No. 81-803-CIV-5 Order

    - --'-'
.\

.LERKsii:ili::#
'51]:"?"'J;$ffi,",,

oTTtclaL !u!lNE33

"n^ttt 'ot 
?ilvaTS u3E ttoo



rEB 16

FOR THE EASTERN DISTRICT OF NORTH
RALEIGH DIVISION

RALPH GINGLES, et dI.,

P1a int i ffs

vs.

LACY H. THORNBURG, et aI.,
De fendan ts

NO.8L-803-CrV-5

ORDER

Plaintiff intervenors come before the court seeking payment

of counsel fees and expenses pursuant to 42 U.S.C. S 1973(1) (e)

as prevailing parties in a complicated and long lived voting dis-

trict reapportionment case. The original action was commenced

September 16, 1981; plaintiff intervenors, who instituted a similar

suit in state court on November 25,1981, became parties to this

action when the court granted their motion to intervene on July

22,1983, three days before the beginning of the non-jury triaI.

During the several years after trial, the court issued a number

of orders regarding new redistricting plansr and the parties respon-

ded with various appeals and motions for relief. Midway through

this period, the counsel seeking fees in the instant motion were

obligated to withdraw from representation of plaintiff intervenors

due to a conflict of interest. On l{arch 24, 1987, the court entered

a consent judgment ordering defendants to pay counsel for the

original plaintiffs $859,087.00 as fina1, complete and reasonable

attorneys' fees, costs and expenses. The attorney who succeeded

plaintiff intervenors' original counsel has also been paid pursuant



to a settlement agreement awarding him $L27.50 per hour for time

he expended representing plaintiff intervenors.

Counsel presently before the court have filed a claim for

compensation for L,471.15 hours at a rate of $150 per hour for

an award of $220,672.50, enhancement of that award by twenty-five

percentr plus expenses and costs totaling $18r284.67, for a total

of $294,057.L7. Defendants, in their opposition to plaintiff

intervenors' request, make specific objections to 573.92 of coun-

selrs hours. These objections may be categorized as follows:

1. 224.05 hours counsel spent in conference with pol.itical

colleagues, attending legislative committee meetings and lobbying

concern the non-litigated issue of political discrimination, as

opposed to the litigated issue of race discrimination;

2. 235.12 hours attributable to other discrete issues on

which plaintiff intervenors did not prevail during the course

of this litigation; and

3. 114.75 hours representing unnecessarily duplicative or

otherwise unreasonable work by counsel.

To be entitled to an award of fees under 42 U.S.C. S 1973(1) (e)

plaintiff intervenors must have been a prevailing party. Defendants

challenge plaintiff intervenors' request on this ground. The

appropriate test for this issue is whether the plaintiff succeeded

on any significant issue which achieves some of the benefits the

parties sought in bringing suit. Spe11 v. McDaniel, 616 F.Supp.

1069 (E.D.N.C. 1985) (citing Hensley v. Eckerhart, 461 U.S. 424

(1983)) aff'd as modifjed, 824 s.2d 1380 (4th Cir. 1987). "It

is not necessary that a plaintiff succeed on all the significant

Page 2



issues, or that the court award all of the monetary, declaratory

or injunctive relief sought in the compl-aint. Fast v. School

District of City of Ladue,728 E.2d 1030, 1033 (8th Cir. 1984)

(en banc)." Spell, 616 E.Supp. at 1081.

Defendants argue that because plaintiff intervenors spent

a substantial amount of time pursuing issues which were not ulti-

mately successful in terms of the final resolution of this litiga-

tion, pldintiff intervenors may not properly be regarded as prevail-

ing parties under 42 U.S.C. S 1973(1) (e). Based on its review

of the record, however, the court finds plaintiff intervenors

may properly be labeled as prevailing parties because of the not

insignificant effort they have expended on issues which were success-

ful. Accordingly, the relevant issue before the court is what

fee represents reasonable eompensation to counsel in light of

their eontribution to the success of plaintiff's action.

Counsel for plaintiff intervenors bear the burden of document-

ing their claim of hours and costs expended in litigation as well

as the approPriate hourly rate. Id. at 1073. Defendants have

a correlative burden to submit evidence supporting specific objec-

tions they make to counsel's request for fees. Broad or conclusory

chaLlenges are insufficient. Without a doubt, counsel on both

sides of this motion have exerted much effort toward meeting their

respective burdens on this Point.
The amount of the fee is to be determined on the facts of

each case by applying the twelve factors enumerated in Johnson

v. Georgia Highway ExPress, fnc., 488 r.2d 714 (5th Cir. L9741.

Barber v. Kimbrell's, Inc.1 577 r.2d 216 (4th Cir.), cert.

Page 3

Cen ied ,



439 U.S. 934 (1978). Those factors ares (1) the time and labor

expended.. (2) the novelty and difficuLty of the questions raised;
(3) the ski11 required to perform properly the lega1 services

renderedi (4) the attorney's opportunity costs in pressing the

instant litigation; (5) the customary fees for like work; (6)

the attorney's expectations at the outset of the litigation; (7)

the time limitations imposed by the client or the circumstancesi

(8) the amount in controversy and the resuLts obtained i e) the

experience, reputation and ability of the attorney, (10) the undesir-

ability of the case within the 1egal community in which the suit

arose, (11) the nature and length of the professional relationship

between attorney and cli.ent; anC (121 attorney fee awards in similar
eases. Barber, 577 F.2d at 226.

In applying these factors the first step is to determine a

reasonable number of hours expended and then multiply that number

by a reasonable hourly rate of compensation. Hensley v. Eckerhart,

supra, 461 U.S. at 434. A reasonable rate is nto be calculated accord-

ing to the prevailing market rates in the relevant community. . .. "

Blum v. Stenson, 465 U.S. 886, 895 (1984). The product of rate

times hours yields the presumed reasonabl-e fee. Id. at 897 .

