The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge.
MEMORANDUM OPINION AND ORDER
Prevailing plaintiffs in this voting rights case have filed a
petition for attorneys' fees pursuant to 42 U.S.C. § 1988 and
1973(e). Pursuant to local rule, the parties exchanged positions
and attempted to work out their differences on this issue. Before
me are the petition, defendants' limited objections, and
plaintiffs' reply. This opinion discusses the various
Defendants argue that the principal attorney in the case,
Judson Miner, is seeking an hourly rate that, for many of the
years this case has been in litigation, is too high.*fn2 Mr.
Miner seeks an hourly rate of $350 for work in the years 1998 and
1999, $325 an hour for work in 1996 and 1997, and $310 for work
in 1994 and 1995. Defendants say he billed clients at a rate of
$285 from 1994 to 1998 and that his rate should be capped at this
amount. An attorney's actual billing rate is "presumptively
appropriate." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544,
555 (7th Cir. 1999) (quoting from earlier case). The goal in
setting a fee "is to determine what the attorney could have made
`if he were not representing this plaintiff in this case'."
People Who Care v. Rockford Board of Education, 90 F.3d 1307,
1312 (7th Cir. 1996) (citation and emphasis omitted).
Mr. Miner represents that his firm primarily handles cases such
as voting rights and employment cases in which a court determines
the fee. In that sense, while the fee he charges clients paying
an hourly fee is relevant it is not conclusive because if he had
not spent the time he did on this case it might have been spent
on another fee shifting case. In the absence of relevant actual
billing rates for these type of cases, I may consider the rates
"similarly experienced attorneys in the community charge paying
clients for similar work and evidence of fee awards the attorney
has received in similar cases." Spegon, 175 F.3d at 555. On the
first point, plaintiffs have not presented much evidence.
Although they attach numerous affidavits from respected
attorneys, only one states the billing rate charged by that
attorney. The rest simply state the conclusion that the rates
sought by Mr. Miner (and other attorneys in his firm) are
reasonable. This is not helpful. Id. at 556 (noting that
affidavits should state the rates affiants charge paying clients
for similar work). The one affidavit that states a billing rate
indicates that the lawyer, Fay Clayton, a 1979 law graduate,
charges her paying clients $325 an hour. It is not clear,
however, that this is for similar work and Ms. Clayton, like Mr.
Miner, according to her declaration, also spends most of her
practice on fee shifting cases. The only other evidence in the
record based on hourly billing rates that would support Mr.
Miner's claimed $350 an hour rate is the affidavit of Michael
Shakman, a lawyer of similar experience and stature in the
community, submitted in support of his own fee petition, in which
he states that he charges paying clients $350 an hour, although
he does indicate that he reduces that amount for clients with
large billings. Plaintiffs say that the comparable defense
lawyer, Jerold Solovy, charges as much as
$425 an hour, but if so, with the exception of one bill he did
not do so in this case, charging in 1998 $315 an hour. Plaintiffs
also refer to numerous fee awards in other cases. While no court
has awarded Mr. Miner $350 an hour, Judge Castillo found $325 an
hour to be acceptable in 1998. Other awards involving other
attorneys in Mr. Miner's firm are comparable when dates of award
and level of experience of the attorneys involved are considered.
Considering all of the evidence (Mr. Miner's historical fees,
the evidence that exists of comparable rates charged by other
attorneys, and other fee awards, as well as Mr. Miner's
acknowledged expertise in the area of voting rights), I conclude
that an award based on $325 an hour for the years 1996 through
1999 and $310 for the years 1994 and 1995 is reasonable.
Defendants make similar objections to the hourly rates sought
by other attorneys in the Miner firm, as well as by Bridget
Arimond, an outside attorney brought in by Mr. Miner to work with
him on the hearing and briefs required by the Seventh Circuit's
remand of this case and its subsequent assignment to this court.
In addition to the arguments made in support of Mr. Miner's
hourly rate, plaintiffs point to the fact that defendants paid
outside attorneys with similar experience at rates equal to or in
excess of the rates claimed by these attorneys. I agree that
defendants have failed to rebut plaintiffs' evidence that the
rates sought by these attorneys are reasonable. See People Who
Care v. Rockford Bd. Of Education, 90 F.3d 1307, 1313 (7th Cir.
Defendants also argue that fees should not be awarded for 285
hours spent by Mr. Miner prior to the time this case was filed on
the ground that the time was spent on "political" work as opposed
to litigation. However, defendants have not challenged
plaintiffs' representation that this time was devoted to attempts
to settle this case without litigation and to developing
plaintiffs' legal theory. In addition, Mr. Miner did not seek
fees for an additional 111 hours spent during the prelitigation
period in which plaintiffs sought an alternative ward map. I
conclude that the hours sought are reasonable.
Defendants' last objection to the Miner firm's fees are to the
request for a multiplier. Essentially, the parties disagree about
whether a court can award a multiplier following Burlington v.
Dague, 505 U.S. 557 (1992). Theoretically, the Seventh Circuit
has said a multiplier may still be appropriate in some cases, see
Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 327-28
(7th Cir. 1992), but I conclude that this case is not an
exception to the general rule announced in Dague. The fact that
plaintiffs were seeking injunctive relief rather than damages
does not itself entitle plaintiffs to an enhancement. Dague, 505
U.S. at 564-65. I appreciate the risk that plaintiffs' counsel
took in this case, advancing enormous costs and spending
thousands of hours for which they might never have been
compensated but as I read Dague, that is part of the risk of this
type of litigation.
