Freedom From Religion Foundation, Inc. v. Abbott et al

Filing 162

REPORT AND RECOMMENDATIONS re 152 Motion for Attorney Fees filed by Freedom From Religion Foundation, Inc.; Motions No Longer Referred: 152 MOTION for Attorney Fees and Brief in Support. Signed by Judge Dustin M. Howell. (pg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
FREEDOM FROM RELIGION
FOUNDATION, INC.,
v.
GOVERNOR GREG ABBOTT AND
ROD WELSH, EXECUTIVE
DIRECTOR
OF THE TEXAS STATE
PRESERVATION
BOARD, IN THEIR OFFICIAL
CAPACITIES.

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1:16-CV-00233-DII-DH

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Freedom From Religion Foundation, Inc.’s (FFRF)

Motion for Attorney’s Fees and Costs, Dkt. 152. After reviewing these filings, the
relevant case law, and the parties’ responses, the undersigned recommends granting
the motion.
I.

BACKGROUND

“This case concerns the Texas State Preservation Board—an often unnoticed
state agency charged with preserving and maintaining the Texas Capitol and its
grounds.” Freedom From Religion Found., Inc. v. Abbott, 58 F.4th 824, 827 (5th Cir.
2023) (FFRF II). “In 1987, the Board issued a regulation known as the Capitol Exhibit
Rule. Under that rule, members of the public could submit an exhibit for display at
the Capitol, provided the submission met certain undemanding requirements and be
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sponsored by a qualifying state official.” Id. Specifically, each exhibit had to serve a
“public purpose,” defined as “‘[t]he promotion of the public health, education, safety,
morals, general welfare, security, and prosperity of all inhabitants or residents within
the state.’” Freedom From Religion Found. v. Abbott, 955 F.3d 417, 421 (5th Cir. 2020)
(FFRF I) (quoting Tex. Admin. Code § 111.13).
The underlying dispute involved a “Bill of Rights nativity exhibit” that FFRF
displayed in the Texas Capitol Building from December 18, 2015, to December 22,
2015. Dkt. 126, at 2. “The Exhibit featured Benjamin Franklin, Thomas Jefferson,
George Washington, and the Statue of Liberty gathered around a manger containing
the Bill of Rights.” Id. The day before the exhibit was to be taken down, Governor
Greg Abbott sent a letter to John Sneed, then Executive Director of the State
Preservation Board, urging him to “remove the display from the Capitol
immediately.” Id. at 2-3. The Board removed the Exhibit the same day and later
denied an application for an identical exhibit to be displayed in the Capitol. Id. at 3.
On February 25, 2016, FFRF sued Governor Abbott and Sneed in their
individual and official capacities, alleging: (1) a free-speech claim under the First
Amendment; (2) an equal-protection claim under the Fourteenth Amendment; (3) a
claim under the Establishment Clause of the First Amendment; (4) a claim of
unbridled discretion under the First Amendment; and (5) a due-process claim under
the Fourteenth Amendment. Dkt. 1; Dkt. 126, at 3. The Court dismissed all FFRF’s
claims except for a freedom-of-speech claim and an Establishment Clause claim. Dkt.
38, at 24. On renewed motions for summary judgment, the Court issued an order

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dismissing the Establishment Clause claim against Governor Abbott in his individual
capacity as barred by qualified immunity. Dkt. 74, at 19-20. For timing reasons, the
parties also stipulated to a voluntary dismissal of FFRF’s freedom-of-speech claim
against Governor Abbott in his individual capacity. Dkts. 85, 86.
That left only one claim—FFRF’s free-speech claim against Defendants in their
official capacities only. The Court issued a declaratory judgment for FFRF on that
claim, declaring “that Defendants violated FFRF’s First Amendment rights and
engaged in viewpoint discrimination as a matter of law when FFRF’s exhibit was
removed from the Texas Capitol building.” Dkt. 87, at 2.
Defendants appealed the Court’s declaratory judgment on FFRF’s free-speech
claim, Dkt. 92, and FFRF cross-appealed the Court’s dismissal of its unbridleddiscretion claim, Dkt. 94. The circuit court first held that the this Court had
jurisdiction to enter prospective relief under the Ex Parte Young exception to
sovereign immunity. FFRF I, 955 F.3d at 424. The circuit court also held that “[t]he
district court did not, however, have jurisdiction to award FFRF purely retrospective
relief.” Id. at 425. The circuit court reasoned that “[t]he backwards-looking, pasttense declaratory judgment entered by the district court is ‘tantamount to an award
of damages for a past violation of law,’” and therefore was prohibited by sovereign
immunity. Id. (quoting Papasan v. Allain, 478 U.S. 265, 278 (1986)). Accordingly, the
circuit court vacated the judgment and remanded for this Court to enter appropriate
prospective relief for FFRF. Id. at 426. The circuit court also reversed the Court’s
dismissal of FFRF’s First Amendment unbridled-discretion claims, concluding that

