Defendants were given an opportunity to submit opposition papers to plaintiffs' fee application.
Defendants did submit a detailed analysis of plaintiffs' fee application. It is clear that defendants expended considerable time and effort attempting to identify improper requests and itemize the fees by issue. In sharp contrast, plaintiffs utterly failed to itemize their fees and revise improper requests. On the contrary, plaintiffs used their submission as an opportunity to seek a $ 200,000.00 enhancement of their initial fee request. In a later submission, plaintiffs explained their failure to itemize the fees by stating: "All of the work by plaintiffs' counsel . . . whether related to compelled funding or compelled membership was inextricably intertwined. These were not distinct issues, but, like Siamese twins, joined at the hip and at the head." Plaintiffs' only nod to this Court's instructions was the admission that "some reduction of the lodestar figure is warranted."
In short, I view plaintiffs' application to be a complete failure to comply with the explicit instructions of this Court.
The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise 'billing judgment' with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1982) (citations omitted). The Hensley Court noted that while there is "no certain method of determining when claims are 'related' or 'unrelated' . . . at least counsel should identify the general subject matter of his time expenditures." Id. Where a prevailing party fails to provide adequate documentation, the district court may reduce the award accordingly.
Id. at 433. In this case, plaintiffs were directed by the Court to itemize their requested fees.
Such categorization was necessary for two reasons. First, the Second Circuit explicitly held that plaintiffs were to be considered the prevailing party only on the separate and obviously minor issue of compelled membership, and not on the major and important issue which sparked this litigation, the issue of the university's decision to allocate monies received from students to support various and diverse student activities deemed by it to be of value to students to further their education, even though some might have views antithetical to those of some students. Second, where "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith."
Id. at 436. Plaintiffs' failure to prevail on the mandatory funding issue, the central issue in this protracted litigation, demonstrates that their success was, at best, "partial or limited." Thus, an award of attorney's fees based on the litigation as a whole would clearly be excessive,
especially in light of the Supreme Court's pronouncement that "the most critical factor is the degree of success obtained." Id. This is especially troublesome, where plaintiffs want the Court to impose these fees on a state university and its student activity, state-wide though the latter is.
In the absence of a proper attorney's fees application, "the district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-37. In light of plaintiffs' failure to submit a proper application, I am left with no choice but to exercise my discretion and determine a reasonable attorney's fee. I note that defendants are to be commended for attempting to itemize plaintiffs' fee requests, performing a task that should have been undertaken by plaintiffs. Defendants' painstaking efforts yielded a proposed award of $ 12,434.88. Based on my review of the application, my knowledge as presiding trial judge, and my assessment of the limited issue for which attorney's services could have been required, I conclude that plaintiffs are entitled to reasonable attorney's fees in the amount of $ 25,000.00 and costs in the amount of $ 1,150.
I am firmly of the belief that this award adequately compensates plaintiffs' attorneys for their time, effort and expenses in proffering and prevailing on the change in NYPIRG's by-laws so that all students, merely because of the fact of the allocation of their student-activity fee, are not automatically treated as members. This award of fees is, of course, only as against NYPIRG, and not against the university, which prevailed on the allocation issue, and had neither involvement in nor gain from NYPIRG's by-laws. J.G. v. Board of Educ. of Rochester City School Dist., 830 F.2d 444, 447 (2d Cir. 1987); Williamsburg Fair Housing Comm. v. Ross-Rodney Housing Corp., 599 F. Supp. 509, 513-14 (S.D.N.Y. 1984).
In closing, I note that the Hensley Court cited with approval to Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978), which held:
As for the future, we would not view with sympathy any claim that a district court abused its discretion in awarding unreasonably low attorney's fees in a suit in which plaintiffs were only partially successful if counsel's records do not provide a proper basis for determining how much time was spent on particular claims.