Debbie Keslar v. Bryce Bartu

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2242
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Debbie Keslar, *
*
Appellant, *
*
v. *
*
Bryce Bartu, both individually and in his *
official capacity as District Judge for the *
Fifth Judicial District of Nebraska; the *
State of Nebraska, *
*
Appellees. *
_______________ * Appeal from the United States
* District Court for the District
National Employment Lawyers * of Nebraska.
Association; the Impact Fund; the *
Mexican American Legal Defense and * [PUBLISHED]
Educational Fund; NOW Legal Defense *
and Education Fund; Connecticut *
Women's Education and Legal Fund; DC *
Rape Crisis Center; Jewish Women *
International; National Council of *
Jewish Women; National Organization *
for Women Foundation; National *
Women's Law Center; Women *
Employed; Women's Law Project, *
*
Amici on behalf of *
Appellant. *
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Submitted: January 10, 2000
Filed: February 4, 2000
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Before RICHARD S. ARNOLD, FAGG, and HANSEN, Circuit Judges.
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PER CURIAM.
Court reporter Debbie Keslar brought this Title VII employment discrimination
action against a state district judge and the State of Nebraska alleging the judge
sexually harassed her while she worked for him. The parties settled the case on the eve
of trial. Although the defendants did not admit liability, they stipulated Keslar was the
prevailing party. In settlement, the State paid Keslar $70,000 and agreed to make an
existing harassment policy expressly applicable to official court reporters and to ensure
sexual harassment complaints are promptly investigated. Keslar then asked the district
court to award her attorney's fees and costs under 42 U.S.C. § 1988. Keslar requested
fees in the amount of $423,797.50 for 3400 hours of work, costs in the amount of
$34,017.88, and an enhancement of the fee award. Stating Keslar's lawyer "lost all
sense of proportion and spent too much time and money on what was only slightly more
than a run-of-the-mill case," the district court awarded a fee of $35,875. The district
court arrived at that amount by multiplying the total hours reasonably expended, 350
instead of 3400, by reasonable hourly rates for both California and Nebraska counsel.
The district court awarded costs permitted by the cost statutes and case law in the
amount of $17,009. Rather than elaborating on the reductions in requested fees and
costs in its order, the district court referred to the "very detailed and extraordinarily
well written brief submitted by counsel for the defendants." Keslar appeals the fee and
cost award. We conclude the district court did not abuse its broad discretion. See
Polacco v. Curators of Univ. of Mo., 37 F.3d 366, 370 (8th Cir. 1994) (standard of
review). Contrary to Keslar's assertion, the district court applied the lodestar analysis
by multiplying the number of hours reasonably spent on the case by a reasonable hourly
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rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The district court simply
excluded hours that were not reasonably spent on the case from the lodestar
calculation. See id. at 434, 436-37. The district court properly declined to enhance
the lodestar amount. See Forshee v. Waterloo Indus., 178 F.3d 527, 532 (8th Cir.
1999). Having carefully reviewed the record and all of Keslar's arguments on appeal,
we affirm the district court's fee and cost award.
RICHARD S. ARNOLD, Circuit Judge, dissenting.
As the Court notes, counsel for the prevailing plaintiff in this case requested a
fee award of $423,797.50. A two- or three-fold enhancement was also sought.
Counsel reported spending 3,400 hours on the case, about as much time as a single
lawyer would spend in her entire practice for two full years. Given the nature of this
case and the other relevant circumstances, this request was destined to be reduced. It
was greatly overstated, and I cannot say that the District Court abused its discretion in
reducing the award substantially.
Two aspects of the District Court's reasoning, however, seem problematic to me.
One of the factors traditionally considered in making fee awards is the undesirability
of the case. Here, a number of lawyers turned the case down before plaintiff's present
lead counsel accepted it. The reason is not hard to imagine. The defendants in the case
were a Nebraska state trial judge, the Supreme Court of Nebraska, the Chief Justice of
the Supreme Court, and the state court administrator. I believe that most lawyers, and
understandably so, would think twice before suing such a powerful array, even where,
as here, the case showed prospects of being substantial. About this factor, the District
Court said:
While the fact that judges were sued is not irrelevant, it does
not justify an exorbitant fee and cost application. Nor does
it make the case anything more than slightly unusual.
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Specifically, I do not give much weight to the suggestion
that it took courage on the part of the plaintiff's counsel to
prosecute this case.
Debbie Keslar v. Bryce Bartu, No. 4:96CV3072, Memorandum and Order, p. 2 n.3
(D. Neb., March 18, 1999).