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the Court failed to appropriately consider whether Texas Administrative Code
§ 111.13 provided neutral criteria sufficient to prevent viewpoint-based censorship.
Id. at 429.
Intervening amendments then added a new wrinkle to the dispute. After the
circuit court remanded the case, the Board published the final amendments to the
Rule at issue, which took effect on July 20, 2020. According to the preamble to the
Revised Rule, the amendments “are designed to make clear that all future exhibits in
the exhibit areas of the Capitol and Capitol Extension will be adopted as government
speech.” 45 Tex. Reg. 3406 (2020), adopted by 45 Tex. Reg. 4968, 4968 (2020) (State
Press. Bd., Exhibitions in the Capitol and Capitol Extension).
On remand, Defendants argued that the Revised Rule rendered this case moot.
The Court disagreed, concluding that the State “cannot ipse dixit change the First
Amendment status of the Capitol exhibit area.” Dkt. 126, at 5. Addressing the issue
on remand from the circuit court, this Court granted FFRF’s request for injunctive
relief and enjoined Defendants from excluding FFRF’s Exhibit from display in the
designated exhibit area of the Texas Capitol Building. Id. at 12. The Court also
granted prospective declaratory relief that Defendants violate FFRF’s First
Amendment rights and engage in viewpoint discrimination as a matter of law when
they exclude FFRF’s Exhibit based on the perceived offensiveness of its message. Id.
at 13. Finally, the Court determined that the public-purpose requirement of the Rule
contained sufficient criteria to avoid viewpoint-based discrimination and granted
Defendants summary judgment on FFRF’s unbridled-discretion claims. Id. at 16.

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Defendants appealed again, arguing that the amended rule mooted the case.
During the pendency of that appeal, the Texas Legislature repealed the Rule entirely.
FFRF II, 58 F.4th at 828 (“Finally, last year, the Board repealed the Rule
altogether.”). The circuit court held that the repeal of the Rule mooted the case,
reasoning that “[b]ecause [FFRF’s] injury is premised on exclusion from its message
in a public forum, and because the public forum no longer exists, the permanent
injunctive relief ordered by the district court cannot remain.” Id. But the circuit court
provided an important caveat: “the order and declaratory judgement—declaring that
the Defendants violate the First Amendment by excluding [FFRF’s] exhibit from a
limited public forum—shall remain.” Id.
II.

LEGAL STANDARDS

An award of attorney’s fees is entrusted to the “sound discretion” of the district
court. Tex. Com. Bank Nat’l Ass’n v. Cap. Bancshares, Inc., 907 F.2d 1571, 1575 (5th
Cir. 1990). Even so, “[i]t remains important … for the district court to provide a
concise but clear explanation of its reasons for the fee award.” La. Power & Light Co.
v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995) (emphasis omitted).
In a civil rights case like FFRF’s, “the court, in its discretion, may allow the
prevailing party … a reasonable attorney’s fee as part of the costs.” 42 U.S.C.
§ 1988(b). The Fifth Circuit uses a two-step process to calculate recoverable attorneys’
fees. Heidtman v. Cnty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). First, courts
use the lodestar method to calculate an appropriate fee award by multiplying the
number of hours reasonably spent on the case by an appropriate hourly rate in the

