Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 1 of 10 PageID #: 147
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF WEST VIRGINIA
`AT CHARLESTON
`
`FRANKLIN BRAGG,
`
`Plaintiff
`
`v.
`
` CIVIL ACTION NO. 2:05-0355
`
`JOYCE VESSEY SWANSON
`in her official capacity as
`principal of Hurricane High School,
`
`Defendant
`
`MEMORANDUM OPINION AND ORDER
`
`Pending is plaintiff’s motion for an award of attorney
`
`fees and costs filed June 13, 2005.
`
`I.
`
`Plaintiff was a student at Hurricane High School. He
`
`was disciplined for wearing a T-shirt that displayed the
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`Confederate flag, in violation of the school’s dress code. On
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`April 28, 2005, plaintiff instituted this action. His one-count
`
`pleading alleged that defendant Swanson’s actions violated his
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`rights under the First Amendment. He sought the following
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`redress in his complaint:
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`[1] permanent injunctive relief; [2] a declaration that
`. . . [defendants’] actions . . . were and are
`unconstitutional, illegal, and void, and . . . in
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF WEST VIRGINIA
`AT CHARLESTON
`
`FRANKLIN BRAGG,
`
`Plaintiff
`
`v.
`
` CIVIL ACTION NO. 2:05-0355
`
`JOYCE VESSEY SWANSON
`in her official capacity as
`principal of Hurricane High School,
`
`Defendant
`
`MEMORANDUM OPINION AND ORDER
`
`Pending is plaintiff’s motion for an award of attorney
`
`fees and costs filed June 13, 2005.
`
`I.
`
`Plaintiff was a student at Hurricane High School. He
`
`was disciplined for wearing a T-shirt that displayed the
`
`Confederate flag, in violation of the school’s dress code. On
`
`April 28, 2005, plaintiff instituted this action. His one-count
`
`pleading alleged that defendant Swanson’s actions violated his
`
`rights under the First Amendment. He sought the following
`
`redress in his complaint:
`
`[1] permanent injunctive relief; [2] a declaration that
`. . . [defendants’] actions . . . were and are
`unconstitutional, illegal, and void, and . . . in
`
`
`
`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 2 of 10 PageID #: 148
`
`contravention of Plaintiff's constitutional rights; . .
`. [3] expungement . . . of any reference to the
`disciplinary action relating to his . . . [flag
`clothing]. . . [;] [4] . . . reimburse[ment] . . . for
`his reasonable attorneys' fees, expenses, and costs . .
`. and all such further relief as the Court may deem
`just and proper.
`
`(Compl. prayer for rel.)
`
`On May 3, 2005, plaintiff moved for a preliminary
`
`injunction. In consultation with the parties, and pursuant to
`
`Rule 65(a)(2), the court ordered the trial advanced and
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`consolidated with the hearing on plaintiff’s motion. On May 9,
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`2005, the court conducted a bench trial. On May 31, 2005, the
`
`court entered its findings of fact and conclusions of law and
`
`entered judgment in plaintiff’s favor against Principal Swanson
`
`in her official capacity.
`
`See Bragg v. Swanson, 371 F. Supp.2d
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`814 (S.D. W. Va. 2005). The court does not recite here anew
`
`those findings and conclusions. The analysis of the Johnson
`
`factors infra is, however, made with those findings and
`
`conclusions in mind.
`
`On June 13, 2005, plaintiff moved for attorney fees and
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`costs for his two lawyers pursuant to 42 U.S.C. § 1988. Attorney
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`Roger D. Forman has been a practicing attorney for over thirty
`
`years. He has maintained an active litigation practice in both
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`state and federal courts, prosecuting a substantial number of
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`2
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 3 of 10 PageID #: 149
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`civil rights actions during that time. He seeks $5,587.50 for
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`22.35 hours expended on the case. Mr. Forman’s co-counsel,
`
`attorney Terri S. Baur, has been a staff lawyer for the ACLU of
`
`West Virginia Foundation for seventeen (17) months. She
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`practiced previously in California, having attained membership in
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`that state bar in 1997. Ms. Baur seeks $2,190.00 for 14.6 hours
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`she expended during this action. The respective hourly rates
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`sought by counsel are $250.00 and $150.00. Principal Swanson
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`does not contest either the hours expended or the requested
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`hourly rate.
