13-1408 (L) Husain v. Springer 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 29 th 2 day of August, two thousand fourteen. 3 4 Present: 5 D ENNIS J ACOBS , 6 G UIDO C ALABRESI , 7 D EBRA A NN L IVINGSTON , 8 Circuit Judges. 9

__________________________________________ 10 11 S ARAH H USAIN , N EIL S CHULDINER , W ILLIAM 12 W HARTON , D EVON B LINTH , C OLLEEN M C GRAHAM , 13 JEFF M C GRAHAM , K ATHLEEN M C HUGH , M ARC J. 14 P ESEAU , 15 16 Plaintiffs-Appellants– 17 Cross-Appellees , 18 19 v. 13-1408-cv (Lead); 20 13-1686-cv (XAP) 21 22 M ARLENE S PRINGER , 23 24 Defendant-Appellee– 25 Cross-Appellant

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__________________________________________ 27 28

1R ONALD B RIAN M C G UIRE , New York, NY, for 1 Plaintiffs-Appellants–Cross-Appellees

. 2 3 W ON S. S HIN (Barbara D. Underwood, Steven C. Wu, 4 on the brief ), for Eric T. Schneiderman, Attorney 5 General of the State of New York, New York, NY,for 6 Defendant-Appellee–Cross-Appellant

. 7 8 Appeal from a judgment of the United States Di strict Court for the Eastern District of New 9 York (Gershon, J. ). 10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 11 DECREED that the judgment of the district court is VACATED and REMANDED for further 12 proceedings. 13 Appellants, eight former students at the Collegeof Staten Island (“CSI”), filed suit against 14 Appellee Marlene Springer (“Appellee”), the then-Pre sident of CSI, as well as twenty-five other 15 defendants in response to Appellee’s decision to void a student government election following a 16 school newspaper’s endorsement of a slate of candidates running inthat election, which Appellee 17 alleged had upset the parity of campaign expenditures. After years of litigation, including numerous 18 motions, extensive briefing, multiple appeals, and a petition seeking certiorari in the United States 19 Supreme Court, Appellants secured $9 in nomin al damages from Appellee, who was the sole 20 remaining defendant. As the prevailing party, Appellants sought fees and costs totaling 21 $832,409.32, which the district court reduced to $233,239.20. Appellants challenge that reduction, 22 and Appellee challenges the district court’s decision to award any fees at all. For the reasons stated 23 below, we hold that the district court did not abuse its discretion in concluding that Appellants were 24 entitled to some fees, but vacate the judgment and remand for a reduction of the fee award consistent 25 with this order. The award of any fees, of course, remains subject to the district court’s discretion. 26

2Section 1988 of Title 42 provides that, in any action brought pursuant to 42 U.S.C. § 1983, 1 “the [district] court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee 2 as part of the costs.” To be a “prevailing party,” a party must obtain a “material alteration of the 3 legal relationship of the parties,” including judgmen t on the merits, which then“permit[s] an award 4 of attorney’s fees.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res. , 5 532 U.S. 598, 604 (2001). However, while prevailing parties are eligible for fees under § 1988, they 6 are not invariably entitled to them. See Farrar v. Hobby , 506 U.S. 103, 115 (1992). This is because 7 it is not the technical fact of prevailing party status, but the “degree of success obtained” that 8 determines a party’s entitlement to a fee award and, relatedly, the reasonableness of the amount of 9 that award. Id. at 114 (internal quotation marks omitted). C iting this principle, the Supreme Court 10
in Farrar v. Hobby held that the award of nominal dama ges in a civil rights action for damages 11 would often support the denial of a fee award, gi ven that nominal damages in such a case would 12 indicate “the plaintiff’s failure to prove actual, compensable injury.” Id. at 115. This Court has read 13
Farrar to call for the denial of attorneys’ fees “‘where recovery of private damages is the purpose 14 of civil rights litigation,’” such that an award of nominal damages de monstrates a lack of measurable 15

