League of United Latin American Citizens 4552 v. Roscoe Independent School District

                  United States Court of Appeals,

                          Fifth Circuit.

                           No. 96-10951.

     LEAGUE OF UNITED LATIN AMERICAN CITIZENS # 4552 (LULAC),
Plaintiff-Appellant,

                                 v.

   ROSCOE INDEPENDENT SCHOOL DISTRICT; Larry Williams; Larry
Willman; Daylon Althof; Freddy Freeman; James R. Watts, Sr.;
Randy Whorton; Jose Villafranca, Defendants-Appellees.

                          Aug. 27, 1997.

Appeal from the United States District Court for the Northern
District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

     BENAVIDES, Circuit Judge:

     The League of United Latin American Citizens # 4552 ("LULAC")

contends that the district court erred in calculating the amount of

attorneys' fees and costs awarded in this Voting Rights Act case.

LULAC complains that the district court (1) erroneously reduced the

number of hours reasonably expended;   (2) assigned an hourly rate

upon which fees were calculated that is not supported by the

record;   (3) erroneously failed to make a separate award for time

spent by paralegals and law clerks; and (4) erroneously refused to

award any fees for hours spent by attorney José Garza.   We vacate

and remand.

                                 I.

     LULAC requested the attorneys' fees at issue in this appeal in

connection with a Section 5 enforcement action under the Voting

Rights Act, 42 U.S.C. § 1973c.    During the course of a Section 2


                                 1
suit challenging Roscoe Independent School District's ("Roscoe ISD"

or "the District") at-large election system, LULAC discovered that

the District had failed to obtain preclearance of certain election

changes as required by Section 5 of the VRA.            LULAC sought and

obtained an injunction against an upcoming election and an order

requiring Roscoe ISD to obtain Section 5 preclearance for election

changes.

     As    prevailing   party,   LULAC    sought   attorneys'     fees   of

$43,650.00 and costs of $15,325.75.        Instead, the district court

awarded LULAC attorneys' fees of $3,750.00 and costs of $1,501.25.

The dramatic disparity between the attorneys' fees and costs

claimed and those awarded resulted from several decisions made by

the district court.

     The largest single reduction in hours resulted from the

district court's refusal to award LULAC any attorneys' fees for the

77.2 hours    claimed   by   attorney   José   Garza   because   the   court

concluded that Garza had waived his right to seek an award of his

fees.   See Part II.D, below.    Even when Garza's hours are excluded

from consideration, however, the district court still credited

LULAC's attorneys with less than one-third of the hours claimed.

The district court concluded that out of the 97.4 hours that the

other two LULAC attorneys claimed to have spent on the underlying

litigation, only 30 hours were reasonable.1            The district court

also halved the hourly rate requested by LULAC for attorney time

    1
     Rolando Rios claimed 52 hours; and Judith A. Sanders-Castro
claimed 45.4 hours.    Rios received credit for 20 hours, while
Sanders-Castro received credit for only 10 hours.

                                    2
and declined to make a separate award for time spent by law clerks

and paralegals.

                                        II.

         Section 1973l(e) of the Voting Rights Act and Section 1988 of

the Civil Rights Attorneys' Fees Award Act afford a district court

the discretion to award reasonable attorneys' fees to prevailing

parties.     See 42 U.S.C. §§ 1973l(e) & 1988.             The method by which

the district court calculates an attorneys' fees award is well

established.      The district court first calculates the "lodestar."

Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993).                 The lodestar

is the product of the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly billing rate. Hensley

v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76

L.Ed.2d     40   (1983),   cited   in   Watkins,    7   F.3d   at   457.     When

calculating the number of hours reasonably expended on the case and

assigning a reasonable hourly rate for an attorney's services, the

district court must consider the factors articulated in Johnson v.

Georgia     Highway   Express,     Inc.,      488   F.2d   714,     717-19   (5th

Cir.1974).2      See, e.g., Watkins, 7 F.3d at 457.

