Moore et al v. Tangipahoa Parish School Board et al

Filing 1497

ORDER AND REASONS: IT IS ORDERED that the 1477 motion is GRANTED. The CCO is awarded $17,462.28 for reimbursement of reasonable expenses incurred during appellate litigation, to be paid by Defendant. Signed by Judge Ivan L.R. Lemelle on 12/19/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
M.C. MOORE, ET AL.

CIVIL ACTION

VERSUS

NO. 65-15556

TANGIPAHOA PARISH SCHOOL BOARD, ET AL.

SECTION "B"(1)

ORDER AND REASONS
Before the Court is the Court Compliance Officer’s “Motion
for Attorney’s Fees for Representation of Court Compliance Officer
on Appeal.” Rec. Doc. 1477. Defendant timely filed an opposition.
Rec. Doc. 1486. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 1477) is GRANTED.
The CCO is awarded $17,462.28 for reimbursement of reasonable
expenses incurred during appellate litigation, to be paid by
Defendant.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The role of the Court Compliance Officer was created and
defined by court order. See Rec. Docs. 876 at 26-27, 876-4 at 2731, 703-1 at 1-4, 956 at 4, 1204. The CCO’s “job is to monitor and
insure that the letter and spirit of the case law and orders of
the court are followed regarding school board responsibility to
desegregate schools . . . .” Rec. Doc. 703-1. The CCO earns a
salary and is “paid in advance or reimbursed” for his “reasonable
expenses . . . relative to carrying out [his] duties . . . and
relative to the performance of the job . . . .” Rec. Doc. 703-1 at

1

2-3. The CCO also has “the authority to engage appropriate support
personnel

to

assist

responsibilities
financially

in

the

. . . .”

responsible

carrying

Rec.

for

Doc.

the

out

1204

CCO’s

of

his

at

2.

salary

duties

and

Defendant

is

and

reasonable

expenses. Rec. Doc. 703-1 at 2-3.
On July 22, 2015, the CCO moved the Court to establish an
hourly

rate

of

compensation

for

his

work.

Rec.

Doc.

1289.

Plaintiffs and Defendant jointly opposed the CCO’s motion and
argued that the CCO’s salary should remain fixed at $4,000.00 per
month. Rec. Doc. 1302. On December 8, 2015, after considering the
Parties’ arguments and the nature of the CCO’s work, the Court
ordered that the CCO’s compensation be increased from $4,000.00
per month to $8,000.00 per month. Rec. Doc. 1326. Defendant sought
review in the Fifth Circuit Court of Appeals. Rec. Doc. 1340. The
CCO argued that the Fifth Circuit lacked jurisdiction to hear the
appeal and that the order increasing his compensation should be
affirmed. See Moore v. Tangipahoa Par. Sch. Bd., 843 F.3d 198,
200-03 (5th Cir. 2016). On December 6, 2016, the Fifth Circuit
held that it had jurisdiction to hear the appeal and affirmed the
increase to the CCO’s salary. See id.
On August 24, 2017, the CCO moved the Court to award him
attorney’s fees incurred while litigating the appeal of the Court’s
decision to increase his compensation. Rec. Doc. 1477. Defendant
timely filed its opposition, arguing that (1) the Court’s orders
2

creating the CCO position do not entitle the CCO to an award of
attorney’s fees, (2) the CCO’s motion for attorney’s fees is
untimely, (3) awarding attorney’s fees would alter the Fifth
Circuit’s mandate, and (4) the CCO’s motion is substantively
deficient. Rec Doc. 1486.
LAW AND ANALYSIS
The CCO’s motion seeks reimbursement for the attorney’s fees
he incurred while litigating the appeal of the Court’s decision to
increase his salary. Rec. Doc. 1477. But the CCO’s motion does not
indicate whether he seeks an award of attorney’s fees as such, or
whether he seeks reimbursement for reasonable expenses that just
happen to be attorney’s fees. The Court will address each argument
in turn.
A.

THE CCO HAS WAIVED ANY CLAIM TO ATTORNEY’S FEES UNDER
FEDERAL RULE OF CIVIL PROCEDURE 54

“Unless a statute or court order provides otherwise, [a]
motion [for attorney’s fees] must . . . be filed no later than 14
days

after

the

entry

of

judgment

. . . .”

Fed.

R.

Civ.

P.

