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Memorandum Opinion on the Issue of Attorneys Fees.
Re: Mainstream Loudoun v. Loudoun County Library, Case No. 97-2049.

Date: April 1, 1999.
Source: Clerk of the Court, U.S. District Court for the Eastern District of Alexandria. This document was created by Tech Law Journal by scanning a photocopy of the original, and converting to HTML.
Copyright 1999 Tech Law Journal. All rights reserved.

Alexandria Division






)   Civil Action No. 97-2049-A


Before the Court are the plaintiffs' and intervenors' petitions for attorneys' fees and costs. Plaintiffs and intervenors are the prevailing parties in an action challenging the constitutionality of defendant's Internet use policy, which restricted library patrons' access to certain content-based categories of Internet publications. We found that the library's policy "offends the guarantee of free speech in the First Amendment and is, therefore, unconstitutional." Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552, 570 (E.D. Va. 1998).


1  These factors are:

(1) the time and labor expended;
(2) the novelty and difficulty of the questions raised;
(3) the skill required to properly perform the legal services rendered;
(4) the attorneys' opportunity costs in pressing the litigation;
(5) the customary fee for like work;
(6) the attorneys, expectation at the outset of the litigation;
(7) time limitations imposed by the client or the circumstances of the case;
(8) the amount in controversy and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the undesirability of the case within the legal community;
(11) the nature and length of the professional relationship between the attorneys and the client; and
(12) attorneys' fees awarded in similar cases.

2  Defendant also asserts that an award of attorneys' fees is inappropriate in this action because it would not serve the purpose of the attorneys' fee statute. That assertion is addressed below in Part III.

42 U.S.C. 1988 (1994) provides that "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." See also Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (stating that a plaintiff [begin page 2] "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."). To arrive at an appropriate attorneys, fee award, the Court must first multiply the number of hours reasonably spent prosecuting the case by a reasonable hourly rate. This calculation results in a "lodestar" figure. See id. at 433. The Court may then choose to adjust the lodestar based on a variety of factors set forth originally in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974), and adopted by the Fourth Circuit in Barber v. Kimbrell's, Inc., 577 F. 2d 216, 226-28 (4th Cir. 1978), cert. denied, 439 U.S. 934 (1978).1 In the instant petitions, plaintiffs seek attorneys' [begin page 3] fees of $276,783.75 and expenses of $23,926.62 and intervenors seek attorneys' fees of $171,953 and expenses of $15,937.73.

Defendant contends that no award of attorneys' fees is appropriate in this case for two reasons.2 First, defendant contends that because this litigation was addressed to defendant's legislative activities, it is immune from all monetary liability. We find, however, that this action focused both on the policy itself and on the board's implementation of that policy, which is an administrative function. Moreover, awarding attorneys, fees is distinct from finding liability for monetary damages. Defendant is not immune from an award of attorney's fees in this circumstance. Second, defendant asserts that it is immune from attorneys, fee liability under 47 U.S.C. 230(c)(2)(A), which exempts it from liability for damages if its actions were taken in good faith. Because attorneys' fees are not equivalent to money damages, and because 230(c)(2)(A) does not address attorneys' fees, we reject [begin page 4] this argument.

I.  Reasonable Hours and Reasonable Rate

3  Plaintiffs, rates are $240/hr for Robert Corn-Revere, $230/hr for Ronald Wiltsie, $150/hr for Ellen Callahan, $240/hr for Elliot M. Mincberg (PFAW), and $230/hr for Lawrence S. Ottinger (PFAW). Intervenors' rates are $240/hr for Christopher Hanson, $170/hr for Ann Beeson, and $100/hr for J.C. Salyer. These rates are in accord with those we found reasonable for similar work in Urofsky v. Allen, Civ. A. No. 97-701-A (E.D. Va. May 19, 1998) (Mem. Op.), rendered moot by Urofsky v. Gilmore, 167 F.3d 191 (4th Cir. 1999).

Defendant has not disputed the reasonableness of the hourly rates charged by counsel for plaintiffs or intervenors and we find that these rates are reasonable.3 However, defendant objects to the number of hours charged and to the number of counsel involved in the litigation. Defendant contends that if fees are to be awarded at all, they should be based on defendant's fees, which total $133,932, because the fees charged by plaintiffs and intervenors are excessive. Plaintiffs and intervenors both counter that their hours are reasonable and that there is no basis for using defendant's fee total as a starting point. Moreover, proof of the reasonableness of their fees lies in the billing judgment they exercised by voluntarily excluding many hours expended by various attorneys and staff which they were entitled to recover, voluntarily excluding many other items to conform to this Court's [begin page 5] guidelines, and voluntarily agreeing to reduce their total claim by 2501. Although the amount of fees incurred by defendant is probative of the reasonableness of plaintiffs, and intervenors' claims, it is not dispositive and we see no reason to use defendant's total fees as a starting point.

