The Northeast Ohio Coalition for the Homeless et al v. Brunner

Filing 426

ORDER granting with modification 388 Motion for Attorney Fees; granting 393 Motion for Attorney Fees; denying 419 Motion for Hearing. Plaintiffs are hereby ORDERED to submit to the Court, within 30 days of the date of this Order, a Bill of Costs, together with supporting documentation, reflecting the hours the Court has approved, including those omissions and reductions made voluntarily by Plaintiffs, as well as those ordered by the Court, billed at the hourly rates the Court set forth above, and including fees for fees for no more than 3% of the total merit hours in the two cases combined. Signed by Judge Algenon L. Marbley on 9/29/2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
THE NORTHEAST OHIO COALITION
FOR THE HOMELESS, et al.,
Plaintiffs,
v.
JON HUSTED, in his official capacity as
Secretary of the State of Ohio,
Defendant,
and
STATE OF OHIO
Intervenor-Defendant;

SERVICE EMPLOYEES
INTERNATIONAL UNION,
LOCAL 1, et al.,
Plaintiffs,
v.
JON HUSTED, et al.,
Defendants.

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Case No. 2:06-CV-00896
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Case No. 2:12-CV-00562
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter is before the Court on Plaintiffs’ several motions for attorneys’ fees (Doc.
388; Doc. 393; SEIU v. Husted, No. 2:12-CV-00562, Doc. 120). Plaintiffs seek fees and costs
related to the Consent Decree put in place on April 19, 2010 by the parties to resolve this case.
(Doc. 210). In particular, Plaintiffs attorneys’ fees and costs stemming from: (1) their work in
2013 obtaining an extension of the Decree (see Doc. 383); (2) their work in 2012 defending the

Decree in 2012; and, for the SEIU Plaintiffs, the work performed to obtain a preliminary
injunction in 2012 and a permanent injunction in 2013. Generally, Defendants do not dispute
that Plaintiffs are prevailing parties under 42 U.S.C. § 1988, but challenge the fee rates requested
by Plaintiffs, and the reasonableness of the hours allegedly expended.
For the reasons set forth herein, Plaintiffs’ Motions are GRANTED with modification.
I.

BACKGROUND

For purposes of these Motions, the Court need not describe the complex substance of this
case at length. In brief, the Northeast Ohio Coalition for the Homeless (“NEOCH”) Plaintiffs
initiated their action in 2006, challenging various then-new provisions of the Ohio Revised Code
related to voter identification. (See Compl., Doc. 2). On April 19, 2010, the Court entered a
Consent Decree resolving Plaintiffs’ challenges. The Decree mandated that the Secretary of
State instruct the Ohio Board of Elections to adhere to certain rules regarding “the casting and
counting of provisional ballots for persons without identification other than a social security
number,” including, for example, preventing county elections boards from rejecting certain
provisional ballots on the grounds that the voter did not present identification, provide a date of
birth, provide an address, cast his vote in right location but using the wrong precinct ballot, etc.
(Consent Decree, Doc. 210 at 3).
Throughout 2012, the NEOCH Plaintiffs undertook various actions in this Court in order
to defend the Decree. First, on April 26, 2012, members of the Ohio Legislature filed a writ of
mandamus in the Ohio Supreme Court seeking a declaration that the Decree was inconsistent
with Ohio law. (Doc. 246-1). On May 8, 2012, NEOCH Plaintiffs moved in this Court for an
injunction to prohibit the legislators from attacking the decree in state court. (Doc. 246). The
Court granted Plaintiffs’ motion on May 11, 2012, and the legislators dismissed their suit in the

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Ohio Supreme Court. (Doc. 260). The Court’s written Order held that the requested relief was
warranted given the extraordinary act of collaterally attacking the Decree. (Doc. 261).
Second, in the wake of the legislator’s collateral attack, on May 17, 2012, the Court
ordered simultaneous briefing “on the threshold issue of the legal validity of the Consent
Decree,” with oral argument to follow. (Doc. 264). On July 9, 2012, NEOCH Plaintiffs were
successful in defending the validity of the Decree. (See Doc. 307).
While the challenge to the validity of the Decree was pending, Plaintiffs filed their own
motion to modify the Decree to prevent further alleged constitutional violations. (Doc. 288). At
the same time, on June 22, 2012, the Service Employees International Union (“SEIU”) Plaintiffs
filed their action, also seeking to invalidate various Ohio voter-ID laws, with particular focus on
ballots that would be rejected because poll workers erroneously provided the voter with a
precinct ballot that did not correspond to the voter’s assigned precinct. (SEIU v. Husted, Compl.,
Doc. 1). Based on the similar nature of these two cases, and the parallel relief sought, the Court
ordered that the two cases were related, on June 26, 2012 (Doc. 302), and the Court heard joint
arguments on NEOCH Plaintiffs’ motion to modify (Doc. 288) and SEIU Plaintiffs’ motion for
preliminary injunction (SEIU v. Husted, Doc. 4). (See Joint Scheduling Order, Doc. 308).
On August 27, 2012, the Court issued a preliminary injunction in SEIU v. Husted, and
ordered the Secretary to direct county boards of elections to count all wrong-precinct provisional
ballots absent evidence that the poll worker properly performed his or her duties, and to count all
provisional ballots with technical errors in the ballot envelope. (SEIU v. Husted, Doc. 67).
Because this order “grant[ed] the same equitable relief requested by [NEOCH Plaintiffs’] Motion
to Modify,” the Court stayed that motion as moot, subject to renewal if warranted. (Doc. 332).

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Defendants appealed the July 9, 2012 denial of the motion to vacate, as well as the
preliminary injunction in SEIU v. Husted. (Doc. 319; SEIU v. Husted, Doc. 71). Argument was
held October 1, 2012, and on October 11, 2012, the Sixth Circuit issued a published opinion
affirming this Court’s denial of Defendants’ request to vacate the Decree, and affirming in part
and reversing in part the preliminary injunction. (Doc. 336; SEIU v. Husted, Doc. 82).
On July 1, 2013, SEIU Plaintiffs filed a motion for partial summary judgment and
permanent injunction, asking the Court to make permanent the preliminary injunction requiring
the counting of correct-location/wrong-precinct ballots. (SEIU v. Husted, Doc. 107). Defendants
did not contest the remedy, though they took issue with what they considered to be
mischaracterizations and false allegations by SEIU Plaintiffs. (SEIU v. Husted, Doc. 110). On
July 9, 2013, the Court granted summary judgment and issued a permanent injunction. (SEIU v.
Husted, Doc. 112).
Finally, as relevant to the Motions sub judice, the NEOCH Consent Decree was set to
expire by its own terms on June 30, 2013. According to NEOCH Plaintiffs, in anticipation of
this expiration date, negotiations began to extend the degree by joint consent. (Doc. 388 at 9).
Those efforts proved futile, however, and on June 10, 2013, Plaintiffs moved to extend the
Decree. (Doc. 362). Plaintiffs initially sought an indefinite extension (see Doc. 362 at 28), but
later, in the alternative, sought an extension for two presidential election cycles—that is, eight
years (see Doc. 373 at 22). After oral argument, the Court granted Plaintiffs’ Motion, but opted
to extend the Decree for only one election cycle, until December 31, 2016. (Doc. 383).
NEOCH Plaintiffs move for attorney’s fees and costs related to their successful 2013
extension of the Decree (Doc. 388), as well as their various efforts in 2012 defending the Decree
in this Court and on appeal (Doc. 393). SEIU Plaintiffs request fees and costs flowing from their

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successful preliminary injunction, its defense on appeal, and the subsequent permanent
injunction. (SEIU v. Husted, Doc. 120).
II.