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community for such work. Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th
Cir. 2006). The party seeking fees is “charged with the burden of showing the
reasonableness of the hours billed and, therefore, [is] also charged with proving that
[its attorney(s)] exercised billing judgment.” Id. “The court should exclude all time
that is excessive, duplicative, or inadequately documented [and] [t]he hours surviving
this vetting process are those reasonably expended in litigation.” Watkins v. Fordice,
7 F.3d 453, 457 (5th Cir. 1993). While plaintiff’s counsel need not record in great
detail how each minute of their time was expended, they should identify the general
subject matter of their time expenditures. Hensley v. Eckerhart, 461 U.S. 424, 437
n.12 (1983).
After calculating the lodestar, the court may decrease or enhance the amount
based on the relative weights of the twelve factors set forth in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by
Blanchard v. Bergeron, 489 U.S. 87 (1989). The Fifth Circuit has instructed that “of
the Johnson factors, the court should give special heed to the time and labor involved,
the customary fee, the amount involved and the result obtained, and the experience,
reputation and ability of counsel.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047
(5th Cir. 1998).

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III.

DISCUSSION

FFRF seeks $456,741.75 as fair and reasonable attorneys’ fees and related
expenses. Dkt. 161, at 20. 1 Defendants respond that this amount is unwarranted for
four reasons. First, Defendants argue that FFRF is not a “prevailing party” under 42
U.S.C. § 1988(b). Dkt. 155, at 4. Second, Defendants argue that FFRF’s fee should be
reduced: (a) to account for hours spent on causes of action for which it obtained no
relief; (b) to eliminate hours billed by local counsel; (c) to eliminate time and expenses
incurred by retaining out-of-state counsel. Id. at 9-16. Third, Defendants argue that
the hourly rates charged by FFRF should be reduced to $300 an hour to reflect Austinarea attorney rates. Id. at 16-18 Finally, Defendants argue for a downward departure
under the Johnson factors. Id. at 18-19.
A.

Prevailing Party Status Under 42 U.S.C. § 1988(b)

The chief dispute is whether FFRF is a “prevailing party” under 42 U.S.C.
§ 1988(b). FFRF argues that it is a prevailing party because: “(1) The court granted
summary judgment in FFRF’s favor on the First Amendment freedom of speech claim
against Governor Abbott and Executive Director Walsh in their official capacities;
(2) the court entered judgment in favor of FFRF on its First Amendment freedom of
speech claims; (3) the court issued a declaratory judgment that Defendants violated

In its original motion, FFRF sought $474,829.75. Dkt. 152, at 9. However, in response to
arguments made in Defendants’ opposition, FFRF voluntarily reduced portions of its
requested fees and expenses. See Dkts. 160, at 13-14; 161, at 20-21. Specifically, FFRF stated
that it “agrees to reduce the request for local counsel fees by 50%, i.e., to the amount of
$12,913.00,” Dkt 152, at 13, and that it “is agreeable to a reduction of 34.5 hours at $150 an
hour,” id. at 14. Those reductions amount to $18,088 collectively, resulting in a fee request of
$456,741.75.
1

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FFRF’s First Amendment rights and engaged in viewpoint discrimination …; (4) the
Fifth Circuit affirmed this court’s liability holding and directed the court on remand
to enter prospective relief in favor of FFRF; and (5) this court entered prospective
declaratory and injunctive relief in favor of FFRF after remand.” Dkt. 152, at 5-6.
Defendants provide two counterarguments.
First, Defendants argue that “[t]he vacated injunction in this case does not
render [FFRF] a ‘prevailing party’” because “[w]here injunctive relief is initially
granted but later vacated due to mootness, the plaintiff who initially obtained the
injunctive relief is not a ‘prevailing party’ unless it can show that the entry of the
initial injunction directly caused the defendant to moot the case.” Dkt. 155, at 5 (citing
Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008)). FFRF responds that
this argument incorrectly relies “on the standard for determining prevailing party
status that is applicable to preliminary injunctions, rather than the standard
applicable to final judgments rendered prior to mootness, as in the present case.” Dkt.
160, at 3.
Under Fifth Circuit law, a finding of mootness does not prevent holding that a
plaintiff is a “prevailing party” and is therefore entitled to attorneys’ fees. In Murphy
v. Fort Worth Independent School District, a high school student successfully argued
to the district court that his expulsion violated his procedural-due-process rights and
was awarded injunctive relief. 334 F.3d 470, 470-71 (5th Cir. 2003). During the
pendency of that appeal, the student graduated high school, mooting the case. Id. at
471. The Fifth Circuit vacated the district court’s judgment and injunction, but still

