Moore et al v. Tangipahoa Parish School Board et al
Filing
1326
MEMORANDUM OPINION granting 1289 Motion to Fix Court Compliance Officer Compensation. Signed by Judge Ivan L.R. Lemelle on 12/8/2015. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOYCE MARIE MOORE, ET AL.
CIVIL ACTION
VERSUS
NO. 65-15556
TANGIPAHOA PARISH SCHOOL BOARD,
ET AL.
SECTION "B"(1)
MEMORANDUM OPINION
I.
NATURE OF THE MOTION AND RELIEF SOUGHT
Before the Court is a Motion to Fix Court Compliance Officer
Compensation (Rec. Doc. No. 1289) filed by Donald C. Massey, The
current Court Compliance Officer (“CCO” or “special master”).
Massey seeks an order from this Court fixing his compensation at a
reasonable hourly rate. Plaintiffs and Tangipahoa Parish School
Board (“TPSB”) have filed a Joint Memorandum in Opposition.
II.
FACTUAL BACKGROUND
On August 28, 2014, this Court appointed Donald C. Massey as
CCO in this matter, setting his salary at $48,000.00 per year
“until further
agreement of the parties and Court Compliance
Officer or orders of this Court.” (Rec. Doc. No. 1204 at 2).
When appointed, Massey agreed to the compensation structure
budgeted for the previous CCO,
notified the Tangipahoa
Parish School System’s (“TPSS”) Superintendent, Mark Kolwe, of his
desire to review the reasonableness of the fee basis at the end of
the year. (Rec. Doc. No. 1289-1 at 1). Towards the end of the
school
year,
Massey,
Kolwe,
and
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TPSS’s
Lead
Negotiation
and
Settlement Counsel, Ashley Sandage, met to discuss a reasonable
increase in his fees. (Rec. Doc. No. 1289-1 at 2). After that
meeting, Kolwe
ed that $8,000.00 per month might be fair.
Massey agreed to accept that amount beginning after July 1, 2015.
However, when presented with the proposed $8,000 per month fee,
the Tangipahoa Parish School Board (“TPSB”) rejected the requested
increase. Following that rejection of a fee increase, Massey filed
the present motion.
III. CONTENTIONS OF THE PARTIES
Massey’s argument for increased compensation is based on an
understanding between himself and Kolwe that occurred at the time
he was appointed and/or subsequent to that appointment. He
that the Court
should increase
fee basis
so that it is
commensurate with the “effort he must necessarily expend in order
to properly serve the Court as its adjunct.” In support, he provides
the hours worked on this case per month over the last school
year. Massey
that, because special master compensation
varies so significantly, the Court may use its discretion to set
an hourly rate. He argues that an hourly rate is more appropriate
than a monthly or yearly. (Rec. Doc. No. 1289-1 at 3).
Tangipahoa Parish School Board and Plaintiffs’ counsel have
filed a Joint Opposition to the present motion. The Parties urge
that the Motion should be denied because the CCO’s compensation
has already been set by the Court, and, in any event, he does not
have the authority to file adversarial motions. (Rec. Doc. No. 1032
2
at 304). In the alternative, if the Court finds that
consider
Motion, Plaintiffs and TPSB contend that the
Court should deny the fee increase for one of the following reasons:
(1) an increase in salary will have an adverse financial impact as
TPSB is already operating in a deficit; (2) compensation at an
hourly rate would create the potential for abuse; (3) that the
present salary is commensurate with the CCO’s part-time duties;
and (4) that many of the activities engaged in by the CCO, which
are some of the alleged reasons for increasing his compensation,
are wholly outside his duties as articulated by the Court. (Rec.
Doc. No. 1302 at 4-13).
IV.
LAW AND ANALYSIS
According to Fed. R. Civ. P. 53(g)(1), “the court may set a
new basis and terms [for the master’s compensation] after giving
notice and opportunity to be heard.” The fixing of fees and costs
for a special master rests within the Court’s discretion. Gary W.
v. State of La., 601 F.2d 240, 245 (5th Cir. 1979); Fed. R. Civ.
P. 53(g)(1).
As an initial matter, the parties’ contention that the Court
cannot consider the CCO’s motion lacks merit for a number of
reasons. First, the Court expressly reserved the right to change
the CCO’s compensation in the order appointing him as CCO. (Rec.
Doc. No. 1204 at 1). Moreover, Rule 53 of the Federal Rules of
Civil Procedure expressly provides that this Court may set a new
basis and terms for CCO compensation. Finally, the parties were
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or should have been aware that all work being performed by the
CCO
is
being
done
at
this
Court’s
repeated
direction
to
expeditiously provide assistance in getting this decades old case
into a posture that could lead to a unitary status declaration on
all issues, and thus final closure for all interested parties’
benefit. Accordingly, the Court will consider the CCO’s Motion on
the merits.
The leading case on how courts should go about setting a
special master’s compensation is Newton v. Consolidates Gas Co. of
New York, 259 U.S. 101 (1922). There, the Supreme Court stated:
The value of a capable master’s services
cannot be determined with mathematical
accuracy, and estimates will vary, of
course, according to the standard adopted.
He
occupies
a
position
of
honor,
responsibility, and trust; the court looks
to him to execute its decrees thoroughly,
accurately,
impartially,
and
in
full
response to the confidence extended; he
should be adequately remunerated for actual
work
done,
time
employed,
and
the
responsibility assumed. His compensation,
should be liberal, but not exorbitant. The
rights of those who ultimately pay must be
carefully protected; and while salaries
prescribed by law for judicial officers
performing similar duties are valuable
guides, a higher rate of compensation is
generally necessary in order to secure
ability and experience in an exacting and
temporary employment which often seriously
interferes with other undertakings.
