King v. Board of Regents

Citations: 748 F. Supp. 686; 1990 U.S. Dist. LEXIS 13233; 55 Empl. Prac. Dec. (CCH) 40,547Docket: Civ. A. No. 85-C-718

Court: District Court, E.D. Wisconsin; October 4, 1990; Federal District Court

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During a jury trial in April 1987, plaintiff Katherine King secured a favorable special verdict against four of six defendants, resulting in a $345,000 damages award. On November 21, 1988, the court partially granted defendants' motion for judgment notwithstanding the verdict, dismissing all claims except King's sexual harassment claim against Stephen A. Sonstein. The court subsequently awarded King $60,000 in compensatory and $30,000 in punitive damages against Sonstein and awarded reasonable attorney’s fees under Title 42 U.S.C. § 1988. An amended judgment on January 27, 1989, stated that the University of Wisconsin System Board of Regents would indemnify the $90,000 judgment. Both King and the defendants appealed, but the Seventh Circuit affirmed the decision on March 22, 1990.

The remaining issue pertains to attorney's fees. On February 6, 1989, King's attorneys submitted an itemized accounting detailing 1,419.2 total hours worked, with Walter F. Kelly billing 990 hours at $200 per hour and Thomas M. Domer billing 257.2 hours at $120 per hour and 31.8 hours at $125 per hour. The total lodestar fee calculated was $233,039, suggesting a 1.5 multiplier to bring the total attorney's fees to $349,558.50. Additional costs totaled $8,687.20, leading to a total fee entitlement of $358,245.70.

On May 18, 1989, defendants opposed the fee petition, arguing that the requested fees were excessive and unsupported, that no multiplier should be applied, and that fees should be proportional to the $90,000 recovery. They contended that the hourly rates exceeded local prevailing rates and that King should only recover expenses directly associated with her successful claim, excluding expert witness costs beyond statutory limits.

The analysis references Title 42 U.S.C. § 1988, which allows courts to award reasonable attorney's fees to the prevailing party, emphasizing that a reasonable fee is typically determined by multiplying the hours reasonably expended by a reasonable hourly rate.

The 'lodestar' figure, presumed reasonable under § 1988, is established as the product of the reasonable number of hours worked and the reasonable hourly rate, as affirmed in City of Riverside v. Rivera and Hensley v. Eckerhart. In this case, defendants contend that the hours claimed by King are excessive, comprising approximately 75% of the total billed hours while King successfully prevailed on only 1 of 20 claims against 1 of 5 defendants. They argue that only 20% of the total hours should be awarded, reflecting King's success rate.

However, both the Supreme Court and the Seventh Circuit have rejected a mechanical reduction approach for determining allowable hours. Instead, a two-step inquiry is required when a plaintiff prevails on only a few claims: the court must assess whether the successful and unsuccessful claims were related and if the degree of success justifies the hours spent on unsuccessful but related claims. Unrelated claims should be treated as if raised in separate lawsuits, disallowing fees for those services.

King's successful claim was for sexual harassment against Sonstein, while he lost on several unrelated claims, including sex discrimination and free speech retaliation against various defendants. The court identifies that claims of free speech retaliation, deprivation of property without due process, and defamation were unrelated to King's successful claim, thus excluding the hours spent on these from the lodestar calculation. King’s attorneys submitted itemized lists of hours worked, but these did not specify hours allocated to each claim, limiting the court's ability to accurately determine hours associated with the successful sexual harassment claim. Nonetheless, the court intends to establish the number of hours relevant for calculating the lodestar fee.

King's attorneys applied the Supreme Court's 'relatedness' test to determine the hours included in the lodestar fee calculation, claiming to have worked 1,279 hours relevant to King’s sexual harassment claim against Sonstein. The court found that while this effort was made in good faith, the number of hours did not meet the second part of the Supreme Court's test, which assesses whether the plaintiff's level of success justifies the requested fees. King’s primary discrimination claim overshadowed the sexual harassment claim, which was not the main focus of the litigation. Consequently, the court concluded that only 65% of the 1,279 hours, equating to 831.35 hours, would be reimbursed, representing about 49% of the total hours worked on all claims (1,708.2 hours). These hours were allocated between King’s attorneys, with attorney Kelly receiving 643.5 hours and attorney Domer 187.85 hours.

Regarding the hourly rates, the defendants contested the requested rates of $200 for attorney Kelly and $120-$125 for attorney Domer, asserting they exceeded prevailing rates in Milwaukee and advocating for a general rate of $100. However, the court referenced the Supreme Court's position that the current market rate at the time of the attorney's fee award is appropriate for calculating lodestar fees, especially to account for delays in payment. Citing precedents, the court affirmed that fees under § 1988 should reflect market rates for services rendered, thus opting to apply the current market rate in Milwaukee for King’s attorney’s fees to compensate for the delay.