STANDARD OF REVIEW

The Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988(b), permits a
court to award reasonable attorney fees to the “prevailing party” in a civil rights action brought
under 42 U.S.C. § 1983. In order to be considered a “prevailing party,” a litigant must secure an
enduring, irrevocable, court-ordered change in the legal relationship between the parties.
McQueary v. Conway, 614 F.3d 591, 596 (6th Cir. 2010) (citing Sole v. Wyner, 551 U.S. 74, 86
(2007)). Put another way, “[a] plaintiff ‘prevails’ when actual relief on the merits of his claim
materially alters the legal relationship between the parties by modifying the defendant's behavior
in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).
III.

ANALYSIS

Defendants do not dispute that Plaintiffs are “prevailing parties” under § 1988. (Doc. 390
at 1; Doc. 407 at 11). Accordingly, the Court proceeds to compute the proper award of costs and
fees. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The “starting point for determining
the amount of a reasonable attorney fee is the ‘lodestar’ amount which is calculated by
multiplying the number of hours reasonably expended on the litigation by a reasonable hourly
rate.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008).
The party seeking an award of fees must “submit evidence supporting the hours worked
and rates claimed. Where the documentation of hours is inadequate, the district court may
reduce the award accordingly.” Hensley, 461 U.S. at 433. If the party seeking attorney’s fees
“has established that the number of hours and the rate claimed are reasonable, the lodestar is
presumed to be the reasonable fee to which counsel is entitled.” Pennsylvania v. Delaware
Valley Citizens Counsel for Clean Air, 478 U.S. 546, 564 (1986); see also City of Burlington v.
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Dague, 505 U.S. 557, 562 (1992) (The lodestar usually carries a “strong presumption” that is
represents a reasonable fee). A “reasonable fee” is one which is “adequate to attract competent
counsel, but does not produce a windfall to attorneys.” Hunter v. Hamilton Cnty. Bd. of
Elections, No. 1:10-CV-820, 2013 WL 5467751, at*14 (S.D. Ohio Sept. 30, 2013) (citing Gonter
v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir. 2007)).
A.

Hours Reasonably Expended

In determining the hours reasonably expended by a prevailing party’s counsel, “[t]he
question is not whether a party prevailed on a particular motion or whether in hindsight the time
expenditure was strictly necessary to obtain the relief requested”; rather, the standard is whether
“a reasonable attorney would have believed the work to be reasonably expended in pursuit of
success at the point in time when the work was performed.” Wooldridge v. Marlene Industries
Corp., 898 F.2d 1169, 1173 (6th Cir. 1990), abrogated on other grounds by Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001). Moreover,
attorneys who seek fees have an obligation “to maintain billing time records that are sufficiently
detailed to enable courts to review the reasonableness of the hours expended” on the case, and
the Court must be able to conclude that the party seeking the award has sufficiently documented
its claim. Id. at 1177; Imwalle, 515 F.3d at 552.
Both NEOCH and SEIU Plaintiffs have provided the Court with extensive and detailed
documentation of their hours, supported by affidavits of counsel related to billing entries, efforts
to exclude excessive or redundant hours, and general exercise of billing judgment. The Court
finds that Plaintiffs have submitted documentation containing sufficient detail and probative
value to enable it to determine that the hours recorded were actually and reasonably expended in
this action, with certain exceptions explained below.

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NEOCH Plaintiffs have submitted, and the Court has reviewed, time sheets for the
Chandra Law Firm, LLC, McTigue & McGinnis, LLC, and Porter, Wright, Miller & Arthur,
LLP, for attorneys Subodh Chandra, Sandhya Gupta, and Senior Paralegal Suzanne Zaranko
(Doc. 388-3); attorneys Donald McTigue and Corey Colombo (Doc. 388-4 at 7-9); and attorneys
Caroline Gentry and Daniel Miller (Doc. 388-6). Attorneys Chandra, McTigue, and Gentry
stated in their declarations that each made a good faith effort to exclude hours that were
excessive, redundant, or otherwise unnecessary, as well as in some cases foregoing
compensation for some work performed in this case. (Doc. 388-1 at 3-5; Doc. 388-4 at 2; Doc.
388-5 at 2-3).
Regarding their 2012 work, NEOCH Plaintiffs have submitted, and the Court has
reviewed, time sheets for Altshuler Berzon LLP, Porter, Wright, Morris & Arthur, LLP, Hunter,
Carnahan, Shoub, Byard & Harshman, McTigue & McGinnis LLC, and the Chandra Law Firm,
LLC. (Doc. 393-3; Doc. 393-8; 393-10; Doc. 393-12; Doc. 393-15). At least 23 attorneys, as
well as paralegals and law clerks, contributed to Plaintiffs’ case for this stage of the litigation, at
various levels of seniority and experience. Attorneys Leyton, Gentry, Harshman, McTigue, and
Chandra stated in their declarations that each made a good faith effort to exclude hours that were
excessive, redundant, or otherwise unnecessary, as well as in some cases foregoing
compensation for some work performed in this case. (Doc. 393-1 at 10-14; Doc. 393-7 at 2-5;
Doc. 393-9 at 4; Doc. 393-11 at 1-2; Doc. 393-13 at 4-6).
With regard to SEIU’s success in obtaining a preliminary and permanent injunction, and
successfully defending the preliminary injunction on appeal, SEIU Plaintiffs have submitted, and
the Court has reviewed, time sheets for Altshuler Berzon LLP, Hunter, Carnahan, Shoub, Byard
& Harshman, and the Advancement Project. (SEIU v. Husted, Doc. 120-3; Doc. 120-7; Doc.

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120-10). Attorneys Leyton, Harshman, and Judge stated in their declarations that each made a
good faith effort to exclude hours that were excessive, redundant, or otherwise unnecessary, as
well as in some cases foregoing compensation for some work performed in this case. (SEIU v.
Husted, Doc. 120-1 at 10-14; Doc. 120-6 at 4; Doc. 120-9 at 3-4).
Having reviewed Plaintiffs’ counsel’s declarations and time records, the Court finds that
there was no unnecessary duplication and that the time spent was reasonable. With regard to the
2013 extension, the Court notes that NEOCH Plaintiffs were required to review and analyze the
lengthy record and docket of a seven-year-old case, numerous provisions of the Ohio Revised
Code, parallel and related litigation, in addition to significant substantive legal research, analysis,
and strategy. As the Court noted at the time, the legal issues around extending the Decree were
complex and unsettled (see Doc. 383 at 8), and the briefing scheduled was expedited and
required intense engagement by all parties. With regard to Plaintiffs’ 2012 work, Plaintiffs
engaged in multiple avenues of defense in order to protect the Decree, including to enjoin the
collateral attack on the decree and move for civil contempt; preparing on an expedited basis to
intervene at the Ohio Supreme Court; defending the Decree against Defendants’ motion to
vacate; and moving to modify the Decree. With regard to SEIU Plaintiffs’ work in securing a
preliminary injunction, defending it on appeal, and converting it to a permanent injunction, the
Court recognizes that Plaintiffs achieved court orders preventing the disenfranchisement of
thousands of Ohio voters in 2012 and thereafter; the work required them to attack novel and
complex issues of constitutional law, and required them to collect and analyze thousands of
pages of evidence showing Ohio’s violations of voters’ rights.
The Court further notes that, although multiple attorneys worked on these cases, “[t]here
is nothing inherently unreasonable about a client having multiple attorneys, and they may all be

