United States District Court, S.D. New York
ORDER REGARDING FEE DISPUTE
K. HELLERSTEIN United States District Judge
for defendant Professor Ric Curtis seeks an order authorizing
attorneys' fees in excess of those set forth in the fee
schedule maintained by the Office of the New York State
Comptroller (the "Comptroller"). Counsel for
Professor Curtis and the Comptroller are directed to continue
negotiating in light of the guidance in this order.
Curtis is an employee of the City University of New York
("CUNY"). Two former students bring claims against
Professor Curtis and others stemming from alleged sexual
violence, harassment, discrimination, and other misconduct
Plaintiffs faced while at CUNY. Professor Curtis, the
Comptroller agrees, is entitled to representation in this
action by private counsel, with reasonable attorneys'
fees to be paid by the State of New York pursuant New York
Public Officers Law ("POL") § 17. See
POL § 17(2)(b) ("If the employee ... is entitled to
representation by private counsel under the provisions of
this section, the attorney general shall so certify to the
comptroller. Reasonable attorneys' fees and litigation
expenses shall be paid by the state to such private counsel
from time to time during the pendency of the civil action or
for Professor Curtis and for the Comptroller appear specially
before this Court to address a dispute over the amount of
reasonable attorneys' fees. Under POL § 17, "[a]ny
dispute with respect to .. . the reasonableness of
attorneys' fees shall be resolved by the court upon
motion or by way of a special proceeding." POL §
17(2)(b); see also Nat'l Foods, Inc. v. Rubin,
936 F.2d 656 (2d Cir. 1991) ("[I]n § 17(2)(b) of
the Public Officers Law, the New York State Legislature
acknowledged that the court where litigation is pending,
whether state or federal, is the court where all issues of
conflict of interest between litigants necessitating separate
representation, of joint representation, and of the worth of
legal services should be resolved."). Professor
Curtis's attorney Mr. Bob Herbst is seeking fees at his
customary hourly rate of $800. Mr. Herbst is a partner with
46 years of legal experience. The Comptroller's fee
schedule, maintained pursuant to 2 NYCRR § 20.3,
designates a fee rate of $225 per hour for a partner who has
been admitted to the Bar for at least ten years. The
Comptroller may pay fees above the rates in the schedule upon
request by counsel. 2 NYCRR § 20.4(a). In assessing the
appropriateness of authorizing higher fees, the Comptroller
"shall consider ... (1) the prevailing fees for similar
services in the area in which the case is to be heard; (2)
the experience of private counsel, both generally and in
cases of the type under consideration; [and] (3) the
difficulty of the case under consideration (e.g.,
scientific or technical evidence, availability of
witnesses)." Id. Given Mr. Herbst's
experience, the Comptroller has been willing to pay up to
$550 per hour for Mr. Herbst's representation of
Professor Curtis in this action. The fee rates for the
remainder of Mr. Herbst's staff are not in dispute
following negotiations with the Comptroller.
Herbst is a highly experienced and accomplished litigator in
the areas of civil rights and employment law. Furthermore,
this is a complex action. Plaintiffs allege facts spanning
years and bring twelve claims (only three of which are
asserted against Professor Curtis) under federal, state, and
local law. Though the action is still at an early stage, Mr.
Herbst expects to confront extensive discovery and difficult
legal questions. The Comptroller does not challenge Mr.
Herbst's assertions as to his experience or the
difficulty of this case.
Herbst's clients routinely pay $800 per hour for his
services. He also provided evidence showing that some civil
rights litigators of similar experience charge similar or
higher rates. The Comptroller represents that it has never
authorized a fee rate as high as the $800 per hour that Mr.
Herbst requests. A court in this district has awarded $800
per hour for experienced attorneys in a complex civil rights
action. See Williams v. Metro-North R.R. Co., No.