The Seventh Circuit Court of Appeals determines that the best evidence for setting the hourly rate in calculating the lodestar amount is the rate customarily charged by the attorney or their law firm. Kelly, in his affidavit, asserts his hourly billing rate was $200 in February 1989, matching the prevailing market rate for civil rights attorneys in Milwaukee. He supports his rate with affidavits from peers in similar civil rights cases. Domer indicates his rates were $120 in 1985-1987 and $125 in 1988-1989. The defendants contest Kelly’s rate, claiming it exceeds the market rate, but do not provide affidavits to counter the claims of Kelly or Domer. The court finds the rates submitted by Kelly and Domer to be slightly high for early 1989 but concludes that $200 for Kelly and $125 for Domer are reasonable rates, compensating for payment delays.

The lodestar fee is calculated by multiplying the reasonable hours worked by the reasonable hourly rates. The court finds Kelly worked 643.5 hours and Domer 187.85 hours, resulting in lodestar fees of $128,700 for Kelly and $23,481.25 for Domer, totaling $152,181.25. King seeks a 50% enhancement of the lodestar fee. However, the Supreme Court in Blum v. Stenson restricts enhancements to rare cases where specific evidence shows exceptional quality of service and results. While the court acknowledges the excellent representation King received, it concludes that the outcome, though exceptional, does not warrant an enhancement given the awarded hourly rate reflects the quality of representation. Thus, King’s lodestar fee remains unchanged.

King contends that enhancing the lodestar is necessary to ensure that prospective civil rights plaintiffs in Milwaukee can secure legal representation. She references the Supreme Court case, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, which explored whether attorneys should receive additional compensation for the risk of nonpayment when representing a prevailing plaintiff. While the Court, addressing 42 U.S.C. § 7604(d) and considering § 1988, ultimately ruled that enhancing the lodestar for risk assumption is generally impermissible, Justice O’Connor dissented from this aspect, suggesting that Congress did not intend to eliminate contingency considerations in fee calculations under fee-shifting statutes like § 1988. 

Justice O’Connor indicated that any enhancement should only occur if it can be shown that plaintiffs would face significant challenges in hiring counsel without such adjustments. The dissenting Justices also supported the view that lodestar enhancements for risk assumption are permissible. The Seventh Circuit has interpreted Justice O’Connor's position as representing the majority view, emphasizing that risk multipliers are appropriate only when it is demonstrated that local plaintiffs would struggle to find representation without them. King’s argument, therefore, hinges on whether civil rights plaintiffs in Milwaukee would encounter substantial obstacles in securing attorneys absent a risk enhancement of the lodestar fee, a premise the court supports.

King has provided affidavits from civil rights attorneys Robert Dowling, Thomas Jacobson, and Curry First, asserting that without a risk enhancement, civil rights plaintiffs struggle to secure legal representation. Each attorney indicates that their practice would be unfeasible without an enhancement of the lodestar fee. The defendants did not present any evidence to counter these assertions. Notably, the court referenced a recent case where a plaintiff, despite having a valid claim, represented himself due to an inability to hire competent counsel on a contingency basis. The court acknowledged that attorney fees often appear inflated since overhead costs are deducted from the awarded fees. Although King requested a fifty percent enhancement for her attorney's fee, the court determined that a twenty-five percent enhancement was more appropriate, adjusting the attorney's fee award to $190,226.56. 

On the issue of proportionality, the defendants contended that King’s attorney fee request should not surpass her damages of $90,000. The court rejected this argument, citing a Supreme Court ruling clarifying that attorney fees under § 1988 are not required to be proportionate to damages.

Regarding expenses, the defendants claimed King's expense request was excessive, challenging costs deemed unrelated to her sexual harassment claim and expert witness fees exceeding statutory limits. The court found that the depositions related to King’s claims were reasonable, but acknowledged a circuit split on whether § 1988 allows for expert witness fees above the $30 daily limit set by 28 U.S.C. § 1821(b). The Third Circuit recently concluded that § 1988 does not authorize such awards beyond the statutory cap.

In West Virginia Univ. Hospitals, Inc. v. Casey, the Third Circuit addressed the issue of expert witness fees under section 1988, noting that prior Supreme Court opinions, particularly Crawford Fitting, did not resolve whether courts could award excess fees beyond the statutory limit set by section 1821(b). While some courts have concluded that Crawford Fitting does not impose such limitations, the Seventh Circuit, in Friedrich v. City of Chicago, determined that section 1821(b) does not restrict recoverable expert witness fees under section 1988 to thirty dollars a day. The Seventh Circuit has classified expert witness fees as part of reasonable attorney’s fees under the Civil Rights Attorney’s Fees Awards Act. Despite a split among circuits, the Friedrich ruling is binding in this jurisdiction. The court confirmed that the expert witness fees incurred by plaintiff Katherine King were directly related to her successful claim against the defendant Sonstein and were deemed reasonable. Following the review of King's other expenses, which were also found reasonable, the court awarded King a total of $198,913.76, comprising an attorney’s fee of $190,226.56 and costs of $8,687.20, to be paid by the defendants within 45 days.