Raspanti v. Caldera ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31236
Summary Calendar
JANINE RASPANTI,
Plaintiff-Appellant,
versus
LOUIS CALDERA, Secretary, Department of the Army,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(00-CV-2379-N)
_________________________________________________________________
March 15, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Primarily at issue is whether attorney’s fees were correctly
calculated; and whether prejudgment interest on them should be at
the federal interest rate, 28 U.S.C. § 1961, as awarded, instead of
the prime rate. Roy Raspanti, former counsel for Appellant Janine
Raspanti, moves to intervene in this appeal and to adopt Janine
Raspanti’s opening and reply briefs. MOTIONS GRANTED; AFFIRMED IN
PART; VACATED IN PART; AND REMANDED.
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
In 1992, Janine Raspanti filed suit under the Rehabilitation
Act, 29 U.S.C. § 791, et seq., against the United States Army. The
EEOC determined the Army had so discriminated; the Army awarded her
back pay, compensatory damages, and reasonable attorney’s fees and
costs.
Janine Raspanti filed this action in 2000, asserting she was
entitled to a higher award of damages, fees, and costs, none of
which had then been paid. With the exception of fees, the parties
settled.
In the nearly ten years spanned by this litigation, Janine
Raspanti has employed four attorneys. She was represented by her
brother, Roy Raspanti, until May 1993, then separately represented
by two other attorneys (other attorneys) until July 1999. Janine
Raspanti then re-hired Roy Raspanti; he represented her in the
district court and on appeal, until she terminated his
representation last February.2
The district court allowed the other attorneys to intervene,
and they, along with Janine Raspanti (represented by Roy Raspanti),
filed three separate fee motions. Among the awarded fees was
approximately $26,000 to Janine Raspanti for the work of Roy
Raspanti (and Schwartz).
2
The fourth attorney, Jeffrey A. Schwartz, represented Janine
Raspanti as Roy Raspanti’s co-counsel when this action was filed in
2000.
2
With respect to Roy Raspanti, the magistrate judge made
itemized deductions for, inter alia, the time billed for
familiarizing himself with the case upon being re-hired in July
1999. Raspanti v. United States Dep’t of the Army, No. 00-CV-2379-
N, at 8-24 (E.D. La. 10 Sept. 2001) (Raspanti-USDC). The
magistrate judge held prejudgment interest on the award was to be
at the federal rate. Id. at 24-28.
II.
Only the fees for Roy Raspanti are at issue. Janine Raspanti
contends the court erred in: (1) calculating the amount; and (2)
awarding prejudgment interest at the federal, rather than the
prime, rate. Her former attorney, Roy Raspanti, seeks to intervene
and adopt Janine Raspanti’s opening and reply briefs (which he
prepared).
A.
Because he has been recently discharged, Roy Raspanti moves to
intervene to protect his interest in fees awarded in excess of
those awarded by the district court. For intervention on appeal:
A party is entitled to an intervention of
right if (1) the motion to intervene is
timely; (2) the potential intervener asserts
an interest that is related to the property or
transaction that forms the basis of the
controversy in the case into which [it] seeks
to intervene; (3) the disposition of that case
may impair or impede the potential
intervener’s ability to protect [its]
interest; and (4) the existing parties do not
adequately represent the potential
intervener’s interest.
3
Supreme Beef Processors, Inc. v. United States Dep’t of Agric., 275
F.3d 432, 437 (5th Cir. 2001) (alterations in original; internal
quotation marks omitted); see FED. R. CIV. P. 24(a).
Roy Raspanti was terminated on 22 February 2002; his motion to
intervene was filed five days later. The motion is timely. He
asserts an interest in the property that is the subject of this
action. Furthermore, Janine Raspanti, now proceeding pro se, does
not adequately represent his interests as she has no stake in the
amount of such fees, and the disposition of this case without his
intervention may jeopardize his interest in any fee-increase.
Accordingly, Roy Raspanti’s motions to intervene and to adopt
Janine Raspanti’s briefs are granted.
B.
