United States District Court, D. Idaho
B. LYNN WINMILL, Chief District Judge.
The Court has before it a motion for attorney fees filed by plaintiffs, who the Court will collectively refer to as Occupy Boise. The motion is fully briefed and at issue. For the reasons explained below, the Court will grant the motion and award $179, 803.50 in fees to Occupy Boise.
Occupy Boise pitched its tent city on the Capitol Mall as part of a nationwide protest against economic inequality. When the State sought to suppress the protest, Occupy Boise filed this lawsuit to protect its First Amendment rights. Occupy Boise prevailed and is therefore entitled to its attorney fees under 42 U.S.C. § 1988.
Occupy Boise seeks $179, 803.50 in attorney fees for the work done by two attorneys and two third-year law student externs acting as paralegals. The State does not object to the hourly rate for the attorneys or the paralegals, but does raise objections to certain categories of fees and the time spent on various tasks.
Objection: Reduce Fees for Defending State's Motion to Modify Injunction
The State seeks to reduce the fees by $20, 562.50. The State calculated this sum by adding up the fees Occupy Boise incurred in defending the State's motion to modify the injunction, a motion that the Court ultimately granted. The State offers this as a way to measure the lack of success suffered by Occupy Boise in challenging the no-camping statute.
In determining the amount of fees to award under § 1988, the extent of a plaintiff's success is a crucial factor. Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). Although fees are not reduced when a plaintiff prevails on only some of several factually related and closely intertwined claims, a reduced fee award is appropriate when a plaintiff achieves only limited success." Id.
Occupy Boise's central goal was to protest with its tent city. It won that right even though it lost some closely related claims. Thus, it did not achieve mere "limited success" in the Hensley sense that would justify a reduction in the fee award. Instead, it was fully successful. Moreover, Occupy Boise carved out the fees it incurred fighting and losing its facial challenge to the camping statute, and is not seeking those fees.
It is true that the State prevailed on its motion to modify the injunction. See Memorandum Decision (Dkt. No. 53). The Court ordered Occupy Boise to temporarily vacate the property to allow the State to complete maintenance on the grass, after which Occupy Boise could return. Id. This ruling was cold comfort for the State. From the very beginning of this case, the State was using its need to maintain the grounds as a stalking horse for its real goal of permanent eviction. Occupy Boise ensured that permanent eviction did not occur by opposing the State's motion and keeping the remedy limited to a temporary absence and a quick return. The fees Occupy Boise incurred fighting this motion advanced its ultimate goal of maintaining its protest, and hence should not be culled out and cut from its fee request.
Objection: Reduce Fees for Time Spent Challenging Rules
The State seeks to reduce any fee award by $47, 802.50, for the time spent by Occupy Boise in challenging the State's rules:
The rules are a matter entirely separate from the no-camping statutes. [Occupy Boise] received no relief on the merits of their challenges to the rules. The challenges to the 2012 rules were deemed moot; many of the 2013 rules were upheld; and the 2013 rules that were not upheld by this Court were ultimately dismissed as moot because the State Legislature, in exercising its statutory authority to review administrative rules, rejected them. [Occupy Boise] did not prevail and are not prevailing parties on their challenges to the rules because ...