We begin our analysis, therefore, with plaintiffs' and intervenors' requests for $276,783.75 and $171,953 in attorneys' fees, respectively. Plaintiffs and intervenors are only entitled to recover attorneys fees that were reasonably incurred during litigation. As we stated in Urofsky,

even where it is reasonable for counsel to divide research and writing among several attorneys, a defendant should not be made to pay each plaintiffs, attorney for time spent conferencing with other plaintiffs' attorneys about a case one attorney could have handled alone. A corollary of this principle is that attorneys should not be paid for attending depositions they did not take or defend, or oral arguments that they did not themselves present. -See Daly v. Hill, 790 F.2d 1071, 1080 (4th Cir. 1986); Halderman v. Pennhurst St. Sch. and Hosp., 49 F.3d 939, 943 (3d Cir. 1995). Likewise, a defendant cannot reasonably be asked to pay for the time and costs plaintiffs, counsel incur exchanging, reviewing, and commenting on each other's work.

4 For example, the first entry in the time log of intervenors, lead attorney, Christopher A. Hansen, is a six hour meeting with plaintiffs, lead attorney to discuss "our role".

Mem. Op. at 6-7. Additionally, although communications between counsel for different parties are generally compensable, when that communication goes beyond traditional boundaries to the point that it is more consistent with communication between counsel [begin page 6] representing a common client than separate clients with distinct interests, it is not properly compensable. In the instant action, the time records submitted to the Court demonstrate that from the beginning and throughout this litigation, communication between plaintiffs and intervenors crossed this boundary.4

We find that all of the time billed for Elliot M. Mincberg and Lawrence S. Ottinger, counsel for People for the American Way (PFAW) and co-counsel for plaintiffs in this action, is duplicative of the work of plaintiffs' lead counsel, Hogan & Hartson. In spite of plaintiffs, assertion that they recognized the possibility of duplication of effort with two firms representing a single client and tried to minimize this, we find that it would be unfair to require defendant to pay these additional fees. This conclusion is strengthened by the representation of Hogan & Hartson's lead counsel that he had extensive experience in First Amendment and Internet issues, the same issues for which PFAW's expertise was retained.

Furthermore, although "plaintiff recruitment" is not improper, we find that attorney time spent on such recruitment is not [begin page 7] recoverable under 1988. See ACLU v. Barnes, No. 98-8075, 1999 WL 89052 (11th Cir. Feb. 23, 1999) (finding that the district court had abused its discretion in refusing to exclude time spent recruiting plaintiffs). Subtracting for the activities described above, and including plaintiffs' and intervenors' voluntary 25% reduction, the total lodestar figures come to $183,817.50 for plaintiffs, counsel and $116,392.73 for intervenors' counsel:

Plaintiffs Hours
Lodestar 25%
Corn-Revere 725.25 471 $240 $113,040.00 $84,780.00
Wiltsie 432 415 $230 $95,450.00 $71,587.50
Callahan 280.5 244 $150 $36,600.00 $27,450.00
Mincberg 76.5 0 $240 $0.00 $0.00
Ottinger 153 0 $230 $0.00 $0.00
        Total $183,817.50
5  Many time entries for plaintiffs' and intervenors' work included several different tasks with no statement of how much time was spent performing each task. In determining how much time to deduct from each entry, we were forced to estimate the amount of time we believed each task would have taken. Because plaintiffs and intervenors caused this uncertainty, we gave the benefit of the doubt in making these estimates to defendant.

[begin page 8]

Intervenors Hours
Lodestar 25%
Hanson 221 205.5 $240 $49,320.00 $36,990.00
Beeson 645.8 573.59 $170 $97,510.30 $73,132.73
Salyer 83.7 83.6 $100 $8,360.00 $6,270.00
  Total $116,392.73

II.  Johnson Factors

Next, we must consider whether any of the factors set forth in Johnson justify increasing or decreasing the amount of attorneys' fees to which plaintiffs and intervenors are entitled. See 488 F.2d at 717-19; see also Barber v. Kimbrell's, Inc., 577 F.2d 216, 226-28 (4th Cir. 1978).

A.  Time and Labor Expended

We have considered these factors already in our determination of the lodestar.

B.  Novelty and Difficulty of the Questions Raised

Although this case did present novel First Amendment and Internet law issues, we do not believe that the complexity of the issues raised justifies a multiplier of the award.

C.  Skill Required to Properly Perform the Legal Services Rendered

We have considered this factor already in our determination of the reasonable hourly rate.

[begin page 9]

D.  Attorney's Opportunity Costs in Pressing the Litigation

No evidence is before us on this issue.