     2
      The Johnson factors are as follows: (1) the time and labor
required, (2) the novelty and difficulty of the question, (3) the
skill required to perform the legal service properly, (4) the
preclusion of other employment by the attorney due to acceptance of
the case, (5) the customary fee, (6) whether the fee is fixed or
contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained,
(9) the experience, reputation, and ability of the attorneys, (10)
the "undesirability" of the case, (11) the nature and length of the
professional relationship with the client, and (12) awards in
similar cases. Id. The district court explained at the outset of
its opinion that it had taken the relevant Johnson factors into
account where appropriate. See Blanchard v. Bergeron, 893 F.2d 87,

                                         3
       The lodestar is presumed to reflect a reasonable attorneys'

fee award, but the district court may adjust it upward or downward

in exceptional cases.           Id. (citing City of Burlington v. Dague, 505

U.S. 557, 561-63, 112 S.Ct. 2638, 2641, 120 L.Ed.2d 449 (1992));

see also Walker v. United States Dep't of Hous. and Urban Dev., 99

F.3d     761,        771-73    (5th      Cir.1996)      (describing       the   limited

circumstances          in     which     an    adjustment      to   the    lodestar     is

appropriate).

       This court reviews the district court's award of attorneys'

fees   for      an    abuse    of     discretion.       Watkins,    7    F.3d   at   457.

Subsidiary factual findings are reviewed for clear error.                             Id.

"[T]he    district          court     has    broad    discretion    in    setting     the

appropriate award of attorneys' fees."                      Id. (citing Hensley, 461

U.S. at 436-37, 103 S.Ct. at 1941).

A. Number of Hours Reasonably Expended

       The district court must first calculate the number of hours

reasonably expended on the litigation. Louisiana Power & Light Co.

v. Kellstrom, 50 F.3d 319, 324 (5th Cir.), cert. denied, --- U.S.

----, 116 S.Ct. 173, 133 L.Ed.2d 113 (1995).                         The calculation

requires a determination of whether the total number of hours

claimed were reasonable and whether specific hours claimed were

reasonably expended.            Alberti v. Klevenhagen, 896 F.2d 927, 933-34

(5th Cir.), vacated in part on other grounds, 903 F.2d 352 (5th

Cir.1990).           The    district        court    must   eliminate    excessive     or


91 (5th Cir.1990) (emphasizing that "attorneys' fee litigation
should not require specific reasoning by the trial court to justify
every facet of its decision").

                                               4
duplicative time.          Watkins, 7 F.3d at 457.             We review the district

court's findings regarding the number of hours reasonably expended

for clear error.           Alberti, 896 F.2d at 934.

            The district court in this case offered two bases for

eliminating all but 30 of the attorney hours claimed.                          First, the

district court concluded that the attorneys' documentation of the

hours       spent   was    so    inadequate       that   the    court    was   unable   to

determine whether the time claimed was excessive or duplicative.

Second, the court justified this figure based on the simplicity of

the case and the expertise of prevailing counsel in voting rights

matters.3

            The fee applicant has the burden of presenting adequate

documentation of the hours reasonably expended. Kellstrom, 50 F.3d

at 324.       If the applicant's documentation of the hours claimed is

"vague or incomplete," the district court may reduce or eliminate

those hours.        Id. (emphasis omitted);              Watkins, 7 F.3d at 457.        As

we explained in Kellstrom, "[l]itigants take their chances" by

submitting fee applications that are too vague to permit the

district       court      to    determine   whether       the    hours    claimed   were

reasonably spent.              50 F.3d at 327.      On the other hand,

     ... we are mindful that practical considerations of the daily
     practice of law in this day and age preclude "writing a book"
     to describe in excruciating detail the professional services
     rendered for each hour or fraction of an hour.       We also

        3
      Johnson recognizes the common sense proposition that easier
and more routine cases take less time to prepare than do cases that
present novel questions.      See Johnson, 488 F.2d at 717-18.
Similarly, it is also reasonable to assume that a more experienced
attorney will take less time to accomplish a routine task than will
a novice.

                                              5
      recognize that, in this era of computerized timekeeping, many
      data processing programs limit the amount of input for any
      given hourly or daily entry.

Kellstrom, 50 F.3d at 327.

      Although we have consistently held that district courts enjoy

broad discretion to exclude or reduce hours based on insufficient

documentation,      mere    recitation        that    there   is    insufficient

documentation cannot insulate the district court's award from

appellate review.     The hourly records submitted by LULAC attorneys

in   this   case   were    not   so   vague   or     unilluminating    that   they

precluded    meaningful     review    of    whether    particular     hours   were

reasonably expended on this litigation or whether the hours spent

were excessive or duplicative.              Each attorney submitted records

containing the date, the number of hours spent (calculated to a

tenth of an hour), and a short but thorough description of the

services rendered.