success. LeBlanc-Sternberg v. Fletcher , 143 F.3d 748, 758 (2d Cir. 1998) (quoting Farrar , 506 U.S. 16 at 114) (emphasis in LeBlanc-Sternberg ) (alterations omitted); see Pino v. Locascio , 101 F.3d 235, 17 238 (2d Cir. 1996) (denying fees where plainti ff sought $21 million in damages but received only 18 $1). By contrast, “where both monetary and e quitable relief have been pursued,” the award of 19 “significant” injunctive relief may provide a measurable basis of success supporting the award of 20 attorneys’ fees. LeBlanc-Sternberg , 143 F.3d at 758; see id. at 759 (vacating district court’s denial 21 of fees where plaintiff sought and received injunc tive relief, despite seeking and failing to receive 22 compensatory and punitive damages). 23
3Here, Appellants were uncontestedly the prevailing parties due to the entry of a nominal 1 damages award in their favor. Appellee contends , however, that the district court abused its 2 discretion in awarding fees to Appellants becau se they received only nominal damages. We 3 disagree. As an initial matter, Appellants sought compensatory damages in only a nominal amount; 4 their receipt of only nominal damages, therefore, does not suggest a lack of success or failure to 5 prove injury. To the contrary, this Court f ound that Appellee’s conduct chilled Appellants’ speech. 6 Husain v. Springer , 494 F.3d 108, 128 (2d Cir. 2007). Moreover, Appellants achieved a primary 7 goal of their suit: early in the litigation, Appellee agreed to repeal the offending student election 8 rules that provided the basis for her decision to void the election. While Appellee’s reversal was 9 voluntary, that factor alone does not distinguish this case from LeBlanc-Sternberg . While the 10 “prevailing party” inquiry is a technical one, our i nquiry into the entitlement to fees looks to the 11 “practical effect” of the litigation. Carroll v. Blinken , 105 F.3d 79, 82 (2d Cir. 1997) (citing Farrar , 12 506 U.S. at 112). The “practical effect” of Appellee’s reversal was more than nominal – it was an 13 outcome Appellants sought – and provides support for some fee award. Moreover, the reversal 14 would not likely have occurred but for this litigation, given that Appellee repealed the rules only 15 after a magistrate judge issued a report and recommendation advising the district court to enjoin 16 Appellee’s conduct. That the district court dismissed Appellants’ request for injunctive relief as 17 moot following Appellee’s reversal does not necessarily nullify Appellants’ entitlement to fees. As 18 such, we find that the district court did not abus e its discretion in holding that Appellants are entitled 19
to at least some fees under Farrar and its progeny. 20 Nevertheless, while the practical outcome of Appellants’ litigation may support their 21 entitlement to some fees, it does not support the amount of fees awarded, which we conclude was 22 excessive. As an initial matter, the handling of Appellants’ case following Appellee’s voluntary 23
4policy reversal met with a significant lack of success, as judged by the gap between the relief 1 requested in Appellants’ complaint and the relief they actually obtained. 1 See Barfield v. N.Y.C. 2 Health & Hosps. Co. , 537 F.3d 132, 152 (2d Cir. 2008) (“Both the quantity and quality of relief 3 obtained, as compared to what the plaintiff sought to achieve as evidenced in [the] complaint, are 4 key factors in determining the degree of success achieved.” (citing Carroll , 105 F.3d at 81) (internal 5 quotation marks omitted)). Appellants failed to receive a single dollar of the $20,000 per plaintiff 6 that they sought in punitive damage s from the CSI and CUNY defendants. 2Moreover, Appellants 7 lost or abandoned every claim against twenty-five of the twenty-six defendants originally sued in 8 this case, ultimately securing a judgment only on a single count and only against Appellee. 9 Appellants failed on their claims against the student government defendants, as well as on their 10 claims concerning the Fall 1997 election and Open Meetings Law, all of which were wholly 11 separable from Appellants’ sole successful claim. Finally, the claims against many of the CSI and 12 CUNY defendants turned on these defendants’ supervisory authority, a legal issue unrelated to 13 Appellants’ claim against Appellee. 14 In addition, Appellants’ attorney’s claim of 2,741.4 hours of attorney time was extravagant. 15 First, as noted by this Court, Appellants’ litigation established no new principle of law. Husain , 494 16 F.3d at 131. To the contrary, their litigation concerned a “straightforward” application of existing 17 law, calling into question their attorney’s enormous expenditure of time. See DiFilippo v. Morizio , 18

1 Notably, Appellee’s voluntary policy reversal o ccurred in March 2000 – over nine years prior to the entry of judgment in this case.

