United States District Court, S.D. New York
July 6, 2005.
NADIA BARCIA, et al., Plaintiffs,
LOUIS SITKIN, et al., Defendants. MUNICIPAL LABOR COMMITTEE, et al., Plaintiffs, v. LOUIS SITKIN, et al., Defendants.
The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge
The law firm of Raff & Becker, LLP represents plaintiffs Nadia
Barcia, et al. in this action dating back to 1979. The suit was
originally brought against the defendants in the form of a class
action suit after the defendants improperly denied unemployment
benefits and fair hearings, in violation of the Social Security
Act, 42 U.S.C. § 503(a); the equal protection and due process
clauses of the Fourteenth Amendment; Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000(d); and the Federal Unemployment
Tax Act, 26 U.S.C. § 3304(a)(6)(A)(i). The parties to this action
entered into a consent judgment with the approval of the court on
July 29, 1983. However, the defendants repeatedly failed to
satisfy the terms of that decree. The plaintiffs returned to
court in order to bring defendants' noncompliance to the court's
attention and to compel enforcement. Defendants cross-moved to
modify the consent decree to terminate monitoring of current
cases by plaintiffs' counsel.
Plaintiffs prevailed on its motion for enforcement and
defendants' motion for modification of the consent decree was
denied and as stated in the court's opinion delivered on June 9,
2003, "plaintiffs are awarded reasonable attorney's fees, costs,
and out-of-pocket expenses." Barcia v. Sitkin, 2003 WL
21345555, 11 (S.D.N.Y.). On April 7, 2004, the court issued an
order awarding these attorney's fees to plaintiffs in the full
amount requested in their motion and memorandum. That endorsement was later rescinded after both
parties stipulated that plaintiffs' motion for attorney's fees be
held in abeyance pending the outcome of the defendants' appeal of
the June 9, 2003 decision to the Second Circuit.
On May 10, 2004, the Second Circuit rendered its ruling
affirming in part and reversing in part the June 9, 2003 decision
of the District Court. The Court affirmed the District Court's
denial of defendants' motion for modification of the consent
decree and reversed in part its grant of plaintiffs' motion for
enforcement where it imposed supplementary obligations beyond the
express terms of the consent decree. As a result, plaintiffs
submitted this amended and superseding motion for attorney's fees
making reductions in time for claims upon which plaintiffs did
not prevail on appeal, and including time for work on matters
that occurred after the June 9, 2003 order and opinion.
Plaintiffs request compensation in connection with their
successful prosecution of plaintiffs' (a) motion for enforcement
of the consent judgment and related relief, (b) opposition of
defendants' cross-motion to terminate monitoring of current
cases, (c) opposition to defendants' motion to stay relief, and
(d) opposition to defendants' appeal.
Defendants oppose this award of attorney's fees and costs
arguing that plaintiffs' application should be denied because
plaintiffs are not prevailing parties. Defendants further argue that plaintiffs are not entitled to fees on their
postjudgment motion and opposition to their cross-motion and
appeal. Finally, defendants argue in the alternative that even if
the court finds plaintiffs to be prevailing parties, the fee
application must be drastically reduced. The court will now
address each of the defendants' arguments in turn.
PLAINTIFFS' APPLICATION FOR ATTORNEY'S FEES AND COSTS SHOULD
BE DENIED BECAUSE PLAINTIFFS ARE NOT PREVAILING PARTIES.
Defendants rely on Buckhannon Board & Care Home, Inc. v. West
Virginia Dept. of Health & Human Resources, 532 U.S. 598 (2001),
where the Supreme Court "drew a bright line distinguishing
`prevailing parties' from plaintiffs not entitled to an award of
attorneys fees." Vaughn v. Principi, 336 F.3d 1351, 1355 (Fed.
Cir., 2003), cert. denied, 124 S.Ct. 2014 (2004). The court
held that fees are available only when a plaintiff "obtains a
judgment on the merits" or where a court order causes a "change
[in] the legal relationship between [the plaintiff] and the
defendant." Buckhannon, 532 U.S. at 604, citing Texas State
Teachers Assn. V. Garland Independent School Dist.,
489 U.S. 782, 792 (1989), which cited Hewitt v. Helms, 482 U.S. 755,
760-61 (1987); see also Preservation Coalition of Erie County v.
Federal Transit Admin., 356 F.3d 444, 451 (2d Cir. 2004). Defendants argue that where as here, the District Court denied
both plaintiffs' and defendants' respective motion and
cross-motion for modification (Barcia, 367 F.3d at 97) and
where the Court of Appeals reversed the District Court's grant of
plaintiffs' motion for enforcement (Id. at 106-110), plaintiffs
cannot be deemed prevailing parties as there has been no
enforceable alteration of the legal relationship between the
parties. Defendants further argue that plaintiffs' successful
opposition in the District Court and the Court of Appeals to the
Board's cross-motion to end monitoring cannot satisfy the "change
of legal relationship" requirement because "warding off" a
cross-motion does not transmogrify plaintiffs into prevailing
parties, as they have not prevailed on the merits of their claims
or changed the legal relationship between the parties. Hanrahan
v. Hampton, 446 U.S. 754, 759 (1980); Dagen v. CFC Group
Holdings Ltd., 2004 U.S. Dist. LEXIS 6830 at *12 (S.D.N.Y. Apr.
21, 2004) (Motley, J.) (dismissal of defendant's counterclaim
does not establish plaintiff as prevailing party).
