Ernest D'Orazio, III v. Washington Township

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 12-1169
_______________
ERNEST M. D'ORAZIO, III,
Appellant
v.
WASHINGTON TOWNSHIP; STEPHEN ROLANDO;
JASON PLAYER; RICHARD SUMEK; RAFAEL MUNIZ;
DENNIS SIMS; PAUL MORIARITY
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-07-cv-05097)
District Judge: Hon. Joseph E. Irenas
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 5, 2012
BEFORE: FUENTES, FISHER and COWEN, Circuit Judges
(Filed: October 16, 2012)
_______________
OPINION
_______________
COWEN, Circuit Judge.
Ernest M. D’Orazio, III appeals from the order of the District Court regarding his
Motion for Attorneys’ Fees and Costs, arguing that the District Court committed various
errors in awarding attorneys’ fees and costs. We affirm the order of the District Court,
and remand solely for the limited purpose of correcting an error relating to costs for
ordering transcripts from an administrative hearing.
I.
We write exclusively for the parties who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
In 2006, Appellant Ernest M. D’Orazio was serving a one-year appointment as a
Special Law Enforcement Officer (“SLEO”) with the Washington Township Police
Department. During this appointment, it declined to appoint him to a full time position
and removed him from his SLEO position. Appellant exercised his right to an
administrative hearing on the merits of his removal. Following the administrative
hearing, he was again not appointed to a permanent position. This suit followed.
After discovery was completed, the District Court entered an order granting in part
and denying in part summary judgment. Prior to the matter going to trial in the remaining
issues, Appellees submitted a Rule 68 Offer of Judgment in the amount of $75,000,
exclusive of attorneys’ fees and costs, which was accepted.
Following the entry of Judgment, Appellant filed a Bill of Costs and Motion for
Attorneys’ Fees and Costs. The Magistrate Judge held a hearing and issued a Report and
2
Recommendation, awarding a total of $228,607.20. Both parties filed objections to the
petition. The District Court adopted the Report and Recommendation in part, reducing
the total award to $153,147.27. We now review that determination.
II.
Under 42 U.S.C. § 1988(b), “the court, in its discretion, may allow the prevailing
party . . . a reasonable attorney’s fee as part of the costs.” In determining the
reasonableness of attorneys’ fees, the court should consider “the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). The reasonable hourly rate is calculated “according
to the prevailing market rates in the community.” Washington v. Philadelphia Cnty.
Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996).
The Supreme Court has noted that “the district court has discretion in determining
the amount of a fee award” because of the district court’s “superior understanding of the
litigation and the desirability of avoiding frequent appellate review of what essentially are
factual matters.” Hensley, 461 U.S. at 437. We review the reasonableness of an award of
attorneys’ fees for an abuse of discretion. Washington, 89 F.3d at 1034.
Appellant first argues that the District Court abused its discretion in awarding fees
based upon a rate of $250 per hour. The record indicates that the District Court
considered arguments submitted by both parties, including affidavits. The District Court
ultimately credited the affidavits submitted by the Appellees. We cannot say that the
District Court abused its discretion in making this determination.
3
Appellant also claims that the District Court erred by not considering the
Community Legal Service (“CLS”) fee schedule, which he claims has been “adopted” by
the Third Circuit. (Appellant Br. at 29.) The case that Appellant cites for this proposition
does not adopt the CLS fee schedule, but rather used it in one instance. See Maldonado v.
Houstoun, 256 F.3d 181, 187-88 (3d Cir. 2001).
Appellant also claims that the District Court erred in concluding that the proper
legal market is the “Southern New Jersey” market. We have never held that it is improper
for a District Court to determine—based on the evidence before it—that Southern New
Jersey is an appropriate market. There was no abuse of discretion for the District Court to
come to its conclusion.