54(d)(2)(B). The CCO did not file the instant motion within the
14-day deadline. While excusable neglect can save an otherwise
untimely motion for attorney’s fees, see Fed. R. Civ. P. 6(b), the
CCO does not advance that argument here.1 The CCO has therefore

1

A court determines whether excusable neglect is present by weighing a series
of factors, which include “the danger of prejudice to the [other party], the
length of the delay and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable control of the

3

waived his claim to attorney’s fees under Federal Rule of Civil
Procedure 54. See United Indus., Inc. v. Simon-Hartley, Ltd., 91
F.3d 762, 764-66 (5th Cir. 1996).
B.

THE COURT’S ORDERS ENTITLE THE CCO TO REIMBURSEMENT OF
ATTORNEY’S FEES FOR LITIGATING THE APPEAL

The CCO is tasked with “ensur[ing] compliance with the orders
of the court” and can seek reimbursement from Defendant for
“reasonable expenses . . . relative to carrying out [his] duties
. . . and relative to the performance of the job . . . .” Rec.
Doc. 703-1 at 1-4. The CCO’s job description was subsequently
modified

to

allow

the

CCO

to

“engage

appropriate

support

personnel.” Rec. Doc. 1204 at 2. Therefore, the CCO’s request for
attorney’s fees is viable if (1) litigating the appeal was part of
his duties, (2) the appellate attorneys retained by the CCO were
“appropriate support personnel,” and (3) the fees charged are
reasonable. See Rec. Doc. 703-1 at 1-4, 1204 at 2.
Litigating the appeal was part of the CCO’s duties because he
acted in defense of a Court order. The CCO’s role is sufficiently
expansive to seek reimbursement for retaining appellate counsel
because he has “wide latitude in making determinations about his
duties and responsibilities.” Rec. Doc. 1477-1 at 4-5. “The duties
and responsibilities outline[d][in the various orders defining the
CCO role] are intended to be a guideline and do not limit the

movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

4

rights of the compliance officer to ensure that the orders of the
[C]ourt are enforced.” Rec. Doc. 703-1 at 1.
As the Court observed when resetting the CCO’s compensation
in 2015, the CCO plays an integral role in the “intensified efforts
to achieve unitary status.” Rec. Doc. 1326 at 5-6. The role imposes
serious obligations on the person who serves as the CCO and
prevents them from pursuing other remunerative activities. See id.
Adequate compensation attracts and retains qualified individuals
to the position and meaningfully aids the Court and the parties in
the ongoing “work towards full unitary status.” Id. Therefore, the
CCO’s defense of the Court order on appeal was part of his job
duties. The CCO is entitled to reimbursement of reasonable expenses
associated with the appeal.
Turning to the second question in this analysis, the parties
agree that “the [CCO] shall be responsible for, and have the
authority to engage appropriate support personnel to assist in the
carrying out of his duties and responsibilities . . . .” Rec. Doc.
1204 at 2. Defendant also acknowledges that a special master can
retain attorneys to assist in his court-ordered tasks. See Rec.
Doc. 1486 at 5 n. 24 (citing Reed v. Cleveland Bd. of Educ., 607
F.2d 737, 746 (6th Cir. 1979)); see also Jackson v. Nassau Cty.
Bd. Of Supervisors, 157 F.R.D. 612, 621-22 (E.D.N.Y. 1994). But
Defendant maintains that the CCO’s attorneys are not “support
personnel” for purposes of reimbursing the CCO’s expenses because
5

they “act[ed] in a representative legal capacity.” Rec. Doc. 1486
at 6.
However, as discussed above, the CCO has a broad dictate to
enforce the Court’s orders, which includes the Court’s order that
the CCO’s salary be increased to $8,000.00 per month. In this case,
enforcement required litigation in the Fifth Circuit Court of
Appeals and the CCO retained the necessary support personnel to
carry out his obligations. Moreover, the two cases cited by
Defendant—Billieson v. City of New Orleans2 and Hough v. Hough3—
miss the mark. Both cases turned on the question of whether
statutes that authorized payment of “compensation” to special
masters also authorized awards of attorney’s fees. See Billieson,
224 So. 3d at 1096-99; Hough, 92 P.3d 702-03. But that is not the
issue here. The fees sought by the CCO are not compensation, rather
they are “reimbursement” for “reasonable expenses” incurred after
“engag[ing] appropriate support personnel.” See Rec. Docs. 703-1
at 1-4, 1204 at 2. Such reimbursement is authorized by prior Court
order, not by statute. See Rec. Docs. 703-1 at 1-4, 1204 at 2.
Having resolved the first two questions about whether the CCO
is entitled to reimbursement for the reasonable cost of retaining
appellate counsel, the final question is whether the reimbursement
sought

2
3

is

reasonable.

