United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Mitchell Miraglia's Motion
to Fix Attorney's Fees (Rec. Doc. 144). The
Board of Directors of the Louisiana State Museum and Robert
Wheat in his official capacity as chief executive of the
Louisiana State Museum (collectively “the
Museum”) have filed a memorandum in opposition (Rec.
Doc. 145) and a supplemental opposition (Rec. Doc. 151).
Plaintiff has filed a reply. (Rec. Doc. 149). The motion,
submitted for consideration on November 14, 2018, is before
the Court on the briefs without oral argument.
case was tried to the bench on September 11, 2017. On
September 15, 2017, the Court entered judgment in favor of
Plaintiff awarding Plaintiff general damages of $500.00 under
the ADA. (Rec. Doc. 100). The Court found that the remedy of
injunctive relief was moot under the principles of
Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598
(2001). (Rec. Doc. 99 at 6). The Court did, however, retain
jurisdiction over this matter should the Museum default on
the representations made in open court at trial.
(Id. at 7).
October 12, 2017, Plaintiff filed his motion for
attorney's fees, costs, and expenses. (Rec. Doc. 101).
Both parties filed a notice of appeal with respect to the
October 19, 2017, Plaintiff filed a “Notice of
Defendants' Non-Compliance, ” the purpose of which
was to inform the Court that the Museum had failed to
implement the ramp/buzzer/sign solution that it had relied
upon on the morning of trial to avoid injunctive relief in
this case. (Rec. Doc. 104). The delay in implementing this
solution spawned a series of motions, a telephone conference,
and an evidentiary hearing on a motion for contempt. The
Court denied the motion for contempt. (Rec. Doc. 142).
November 7, 2017, the Court granted Plaintiff's motion
for fees and costs, which was grounded on prevailing party
status related to the favorable September 15, 2017 judgment.
(Rec. Doc. 119). The Court awarded Plaintiff attorney's
fees totaling $30, 050.25 and costs/expenses totaling $4,
975.46. The Court specifically found the requested hourly
rates for counsel to be reasonable: $275 for lead attorney
Andrew Bizer; $150 for attorney Garret DeReus; $125 for
attorney Amanda Klevorn; $100 for attorney James Daniel; $75
for a paralegal. (Rec. Doc. 119 at 2).
August 24, 2018, the Fifth Circuit dismissed as moot
Plaintiff's appeal. As for the Museum's appeal, the
appellate court affirmed in part and reversed and rendered in
part. Miraglia v. Board of Dirs. of La. State
Museum, 901 F.3d 565 (5th Cir. 2018). The
court reversed the award of compensatory damages to Plaintiff
but affirmed the award of attorney's fees. Id.
at 576, 577-78. The mandate issued on October 9, 2018. The
Museum was taxed with the costs of the appeal. There is no
indication that Plaintiffs raised the issue of additional
attorney's fees with the Fifth Circuit.
now moves this Court for an additional attorney fee award of
$27, 595.05, which Plaintiff contends is reasonable
compensation for defeating Defendant's appeal and its
auxiliary motions. Plaintiff advises that he has written off
all time entries associated with briefing the mootness issue,
which was not resolved in his favor on appeal. Plaintiff has
also written off all time that could be associated
with the mootness issue by a full 50 percent. Attorneys
Andrew Bizer and Garret DeReus seek an increase in their
hourly rate to $300/hour and $185/hour respectively. These
attorneys contend that this increase would be modest and
would reflect their increased skill and efficiency in
handling ADA litigation.
opposition, the Museum argues that awarding appellate
attorney's fees would exceed the scope of the mandate,
which was silent on the issue of attorney's fees. In
other words, the Museum questions whether this Court has
jurisdiction to award additional attorney's fees for
appellate work. To the extent that any fees are awarded, the
Museum contends that the lodestar amount should be reduced by
about 75 percent to reflect the number of successful versus
unsuccessful claims raised on appeal. The Museum also
disputes whether it would be appropriate to raise
counsel's hourly rate from that previously set by the
Court in this case.
the Museum argues that the motion is premature because its
deadline to file a petition for certiorari with the United
States Supreme Court does not expire until December 13, 2018.
The Museum posits that cert may very well be granted in this
this case for “compelling reasons” because the
Fifth Circuit might very well have decided an important
federal question in a way that conflicts with relevant
decisions of the Supreme Court. Sup. Ct. R. 10(c).
fee-shifting statute like the ADA allows for a reasonable
attorney's fee for appellate work so long as the
plaintiff is the prevailing party on appeal. League of
United Latin Am. Citizens No. 4552 (LULAC) v. Roscoe Indep.
Sch. Dist., 119 F.3d 1228, 1236 (5th Cir.
1997) (citing Bode v. United States, 919 F.2d 1044,
1052 (5th Cir.1990)); Johnson v. State of
Miss., 606 F.2d 635, 639 (5th Cir. 1979);
see No. Barriers, Inc. v. Brinker Chili's Texas,
Inc., 262 F.3d 496, 498 (5th Cir. 2001)
(applying § 1988 and Title VII attorney fee standards to
Court is persuaded that it has jurisdiction to entertain
Plaintiff's motion and that awarding attorney's fees
for work defending the judgment would not exceed the scope of
the appellate court's mandate. The district court does
not lose jurisdiction over the attorneys' fees issue when
neither the district court nor the appeals court has
addressed it. Bank of La. v. SunGard Avail. Servs.,
L.P., 374 Fed.Appx. 539, 541 (5th Cir. 2010)
(citing United Indus. v. Simon-Hartley, Ltd., 91
F.3d 762, 764 (5th Cir.1996) (noting that “at a
jurisdictional level, the district court is not precluded
from ruling on the attorneys' fees issue by either its
final judgment or our mandate”)).
counsel have done their usual excellent job of maintaining
their billing records. The Court is persuaded that
Plaintiff's attorneys have provided adequate support of
the legitimate hours that they expended performing appellate
work. But the Court agrees with the Museum in that the hourly
rates that the Court previously determined should continue to
apply for the appellate work in this case. This case does not
present a situation where the litigation spanned many years
so as to justify raising the rates during the course of the
litigation. In fact, Plaintiff's ...