Islamic Center of Mississippi, Inc. v. City of Starkville, Mississippi

RUBIN, Before KING GARWOOD, Judges. Circuit RUBIN, Judge: ALVIN B. Circuit civil-rights prevailing plaintiff in a the district court case contends that abused when, computing the lode- its discretion the award of star for fees under attorneys’ it set the hour- 42 U.S.C. § they ly rates at less than the amounts clients, usually charge other and refused to calculated on this enhance the lodestar ba- either for re- sis judgment ceipt payment. We affirm the part, the district court did but because adequately explain the reasons for its actions, and remand we reverse the case for further consideration. I. Inc., Mississippi,

The Islamic Center students attend- an association of Muslim University ing Mississippi Stark- State ville, receiving Mississippi, substantially higher sued the Starkville per zoning compel exception successful; it to issue a hour” when he would not have the Islamic Center to use a permitting anticipated taken this case had he not building mosque. as a The Islamic Center won; enhancement of his rate if he City’s appli- that the denial of its contended and most other law firms in the area would its under the First cation violated accept if such cases success were to be Fourteenth Amendments to the Consti- recognized only by the award of the cus- associate, Colom and his tution. Wilbur 0. tomary hourly emphasize rate. To fi- Harmon, gradu- a recent Dennis law school point, nal Colom submitted two additional ate, represented Islamic Center without affidavits from attorneys asserting local any promise payment. If the suit were “[wjithout fees, enhancement of ... successful, Colom and Harmon would seek the local provide market would not attorney’s pursuant an award of fees to competent represent counsel plaintiffs to failed, they If U.S.C. the suit § contingency on a fee basis.” would receive no fee. support To his delay claim for a enhance- discovery After considerable and other ment, Colom stated in his affidavit that he pretrial proceedings, the Islamic Center charges regular per clients interest 18% trial, hearing lost the bench a six-hour in year delinquent accounts, for although the the federal district court for the Northern statutory rate of in Mississippi interest is Mississippi. District of It later obtained a per year. 8% appeals reversal in the court of and was contended that the amounts sought. awarded the relief it had It then sought as paid, fees should not be but requested that the district court award offered no evidentiary contesting materials $118,342.55 attorney’s as the fees and costs by the factual affidavits submitted Colom. $39,574.50 party: due the for the fees, It also contended that whatever the attorneys, work of their based on a rate of the amount should not increased for be per per hour for Colom and hour $120 $90 delay. Harmon; $78,269.00 enhancement, as contingent based nature of Colom’s II. compensation receiving and his in $2,499.15 incurred, payment; and for costs Reviewing applica- the Islamic Center’s other than court costs taxable under 28 attorney’s tion for an award of fees accord- U.S.C. ing to the 12 factors in listed Johnson v. Inc.,1 Georgia Highway Express, the dis- To substantiate the reasonableness trict court awarded Colom and Harmon hourly requested, rate he had which he $29,268.75 fees, $2,499.15 charged fee-pay- attested the rate he was expenses. party Neither contests the clients, ing Colom submitted five affidavits expenses. award of lawyers practicing other the North- Mississippi stating ern District of that the The court determined the amount of at customary charge complex civil-rights torney’s calculating first the “lode litigation ranged in federal court from $65 multiplying the of hours star”: number per hour. $150 hourly each had his worked rate. The court found that should Colom support To his claim that the lodestar work, reimbursed for 261 hours of rath repre- should be increased because he had claimed, Har er than the 272x/3 hours contingent sented the Islamic Center on a hours, mon for 48% rather than the 6374 basis, supplemental Colom filed a affidavit party hours claimed. Neither contests this attesting: since he had had a suffi- finding. The court then set Colom’s pay cient of clients an hour- number able $65, time; finding rate at and Harmon’s at ly $100 rate to consume all of his he cus accepted contingency personal-injury and that these “reflect[ed] civil-rights expectation tomary commu- cases “with an fee for similar work (5th Cir.1974). F.2d 714 any [civil-rights] reasonable fee

