IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STANLEY SHEPHERD, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1442-D

VS. §

 §

DALLAS COUNTY, TEXAS, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff Stanley Shepherd (“Shepherd”) moves for an award of

attorney’s fees, costs, and expenses for successfully defending the

appeal taken in this case by defendant Dallas County, Texas

(“Dallas County”). See Shepherd v. Dallas County, 591 F.3d 445

(5th Cir. 2009). Dallas County opposes the fee request, arguing

that the requested hours are excessive. The court grants in part

and denies in part Shepherd’s supplemental motion. Dallas County

also objects to the magistrate judge’s order taxing against it

costs incurred by Shepherd (primarily the cost of a trial

transcript) on appeal. The court affirms the magistrate judge’s

order, and it awards Shepherd attorney’s fees incurred in opposing

Dallas County’s objection.

I

Shepherd brought suit under 42 U.S.C. § 1983 for violations of

his rights in connection with treatment of his medical conditions

while in the custody of Dallas County. He prevailed at trial and

on appeal. When a plaintiff prevails on a § 1983 claim, “the

 

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court, in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee as part of the

costs[.]” 42 U.S.C. § 1988(b); see also Dorward v. Ramirez, 2009

WL 2777880, at *20 (N.D. Tex. Aug. 28, 2009) (Fitzwater, C.J.).

The same is true for a § 1983 litigant who prevails on appeal. See

Bode v. United States, 919 F.2d 1044, 1052 (5th Cir. 1990) (noting

that “attorneys’ fees may be awarded for all aspects of litigation,

including appeal”). The court previously awarded $255,871.50 in

attorney’s fees, $871.32 in litigation expenses, and $6,253.96 in

court costs for the trial stage following the jury verdict in

Shepherd’s favor. See Shepherd v. Dallas County, Tex., 2009 WL

977294 (N.D. Tex. Apr. 10, 2009) (Fitzwater, C.J.). 

II

Shepherd now seeks $56,242.50 in attorney’s fees, $2,276.70 in

taxable costs, and $656.75 in litigation expenses. The attorney’s

fees are based on a lodestar calculation using the hourly rates of

$300 for Debbie Branscum, Esquire (“Branscum”), and $350 for Don

Tittle, Esquire (“Tittle”), which the court found were reasonable

in its earlier opinion. These are the same two lawyers for whose

time Shepherd now seeks additional compensation, and he requests

that the court use the same hourly rates. Dallas County does not

appear to challenge these rates, other than to assert that Shepherd

did not produce evidence demonstrating that these were reasonable

rates to use at the appellate, as opposed to the trial, level. The

 

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1Dallas County argues that the time-keeping entries by

Shepherd’s attorneys are too general and prevent meaningful review.

For example, it objects to numerous entries by Branscum for “work

on appellee brief,” and it asserts that “Plaintiff’s counsel should

have, at a minimum, identified what particular portion of the brief

or what legal issue or argument was ‘worked on’ on any given date.”

D. Br. 4 (emphasis omitted). Although the court has in other

instances declined to award fees based on “block billing,” it will

not do so here because Shepherd’s attorneys have provided day-byday and task-by-task accounts of all time spent. Shepherd’s

counsels’ records could have been more detailed, but the ones they

have submitted are sufficient to assess the reasonableness of the

time expended. Moreover, the court is reducing by about 27% the

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court finds that the continued use of these rates at the appellate

stage is reasonable.

Dallas County’s primary objection is that the time claimed is

excessive. The total time recorded by both attorneys is 185.35

hours. The majority of this time, 172.6 hours, is attributable to

Branscum; 12.75 hours are attributable to Tittle. Both attorneys

have provided records of how this time was spent. Branscum’s

records fall into three primary categories: (1) time briefing the

appeal (107.7 hours); time preparing for and presenting oral

argument, including travel time (50.4 hours); and time for services

rendered after the Fifth Circuit’s decision, including drafting the

instant motion (14.5 hours). Each of these categories is further

divided into topic- and date-specific entries for all work.

Tittle’s records consist of a single page with entries on six

different dates, all prior to the date of the Fifth Circuit

argument, and involve tasks such as editing the appellate brief and

providing oral-argument advice.1

 

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time Shepherd seeks for Branscum’s work concerning his brief on

appeal and oral argument. And Dallas County offers no authority

for the assertion that Branscum was required to disclose the

precise legal issues or sections of her brief for which she

expended time. 

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Dallas County does not contend that the court should not award

any fees in this case——it simply disputes the amount. Its primary

argument is that the time Branscum expended is excessive. In

support, Dallas County posits that defending the appeal should have

been a fairly straightforward exercise for Shepherd’s counsel,

requiring little research and only a small investment of time.

