Opinion
Civil Action No. 5:96CV00089
October 17, 2000
Steven Lloyd Myers, VIRGINIA POVERTY LAW CENTER, INC., RICHMOND, VA and Edward M. Wayland, NORTH GARDEN, VA, for plaintiffs.
James S. Gilmore, III, William Henry Hurd and Siran S. Faulders, OFFICE OF THE ATTORNEY GENERAL, RICHMOND, VA, for defendant.
MEMORANDUM OPINION
Before the court is the plaintiffs' petition for approximately $200,000 in attorney's fees, costs, and expenses. Having fully considered the issues presented and the parties' arguments, the court shall grant the plaintiffs' petition.
I.
Plaintiffs Victoria Smyth and Patricia Montgomery were recipients of federal welfare block grant money known as Temporary Assistance to Needy Families ("TANF") (formerly Aid to Families with Dependant Children ("AFDC")), distributed by the Commonwealth of Virginia. The defendant is the Commissioner of the Virginia Department of Social Services ("VDSS"), sued in his official capacity as administrator of Virginia's TANF program. The plaintiffs filed this action pursuant to 42 U.S.C. § 1983, challenging the Commonwealth's policy requiring mothers seeking welfare to identify the fathers of their children. The plaintiffs claimed that the policy violated the Social Security Act, the federal regulations promulgated thereunder, and the Supremacy and Equal Protection Clauses of the United States Constitution.
Plaintiff Lynn Winchester and her children, C. Winchester and K. Winchester, originally were parties to this suit, but subsequently were dismissed by stipulation. Counsel for the plaintiffs did not petition for fees related to the Winchesters' claims.
Under the paternity identification requirement, a mother applying for aid under the TANF program is required to identify the children's father. The plaintiffs claimed VDSS denied or reduced their benefits because the agency deemed them "noncooperative" based on their inability to provide the agency with the fathers' names. The plaintiffs alleged that their failure to provide VDSS with the required paternity information was justified because they do not know the identity of their children's father.
On May 30, 1996, the plaintiffs filed a motion for a preliminary injunction. In ruling on the motion, the court found, among other things, that VDSS's policy of denying benefits for noncooperation due to the claimant's inability to identify her children's father contradicted the plain language of the applicable federal regulations. See Smyth v. Carter, 168 F.R.D. 28 (W.D.Va. 1996). The court granted the motion on June 25, 1996. Due to the preliminary injunction, the plaintiffs continued to receive benefits from June 1996 to August 1998, while VDSS's original paternity identification policy was in effect.
On August 5, 1996, the Commonwealth received a waiver from the United States Department of Health and Human Services, which permitted the Commonwealth to have a more rigorous definition of "cooperation" than the federal law. Because of the waiver, the plaintiffs' federal statutory and regulatory arguments no longer were available to challenge the post-1996 policy. After the waiver was granted, the plaintiffs continued to challenge the policy on Equal Protection grounds, arguing that it was irrational and unfair to pay benefits to needy children who could identify their fathers, while denying benefits to needy illegitimate children who could not.
On April 1, 1997, the plaintiffs moved for summary judgment, challenging the entire policy on constitutional grounds, and the pre-1996 policy on statutory and regulatory grounds. The issues were briefed substantially by all parties. Oral argument on the motion was scheduled for September 12, 1997. The day before oral argument, the defendant requested a postponement to consider revising the policy in a way that would exempt the plaintiffs from its requirements. The plaintiffs agreed to postpone the hearing in exchange for the defendant's agreement not to seek repayment of benefits already paid to them, regardless of whether they prevailed on their claims. After considering additional briefing and argument, the court found this to be a binding agreement between the parties. See Smyth v. Carter, 88 F. Supp.2d 567, 570 (W.D.Va. 2000).
Effective August 1, 1998, the defendant amended the paternity identification policy, making its application prospective only. The policy now does not apply to children born before May 1, 1996, so long as the mother attests to her lack of information regarding paternity under penalty of perjury. Both of the children in this case were born prior to that date. Plaintiff Victoria Smyth subsequently left the TANF program, and on February 4, 2000, the court dismissed the case as moot for prudential reasons. See id. at 571.
The plaintiffs filed a "Petition for Attorneys' Fees, Costs, and Expenses" on March 6, 2000, requesting an award of $183,213.44. Adding 59.02 hours and some additional expenses incurred in preparing and arguing the petition, the plaintiffs increased the amount by $11,861.10, resulting in a total request of $195,074.54. The parties now dispute whether the plaintiffs can claim prevailing party status and be awarded these fees.