nity proceeding, and is a fair and action or court, discretion, compensate counsel for ... its allow adequately will prevailing party, other than the Unit- fig- efforts.” From these their skill and States, ed a reasonable fee as ures, calculated the lodestar as the court part of the costs. follows: Attorney Wilbur 0. Colom Dennis Harmon Compensable Hours 48.75 Allowable $100.00 Rate 65.00 Lodestar Fee $26,100.00 3,168.75 ant to this court’s award When the district court statute, only for an abuse of discre- we review the district awards a fee pursu- review, limited, $29,268.75 tion.2 Such a however The court refused to enhance this possible only if “pro- the district court case was nei- amount. It found that the explanation a concise but clear of its vide^] difficult,” was, and there ther “novel award,” [n]or reasons for the fee for “mere con- therefore, recompense counsel no need to clusory regarding the rea- statements]” taking any Al- “unusual risk[s].” sonableness of a fee are insufficient to though “very to be a able it found Colom appellate withstand review.3 litigator” experienced civil IV. “expertise in the constitutional are- whose respect the na has commanded Colom contends that the district th[e] occasions,” many erroneously court on the court held court calculated the lodestar required hourly been ade- when it fixed his and his associate’s that the “skill ha[d] hour, original per respective rates at quately $100 $65 considered” in the lodestar ly. While our declined to en- review the total award of computation. The court predicated fees precept is on the hance the on counsel’s contin- award based may that the only award be overturned if gent-fee arrangement, stating that there discretion, the district court its abused in were “no unusual circumstances district court’s determination of a “reason express finding case.” The court made no hourly finding able rate” is a of fact sub concerning such an increase was whether is, sidiary to the ultimate award and there competent necessary to induce counsel to fore, clearly-errone reviewable under the future, accept in the nor did such eases ous rubric.4 address the lodestar should be whether en- upon payment hanced the in based Stenson,5 Supreme Blum v. the Court fees for services that Colom and Har- instructed district courts to calculate attor- begun in mon had to render ney’s “according fees under section 1988 to prevailing