“There was little new on appeal, except that the legal and factual

issues were heard anew by a panel of Circuit Judges.” D. Br. 5.

Because “everything that ordinarily occurs at the appellate level

is essentially a ‘rehash’ of what has already been presented,

albeit with a new audience, the panel of 3 Justices,” Dallas County

argues, “preparation of [Shepherd’s] brief should have been a

matter of putting ‘paper to pen.’” Id. at 2. It asserts that

there was little need for legal research, because all the relevant

issues would have been thoroughly researched at the trial stage.

Dallas County also maintains that the hours expended in preparation

for oral argument are excessive, and that any work performed after

the Fifth Circuit rendered its decision should not be compensated.

“There is no mathematical formula to precisely calibrate the

number of hours reasonably necessary for appellate representation.”

Leroy v. City of Houston, 906 F.2d 1068, 1083 (5th Cir. 1990). The

 

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court should determine reasonableness using its “common sense,

informed by years of experience with briefing and arguments . . .

and what the record reflects concerning the prior work [Shepherd’s

attorneys] had done on the case.” Id. The court finds that

Shepherd’s requested attorney’s fees are largely reasonable, given

the circumstances of this case. Dallas County’s assertion that the

appeal essentially required minimal research and review is

unpersuasive, as is the argument that it was only necessary for

Shepherd’s attorneys to refine their trial arguments. Indeed, if

the legal and factual issues in this case were as straightforward

as Dallas County suggests, it would seem to call into question why

it appealed on the grounds that it did or why the Fifth Circuit

deemed it appropriate to issue a published opinion. 

As the Fifth Circuit noted, successfully litigating a § 1983

case such as Shepherd’s is “rare.” Shepherd, 591 F.3d at 449. To

succeed in a lawsuit of a type that typically fails, it was

reasonable for Shepherd’s attorneys to expend substantial time

researching and writing an appellee brief and preparing for oral

argument. The court finds credible Branscum’s affidavit testimony

that Dallas County’s appellate brief and strategy required her to

undergo an analysis of numerous underlying issues before addressing

the merits of the case. The facts of this case have given rise to

competing legal theories——as noted both by this court and by the

Fifth Circuit——and it was reasonable for Shepherd’s counsel to plan

 

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accordingly. The fact that the attorneys were familiar with the

legal questions raised at trial does not of itself preclude

additional review of the record, research, writing, and preparation

concerning these same matters at the appellate level. 

Although the court disagrees with most of Dallas County’s

argument, it does agree that some of the time that Branscum

expended is excessive. Having reviewed Shepherd’s appellate brief,

the court finds that it could reasonably have been prepared in two

weeks (or 80 hours) of total time. Branscum’s records reflect

that she devoted 107.7 hours to researching and writing the brief.

It appears that 99.3 hours of this time were allocated to writing

it. The court finds that, although it was necessary that

Shepherd’s counsel thoroughly and carefully review the law and

facts, the brief could reasonably have been researched and written

by someone of Branscum’s experience in 80 hours. The court

therefore finds that Branscum reasonably spent 27.7 fewer hours

(i.e., 107.7 claimed hours - 80 reasonable hours = 27.7 hours) than

Shepherd requests. 

Similarly, Branscum’s recorded time preparing for oral

argument is excessive. Of the 50.4 submitted hours, 42.6 are

designated with the conclusory label “prepare oral argument,”

without further explanation. The fact that Branscum is the same

attorney who researched and wrote the appellate brief means that

she should have been familiar with the legal and factual issues

 

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that would factor into oral argument. The court finds that someone

of Branscum’s experience could have adequately prepared for oral

argument in the equivalent of three eight-hour days of work (24

total hours). The total approved time for oral argument

preparation is therefore reduced by 18.6 hours (42.6 reported hours

- 24 reasonable hours = 18.6 excessive hours). This results in

31.8 approved hours related to oral argument (50.4 - 18.6 = 31.8).

Accordingly, the court reduces the compensable time for

Branscum’s preparation of the brief to 80 hours, and her oral

argument time to 31.8 hours. The remainder of Branscum’s (14.5

hours) and Tittle’s (12.75 hours) time is reasonable, and the court

approves these fees. Thus the total time for which the court

awards compensation is 126.3 hours for Branscum (80 + 31.8 + 14.5

= 126.3) and 12.75 hours for Tittle. The lodestar calculation for

each attorney is $37,890 for Branscum (126.3 hours x $300 per hour)

and $4,462.50 for Tittle (12.75 hours x $350 per hour). The fees

for these expenditures of time are reasonable and necessary.