II.
The Civil Rights Attorney's Fees Awards Act provides,
"In any action or proceeding to enforce a provision of section . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988 (b) (West Supp. 2000) (footnote omitted). In deciding whether to grant the plaintiffs an award of attorney's fees, the court must determine, first, whether the plaintiffs are prevailing parties, and second, the reasonableness of the fee.
A.
The Supreme Court of the United States prescribed the standard for determining whether a party "prevails" for the purposes of § 1988, as follows:
[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. . . . [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) (citations omitted); see also S-1 S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir. 1994) ( en banc) ( per curiam) (vacating S-1 S-2 v. State Bd. of Educ., 6 F.3d 160 (4th Cir. 1993), and adopting the dissenting panel opinion of Judge Wilkinson, reported at 6 F.3d at 168-72) (applying Farrar). "The purpose of § 1988 is to ensure `effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at 1 (1976)).
The plaintiffs assert they are prevailing parties because they obtained a settlement and a preliminary injunction, both of which materially altered the legal relationship between the parties by modifying the defendant's behavior in a way that provided the plaintiffs with most of the relief they sought. Specifically, the plaintiffs claim that the defendant modified his behavior not only by entering the settlement, which relieved the plaintiffs from having to repay benefits already received, but also by changing the paternity identification policy in a way that exempted the plaintiffs from its requirements. The defendant advances three arguments to support his position that the plaintiffs have not "prevailed" under § 1988: (1) the court's mootness ruling precludes a finding that the plaintiffs have prevailed; (2) the preliminary injunction was insufficiently final to confer prevailing party status; and (3) there was no settlement between the parties.
1.
The defendant's principal argument is that the court's ruling that the case is moot for prudential reasons forecloses any finding that the plaintiffs have prevailed in this action by virtue of the defendant's changing the policy. The defendant relies on S-1 S-2, supra. In that case, the plaintiffs were handicapped children enrolled in the Ashboro, North Carolina schools. Their parents requested that the schools either provide special education for the children, or reimburse the parents for private special education, in which the children already were enrolled part-time. When the School Board refused the parents' reimbursement claim, they sued, alleging that the Ashboro City Board of Education, the State Board of Education of North Carolina, and the chairman of the State Board violated their rights under 42 U.S.C. § 1983. The district court granted summary judgment in favor of the plaintiffs, the defendants appealed. While the appeal was pending, the plaintiffs reached a partial settlement of the case with the City Board, but the State defendants were not parties to the settlement agreement. The court of appeals subsequently found the case moot for prudential reasons, because the settlement gave the plaintiffs all the reimbursement they requested. Three years later, in response to pressure by the federal government, the State ultimately changed its policy. On remand, the district court awarded attorney's fees to the plaintiffs under § 1988. Sitting en banc, the Fourth Circuit reversed, holding that "the dismissal on appeal of an action under 42 U.S.C. § 1983 for prudential reasons as moot operates to vacate the judgment below and prevents the plaintiffs from being found prevailing parties by virtue of post-dismissal events." S-1 S-2, 21 F.3d at 51 (emphasis added).
The defendant cites S-1 S-2 to support his position that the revision of the policy does not make the plaintiffs prevailing parties when the case has been dismissed as moot for prudential reasons. The court finds that S-1 S-2 is distinguishable, because the plaintiffs in this case are prevailing parties by virtue of pre-dismissal events, not post-dismissal events. In S-1 S-2, the court found that the plaintiffs did not "prevail" because post-dismissal pressure from a third party, occurring years after the case was ruled moot, caused the change in the defendant's policy; neither the plaintiffs' summary judgment victory nor any other settlement or enforceable judgment materially altered the legal relationship between the plaintiffs and the State defendants. (As noted above, the State defendants were not parties to the settlement in that case.) In the present case, pre-dismissal relief obtained by the plaintiffs, years before the case was ruled moot, caused the change in the defendant's policy. The plaintiffs' obtaining both a preliminary injunction and a partial settlement materially altered the legal relationship between the plaintiffs and the defendant, modifying the defendant's behavior in a way that directly benefitted the plaintiffs while the case still was pending and being litigated in this court. ( See Parts II.A.2-4 infra.) Therefore, the S-1 S-2 case does not operate to bar the plaintiffs from recovering fees under § 1988.
2.
