Lilly v. City of N.Y.
934 F.3d 222
2d Cir.2019Background
- Kayheem Lilly sued the City of New York and police officers under 42 U.S.C. § 1983 for excessive force and related claims; Lilly accepted a Rule 68 offer for $10,001 plus "reasonable attorneys' fees, expenses, and costs to the date of this offer."
- Lilly was represented by solo practitioner Jeffrey Rothman, who sought $34,527 in fees (including time expended before the offer and time spent preparing the fee application and post-offer work).
- The parties could not agree on the fee amount; Lilly moved under 42 U.S.C. § 1988 for attorney's fees and the district court awarded reduced fees of $28,128.99.
- The district court reduced Rothman’s requested hourly rates ($600–$625) to $450 because the case was relatively simple, and applied a 10% across-the-board reduction to account for clerical tasks billed at attorney rates.
- The district court nevertheless awarded "fees on fees"—compensation for Rothman’s time preparing the fee application—despite the Rule 68 offer’s express cut-off for recoverable fees at the offer date.
- The Second Circuit affirmed the rate reduction and clerical reduction but reversed the award of post-offer fees, holding the Rule 68 contract unambiguously barred fees incurred after the offer date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred by reducing Rothman's hourly rate due to the case's simplicity | Perdue prohibits using case simplicity to reduce hourly rate; Arbor Hill was overruled | Case simplicity is a valid case-specific factor in setting a reasonable hourly rate | Affirmed: district court properly considered complexity and set $450/hr under Arbor Hill and Supreme Court precedent |
| Whether clerical tasks billed at attorney rate must be discounted (or hours reduced) | Solo practitioner should receive full hourly rate for time he reasonably spent on clerical tasks | Clerical/administrative tasks should not be billed at attorney rates; reduction appropriate | Affirmed: district court permissibly applied 10% reduction to account for clerical work (Jenkins principle) |
| Whether fees for preparing the fee application (fees-on-fees) are recoverable when Rule 68 offer limits fees to those "to the date of [the] offer" | Such language should be read to include necessary work to obtain underlying fees; contra proferentem or public policy should allow fees-on-fees | The offer unambiguously cut off fees after the offer date; post-offer fees are excluded | Reversed: district court erred; the Rule 68 acceptance is a contract and unambiguous cutoff bars post-offer fees including fees-on-fees |
| Whether Perdue barred using Johnson/Arbor Hill factors to set reasonable hourly rate | Perdue eliminated consideration of case-specific simplicity in rate-setting | Perdue does not overrule Arbor Hill; Johnson factors remain tools for determining reasonable rate/hours | Held: Perdue does not prohibit considering case complexity when setting reasonable hourly rate; Arbor Hill remains good law |
Key Cases Cited
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (adopts lodestar approach: reasonable hourly rate × reasonable hours; Johnson factors help set rate/hours)
- Blum v. Stenson, 465 U.S. 886 (1984) (lodestar is presumptively reasonable; certain Johnson factors are subsumed in lodestar)
- Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986) (clarifies that novelty/complexity are reflected in lodestar and generally not a basis for enhancement)
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) (lodestar presumptive; rare circumstances permit adjustment; does not prohibit using case-specific factors to set reasonable rate)
- Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182 (2d Cir. 2008) (instructs courts to set a reasonable hourly rate by considering case-specific variables—what a paying client would pay)
- Missouri v. Jenkins by Agyei, 491 U.S. 274 (1989) (clerical work should not be billed at paralegal/attorney rates; market rates for nonlawyer work differ)
- Evans v. Jeff D., 475 U.S. 717 (1986) (parties may waive statutory attorneys' fees in settlement; fee rights are negotiable and can be cut off by agreement)