United States District Court, Southern District of New York
April 26, 2000
NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, ET AL., PLAINTIFFS,. CITY OF NEW YORK, PLAINTIFF-INTERVENOR, AND UNITED STATES OF AMERICA, JUDGMENT CREDITOR,
RANDALL TERRY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ward, District Judge.
Plaintiffs have moved for a supplemental award of
attorneys' fees pursuant to 42 U.S.C. § 1988, Fed. R. Civ. P. 54,
and Rule 83.9 of the Local Civil Rules of this Court. For the
reasons hereinafter stated, plaintiffs' motion is granted.
The Court assumes familiarity with the underlying facts
of this case which are fully reported in New York State NOW v.
Terry, 159 F.3d 86 (2d Cir. 1998). However, in order to fully
understand plaintiffs' claims, a brief review of the several
stages of the litigation is necessary.
Plaintiffs brought this action in 1988 seeking
declaratory and injunctive relief to restrain defendants from
blocking access to medical facilities that provide abortions.
The complaint alleged eight separate causes of action: violations
of New York Civil Rights Law § 40-c and New York Executive Law §
296; public nuisance; interference with the business of medical
facilities; trespass; infliction of emotional harm; tortious
harassment; false imprisonment; conspiracy to deny women seeking
abortion or family planning services the equal protection of the
laws and equal privileges and immunities in violation of
42 U.S.C. § 1985 (3).
In 1989, plaintiffs moved for summary judgment on their
§ 1985(3) and New York law claims, and for a permanent injunction
enjoining defendants from blocking abortion clinics. The Court
granted plaintiffs' motion and issued a permanent injunction
which established a schedule of prospective coercive civil
sanctions, payable to plaintiff NOW, in the case of future
violations. See New York State NOW v. Terry, 704 F. Supp. 1247,
1258-64 (S.D.N.Y. 1989). The Second Circuit modified the
sanctions to make them payable to the court rather than to
plaintiff NOW and affirmed. New York State NOW v. Terry,
886 F.2d 1339 (2d Cir. 1989). The Supreme
Court denied certiorari.
New York State NOW v. Terry, 495 U.S. 947 (1990). These
proceedings are referred to in this decision as "Terry I."*fn1
In 1990, the Court ruled that defendants had violated
the permanent injunction as well as a temporary restraining order
and preliminary injunction that had previously been imposed. The
Court adjudged defendants to be in contempt and fined them in
amounts ranging from $25,000 to $100,000. See New York State NOW
v. Terry, 732 F. Supp. 388, 398-409 (S.D.N.Y. 1990). The Second
Circuit affirmed the contempt judgments against all defendants
and all but two non-party respondents and counsel. See New York
State NOW v. Terry, 961 F.2d 390, 401 (2d Cir. 1992). The
Supreme Court granted defendants' petition for certiorari,
vacated, and remanded Terry for reconsideration in light of Bray
v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993). See
Pearson v. Planned Parenthood Margaret Sanger Clinic,
507 U.S. 901 (1993). This stage of the litigation will be referred to as
On remand, the Second Circuit reinstated the contempt
fines, stating that all applications for relief in light of Bray
should be decided in the first instance by the district court.
See New York State NOW v. Terry, 996 F.2d 1351, 1352 (2d Cir.
1993). Another appeal was taken by defendants. The Supreme
Court again granted certiorari and remanded the case, this time
for reconsideration in light of International Union. United Mine
Workers v. Bagwell, 512 U.S. 821 (1994). See Pearson v. Planned
Parenthood Margaret Sanger Clinic, 512 U.S. 1249 (1994). These
proceedings will be referred to as "Terry III."*fn3
The second time the case was remanded to the Second
Circuit, the court vacated the contempt judgments and remanded
the case to the district court for reconsideration in light of
Bray and Bagwell. See New York State NOW v. Terry, 41 F.3d 794,
796-97 (2d Cir. 1994). These events will be referred to
throughout this decision as "Terry IV."
On remand to the district court, plaintiffs moved to
have the Court's original injunction modified to comply with
Bagwell and to have the contempt sanctions reinstated. The Court
granted plaintiffs' motion, the Second Circuit affirmed, and the
Supreme Court denied defendants' petition for certiorari. See
New York State NOW v. Terry, 952 F. Supp. 1033, 1039-1043
(S.D.N.Y. 1997); New York State NOW v. Terry, 159 F.3d 86, 98 (2d
Cir. 1998); Pearson v. Planned Parenthood Margaret Sanger Clinic,
119 S.Ct. 2336 (1999). These proceedings will be referred to as
I. Plaintiffs are Entitled to Attorneys' Fees as Prevailing Parties
The Civil Rights Attorney's Fees Award Act of 1976
provides that "the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee as part of the
costs." 42 U.S.C. § 1988 (b). This provision includes the
discretion to award plaintiffs fees for their attorneys'
successful appellate efforts. Hastings v. Maine-Endwell Cent.