The court will not enhance the lodestar amount. Shepherd’s

supplemental motion includes a discussion of the twelve factors set

forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974), but Shepherd does not argue that this analysis

supports an enhancement to the lodestar. Dallas County opposes any

enhancement. The Supreme Court recently decided that the lodestar

amount is presumptively reasonable and adequate to induce attorneys

 

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2

The court does not suggest that Perdue applies outside the

context of a fee-shifting statute such as 42 U.S.C. § 1988. See

Klein v. O’Neal, Inc., 2010 U.S. Dist. LEXIS 59745, at *5 (N.D.

Tex. June 16, 2010) (Fitzwater, C.J.) (holding that Perdue did not

alter Fifth Circuit precedent in common fund cases). 

3Dallas County filed its objection on May 25, 2010, and

Shepherd filed his response on June 2, 2010. Dallas County did not

file a reply brief as of the June 16, 2010 deadline. The court is

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to undertake representation in meritorious civil rights cases. See

Perdue v. Kenny A., ___ U.S. ___, 130 S.Ct. 1662, 1672-73 (2010).

The Court made clear that, in a fee-shifting case under § 1988,

circumstances will rarely justify an enhancement beyond the

lodestar amount, and courts must “require specific evidence that

the lodestar fee would not have been adequate to attract competent

counsel.” Id. at 1674 (internal quotation marks omitted). Because

there is no such evidence here, the court declines to enhance the

lodestar.2

III

When the Fifth Circuit affirmed this court’s decision, it

assessed all taxable costs on appeal against Dallas County.

Shepherd sought these taxable costs in this court, pursuant to Fed.

R. App. P. 39(e), and Dallas County filed an objection that the

court referred to the magistrate judge. The magistrate judge

entered an order awarding Shepherd the costs he sought. Dallas

County objects to the magistrate judge’s order to the extent it

awards Shepherd the cost of a trial transcript used by his counsel

in representing him on appeal.3 Shepherd seeks additional

 

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therefore deciding the merits of the objection without awaiting a

reply brief.

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attorney’s fees incurred in opposing Dallas County’s objection. 

The court reviews the magistrate judge’s decision for abuse of

discretion. See, e.g., La. Power & Light Co. v. Kellstrom, 50 F.3d

319, 334 (5th Cir. 1995) (“We will not overturn the district

court’s taxation of costs absent a clear abuse of discretion.”).

Rule 39(e)(2) allows the district court to tax the costs of “the

reporter’s transcript, if needed to determine the appeal.” As the

magistrate judge found, Shepherd’s attorneys were not obligated to

use the copy of the transcript that Dallas County obtained for use

on appeal. It was reasonable that they obtain their own copy. One

ground of Dallas County’s appeal was a lack of sufficient evidence

to support the verdict. It was therefore necessary for Shepherd’s

attorneys to carefully review the trial proceedings and evidence,

as reflected in the trial transcript. Dallas County has not

demonstrated that the magistrate judge abused his discretion in

taxing against it the cost of this transcript. The order is

therefore affirmed.

The court also awards Shepherd additional attorney’s fees for

the time his counsel incurred responding to Dallas County’s

objection. In a June 2, 2010 supplement to his motion for

attorney’s fees, Shepherd submits evidence that Branscum spent 3.2

 

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4Dallas County did not respond to the June 2, 2010 supplement

as of the June 23, 2010 due date. The court is therefore

addressing the request for additional fees without considering a

response from Dallas County.

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hours reviewing Dallas County’s objection and drafting a response.4

The court finds that this is a reasonable and necessary amount of

time for the work performed. For the reasons explained supra at §

II, the court awards attorney’s fees for this time at the rate of

$300 per hour, for a total of $960 (3.2 hours x $300 per hour).

Finally, the court has also reviewed Shepherd’s request for

reimbursement of litigation expenses and finds that it is

reasonable and necessary. Dallas County has not made any argument

that undermines the validity of this request.

* * *

Accordingly, for the reasons explained, the court awards a

total of $42,352.50 in attorney’s fees for time spent on the appeal

($37,890 for work by Branscum, and $4,462.50 for work by Tittle),

$2,276.70 in taxable costs, $960 in additional attorney’s fees for

time spent by Branscum responding to Dallas County’s objection to

the magistrate judge’s order, and $656.75 in litigation expenses.

Dallas County must pay this total sum ($46,245.95) within 45 days

 

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of the date this memorandum opinion and order is filed. The

magistrate judge’s May 19, 2010 order is affirmed.

SO ORDERED.

June 24, 2010.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

 

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