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compensated if they are not reasonably doing the same work and are being compensated for the
distinct contributions of each lawyer.” James v. Frank, 772 F. Supp. 984, 1002 (S.D. Ohio 1991)
(quotation omitted). The time records submitted in these cases are “sufficiently detailed to
enable [the Court] to review the reasonableness of the hours expended,” Wooldridge, 898 F.2d at
1177, and Plaintiffs have demonstrated proper “billing judgment with respect to the hours
worked.” Imwalle, 515 F.3d at 552 (quotation omitted).
Defendants argue, however, that Plaintiffs have included excessive and redundant hours
in their documents presented to the Court. In general, they attack Plaintiffs’ attorneys’ hours as
“excessive and unreasonable,” “exorbitant,” “unbelievable,” “untenable,” and “extravagant.”
(Doc. 390 at 10-13; Doc. 407 at 27-30). They insist that the hours expended by Plaintiffs in such
activities as, for example, researching, drafting, editing, and consulting are too great, since, in
their opinion, the Motions were far too short and contains too few case citations to justify the
amount of work reported by Plaintiffs (Doc. 390 at 11), did not require as many lawyers to
participate as Plaintiffs employed (Doc. 407 at 31-40), and the briefs “reflect a surprising amount
of hours devoted to constitutional research” (id. at 41-43).
Defendants invoke a phantom specter. Once a prevailing party has provided detailed
billing records, as here, “conclusory allegations that the award was excessive and that . . .
counsel employed poor billing judgment” do not suffice to establish that fees are unwarranted.
Imwalle, 515 F.3d at 553 (quoting Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991)).
Moreover, Defendants can hardly be heard to complain about the number of hours expended by
Plaintiffs, when they themselves engaged in a vigorous opposition to the Decree at nearly every
phase of this litigation. See City of Riverside v. Rivera, 477 U.S. 561, 581 n.11 (1986). Indeed,
“[t]he government cannot litigate tenaciously and then be heard to complain about the time

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necessarily spent by the plaintiff in response.” Id.; see also Communities for Equity v. Michigan
High Sch. Athletic Ass’n, No. 1:98-CV-479, 2008 WL 906031, at *16 (W.D. Mich. Mar. 31,
2008) (“The time required to litigate increases when the defendant bitterly contests the case,
forcing the plaintiffs to win their victory from ‘rock to rock and from tree to tree.’ Accordingly,
[Defendant] must reap what it has sown.”) (citation omitted).
More specifically, and with greater merit, Defendants object to various categories of
work performed by Plaintiffs as “not reimbursable.” (See, e.g., Doc. 390 at 14). The Court
addresses each category in turn:
1. Mediation (2013 NEOCH Plaintiffs): Defendants object to Plaintiffs’ request for fees
related to mediation and negotiations conducted at the Sixth Circuit. (Doc. 390 at 14-15).
Defendants argue that the appeals at this time were not appeals of the extension of the Consent
Decree, and thus the work done is non-compensable in relation to the 2013-based Motion. (Id. at
15). Defendants admit that the extension of the Decree may have been discussed at these
mediations, but that it “played a limited role,” in light of the greater issue of the matters actual
pending on appeal. (Id.).
Plaintiffs counter that it is commonplace for prevailing parties to be awarded fees for
time spent attempting to mediate to avoid litigation. (See Doc. 394 at 38 & n.121) (collecting
cases). Indeed, to do otherwise would be to discourage civil rights plaintiffs from attempting to
resolve their cases amicably, in direct contrast to this Court’s stated policy in support of
alternative methods of dispute resolution. See S.D. Ohio Civ. R. 16.3. Even during the
pendency of this action, this Court has repeated its preference for mediation. (See Doc. 368 at 3)
(preventing the parties from engaging in “good faith settlement discussions would be contrary to
the practice of this Court to encourage parties to settle disputes.”).

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Moreover, while Defendants are reluctant to reveal the contents of the mediation which
took place at the Sixth Circuit, they need not even reach that hurdle: this Court has already
explained that “[i]n the months prior to June 30, 2013, the parties engaged in settlement
discussions that they hoped would bring about final resolution of the issues in this case. As the
date approached without an agreement, however, Plaintiffs decided to move to extend the
Consent Decree, filing the Motion on June 10, 2013.” (Doc. 383 at 3-4).
Accordingly, fees related to mediation are proper. To the extent Plaintiffs have
overbilled for this time, they have agreed to reduce their hours by 0.5 hours. (Doc. 394 at 39).
2. Travel (All Plaintiffs): Defendants take issue with Plaintiffs’ billing for travel to and
from the Court for various arguments. (Doc. 390 at 17; Doc. 407 at 30-37). Defendants
maintain that “[v]arious courts have recognized the excessive nature of such travel charges.”
(Id.) (citing Woods v. Willis, 981 F. Supp. 2d 700, 703 (N.D. Ohio 2013) (holding that time spent
traveling is reimbursable only where “the travel was related to attendance at court proceedings,
depositions, and similar activities and the lawyer was lead counsel at the deposition or an active
and essential participant in the other activities.”)).
The Court has already addressed this objection in its previous award of fees. (See Doc.
234). When Plaintiffs have “properly distinguish[ed] between [] reimbursement for [] time spent
traveling to various proceedings related to this matter that can be billed at [the] hourly rate[,] and
the actual incidental costs inherent with travel such as gas and mileage . . . this Court finds no
duplication in awarding [] costs that were incidental to travel and including [the] compensable
time as part of the prior lodestar analysis of reasonable hours for the fee award.” Ne. Coal. for
Homeless v. Brunner, No. 2:06-CV-896, 2010 WL 4939946, at *9 (S.D. Ohio Nov. 30, 2010)
aff’d, 695 F.3d 563 (6th Cir. 2012). Accordingly, Plaintiffs’ requested fees are proper.