In a related argument, the defendant asserts that preliminary injunctions are not sufficiently final to establish a plaintiff as a prevailing party. The defendant urges the court to adopt a rule that would deny prevailing party status to any plaintiff who obtained a preliminary injunction but ultimately received no further final judgment on the merits of its claims. This argument ignores that the Fourth Circuit clearly has envisioned certain circumstances in which a plaintiff who has obtained a preliminary injunction may be entitled to "prevailing party" status under § 1988, even if the plaintiff does not ultimately obtain a favorable final judgment on the merits of its claim. In S-1 S-2, the court held: "[W]hen a plaintiff is successful in obtaining a preliminary injunction based on its probability of success, the defendant's voluntary cessation of unlawful conduct need not deprive plaintiffs of prevailing party status." 6 F.3d at 170 n. 3 (Wilkinson, J., dissenting) (adopted by the en banc majority at 21 F.3d 49) (emphasis omitted).
Thus, a plaintiff may obtain prevailing party status under § 1988 without obtaining a favorable final judgment in its challenge to a defendant's alleged unlawful conduct if the plaintiff makes a two-part showing. First, the plaintiff must show that it received a preliminary injunction that was based on the plaintiff's probability of success on the merits of its challenge to the defendant's conduct. See id.; see also Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997) ("[A]ttorney's fees are proper "if the court's action in granting the preliminary injunction is governed by its assessment of the merits. . . . [but] are not warranted . . . if the court has not based its decision to award interim relief on the merits."). Second, the plaintiff must show that the defendant voluntarily ceased its unlawful behavior in response to the plaintiff's litigation against the defendant, thereby depriving the plaintiff of the opportunity to obtain a favorable final judgment on the merits. See S-1 S-2, 6 F.3d at 170 n. 3 (Wilkinson, J., dissenting) (adopted by the en banc majority at 21 F.3d 49).
The plaintiffs satisfy the first showing. The court primarily based its decision to grant the plaintiffs' motion for a preliminary injunction on the plaintiffs' probability of success on the merits of their statutory claim. The court analyzed the defendant's policy in great detail, and found that it "contradicts the plain language of the applicable federal regulations." Smyth, 168 F.R.D. at 32. "Given the clear meaning of the regulations, impossible to square with VDSS's contrary policy, the court finds that plaintiff likely will succeed on the merits of its statutory claim." Id.
The plaintiffs also satisfy the second showing. In their summary judgment motion, the plaintiffs advanced the same statutory argument they advanced at the preliminary injunction stage. As a result of the plaintiffs' likely success on the merits of that argument, the defendant entered into a partial settlement agreement with the plaintiffs one day before the hearing on the plaintiffs' summary judgment motion, and also subsequently changed his policy. By doing so, the defendant voluntarily ceased his unlawful behavior in response to the plaintiffs' litigation against him, thereby depriving the plaintiffs of the opportunity to obtain a favorable final judgment on the merits. Therefore, the plaintiffs may be considered prevailing parties by virtue of their success in obtaining the preliminary injunction.
In support of his position, the defendant cites Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980), and an unpublished case from this district, Rahim X v. Morris, No. Civ. A. 96-0493-R, 1997 WL 687729 (W.D.Va. 1997). In Smith, a professor sued the University of North Carolina for wrongful termination, alleging discrimination based on age, sex, and religion. The professor was granted a preliminary injunction, which required, among other things, that her employment be continued pending the outcome of the litigation. The plaintiff ultimately lost at trial on every issue, "amount[ing] to total victory for the University, total defeat for the plaintiff." Smith, 632 F.2d at 321. Nevertheless, the district court awarded the plaintiff attorney's fees for the work relating to the preliminary injunction. The Fourth Circuit reversed, concluding that a plaintiff who loses on the merits of her claim should not be considered a prevailing party under § 1988.
The court reminds the parties that unpublished cases are not to be cited for their precedential value in this district or circuit. To the extent that Rahim X holds that successfully obtaining a preliminary injunction never entitles a plaintiff to prevailing party status when the plaintiff ultimately does not obtain a final judgment on the merits, it reads Smith too broadly and is inconsistent with the Fourth Circuit's statement in S-1 S-2. See 6 F.3d at 170 n. 3 (Wilkinson, J., dissenting) (adopted by the en banc majority at 21 F.3d 49).