the market rates the relevant community, regardless plaintiff of whether III. represented by private nonprofit is coun- 6 provides, 42 U.S.C. 1988 relevant sel.” To “inform and assist” the district part: ascertaining hourly court in the rate at Eckerhart, 424, 436-37, Houston, 576, Hensley Leroy City 103 4. See v. 831 F.2d 584 1933, 1941, — (1983); (5th -, 76 Cir.1987), S.Ct. see Geor- cert. 108 gia Highway Express, F.2d at 717. 488 1735, (1988); 100 L.Ed.2d 199 Cobb v. Miller, 1227, (5th Cir.1987); 818 F.2d 437, 15, Hensley, 461 U.S. at 439 & n. 103 S.Ct. Brantley, Copper Liquor, 1941, Nisby 1942-43 & n. see v. Commis- 1094; Georgia Highway Express, F.2d at Court, (5th Cir.1986); sioners 798 F.2d Black Grievance Comm. v. Philadel Party, Riddell v. National Democratic 712 F.2d Co., (3rd Cir.1986), phia Elec. (5th Cir.1983); Copper Liquor, Inc. v. grounds, vacated and remanded on other Co., (5th Adolph Coors Cir. U.S. -, (1987). 97 L.Ed.2d 1982), remanded in 701 F.2d 542 Cir. 1983) (en banc); Copper Liquor, Adolph Inc. v. Co., Cir.1980), Coors 5. 465 U.S. L.Ed.2d grounds, part on other 684 F.2d 1087 modified (1982) (en (1983) banc); and 701 F.2d 542 Davis Fletcher, (5th Cir.1979); Id. at 892-94 & nn. 6 & 104 S.Ct. at Surles, Brantley v. cf. (footnote omitted). 1546 & n. 6 & 9 Cir.1986). billing court the in the the district increase remunerated attorneys are attorneys private practice fee required rates of who market, the Court prevailing pursue interests “inten- noneconomic applicants chargpng] poorer tionally their clients re- ad- satisfactory evidence—in produce rates,”10 adjustment since this duced affidavits— own to the dition primary goal announced would further with rates are in line requested that standardizing among different Blum: community for in the those public parts private of the bar reasonably lawyers of similar services attorney’s fees are at which reputa- rate skill, experience, comparable opposing party, If on the way is awarded.11 in this A rate determined tion. hand, urges be based on reasonable....7 other to be normally deemed prevailing attorney’s a rate than the lower however, address, cir- did not Blum though that amount is charge, usual even may fix a a court under which cumstances community-accepted range, that within rate when requested than other rate some evidence should at least adduce party attor- only requested rate that, under the cir- support position its “in line with” rate, is also but ney’s cumstances, is not rea- requested community for sim- “prevailing sonable. who are reason- by lawyers” services ilar ably comparable.8 If, range of market rates from the customary attorney’s When parties,12 the submitted the invariably the attor at which is the rate billing rate hourly different court chooses an rate computed be ney requests the lodestar rate, customary billing the range prevailing the is rate within that doing so.13 its reasons must articulate this rates, should consider the court market provided reasons simply must be “[W]e hourly rate to be fixing the when rate to review to be able figures selected the contested, is not 14 When that allowed.9 award.” the the reasonable. When prima it is facie case, court nei the district In exceeds compensation requested rate of the record nor any evidence in ther cited charge but remains within attorney’s usual support its re any other reasons to gave community, the range in the customary hourly and Harmon’s Colom’s duction of consider whether court should district rates conceded- although so, billing rates these doing is requested rate reasonable. banc); (1988) (en Black 11, part, F.2d 1516 857 n. see S.Ct. at 1547 at 895 n. 104 7. Id. Comm., Neely v. 802 F.2d at Grievance & Mental Retardation Wheeler v. Mental Health 547, (5th Grenada, Cir. Cir.), F.2d 550-51 1063, (5th City 624 Auth., de cert. F.2d 1073 752 1980). 78, 824, nied, 64 88 S.Ct. L.Ed.2d 474 U.S. 106 (1985). 