11

3. Alleged Clerical Work (All Plaintiffs): Defendants object to work performed by
Plaintiffs’ counsel that was, in their view, “clerical work.” Defendants offer examples of
Plaintiffs’ attorneys billing for work that included “compilation of exhibits” or other work that
Defendants characterize as inappropriate for an individual billing “at [] full attorney rate[s].”
(Doc. 390 at 17; Doc. 407 at 45-46). But as Plaintiffs point out, they are not required to
document each detail of each minute of their time; rather, the key requirement for properlydocumented billing is that the “documentation offered in support of the hours charged must be of
sufficient detail and probative value to enable the court to determine with a high degree of
certainty that such hours were actually and reasonably expended in the prosecution of the
litigation.” Imwalle, 515 F.3d at 553 (quotation omitted). The Court is so satisfied here. In
addition, Plaintiffs have agreed to withdraw 2.6 hours of work done by Attorney McTigue.
(Doc. 409 at 54).
4. Fees for Fees (All Plaintiffs): Defendants insist that so-called “fees for fees,” for work
done in preparing the Motions sub judice, should be limited, based on the “general rule that in
the absence of unusual circumstances, the hours allowed for preparing and litigating the attorney
fee case should not exceed 3% of the hours in the main case.” (Doc. 390 at 16) (quoting Ne.
Ohio Coal. for Homeless v. Sec’y of Ohio, 695 F.3d 563, 574 (6th Cir. 2012)).
NEOCH Plaintiffs opted to defer until a later request their “fees for fees” for Attorneys
Gentry and McTigue related to the fee motion for their 2013 work. (Doc. 394 at 44). To the
extent that time was included, or time for Attorney Chandra was included, Plaintiffs have already
deducted those hours from the 2013-related Motion. (Id. at 45). In their second motion,
Plaintiffs argue that the complexity and importance of these cases, the coordination of the two
cases, the time required to eliminate and categorize hours, Defendants’ vigorous opposition to

12

the fees motions, and Plaintiffs’ substantial write-off of merit hours justify an award of greater
than the customary 3% for Plaintiffs’ “fees for fees.” (Doc. 409 at 67 to 70).
Plaintiffs are correct that the 3% rule must not be a “hard and fast” commandment, else
the rule run afoul of § 1988 and its purposes. (Doc. 417-1 at 67 n.15). And the Court agrees that
Defendants have indeed offered “vigorous” opposition to Plaintiffs’ fee requests. But the Court
is nevertheless reluctant to penalize Defendants for raising non-frivolous challenges to the fees
and costs sought. While it is no doubt true that “[t]he government cannot litigate tenaciously and
then be heard to complain about the time necessarily spent by plaintiff in response,” Rivera, 477
U.S. at 580 n.11, this concern applies most strongly to litigation over the constitutional violations
themselves; each successful round of meta-litigation takes the Court further from the purposes of
vindicating the constitutional rights protected by § 1983 and funded via § 1988.
The Court is persuaded, however, to accept Plaintiffs’ suggestion that the 3% limitation
for “fees for fees” “should be applied to the total merit hours in the two cases combined.” (Doc.
417-1 at 68 n.16). Defendants opted to file a joint response in opposition to Plaintiffs’ fees
requests, and thus to require Plaintiffs’ counsel who represent parties in one case but not the
other “to review and sort through significant amounts of irrelevant material in order to identify
which arguments related to” each case. (Doc. 417-1 at 69 n.18). Accordingly, the Court finds
that 3% “fees for fees” award should be applied to the total merit hours in the two cases
combined, to reflect their interrelatedness.
5. Unsuccessful Claims (All Plaintiffs): Defendants make several attacks on various
claims and arguments which they characterize as unsuccessful, and thus not warranting fees.
Having reviewed the record evidence at length, and given the above discussion, the Court is
satisfied that no unwarranted fees are included in Plaintiffs’ request, other than those previously

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mentioned, and other than those which Plaintiffs have already voluntarily removed: those fees
reflected in Defendants’ Exhibit 6 (Doc. 407-7), and 21.1 attorney hours and paralegal hours
spent on briefing the ballot affirmation issue on appeal, as reflected in some entries in
Defendants’ Exhibit 7 (Doc. 407-18). (See Doc. 409 at 56-57).
Moreover, § 1988 allows for reimbursement for “all hours reasonably expended on the
litigation,” and should not be reduced “simply because plaintiff failed to prevail on every
contention raised in the lawsuit.” Hensley, 461 U.S. at 435. Indeed, litigants may, in good faith,
raise alternative legal grounds for their desired outcome, and “the court’s rejection of or failure
to reach certain grounds is not a sufficient reason for reducing a fee.” Id.; see also Fox v. Vice,
131 S. Ct. 2205, 2214 (2011). Similarly, the Sixth Circuit has explained that the proper question
is, first, whether plaintiffs have prevailed; once that issue is determined, “they are entitled to
recover attorneys’ fees for ‘all time reasonably spent on a matter,’” even if “some of that time
was spent in pursuing issues on research which was ultimately unproductive, rejected by the
court, or mooted by intervening events.” Northcross v. Bd. of Ed. of Memphis City Schools, 611
F.2d 624, 636 (6th Cir. 1979).
Nevertheless, the Court will address the specific objections raised by Defendants in turn:
a. Permanent Injunction (SEIU Plaintiffs): Defendants dispute that obtaining a
permanent injunction in SEIU v. Husted cannot have taken Plaintiffs as many hours as they seek
fees for, since they did not oppose it. (Doc. 407 at 54-55). Defendants object to Plaintiffs’ use
of an attorney who had no prior experience in the case, necessitating, they assert, that this new
attorney expend additional time learning about the case. (Id. at 54). They also note that the
Court’s Order granting the injunction (SEIU v. Husted, Doc. 112) required only four pages, and

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found it “necessary only to summarize the rationale of [prior] decisions,” further supporting their
claim that Plaintiffs’ hours were unreasonable and should be reduced. (Doc. 407 at 55).
Plaintiffs respond that “[n]o competent counsel would ask this Court” to “rubber stamp a
conversion of [a] preliminary injunction into a permanent injunction without providing
supporting argument or evidence.” (Doc. 409 at 42). Plaintiffs maintain that, even if Defendants
did not oppose the motion, they needed to present the Court with sufficient law and evidence to
hold a state law unconstitutional and impose permanent injunctive relief. (Id. at 42-43).
Especially in light of the history of intervention by third parties, Plaintiffs argue, they could not
be guaranteed that the injunction would not be attacked. (Id. at 42). Lastly, Plaintiffs note that,
all Defendants did not technically oppose the motion, nor did they consent, necessitating that
some evidence and argument be presented to the Court to sustain the request. (Id. at 44).
The Court is satisfied that Plaintiffs’ work in seeking a permanent injunction, and
providing the Court with the factual and legal basis to enter its Order, was of the sort that “a
reasonable attorney would have believed . . . to be reasonably expended in pursuit of success at
that point in time when the work was performed.” Dowling v. Litton Loan Servicing, LP, No.
2:05-CV-098, 2008 WL 906042, at *3 (S.D. Ohio Mar. 31, 2008) aff’d and remanded, 320 F.
App'x 442 (6th Cir. 2009) (quoting Wooldridge, 898 F.2d at 1173).
b. Certification of Defendant Class (SEIU Plaintiffs): Defendants next object to SEIU
Plaintiffs’ seeking fees for its motion to certify a defendant class of all of Ohio’s 88 boards of
elections. Defendants note that the Court questioned why it was necessary to certify such a class
(see Tr. 6/27/12, Doc. 329 at 75-76), yet Plaintiffs nevertheless filed their motion to certify on
June 29, 2012 (SEIU v. Husted, Doc. 25). The Secretary did not oppose the motion (see SEIU v.
Husted, Doc. 30, Doc. 50), and Plaintiffs eventually amended their Complaint and removed the