The defendant argues that Smith stands for the proposition that obtaining a preliminary injunction never entitles a plaintiff to prevailing party status. Smith did not so hold. While the court ruled that a plaintiff who goes to trial and ultimately loses on the merits should not be regarded as a prevailing party when the injunction serves mainly to "preserve the status quo," id. at 347, and "afford as much as possible every individual a full opportunity to litigate a claim," id. at 353, it distinguished situations in which a preliminary injunction addresses the merits of the case, as in the case at bar. See id. at 352-53. Smith is distinguishable because the plaintiffs in this case ultimately did not suffer "total defeat" on the merits; on the contrary, they obtained a preliminary injunction based on their probability of success on the merits. Therefore, Smith does not support the defendant's argument.
3.
Last, the defendant argues that the plaintiffs did not "prevail" because there was no settlement which gave the plaintiffs "some of the legal relief sought in a § 1983 action." S-1 and S-2, 21 F.3d at 51. In the present case, the parties entered into a binding agreement pursuant to which the defendant agreed not to seek repayment of benefits paid during the course of litigation. See Smyth, 88 F. Supp.2d at 270. In the absence of such an agreement, the plaintiffs' liability to repay these funds would have remained an issue for the court to resolve despite the defendant's ultimate change of policy. See 45 C.F.R. § 233.20(a)(13) (1999) (requiring the State to take reasonable steps to recover overpayment of benefits). Not having to repay these funds was part of the relief sought by the plaintiffs. As the parties entered into an agreement where the release of repayment was the consideration, that agreement was a partial settlement.
4.
The court concludes that the plaintiffs were prevailing parties in this case. In granting the plaintiffs' preliminary injunction, the court found that the plaintiffs probably would succeed on the merits on the statutory argument they ultimately made in their motion for summary judgment. As a result of that finding, and before the case was ruled moot, the defendant: (1) entered into a partial settlement agreement with the plaintiffs one day before the hearing on the plaintiffs' summary judgment motion, giving the plaintiffs some of the relief they requested, and (2) changed his policy to exempt the plaintiffs from the paternity identification requirements, giving the plaintiffs nearly all of the relief they requested, but depriving them of the opportunity to obtain a favorable final judgment on the merits. The court makes these observations not to show that the plaintiffs' lawsuit operated as a catalyst for post-litigation changes in the defendant's conduct, (as the Fourth Circuit did away with the catalyst theory in S-1 S-2), but to show that, prior to dismissal of the case as moot, the plaintiff obtained a judgment against the defendant (the preliminary injunction), as well as comparable relief through a partial settlement, which materially altered the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefitted the plaintiff. See Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Accordingly, the plaintiffs "prevailed" for the purposes of recovering fees under § 1988.
B.
The next question presented is whether the requested fees are reasonable. "[T]he district court has discretion in determining the amount of a fee award." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Fourth Circuit has directed district courts, in exercising their discretion, to be guided by the factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974): (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to properly perform the legal service; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Daly v. Hill, 790 F.2d 1071, 1076 n. 2 (4th Cir. 1986). Applying these Johnson factors, the court must calculate the reasonable hourly rate and the number of hours reasonably expended on the litigation, and then multiply the rate by the hours to determine the "lodestar figure," which is "presumed to be fully compensatory without producing a windfall" to the prevailing party's attorneys. See Trimper v. City of Norfolk, 58 F.3d 68 (4th Cir. 1995).
The "results obtained" factor does not conflict with the Fourth Circuit's decision to do away with the "catalyst theory" for purposes of establishing whether a plaintiff is a prevailing party under § 1988. See Clark v. Sims, 894 F. Supp. 868, 871 (D.Md. 1995) ("[O]nce a party has been otherwise found to be a prevailing party, catalyst theory remains available for consideration as a factor in arriving at the actual amount of the fee award, if any."); Lucas v. Guyton, 901 F. Supp. 1047, 1055-56 (D.S.C. 1995) ("agree[ing] entirely" with the analysis in Clark).
The plaintiffs' fee application primarily was based on work performed by two attorneys, Steven L. Myers and Edward M. Wayland, and by a consulting professor of law from the University of Virginia, Daniel R. Ortiz. Messrs. Myers and Wayland claimed an hourly rate of $200 per hour, and Mr. Ortiz claimed an hourly rate of $275 per hour. Messrs. Wayland, Myers, and Ortiz initially sought compensation for 440.71, 454.76, and 14.3 hours of work, respectively, totaling 909.77 hours. For time spent preparing and arguing the fee petition, Mr. Wayland added 39.42 hours, and Mr. Myers added 19.6 hours, for which they also seek compensation. The plaintiffs also seek reimbursement for their reasonable costs and related expenses. The total amount requested is $195,074.54.
