Brown v. Thompson

CLECKLEY, Justice,

concurring:

I agree with the majority that the circuit court’s findings were adequate; that it reached reasonable conclusions in calculating the “lodestar”; and that, in fight of the deference we owe to the circuit court, its decision must be affirmed.1 I write separately only *416to point out that the time expended by an attorney for a prevailing civil rights plaintiff in pursuing and justifying a reasonable fee should ordinarily be compensated and included in the final lodestar award.2 Here, however, the circuit court apparently discounted the hours Mr. Carey spent litigating the fee because some of them included time spent reconstructing his hours in the case (since he did not keep contemporaneous records as he should have)3 and because what he sought was not reasonable. I do not find that reasoning to be an abuse of discretion. With that understanding, I concur.

. This case was litigated under 42 U.S.C. § 1983, making the attorney fee provision of Section 1988 applicable. Under federal standards, decisions by a circuit court to matters of law are reviewable de novo, questions of fact are reviewable for "clear error,” and matters that are committed to its discretion are reviewable for an "abuse of discretion.” Thus, the majorily opinion is correct in applying an abuse of discretion standard to our review of the circuit court’s decision to award attorney fees in a federal claim. See Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir.1994). In Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40, 53 (1983), the Supreme Court stated:

"We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award.”

*416I believe the circuit court substantially complied with the mandate articulated in Hensley.

. As indicated by the amicus brief, the cases are "virtually unanimous” that a prevailing party is entitled to recover as part of his attorney fee award the hours spent on preparing the fee petition and litigating the propriety of an attorney fee. See Bagby v. Beal, 606 F.2d 411 (3rd Cir. 1979); Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir.1992), vacated in part on denial of rehearing, 984 F.2d 345 (1993).

. There is ample authority to suggest that a circuit court may properly lower an attorney’s fee request for his failure to keep adequate and contemporaneous records. In note 13 of Hensley v. Eckerhart, 461 U.S. at 438, 103 S.Ct. at 1942, 76 L.Ed.2d at 54, the Supreme Court stated: "In addition, the District Court properly considered the reasonableness of the hours expended, and reduced the hours of one attorney by thirty percent to account for his inexperience and failure to keep contemporaneous time records." (Emphasis added).