15

request for class certification (SEIU v. Husted, Doc. 57, Doc. 63), and the Court ultimately found
the request to be moot (SEIU v. Husted, Doc. 62).
Plaintiffs respond, and the Court agrees, that although Plaintiffs’ motion was ultimately
moot, it was not unreasonable, particularly in light of the fact that, a month before, in the
NEOCH case, the State legislators had argued that they were not bound by the Decree, and so
could not be enjoined to comply with it. (See Doc. 255 at 3-7). This Court ultimately ruled that
the county boards of elections are agents of the Secretary, rendering the attempt to join them as a
defendant class unnecessary. But this does not render Plaintiff’s motion unreasonable.
c. Motion to Modify (2012 NEOCH Plaintiffs): Defendants also take issue with
Plaintiffs’ attempt to seek fees for the motion to modify in the NEOCH case, given that the
motion was ultimately held to be moot, in light of the SEIU preliminary injunction. (See Doc.
332). Defendants insist that Plaintiffs are seeking to “receive fees for work performed in a
completely separate case,” since it was SEIU Plaintiffs that achieved success with their
preliminary injunction. (Doc. 407 at 61) (quoting Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608,
631 (6th Cir. 2013)). This is not an instance, Defendants argue, where one plaintiff brought
alternative legal theories; rather, two different plaintiff-groups filed two different motions, and
only one was granted. (Id. at 62). Defendants note that, if Plaintiffs are relying on the
interrelatedness of the two motions in order to claim success via the Court’s ruling, “then counsel
are double billing for the same work,” especially in light of the “significant overlap between the
NEOCH and SEIU legal teams.” (Id.).
Plaintiffs respond that their motion, as explained above, was not unreasonable, and
moreover that Defendants have ignored one of the key aspects of the motion: that it was
undertaken “to prevent constitutional violations in the November 2012 implementation of the

16

Decree that would have rendered it vulnerable to post-election attack and vacatur.” (Doc. 409 at
63). In addition, Plaintiffs argue that their motion was not denied; rather, the Court’s ultimate
Order “grant[ed] the same equitable relief requested by the[] Motion to Modify.” (Doc. 332 at
61). Thus, Plaintiffs assert that, unlike the parties in Binta, they seek fees for work reasonably
undertaken in their case, before the specific motion was rendered moot by the grant of the same
relief in the SEIU case. (Doc. 409 at 63).
In light of the above, and the Supreme Court’s holdings in Hensley and Fox, the Court
finds that Plaintiffs’ work for their motion to modify was reasonably undertaken in pursuit of
their case at the time they performed the work. Plaintiffs need not show success on every
specific motion in order to obtain fees, and, regardless, Plaintiffs’ motion was not unsuccessful.
d. Contempt Motion (2012 NEOCH Plaintiffs): Defendants ask the Court to exclude fees
for Plaintiffs’ motion to hold in contempt the relator-legislators who filed for mandamus in the
Ohio Supreme Court, and were subsequently enjoined in this Court from challenging the Decree.
(Doc. 407 at 64). Defendants assert that, of the 532 hours claimed relating to the motion to
enjoin, 130 hours reference the issue of contempt (or, accounting for block billing, around 89
hours). These hours should be discounted, argue Defendants, since the Court in fact denied
issuing any show cause order, and found instead, in its May 11, 2012 Opinion and Order (Doc.
261), that Plaintiffs’ request for contempt was premature, since the relators should be given an
opportunity to comply with the injunction. (Doc. 407 at 64-65).
Plaintiffs counter that their motion was not denied, it was merely found to be premature;
and further that, as the Court noted above, prevailing plaintiffs are generally entitled to fess for
pursuing reasonable alternative strategies. (Doc. 409 at 64-65). The Court agrees. Moreover,
Plaintiffs’ motion was not unreasonable for the reason that relators’ extraordinary actions in

17

attempting to circumvent this Court’s authority demanded urgent action. Given the short
timeframe and uncertainty of the result of the Ohio Supreme Court proceeding, Plaintiffs were
justified in pursuing the parallel remedy of a contempt motion while also seeking an injunction.
See Hadix, 143 F.3d at 256 (“[D]efending a remedy from collateral attack is indistinguishable
from affirmatively moving for contempt to enforce compliance with the remedy”).
6. Work related to the Intervenor Voters (SEIU Plaintiffs): Lastly, Defendants object
to an award of fees for Plaintiffs’ work, totaling roughly 40 hours, related to the group of
individual voters who sought to intervene at both the trial and appellate levels in the SEIU case.
(Doc. 407 at 63). The State Defendants remained neutral as to these attempts, and accordingly
argue that, based on the (admittedly mixed) Sixth Circuit authority, they should not be forced to
pay Plaintiffs’ fees for this work. (Id. at 63-64).
Plaintiffs, for their part, note that they “would not have been in a position of spending
time opposing intervention if Defendants had not been engaged in constitutional violations,” but
nevertheless concede that the Sixth Circuit’s decision in Binta “appears to foreclose fees for
opposing intervention here.” (Doc. 409 at 66); see Binta, 710 F.3d at 635 (“we conclude that
[Indep. Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 757 (1989)] discourages sticking
defendant with the bill for plaintiffs’ litigation against plaintiff-intervenors. The opinion clearly
implies that those costs should be borne by plaintiffs.”).
The Court concludes that it is bound by the holding in Binta. This conclusion is even
more appropriate where, as here, “making plaintiffs bear the financial responsibility for time
spent litigating against []intervenors is not going to destroy the incentive to sue for civil rights
violations.” Id. The Court is hard-pressed to conclude that its refusal to reimburse Plaintiffs’
counsel for 40 hours of work, where Plaintiffs are seeking over $1 million in legal fees, will

18

cause the sort of disincentive feared by the Sixth Circuit. Accordingly, as set forth in Plaintiffs’
Reply, the Court finds that 35.9 hours should be omitted from the award of fees. (See Doc. 409
at 66 & n.14).
B.

Reasonable Hourly Rate

A reasonable hourly rate is typically “the prevailing market rate, defined as the rate that
lawyers of comparable skill and experience can reasonably expect to command within the venue
of the court of record.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). The appropriate
rate “is not necessarily the exact value sought by a particular firm, but is rather the market rate in
the venue sufficient to encourage competent representation.” Sykes v. Anderson, 419 F. App’x
615, 618 (6th Cir. 2011) (quoting Gonter, 510 F.3d at 618).
The Court should look to “the fair market value of the services provided . . . the hourly
rate charged by an attorney for his or her services will normally reflect the training, background,
experience and skill of the individual attorney.” Wells v. New Cherokee Corp., 58 F.3d 233, 239
(6th Cir. 1995). In determining the reasonable rate, the Court has the discretionary authority to
consider a party’s submissions, awards in analogous cases, and its own knowledge and
experience from handling similar requests for fees. Project Vote v. Blackwell, No. 1:06-CV1628, 2009 WL 917737, at *5 (N.D. Ohio Mar. 31, 2009). Moreover, because “the
determination of a reasonable rate is difficult given wide variations in lawyers’ experience, skill
and reputation,” an attorney’s “customary client billing rate is one reliable indicia of that
attorney's prevailing market rate.” West v. AK Steel Corp. Ret. Acc. Pension Plan, 657 F. Supp.
2d 914, 932 (S.D. Ohio 2009) (citing Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995)).
Six factors relevant in determining the reasonable rate of an attorney’s services: (1) the
value of the benefit rendered to the client; (2) society’s stake in rewarding attorneys who produce
such benefits in order to maintain an incentive to others; (3) whether the services were
19

undertaken on a contingent fee basis; (4) the value of the services on an hourly basis; (5) the
complexity of the litigation; and (6) the professional skill and standing of counsel involved on
both sides. Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974).
Based on their evidence of their attorneys’ customary rates, the prevailing market rates,
and their assessment of their experience, skill, and reputation, Plaintiffs seek the following:
Firm
Altshuler Berzon LLP