1.
The court's first task is to determine the reasonable hourly rate. "The § 1988 fee applicant bears the burden of establishing the reasonableness of the hourly rates requested. Specifically, the applicant must produce specific evidence of the `prevailing market rates in the relevant community' for the type of work for which he seeks an award." Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987). The plaintiffs may satisfy this burden by submitting "affidavits reciting the precise fees that counsel with similar qualifications have received in comparable cases; information concerning recent fee awards by courts in comparable cases; and specific evidence of counsel's actual billing practice or other evidence of the actual rates which counsel can command in the market." Spell, 824 F.2d at 1402.
The plaintiff established by way of declarations that the appropriate rate for someone of Professor Ortiz's superior skill and experience is $275 per hour. The defendant does not dispute this figure, but only challenges the $200 rate for Messrs. Wayland and Myers. Having reviewed the declarations of Professors Ortiz and Rutherglen, the court finds that $275 per hour is an appropriate rate for Professor Ortiz. The remainder of this Part discusses the appropriate rates for Messrs. Wayland and Myers.
The defendant does not deny that Messrs. Wayland and Myers are experienced and knowledgeable in matters of welfare law and benefits. Rather, the defendant objects that the hourly rate claimed by them is unreasonable considering the customary fee in the community, the amount involved and results obtained, awards in similar cases, and the time and labor required.
The court begins by examining the customary fee in the community, the fifth Johnson factor. The parties do not dispute that the relevant community in this case is Harrisonburg, Virginia. To satisfy their burden, the plaintiffs submitted declarations from Messrs. Meyers and Wayland, and from various attorneys practicing in Harrisonburg and Charlottesville. In essence, the declarations state that the appropriate market rate for similarly-situated attorneys in the community is $150 to $250 per hour, and that the appropriate rate for Messrs. Meyers and Wayland is $200 per hour. The defendant does not challenge the $150 to $200 range. Rather, he states that the low-end of the range — i.e. $150 per hour — is more appropriate "when the only opportunity for being reimbursed for these hours is by the state's welfare agency." The defendant cites no case law in support of this proposition.
The defendant's argument is misplaced. In Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 180 (4th Cir. 1994), the Fourth Circuit stated plainly that, "to the extent that the district court may have considered the fact that taxpayers would be required ultimately to pay the fees, it employed an improper ground for denying or reducing an attorney's fee to the prevailing party under 42 U.S.C. § 1988." See also S. Rep. No. 94-1011, at 5 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5913, and at 1976 WL 14051 ("[D]efendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." (footnotes omitted)). The court accordingly shall not reduce plaintiffs' counsel's requested rate simply because "the only opportunity for being reimbursed for these hours is by the state's welfare agency." The above-referenced declarations are consistent with the court's knowledge of the prevailing rates for similar work by similarly-experienced attorneys in the Harrisonburg area. The defendant having offered no evidence to the contrary, the court finds $200 per hour to be consistent with the customary fee for similarly-experienced attorneys who practice civil rights and public welfare litigation in the relevant community.
The defendant's next challenge to the appropriate hourly rate is based on the amount involved and the results obtained, the eighth Johnson factor. The defendant asserts that the results were unfavorable because the benefits received as a result of the preliminary injunction only amounted to a few hundred dollars per month. This argument is unconvincing, as it ignores what the plaintiffs principally sought in this case. The instant case was not an action for damages, but an action for injunctive and declaratory relief, to "prevent the defendant from denying, reducing, or terminating AFDC benefits to them or any other person similarly situated on the basis of the challenged policies and practices and requiring that their benefits . . . be paid in full pending the outcome of this litigation." (Compl. at 2 ¶ 2.) See generally Hensley v. Eckerhart, 461 U.S. 424, 436 n. 11 (1983) (noting that "a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time"); S. Rep. No. 94-1011, at 3, reprinted in 1976 U.S.C.C.A.N. 5908, 5913 (1976), and at 1976 WL 14051 ("It is intended that the amount of fees awarded . . . not be reduced because the rights involved may be nonpecuniary in nature."). The plaintiffs obtained nearly everything they sought from the outset of this case, as a result of the preliminary injunction, the partial settlement agreement, and the defendant's change in policy: the defendant's absolute paternity policy was revised to exclude the plaintiffs and other families with illegitimate children born before May 1996; the plaintiffs continued to receive benefits while the prior policy was in effect; the plaintiffs are not required to repay the previously-received benefits; and assuming they otherwise qualify, the plaintiffs will be entitled to receive benefits in the future even though they do not know the identity of their fathers. The defendant also argues that because plaintiffs' counsel was unsuccessful in certifying this case as a class action, the results obtained are not very favorable. This argument is no more persuasive than the last, because the defendant's change in policy affects a wide range of similarly-situated individuals — all children born prior to May 1996 — even though the class was not certified. Preventing the defendant from denying benefits to similarly-situated persons on the basis of the paternity identification policy was part of the relief requested. ( See Compl. at 2 ¶ 2.) As the results obtained in this case were excellent, the eighth Johnson factor favors the plaintiffs, not the defendant.
