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.
14