Attorney
Stephen P. Berzon
Jonathan Weissglass
Stacey M. Leyton
Danielle E. Leonard
Peder Thoreen
Barbara J. Chisholm
Caroline Cincotta
Diana Reddy
Matthew Murray
Law Clerks
Paralegals

Rate ($/hr)
750
615
565
490
490
490
355
340
320
215
190

Chandra Law Firm

Subodh Chandra
Ashlie Case Sletvold
Sandhya Gupta
Paralegals

435
350
300
120

McTigue & McGinnis

Donald McTigue
J. Corey Colombo
Mark A. McGinnis

550
360
360

Porter, Wright, Morris & Arthur

Kathleen Trafford
Caroline Gentry
L. Bradford Hughes
Eric Gallon
Daniel Miller
Jared Klaus
Law Clerks
Paralegals, support

445
350
335
335
275
215
125
125

Hunter, Carnahan, Shoub,
Byard & Harshman

Michael J. Hunter

450

Cathrine Harshman

300

Donita Judge

375

Advancement Project

20

Plaintiffs argue that their counsel have significant experience in complex civil litigation,
including constitutional cases and elections-related litigation. Indeed, this Court has recognized
the substantial experience brought to bear by Plaintiffs’ attorneys. (Doc. 203 at 19) (noting
Plaintiffs’ counsel’s “substantial expertise in litigating not only civil rights cases, but more
specifically election law civil rights actions.”). Plaintiffs assert that counsel with “comparable
skill and experience” have been awarded similar rates for complex litigation in Ohio. See
Leonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766 (N.D. Ohio 2010) (awarding rates up to
$825 per hour in cases of “complex civil litigation” when lawyers had “experience and
expertise” in that particular area of law); Hunter, 2013 WL 5467751, at *17 (noting that the
Court awarded rates up to $500 in 2009 and 2010). Plaintiffs also maintain that their counsel are
paid “these or higher rates by clients in the legal market.” (Doc. 393 at 25) (citing Leyton Decl.,
Doc. 393-1, ¶ 21; Gentry Decl., Doc. 393-7, ¶ 12; Chandra Decl., Doc. 393-13, ¶¶ 17-18).
Defendants reject the rates proffered by Plaintiffs as “unreasonably high.” (Doc. 407 at
67). Although Defendants “acknowledge that there is conflict authority regarding what
constitutes reasonable attorney rates” (Doc. 390 at 8), they stress that hourly rates “should not
exceed what is necessary to encourage competent lawyers within the relevant community to
undertake legal representation,” and that, for the appropriate rate, courts should “look to [rates]
prevailing community for similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Hadix, 65 F.3d at 535-36 (quotation omitted). To calculate
“reasonable market rates,” the Court may look to a variety of materials, including “a party’s
submissions, awards in analogous cases, state bar association guidelines, and its own knowledge
and experience in handling similar fee requests.” Van Horn v. Nationwide Prop. & Cas. Ins.
Co., 436 F. App’x 496, 499 (6th Cir. 2011). Defendants accordingly encourage the Court to

21

consider several recent cases reducing fee requests (see Doc. 407 at 72-76) , as well as the recent
report by the Ohio State Bar Association, “The Economics of Law Practice in Ohio in 2013”
(Doc. 394-10) (“the 2013 OSBA Report”).
In Libertarian Party of Ohio v. Husted, for example, a voting rights case challenging an
Ohio law governing ballot access, the plaintiffs’ attorneys sought fees at an hourly rate of $350.
No. 2:11-CV-722, 2013 WL 4833033, at *4 (S.D. Ohio Sept. 11, 2013). This Court considered
fees in similar cases from around this District, “ranging from $300-400,” when determining the
appropriate rate for the 134.3 hours expended in 2011 and 2012 by three attorneys. Id. In light
of the success achieved—a preliminary injunction which was vacated on appeal, on account of
the fact that the offending bill was repealed by the state legislature—the Court concluded that
$300 “appear[ed] to be sufficient to motivate skillful attorneys to undertake representation in §
1983 cases, but not excessive so that it would constitute a windfall.” Id. at *4.
Hunter v. Hamilton County is also instructive. In that case, involving a challenge to
voting procedures and protection of the right to vote in Ohio counties within this District, and
involving over 3000 hours of attorney labor, Chief Judge Dlott undertook an extensive analysis
of the proper attorney rates, based on rates set by the 1983 Rubin Committee, adjusted to allow
for a 4% annual cost of living allowance. Hunter, 2013 WL 5467751, at *17. As a result, the
Court ordered a fee award at the rate of up to $410/hour for certain experienced counsel,
including $410/hour for Attorney Chandra. Id. The Court observed that the rates requested by
counsel were “below the rates awarded to other plaintiff’s attorneys in Ohio with similar years of
experience, including:
[f]or example, in 2010, this Court awarded fees to the following
attorneys at the following rates: Jim Helmer (admitted 1975)—
$498 per hour; Frederick Morgan, Jr. (admitted 1983)—$500 per
hour; Julie Popham (admitted 1992)—$425 per hour; and Jennifer
22

Verkamp (admitted 1996)—$450 per hour. U.S. ex rel. Ellison v.
Visiting Physicians Ass’n, P.C., No. 1:04-cv-220, 2010 WL
2854137 (S.D. Ohio July 19, 2010). The prior year, the District
Court approved experienced counsel rates ranging from $351 to
$497 per hour in an ERISA matter. West, 657 F. Supp. 2d at 934).
And in 2009, the District Court awarded fees to Mr. McTigue at
$400 per hour and Mr. McGinnis at $250 per hour. Project Vote v.
Blackwell, No. 1:06-cv-1682, 2009 WL 917737 (N.D. Ohio March
31, 2009). And the Sixth Circuit recently affirmed a decision from
the Northern District of Ohio in which the court approved rates
ranging from $250 to $450 per hour, depending on each attorney’s
experience. Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F.
App’x 496, 499 (6th Cir. 2011).
Id.
Defendants cite frequently to Lavin v. Husted, No. 1:10-CV-1986, 2013 WL 2950334
(N.D. Ohio June 13, 2013), where the district court imposed steep discounts on the hourly rates
and fee award to the plaintiffs’ counsel, including several attorneys involved in this litigation.
But Defendants’ reliance on this case is belied by the recent decision of the Sixth Circuit
vacating this order. Lavin v. Husted, No. 13-3838, 2014 WL 4357564 (6th Cir. Sept. 4, 2014).
The Court of Appeals roundly criticized the district court’s lack of impartiality and improper
reliance on impermissible facts, such as the burden a fee award would place on the taxpayers,
and the district court’s apparent aversion for the plaintiffs, described as “abundantly capable of
paying for representation.” Id. at *3-4. Accordingly, the Court will not consider the logic or
conclusions of that vacated opinion.
Lastly, in a prior ruling in this case, the Court considered the appropriate rates for several
of the same attorneys currently seeking fees in these Motions sub judice. In that Opinion, the
Court determined that, for the work of briefing and arguing Plaintiffs’ prior motions for fees and
costs, opposition to and settlement of the State of Ohio’s appeal of this Court’s previous award
of fees, and negotiation of the Consent Decree, Plaintiffs’ counsel merited hourly rates ranging