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ordered defendant to pay attorney’s fees, finding that “[t]he plaintiff is clearly the
prevailing party and is entitled under 42 U.S.C. § 1988 (2000) to a reasonable
attorney’s fee.” Id.; see also Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980) (“Thus,
a determination of mootness neither precludes nor is precluded by an award of
attorneys’ fees. The attorneys’ fees question turns instead on a wholly independent
consideration: whether plaintiff is a ‘prevailing party.’”).
Other courts have held similarly. See, e.g., Green Party of Tenn. v. Hargett, 767
F.3d 533, 553 (6th Cir. 2014) (“The plaintiffs have not been stripped of their
prevailing party status by the legislature’s decision to amend the relevant
statutes[.]”); Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009) (“When
plaintiffs clearly succeeded in obtaining the relief sought before the district court and
an intervening event rendered the case moot on appeal, plaintiffs are still ‘prevailing
parties’ for the purposes of attorneys’ fees for the district court litigation.”); Nat’l
Black Police Ass’n v. D.C. Bd. of Elections & Ethics, 168 F.3d 525, 529 (D.C. Cir. 1999)
(holding that vacatur on the basis of mootness did not prevent a finding that plaintiffs
were prevailing parties entitled to attorneys’ fees); Dahlem by Dahlem v. Bd. of Educ.
of Denver Pub. Sch., 901 F.2d 1508, 1512 (10th Cir. 1990) (“[A] party which achieves
the objective of its suit by means of an injunction issued by the district court is a
prevailing party in that court, notwithstanding the fact that the case becomes moot,
through no acquiescence by the defendant, while the order is on appeal.”).
The cases cited by Defendants are inapt because they are limited to the
preliminary-injunction context. See Amawi v. Paxton, 48 F.4th 412, 416 (5th Cir.

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2022) (“Prevailing party status does not attend achievement of a preliminary
injunction that is reversed, dissolved, or otherwise undone by the final decision in the
same case.”) (cleaned up) (emphasis added) (quoting Sole v. Wyner, 551 U.S. 74, 83
(2007)); Dearmore v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008) (“This appeal
presents an issue of first impression in this Circuit: Whether a plaintiff qualifies as
a ‘prevailing party’ under § 1988(b) when he obtains a preliminary injunction … and
the defendant subsequently moots the case[.]”) (emphasis added). That distinction is
significant because, while a judgment requires a finding of success on the merits, the
award of a preliminary injunction requires only a showing of substantial likelihood
of success on the merits. City of El Cenizo, Texas v. Texas, 890 F.3d 164, 176 (5th Cir.
2018). Unlike the plaintiffs in Amawi and Dearmore, FFRF obtained a permanent
injunction.
Accordingly, the undersigned finds that FFRF’s status as a “prevailing party”
under § 1988(b) was not altered by the Fifth Circuit’s mooting of certain issues on
appeal. The award of attorneys’ fees should not be denied on that basis.
Defendants next argue that FFRF’s declaratory judgment on a single cause of
action does not render it a “prevailing party.” In the Fifth Circuit, there are three
requirements that must be satisfied for a plaintiff to establish prevailing party status:
“(1) the plaintiff must achieve judicially-sanctioned relief, (2) the relief must
materially alter the legal relationship between the parties, and (3) the relief must
modify the defendant’s behavior in a way that directly benefits the plaintiff at the
time the relief is entered.” Veasey v. Abbott, 13 F.4th 362, 368 (5th Cir. 2021) (quoting