Next, Appellant argues that the District Court erred because it did not conduct a
hearing on the reasonable market rate. This argument is without merit, since the
Magistrate Judge conducted an evidentiary hearing. Prior to the hearing, the parties
submitted multiple affidavits relating to the reasonable market rate, and taking testimony
was not necessary. We conclude that Smith v. Philadelphia Hous. Auth., 107 F.3d 223(3d Cir. 1997) was complied with.
Appellant also asserts that the District Court should not have considered
Appellee’s market rate affidavits because they were filed late. It is within the District
Court’s discretion to accept late filings. See N.J. Local Civil Rule 7.1(d)(7).
Appellant next argues that the District Court abused its discretion in not awarding
fees for work that was performed in the administrative proceedings and for work
4
performed after the filing of the initial Motion for Attorneys’ Fees. These arguments are
without merit.
District courts have discretion to deny requests for attorneys’ fees for time spent on
optional administrative hearings. See Webb v. Board of Educ. of Dyer Cnty., 471 U.S.
234, 244 (1985). The District Court did not abuse its discretion when it found that
Appellant did not establish an “inextricable link” between the administrative proceeding
and the litigation.
Similarly, we come to the same conclusion with the argument that the District
Court abused its discretion by declining to award attorneys’ fees for work performed by
Appellant after the filing of the initial Motion for Attorneys’ Fees. Given the record, we
conclude that the District Court properly exercised its discretion to deny attorneys’ fees
for work performed after the submission of the initial motion. See Hensley, 461 U.S. at
437 (explaining that giving the district court such discretion “is appropriate in view of the
district court’s superior understanding of the litigation and the desirability of avoiding
frequent appellate review of what are essentially factual matters”).
Appellant also argues that the District Court abused its discretion in reducing
attorneys’ fees by 20 percent to reflect “limited success” in the litigation. This argument
does not have merit because district courts have wide discretion to determine whether,
and by how much, fees should be reduced for lack of success. See Hensley, 461 U.S. at
436-37 (noting that “[t]he district court may attempt to identify specific hours that should
be eliminated, or it may simply reduce the award to account for the limited success” and
5
that the “court necessarily has discretion in making this equitable judgment”). Here, the
Magistrate Judge provided many reasons reflecting the “limited success,” including the
fact that Appellant settled for only 4.6 percent of damages originally sought and did not
obtain reinstatement to his job. (J.A. 50-54.)
Appellant next argues that the District Court abused its discretion by reducing
attorneys’ fees on certain bases that were not objected to by Appellees. This argument
fails, as the District Court was free to accept or reject the Report and Recommendation.
See Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (“Even if neither party objects to the
magistrate’s recommendation, the district court is not bound by the recommendation of
the magistrate.”). Appellant is correct that a district court cannot reduce attorneys’ fees
sua sponte. See Bell v. United Princeton Props., Inc., 884 F.2d 713, 719 (3d Cir. 1989).
However, Appellees objected on these bases in their Brief in Opposition to Plaintiff’s
Application for Fees and Costs. While Appellees did not raise each of these grounds
when objecting to the Report and Recommendation, the objections were part of the
record, and the District Court did not abuse its discretion by reducing attorneys’ fees
based on these grounds.
Finally, Appellant argues that the District Court erred in denying Appellant’s costs
incurred in the administrative proceeding and the mediation. The District Court was well
within its discretion to deny costs for the investigator fees and mediation fees. However,
the District Court’s opinion contains contradictory language about reimbursement of costs
for the administrative hearing transcript. The District Court noted in the Order that it will
6
permit the reimbursement of costs for the transcript, since it was used at the
administrative hearing. (J.A. 24 n.18.) However, the District Court also noted that it
would deny costs for the administrative hearing transcript, and the Court’s calculation of
costs deducted the cost of the transcript. (J.A. 24-25.) This was an error. We remand for
the limited purpose of awarding $3,290.75 in costs for the administrative hearing
transcript.
III.
For the foregoing reasons, we will affirm in part the order of the District Court and
remand in part for the limited purpose of awarding $3,290.75 in costs for the
administrative hearing transcript.
7