Id. at 105. In the context of school desegregation, the Sixth
Circuit has adopted the Hart formula to account for the standards
laid out in Newton. Reed v. Cleveland Bd. Of Ed., 607 F. 2d 737,
4
746 (6th Cir. 1979); Reed v. Rhodes, 691 F.2d 266, 268 (6th Cir.
1982). The Hart formula derives from a school desegregation case
out of the Eastern District of New York: Hart v. Cmty. Sch. Bd.
Of Brooklyn, N.Y. Sch. Dist. No. 21, 383 F. Supp. 699 (E.D.N.Y.
1974). In Hart, the court concluded that “a reasonable fee would
be based upon about half that obtainable by private attorneys in
commercial matters.” Id. at 767. Additionally, other courts have
emphasized the public nature of such work in setting reasonable
fees well below those charged in commercial matters. See, e.g.,
United States v. Yonkers Bd. Of Educ., 108 F.R.D. 199, 202
(S.D.N.Y. 1985).
Accordingly, based on the factors considered in
similar cases, this Court should start with a baseline fee of
one-half that obtainable by commercial attorneys in the local
area, and then increase or decrease that number based on the type
of work needing to be completed and the time reasonably needed to
accomplish it.
Compensation should reasonably and properly recompense the
CCO for his time and experience, taking into account the already
documented serious interference such work has on the CCO’s other
undertakings.
The former CCO was observed to have gone beyond
the call of duty in repeatedly sacrificing other endeavors in
order to tirelessly fulfill her obligations to the Court. She
eventually resigned to pursue other endeavors. Similarly, the
Court has observed and often stated to parties’ counsel that the
current CCO not only continues in the same vein but has, with
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permission of the Court, intensified efforts to achieve unitary
status. The Court has always been, and will continue to be,
respectful of the need to avoid overburdening the school system,
especially during periods of financial hardship.
Within the past six months, courts in this District have
found reasonable attorney’s fees in the range of $210.00 per hour
up to $340.00 per hour. McIntyre v. Gilmore, 2015 WL 4129378, No.
15-282, at *2 (E.D. La. July 8, 2015) (finding $250 per hour
reasonable for partners in the New Orleans area); Bollinger
Marine Fabricators, LLC v. Marine Travelift, Inc., 2015 WL
4937839, No. 14-1743, at *6 (E.D. La. Aug. 18, 2015) (finding
from $210 to $300 reasonable for partners); Receivables Exchange,
LLC v. Advanced Tech. Servs, Inc., 2015 WL 2372434, No. 14-668,
at *5 (E.D. La. May 18, 2015) (finding $340 per hour to be a
reasonable fee). Splitting the difference, a reasonable
attorney’s fee in this region for commercial matters would be
$275 per hour. Applying the Hart formula then, a reasonable fee
for a special master in a school desegregation case like this
would be approximately $140 per hour (rounding up from $137.50
for simplicity’s sake). Next, the Court must consider the amount
and type of work remaining for the special master.
Since
his
appointment,
the
special
master
has
expended
significant time and effort in resolving and advancing various
issues in this long-standing school desegregation case. This past
year
parties reached an Interim Student Assignment Plan
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TPSS unitary status
in
the
area
of
administrative and staff assignment, with a one year provisional
period. (Rec. Doc. No. 1286 at 4). However, the CCO’s work is far
from complete. For instance, issues relating to facilities and
teacher assignment remain unresolved.
Although TSCB contends the special master’s role is declining
in this matter, the Court finds that the special master’s role will
likely
grow
as
work
towards
full
unitary
status
progresses.
Further, the implementation of the Interim Student Assignment Plan
will occur throughout the 2015-16 school year, and its progress
will be monitored and reviewed by the special master. Thus, an
increase
in
the
CCO’s
compensation
in
accordance
with
the
parameters of the Hart formula outlined above does not appear
unreasonable. While this Court has acknowledged TPSB’s financial
issues, see Rec. Doc. No. 1297, the Court does not conclude that
TPSB lacks the means to bear a reasonable increase in the special
master’s rate of compensation.
Based
on
the
Hart
formula,
a
reasonable
fee
would
be
approximately $140 per hour. Such a figure is wholly reasonable
when compared with those found in other special master cases in
this
District.
See,
e.g.,
In
re
Educ.
Testing
Serv.
Praxis
Principles of Leaning & Teaching: Grades 7-12 Litigation, 447 F.
Supp. 2d 612, 627 (E.D. La. 2006) (finding a $250 per hour fee
reasonable).
compensation
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. Additionally, parties accurately
that a
fee has potential
than a base salary
structure. Thus, the $140 per hour fee should be converted into a
monthly and yearly salary based on the hours typically worked by
the CCO. The CCO’s Motion to Fix Compensation provides a breakdown
of the number of hours he has worked per month since taking the
position. Based on the information provided,
he is averaging
approximately 70 hours per month. Working 70 hours per month at a
rate of $140 per hour equates to a monthly salary of $9,800—making
the initial proposal of $8,000 per month altogether reasonable,
especially in light of notable successes achieved thus far and this
Court’s ongoing call for expeditious results and finality. All
parties and the CCO are again charged to act with all deliberate
speed
.
Accordingly,
IT
IS
ORDERED
that
the
Motion
Compensation is GRANTED
to
Fix
CCO
at $8,000.00
per month. The Court will continue to review the CCO’s time and
performance
the right to make adjustments
.
New Orleans, Louisiana, this
th day of
ember, 2015.
____________________________
UNITED STATES DISTRICT JUDGE
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