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Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S.
598, 604 (2001)).
Defendants contend that FFRF’s declaratory relief fails the second and third
requirements. As for the second, Defendants argue that the declaratory judgment
does not “materially alter the legal relationship between the parties” because the
closing of the Capitol to private exhibits means that Defendants cannot discriminate
against FFRF again. Dkt. 155, at 7. But that is simply a rehashing of Defendants’
mootness argument. Were mootness enough to prevent prevailing party status, then
the Fifth Circuit’s holdings in Murphy and Doe would have been different. The same
is true for Defendants’ argument that “the declaratory judgment will not modify any
possible behavior” because “there is no longer any factual scenario where Defendants
could evaluate or decide whether to permit an exhibit submitted by Plaintiff.” Id.
Again, that argument is derivative of the rejected mootness argument. Indeed, the
Fifth Circuit noted that its “holding does not preclude [FFRF] from showing that it is
entitled to attorney fees as the prevailing party under 42 U.S.C. § 1988.” FFRF II, 58
F.4th at 828. Accordingly, the undersigned finds that FFRF should be awarded
“prevailing party” status.
B.

Calculation of Hours Worked

The parties next dispute the amount of fees that should be awarded to FFRF.
Courts in the Fifth Circuit use the lodestar method to calculate attorney’s fees. Under
that method, “[t]he lodestar is calculated by multiplying the number of hours an
attorney reasonably spent on the case by an appropriate hourly rate, which is the

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market rate in the community for this work.” Black v. SettlePou, P.C., 732 F.3d 492,
502 (5th Cir. 2013). “There is a strong presumption of the reasonableness of the
lodestar amount.” Id. “However, after calculating the lodestar, a district court may
enhance or decrease the amount of attorney’s fees based on ‘the relative weights of
the twelve factors set forth in Johnson.” Id. (internal quotation marks omitted). “The
essential goal in shifting fees (to either party) is to do rough justice, not to achieve
auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
The number of hours reasonably spent are determined, in the first instance,
from the attorney’s time records, as to which attorneys should exercise billing
judgment. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Billing judgment requires
documentation of the hours charged and of the hours written off as unproductive,
excessive, or redundant. Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th
Cir. 2006). The lodestar’s reasonable hourly rate determination is based on the rate
charged in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984). A
“reasonable” fee is one “that is sufficient to induce a capable attorney to undertake
the representation of a meritorious civil rights case.” Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 552 (2010).
Defendants first argue that FFRF is “not entitled to recover for the time and
effort spent litigating the numerous other claims for which it obtained no relief.” Dkt.
155, at 10; see Fox, 563 U.S. at 834 (“The fee award, of course, should not reimburse
the plaintiff for work performed on claims that bore no relation to the grant of relief:

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Such work cannot be deemed to have been expended in pursuit of the ultimate result
achieved.”) (internal quotation marks omitted). Defendants contend that a 50%
reduction in fees is warranted to account for FFRF’s unsuccessful causes of action,
such as its equal protection claim under the Fourteenth Amendment.
FFRF disagrees. It contends that its fees “were all incurred on factually and
legally related claims seeking the same objective, which FFRF achieved by final
judgment.” Dkt 160, at 10. Where a “plaintiff’s claims for relief … involve a common
core of facts or [are] based on related legal theories,” “[s]uch a lawsuit cannot be
viewed as a series of discrete claims.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983);
see also Abrams v. Baylor Coll. of Med., 805 F.2d 528, 536 n.10 (5th Cir. 1986) (“The
plaintiffs have substantially prevailed in this litigation and they are, therefore,
entitled to all hours reasonably expended on the lawsuit—including those hours
devoted to unsuccessful but related contentions.”).
The challenge in this case is how to disentangle FFRF’s work on its successful
claims from its unsuccessful ones. As Defendants acknowledge, “it is difficult to
neatly parse out which hours should be allocated to various causes of action in any
given case.” Dkt. 155, at 11. Where, as here, “a plaintiff’s claims cannot be
disentangled, the district court’s focus should shift to the results obtained and update
the lodestar accordingly.” Fessler v. Porcelana Corona De Mexico, S.A. DE C.V., 23
F.4th 408, 416 (5th Cir. 2022). Accordingly, the undersigned will consider the results
FFRF obtained.