The defendant next challenges the appropriate hourly rate based on awards in similar cases, the twelfth Johnson factor. The parties dispute whether a case from the Eastern District, Rehabilitation Association of Virginia, Inc. v. Metcalf, 8 F. Supp.2d 520 (E.D.Va. 1998), is similar to the case at bar. The plaintiff in Rehabilitation Association was an association of rehabilitation agencies that provided services to individuals who qualified for both Medicare and Medicaid. It sued the Director of the Virginia Department of Health and Human Services pursuant to 42 U.S.C. § 1983, for injunctive and declaratory relief from state laws which allegedly nullified the plaintiff's federal right to payment for services it rendered to individuals with incomes below the federal poverty levels. The plaintiff prevailed on summary judgment, and the court of appeals affirmed. The plaintiff then sought to recover its fees under § 1988.
In assessing the reasonableness of the requested fees, the court found that the rate charged by the plaintiff's New York counsel — $380 per hour — was too high under community standards. The court proceeded to determine the reasonable rate for experienced health care attorneys in Richmond, Virginia, the market where it sits. Based on affidavit evidence and its own knowledge and experience, the court found that partners in Richmond law firms charged slightly more than $170 to $180 per hour, but that, when the health care experience of plaintiff's counsel was taken into account, "the reasonable hourly rate in Richmond for an attorney of similar experience, skill, and reputation," was $250 to $300 per hour. Id. at 528.
The Rehabilitation Association case is comparable to the case at bar. As in this case, the plaintiff filed a § 1983 action in the public welfare arena for declaratory and injunctive relief against the Director of a Virginia state agency. In granting plaintiff's counsel over $300,000 in fees, the court found that the reasonable rates in Richmond ranged from $170 to $300, the high-end being reasonable for a lawyer in Richmond with as much experience as plaintiff's counsel in that case. Plaintiffs' counsel in the case at bar also have extensive experience in the public welfare field, and their claimed rate — $200 per hour — falls within the range set forth in Rehabilitation Association. The fact that $200 is toward the low-end of that range adequately takes account of the fact that the lawyers in Rehabilitation Association litigated their case at the appellate and Supreme Court levels, and obtained greater monetary relief for their clients than plaintiffs' counsel in this case. The court accordingly finds that $200 per hour is reasonable when compared to the rates found reasonable in Rehabilitation Association.
Last, the defendant challenges the appropriate hourly rate based on the time and labor required, the first Johnson factor. The defendant states generally that the amount of time Messrs. Wayland and Myers spent preparing various litigation-related documents is exorbitant, given their self-proclaimed expertise in welfare issues. The defendant asserts that the plaintiffs must reduce either their claimed hours or their hourly rate, citing Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983) (stating that "a fee applicant cannot demand a high hourly rate . . . and then run up an inordinate amount of time researching the . . . law" with which they claim to be familiar). The court does not disagree with the Third Circuit's holding in Ursic. However, as discussed below, the court does not find that plaintiffs' counsel ran up an inordinate or unreasonable amount of time in preparing for trial. The court accordingly rejects this argument by the defendant.
