Bishop v. Smith
112 F. Supp. 3d 1231
N.D. Okla.2015Background
- Plaintiffs Mary Bishop and Sharon Baldwin (also Susan Barton and Gay Phillips in a related claim) challenged Oklahoma constitutional provisions banning same-sex marriage and non-recognition of out-of-state same-sex marriages; district court struck the definitional provision; Barton/Phillips lacked standing on non-recognition.
- Defendant Sally Howe Smith (represented in part by Alliance Defending Freedom) appealed to the Tenth Circuit; Plaintiffs cross‑appealed the standing issue; Tenth Circuit affirmed the win for Bishop/Baldwin and held Barton/Phillips not prevailing; Plaintiffs sought fees on appeal.
- Plaintiffs’ appellate team included Holladay and Warner (pro bono at trial; billed for appeal) and Professor Joseph Thai; Plaintiffs requested $368,827.50 in fees and $1,942.37 in costs for appeal-related work.
- Defendant objected to large portions of the requested fees as non‑compensable, excessive or duplicative, and disputed Thai’s $400/hour rate; key disputed categories included work on the cross-appeal, post-argument research, the Supreme Court certiorari brief, amicus‑related activities, travel/time for oral argument, and duplication.
- The Tenth Circuit held Bishop/Baldwin were prevailing parties and remanded to the district court to determine reasonable appeal-related fees under 42 U.S.C. § 1988; the district court applied the lodestar method and exercised equitable discretion to exclude certain categories of time.
- The court awarded a reduced fee: $296,847.50 in attorneys’ fees plus $1,895.27 in costs (total $298,742.77), excluding attorney time for the Supreme Court certiorari brief, certain amicus‑related pre‑filing work, and limited reductions for over-review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compensability of time on cross‑appeal portions of combined briefs | Timekeepers excluded cross‑appeal hours; combined brief drafting is required by rule and majority of pages related to prevailing issue | Entries referencing both “principal” and “response” indicate cross‑appeal work that must be excluded or reduced | Court refused broad exclusions; made only the admitted $55 deduction for one cross‑appeal entry and otherwise denied reductions for combined‑brief entries |
| Post‑argument research and monitoring of new decisions (before decision) | Reasonable to review intervening district and appellate decisions and file notices of supplemental authority | Such post‑argument research is unnecessary after oral argument and should be excluded | Court held post‑argument work is compensable and denied reductions for those entries |
| Time spent drafting/joining Supreme Court certiorari brief (unsuccessful) | Joining certiorari was reasonable to seek national resolution; plaintiffs acted prudently | Unsuccessful certiorari effort is unrelated to prevailing result and fees for it should be excluded | Court exercised discretion to exclude all hours and related costs for the certiorari brief as a failed attempt at greater relief |
| Time in connection with supporting amicus briefs | Reviewing and responding to amici is part of appellate advocacy and compensable; only certain pre‑filing tasks may be noncompensable | All time in connection with soliciting/supervising amicus briefs is noncompensable and should be excluded | Court adopted a middle rule: exclude non‑compensable pre‑filing solicitation/coordination/drafting work but allow compensable post‑filing review; excluded $17,555 in amicus‑related pre‑filing time |
| Travel and attendance at oral argument(s) and related travel time | Multiple attorneys’ attendance and in‑person observation of related oral argument (Kitchen) and preparation/travel time were reasonable and contributed to advocacy | Travel and multiple counsel attendance were excessive; travel time should be substantially reduced or excluded | Court found attendance and travel reasonable for the complexity; denied reductions for in‑person Kitchen attendance and counsel present at argument; denied reduction of travel hours |
| Duplication/billing judgment and Thai’s role and rate | Thai’s appellate expertise justified inclusion and $400/hr market rate; team collaboration was reasonable | Thai’s involvement was unnecessary/duplicative; overall hours excessive; Thai’s $400/hr exceeds market | Court found Thai’s participation reasonable and $400/hour supported; made modest reductions for excessive review by Holladay and Warner (total $6,325) but declined broader duplication cuts |
Key Cases Cited
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar method; exclude hours that are excessive, redundant, or unnecessary)
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) (lodestar presumptively reasonable; enhancements rare)
- Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983) (fees against governmental units calculated same as private parties)
- Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995) (district court must calculate lodestar for § 1988 fees)
- Glassroth v. Moore, 347 F.3d 916 (11th Cir. 2003) (court disallowed fee recovery for party counsel’s work in soliciting and preparing supporting amicus briefs)
- Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (Posner skepticism about party‑solicited amici; limits on using amici to evade brief limits)
- Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991) (post‑argument and unsuccessful skirmishes may be compensable where overall victory obtained)
- DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421 (5th Cir. 2003) (time on unsuccessful motions may be recoverable when part of overall success)