      To be sure, the attorneys' billing records contain particular

entries that the district court was within its discretion to

disallow based on vagueness. The entry cited by the district court

as an example in its opinion, Sanders-Castro's entry of 6.9 hours

for "research and review of cases," is just such an entry.                     The

district court might also conclude that certain of the hours

claimed were not reasonable because of the attorneys' expertise in

this area, because of the simplicity of the case, or because the

hours were duplicative.           On remand, the district court should

analyze whether particular hours were reasonably expended rather

than making an across-the-board reduction based on inadequate


                                        6
documentation.

        Aside from the 6.9 hours of Sanders-Castro's time that the

district court specifically disallowed, the only other time the

district court specifically excluded was 2.5 hours that Rolando

Rios devoted to amending LULAC's complaint.            This amendment was

necessary   because    the   district    court   determined    that   LULAC's

original complaint contained a jurisdictional defect and ordered

its correction.       In refusing to award attorneys' fees for this

time, the district court explained that the amendment was required

for the complaint "to comply with the basic rules of pleading

jurisdictional allegations" and that "[a] reasonable attorney would

have drafted the complaint correctly the first time."             See, e.g.,

Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40.               Although LULAC

contends that there was no jurisdictional defect in its original

complaint and that it was more efficient to amend the complaint

than to challenge the district court's order, disallowing these

hours was within the district court's purview.4

B. Reasonable Hourly Billing Rate

        After determining the hours reasonably expended on the

litigation, the district court must set a reasonable hourly rate.

Watkins, 7 F.3d at 458.      The reasonable hourly rate is based on the

"prevailing market rates in the relevant community."                  Blum v.


    4
     This matter is particularly illustrative of why the district
court has broad discretion in determining the number of claimed
hours that were excessive or duplicative.     It would be unduly
inefficient for this court to assess the merits of the
jurisdictional dispute to determine whether the appellants are
entitled to 2.5 hours of attorneys' fees.

                                     7
Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891

(1984).        When the attorney's customary hourly rate is within the

range of hourly fees in the prevailing market, that rate should be

considered in setting a reasonable hourly rate.                         See Islamic Ctr.

of Miss., Inc. v. City of Starkville, Miss., 876 F.2d 465, 469 (5th

Cir.1989).         We review the district court's finding of a reasonable

hourly rate for clear error.                   Id. at 468.

            The hourly fee awarded must be supported by the record;                      the

district court may not simply rely on its own experience in the

relevant legal market to set a reasonable hourly billing rate.                           See

Cobb v. Miller, 818 F.2d 1227, 1232 & n. 7 (5th Cir.1987) (noting

that a magistrate judge should not have considered his personal

experience in setting a reasonable hourly rate);                             cf. Powell v.

Commissioner            of    Internal      Revenue,    891   F.2d     1167,     1173    (5th

Cir.1990) (reversing an hourly rate set by the tax court because

the   court        "did       not    explain     any   evidentiary       basis    for    its

determination that the hourly rate should be limited ...").

            The   district          court    found   that   "$125.00     per   hour     is   a

reasonable price for good litigators with the experience similar to

that of the plaintiffs' attorneys."                     No evidence in the record,

however, supports a reasonable hourly rate of less than $150 per

hour.        LULAC presented affidavits that the prevailing market rate

for lawyers         of       the    skill,    experience,     and    reputation     of   its

attorneys         was    in    the    range    of    $250   per     hour.5     Roscoe    ISD

        5
      LULAC relied on the affidavits of its attorneys, as well as
the affidavit of William Garret, a practitioner from Dallas, who
provided testimony regarding the prevailing market rate in the

                                                 8
criticizes LULAC's evidence, claiming that it does not demonstrate

the reasonable hourly rate in the relevant market.        But even

evidence presented by Roscoe ISD showed that $150 per hour was a

reasonable hourly rate.6

         Aside from the absence of any evidentiary basis for the

selection of $125.00 as a reasonable hourly rate, other factors

also militate in favor of a higher hourly rate.         First, the

district court expressly relied on prevailing counsels' expertise

in determining the number of hours reasonably expended.   Although

it is reasonable to assume that a more experienced attorney will

take less time to accomplish a routine task than will a novice, the

reduction in hours on this basis should be counterbalanced by a

higher hourly fee.   See Johnson, 488 F.2d at 717-18.