17-cv-03847, 2018 WL 3370678, at *8 (S.D.N.Y. June 28, 2018),
reported and recommendation adopted, 2018 WL 3368713
(S.D.N.Y. July 10, 2018) (approving rate of $800 for partners
in a gender-based discrimination action implicating federal,
state, and local laws). However, more often, courts order
lower rates, even for partners representing clients in
complex actions. See, e.g., Lewis v. Am. Sugar Refining
Inc., No. 14-cv-02302, 2019 WL 116420, at *4 (Jan. 2,
2019) ("Courts in this district have approved hourly
rates of $250 to $600 for civil rights attorneys with over
ten years of experience and of $200 to $350 for
worth noting that the cited cases typically involve
attorneys' fees awarded pursuant to fee-shifting
statutes. The posture here, a determination of attorney's
fees under POL § 17(2)(b), is different. That is a key
component of the dispute between the defendant and the
Comptroller. Defendant argues that the Court should
independently determine the reasonableness of the proposed
attorneys' fees. The Comptroller argues that the
Comptroller's determination of reasonableness should be
subject to the "rational basis" standard of review
applicable to review of agency decisions in Article 78
proceedings in New York State Court. The Second Circuit has
declined to answer the question. See Nat'l
Foods, 936 F.2d at 661 (2d Cir. 1991) ("expressing]
no view on the standard applicable to a review of the
Comptroller's decision" under POL § 17(2)(b)
because the issue was not raised below). In Ehring v.
County of Rensselaer, the District Court for the
Northern District of New York determined a reasonable fee
rate under POL § 17(2)(b) and seemingly did not give any
deference to the State's determination. See No.
05-cv-665, 2006 WL 8452028 (N.D.N.Y. Aug. 8, 2006).
other hand, if Defendant were to challenge the
Comptroller's fee decision in New York State Court, the
Court would likely review the decision under the standard
advocated by the Comptroller. Generally, "[i]n reviewing
an administrative agency determination, [the court] must
ascertain whether there is a rational basis for the action in
question or whether it is arbitrary and capricious."
Gilman v. N.Y.State Div. of Hous. & Cmty.
Renewal, 99 N.Y.2d 144, 149 (N.Y. 2002). "An action
is arbitrary and capricious when it is taken without sound
basis in reason or regard to the facts." Peckham v.
Calogero, 12 N.Y.3d 424, 431 (N.Y. 2009). Analyzing
another provision of POL § 17, the New York Court of
Appeals found that "[t]he Attorney-General's
determination to grant or deny a defense under Public
Officers Law § 17(2)(a) is an administrative decision
much like decisions rendered by other administrative agencies
in response to an application for a benefit granted by a
governmental entity. Thus, to protect their right to a
defense under the statute, the physicians were required to
challenge the State's denial of a defense in a timely
article 78 proceeding." Frontier Ins. Co. v. New
York, 87 N.Y.2d 864, 866-67 (N.Y. 1995).
this is not an Article 78 proceeding and the state standard
of review is not binding here, it is at least persuasive. A
federal court should be hesitant to apply less deference than
would a state court in reviewing a state agency's
decision about allocation of state funds under a state
statute and state regulations. Cf. Bldg. Trades Employ.
Ass 'n v. McGowan, 311 F.3d 501, 507 (2d Cir. 2002)
("We defer to a state agency's interpretation of its
own regulations, unless the interpretation is arbitrary or
Comptroller's offer to pay Mr. Herbst at a rate of $550
per hour failed sufficiently to account for fees judicially
allowed for similar services by experienced partners in
complex actions in this district, as required by 2 NYCRR
§ 20.4. However, Mr. Herbst, though a skilled lawyer, is
being paid by public funds, and it would be hard to rule that
the Comptroller lacked rational basis for declining to pay
the amount requested by Mr. Herbst from the public fisc. Mr.
Herbst and the Comptroller would benefit from further
negotiation to compromise their differences.
parties shall report to me as to their negotiations by
January 16, 2020. Meanwhile, the ...