School Dist., 676 F.2d 893, 896-97 (2d Cir. 1982).
While a court's decision to award attorney's fees is discretionary, the
Second Circuit has noted that successful civil rights litigants
should recover reasonable fees unless "special circumstances"
render such an award unjust. DiFilippo v. Morizio, 759 F.2d 231,
234 (2d Cir. 1985) (citing S. Rep. No. 1011, 94th Cong., 2d Sess.
4, reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912).
In deciding whether to award attorney's fees, the court
must first determine whether plaintiffs are "prevailing parties."
The Supreme Court has stated that ""plaintiffs may be considered
"prevailing parties' for attorney's fees purposes if they succeed
on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.'" Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe,
581 F.2d 275, 278-279 (1st Cir. 1978))
Furthermore, a plaintiff who is ultimately successful may be able
to recover reasonable attorney's fees for interim stages of the
litigation at which plaintiff did not prevail. Where plaintiff has
obtained relief on the merits, the Second Circuit has stated that
"she should not necessarily be denied fees for hours expended on
interim stages of the case in which a ruling was made in favor of the
party against whom she ultimately prevailed." Gierlinger v. Gleason,
160 F.3d 858, 880 (2d Cir. 1998). In such a case, the Court of Appeals has
suggested, "the proper inquiry is not whether [plaintiff's]
efforts on appeal itself were successful, but rather whether, in
light of the circumstances of the litigation as a whole, those
efforts were reasonable." Id. at 880.
A. Plaintiffs are Prevailing Parties with Respect to the the Litigation
of this Court's Initial Fee Award
This Court has already found plaintiffs to be prevailing parties on
their underlying § 1985 claims and has previously awarded them
attorneys' fees for the costs they incurred in Terry I. See NOW v.
Terry, 737 F. Supp. 1350
, 1367 (S.D.N.Y. 1990). Plaintiffs now seek
additional attorneys' fees for the litigation involved in defending
that fee award during Terry III, IV, and V.*fn4
After the Second Circuit affirmed this Court's initial
grant of fees, see NOW v. Terry, 961 F.2d 390, 401 (2d Cir.
1990), the Supreme Court vacated and remanded the case for
reconsideration in light of Bray v. Alexandria Women's Health
Clinic, 506 U.S. 263 (1993). See Pearson v. Planned Parenthood
Margaret Sanger Clinic, 507 U.S. 901 (1993). In Bray, the
Supreme Court held that women seeking abortions did not
constitute a qualifying class under § 1985(3) and that the goal
of preventing abortions did not amount to invidiously
discriminatory animus toward women. Id. at 269-274. Since
plaintiffs were not entitled to relief under § 1985(3), the
Supreme Court further held that they could not recover attorneys'
fees and costs under 42 U.S.C. § 1988. Id. at 285.
While this Court's decision granting plaintiffs summary
judgment on their § 1985(3) claims was made final prior to Bray
and, therefore, was unaffected by the Supreme Court's ruling,
plaintiffs' fee award was still on direct review and could
potentially be affected by retroactive application of the Bray
Rather than address Bray's effect on Terry II itself,
however, the Second Circuit reinstated the Court's fee award and
held that the application of Bray should be decided in the first
instance by the district court. See New York State NOW v. Terry,
996 F.2d 1351, 1352 (2d Cir. 1993)
On remand, this Court held that plaintiffs were still
entitled to their initial award of attorneys' fees since Bray did
not affect plaintiffs' status as prevailing parties on their
underlying § 1985(3) claims. Finding no special circumstances to
bar plaintiffs from recovering their litigation costs, the Court
reinstated the attorneys' fees awarded in Terry I. See New York
State NOW v. Terry, 952 F. Supp. 1033, 1045-46 (S.D.N.Y. 1997)
The Second Circuit affirmed the reinstatement of fees and the
Supreme Court denied certiorari. See New York State NOW v.
Terry, 159 F.3d 86, 98 (1998); Pearson v. Planned Parenthood
Margaret Sanger Clinic, 119 S.Ct. 2336 (1999).
Since Bray had no effect on this Court's fee award,
plaintiffs are not only prevailing parties with respect to their
underlying § 1985 claim, but are also prevailing parties with
respect to the litigation arising out of their claim for
attorneys' fees. Given that defendants have set forth no special
circumstance that would preclude plaintiffs from recovering the
fees associated with this additional litigation, plaintiffs are
entitled to a supplemental award.
