United States District Court, D. Arizona
Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarly situated; et al. Plaintiffs,
v.
Paul Penzone, in his official capacity as Sheriff of Maricopa County, Arizona; et al. Defendants. and United States of America, Plaintiff-Intervenor,
ORDER
G.
Murray Snow Chief United States District Judge.
Pending
before the Court is Plaintiff's Second Supplemental
Motion for Award of Attorneys' Fees and Related
Non-Taxable Expenses. (Doc. 2257). In that motion, the
Plaintiffs request a reimbursement of fees and costs for the
period from June 1, 2016 through August 31, 2017 in the
amount of $1, 237, 192.10.[1] The fees they seek come from a
combination of monitoring, ongoing litigation and the
creation of a court-ordered compensation fund for the
victims. Defendant Maricopa County was the only Defendant to
file a Response to Plaintiffs' Motion. For the reasons
set forth below the motion is granted in part and denied in
part. The Court awards Plaintiffs $723, 869.90 in
attorneys' fees and $23, 966.34 in related non-taxable
expenses.
BACKGROUND
When
the Court originally determined that the Defendants were
liable for discriminating against the Plaintiff class, the
parties asked for, and were given the opportunity to agree on
as many terms of the eventual injunction as possible. The
parties agreed to most of the terms of the first injunctive
order. The order, as substantially agreed to, required
Defendants to provide Plaintiffs access to certain
information, procedures and training, authorized Plaintiffs
to comment or act on that information, procedures and/or
training, and required Plaintiff to perform certain
functions. (See, e.g., Doc. 606 ¶¶ 7, 9,
14-15, 38, 40, 44, 46, 59, 66, 71, 81(e), 106, 111, 115-16,
128, 132, 147, 149, 152, 157). It designated the
Plaintiffs' representative “for purposes of
implementation and enforcement of the Order” as
“[t]he American Civil Liberties Union of Arizona
(“ACLU-AZ”) and any other representative(s)
designated by the ACLU-AZ.” Id. at ¶ 7.
At the
time, however, the parties disagreed as to the extent to
which Plaintiffs would be entitled to payment by the
Defendant for the ongoing activity in which the order
authorized their participation. (Doc. 592 at 10, Ex. 1 at
¶ 191). Both parties set forth their respective
positions, see Docs. 595 and 596, and the Court set
forth its resulting order, in which it adopted neither
party's language.
The
Court determined that “Defendants shall pay reasonable
fees and costs incurred as a result of having to initiate
litigation to secure enforcement.” Id. at
¶ 157. Of course, any enforcement that Plaintiffs would
initiate would logically be in the course of the already
ongoing monitoring action. The Court thus views the original
decree language as covering reimbursement for reasonable
efforts made by the Plaintiffs in the ongoing monitoring
action to obtain compliance with the Order when Defendants
were/are out of compliance. Nevertheless, the Court's
order, as originally entered, did not authorize the blanket
reimbursement to the Plaintiffs for every choice they made
with respect to the extent of their authorized participation
in the monitoring process.
At the
time that the Court entered the first order, it did not
anticipate the obfuscation and malfeasance by the MCSO that
so expanded the Plaintiffs' role in enforcing the initial
order, justified the continued use of multiple entities
representing the Plaintiffs, and resulted in the second
injunctive order and the contempt orders entered against
Sheriff Arpaio, Chief Deputy Sheridan, Chief Sands and
Lieutenant Sousa. Plaintiffs played an integral role in those
contempt proceedings and the fashioning of the second
injunctive order. In those proceedings the roles of the
Monitor and Plaintiff's counsel were sufficiently
distinct so as not to be duplicative. This work in the
Court's judgment should be, and for the most part has
been, reimbursed. Yet, at least some of the reimbursement
sought here is for such work by Plaintiffs which has not yet
been reimbursed.
The
advent of Sheriff Penzone in January 2017 has, as Plaintiffs
acknowledge, significantly lessened the resistance of MCSO
leadership to the requirements of the injunction at least
during the period for which the fee award is sought. Yet,
during that period the MCSO has continued to be unable, at
least at times, to meet the deadlines set in the injunctive
orders to which it had stipulated such as the implementation
of the EIS. Further, the MCSO's own required evaluations
have demonstrated indicia of ongoing discrimination among a
number of patrol officers. At times, the MCSO failed to
comply with the schedule it set for implementing the
necessary remedial measures arrived at by the parties to
address this indicia of bias which has largely been referred
to as the TSAR process. Plaintiffs' counsel has
appropriately pursued compliance within the confines of the
existing enforcement action.
Analysis
Under
Ninth Circuit law, as Defendant concedes, the Plaintiffs in
this case are the prevailing party and are entitled to at
least some fees in monitoring the enforcement of the
injunctive orders entered by the Court. Balla v.