“Due to the district court’s superior knowledge of the facts
and the desire to avoid appellate review of factual matters, the
district court has broad discretion in setting the appropriate
award of attorneys’ fees.” Watkins v. Fordice, 7 F.3d 453, 457
(5th Cir. 1993) (emphasis added). Such an award is reviewed for
abuse of discretion, with the underlying factual findings reviewed
only for clear error. Id.Reasonable attorney’s fees are generally calculated using the
lodestar method. See, e.g., Heidtman v. County of El Paso, 171
F.3d 1038, 1043 (5th Cir. 1999). “A lodestar is calculated by
4
multiplying the number of hours reasonably expended by an
appropriate hourly rate in the community for such work.” Id.One of the several challenges to the lodestar calculation is
that the magistrate judge erred in calculating the 26.6 hour
reduction for the time Roy Raspanti spent familiarizing himself
with this action. (This is the only reversible error.) According
to Janine Raspanti: (1) the identified entries equal only 23.6
hours; and (2) the magistrate judge disallowed 1.75 hours from the
time billed for 29 July 1999, when only 1.5 hours were billed.
The identified entries, or portions of them, total 23.6, not
26.6, hours.3 In addition, .25 hours too much were deducted for
29 July. Accordingly, the deduction should have totaled 23.35
hours (revised 23.6 hours less further revision of .25 hours).
We affirm the fees in all other respects and remand for entry
of a judgment adjusted for this error, to include being in favor of
Roy Raspanti for the portion of the fees attributable to his work.
C.
The Army does not contest prejudgment interest on the award
being available under the Rehabilitation Act. Raspanti-USDC, at
24-25. On the other hand, Janine Raspanti contests interest based
3
The following deductions were made from Roy Raspanti’s time
billed in 1999 for familiarization: 7/16 - .75 hours; 7/21 - 1.75
hours; 7/23 - 4.0 hours; 7/24 3.3 hours; 7/25 - 4.3 hours; 7/26 -
1.75 hours; 7/28 - 1.75 hours; 7/29 - 1.75 hours; 7/30 - 4.0 hours;
and 8/16 - .25 hours.
5
on the federal, rather than the prime, rate. She relies on Alberti
v. Klevenhagen, 896 F.2d 927, 938 (5th Cir.), vacated in part on
reh’g, 903 F.2d 352 (5th Cir. 1990), which held, in the context of
prejudgment interest on an attorney’s fee award pursuant to 42
U.S.C. § 1988: “[T]he appropriate rate of interest to be used in
computing a delay in payment adjustment is the cost of borrowing
money, the prime rate”. Whether use of the prime rate is required
is a question of law reviewed de novo. E.g., Waco Int’l, Inc. v.
KHK Scaffolding Houston, Inc., 278 F.3d 523, 528 (5th Cir. 2002).
The prime rate is not the only method of calculating
prejudgment interest that has been approved by our court. In
Williams v. Trader Publ’g Co., 218 F.3d 481, 488 (5th Cir. 2000),
a Title VII action, we stated, with regard to pre- and post-
judgment interest, that we have “approved the imposition of the
federal rate of interest in Title VII cases as making a plaintiff
whole, but [we have not] held that only the federal rate of
interest is appropriate for this purpose”.
Moreover, Williams is analogous in that it was a Title VII
action; this action arises under the Rehabilitation Act, which
expressly incorporates the “‘remedies, procedures, and rights’ of
Title VII”. Arneson v. Callahan, 128 F.3d 1243, 1245 (8th Cir.
1997) (quoting 29 U.S.C. § 794a(a)(1)), cert. denied, 524 U.S. 926(1998). Williams used the federal rate of interest.
6
We have approved of use of other rates in calculating
prejudgment interest. E.g., In re M/V Nicole Trahan, 10 F.3d 1190,
1197 (5th Cir. 1994) (affirming award of prejudgment interest at
federal rate in admiralty action). Where an action arises under
federal law, “it is within the discretion of the district court to
select an equitable rate of prejudgment interest”. Hansen v.
Continental Ins. Co., 940 F.2d 971, 984 (5th Cir. 1991).
III.
For the foregoing reasons, the judgment is AFFIRMED, with the
exception of the attorney’s fees awarded for Roy Raspanti’s work.
That portion of the judgment is VACATED, and this action is
REMANDED for entry of judgment consistent with this opinion.
MOTIONS GRANTED; AFFIRMED IN PART; VACATED IN PART; AND
REMANDED
7