After an exhaustive review of the record including individual

consideration of defendants' numerous specific objections to various

hours listed in counsel's itemized bi11, the court finds many

of defendants' specific objections to be meritorious. Hours billed

by counsel which fal1 into the three categories noted above (time

spent on the issue of political discrimination, time spent on

unsuccessful issues, and duplicative hours) , $rere not reasonabl-y

Page 4



expended by counsel. Accordingly, plaintiff intervenors are only

entitled to compensation for the remaining hours in their itemized

biJ-l, a total of 897.23 hours.

The court's next task is to determine a reasonable hourly

rate for the work done. Plaintiff intervenors have requested

a fee of 9150 per hour and have supported this request by affidavits

attesting to the reasonableness of this rate for the instant case.

Although defendants argue strenuously against the adequacy of

the documentation plaintiff intervenors have offered in support

of this rate, nowhere do defendants submit what they believe the

rate reasonably should be. The record shows that plaintiff inter-

venors' successor counsel settled his request for fees at a rate

of $127.50 per hour (Affidavit of Robert N. Hunter, Jr., P.4),

and the court finds this rate to be reasonable in light of material

in the record as well as the courtrs knowledge regarding prevail-ing

market rate. Accordingly, the court arrives at the lodestar figure

by multiplying reasonable hours, 897.23, times reasonable rate,

$ 127. 50, for a total of $114 ,396.82.

The court's final step is to determine whether the lodestar

rate should be either enhanced or reduced in order to reach a

fee which is reasonable in light of the total circumstances surround-

ing the litigation. On this point, the court is guided in its

discretion by its detailed knowledge of the litigation before

it. Spe11, 615 F,.Supp. at L084. Enhancement is apProPriate nin

the rare case where the fee applicant offers specific evidence

to show that the quality of service rendered was superior to that

one reasonably should expect in light of the hourly rates charged

Page 5



and that the success was rexceptional.'n BIum, 465 U.S. at 8971

(citing Hensley v. Eckerhart, 46L U.S. at 435). Until recently,

the risks taken by counsel in assuming a case which are reflected

in a contingency fee arrangement were considered an appropriate

basis for enhancernent of the lodestar fee. SPel1, 516 F.Supp.

at 1107. However, the United States Supreme Court recently held

that "enhancement of a reasonable Lodestar fee to compensate for

assuming the risk of loss is impermissible under the usual fee-

shifting statutesr' and "shouLd be reserved for exceptional cases

where the need and justification for such enhancement are readily

apparent and are supported by evidence in the record and sPecific

f indings by the courts. " Pennsylv_ania v. Delaware Valley Citizensl

Council for Clean Air, u. s. , 107 S.Ct. 3078, 3087-3088

(1987) (emphasis added and footnote omitted). Although plaintiff

intervenors had a contingent fee agreement with counsel, the court

finds no excepti.onal circumstances in this record warranting enhance-

ment on this basis. The court has also considered and weighed

the remaining relevant factors with regard to this action and

finds that neither enhancement nor reduction of the reasonable

fee is required. Therefore, plaintiff intervenors are entitled

to recover from defendants an attorney's fee in the amount of

$114,396.82 without any enhancement.

The finaL task before the court is consideration of counsel's

reguest for costs and expenses. Counsel has sought a total of

$18r284.67 in expenses, of which the largest single items are

$5,428.00 for the expert witness testifying at trial and $7,800.00

for computer services used in documenting the existence of discrimi-

Page 6



nation. Defendants also challenge counsel's request for these

sums. Based on its review of the record, including the affidavit
of plaintiffs' counsel attesting to the value of testimony given

at trial- by plaintiff intervenors' expert witness, the court finds

these two expenses totaling $13r228.00 to be reasonable. Of the

remai.ning $5 r 056.67 of counsel's submitted expenses an indeterminate

amount reflect expenses incurred in connection with those bi11ed

hours the court found in its analysis above to have been unreason-

ably expended. Because of the difficulty of determining which

expenses h,ere reasonably expended the court will a1low counseL

an award of fi.fty percent of the remaining amount in question,

or $2,528.34 in addition to the $13,228.00 for expert witness

and computer fees for a totaL sum of $15,756.34 for all costs

and expenses.

Counsel for plai.ntiff intervenors and defendants have evidently

spent a considerable number of hours preparing and opposing the

instant motion for fees. While a conscientious effort is appro-

priate and necessary to support any motion or opposition offered

in good faith before the court, counsel are reminded of the United

States Supreme Court's admonishment that "reguestIs) for attorney's

fees should not result in a second major litigation." Hensley v.

Eckerhart, 461 U.S. at 437. While it is true that this admonish-

ment "is extremely difficult to effectuate given that Court anC

the Courts of Appeals' increasing insistence upon detailed support-

ing documentation by the parties and findings by the district

court, " this district has announced in no uncertain terms its

determination "to avoid allowing fee applications to assume massive

Page 7



proportions, thereby dwarfing the underlying litigation on the

merits.' Spe11, 616 F..SupP. at 1074.

fn summary, pldintiff intervenors are awarded attorney's

fees in the amount of $114,396.82 plus reasonabLe expenses of

$15,756.34, for a total award of $130,153.16.

SO ORDERED.

February // , 1988.

,l''.; L,, ..'-'.-L- ,

J. DTCKSON PHTLLTPS, JR. I 'z '
UNTTED STATES CIRCUIT JUDGE

L::13*Hrj;i'Jlr,.:""i'?'H'

UNITED.€TATES DISTRICT

-\

F. T. DUPREE, JR.
UNITED STATES DISTRICT

Page 8