MARK E. WALKER, District Judge.
This case was reassigned to the undersigned judge on September 26, 2014. It comes before this Court on Plaintiffs' Amended Motion for Attorney's Fees, ECF No. 383, Defendant's Opposition, ECF No. 384, and Plaintiffs' Memorandum in Reply, ECF No. 385.
Plaintiffs are Beta Upsilon Chi, a Christian fraternal organization, and its local chapter, the Beta Upsilon Chi Upsilon Chapter at the University of Florida (collectively "BYX"). On July 10, 2007, BYX sued the president of the University of Florida and other officials (collectively "the University") for refusing to grant BYX status as a registered student organization. Although student organizations are not required to register in order to operate on campus, registered student organizations enjoy benefits— such as eligibility to receive funding from student government, priority use of some facilities, and access to recruiting resources—that are unavailable to non-registered student organizations.
The University refused to register BYX because BYX did not allow women to join, thus violating the University's non-discrimination policy.
The district judge denied the motion for preliminary injunction on May 29, 2008. ECF No. 104. On June 6, 2008, BYX filed an interlocutory appeal and sought an injunction pending appeal. ECF Nos. 115, 116. The district judge denied the injunction pending appeal. ECF No. 138. On July 30, 2008, however, the Eleventh Circuit Court of Appeals granted it. ECF No. 151.
After oral argument on the interlocutory appeal, on January 15, 2009, the University amended its policy to allow a "student organization whose primary purpose is religious ... [to] limit[] membership and leadership positions to students who share the religious beliefs of the organization." ECF No. 206, at 14. In accordance with the amended policy, the University registered BYX as a student organization, thereby providing BYX with the relief sought in its complaint. As a result, the Eleventh Circuit dismissed the interlocutory appeal as moot on October 27, 2009, and directed the district judge on remand to dismiss the case as moot. Id. at 22.
After the dismissal of the appeal as moot, BYX filed a motion for appellate attorney fees. The Eleventh Circuit granted the motion in part, finding that BYX was entitled to "attorney fees for work performed in [the Eleventh Circuit] on [BYX's] motion for injunction pending appeal." ECF No. 235. The Eleventh Circuit directed the district judge to determine the amount of appellate fees to award. Id. BYX also filed with the district judge a motion for attorney fees for work performed at the trial level. ECF No. 245.
In the district court, the University argued that BYX was not the prevailing party because BYX obtained no relief on the merits and because the case was dismissed as moot. ECF Nos. 244, 248. The district judge agreed. ECF Nos. 254, 259. In accordance with the Eleventh Circuit's instructions, however, the district judge awarded appellate attorney fees to BYX in the amount of $7,081.44. ECF Nos. 263, 264. This amount was agreed to by the parties.
BYX appealed the denial of trial level attorney's fees to the Eleventh Circuit. The Eleventh Circuit vacated the denial and remanded with instructions to award BYX trial level fees as the prevailing party under § 1988.
On remand, the parties agreed to an award of $22,000 for appellate attorney's fees for BYX's second appeal, and the district judge awarded those fees. ECF No. 347. As for the trial level attorney's fees, however, the district judge accepted the University's argument that BYX's award should be limited to work performed only on the motion for injunction pending appeal. ECF Nos. 299,320. With this limitation in place, the parties agreed to an amount of $6,632.50 for trial level attorney's fees, plus the $7,081.44 for appellate attorney's fees for the first appeal, making a total award of $13,713.94. ECF No. 326. BYX agreed to this amount but noted that it was not waiving its right to appeal the district judge's ruling limiting its attorney's fees. ECF No. 326.
On BYX's third appeal regarding the limitation of trial level attorney's fees, the Eleventh Circuit again vacated and remanded, explaining that the district judge erred "by only awarding attorney's fees to the prevailing party on one motion and by not taking into account work proceeding this motion that is fundamentally required for [BYX] to become a prevailing party—e.g. work on the complaint." ECF No. 358, at 4. The Eleventh Circuit noted that its order limiting BYX's attorney fees for the first appeal to work on the injunction simply reflected the fact that BYX was "only successful on appeal with respect to the work on the injunction pending appeal and not with respect to other issues, including the mootness issue."