23

from $325 to $400. (Doc. 234 at 12-13) (awarding fees to Attorney Chandra at a rate of
$400/hour, and to Attorney Gentry at a rate of $290/hour).
With regard to the 2013 OSBA Report, Defendants assert that the Court should consider
the median, mean, and 75th percentile rates for the over 1,000 Ohio attorneys that responded to
the survey. (Doc. 407 at 77). Thus, Defendants argue that many of Plaintiffs’ requested rates are
inappropriate, as they far exceed the median rates of $200-250/hour (depending on seniority), the
mean rates of $207-261/hour, or even the 75th percentile rates of $205-325/hour. (Id. at 77-79).
Indeed, Defendants note, thirteen of the twenty-five attorneys here “seek to bill above the 95th
percentile of Ohio attorneys, by years of practice, reported within [the 2013 OSBA Report].”
(Id. at 79). At minimum, Defendants conclude, the Report “provides helpful guidance and a
comparison point for attorney rates in Ohio,” especially given that it includes attorneys from
across Ohio, which, Defendants maintain, more accurately reflect the “varied characteristics” of
the 48 counties within the Court’s jurisdiction (or 30 within this Court’s venue) than a focus
merely on rates at firms in downtown Columbus, Cleveland, or Cincinnati. (Id. at 80-81).
Defendants maintain that the supporting evidence submitted by Plaintiffs does not sustain
Plaintiffs’ burden of establishing the reasonableness of their requested rates. (Id. at 81).
Defendants take issue in particular with the declaration of Daniel R. Mordarski (Doc. 393-16),
on the grounds that Mr. Mordarski does not establish expertise on this subject, and his opinions
provide “little, if any, value given the circumstances of these cases,” since he spent such little
time reviewing the “voluminous record” yet offers “sweeping generalizations” and “conclusory
opinions.” (Doc. 407 at 82). Defendants take issue with Mr. Mordarski’s analogizing to “handpicked bankruptcy cases” of questionable relevance, and his comparison of the Altshuler Berzon
firm to the much-larger Jones Day. (Id. at 83). Defendants also question the relevance of out-of-

24

town billing rates when compared to the Columbus market, and find Plaintiffs’ suggested 15%
discount, from San Francisco to Ohio rates, to be “insufficient.” (Id. at 84).
Finally, Defendants argue that this case, and specifically the work for which Plaintiffs
seek reimbursement, while “important and disputed issues,” was not “overly” or “extraordinarily
complex” in comparison to other areas of legal practice. (Doc. 407 at 85; Doc. 390 at 8).
Defendants insist that the “underlying claims in both cases involved well-developed areas of
constitutional law,” and so were not “of such complexity to justify any considerable deviation
from prior Ohio election-law fee awards or standard legal market rates within the South District
of Ohio.” (Doc. 407 at 85).
Accordingly, Defendants ask the Court to adjust Plaintiffs’ requested rates down to the
level of the mean rates reported in the 2013 OSBA Report or, at best, the 75th percentile number,
resulting in rates of around $205-245/hour for junior attorneys, $275-300/hour for more senior
attorneys, and $325/hour for the most senior. (Doc. 407 at 86-87). Defendants also ask the
Court to reduce the hourly rates for paralegals and law clerks to $90, or at most $125, the figure
reported by Porter Wright. (Id. at 87). In any event, Defendants strongly oppose any rate over
$400/hour for any attorney. (Id.).
Defendants’ analysis of the appropriate rates misses the mark in several respects. First,
Defendants’ reliance on the 2013 OSBA Report is inappropriate. The Report, by its own terms,
is “not intended for use in setting minimum, average, or maximum attorney fees or salaries.”
(2013 OSBA Report, Doc. 394-10 at 4). It does not reflect information regarding the skill,
experience, and reputation of the responding attorneys—key considerations in the attorney’s fees
reasonableness analysis. Indeed, the Report aggregates all types of lawyers in Ohio, including
non-litigators, transactional attorneys, lawyers who do not practice in federal court, and lawyers

25

with little or no civil-rights or constitutional-law experience. (See Stiffman Decl., Doc. 394-9, ¶
20). As Lawrence Stiffman, the Report’s author, recounts, the Report also “significantly
understates” rates for attorneys, because of the failure of many attorneys and firms to respond; in
2013, only 53% of active attorneys in Ohio responded, with no evidence to suggest that this was
a random sampling. (Id., ¶¶ 11, 14; 2013 OSBA Report, Doc. 394-10 at 5). Moreover,
Defendants incorrectly overlook what evidence the Report does offer regarding civil-rights
practitioners in Ohio. Although only 13 attorneys reported civil-rights work as they primary
practice, and 26 attorneys with civil rights as their primary, secondary, or tertiary practice area,
the data available with respect to these lawyers point to rates much closer to those sought by
Plaintiffs: $400-500/hour for primary civil-rights practitioners, and $300-550/hour for those
attorneys with civil-rights work as some part of their practice. (See Stiffman Decl., Doc. 394-9,
¶¶ 20-21 & Ex. B).
Second, Defendants are incorrect that Plaintiffs’ victory in this case was anything but a
substantial victory in a hugely complex case involving unsettled areas of both constitutional and
procedural law. See B & G Min., Inc. v. Dir., Office of Workers’ Comp. Programs, 522 F.3d
657, 665 (6th Cir. 2008) (The Sixth Circuit, and other courts, “have routinely referred to factors
like experience and complexity in justifying a particular lodestar rate.”). Plaintiffs’ results
ensured the franchise of tens of thousands of Ohio voters. Plaintiffs’ work that is the subject of
these Motions entailed far more hours of attorney labor than Libertarian Party or even Hunter;
indeed, Plaintiffs seek in total over 6000 hours of attorney work, which, with the exception of the
small number of adjustments noted above, the Court considers to be a fair and reasonable
assessment of the efforts expended here. (See Doc. 393 at 18; 394 at 47; SEIU v. Husted, Doc.
120 at 13). The litigation was fast-paced, complicated, and conducted under public scrutiny.

26

Defendants vigorously opposed Plaintiffs at nearly every step of the case. Mr. Mordarski’s
declaration further supports the Court’s conclusion regarding the complexity of this litigation,
and the value of the highly skilled and experienced attorneys who litigated on behalf of
Plaintiffs. (See, e.g., Supp. Mordarski Decl, Doc. 415, ¶ 8). Plaintiffs have submitted
considerable evidence to explain the complexity, risk, time pressure, and significance of this
case, and to demonstrate that the market rates for attorneys of comparable skill and experience,
in cases as complex, are significantly higher than the rates sought by Defendants. (See, e.g.,
Mordarksi Decl., Doc. 393-16, ¶¶ 7-17; Supp. Mordarski Decl., Doc. 415, ¶¶ 7-10; Chandra
Decl, Doc. 393-13, ¶¶ 3-13, 19-20; Gentry Decl., Doc. 393-7, ¶¶ 2-4, 12; Harshman Decl., Doc.
393-9, ¶¶ 2-4; Leyton Decl., Doc. 393-1, ¶¶ 2-11, 20-22; McTigue Decl., Doc. 393-11, ¶ 3; Judge
Decl., SEIU v. Husted, Doc. 120-9, ¶¶ 2-4, 8).
But Defendants are nevertheless correct that there exists “conflicting authority” in this
Circuit regarding “what constitutes reasonable attorney rates.” (See Doc. 390 at 8). Keeping in
mind this conflicting guidance, and in light of the recent fee awards in relevant cases such as
Libertarian Party of Ohio v. Husted, Hunter v. Hamilton County, and this Court’s own fee
awards earlier in this very case (see Doc. 234), the Court is unpersuaded that the full rates sought
by Plaintiffs are “the market rate[s] in th[is] venue sufficient to encourage competent
representation.” Sykes, 419 F. App’x at 618 (quotation omitted). Both the civil-rights focused
rates in the 2013 OSBA Report, and those rates awarded for voting-rights work in Libertarian
Party of Ohio and Hunter suggest that at least some of the rates requested by Plaintiffs are outof-step with the prevailing market rates for lawyers of similar skill and experience in this venue.
Having reviewed the customary rates of Plaintiffs’ counsel, their training, background,
skill, and experience, as well as fee awards in analogous cases, and the Court’s own knowledge

