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CLARK v. BOARD OF EDUC. OF NEPTUNE

November 9, 1995

DAVID C. CLARK, Plaintiff,
v.
THE BOARD OF EDUCATION OF THE TOWNSHIP OF NEPTUNE, et al., Defendants.



The opinion of the court was delivered by: WOLFSON

MEMORANDUM

 WOLFSON, UNITED STATES MAGISTRATE JUDGE

 Presently before the Court is the motion by plaintiff, pursuant to 42 U.S.C. § 1988, seeking attorneys' fees for legal services provided both in defending plaintiff in a state administrative tenure proceeding and in prosecuting plaintiff's § 1983 case. The parties consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636. Following briefing and oral argument on July 26, 1995, the Court directed plaintiff's counsel to adjust the attorney's fees sought and resubmit their request for fees accordingly. Subsequently, the Court received moving, opposition, and reply papers. This matter is being considered pursuant to Fed. R. Civ. P. 78. For the following reasons, plaintiff is awarded $ 69,346.11 in fees *fn1" and $ 2,219.74 in costs, *fn2" totalling $ 71,565.85, to be paid by defendant, the Neptune Township Board of Education ("Board").

 Background

 Plaintiff is a high school teacher employed by the Board. Plaintiff filed this § 1983 action against the Board, Robert McEwan, Harry Smith, Gilmon Brooks, Joanne Collins, Michael Fornino, Dominic Loperfido, Frances Taylor, Gail Taylor, and Maureen Weber, all of whom are voting members of the Board, as well as against Michael T. Lake, Superintendent of Schools for the Neptune Township Public School System. His complaint alleged that defendants had violated his first and fourteenth amendment rights guaranteed by the United States Constitution.

 The allegations in the complaint arose out of the Board's termination of plaintiff based upon his statements, made on January 30, 1992, during a radio talk show. During this radio talk show, plaintiff discussed, among other things, his disapproval of the high school's curriculum which required the teaching of African literature in his American Literature class during "Black History Month." Plaintiff's Complaint at P 7.

 On January 31, 1992, defendants suspended plaintiff from teaching, and further denied plaintiff salary increments. On February 20, 1992, the Board initiated a state administrative tenure proceeding to terminate plaintiff's employment by filing charges, pursuant to the New Jersey Tenure Employees' Hearing Law, N.J.S.A. § 18A: 6-10, et seq., with the New Jersey Commissioner of Education. *fn3" Plaintiff's Complaint at PP 15-16. The charges against plaintiff were that he had engaged in conduct unbecoming a teacher. Plaintiff's counsel represented plaintiff during the tenure proceedings, and challenged the Board's denial of plaintiff's salary increments. Certification of Steven R. Cohen at P 4. During the tenure proceedings, plaintiff defended on the grounds that defendants had violated his first amendment rights by instituting the tenure proceedings against him. Plaintiff further claimed that his due process rights had been violated because the Commissioner of Education, the official to whom appeals from the administrative law judge's decision would be taken, was biased in favor of defendants. This contention was based upon a letter issued by the Commissioner which plaintiff claimed contained ex parte information supplied by defendants. Certification of Steven R. Cohen at p. 4, n.1; p. 5, n.2; see also Reply Certification of Steven R. Cohen at P 3. On March 8, 1994, plaintiff filed the complaint in this action.

 On May 23, 1994, the administrative law judge who presided over the tenure proceedings granted plaintiff's motion to dismiss the tenure charges, finding that defendants had violated plaintiff's first amendment rights. The administrative law judge ordered the reinstatement of plaintiff, and awarded back pay and the withheld salary increments. Certification of Steven R. Cohen at P 6.

 Two appeals ensued. On June 14, 1994, the Board filed exceptions to the administrative law judge's decision with the Commissioner of Education. *fn4" On August 23, 1994, the Commissioner rejected the Board's contentions, and adopted the decision of the administrative law judge. Certification of Steven R. Cohen at P 7. The Board then appealed the decision of the Commissioner to the New Jersey State Board of Education, and on January 4, 1995, the State Board affirmed the decisions of the administrative law judge and of the Commissioner. Certification of Steven R. Cohen at P 8.