524; Mayson v. Lightfoot, 826 9. See 1556, (11th Cir.1987) Pierce, F.2d 1563 806 Kennickell, 836 F.2d Thompson v. Compare J., (Clark, dissenting). 616, (D.C.Cir.1988); Laffey Air v. Northwest 620 denied, 4, (D.C.Cir.1984), lines, cert. 746 F.2d 25 Mountains, at 857 F.2d Cumberland 10. Save Our 87 L.Ed.2d Group, Int. Res. Public see Student (1985), part, Save Our Cumberland overruled 1449, 1450. at 842 F.2d Hodel, 857 F.2d 1518-24 Inc. v. Mountains banc); (en Shakopee (D.C.Cir.1988) Mdewakan — U.S. -, Bergeron, v. Lake, See Blanchard Community Prior ton Sioux 939, 944-45, 103 L.Ed.2d Cir.1985), (8th cert. F.2d 1159-61 Norman, 1300-01. Mountains, See (1986) Cumberland Save Our with Group Public Int. Res. Student Comm., F.2d 652- (3rd Black Grievance Lab., 13. See F.2d 1443-50 & T Bell v. AT Auth., 1988); Housing F.2d Norman Cir. Cir.1988); (11th Lightfoot v. Ass’n., Racing Cir.1987); Downs 14. Sims v. Walker, Jefferson Cir.1985); Jordan v. Hodel, see Mountains, Inc. v. Cumberland Save Our J„ County, (Wald, (D.C.Cir.1987) con Multnomah Cir.1987). dissenting part), curring modified ly squarely fell range within the of prevail- enhance the lodestar to account for the fact ing market rates. For the court to state accepted that he the case on a no-win no- that the reduced rate was “fair and pay reason- basis. The propriety of contingency “adequately able” compensate^] coun- enhancements under section gov 1988 is sel” does why not reveal it reduced what erned the Supreme Court’s decision in appears to be a reasonable rate or how it Pennsylvania v. Valley Delaware Citizens’ actually figures. chose the reduced (Delaware Such Council Valley Citizens’ Council conclusory statements do provide not ),18 a II in which the Court refused to clear and explanation concise of the court’s enhance a lodestar despite 100% the fact decision to reduce an billing rate that counsel had been retained on a contin litigants when both and the court acknowl- gency basis. edge rate is within Writing for plurality, White, Justice market While recognize sym- rate. we joined by the Chief Justice and Justices pathize imposed with burdens by fee Scalia, Powell and concluded that “the risk disputes busy courts, trial exposi- their of losing a lawsuit” not “an inde- conclusion, tion of basis for their even pendent increasing basis for the amount of by oral bench, statements from the is indis- an otherwise reasonable fee ... under the pensable performance to our of our duties. fee-shifting usual statutes.”19 At The district court’s reduction in Colom’s opinion, close of its however, plurality hourly Harmon’s billing rate particu- that, noted were the permit Court to contin- larly comprehend difficult to when viewed gency enhancements, it should limit them conjunction with the court’s denial “exceptional cases” in which “there contingency enhancement.15 An record, evidence in the [is] and the trial who accepts a case in payment is to find[s], court ... so that without risk-en- only be made if victory is achieved would plaintiff hancement would have faced sub- increase, decrease, his normal stantial in finding difficulties counsel in the in order compensate to for the or local other relevant market.”20 risk might that he lose the case and receive separate concurrence, In a Justice O’Con- payment no at all.16 The district court’s nor found that while “the circumstances of decision, therefore, requires explanation.17 this case” justify did not a contingency Accordingly, we remand the case to the enhancement, “Congress did not intend to district court so may that it set Colom’s foreclose consideration of contingency in and hourly rates, Harmon’s articulate its setting a reasonable fee under fee-shifting so, and, reasons doing if it not chooses provisions such as ... U.S.C. 1988.” to use billing rates, their usual why state In contrast to dissenters, the four who deviates from them. would increase an award of compensate to for “the fact contingen-