     Second, the district court declined to make a separate award

to LULAC of its law clerks' and paralegals' time because the court

found that "the fees of support personnel are generally reflected



Northern District of Texas. LULAC also points out that the same
district court awarded Rios $200 per hour as a reasonable hourly
rate in an unrelated lawsuit.
     6
      Counsel for Roscoe ISD, Charles E. Jones, Jr., submitted an
affidavit in which he stated that $150 per hour was a reasonable
hourly rate. In its brief on appeal, Roscoe ISD relies on another
affidavit, that of Charles C. Self, III, which the District claims
establishes that a reasonable hourly rate "was between $57.47 per
hour and $86.21 per hour based upon the number of hours claimed by
Appellants in this case." Self's affidavit merely expressed his
opinion that a total attorneys' fee award of $10,000 to $15,000
would be reasonable. Roscoe ISD apparently works backward from
this total, dividing it by the number of hours claimed by
appellants to obtain the $57-86 rates. Roscoe ISD's reliance on
Self's affidavit is misplaced. Simply put, Self's affidavit says
nothing about the reasonable hourly rate and cannot be relied on as
evidence to support an award of $125 per hour.

                                 9
in   attorney   fees"   in   the    Abilene/Roscoe   area.     Although   the

district court properly refused to make a separate award for those

fees, as discussed in the following section, that fact should have

been reflected by a higher hourly fee.        We will remand to allow the

district court an opportunity to reconsider its award, including

its reasonable hourly rate finding.

C. Paralegal and law clerk fees

       The district court declined to make a separate hourly fee

award for the work of LULAC's law clerks and paralegals because the

court found that "the fees of support personnel are generally

reflected in attorney fees" in the Abilene/Roscoe area.            Such fees

may be awarded at market value if the prevailing practice in the

relevant community is to bill these services directly to clients.

Missouri v. Jenkins, 491 U.S. 274, 286-88, 109 S.Ct. 2463, 2470-72,

105 L.Ed.2d 229 (1989).            The prevailing practice is a factual

matter reviewed for clear error.

      LULAC submitted the affidavit of William Garret, in which he

stated that a reasonable billing rate for paralegal and law clerk

services is between $75 and $125 per hour.                   That this is a

reasonable billing rate range does not necessarily mean, however,

that the prevailing practice is to bill this time separately.

LULAC had the burden of showing that its billing comported with the

prevailing practice in the relevant market.             In the absence of

testimony regarding the prevailing practice, the district court's

finding was not clearly erroneous.

      Nonetheless, because separate hourly fees were not awarded for


                                       10
the time spent by paralegals and law clerks, the hourly rate for

attorneys should have been in excess of that awarded by the

district court in this case.     As the Supreme Court explained in

Missouri v. Jenkins:

     All else being equal, the hourly fee charged by an attorney
     whose rates include paralegal work in her hourly fee, or who
     bills separately for the work of paralegals at cost, will be
     higher than the hourly fee charged by an attorney competing in
     the same market who bills separately for the work of
     paralegals at "market rates." In other words, the prevailing
     "market rate" for attorney time is not independent of the
     manner in which paralegal time is accounted for.

491 U.S. at 286-87, 109 S.Ct. at 2470-71.   On remand, the district

court should take paralegal and law clerk costs into account when

finding the reasonable hourly rate for attorney time.

D. Waiver of attorneys' fees

     The district court held that LULAC attorney José Garza waived

$19,300 in attorneys' fees as a result of certain statements he

made at a hearing before a three-judge panel on May 3, 1996.    At

the hearing, Charles Jones, counsel for Roscoe ISD, allegedly

characterized LULAC's Section 5 claim as "economic terrorism."

Although Garza initially ignored these allegations, a member of the

panel asked him to respond.    During the ensuing discussion, Garza

offered to forgo filing an application for his fees, if Jones

returned any payments that he and his co-counsel had received from

the District.   At oral argument before this court, Jones conceded

that he has not returned any attorneys' fees to the District.