The posture of this case now is as follows. BYX has been awarded $7,081.44 in appellate attorney fees for the first appeal, ECF No. 264, and $22,000 in appellate attorney fees for the second appeal, ECF No. 347. All of the other attorney fee awards have been vacated by the Eleventh Circuit. The parties have already agreed that BYX is entitled to $6,632.50 for work performed in this Court on the motion for injunction pending appeal. At issue, therefore, are additional amounts to be awarded to BYX for (1) work performed in the district court that was reasonably related to and reasonably contributed to the granting of the injunction pending appeal, (2) other work performed in the district court on the merits of its claims, which BYX contends it is entitled to receive fee for, (3) work performed in the district court establishing BYX's entitlement to and amount of attorney's fees, and (4) work performed in the Eleventh Circuit on BYX's third appeal.
BYX requests $252,256.25 in attorney's fees. This amount represents all work performed in the district court on the merits of its claim (even work that is not related to and did not contribute to the granting of the injunction pending appeal). This amount also includes work to establish BYX's entitlement to, and amount of, attorney's fees. BYX also seeks $1,238.98 in non-taxable expenses and costs. BYX seeks additional attorney's fees in the amount of $34,267.50 for work performed on its third appeal.
The University argues that BYX's request should be greatly reduced. The University identifies areas of work—such as discovery and summary judgment—that it contends are not reasonably related to the injunction pending appeal. Instead of identifying specific hours to eliminate, however, the University argues for an across the board reduction because the hours claimed by BYX are unreasonably high and the fee documentation is too voluminous to make an hour by hour review. The University proposes to reduce BYX's hours by 80%.
The University also argues that the hourly rates for BYX's lawyers should be reduced to $175 to reflect the local market rate. As a result of these reductions, the University argues that a fee award of $28,375 to BYX for work performed in the district court would be appropriate. As for the appellate fees, the University contends that the fees should be reduced by 50% to $17,133.75.
Normally, a prevailing party who obtains full relief is entitled to compensation for "all hours reasonably expended in the litigation. . . ." Hensley v. Eckerhart, 461 U.S.424, 435 (1983). BYX contends that it obtained full relief and that all of its hours were reasonably expended. Therefore, BYX argues, no reduction should be made for limited results. In fact, BYX notes that when the Eleventh Circuit ruled that the case should be dismissed as moot, it did so because BYX had "received the relief sought in its complaint." ECF No. 206, at 16.
According to the University, the clear instructions from the Eleventh Circuit require that BYX not be awarded any fees for work performed after the July 30, 2008 injunction pending appeal. The University contends that work performed afterward cannot be "reasonably related to, [or be deemed to have] reasonably contributed to, the success achieved—i.e. the grant of the injunction pending appeal." ECF No. 358, at 4-5. The University also argues that BYX's fees should be further reduced because the success BYX obtained was limited. According to the University, its decision to voluntarily amend its policy on January 15, 2009 to allow BYX to register as a student organization should not be considered part of the success BYX achieved because only court-ordered relief can support a fee award.
The University cites to the Supreme Court's decision in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of HHR, 532 U.S. 598 (2001). In Buckhannon, the United States Supreme Court rejected the "catalyst theory" and ruled that a party cannot obtain prevailing party status when the relief it obtains comes through a defendant's voluntary change in conduct in response to a lawsuit. Id. The Court explained that a "judicial imprimatur," in the form of a judgment on the merits or a consent decree or similar judicial relief, is necessary to establish prevailing party status. Id. at 601, 605.
This Court need not consider the University's argument under Buckhannon, however, because the Eleventh Circuit has already determined that BYX is the prevailing party. The Eleventh Circuit plainly stated, BYX is the "prevailing part[y[ under § 1988 and ... entitled to reasonable attorney's fees." ECF No. 288. Furthermore, because the University's policy change was not so much a response to BYX's lawsuit itself, but came after the Eleventh Circuit granted an injunction on the merits, it is appropriate to consider the University's policy change in assessing the success BYX obtained.
With that in mind, this Court turns to the calculation of the lodestar figure,
BYX claims the following hourly rates for its attorneys:
This Court approves these rates. The $200 and $150 rates charged for Gugino and Taylor are standard for this district for new associates. The higher rates for the other attorneys are in line with the hourly rates found reasonable for similarly experienced lawyers specializing in First Amendment litigation in the Northern District of Florida.
The University argues that most of the attorneys' work was performed in 2007 and 2008, and therefore a 2007 and 2008 local rate, which the University calculates as $175, should be used.