2The declaration of Appellants’ counsel in support of the fee motion avers that these damages were asserted only to preserve standing “in case the claims for injunctive relief became moot” (as occurred) so that the lawsuit could still set “legal precedents.” We are skeptical as to whether much if any fee award is merited for the work of eliciting an opinion to bless a result already achieved.
5759 F.2d 231, 235-36 (2d Cir. 1985) (vacating fee award and remanding for reduction where hours 1 claimed were “facially excessive” in comparison to “the straightforward and non-novel nature of 2 the [plaintiff’s] case”). Further, Appellants’ attorney submitted a claim for 318.3 hours expended 3 on the fee application alone, which he purportedl y reduced from over 400 hours, an amount of time 4 that strains credulity. See DeFilippo , 759 F.2d at 236 (finding, albeit in more brief action, that “42 5 hours . . . spent on the fee motion . . . [was] utterly excessive”). The attorney also sought fees for 6 hours spent on motions he did not file and for repeatedly reviewing opinions and filings; he sought 7 numerous adjournments; and made filings that were “lengthy and not always on point.” Husain v. 8 Springer , No. 97 Civ. 2982 (NG) (CLP), 2013 WL 1122718, at *9 (E.D.N.Y. Mar. 15, 2013). The 9 attorney’s time entries also lacked sufficient detail to permit a reasoned review, and the 772.7 hours 10 of claimed paralegal time included time for noncompensable menial tasks, further supporting a steep 11
reduction. 12 Of course, “[t]here is no precise rule orformula for making [fee] determinations,” Hensley 13 v. Eckerhart , 461 U.S. 424, 436 (1983), and we usually give “wide latitude to district courts to 14 assess the propriety of attorneys’ fees and costs requests,” CARCO Grp. v. Maconachy , 718 F.3d 15 72, 85 (2d Cir. 2013) (per curiam). Nevertheless, while “[d]etermining a ‘reasonable attorney’s fee’ 16 is a matter that is committed to the sound discretion of a trial judge, . . . [that] discretion is not 17
unlimited.” Perdue v. Kenny A. , 559 U.S. 542, 558 (2010). We acknow ledge the district court’s 18 careful analysis of the fees due in this action. However, in lightof the foregoing discussion, and in 19 light of the factors not discussed in the district court’s opinion – including the failure of the Fall 20 1997 election and Open Meetings Law claims, as well as the separability of the claims against many 21 of the CSI and CUNY defendant s – we conclude that the $216,528.00 in fees awarded “cannot be 22 located within the range of permissible decisions.” See McDaniel v. Cnty. of Schenectady , 595 F.3d 23

6411, 416 (2d Cir. 2010) (internal quotation marks omitte d). While Appellants’ attorney’s exorbitant 1 request for $832,409.67 in fees may have distorted the district court’s analysis, the fact that all of 2 Appellants’ claims failed against twenty-five of twenty-six defendants, that seven of their eight 3 claims failed against the sole remaining defendant, and that they failed to obtain nearly all of their 4 requested relief compels us to conclude that the district court’s imposed reductions for lack of 5 success and excessive billing were inadequate to re duce the fee awarded in this case to a reasonable 6 figure, which may well be significantly lower than th at originally awarded by the district court. 7 For the foregoing reasons, we VACATE the judgment and REMAND for a recalculation 8
of the fee award consistent with this order. A ny appeal following this remand shall return to this 9 panel. 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14

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