27

and experience, the Court hereby concludes that the following rates are reasonable and reflect the
prevailing market rate for lawyers of comparable skill and experience. This award, in the
Court’s view, appears to be sufficient to motivate skillful attorneys to undertake representation in
§ 1983 cases, but not excessive so that it would constitute a windfall. See Libertarian Party of
Ohio, 2013 WL 4833033, at *5.
Firm
Altshuler Berzon LLP

Attorney
Stephen P. Berzon
Jonathan Weissglass
Stacey M. Leyton
Danielle E. Leonard
Peder Thoreen
Barbara J. Chisholm
Caroline Cincotta
Diana Reddy
Matthew Murray
Law Clerks
Paralegals

Rate ($/hr)
600
550
475
450
450
450
320
305
290
150
135

Chandra Law Firm

Subodh Chandra
Ashlie Case Sletvold
Sandhya Gupta
Paralegals

425
350
300
120

McTigue & McGinnis

Donald McTigue
J. Corey Colombo
Mark A. McGinnis

450
360
360

Porter, Wright, Morris & Arthur

Kathleen Trafford
Caroline Gentry
L. Bradford Hughes
Eric Gallon
Daniel Miller
Jared Klaus
Law Clerks
Paralegals, support

445
350
335
335
275
215
125
125

Hunter, Carnahan, Shoub,
Byard & Harshman

Michael J. Hunter

450

Cathrine Harshman

300

Donita Judge

375

Advancement Project

28

C.

Reasonableness of the Lodestar Calculation

As the Court noted above, generally, “a strong presumption favors the prevailing
lawyer’s entitlement to his lodestar fee.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 350
(6th Cir. 2000) (citation and quotation omitted). Moreover, where, as in these cases, “a plaintiff
has obtained excellent results, his attorney should recover a fully compensatory fee.” Hensley,
461 U.S. at 435. This Court has repeatedly emphasized the importance of this litigation. (See,
e.g., SEIU v. Husted, Doc. 89 at 65-66) (“[The Court] appreciate[s] everyone’s time and attention
to what [it] consider[s] the most important matters that come before [it] . . . so [the Court]
want[s] to commend all of the lawyers on jobs very well done.”).
This case also involved significant novel and complex constitutional and procedural
issues, including the All Writs Act, the Anti-Injunction Act, the applicability of Fed. R. Civ. P.
60(b), and the constitutionality of state laws and practices under the Equal Protection and Due
Process Clauses. The Court concludes that: this case was taken on a contingent fee basis;
Section 1983 litigation involves constitutional rights and is inherently complex, particularly
where the subject is voting regulations, which exist at the intersection of state and federal law;
Section 1983 also seeks to vindicate citizens’ constitutional rights and, thus, society has an
interest in encouraging attorneys to take such cases; the skill and standing of counsel on both
sides of this case is substantial; Plaintiffs’ counsel ultimately obtained all the relief sought by his
client. Accordingly, the Court finds that the lodestar calculation represents a fair and reasonable
award.
D.

Costs and Expenses

Plaintiffs also seek reimbursement for the litigation expenses undertaken in the
prosecution of these actions. Under § 1988, a prevailing party may recover “reasonable out-ofpocket expenses incurred by the attorney which are normally charged to a fee-paying client, in
29

the course of providing legal services,” including “[r]easonable photocopying, paralegal
expenses, and travel and telephone costs.” Northcross, 611 F.2d at 639. Filing and docket fees
are also compensable, as is research via online databases such as LexisNexis and Westlaw. See
Project Vote, 2009 WL 917737, at *20 & n.17.
Plaintiffs assert that they are entitled to recover their costs for precisely the sorts of
categories compensable under § 1988. (Doc. 388 at 27-28; Doc. 393 at 26-27; SEIU v. Husted,
Doc. 120 at 18-19). In particular, Plaintiffs ask for fees for the following categories of expenses:
photocopying and printing; online legal research; telephone, fax, and conference services;
shipping, postage, and courier service; court filing and transcript fees; overtime expenses and
related meals and transportation; travel, including airfare, mileage, taxi fare, meals, and lodging;
and expert fees. (Id.). Plaintiffs note that, with regard to travel expenses, they “distinguish
between the reimbursement for . . . time spent traveling to various proceedings related to this
matter that can be billed at [their] hourly rate and the actual incidental costs inherent with travel
such as mileage and gas.” (SEIU v. Husted, Doc. 120 at 19) (quoting Doc. 234 at 16).
Defendants ask the Court to reduce the requested expenses by fifty percent, “to reflect the
unreasonable nature of counsel’s requests,” such as, in Defendants’ view, the “excess travel,
communications, and research.” (Doc. 407 at 89). Defendants also insist that some of the
expense entries are not sufficiently specific to make clear which costs relate to the work that is
the subject of these Motions. (Doc. 390 at 18).
After review of the costs and expenses submitted by Plaintiffs, and in light of the Court’s
finding that nearly all of Plaintiffs’ hours of attorney work are reasonable, the Court concludes
that Plaintiffs’ requested costs are reasonable and appropriate, with the exception of any costs
associated with the 35.9 hours of attorney work related to the intervenor-voters. See supra, Part.

30

III.A.6. Defendants offer no substantive objections to the balance of the costs and expenses
sought by Plaintiffs, and the Court is not persuaded that the expenses are unreasonable.
IV.

CONCLUSION

For the reasons stated above, Plaintiffs’ Motions for Attorney’s Fees and Costs (Doc.
388; Doc. 393; SEIU v. Husted, Doc. 120) are GRANTED with modifications, as set forth
above. Plaintiffs are hereby ORDERED to submit to the Court, within 30 days of the date of
this Order, a Bill of Costs, together with supporting documentation, reflecting the hours the
Court has approved, including those omissions and reductions made voluntarily by Plaintiffs, as
well as those ordered by the Court, billed at the hourly rates the Court set forth above, and
including “fees for fees” for no more than 3% of the total merit hours in the two cases combined.
Furthermore, NEOCH Plaintiffs’ Motion for a Hearing (Doc. 419) is DENIED. SEIU
Plaintiff’s Motion for Extension (SEIU v. Husted, Doc. 119) is DENIED AS MOOT.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 29, 2014

31