 On April 12, 1995, plaintiff moved for attorney's fees and costs incurred in connection with both the filing of the § 1983 complaint and the defense of plaintiff in the tenure proceedings, seeking a total of $ 106,402.38. *fn5" See Plaintiff's April 12, 1995 Letter Brief. The Board opposed, contending that plaintiff was only entitled to fees in the amount of $ 13,192.01. The Board did not contest the reasonableness of plaintiff's counsel's hourly rates, *fn6" and further, acknowledged that plaintiff was entitled to recover some of the fees requested inasmuch as plaintiff was the prevailing party under the settlement. The Board, however, argued that plaintiff was not entitled under § 1988 to fees for legal services rendered in connection with the state administrative tenure proceedings. In support of its claim, the Board maintained that the state proceedings had been "optional," and as such, the burden was upon plaintiff to demonstrate that the services rendered in connection with these proceedings were "useful and of a type ordinarily necessary" to advance plaintiff's § 1983 suit, as required by the Supreme Court's decision in Webb v. Dyer County Board of Educ., 471 U.S. 234, 85 L. Ed. 2d 233, 105 S. Ct. 1923 (1985). The Board contended that plaintiff had failed to meet this burden. Defendant's May 15, 1995 Letter Brief at 2. In reply, plaintiff asserted that the proceedings had not been optional, or, alternatively, that the work performed had been both useful and ordinarily necessary to further plaintiff's civil rights litigation. Plaintiff's May 30, 1995 Letter Brief.

 On July 26, 1995, the Court heard oral arguments on plaintiff's motion. The Court ruled that plaintiff was not entitled to the fees attributable to plaintiff's tenure proceeding defense which challenged the Commissioner's partiality because this defense was unrelated to plaintiff's civil rights litigation. In addition, the Court informed the parties that a discrete portion of the legal services rendered in the tenure proceedings would be allowed pursuant to Webb. Indeed, the parties and the Court had recognized the nexus between the administrative proceedings and this civil rights litigation by agreeing to stay this federal case until the administrative matter was concluded. The parties were prescient, since the conclusion of the administrative matter did result in a speedy settlement of this case. That connection, did not, however, transform the entire proceeding into a compensable event for attorney's fees under § 1988. Thus, the Court instructed plaintiff's counsel to adjust the total amount of attorney's fees accordingly. The Court further instructed plaintiff's counsel to substantiate their fee application by explaining how the services for which plaintiff's counsel sought fees had, in fact, advanced plaintiff's civil rights litigation. As guidance, the Court directed the parties' attention to Stacy v. Stroud, 845 F. Supp. 1135, 1143 (S.D.W. Va. 1993), in which the court held that fees incurred in defending a driving-under-the-influence charge were compensable under § 1988. This Court favorably noted that the Stacy decision expressly took into consideration the attorney's selectivity in requesting fees for the work performed. Id.

 On August 4, 1995, plaintiff's counsel submitted a copy of the adjustments made to the attorney's fees in accordance with the Court's July 26, 1995 directive. The adjustments, which related only to plaintiff's partiality defense in the tenure proceedings, totalled $ 11,024.65. See Plaintiff's September 12, 1995 Letter Brief. By letter brief dated September 8, 1995, the Board opposed a number of the fees sought. It argued that plaintiff had again failed to establish that the services rendered in the tenure proceedings were useful and necessary to plaintiff's civil rights litigation. It further maintained that plaintiff had included as adjustments a number of deductions which plaintiff had previously subtracted in its billing discretion, and that these adjustments were therefore duplicative. In a reply letter dated September 12, 1995, plaintiff argued that the services to which defendant pointed were indeed relevant to the civil rights litigation, and that defendant's claim regarding plaintiff's duplicative adjustments was without merit.

 Thus, plaintiff now seeks a total of $ 96,795.23 in attorney's fees. *fn7" Because defendant does not contest the hourly rates suggested by plaintiff, or the number of hours which plaintiff claims were expended in filing his civil rights complaint, see Defendant's May 15, 1995 Letter Brief at 7, the Court will address only defendant's specific objections, as set forth in its September ...


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