Of course an "exorbitant" application would not be justified no matter who the
defendants were. But I cannot agree that suing judges, including the top of the judicial
hierarchy, is only "slightly unusual." I would give substantial weight to the amount of
courage that it took for any lawyer, especially a relative new one (plaintiff's lead
counsel has been in practice for less than ten years) to bring such a suit. The
underlying claim here was sexual harassment of a court reporter by the judge to whom
she was assigned. Suing a judge for any reason (I speak now of the real world) would
probably give most lawyers pause. Suing a judge for embarrassing personal
misconduct, and bringing into the suit representatives of the entire judicial system,
would cause any prudent lawyer to hesitate, think the matter over, and proceed only if
the case seemed really important, or really likely to succeed. In other words, I think
it took a lot of courage for plaintiff's counsel to file this lawsuit, and I believe the
District Court undervalued this factor in considering the fee application.
Plaintiff got two things out of this settlement: a payment of $70,000.00, which
is not inconsiderable, and injunctive relief. The District Court described the latter
aspect of the settlement as "minimal." Id. at 1-2. On the face of it, I cannot agree with
this assessment, and I believe this factor should at least be reconsidered. When
plaintiff began attempting to secure relief against the judge for whom she worked, the
only avenue of redress (short of filing suit) lay in a complaint to the Nebraska Judicial
Qualifications Commission. Evidence in this record strongly suggests that the
Commission had not paid prompt attention to similar complaints in the past. In
addition, the plaintiff was told that she had no protection against retaliation. That is,
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by complaining, she exposed herself to discharge by the very person who, she was
contending, had wronged her. Federal law would have protected her against such
retaliation, see 42 U.S.C. § 2000e-3(a), but apparently no one told Ms. Keslar that. So
the state administrative process, as it existed before this matter arose, apparently left
something to be desired.
The settlement in this case, which was signed by the Chief Justice of the
Supreme Court of Nebraska, obligates the defendants to take the following steps:
develop and implement a prompt response procedure to
address complaints made by employees involving alleged
unlawful discrimination against them by any member of the
judiciary.
* * * *
ensure that the workplace harassment policy of the court is
clearly shown as applicable to official court reporters.
The settlement agreement recited that this commitment was "a material term of the
agreement."
I question the District Court's description of this relief as "minimal." In addition,
it is somewhat disturbing for the defendants to trivialize their agreement, as they are
now doing in an effort to justify the District Court's order with respect to fees and costs.
It is true that the agreement is lacking in specifics, but I cannot think that the courts of
Nebraska will not take it seriously. It is essential that employee complaints of this
nature be promptly investigated. This is just as important for persons accused as it is
for persons who claim to be aggrieved. And presumably the new process will contain
some kind of assurance that court employees who make reasonable, good-faith
complaints will not lose their jobs because they have done so. These changes in the
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status quo are significant. I acknowledge, as defendants suggest, that these changes,
or something like them, were in the works before the settlement agreement in this case
was actually signed. It seems likely, however, that this lawsuit was an important part
of the impetus for making such changes. Significantly, the defendants, for a time,
resisted including any such undertaking in the settlement agreement.
In my view, the District Court abused its discretion in giving the factors I have
mentioned too little weight. I would vacate its order and remand for reconsideration
in light of the comments in this opinion. I would not, however, agree to appellant's
request that the case be assigned to another district judge. Appellant asserts (though
not much emphasis is given to the point) that the District Court's opinion "reveal[s] an
inherent prejudice against Keslar's case and her counsel." Brief for Appellant 32. I
think this accusation is unjust. It was the district judge's job to assess the quality and
quantity of appellant's counsel's performance. Some lawyers are more aggressive than
they need to be, and spend more time than they need to on their cases. Defendants,
even when they lose or settle the case, should not have to pay for these aspects of
opposing counsel's performance. The fact that a judge believes that a lawyer has "lost
all sense of proportion and spent too much time and money on what was only slightly
more than a run-of-the-mill case," id. at 2, does not mean that the judge is guilty of
gender bias, merely because the lawyer about whom such comments are made is a
woman. The judge may be mistaken in his comments, but that is not at all the same
thing as being biased or prejudiced. There is no evidence whatever of bias or prejudice
on the part of this judge.
Although my disagreement with the Court is limited to the two factors I have
mentioned, I believe they are important enough to require a reconsideration of the
matter, and I therefore respectfully dissent.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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