The defendant does not challenge the hourly rate on the basis of any of the other Johnson factors. The plaintiffs correctly observe that the unchallenged factors also weigh in favor of their requested hourly rate. The questions presented were novel and difficult: only a few other states have similar paternity identification policies, very few other reported decisions concern the legality of a similar welfare reform policy, and the plaintiffs' task was complicated by the need to analyze the effect of the waivers the defendant obtained from the United States Department of Health and Human Services. Having presided over this case for four years, the court also finds that this case required a high level of skill, and that plaintiffs' counsel performed well. Plaintiffs' counsel also submitted declarations that their work on this case precluded their ability to work on other matters, and the defendant does not argue to the contrary. The time limitations imposed by the circumstances also weigh in favor of plaintiffs' counsel: as the plaintiffs "rely upon AFDC benefits to sustain themselves," Smyth v. Carter, 168 F.R.D. 28, 30 (W.D.Va. 1996), plaintiffs' counsel was required to seek a temporary restraining order and a preliminary injunction early in the case. Plaintiffs' counsel also assert that this welfare reform case was politically undesirable, citing newspaper articles that described their arguments as "insane" and "psychopathic." The defendant does not disagree that this case was politically undesirable.
The court has considered all of the Johnson factors as they apply to this case, as well as the parties' respective positions. Having done so, and based on the evidence submitted by counsel and on its own knowledge and experience, the court concludes that a reasonable hourly rate for the work performed in this case is $200 for Messrs. Wayland and Myers, and $275 for Mr. Ortiz.
Plaintiffs' counsel distinguishes between the reasonable hourly rate for work performed, $200, and the rate for time spent traveling in connection with this litigation, which the plaintiffs assert is $100 per hour. The plaintiffs' reduction of this "travel rate" to $100 per hour evidences the good faith of their fee request. $200 being a reasonable hourly rate for the work performed, and the defendant not having challenged the $100 per hour travel rate, the court also finds this travel rate to be reasonable.
2.
The court's second task is to determine whether the hours billed by plaintiffs' counsel are unreasonable. Courts must "exclude from this initial fee calculation hours that were not `reasonably expended.'" Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (quoting S. Rep. No. 94-1011, at 6 (1976)). The court must ascertain whether counsel for the prevailing party fulfilled their duty to exercise billing judgment "to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Id.Plaintiffs' counsel properly exercised billing judgment. They excluded from their petition the time spent on unsuccessful matters (such as the class certification motion), and on other unrelated issues (such as those concerning the Winchester plaintiffs, who were dismissed from the case). Plaintiffs' counsel also reduced their total hours by 10-15%, to deduct for possibly duplicative, unnecessary, or clerical work that was not otherwise accounted for.
The defendant lodges two very general arguments against the number of hours plaintiffs' counsel claim they spent on their tasks: he challenges the number of phone calls and conferences charged by plaintiffs' counsel, and argues generally that plaintiffs' counsel spent too much time on various issues. The court rejects the first argument, because plaintiffs' counsel held offices in different cities, and should not be penalized for holding conferences about a case they worked on jointly. The court also rejects the second argument. The defendant does not explain why any particular figure is unreasonable, but simply asserts that plaintiffs' counsel's hours are too high, given their experience. Although the defendant's "time summaries" purport to summarize the hours spent "preparing pleadings," the times indicated in the summaries also include hours spent preparing for argument, interviewing and preparing witnesses, researching the particular claims and defenses in this case, and preparing exhibits and declarations. As the plaintiffs correctly observe, it takes time to do a job well. The defendant vigorously opposed the plaintiffs' efforts throughout this litigation, maintaining that his policy was not inconsistent with the plain language of the applicable federal regulations. The court so notes not to fault the defendant, but to observe that the plaintiffs' efforts were justified in light of that opposition. The court finds it significant that the defendant waited until the day before oral argument on the plaintiffs' summary judgment motion to begin discussions with the plaintiffs about revising the policy. As a consequence of this timing, plaintiffs' counsel was required to spend time drafting their summary judgment briefs, and to prepare fully for oral argument on the motion. The defendant has continued to claim that no agreement existed, despite this court's prior ruling to the contrary. Consequently, the plaintiffs have been required to expend considerable time and resources to litigate this case successfully. The court has reviewed thoroughly the declarations submitted by plaintiffs' counsel, and has considered the Johnson factors as they apply to the "reasonable hours" inquiry. The court finds that the plaintiffs have satisfied their burden of proving that the number of hours they expended on the litigation was reasonable.
3.
For the foregoing reasons, the court finds that $200 per hour is a reasonable rate for the legal services of Messrs. Wayland and Myers in this case, and that $275 per hour is reasonable for the services of Professor Ortiz in this case. The court also finds reasonable the 480.13 hours spent by Mr. Wayland, the 474.36 spent by Mr. Myers, and the 14.3 hours spent by Mr. Ortiz. Accordingly, the lodestar fee is $191,505.50. The plaintiffs do not request that this figure be adjusted upward due to "exceptional circumstances." See Daly v. Hill, 790 F.2d 1071, 1077-78 (4th Cir. 1986).
