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de Jesus Ortega Melendres v. Penzone

United States District Court, D. Arizona

April 12, 2019

Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarly situated; et al. Plaintiffs,
Paul Penzone, in his official capacity as Sheriff of Maricopa County, Arizona; et al. Defendants. and United States of America, Plaintiff-Intervenor,


          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.


         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.


         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 ...

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