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It is true that FFRF failed to obtain relief on most of its claims, such as its
equal protection claim and its unbridled discretion claim. Nevertheless, FFRF
obtained a judgment on the merits that Defendants violated its First Amendment
rights. That is a meaningful and substantial success, particularly given this dispute’s
arduous appeal and remand process. Accordingly, the undersigned finds that
Defendants’ proposed 50% reduction in fees is too harsh a remedy. Still, a reduction
is needed to account for FFRF’s time spent on unsuccessful claims and legal theories.
Accordingly, the undersigned finds that a 25% reduction to the total number of hours
billed is adequate to reflect FFRF’s mixed success. 2
Defendants also argue that FFRF is not entitled to recover for most of its work
related to the appeals in this case. Dkt 155, at 13. They claim that “[t]he first opinion
from the Fifth Circuit agreed with Defendants that the initial judgment entered by
this Court was barred by sovereign immunity. Thus, Defendants were successful in
that appeal, and Plaintiff is not entitled to any fees related to it.” Id. FFRF responds
that the Fifth Circuit’s opinion “cannot credibly be described as a victory for the
defense.” Dkt. 160, at 15. FFRF says that the circuit court determined that a live case
and controversy existed and that this Court, on remand, should enter appropriate

Rather than applying a percent reduction, FFRF refers the Court to its various write-offs of
time, arguing that the exercise of billing discretion should account for, or at least cancel out,
any time spent on unsuccessful claims. Dkt. 160, at 13. But FFRF is under an obligation to
exercise sound billing discretion whether it prevailed on all of its claims, or as here, just some
of them. Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir. 2006) (“Billing
judgment requires documentation of the hours charged and of the hours written off as
unproductive, excessive, or redundant.”). The undersigned therefore concludes that a 25%
reduction in fees is not duplicative of FFRF’s various write-offs.
2

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prospective relief in favor of FFRF, including possible injunctive relief. Id. As for the
second appeal, Defendants argue that because “[t]he panel completely vacated the
injunction but left the declaratory judgment intact,” FFRF “would be entitled to no
more than half of its fees related to that appeal.” Dkt. 155, at 13.
The undersigned finds that its previously recommended 25% reduction in fees
is sufficient to account for FFRF’s mixed success on appeal. On the first appeal, the
circuit court determined that this Court did not have jurisdiction to enter a
retrospective declaratory judgment. FFRF I, 955 F.3d at 425-26. But the circuit court
also remanded for the Court to enter appropriate prospective relief for FFRF and
reversed the Court’s grant of summary judgment to Defendants. That mixed result is
adequately accounted for by a 25% reduction in fees. Similarly, during the second
appeal, despite holding that the case was moot, the circuit court nevertheless left the
declaratory judgment for FFRF intact. That mixed result is likewise adequately
accounted for by a 25% reduction in fees.
Defendants next argue that FFRF is not entitled to recover for hours billed by
local counsel, because the services rendered by local counsel were not necessary and
reasonable. Dkt. 155, at 14; see Stone v. City of Wichita Falls, 668 F.2d 233, 234 (5th
Cir. 1982) (“The basic principle that the prevailing party is due only compensation
for ‘reasonable attorney’s fee(s),’ necessarily implies an evaluation both of the
necessity of rendering those services for which a fee is sought and of the
reasonableness of the amount requested.”) (citation omitted). Defendants claim that
because two of FFRF’s other attorneys are personally admitted to the Western

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District of Texas, FFRF did not need local counsel in this case. Dkt. 155, at 15 (citing
Dkts. 152-3 ¶ 4; 152-4, ¶4).
In response, FFRF argues that hiring local counsel was reasonable and
necessary for this litigation. “In the interest of compromise, however, FFRF agrees to
reduce the request for local counsel fees by 50%.” Dkt. 161, at 13. The undersigned
finds that FFRF’s proposed 50% reduction in fees adequately addresses any concerns
raised by Defendants as to local counsel. Accordingly, the undersigned recommends
that FFRF’s attorneys’ fees not be reduced further on this basis.
Relatedly, Defendants argue that FFRF is not entitled to recover for increased
time and expenses incurred by retaining out-of-state counsel. Defendants therefore
request that FFRF’s fee request be reduced by 44.5 hours, the time one attorney
incurred in traveling between Wisconsin and Texas for this case. Dkt. 155, at 15-16.
FFRF argues that because Defendants conducted depositions of FFRF in Madison,
Wisconsin, travel time would have been required regardless of whether local counsel
was retained. Dkt. 160, at 13-14. Accordingly, FFRF offers to reduce its hours by 34.5,
with the remaining 10 hours left in place to reflect that unavoidable travel time. Id.
The undersigned finds that this compromise adequately addresses any concerns
expressed by Defendants. FFRF’s fees should not be reduced further on that basis.
C.