The total number of hours claimed by BYX for each of its attorneys and paralegals is as follows:
A review of the hours shows that Attorney Timothy J. Tracey performed almost all of the work on the merits of the case. Attorney Roger K. Gannam performed most of the work on the attorney fee issues. Paralegals assisted with research and in compiling records. The other attorneys reviewed, coordinated and supervised; and thus expended far fewer hours.
To aid with review, the hours are broken down to show the work performed in different stages of this case.
Most of the hours expended in this stage of the case involved the merits of the claim.
The total number of hours expended at this stage of the case is 650.53. These hours were reasonably expended in the litigation and will be considered in arriving at the lodestar figure.
None of the hours claimed in this period relate to the merits of the case. Instead, the hours were spent reviewing and preparing time records and conferring with co-counsel and the client.
The total number of hours expended at this stage is 16.3. This Court will deduct the .1 hour spent by attorney Jeffrey Shafer reviewing a notice of appearance. Shafer completed no compensable work on the merits of the case either at this stage of the litigation or in the prior stage. The other time claimed appears to be reasonable and will be used to calculate the loadstar.
The total number of hours expended at this stage is 258.24. The only specific time entries the University objects to are those related to taxable costs. ECF No. 384, at 17 n.6. Compensation for these entries will be denied because BYX did not prevail on its claim for taxable costs. ECF Nos. 246, 254; Norman, 836 F.2d at 1302 ("district court must deduct time spent on discrete and unsuccessful claims). This Court further finds that the time spent by attorneys Colby, Shafer, and Baylor was excessive considering the assistance provided by four the paralegals, and Gannam's role in actually preparing the motions and memoranda, and the fact that these attorneys were no longer operating in their field of expertise in First Amendment law but supervising Gannam's work to establish attorney's fees. Accordingly, their time will be reduced by 50%.
The University argues that the hours expended by BYX on the appeal were excessive and the result of overstaffing. Here again, the time spent by attorneys Colby and Shafer reviewing the work performed by attorney Gannam is excessive. This Court will therefore reduce their time by 50%. This Court will also reduce the hourly rate charged by Attorney Taylor for Shepardizing cases to $75 because the task could have been performed by a paralegal and otherwise appears excessive. Alternatively, this Court could have simply cut his hours in half as excessive. All other hours at the rates charged will be used to calculate the loadstar.
Finally, BYX seeks $1,283.98 in nontaxable costs. ECF No. 383-1, at 79-85. The University notes several problems with the cost statement, to which BYX has failed to respond. ECF No. 384, at 14-15.
In an effort to understand the charges, this Court has reviewed them in relation to the time records of attorney Timothy J. Tracey. ECF No. 383-1, at 37, 39. Aside from postage and PACER charges, most of the costs relate to travel to Gainesville, Florida on March 12, 2008 for a hearing on BYX's motion for preliminary injunction, ECF Nos. 92; 383-1, at 37, and travel to depose officials at the University on April 30 through May 1, 2008, ECF 383-1, at 39.
Aside from the redundant entries for $21.34 in shipping charges on 7/10/2007 and $3.71 for travel food on 5/1/2008, this Court finds that the costs were reasonably incurred and are recoverable under § 1988. Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1192 (11th Cir. 1983).
The lodestar totals to $235,278.25. This Court finds no reason to make additional alterations given the reductions already made for discrete, unsuccessful claims and excessive hours.
This Court finds no reason to alter the lodestar figure for appellate attorney fees given the specific reduction for excessive hours already made.
Finally, BYX claims $1,283.98 in nontaxable costs. This Court will subtract $42.68 ($21.34 × 2) for the two redundant entries on 7/10/07 and $3.71 or the redundant entry on 5/1/08. ECF No. 383-1, at 79, 80. This leaves $1,237.59 in appropriate, nontaxable costs.
For these reasons,
IT IS ORDERED:
1. Plaintiffs' Amended Motion for Attorney's Fees, ECF. No. 383, is
2. As the prevailing party under § 1988, BYX is awarded attorney's fees in the amount of $235,278.25 for work performed in this Court plus costs in the amount $1,237.59. For its work on the third appeal, BYX is awarded $29,443.75. The sum total of the attorney's fees and costs is $265,959.59.
3. The Clerk shall enter judgment stating, "Judgment is entered in favor of Plaintiffs, Beta Upsilon Chi and the Beta Upsilon Chi Upsilon Chapter at the University of Florida, and against Defendants for attorney's fees and costs in the sum of $265,959.59, for which interest shall accrue as provided by law." The Clerk shall close the case.