V. itself,22 cy” Justice O’Connor would en- Colom contends that the district court a hance lodestar for only contingency if the abused its discretion when it to applicant refused could (1) establish that “without 15. See Part V. 19. II, Valley Delaware infra Council 483 U.S. Citizens' 725-26,107 J., (White, at plurality S.Ct. at 3086-87 16. See Student Public Group, Int. Res. opinion). Atlanta, at Schneider v. (5th Cir.1980), overruled other 729-31, 20. at (White, J., Id. S.Ct. at 3088-89 grounds, Slidell, Bennett v. 735 F.2d 861 (footnote plurality opinion) omitted). Cir.1984) (en banc), cert. (1985); 105 S.Ct. Knighton Watkins, J., Id. at (O'Connor, Cir.1980). S.Ct. at concurring part in concurring judg- and in the Walker, See Hart ment). Cir.1983). (Blackmun, 18. J., at Id. at 107 S.Ct. U.S. 97 L.Ed.2d 585 dissenting). significant in party remedies that redound for risk adjustment public as well.28 benefits in difficulties substantial have faced ‘would in the local [competent] counsel finding to the several affidavits Colom submitted ” (2) the mar- other relevant establish, market/ as Justice O’Con- district court contin- for ... “compensation ket rate of opinion requires, the Islamic nor’s was different fee cases a class” gent as diffi- have faced substantial Center would certain, payment was in which from cases retaining competent counsel culty or lose.23 win provided not a if counsel were local market enhancement, and that contin- contingency plural- concurred Justice O’Connor compensated dif- usually gency cases are grounds, and opinion on narrowest ity noncontingency cases. ferently from a only to which is view position her affidavit, Colom his own declared: Court, perhaps even of the majority anticipated an enhancement Had not we Court, Every could subscribe. the whole fee, have under- our we would not own, con- circuit, including our has case, any at- nor other taken the would since contingency enhancements sidered practice.... torney with an active [T]his has, II Council Valley Citizens’ Delaware most others in this firm and area[ ] therefore, accepted Justice O’Connor’s on a contin- accept such cases would not pro- the authoritative “guidelines”24 as gency basis enhancement] [without contingency en- a of when nouncement25 largely undefended. go civil would under section permissible hancement two other affidavits from Colom submitted contingency en- By permitting 1988.26 attesting: attorneys in the area limited circumstanc- under the hancements group or a class O’Connor, cases as a Contingency we al- by Justice es envisioned An differently this area. just are treated “accept apparently attorneys to low expect winners,”27 handling such can cases awaiting sure without causes three times fee of two or declaratory to receive a pursue injunctive and and to Lawyers regular hourly rate. obtaining their readily damages, as as [sic] relief unlikely accept in this area would be only harm remedies that redress higher claimant, cases unless such but upon the individual visited (O’Connor, 731-34, denied in L.Ed.2d cert. S.Ct. Id. judg concuring -, J., concuring part 102 L.Ed.2d 730-31, (citing ment) original) Kennickell, id. at (emphasis (1988); Friends Co., Blanch opinion)); F.2d Kodak 834 v. Eastman (plurality the Earth 107 S.Ct. at 3089 cf. — at -, ard, City S.Ct. at (2d Cir.1987); Corp., U.S. 109 Chem. Blum v. Witco 298 of 561, Rivera, 580, U.S. 477 106 Cir.1987); v. S.Ct. 367, (3rd Riverside & n. 379-80 11 829 F.2d J., 2697, (1986) (Brennan, 2686, 466 91 L.Ed.2d Transp. Highway v. Missouri Catlett 6, (citing S.Rep., plurality opinion) at Cir.1987), U.S.Code 1260, (8th Comm'n, 1271 F.2d 828 1976, 5913); p. Hensley, Cong. — 1574, & Admin.News -, denied, S.Ct. 99 U.S. 108 cert. 4, 4. S.Ct. at n. at 430 103 1938 461 U.S. n. (1988); Systems v. Merit Crumbaker (Fed.Cir.1987); Bd., 761 827 F.2d Protection II, U.S. Council Valley Delaware 483 Citizens’ Mountains, 826 F.2d at 53 Save Cumberland Our J., (O’Connor, concur- 734, 3091 107 S.Ct. at 1380, McDaniel, 1404-05 Spell n. v. concurring judgment). ring part in — Cir.1987), (4th U.S. cert. & n. 23 -, in 98 L.Ed.2d S.Ct. 108 modified States, 430 U.S. See Marks v. United (4th grounds, 762 Cir. part on other (1977). 990, 993, 260 51 L.Ed.2d 1988). Kennickell, F.2d 330 v. 875 26. See McKenzie (5th Diamond, 1382 636 Jones v. F.2d Houston, (D.C.Cir.1989); City 831 F.2d at 583- of Jones, amended, U.S. Cir.1981), v. 453 Ledbetter Francisco, County City San v. Fadhl of 993 69 L.Ed.2d Cir.1988); Wells v. n. 1 Cir.1988); Bowen, (2d Spell F.2d — at -, Blanchard, 109 S.Ct. at U.S. See McDaniel, Cir. F.2d 573-79, Riverside, 945-46; City U.S. at lustice, 1988); Weisberg Dep’t. U.S. of of J., (Brennan, plurality opin at 2694-96 (D.C.Cir.1988); Public Student ion); S.Ct. at Hensley, at 444 n. by Group, lenkins Int. Res. J., concurring part (Brennan, in Missouri, 1945 n. AGYEI v. cert, -, dissenting part). Cir.), in granted in regular hourly than necessary was obtained. have competent been to induce very This rural market has attorneys few accept counsel to such cases the time the familiar with Federal Rights Litiga- Civil case was undertaken29 and contin- whether a substantial tion. Without enhancement gency as a cases class were treated differ- cases, contingency be, for there would as ently noncontingency cases. Neither matter, practical a no willing to of absence unusual circumstances nor accept types these of cases on a contin- disproportionate compensation of attor- gency basis.... Without enhancement neys in particular a case addresses the fees, of I feel confident that the local specific posed questions by Justice O’Con- legal provide market would not compe- nor. The district court failed to make the represent plaintiffs tent counsel to on a requisite findings of fact determinative of contingency fee in basis cases. such the fee enhancement issue. presented The of Starkville no affida- any vits contradicting or other evidence party seeking enhancement of proffered. response affidavits Colom In to attorney’s award of fees for risk of loss questions argument appeal, at oral how- bears proof the burden of under Justice ever, Colom admitted that “there has been two-part O’Connor's test.30 Whether the no award that I in know of the Northern three affidavits adduced satisfy Colom Mississippi] District of a [contingency] [of proof his of burden under that test is a in civil-rights enhancement” a case. of determination fact to made request The district court denied Colom’s district court in the first instance.31 Be enhancement, contingency stating: a cause the district court failed to use the objectives enacting One of the correct standard to evaluate the evi encourage to attorneys accept presented it, was dence to we remand the case civil cases. This section was not so may apply that it proper legal stan intended as a “windfall” attorneys dard and make necessary findings prevail in who these cases and seek to fact to determine whether to award Colom recoup litigation losses sustained in other enhancement. Indeed, ventures. it grossly would be highly unfair and prejudicial to the de- VI. require fendant to triple double customary attorney’s fee award sim- Colom also contends that he is entitled to ply sought because it to have a United have his beyond enhanced court decide the States issue this case. payment. lodestar because of There are no unusual circumstances Valley II, Delaware Citizens’ Council justify this case which an enhancement Supreme unanimously Court sanctioned of the fee. adjustment delayed lodestars for the The district findings court made no con- payment fees. The four dis- cerning the two issues Justice O’Connor senters declared emphatically “delay had found decisive Delaware Valley Cit- in payment integral aspect ... is an II. izens’ Council contingency payments compensa- for which