Even

though

this

is

2016-1143 (La. App. 4 Cir. 8/2/17); 224 So. 3d 1091.
2004 OK 45, 92 P.3d 695.

6

not

a

motion

for

attorney’s fees per se, the Fifth Circuit’s framework for awarding
attorney’s fees provides valuable guidance for deciding whether
the CCO’s expenses are reasonable. In the Fifth Circuit, courts
“first calculate the lodestar,” and then decide whether to “enhance
or decrease it based on the twelve Johnson factors.”4 Combs v. City
of Huntington, 829 F.3d 388, 391-92 (5th Cir. 2016). The lodestar,
which “is presumed reasonable,” “is equal to the number of hours
reasonably expended multiplied by the prevailing hourly rate in
the community for similar work.” Id. at 392. “In calculating the
lodestar, the court should exclude all time that is excessive,
duplicative, or inadequately documented.” Id. (internal quotation
marks and alternations omitted).
The CCO incurred $23,382.00 in legal fees and $74.28 in costs
for 125 hours of legal work. Rec. Doc. 1477-3 at 4. But the CCO’s
attorneys have written off 3.5 hours of legal work that were billed
at $400.00 per hour, leaving $21,982.00 in legal fees and $74.28
in

costs

for

which

the

CCO

seeks

4

reimbursement.5

Id.

These

The twelve Johnson factors are: (1) “[t]he time and labor required;” (2)
“[t]he novelty and difficulty of questions;” (3) “[t]he skill requisite to
perform the legal service properly;” (4) “[t]he preclusion of other employment
by the attorney due to acceptance of the case;” (5) [t]he customary fee;” (6)
“[w]hether the fee is fixed or contingent;” (7) “[t]ime limitations imposed by
the client or the circumstances;” (8) “[t]he amount involved and the results
obtained;” (9) “[t]he experience, reputation, and ability of the attorneys;”
(10) “[t]he undesirability of the case;” (11) “[t]he nature and length of the
professional relationship with the client;” and (12) “[a]wards in similar
cases.” Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).
5 The Fifth Circuit Court of Appeals awarded costs on appeal to the CCO. See
Rec. Doc. 1448 at 2.

7

remaining

121.5

hours

of

legal

work

are

attributed

to

Jeff

Pastorek, who billed at $195.00 per hour, and Cory Grant, who
billed at $170.00 per hour. Id. The blended hourly rate was $180.00
per hour.6
Defendant does not object to the reasonableness of the rates
charged by Pastorek and Grant.7 See Rec. Doc. 1486 at 16-17.
Moreover, the blended rate of $180.00 per hour is 35 percent lower
than the $275.00 per hour that the Court found to be “a reasonable
attorney’s fee in this region for commercial matters . . .” when
the Court reset the CCO’s compensation two years ago. Rec. Doc.
1326 at 6. Therefore, the rates charged by the CCO’s attorneys are
reasonable. See, e.g., Skidmore Energy, Inc. v. KPMG, 455 F.3d
564, 568-69 (5th Cir. 2006). The question then becomes whether the
CCO seeks reimbursement for a reasonable number of hours.
Defendant argues that it is unreasonable to reimburse the CCO
for hours spent on a jurisdictional issue that the CCO ultimately
lost on appeal, on clerical matters, and on a related appellate
matter

about

the

appointment

of

a

Chief

Desegregation

Implementation Officer. See Rec. Doc. 1486 at 17-24. Defendant
also faults the lack of detail in the CCO’s billing documentation.
See id. Defendant’s arguments against reimbursing the CCO for

6

The invoice indicates that 69.2 hours were billed at $170.00 per hour and 52.4
hours were billed at $190.00 per hour. Rec. Doc. 1477-3 at 4.
7 Defendant objects to the attorney who billed at a rate of $400.00 per hour,
but those hours were written off. See Rec. Docs. 1477-3 at 4, 1486 at 16-17.

8

clerical work and aiding the CDIO appeal are well taken. The CCO
does not represent either side in the underlying dispute (see Rec.
Doc.

