Wasden’s argument. The fact that the hourly rate went uncontested
supports the reasonableness of the rate; otherwise, it seems that the rates would have been
contested if they were unreasonable when compared to the market.
Finally, the Court should note that Wasden would like an hourly rate capped at
$250. Wasden reasons that Piotrowski and Herzfeld were competent local counsel so
there was no need for the guidance of the experienced Yellig and Bor. While the Court
fully agrees that both Piotrowski and Herzfeld are exceptional counsel, the Court must
confine itself to an analysis guided by objective factors. And, as already discussed, the
Court in prior cases has found the rates Yellig and Bor seek to be on par to the rates

MEMORANDUM DECISION AND ORDER - 9

charged by similarly experienced attorneys in the Boise area. The hourly rates are thus
objectively reasonable.
In summary the rates are objectively reasonable and no adjustment is necessary.
C.

Total Lodestar Amount

Taking the reasonable hours and multiplying it by a reasonable rate, the Court
determines that Trade Councils attorney fees are $237,587.50.
2.

Discretionary Adjustment for Other Factors
After determining the lodestar amount, a court may, in its discretion, adjust the

amount up or down. However, the lodestar amount is a “presumptively reasonable” fee
amount. Mendez, 540 F.3d at 1129; Heitman v. Pope, 4:11-cv-00080-BLW (D.Idaho Feb.
1, 2012). “Only in rare or exceptional cases will an attorney’s reasonable expenditure of
time on a case not be commensurate with the fees to which he is entitled.” Cunningham,
879 F.2d at 488. Any modifier “must be supported by evidence in the record
demonstrating why such a deviation…is appropriate,” id., such as a showing at trial that
the community market value “does not adequately measure the attorney’s true market
value.” Perdue, 130 S.Ct. at 1674. Other reasons include when the litigation required
extraordinary outlay of expenses, was exceptionally protracted, or required an
exceptional delay in payment of fees. Id.
In their motion, Trade Councils seeks a “bonus of 25 percent” because Trade
Councils “received a favorable ruling on all issues raised.” Mot. Att’y Fees at 3, Dkt. 72,
Mem. Supp. Mot. at 11, Dkt. 72-1. Rather than providing details as to why such an

MEMORANDUM DECISION AND ORDER - 10

enhancement should be given, Trade Councils conclusorily invokes its “exceptional
success” as a justification. Later, when challenged, Trade Councils opines that such a
bonus is justified because it would increase the total compensation to a standard
commensurate with legal fees in the Washington D.C. area, where Yelling and Bor are
located.
These arguments, however, do not fit with Ninth Circuit precedent which
emphasizes that “results obtained” is “now subsumed within the initial calculation of the
lodestar amount.” Cunningham, 879 F.3d at 486. Additionally, the “community” hourly
rate is considered in determining a reasonable hourly rate. See e.g. Blum, 465 U.S. at 895;
Mendez, 540 F.3d at 1129. Because both facts are subsumed within the initial lodestar
calculation, it is inappropriate to allow a 25% bonus without evidence that the litigation
was in some other way “exceptional,” i.e. outside the norm. Thus, the Court declines
Trade Councils’ offer to willingly accept a 25% bonus.
ORDER
IT IS ORDERED that Plaintiffs’ Motion for Attorney Fees (Dkt. 72) is
GRANTED.

DATED: April 16, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 11