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Ozinga v. The United States Department of Health and Human Services

United States District Court, N.D. Illinois, Eastern Division

May 22, 2018

Timothy Ozinga, et al., Plaintiffs,
v.
The United States Department of Health and Human Services, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Hon. Thomas M. Durkin, United States District Judge

         Plaintiffs 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. 73.[1] For the following reasons, the Court awards Ozinga's counsel $89, 958.75 in fees.

         Background

         In this 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.

         In 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).

         In 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).

         This 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.

         On 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.

         Legal Standard

         The 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.

         “[I]n 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 (2010)).

         The “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.

         Analysis

         Ozinga's 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.

         The 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.

         A. Hourly Rates

         The 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.

         Defendants 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 ...


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