Justice tion is appropriate,”32 O’Connor’s plurality, instructions the Valley Delaware with Citizens’ II are the concurrence O’Connor, Counsel of Justice explicit: the district court must consider found “adjustments delay for a whether enhancement would typical with the fee-shifting []consistent Kennickell, 1272-73; 29. v. berg, Kennickell, See 875 F.2d at 332. McKenzie F.2d 836 621; 543, Lovely, at Conklin v. F.2d 834 553-54 II, Valley 30. Delaware Council 483 U.S. Citizens’ (6th Cir.1987); Corp., Witco Chem. F.2d at 829 J., 731-34, 107 (O’Connor, at con S.Ct. at 3090-91 379-82. curring part concurring judg in the ment). II, Valley 32. Delaware Council Citizens’ Houston, 584; City 750, 31. See F.2d 831 at Wood v. (Blackmun, J., at 107 S.Ct. at 3099 of dissent Sunn, 1205, (9th Cir.1988); (footnote omitted). 852 F.2d ing) 1213 Weis-

473 Despite request plurality observed that Colom’s and affida statute.”33 vit, when the district court failed consider whether it should enhance the lodestar paid a lawyers are not until favorable eventuates, delayed If finally payment. be based on did not decision later, regularly years ... courts have any delay think was enhancement warrant delay factor, by recognized either the ed, the court district should have stated its basing the award on current Because the district fail reasons. court’s attorney fee-paying [charged by the “explain ure to its reasons the attor adjusting fee on byor based clients] ney’s fee it awards” renders our review present historical rates to reflect its val- impossible,36we remand issue to the ue.34 district court. Accordingly, appeals courts have of If the district court upheld propriety delay of calculated