Plaintiffs' position that they are prevailing parties is
sustainable under the Buckhannon standard that defendants cited
above. Plaintiffs have obtained an enforceable judgment that
requires defendants to bring the manner in which they conduct
hearings into compliance with the consent judgment. The judgment,
and the ability to enforce it, has altered the legal relationship
between the parties and forbids the defendants from arbitrarily depriving claimants who
do not appeal their cases from receiving the benefits of the
consent judgment. Thus, the legal relationship between plaintiffs
and the defendants have been sufficiently altered to regard
plaintiffs as prevailing parties thereby justifying the awarding
of attorney's fees.
PLAINTIFFS ARE NOT ENTITLED TO FEES ON THEIR POSTJUDGMENT
MOTION AND OPPOSITION TO THE BOARDS' CROSS-MOTION AND APPEAL.
Defendants do not dispute that the initial consent judgment
approved by the court on July 29, 1983 established plaintiffs as
prevailing parties at that time but argue that such status does
not exist for the life of the consent judgment, no matter what
the outcome of postjudgment litigation. See, e.g., Alliance
to End Repression v. City of Chicago, 356 F.3d at 767 (Posner,
J.) (initial success in obtaining consent decree does not grant
prevailing party status for life of decree, where postjudgment
proceedings were not successful); Cody v. Hillard,
304 F.3d 767, 773 (8th Cir. 2002) (plaintiff's once-established
prevailing party status does not make all later work
However, as plaintiffs correctly point out, case law and the
plain language of 42 U.S.C. 1988 clearly state that attorney's
fees can be awarded for post-judgment monitoring and other
efforts to ensure compliance with court orders in a civil rights
case. Duran v. Carruthers, 885 F.2d 1492, 1495 (10th Cir.
1989) (awarding fees and finding that consent decree "was only the beginning, and counsel for the plaintiffs
has a continuing duty and responsibility to make sure that the
defendants comply, and continue to comply, with the decree");
Adams v. Mathis, 752 F.2d 553, 554 (11th Cir. 1985);
Garrity v. Sunun, 752 F.2d 727, 738 (1st Cir. 1984); Miller
v. Carson, 628 F.2d 346, 348 (5th Cir. 1980); Northcross v.
Board of Educ., 611 F.2d 624, 637 (6th Cir. 1979), cert.
denied, 447 U.S. 911, 64 L.Ed.2d 862, 100 S.Ct. 2999,
100 S.Ct. 3000 (1980).
In Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990) the
court noted that "entitlement to fees for one aspect of a
protracted litigation does not turn narrowly on whether the party
prevailed on that particular matter, but whether a separate claim
or, as here, a separate proceeding is so unrelated as to justify
treating it as a `separate lawsuit'". 902 F.2d at 280 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)). The court
further noted that:
The Supreme Court has directed district courts not to
draw overly fine distinctions in making this
determination. Certainly where the issues presented
in the later proceedings or in separate claims
involve the same common core of facts or related
legal theories, the case "cannot be viewed as a
series of discrete claims. Instead the district court
should focus on the significance of the overall
relief obtained by the plaintiff in relation to the
hours reasonably expended on the litigation."
902 F.2d at 280 (quoting Hensley, 461 U.S. at 435).
On the basis of these principles the court observed that
plaintiffs, who had been successful in negotiating the consent decree, had engaged in the later litigation to "preserve
its fruits." Plyler v. Evatt, 902 F.2d at 281. The court also
noted: "Plaintiff class had no option but to incur the related
costs; plaintiffs' counsel were under clear obligation to make
the defensive effort." Id. It therefore concluded:
To deny attorney fees for such an effort, whether
successful in detail or not, would obviously thwart
the underlying purpose of the attorney fee provision
of 42 U.S.C. § 1988.
When, as here, the matters at issue in subsequent litigation
are "so intertwined with the original claims that attorney's fees
for work on those proceedings should be awarded as to a still
prevailing party." Id. Plaintiffs position is further bolstered
by the fact that they were actually successful in their efforts
to preserve the fruits of earlier litigation.
IF THE COURT FINDS PLAINTIFFS TO BE PREVAILING PARTIES, THE
FEE APPLICATION MUST BE DRASTICALLY REDUCED.
Defendants argue that even if the court agrees to award
plaintiffs attorney's fees, given their very modest success,
those fee award must be reduced across-the-board by at least
five-sixths. Comparing what plaintiffs asked for, the imposition
of their amelioration plan and at least three enforcement
measures with their receipt of injunctive relief, the court may
find that they can be said to have prevailed on approximately one-sixth of their requests. See,
e.g., Betancourt v. Giuliani, 2004 U.S. Dist. LEXIS 13245
(S.D.N.Y. July 14, 2004) (fee application reduced 90% due to
Defendants do not contest the reasonableness of the hours spent
or the hourly rates of plaintiffs counsel. Their reasoning for a
reduction lie with plaintiffs' limited success. In answer to that
assertion, plaintiffs secured an order requiring defendants to
submit a new plan to come into compliance with the consent
judgment and to provide benefits to all claimants that are
entitled to benefits of the decree. This relief will undoubtedly
require defendants to modify the way it adjudicates claims for
unemployment insurance benefits and thus cannot be construed as a
In Hensley v. Eckerhart, 461 U.S. 424, 440 (1983), the
Supreme Court advised that when a plaintiff is unsuccessful on a
claim that is separate and distinct from the successful claims,
"the hours spent on the unsuccessful claim should be excluded in
considering the amount of a reasonable fee." That is precisely
what plaintiffs here have done and what defendants have ignored
in their "five-sixth across-the-board" reduction.
For the aforementioned reasons the court hereby grants
plaintiffs' amended and superseding application for attorney's fees and costs in the full amount requested in their
motion and memorandum.
IT IS SO ORDERED
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