Defendants also object to the request by Michael Shakman for
$6,755 for 19 hours spent responding to a subpoena served on the
NAACP Legal Defense and Education Fund, which was part of
plaintiffs' legal team. Defendants do not argue that the amount
sought is unreasonable in terms of the work required but say the
subpoena was not served on plaintiffs' counsel as plaintiffs'
counsel. The thinking behind defendants' subpoena is not
relevant. The Miner firm brought in Mr. Shakman to handle the
issues raised by the subpoena because it did not have time to
respond itself. This was legal work on behalf of the plaintiffs.
Mr. Shakman is entitled to compensation.
Defendants raise substantial objections to fee requests from
three additional attorneys, Eugene Pincham, P. Scott Neville, and
Nathaniel Howse, Jr. Mr. Pincham
seeks $654,625 in fees, Mr.
Neville seeks $358,880, and Judge Howse*fn3 seeks $131,080 in
fees. Defendants raise several objections to these fee requests.
They first argue that Mr. Pincham should not be compensated at
the requested rate of $500 an hour. The rate is extraordinarily
high. Mr. Pincham has not pointed to any attorneys in this case
or otherwise who regularly bill at that rate. He notes that he
was awarded a fee in another case at this rate. I have read the
magistrate judge's report and recommendation on which that award
was based, however, and it is based solely on National Law
Journal surveys of attorney fees and her conclusion that Mr.
Pincham was entitled to an award at the high end of the fee
range. Since in this case I have more specific evidence of actual
fees charged by other attorneys, I need not rely on a survey.
Furthermore, the hourly rate was not contested in that case and
the award covered only a few hours. Mr. Pincham has not pointed
to any other fee awards that he has received that might justify
the amount, and indeed, has not referred the court to any other
cases in which he has been awarded any fee. In addition he states
that he does not bill clients at any hourly fee. He does point
out that he has had a long career both as an attorney and a
judge, but neither seem to justify an award that exceeds the
hourly fee charged by or awarded to the other attorneys involved
in this case. I conclude that $500 an hour is excessive. I will
reduce Mr. Pincham's fee to $325 an hour, which is at the highest
level of any attorney actively involved in this case.
Defendants similarly object to the $320 per hour fee sought by
Mr. Neville. In view of his experience, however, and in
comparison with the fees charged by defense counsel, his hourly
rate is reasonable.
The most serious challenge to the requested fees raised by
defendants concerns the number of hours for which Messrs.
Pincham, Neville and Howse seek compensation. It is undisputed
that none of these lawyers were actively involved in this case
after late 1992 when Mr. Miner became lead counsel. I have
reviewed the time records submitted by these attorneys after that
time. While there are a few conferences and court appearances in
1993, and some entries in 1993 and 1994 that indicate "research,"
the vast majority of entries in the time sheets submitted to me
indicate that the time was spent reviewing the work of other
attorneys. After the Seventh Circuit reversed Judge Duff's order
striking these attorneys from representing plaintiffs, virtually
all of their time in this case is marked "review."*fn4 The
Seventh Circuit concluded that even if these attorneys were not
actively involved in trying the lawsuit, they might become
involved in the remedy stage of the proceeding. In fact, however,
after the Seventh Circuit later reversed Judge Duff's findings in
favor of defendants and the case was transferred to me, Mr. Miner
was forced to bring in another lawyer to help him in the
proceedings before me because Messrs. Pincham and Neville were
unavailable. As defendants note, ironically, Mr. Pincham's
earlier unavailability was said to be the result of his work in
the case in which he received the fee award noted above. But his
entire work in that case amounted to just over 50 hours. In
contrast, after the court of appeals granted the mandamus
petition against Judge Duff, Mr. Pincham claims 183 hours were
spent reviewing work done by others. He also claims to have spent
182 hours that were never noted in time sheets discussing this
case in telephone calls with Mr. Neville. Mr. Neville claims
to have spent 394 hours reviewing the work of others. He also
claims to have spent an additional 182 hours in unrecorded
time in telephone calls with Mr. Pincham, for which he seeks
compensation. Judge Howse did not keep any records of his time.
He seeks fees in the amount of $135,000 for a claimed 450 hours
according to his reconstruction.
I agree with defendants that a lot of this time cannot be
justified. First, according to the unrefuted sworn statement of
Mr. Miner, after January 8, 1993, when the complaints in this
case were initially dismissed, he authored the joint amended
complaint.*fn5 He thereafter became primarily responsible for
the preparation of all pleadings in the Barnett and Smith cases.
Second, since these attorneys did not participate in the limited
retrial of the case, almost all of their "review" was
unnecessary. Third, given both of the above facts, certainly
three attorneys did not need to do this work. Plaintiffs argue
that the hours they claim can be justified on the basis that they
might have been called upon to do work later. However, the fact
is plaintiffs were required to bring in other attorneys to do the
work after remand because none of these attorneys was available
to work on the case. I also find the amount of time spent in
"review" of work done by others by attorneys who had no other
involvement in the case to be greatly in excess of what appears
to be justified. Accordingly, I will award compensation for 40
hours each for these attorneys for time spent in reviewing the
work of others after January 8, 1993.
I further find that the extra estimated hours claimed by these
attorneys for telephone conferences that were never recorded in
contemporaneous time records cannot justify a further fee award
in this case. There is simply insufficient information provided
as to who was involved in the calls, why they were not recorded