`
`II.
`
`A.
`
`The Governing Standards
`
`Title 42 U.S.C. § 1988(b) provides pertinently as
`
`follows:
`
`In any action or proceeding to enforce a provision of
`section[] . . . 1983 . . . the court, in its
`discretion, may allow the prevailing party . . . a
`reasonable attorney's fee as part of the costs . . . .
`
`42 U.S.C. § 1988(b). In making its fee determination, the court
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`may award the full fee requested, some part of it, or no fee at
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`all. Our court of appeals has discussed the applicable factors
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`3
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 4 of 10 PageID #: 150
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`designed to guide the district court’s discretion in making the
`
`award:
`
`In determining a "reasonable" attorney's fee under
`section 1988, this Court has long held that a district
`court's discretion must be guided strictly by the
`factors enumerated by the Fifth Circuit in Johnson v.
`Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974).
`See Daly v. Hill, 790 F.2d 1071, 1077 (4th Cir. 1986).
`The twelve Johnson factors are: (1) the time and labor
`required to litigate the suit; (2) the novelty and
`difficulty of the questions presented by the lawsuit;
`(3) the skill required properly to perform the legal
`service; (4) the preclusion of other employment
`opportunities for the attorney due to the attorney's
`acceptance of the case; (5) the customary fee for such
`services; (6) whether the fee is fixed or contingent;
`(7) time limitations imposed by the client or the
`circumstances; (8) the amount in controversy involved
`and the results obtained; (9) the experience,
`reputation, and ability of the attorney; (10) the
`"undesirability" of the case; (11) the nature and
`length of the attorney's professional relationship with
`the client; and (12) awards in similar cases. Daly, 790
`F.2d at 1075 n. 2 (noting that the Johnson approach has
`been approved by Congress and by the Supreme Court in
`Hensley v. Eckerhart, 461 U.S. 424, 434 n. 9, 103 S.Ct.
`1933, 1940 n. 9, 76 L.Ed.2d 40 (1983)).
`
`Trimper v. City of Norfolk, Va., 58 F.3d 68, 73 (4th Cir. 1995).
`
`The court applies these factors in its initial
`
`calculation of the reasonable hourly rate and number of hours
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`reasonably expended by counsel.
`
`Id. at 73. The resulting
`
`“lodestar” fee, which is based on the reasonable rate and hours
`
`calculation, is “presumed to be fully compensatory without
`
`producing a windfall.”
`
`Id. at 73-74 (quoted authority omitted).
`
`4
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 5 of 10 PageID #: 151
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`B.
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`Application of the Johnson Factors
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`Mr. Forman and Ms. Baur expended a total of 36.95 hours
`
`on this litigation. These hours represent a decidedly spartan
`
`time request, in view of what they represent. The request
`
`includes time spent (1) consulting with plaintiff, (2) performing
`
`legal research, (3) transmitting correspondence, (4) drafting the
`
`complaint and associated briefing, (5) meeting with the court and
`
`opposing counsel at a prehearing conference, (6) reviewing
`
`documents and preparing testimony, (7) preparing for trial, and
`
`(8) trying the case. In the court’s estimation, the requested
`
`hours certainly do not exceed what one would expect in bringing a
`
`case of this type to final judgment.
`
`The questions presented were both challenging and
`
`somewhat difficult of resolution. First, counsel had a very
`
`limited, recent body of case law to help illuminate the issues.
`
`Second, the proper reach and interpretation of Tinker v. Des
`
`Moines Independent Community School District, 393 U.S. 503
`
`(1969), and its progeny have bedeviled those courts of appeal
`
`that have confronted cases of this type. Third, this action
`
`spawned a thirty-five page published opinion. These
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`5
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 6 of 10 PageID #: 152
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`considerations illustrate the difficulty of the questions
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`presented.
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`Next, the skill required to frame, brief, and assemble
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`the issues for trial in a case such as this is no small matter.
`
`The lawyers’ expertise in cases of this type was of great help to
`
`both the court and their client.
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`The court has no information bearing on the preclusion
`
`of other employment opportunities for the lawyers as a result of
`
`their acceptance of this case. There is no indication other
`
`clients were forfeited as a result of the expeditious handling of
`
`this matter. Likewise, there is no evidence this action, the
`
`client, or the circumstances imposed any significant time
`
`limitations on counsel. The court would note, however, that the
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`trial was advanced. This resulted in the case being resolved in
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`just thirty-three (33) days.