repeatedly using billing lodestar historical rates—the enhancements.35 rates in effect at the time the request his for a de accompanied Colom rendered his should services—the court stating an affidavit lay enhancement with compensate payment by in belated charges “regular monthly he his that creasing the lodestar the rate of infla per ... month for all accounts clients \lk% tion time provided from the services were (The days judg past 30 due. rate over judgment.37 to the of month.)” Post-judgment date per per year ments is 8% .67% interest should then awarded under 28 monthly for the then listed his bills Colom December, period following 1984 U.S.C. 1961 for the Islamic Center 1988, through April, indicating the amount of fee until actual determination its statement, number of payment.38 due in each due, past

months each had been and the bill If the was based on the lodestar of have accrued amount interest would rates, current court attorneys’ 25, through if had April 1988 Colom must a still address whether enhance charged the Islamic Center either rate ment to as is warranted. Were courts charged regular he client or sume, done,39 have Mississippi. of interest in as we others J., banc); 716, plurali- Angeles, (White, City Clark v. Los 803 F.2d Id. at at 33. 107 S.Ct. 3082 cf. 987, (9th Cir.1986); at ty opinion); 3091 v. Alberici at 107 S.Ct. Sisco J.S. id. (O’Connor, J., concurring part Co., (8th Cir.1984). and concur- F.2d n. 3 Constr. 733 59 ring judgment). 137; Copper Liquor, Nisby, F.2d see 36. 798 at J., (White, plurali Id. at 107 S.Ct. at 3081 583; Sims, at 624 778 F.2d F.2d at — U.S. —, Jenkins, ty opinion); v. see Missouri (1989); 402 104 L.Ed.2d cf. Ooteghem, at 774 F.2d 37. See Van Shaw, Library Congress 106 v. 478 250 92 L.Ed.2d Co., Adolph Copper Liquor, Inc. v. Coors 38. See See, e.g., Ooteghem Gray, 774 v. F.2d Van Cir.1983) (en banc); 701 F.2d 772; Cir.1985); Spell, F.2d at 1338 852 Northern, Inc., Burlington Employment In re 1453; Group, F.2d at Student Int. Res. Public Cir.1986), Litigation, Practices 810 F.2d 265-66; AGYEI, Coup at Jenkins Heckler, F.2d U.S. —, rt. ce (3rd Cir.1987); Comm., (1987); Grievance Black 523; Lightfoot, County, at Multnomah F.2d at 656. F.2d n. Black Grievance at 1262-63 Comm., 655-56; Hill, Daly Houston, Light F.2d at 39. See (4th Cir.1986); Dough Gaines v. F.2d Lamm, foot, Educ., erty County Bd. County, F.2d at 1262- Multnomah (11th Cir.1985); cf. Juveniles v. Institutionalized Comm., F.2d at Black n. Grievance Secretary Welfare, F.2d Pub. of Juveniles, 655-56; Institutionalized (3rd Cir.1985); Murray Weinberger, 741 F.2d 1432-33; 41; Murray, F.2d 923 & n. Lamm, (D.C.Cir.1984); Ramos v. College, University J.S. Al 706 F.2d at (10th Cir.1983); F.2d Johnson v. Co., Copper Ala., at 59 Constr. n. University berici College the Univ. of of Liquor, Copeland, 641 (11th Cir.1983); n. Copeland v. Mar shall, (D.C.Cir.1980) (en & n. 23. at 893 billing using current rates to It introducing calculate a seems to me that such a automatically presumption, lodestar obviates the need with its attendant burden enhancement, attorneys shifting requirement special and delay expla- for a whose nations, likely unduly changed they complicate will not since and have rendered fixing process formalize the fee not and ulti- may compensated services mately operate to reduce the district delay time-value in pay- for the lost of court’s discretion therefore, and enhance the role of We, that, upon also direct ment. appellate courts these matters. More- remand, the district court state its conclu- over, particular whether a attorney’s as- explain sions and its reasons for either sufficiently serted rate has been delay enhancement, denying granting or customary, goal reality, or more of a than a and, if it award Colom a does en- usually applied case, or to this kind of hancement, state how its enhancement re- like, may subject well become of compenses for the lost time-value Colom disputes, satellite distracting factual effort delayed payment.40 and attention from resolution of the ulti- question So, too, mate of reasonableness. VII. as to attorney’s whether the lower rates reasons, foregoing judgment For the for some justify exception, clients as it expenses affirmed insofar awards may exploration involve of whether the at- prevailing plaintiff, to the but the case is torney thereby really has pursuing been remanded to the district court for reconsid- interests, noneconomic whether these fa- hourly eration of Colom’s and Harmon’s sufficiently (or vored clients were poor per- rates, whether fees haps “deserving”) otherwise and the like. awarded to them should be enhanced be- All this runs counter to the thrust of the they represented cause the Islamic Center Supreme Court’s Hensley admonitions in contingency-fee on a and their receipt basis Eckerhart, S.Ct.1933, they of the amount had earned was de- 1941, (1983), 76 L.Ed.2d 40 layed. The court decide these issues request “[a] or, solely based on the record before it if should not major litiga- result a second necessary, evidentiary hearing. conduct an tion. ... case, In either the court shall articulate its reemphasize “We the district granting denying reasons for or each of court has in determining discretion Colom’s claims. appropri- amount of a fee award. This is AFFIRMED in REVERSED in ate in view of the superior district court’s part, and REMANDED. understanding litigation of the and the