B. Plaintiffs are also Prevailing Parties with Respect to the
Litigation of this Court's Initial Imposition of Contempt
Plaintiffs have already been awarded attorneys' fees
for the costs they incurred in bringing their original motion for
contempt sanctions. See NOW v. Terry, 732 F. Supp. 388, 409
(S.D.N.Y. 1990). They now seek an additional fee award as
prevailing parties in the litigation concerning the sanctions
that followed in Terry III, IV, and V.*fn5
In Terry I, following repeated willful violations of
this Court's order prohibiting defendants from blocking access to
abortion facilities, plaintiffs filed a motion for coercive civil
sanctions. The Court granted plaintiffs' motion and the Second
Circuit affirmed. See New York State NOW v. Terry, 732 F. Supp. 388,
398 (S.D.N.Y. 1990); New York State NOW v. Terry,
961 F.2d 390, 401 (2d Cir. 1992). Defendants petitioned for certiorari,
arguing that the sanctions were criminal rather than civil and
that Terry presented the same question as that in International
Union. United Mine Workers of America v. Bagwell, 512 U.S. 821
(1994), which was then before the Supreme Court.
The Supreme Court granted certiorari, vacated the
decision of the Second Circuit, and remanded for reconsideration
in light of Bagwell. See Pearson v. Planned Parenthood Margaret
Sanger Clinic, 512 U.S. 1249 (1994). In Bagwell, the Supreme
Court held that unconditional prospective fines were criminal in
nature and required procedural protections beyond those afforded
in civil contempt proceedings. 512 U.S. at 837-838. On remand,
the Second Circuit considered Bagwell's application to Terry and
found that the sanctions originally imposed by this Court were
criminal rather than civil. The court, therefore, vacated the
contempt fines and remanded the case. See New York State NOW v.
Terry, 41 F.3d 794, 796-97 (2d Cir. 1994)
Following the Second Circuit's remand, plaintiffs moved
to have this Court's original injunction modified to provide
defendants with an opportunity to purge themselves of the
contempt as contemplated by Bagwell, and to have the sanctions
reinstated. Plaintiffs' motion was granted and this Court's
decision was affirmed by the Second Circuit. See New York State
NOW v. Terry, 952 F. Supp. 1033, 1039-1043 (S.D.N.Y. 1997); New
York State NOW v. Terry, 159 F.3d 86, 98 (2d Cir. 1998). The
Supreme Court denied defendants' petition for certiorari making
this Court's imposition of civil contempt sanctions final. See
Pearson v. Planned Parenthood Margaret Sanger Clinic, 119 S.Ct.
While defendants do not dispute that plaintiffs
ultimately prevailed on their motion for contempt sanctions, they
nevertheless contest several aspects of plaintiffs' fee request.
C. Plaintiffs' Fee Request for Work Performed in their Opposition to
Defendants' Second Petition for Certiorari in Terry III and Letter
Brief to the Second Circuit in Terry IV
Defendants' first argument is that plaintiffs should
not recover fees for their unsuccessful opposition to defendants'
second petition for certiorari in Terry III or for their failed
letter brief to the Second Circuit in Terry IV because plaintiffs
erroneously insisted at these stages of the case that the
prospective contempt sanctions originally imposed by this Court
were civil rather than criminal.
The mere fact that plaintiffs were unsuccessful in
opposing defendants' petition for certiorari and did not succeed
on remand to the Second Circuit, however, does not preclude
plaintiffs from receiving an additional award of attorneys' fees.
As stated above, the proper inquiry for determining whether a
plaintiff should be awarded fees for interim stages of the
litigation at which plaintiff was not the prevailing party is
"whether in light of the circumstances of the litigation as a
whole, [plaintiff's] efforts were reasonable." Gierlinger, 160
F.3d at 880.
Turning first to plaintiffs' opposition to defendants'
petition for certiorari, the Court finds that plaintiffs' efforts
at this stage of the litigation were reasonable. plaintiffs
argued in their opposition papers that the prospective contempt
fines issued by the Court were civil rather than criminal in
nature and that an adverse ruling in Bagwell would have no effect
on Terry since Bagwell was distinguishable. The assertion that
the sanctions were civil rather than criminal did not contradict
any well established legal precedent at the time. As the Supreme
Court in Bagwell itself conceded, the distinction between civil
and criminal contempt fines had been "somewhat elusive." 512
U.S. at 830. Moreover, the position assumed by plaintiffs was
the same as that adopted by this Court in imposing the original
contempt sanctions and the Second Circuit in upholding those
As for the argument that Bagwell was distinguishable,
this too was reasonable. Bagwell involved a more complex
injunction and much greater fines than were imposed by Terry.