Hourly Rate

Next, Defendants argue that FFRF’s requested hourly rates are too high and
should be reduced. Four attorneys’ rates are at issue:

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•

Sam Grover, $400 per hour. Associate counsel, engaged in the practice of
law for 11 years, with 10 years of First Amendment litigation experience.

•

Patrick Elliott, $400 per hour. Senior counsel, engaged in the practice of
law for 14 years, with 13 years of First Amendment litigation experience.

•

Rich Bolton, $425 per hour. Lead counsel, engaged in the practice of law for
39 years, with 30 years of First Amendment litigation experience.

•

Dan Byrne, between $525 and $650 per hour. Local counsel, engaged in the
practice of law for 40 years, senior partner at Fritz Bryne, PLLC.

Defendants object to these rates, proposing a flat fee of $300 per hour for all attorney
time. Defendants base this number on the State Bar of Texas’s 2019 Income and
Hourly Rates, which places the median hourly rate for the Austin-Round Rock
Metropolitan Statistical Area in 2019 at $299. Dkt. 160, at 16-17.
The undersigned finds that Sam Grover, Patrick Elliott, and Rich Bolton’s
requested hourly rates are reasonable and appropriate. Specifically, the undersigned
rejects Defendants’ argument that FFRF’s rates are too high simply because they are
above the median rate charged by lawyers in Austin. That surface-level analysis
overlooks several important factors, such as the specialized experience of the
attorneys at issue. Here, each FFRF attorney has over a decade of specialized
experience in First Amendment law, justifying a slight premium over the median rate
provided by Defendants. Indeed, accepting Defendants’ argument would lead to the
absurd conclusion that roughly half of all attorneys in Austin charge unreasonably
high rates. As discussed above, FFRF has already volunteered to reduce Mr. Byrne’s

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fee request by 50%. Dkt. 161, at 13. This is sufficient to address Defendants’ concerns
regarding his rate. Accordingly, the undersigned finds that no further reduction is
needed.
D.

Downward Departure Under the Johnson Factors

In the alternative, Defendants request a downward departure under the
Johnson factors. Dkt. 155, at 18-19. Specifically, Defendants request a downward
departure under factor 5, “the customary fee charged for those services in the relevant
community” and factor 8, “the amount involved and the results obtained.” Johnson,
488 F.2d at 718.
The undersigned recommends against a downward departure. First, factor 5
does not warrant a downward departure. Defendants have done nothing to show that
the relevant comparators—Austin attorneys with over a decade of First Amendment
litigation experience—charge less than FFRF’s proposed rates. For the reasons
explained above, the undersigned does not find that FFRF’s proposed fees are higher
than the customary fee charged for legal services in Austin.
Factor 8 also does not warrant a downward departure. FFRF obtained a
judgment on the merits that Defendants violated its First Amendment rights. “The
loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The
undersigned finds that a reduction based on factor 8 is not warranted.

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IV.

RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that the
Court grant FFRF’s Motion for Attorneys’ Fees, Dkt. 152, and award FFRF, to recover
from Defendants, $342,556.31 in attorneys’ fees 3 and $3,957.36 in costs.
V.

WARNINGS

The parties may file objections to this Report and Recommendation. A party
filing objections must specifically identify those findings or recommendations to
which objections are being made. The District Court need not consider frivolous,
conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d
419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed
findings and recommendations contained in this Report within fourteen (14) days
after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the
Report and, except upon grounds of plain error, shall bar the party from appellate
review of unobjected-to proposed factual findings and legal conclusions accepted by
the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 15053, 106 S. Ct. 466, 472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428-29 (5th Cir. 1996) (en banc).

3

FFRF’s requested $456,741.75, reduced by 25% to account for mixed success.

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SIGNED on November 27, 2023.

DUSTIN M. HOWELL
UNITED STATES MAGISTRATE JUDGE

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