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`Next, the court examines the customary fee for the
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`services rendered here. Counsel has offered no information on
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`this point. It is important to note, however, that defendant has
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`not objected to the requested hourly rate and time expended.
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`There is thus no indication that the fee sought here is in any
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`way extraordinary.
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`6
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 7 of 10 PageID #: 153
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`The sixth factor involves the fixed or contingent
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`nature of the fee. Since plaintiff did not seek damages, there
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`is nothing against or from which a contingent fee might be pegged
`
`or drawn. The court concludes that counsel took this case
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`because of the important First Amendment principles at stake,
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`with the potential recovery of fees and costs through
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`application of section 1988(b).
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`Next, the court addresses the all-important eighth
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`factor, the amount in controversy and the results obtained.
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`There were, of course, no damages sought. The First Amendment
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`right at stake in this litigation, however, is of no small
`
`moment. Regarding the results obtained, the court notes
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`initially the dismissal of the Putnam County Board of Education.
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`That dismissal, however, is of little consequence. Plaintiff
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`obtained complete relief on his First Amendment claim against the
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`responsible party.
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`The ninth factor requires an analysis of the lawyers’
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`experiences, reputations, and abilities. Mr. Forman’s
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`credentials are impeccable. He has a long record of practice in
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`this district, his firm is recognized locally for its spirited
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`prosecution of civil rights actions, and he performed his duties
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`7
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 8 of 10 PageID #: 154
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`very ably. Ms. Baur has an admittedly more brief track record
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`upon which to conduct the necessary analysis. At the same time,
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`she has apparently devoted a signficant portion of her eight (8)
`
`years of practice to civil rights matters. Her retention by the
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`ACLU of West Virginia Foundation is just one, strong testament to
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`her capabilities in the civil rights arena.
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`The tenth factor involves the “undesirability” of the
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`case. This action provoked the public airing of deeply held
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`convictions on both sides of the issue in the local media and
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`community at large. Indeed, the court noted “the mere mention of
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`the [Confederate flag] emblem evokes strong feelings.”
`
`Bragg v.
`
`Swanson, 371 F. Supp.2d 814, 816 (S.D. W. Va. 2005). There were
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`thus some undesirable elements to the case based upon negative
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`perceptions of the flag and the views that it represents for
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`some.
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`The final two factors, namely the nature and length of
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`the lawyers’ professional relationship with the client and awards
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`in similar cases, are of little relevance here.
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`Based upon the applicable factors, the court concludes
`
`the requested hourly rates of both Mr. Forman ($250.00) and Ms.
`
`Baur ($150.00), are reasonable. Although Mr. Forman’s requested
`
`rate is at the higher end of what the market would allow in this
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`8
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 9 of 10 PageID #: 155
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`legal community, the applicable factors, and the absence of any
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`objection from defendant, militate toward a finding of
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`reasonableness.
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`The court concludes likewise as to the hours reasonably
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`expended on the litigation. The 36.95 hours requested are
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`entirely within the bounds of reasonableness, especially in view
`
`of the court’s analysis of the first, second, third, eighth,
`
`ninth, and tenth factors under Johnson.
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`The product of the reasonable hourly rate and the hours
`
`reasonably expended results in the following lodestar amounts:
`
`Roger Forman (22.35 x $250.00)---------------$5,587.50
`Teri Baur (14.60 x $150.00)---------------$2,190.00
`
`The court finds and concludes that this fully compensatory fee is
`
`appropriate. The court further finds and concludes that the
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`unchallenged, and documented, costs recoverable in the case
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`amount to $490.17.
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`The court, accordingly, ORDERS that plaintiff’s motion
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`for award of attorney fees and costs be, and it hereby is,
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`granted in the total amount of $8,267.67.
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`9
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`Case 2:05-cv-00355 Document 20 Filed 07/28/05 Page 10 of 10 PageID #: 156
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`The Clerk is directed to forward copies of this written
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`opinion and order to all counsel of record.
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`DATED: July 28, 2005
`
`John T. Copenhaver, Jr.
`United States District Judge
`
`10
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