Given the murky distinction in the law between civil and criminal
contempt, plaintiffs fairly argued that these facts distinguished
the sanctions imposed in Bagwell from the fines at issue here.
As such, plaintiffs' efforts in opposing defendants' petition for
certiorari were reasonable.
Similarly, the Court finds that plaintiffs' efforts on
remand to the Second Circuit
were reasonable. Consistent with
their position in opposition to defendants' petition for
certiorari, plaintiffs claimed on remand that the adverse
decision in Bagwell did not require a finding that the
prospective fines imposed by this Court were criminal because
Bagwell was distinguishable from Terry. While this Court may not
believe that Bagwell was so easily distinguishable, plaintiffs'
argument was nevertheless a reasonable one. The Supreme Court in
Bagwell did not create a bright line rule for determining when
prospective contempt sanctions were criminal, but rather, based
its holding on the specific facts of the case before it.
Furthermore, Bagwell had not yet been applied in other cases or
interpreted by other courts. Plaintiffs were, therefore, forced
to evaluate the scope and application of the Bagwell decision
without much guidance. As such, the Court does not believe that
plaintiffs were unreasonable in maintaining that the prospective
fines levied in this case were civil and did not require
additional procedural protections.
Buttressing the Court's finding that plaintiffs'
position on remand was reasonable is the fact that plaintiffs
acknowledged Bagwell's potential application to Terry I and
argued in the alternative for a modification of the Court's
injunction. In the event the Second Circuit found the
injunction in Terry defective, plaintiffs requested that the
Court modify the injunction by including a purge provision that
would bring the injunction into compliance with Bagwell. While
this alternative was rejected by the Second Circuit, the
modification suggested was ultimately adopted by this Court and
upheld on appeal.
In light of the unsettled and rapidly developing nature
of this area of law, the Court finds that plaintiffs were
reasonable in both opposing defendants' petition for certiorari
and in trying to distinguish Bagwell on remand.
B. Plaintiff s' Fee Request for Work performed on their Motion to
Modify the Injunction and Reinstate Contempt Fines in Terry V
Defendants also argue that plaintiffs should not be
compensated for any of the hours they allegedly devoted to their
motion to modify the injunction and reinstate contempt sanctions
in Terry I. Defendants do not dispute that plaintiffs are
prevailing parties with respect to this motion. Nevertheless, it
is defendants' position that plaintiffs should not be compensated
for their work because they already received fees for their
original contempt motion, in which they improperly sought the
imposition of criminal sanctions.
As the Court understands it, defendants' argument is
not so much that plaintiffs should not be compensated for their
second motion for sanctions but rather that they should never
have been compensated for their first one. The Court's fee award
for plaintiffs' work on their first motion, however, has already
been affirmed by the Second Circuit and the Supreme Court has
denied certiorari. That award is therefore final. Moreover, the
mere fact that the position assumed by plaintiffs in their first
motion was subsequently invalidated does not necessarily suggest
that plaintiffs should not be compensated for their later
efforts. Rather, plaintiffs may be entitled to reasonable
attorneys' fees as the prevailing party even where they have not
succeeded at interim stages of the litigation so long as their
efforts were reasonable. Gierlinger, 160 F.3d at 880.
Given the "elusive" distinction between criminal and
civil contempt discussed above, the Court finds that plaintiffs
were reasonable in arguing that the sanctions sought were civil
and therefore did not require additional procedural protections.
Since plaintiffs were reasonable in their efforts, plaintiffs
were properly awarded fees for their prosecution of their
original motion. As defendants have provided no other basis for
denying plaintiffs' supplemental request, the Court finds that
plaintiffs are entitled to additional fees in connection with
their subsequent request for sanctions on which they prevailed.*fn6
II. Reasonableness of the Fees Requested
In calculating the fees to be awarded to plaintiffs,
this Court must multiply the number of hours reasonably expended
on the litigation by the reasonable hourly rate. Gierlinger v.
Gleason, 160 F.3d 858, 876 (2d Cir. 1998). The Court will
exclude from that calculation any hours that it finds to be
"excessive, redundant, or otherwise unnecessary." Id. (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The rates to be
used in calculating plaintiffs' fee award are "the market rates
"prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.'" Id. at
882 (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984))
Furthermore, in order to compensate plaintiffs where there is a
delay in payment, the Court should apply current rather than
historic hourly rates. Id. at 882 (citing Missouri v. Jenkins,
491 U.S. 274, 284 (1989)).
A. Reasonableness of the Hours Requested*fn7
*fn7 Plaintiff's seek reimbursement for 111.75 hours of work performed by
Martha Davis, Director of the NOW Legal Defense and Education Fund
(NOW LDEF), 40.10 hours of work performed by Yolanda S. Wu, staff
attorney at NOW LDEF, 115.50 hours of work performed by Barbara J.
