United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Thomas M. Durkin, United States District Judge
Ozinga Brothers, Inc., along with its owners and senior
managers (collectively, “Ozinga”), brought this
case against defendants United States Department of Health
and Human Services, United States Department of Treasury,
United States Department of Labor, Kathleen Sebelius
(Secretary of the Department of Health and Human Services),
Jacob L. Lew (Secretary of the United States Department of
Treasury), and Seth D. Harris (Secretary of the United States
Department of Labor) (collectively, “defendants”)
challenging certain aspects of the Patient Protection and
Affordable Care Act of 2010's contraception mandate. This
Court awarded Ozinga preliminary and then permanent
injunctive relief. The Seventh Circuit reversed the permanent
injunction after finding the case moot, but made clear that
Ozinga is still a prevailing party entitled to appropriate
attorney's fees. Currently before the Court is
Ozinga's petition for attorney's fees. R.
For the following reasons, the Court awards Ozinga's
counsel $89, 958.75 in fees.
lawsuit, Ozinga sought declaratory and injunctive relief
barring enforcement of the Affordable Care Act's
contraception mandate against Ozinga because it violated
Ozinga's owners' and managers' religious tenets.
In July 2013, this Court granted Ozinga's motion for a
preliminary injunction barring enforcement of the mandate
against Ozinga. R. 23; R. 25.
August 2013, the Court stayed further proceedings over
Ozinga's objection pending the Seventh Circuit's
final resolution of two appeals in which motions panels had
held (in 2-1 decisions) that for-profit, closely-held
plaintiff companies (i.e., companies similarly
situated to Ozinga) were likely to prevail on their claims
that the contraception mandate substantially burdened their
religious rights. See R. 29; Korte v.
Sebelius, 528 Fed.Appx. 583 (7th Cir. 2012) (Korte
I); Grote v. Sebelius, 708 F.3d 850 (7th Cir.
2013). In November 2013, the Seventh Circuit resolved both
the Korte and Grote appeals in a single
opinion, holding that “the balance of harms favors
protecting the religious-liberty rights of the plaintiffs,
” and reversing and remanding “with instructions
to enter preliminary injunctions barring enforcement of the
mandate against them.” Korte v. Sebelius, 735
F.3d 654, 659 (7th Cir. 2013) (Korte II).
2014, the Supreme Court confirmed in Burwell v. Hobby
Lobby Stores, Inc., 134 S.Ct. 2751 (2014), that the
contraception mandate as applied to closely-held, private
firms whose owners objected on religious grounds
substantially burdened those owners' (and by extension
their companies') exercise of religion. Id. at
2768-79. Following the Supreme Court's decision in
Hobby Lobby, the government amended the applicable
regulations in July 2015 to extend to closely-held, private
firms an accommodation previously granted to certain
religious employers. 80 Fed. Reg. 41, 318, at 41, 322-328
(July 14, 2015).
Court subsequently lifted the stay in this case, and the
parties introduced competing proposals for an amended form of
permanent relief in the wake of Hobby Lobby. This
Court adopted defendants' proposed permanent injunction
(R. 53), and Ozinga appealed.
appeal, the Seventh Circuit held that “the revision of
the regulatory framework in July 2015 rendered moot
Ozinga's challenge to the contraception mandate, ”
and reversed the permanent injunction. Ozinga v.
Price, 855 F.3d 730, 734 (7th Cir. 2017). The Seventh
Circuit clarified, however, that:
the revised regulations do not alter Ozinga's status as a
prevailing party in this case. The change occurred after
Ozinga sought and obtained preliminary injunctive relief and
after Hobby Lobby validated the legal theory that
Ozinga and other employers had pursued in this and similar
suits. Consequently, nothing prevents the district court from
entering an appropriate award of fees to Ozinga pursuant to
42 U.S.C. § 1988(b).
Id. at 735-36.
Civil Rights Attorney's Fees Awards Act of 1976 provides
that a district court, “in its discretion, may allow
the prevailing party . . . a reasonable attorney's
fee” in suits brought under certain federal civil
rights statutes, including 42 U.S.C. §§ 1983, 1985,
and 1986. 42 U.S.C. § 1988(b). “[A] prevailing
plaintiff should ordinarily recover an attorney's fee
unless special circumstances would render such an award
unjust.” Hensley v. Eckerhart, 461 U.S. 424,
429 (1983). The Seventh Circuit has already found
(Ozinga, 855 F.3d at 735)-and both parties
agree-that Ozinga is a prevailing party in this case.
view of [its] superior understanding of the litigation,
” this Court has considerable “discretion in
determining the amount of a fee award.”
Hensley, 461 U.S. at 437. The Court must
“‘provide a reasonably specific explanation for
all aspects of a fee determination, '” but its
explanation “need not be lengthy.” Pickett v.
Sheridan Health Care Ctr., 664 F.3d 632, 651 (7th Cir.
2011) (quoting Perdue v. Kenny A., 559 U.S. 542, 558
“starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.”
Hensley, 461 U.S. at 433. This calculation is
commonly known as the “lodestar.” E.g.,
Pickett, 664 F.3d at 639. “[T]here is a strong
presumption that the lodestar figure is reasonable.”
Perdue, 559 U.S. at 554. That presumption can be
overcome only “in those rare circumstances in which the
lodestar does not adequately take into account a factor that
may properly be considered in determining a fee.”
Id. “The party seeking an award of fees”
has the initial burden to “submit evidence supporting
the hours worked and rates claimed.” Hensley,
461 U.S. at 433.
fee petition seeks: (1) $108, 253.69 in fees for attorney
Kevin E. White (the primary litigator in this case),
comprised of 303.87 hours at a rate of $375 per hour; and (2)
$43, 524.25 in fees for attorney Andy Norman (“Special
Fee Counsel” (R. 73 at 1)), comprised of 83.3 hours at
a rate of $550 per hour. R. 82-1 at 1. These requested
amounts take into account a 5% reduction from both
counsel's lodestar “[a]s a showing of good
faith.” R. 73 at 1.
Court first addresses the reasonableness of the hourly rates
claimed and then the reasonableness of the hours totals,
keeping in mind the “strong presumption that the
lodestar figure is reasonable.” Perdue, 559
U.S. at 554.
hourly rate component of the lodestar “must be based on
the market rate for the attorney's work.”
Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 659
(7th Cir. 2007). “The market rate is the rate that
lawyers of similar ability and experience in the community
normally charge their paying clients for the type of work in
question.” Id. “[O]nce an attorney
provides evidence establishing [the] market rate, the
opposing party has the burden of demonstrating why a lower
rate should be awarded.” Id. at 659-60.
do not challenge the reasonableness of White's and
Norman's hourly rates. And the Court finds those rates
adequately supported and reasonable. White has 34 years of
attorney experience and requests an hourly rate of $375. R.
73 at 24; R. 73-1 at 1; R. 73-2. Ozinga sets forth numerous
examples of courts in this district awarding comparable or
higher rates for similarly experienced or less experienced
attorneys. R. 73 at 21-22 (collecting cases). Evidence like
this of “rates awarded to similarly experienced . . .
attorneys [from the same city] in other civil-rights cases in
the district” is considered ...