     On May 16, 1996, Garza, Rios, and Sanders-Castro filed an

application for attorneys' fees on LULAC's behalf.      On May 18,

1996, the district court entered an order requiring Jones to

                                 11
"advise this Court whether he will waive his fees in this section

5 case."   Two days later, Jones filed a response indicating that he

would agree to waive his fees.           On May 24, 1996, however, the

district court ruled that no waiver had occurred and allowed the

District an additional three weeks to respond to LULAC's motion for

attorneys' fees.      Roscoe ISD offered no additional facts on the

issue, nor did it dispute Garza's characterization of the hearing.

     The district court found in its final order that Garza had

waived his attorneys' fees.      Although the court acknowledged that

a dispute existed regarding whether Garza's offer was open-ended,

the court noted that Garza submitted an affidavit in which he

stated that if the district court interpreted his offer as an

"open-ended"   one,    he   would   "abide   by   such   interpretation."

Specifically, Garza stated in his affidavit:

     Although Defendants did not accept my offer prior to my filing
     of a fee application, if [the district court's] interpretation
     of my statements was that I made an open-ended offer, I will
     abide by such interpretation.

The district court concluded that Garza's offer was open-ended and

that Garza had, therefore, waived his right to attorneys' fees.

      A waiver of attorneys' fees in civil rights actions is not

precluded by statute.       See Evans v. Jeff D., 475 U.S. 717, 727,

730-31, 106 S.Ct. 1531, 1537, 1538-40, 89 L.Ed.2d 747 (1986).

Although the case law is not well developed on this type of waiver,

we conclude that whether a waiver of fees has occurred is governed

by basic principles of contract formation.        See id.;   see also Gram

v. Bank of Louisiana, 691 F.2d 728, 730 (5th Cir.1982) ("[A]

plaintiff may waive his right to attorney's fees in a negotiated

                                    12
settlement agreement").

      The only evidence as to the content of Garza's offer is

contained in his affidavit, in which he states that he offered to

forgo filing an application for attorneys' fees if the District's

counsel returned the fees he and his co-counsel had received from

the District. Garza filed a fee application before Jones agreed to

return his attorneys' fees.   In doing so, Garza revoked his offer.

Nevertheless, Garza thereafter agreed to abide by the district

court's decision if it determined that the original offer was

"open-ended."   The district court relied on Garza's statement and

held that his offer to forgo a fee application was open-ended.7

     Fortunately, we need not decide whether Garza is bound to

abide the district court's ruling because his offer, even if

open-ended, was never accepted by Jones.     Garza offered to forgo

filing a fee application if Jones and co-counsel returned fees that

they had received.   As Jones conceded at oral argument he has not

yet returned the fees paid him.      Thus, Jones never accepted the

offer.8

     Because no binding agreement required Garza to forgo his fees,


          7
         The record contains no evidence to support the district
court's conclusion that Garza's offer was "open-ended," by which
the parties appear to mean that Garza made a "firm offer." A firm
offer generally must be supported by consideration.       E. ALLAN
FARNSWORTH, CONTRACTS § 3.23 (2d ed.1990).
          8
        The District asserted in its first amended response to
LULAC's request for attorneys' fees that Jones agreed to waive his
fees before Garza withdrew his offer. No evidence supports this
assertion.     More important, however, under the peculiar
circumstances of this case, a promise to waive fees would not
constitute acceptance of the offer made by Garza.

                                13
we remand for the calculation of a reasonable attorneys' fee for

Garza's services.

E. Attorneys' Fees on Appeal

      LULAC also requests reasonable attorneys' fees for the time

devoted to this appeal.    We hold that LULAC, as prevailing party on

appeal, is entitled to an award of reasonable attorneys' fees.   See

Bode v. United States, 919 F.2d 1044, 1052 (5th Cir.1990).   Because

we vacate and remand the attorneys' fee award made in the district

court, we also leave to the district court on remand the award of

LULAC's attorneys' fees for this appeal.      See, e.g., Fontenot v.

Louisiana Bd. of Elementary and Secondary Educ., 835 F.2d 117, 121

(5th Cir.1988);     Marston v. Red River Levee & Drainage Dist., 632

F.2d 466, 468 (5th Cir.1980).

                                 III.

     Accordingly, we VACATE the award of attorneys' fees and REMAND

for further proceedings consistent with this opinion.




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