E.  Customary Fee for Like Work

We have considered this factor already in our determination of the lodestar.

F. Attorneys' Expectation at the Outset of the Litigation

6  Indeed, embracing defendant's argument that 1988 does not allow recovery when counsel agree to a pro bono representation would lead to the perverse conclusion that attorneys' fees could only be recovered when a civil plaintiff was wealthy enough to retain counsel.

Defendant has argued that counsel for plaintiffs and intervenors undertook their pro bono representation of these parties without any expectation of attorneys' fees. Plaintiffs and intervenors respond that the pro bono basis on which they undertook to represent their clients is irrelevant because the expectation of possible recovery of attorneys' fees was part of their motivation. Defendant's argument focuses on intervenors' counsel, I who specifically recruited their clients by offering free legal services to individuals who would almost certainly not have been willing to pay for this representation. Although we find no reason to decrease the fee award to plaintiffs,6 intervenors present a different situation. Unlike plaintiffs, intervenors' counsel's [begin page 10] representation did not arise in response to the concerns of clients. Rather, intervenors' counsel actually searched for their own clients in order to create a case and controversy to advance their own agenda, as well as those of the clients they found. In this situation, intervenors' counsel clearly could not have had the same expectation of attorneys' fees. Based on this factor, we will reduce the intervenors' attorneys' fees by 25%.

G.  Time Limitations Imposed by the client or the Circumstances of the Case

No evidence is before us on this issue.

H.  Amount in Controversy and the Results Obtained

7  One intervenor, John Ockerbloom, was dismissed from this action on standing grounds.

Plaintiffs did not seek a monetary award in this case but obtained the complete injunctive and declaratory relief they sought. Intervenors also prevailed but to a somewhat more limited extent.7 This set of circumstances does not present as compelling a case for a multiplier as where a plaintiff recovers the full extent of the monetary damages she or he seeks. On these specific facts, we do not believe any multiplier is appropriate.

I.  Experience, Reputation and Ability of the Attorneys

We have considered this factor already in our determination of [begin page 11] the reasonable rate.

J. Undesirability of the Case Within the Legal Community

Defendant argues that this was a highly desirable civil action, as demonstrated by intervenors' counsel actually recruiting their clients and convincing them to enter this litigation, which all parties and counsel recognized as a major test case with national implications. In fact, the individual intervenors were completely unaware of the factual and legal bases of the claims brought on their behalf until approached by counsel. To the extent that a reduction of the lodestar is appropriate based on this factor, we believe this was properly accounted for in our reduction of fees for intervenors' counsel due to their expectations.

K.  Nature and Length of Professional Relationship Between the Attorney and Client

No evidence is before us on this issue.

L.  Attorney's Fees Awarded in Similar Cases

We have already considered this factor in our determination of the reasonable hourly rate.

After consideration of the Johnson factors, the amount of plaintiffs, award remains $183,817.50. Making the single adjustment for intervenors' counsel's expectations, the amount of intervenors' award is reduced to $87,294.55:

[begin page 12]

Attorney Hours Hourly
Lodestar Original
Hanson 205.5 $240 $49,320.00 $36,990.00 $27,742.50
Beeson 573.59 $170 $97,510.30 $73,132.73 $54,849.55
Salyer 83.6 $100 $8,360.00 $6,270.00 $4,702.50
  Total $87,294.55

III.  Nature of the Parties

Lastly, defendant contends that attorneys' fees should not be awarded in this action because the principles underlying the attorneys' fees statute are not applicable to this factual situation, in which counsel for plaintiffs and intervenors accepted this case on a pro bono basis with no expectation of being paid; intervenors' counsel sought out their own clients; no clients had to put up any money; and no incentives are needed to induce lawyers to represent clients in these kinds of cases. Defendant further asserts that neither plaintiffs nor intervenors are the poor or powerless parties the attorneys' fees statute was meant to assist.

8 See Justin Bloom, "6,200-Home Project Planned for Va.", Wash. Post, March 23, 1999, at B2 (citing county officials as stating that Loudoun County is the "third fastest-growing county in the country").
9  We emphasize that this reduction in fees is not intended to suggest that plaintiffs, and intervenors' counsel did not provide excellent legal services to their clients. Counsel for all three parties performed admirably in litigating the new and difficult questions in this lawsuit.
10  Plaintiffs, and Intervenors' statements of costs they are seeking include a voluntary 251 downward adjustment to their total requested fee award. Defendant's objections, however, are made to the figures provided by plaintiffs and intervenors before accounting for the downward adjustment. Therefore, the actual exclusion defendant is seeking would amount to $2,787.27 from plaintiffs, request and $5,701.64 from intervenors' request.
11  This figure reflects intervenors, 25% downward adjustment. See footnote 10, supra.