Olshansky, Assistant Legal Director of the center for constitutional
Rights, 493.95 hours of work performed by James Bergin, a partner at
Morrison & Foerster, 51.50 hours of work performed by Kim Landsman, a
former partner at Morrison & Foerster, 71.50 hours of work performed
by Eileen Hershenov, a former associate at Morrison & Foerster,
193.75 hours of work performed by Jamie Levitt, an associate at
Morrison & Foerster, and 49.0 hours of work performed by Robert
Murphy, another associate at Morrison & Foerster.
Defendants take issue with plaintiffs' fee request for
200 hours devoted to their opposition to defendants' appeal to
the Second Circuit in Terry V. It is defendants' position that
200 hours is excessive since plaintiffs' brief was merely a
modified version of their motion to reinstate sanctions. The
Court finds that the hours expended by plaintiffs' attorneys
preparing their opposition to defendants' appeal were reasonable.
Plaintiffs were required to brief new questions of law
regarding the scope of the Bray and Bagwell decisions, defend
the Court's modification of the injunction and reinstatement of
sanctions without much guidance from other courts interpreting
the new case law, and address defendants' various arguments.
Counsels' preparation required extensive review of a lengthy
record and careful research of complicated legal issues.
Moreover, counsel were required to spend additional time
preparing for oral argument. While it is true that some of the
arguments dealt with on appeal had already been raised below, the
Court nevertheless finds that the hours expended were
B. Reasonable Rates
The rates requested by plaintiffs are based on the fees
currently charged by Morrison & Foerster for the attorneys who
have participated in this case, or for attorneys with comparable
The rates requested for Mr. Bergin, Ms. Levitt and
Mr. Murphy are the actual amounts currently charged by Morrison &
Foerster. The requested rates for Ms. Landsman and Ms. Hershenov
are based on the rates that these attorneys would bill at this
time if they were still with the firm. For Ms. Davis, Ms. Wu,
and Ms. olshansky, the rates requested are comparable to those
that would be charged by Morrison & Foerster for attorneys at
their levels of seniority and expertise.
Defendants note that these requests reflect the rates
that the attorneys charge in their current positions, which in
many cases differ from the positions they occupied while working
on this case. For example, defendants note that Mr. Bergin seeks
compensation at partner billing rates for all of the legal
services he performed in connection with this case from 1993 to
the present. However, Mr. Bergin was not made a partner until
1997. As such, defendants contend he should not be compensated
at the partner billing rate for legal services performed before
The Court agrees that plaintiffs' attorneys are not
entitled to compensation based on their current positions.
Instead, each attorney should receive fees based on the average
of his or her level of experience over the course of the
litigation.*fn10 Plaintiffs are therefore directed to settle a
judgment supported by affidavits setting forth each attorney's
average level of experience for the period during which he or she
provided legal services in connection with this case and
specifying the prevailing current billing rates that correspond
to those average levels of experience.
III. Plaintiff s are Entitled to Reasonable Expenses
Plaintiffs have requested reimbursement for $14,417.73
in expenses incurred for copying, telephone, messenger and
express mail services. Defendants object that plaintiffs have
not adequately detailed $13,021.63 of those expenses which are
attributed to Morrison & Foerster's out of pocket expenses. In
response, plaintiffs have filed a supplemental declaration from
Ms. Wu explaining that on occasion Morrison & Foerster submitted
invoices to NOW LDEF for its out-of-pocket expenses and NOW
reimbursed the firm for certain of those costs. Plaintiffs have
also provided copies of those invoices which detail the expenses
incurred by Morrison & Foerster.
Moreover, Mr. Bergin has submitted a supplemental
declaration detailing Morrison & Foerster's practice of tracking
litigation costs with automated monitoring systems and explaining
that it is customary for the partner in charge of a case to
review the out-of-pocket expenses to ensure that they are
reasonable and accurate. The Court has reviewed these
declarations and invoices and is satisfied that the amount of
expenses requested by plaintiffs is reasonable in light of the
protracted nature of this litigation and the extensive briefing
Based on the foregoing, plaintiffs' motion for a
supplemental award of attorneys' fees is granted.
Settle judgment on notice.
DATED: New York, New York
April 26, 2000
U.S. D. J.