The court arrived at the lodestar fee by multiplying the number of hours reasonably spent by Messrs. Wayland, Myers, and Ortiz, by each of their reasonable hourly rates. To calculate the total number of hours, the court added those reflected in the initial fee petition ("initial hours"), to those spent preparing and arguing the petition ("petition hours"). The initial hours consist of both "work hours" and "travel hours." ( See note 4 supra.) The calculations are as follows:
For Mr. Wayland:
Hours
440.71 initial hours (421.96 work hours + 18.75 travel hours) + 39.42 petition work hours
= 480.13 total hours
total work hours: 461.38 (421.96 initial work hours + 39.42 petition work hours)
total travel hours: 18.75
Fees
initial work fee: 421.96 work hours x $200 per hour = $84,392 + petition work fee: 39.42 work hours x $200 per hour = $7884
= total work fees: 461.38 total work hours x $200 per hour = $92,276
total travel fees: 18.75 travel hours x $100 per hour = $1875
Total Fees for Mr. Wayland: $92,276 + $1875 = $94,151
For Mr. Myers:
Hours
454.76 initial hours, (440.26 work hours + 14.5 travel hours) + 19.6 petition work hours
= 474.36 total hours
total work hours: 459.86 (440.26 initial work hours + 19.6 petition work hours)
total travel hours: 14.5
Fees
initial work fee: 440.26 initial work hours x $200 per hour = $88,052 + petition work fee: 19.6 petition work hours x $200 per hour = $3920
= total work fees: 459.86 total work hours x $200 per hour = $91,972
total travel fees: 14.5 travel hours x $100 per hour = $1450
Total Fees for Mr. Myers: $91,972 + $1450 = $93,422
For Prof. Ortiz:
Hours
14.3 initial work hours + 0 petition hours = 14.3 total hours
Total Fees
Total Fees for Prof. Ortiz: 14.3 total hours x $275 per hour = $3,932.50.
Combined total for Messrs. Wayland, Myers, and Ortiz:
Mr. Wayland: $94,151 +
Mr. Myers: $93,422 +
Prof. Ortiz: $3932.50
Total: $191,505.50.
The plaintiffs also request an award of related costs and expenses. "A prevailing plaintiff in a civil rights action is entitled, under § 1988, to recover `those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.'" Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988) (quoting Northcross v. Board of Educ. of Memphis City Schools, 611 F.2d 624, 639 (6th Cir. 1979)). Counsel for the plaintiffs itemized the out-of-pocket expenses they incurred in this matter. Initially they claimed $3511.94 in expenses, and added $57.10 for expenses incurred in preparing the instant petition. The total amounts to $3569.04, to which the defendants have not objected. The court has reviewed the statements and find the items contained therein to be reasonable. The court therefore concludes that $3569.04 in related costs and expenses should be added to the lodestar amount, resulting in a total award of $195,074.54 ($191,505.50 + $3569.04).
III.
For the reasons discussed above, the court finds that the plaintiffs are prevailing parties for the purposes of 42 U.S.C. § 1988, and that the requested fees are reasonable. The court shall grant the plaintiffs' petition, and award the plaintiffs fees in the amount of $195,074.54.
An appropriate Order this day shall issue.
FINAL ORDER
Upon consideration of the plaintiffs' "Petition for Attorneys' Fees, Costs, and Expenses" filed March 6, 2000, the supporting memoranda and declarations, the opposition thereto, the plaintiffs' reply, and the entire record in this case, and having heard oral argument by counsel, the court shall grant the plaintiffs' petition. For the reasons discussed in the accompanying Memorandum Opinion, it is accordingly this day
ADJUDGED, ORDERED, AND DECREED as follows:
1. The plaintiffs' "Petition for Attorneys' Fees, Costs, and Expenses," filed March 6, 2000, shall be, and it hereby is, GRANTED;
2. The plaintiffs shall be, and they hereby are, awarded One Hundred Ninety-Five Thousand Seventy-Four Dollars and Fifty-Four Cents ($195,074.54), pursuant to the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988 (b);
3. The defendant shall pay forthwith the above sum to the plaintiffs;
4. This case shall be, and it hereby is, stricken from the docket of the Court.
The Clerk of the Court hereby is directed to send a copy of this Order and the accompanying Memorandum Opinion to all counsel of record.