desirability avoiding frequent appel- GARWOOD, Judge, partially Circuit late review of essentially what are factu- dissenting: al matters.” I except part concur in all “purpose IV of the The basic 1988 was to majority However, opinion. I am unable to make competent sure that counsel was agree holding particular with the that the available plaintiffs.” civil attorney’s “customary billing rate” is pre- U.S.-, Bergeron, Blanchard v. sumptively appropriate 939, 944, lodestar 103 L.Ed.2d 67 rate, any deviation from legislative which must be in history reflects that the fees “ specifically justified by some manner ‘adequate awarded should be to attract evidence explained by counsel, the district competent court produce but ... not ” though ultimately even the rate used is attorneys.’ windfalls to Id. 109 S.Ct. at well community’s within the 94-1011, 943 n. 6 (quoting S.Rep. p. No. range (1976), of market rates for similar Cong. services U.S.Code & Admin.News by lawyers reasonably comparable skill, 1976, p. 5913). to, Counsel is entitled experience, reputation. by, fee, agreed limited her and that is Juveniles, 40. See Institutionalized 923 & n. 41. con be of several factors

simply one of reasonable on the ultimate issue

sidered Blanchard, 944. The same

ness. attorney’s “custom

should true for the issue is at is the

ary rate.” What rate “calcu of the awarded

reasonableness prevailing market according to the

lated community,” Blum v. in the relevant 886, 104 1541, 1547,

Stenson, (1984),“for similar services

79 L.Ed.2d 891 skill, comparable lawyers reasonably n. 11.

experience, reputation.” Id. the relevant varia

This is an area where subject mat are numerous and the

bles so the in inherently imprecise

ter so of further administrative burdens

creased are unlike

refinement and formularization any significant en

ly justified by to be reliability. We precision

hancement in experience and ultimately rely on the

must the district judgment

eommonsense exercising and of

judges their discretion reviewing only appeals judges

the court of legal error. of discretion or

for abuse America,

UNITED STATES

Plaintiff-Appellee, BARKER,

Tommy Ward

Defendant-Appellant.

No. 89-1310

Summary Calendar. Appeals,

United States Court

Fifth Circuit. 3, 1989.

July Waco, (court-ap- Hurley, Tex. M.

John defendant-appellant. pointed),

Case Details

Case Name: Islamic Center of Mississippi, Inc. v. City of Starkville, Mississippi

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 30, 1989

Citation: 876 F.2d 465

Docket Number: 88-4530

Court Abbreviation: 5th Cir.