Idaho, 677 F.3d 910, 916-17 (9th Cir. 2012); Prison
Legal News v. Schwarzenegger, 608 F.3d 446, 451 (9th
Cir. 2010); Keith v. Volpe, 833 F.2d 850, 860 (9th
Cir. 1987).
In
assessing the extent to which fees should be awarded in a
case involving the ongoing monitoring of the defendants a
court is required to ensure that the Plaintiff is not merely
duplicating services provided by the Monitor or others, or
otherwise needlessly extending the work required to enforce
the order. See, e.g., Keith, 833 F.2d at
858 (“[t]he existence of an independent court-appointed
monitoring entity does not preclude an award of
attorneys' fees to the prevailing party for monitoring
activities where, as here, the monitoring services are not
duplicative.”); Brewster v. Dukakis, 544
F.Supp. 1069 (D. Mass. 1982), aff'd as modified,
786 F.2d 16, 19 (1st Cir. 1986). (holding that “the
standard for evaluating the propriety of a fee award to
plaintiffs when there is a court-appointed monitoring entity
is the same as that where there is no such monitoring entity:
the ‘services [must] be necessary for reasonable
monitoring of a consent decree.'”). In
contemplating an award of fees, a Court must exercise its
discretion to “assure that the case is not being milked
by a [successful party or a] monitor after the injunction has
been obtained, for fees that are unreasonable in amount, for
work not reasonably performed to enforce the relief, or for
work not directly related to enforcing the relief.”
Balla, 667 F.3d at 19.
As the
Court previously found, adjusted out-of-forum rates for
out-of-state lawyers is appropriate in this case as the local
ACLU was not able to find a local firm that would accept the
case and the Project lawyers had “experience,
expertise, and specialization at a level that is otherwise
unavailable in Maricopa County.” (Doc. 742 at 1-2). For
the initial period of fees at issue here, the parties were
still involved in the litigation of the case, and even as
they transitioned from litigation into compliance
enforcement, it is still reasonable to pay the rates they
seek to the extent that these lawyers have participated in
the implementation of the Orders in a meaningful way. The
orders in this case involve detailed aspects of the MCSO and
policing in general. Implementation requires familiarity with
the subject matter of the first trial and, Plaintiffs were
represented by these lawyers in negotiating the terms of the
first order. The entire second order resulted from the
painstaking and detailed contempt hearings that spanned many
months and more than twenty trial days, at which the
Plaintiffs were represented by these same representatives.
Even assuming that some of the monitoring functions can be
more practically and inexpensively provided by available
in-town lawyers, the familiarity and expertise that
Plaintiffs' litigation lawyers obtained during the
history of this case, during the negotiation of the first
consent decree, and the hearings that resulted in the second
consent decree cannot be reasonably replaced by in-town
lawyers who are unfamiliar with the case. To the extent that
they are judiciously involved in the ongoing monitoring, the
ongoing participation of the lawyers from those firms can
actually represent a considerable efficiency for all
concerned.
The
ACLU, however, did not apparently affiliate with Mr. Chanin
until at or towards the end of the contempt hearings. Thus,
he did not obtain an expertise concerning the subject matter
of this particular lawsuit by participating in it as have the
ACLU Immigrants Rights Project and Covington & Burling.
Nevertheless, he does have impressive experience in civil
rights cases particularly in the area of police misconduct
and police practices. He also has impressive experience in
the implementation of consent decrees in that area that would
appear to be largely unavailable to the Plaintiffs in
Phoenix. It has been the Court's impression that in light
of his experience, Mr. Chanin's services have been useful
both to the Plaintiffs and to the implementation process on
the whole in a way that would not be readily replaceable by
an attorney from the Phoenix market. This is a sufficient
basis on which the Court can authorize a rate above the local
prevailing rate. See Camacho v. Bridgeport Fin.,
Inc., 523 F.3d 973, 979 (9th Cir. 2008) (quoting
Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.
1997)). The Court does so here to the extent that Ms. Chanin
has engaged in activity that is both reimbursable and not
duplicative.
The
Plaintiffs thus have a basis to seek a significant fee award
for their ongoing role in the promulgation, implementation
and enforcement of the orders. Yet, the way in which they
have done so makes it very difficult and time-consuming for
the Court, or anyone else, to guard against unnecessary or
duplicative activity. In their motion, Plaintiffs'
Representative seeks an award for fifteen months of activity
undertaken by itself and the five other entities that it has
designated to represent the Plaintiffs' class interests
in the monitoring phase. The motion generally asserts that
counsel have participated in several categories of activities
for which they are justified in seeking fees. (Doc. 2257 at
12). But it does not allocate the time entries to any of
these several categories of activity for which Plaintiffs
seek a fee award. Rather, the motion attaches the affidavits
of the lead attorneys for these six different entities that
detail the separate activities of the time keepers in each
office and seeks reimbursement for all of their activities
except for those that they have redacted. On occasion, at
least, it is evident that some of the billing ...