703-1)

and

clerical

tasks

should

not

be

billed

at

an

attorney’s rate (see Johnson, 488 F.2d at 717).
Defendant’s

most

substantive

objection

relates

to

reimbursement for hours spent litigating the jurisdictional issue.
See Rec. Doc. 1486 at 17-20. A prevailing party’s success is an
important factor when calculating awards of attorney’s fees and if
a litigant “has achieved only partial or limited success, the . . .
[lodestar] may be an excessive” award. Hensley v. Eckerhart, 461
U.S. 424, 434-37 (1983). Reducing an award for partial success is
an

“equitable

“discretion,”

judgment”
id.

at

that

437,

requires

but

“[t]he

the

Court

court

may

to

exercise

not

use

a

mathematical approach comparing the total number of issues in the
case with those actually prevailed upon,” Allstate Ins. Co. v.
Plambeck, 802 F.3d 665, 679 (5th Cir. 2015).
Here,

the

CCO

prevailed

on

the

central

issue

of

the

appeal when the Fifth Circuit affirmed the order regarding the
CCO’s salary. That being said, the CCO spent at least 33.8 hours
on the

jurisdictional issue that he lost.8 Rec. Doc. 1486 at

18-19. Taking
8

Defendant argues that, based on the length of the jurisdictional argument
relative to the total length of the appellee brief, the CCO also may have spent
an additional 21.9 hours on the losing jurisdictional argument. See Rec. Doc.
19-20. But this suggestion likely overstates the amount of time spent on the
jurisdictional argument when drafting the appellee brief because the CCO had
already researched the issue and drafted arguments when preparing the motion to
dismiss. See Appellee’s Motion to Dismiss Appeal for Lack of Jurisdiction, Moore
v. Tangipahoa Par. Sch. Bd., 843 F.3d 198 (5th Cir. 2016) (No. 16-30025).

9

into account the number of hours billed for the jurisdictional
issue, as well as the relatively greater significance of the Fifth
Circuit’s ultimate affirmance of the CCO’s compensation, the Court
finds that the reasonable number of hours used for the lodestar
should be reduced. Accordingly, the reimbursable hours shall be
reduced by 25 hours, or approximately 20 percent, to 96.6 hours.
The Court therefore finds that the lodestar is $17,388.00, which
is based on 96.6 hours billed at $180.00 per hour.
Considering the lodestar, which is presumptively reasonable,
and the Johnson factors, the Court sees no reason to depart from
the lodestar. See Combs, 829 F.3d at 391-92. With respect to the
first, second, and third Johnson factors, the appeal led the CCO
to retain appellate counsel, but was not particularly complex or
burdensome litigation, as indicated by the fact that the Fifth
Circuit decided the issue without oral argument. See Rec. Docs.
1477-1 at 4, 1448 at 1. The Court already addressed the fifth,
sixth, eighth, and ninth factors when calculating the lodestar by
assessing the reasonableness of the billing rates and reducing the
reimbursable hours to reflect litigation of the jurisdictional
issue. See Jason D.W. by Douglas W. v. Hous. Indep. Sch. Dist.,
158 F.3d 205, 208-09 (5th Cir. 1998) (explaining that Johnson
factors should not be double counted). Considering the remaining
factors

(four,

seven,

and

ten

through

twelve),

there

is

no

indication that the appeal at issue here was out of the ordinary,
10

further militating against departure from the lodestar. See La.
Power & Light Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir. 1995)
(explaining that some Johnson factors will be more relevant than
others in any given attorney’s fee analysis). Therefore, the CCO
is entitled to reimbursement of reasonable expenses in the amount
of $17,462.28, which represents $17,388.00 in legal fees and $74.28
in costs.9
New Orleans, Louisiana, this 19th day of December, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

9

Defendant also argued that an award of attorney’s fees would be inappropriate
because it would alter the Fifth Circuit’s mandate, which only spoke to costs.
Rec. Doc. 1486 at 12. Defendant’s argument fails because the CCO seeks
reimbursement for reasonable expenses, not under an attorney’s fee statutory or
contractual provision. Also, district courts can decide questions of attorney’s
fees for issues litigated on appeal. See, e.g., Shimman v. Int’l Union of
Operating Eng’rs, 719 F.2d 879, 880-81 (5th Cir. 1983).

11