Although plaintiffs and intervenors do not fit into the category of the poor and powerless, they clearly fall within the scope of parties that 1988 is designed to assist. Defendant has provided no case law, statutory language, or legislative history to support its contrary argument. Although we find that an attorneys' [begin page 13] fee award of $271,112.05 is not unreasonable, because of the nature of the defendant we conclude that to award this amount would be contrary to the interests of the very people counsel represented in this litigation. Specifically, we recognize the limited nature of public libraries, financial resources. Defendant alleges that it already faces a budget crunch and does not have sufficient funds to provide the resources and services which should be available to the residents of Loudoun County, which is experiencing a dramatic population expansion.8 This problem is exacerbated by the fact that defendant has no revenue-raising capacity of its own.

Defendant argues, and we find, that any large award of attorneys' fees will likely result in a decrease in the resources and services available to library patrons, possibly including Internet services. This could result in significant harm to the interests of library patrons, whose access to materials was being championed by plaintiffs, and to the interests of those who seek to communicate with library patrons through library materials, whose rights were being championed by intervenors. Where an award of attorneys' fees might serve to undermine the interests of the very [begin page 14] parties who prevailed in the litigation, it is appropriate to reduce the award. Therefore, we will reduce each of the lodestar amounts calculated above by an additional 75% to bring the fees down to a level we believe defendant can pay without creating a budgetary nightmare.9 We believe this is a fair result which adequately balances the interests of all parties to this action and the public, as well as the expectations of the attorneys. This results in a final award of attorneys, fees of $45,954.38 to plaintiffs and $21,823.64 to intervenors.

IV.  Costs

Both plaintiffs and intervenors also seek an award of expenses of $23,926.62 and $15,937.73, respectively. Defendant objects $3,716.36 of plaintiffs, expenses and $7,602.18 of intervenors' expenses.10 Defendant asserts that plaintiffs, claimed travel [begin page 15] expenses of $3,341.14 is excessive because of their representation that air travel expenses were only $1,741.32. Additionally, defendant asserts that plaintiffs, expenses of almost $2,000 in long distance telephone calls, Federal Express charges, and other communications charges are excessive given the proximity of plaintiffs and their counsel. Defendant surmises that much of this communication was likely between plaintiffs' counsel and intervenors' counsel. Plaintiffs respond that the additional $1,756.15 in travel expenses was incurred by their expert witness, whose deposition defendant noticed in Washington, D.C., and that defendant's assertion that long distance telephone charges should be deleted is unsupported. Moreover, these telephone charges have already been discounted by 50%. We find no reason to further discount plaintiffs, claimed expenses.

Defendant also contends that intervenors impermissibly seek reimbursement for travel to the Washington, D.C. area on eight occasions. Intervenors respond that six of these occasions involve travel expenses for individual intervenors and their expert, who traveled to Washington, D.C. to be deposed by defendant. We agree that these expenses are recoverable. However, intervenors' response does not address the other two occasions, which charge travel expenses for intervenors, counsel, Christopher Hansen [begin page 16] ($427.62), and employee, Cassidy Sehgal ($537.87). Therefore, $724.1211 will be deducted from intervenors' costs. This results in an award of costs in the amount of $23,926.62 to plaintiffs and $15,213.61 to intervenors.

V.  Source of Funds

Defendant finally asserts that any recovery of costs should only come from the library system's non-programmatic funds, if and when these become available. Defendant's arrangement with its own counsel provides that counsel will be paid only out of surplus funds available when budgeted staffing positions are left vacant and any emergency appropriations from the Loudoun County Board of Supervisors specifically for this purpose. To date, one such appropriation of $18,000 has been made. Defendant argues that any award of attorneys fees and expenses should come only from these same sources, if and when they become available. Because the library system's programmatic needs are already underfunded, and because defendant has no capacity to raise revenue on its own, asserts that it would be severely handicapped by any requirement to pay attorneys' fees or expenses.

We decline to limit our award of attorneys, fees and costs to [begin page 17] the requested sources because doing so would essentially make our award a fiction. Moreover, we believe our extensive reductions to the attorneys' fees requested has already adequately recognized the nature of defendant's finances.


For these reasons, we conclude that $69,881.00 represents a reasonable award of attorneys' fees and costs to plaintiffs and $37,037.25 represents a reasonable award of attorneys' fees and costs to intervenors in this action. Therefore, plaintiffs, Petition for Attorneys' Fees and Costs will be GRANTED IN PART and DENIED IN PART and intervenors' Motion for Attorneys' Fees and Costs will be GRANTED IN PART and DENIED IN PART. An appropriate order will issue.

The clerk is directed to forward a copy of this Memorandum Opinion to counsel of record.

Entered this 1st day of April, 1999.


Leonie M. Brinkema
United States District Judge

Alexandria, Virginia


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