Fahy v . NH DOS 05-CV-097-SM 10/26/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Sr. M . Regina Fahy, RSM; Haliyamtu Theo Amani; Sarra Ali; Eva Castillo-Turgeon; and Annagreta Swanson, Plaintiffs

v. Civil N o . 05-cv-97-SM Opinion N o .

Commissioner, New Hampshire Department of Safety,

O R D E R

Plaintiffs lawfully reside in New Hampshire, but are not

United States citizens. They brought this action challenging six

written and unwritten policies of the New Hampshire Department of

Safety, Division of Motor Vehicles (“DMV”), claiming that each

unlawfully discriminates against them as non-citizens.

Plaintiffs obtained limited success on their claims and now seek

an award of approximately $176,000 in attorney’s fees,

representing roughly 770 hours of work associated with this case.

See generally

. The State objects, at least in

part, acknowledging that plaintiffs are entitled to an award of

reasonable attorney’s fees, but asserting that the amount

requested is excessive. For the reasons set forth below, plaintiffs’ motion for

attorney’s fees is granted in part, and denied in part.

Background

The primary focus of plaintiffs’ petition for declaratory

and injunctive relief was their challenge to the DMV’s practice

of requiring all non-United States citizens who were applying for

a new or renewal driver’s license to appear at the DMV main

office in Concord. Plaintiffs claimed the DMV’s imposition of

that requirement on non-citizens, while allowing citizens to

process driver’s license applications at local DMV satellite

offices, amounted to a violation of their constitutionally

protected rights of equal protection, due process, and freedom of

travel. Plaintiffs also challenged five other DMV policies,

alleging that they too amounted to unconstitutional

discrimination against non-citizens.

In a prior order, the court summarized the DMV policies at

issue in this case as follows:

1. The regulatory requirement set forth in Saf-C 1002.06(b) which provides that “all non- United States citizens applying for an original or renewal driver license shall appear only at the Division of Motor Vehicles [in] Concord, N.H.”

2 2. The requirement that all non-citizen applicants for an original driver’s license take a road skills test, even if they are surrendering a valid driver’s license from another state, while similarly situated citizens of the United States need only take such a test under limited circumstances. Saf-C 1003.04(a)(3).

3. The requirement that, if a non-citizen does not hold a driver’s license from his or her home country, he or she must provide documentation from the home country that demonstrates either: (a) the applicant has never held a driver’s license; or (b) that the applicant has held a driver’s license in the United States. Saf-C 1003.04(c).

4. The practice of issuing a 45-day paper driving permit to non-citizen applicants for original driver’s licenses, when citizens receive a 6-month laminated photo-I.D. temporary license. Saf-C 1003.04(e)

5. An allegedly unwritten policy of requiring non-citizens to renew their driver’s licenses more frequently than the statutorily required five (5) years.

6. An allegedly unwritten policy imposing on non-citizens more onerous requirements regarding proof of N.H. residency, even when they are merely renewing an existing N.H. driver’s license.

Fahy v . Commissioner, N.H. Dept. of Safety,

(D.N.H.

March 2 9 , 2006) (“Fahy I ” ) . In that order, the court granted

plaintiffs limited relief. Specifically, it enjoined the DMV

from enforcing the provisions of Saf-C 1003.04(e), which

3 authorized it to issue 45-day temporary driving permits to non-

citizen applicants for original driver’s licenses.

Subsequently, plaintiffs filed a “Motion to Amend Judgment”

(document n o . 5 7 ) , in which they complained that, notwithstanding

the DMV’s adoption of a new policy governing the issuance of

driver’s licenses to non-citizens, “the DMV persists in tying

their driver license expiration to the expiration of their

immigration documents.”

at 4 . Without determining whether

or not the DMV was actually engaging in any unlawful practices,

the court held that “to the extent the issue remains unresolved,

it is plain that the New Hampshire Department of Motor Vehicles

is not authorized by federal law, state law, or even its own

administrative regulations, to issue drivers’ licenses that

expire in fewer than five years to certain categories of non-

citizens, in which plaintiffs are included.” Fahy v .

Commissioner, N.H. Dept. of Safety,

7 4 , slip o p . at 4

(D.N.H. June 2 6 , 2006) (“Fahy I I ” ) .

Discussion

I. Prevailing Party Status.

That part of

dealing with awards of

attorney’s fees provides, in relevant part, that in any action

4 brought pursuant to section 1983, “the court, in its discretion,

may allow the prevailing party . . . a reasonable attorney’s fee

as part of the costs.”

(b). Thus, to be

entitled to an award of attorney’s fees under

, a

plaintiff must have “prevailed” on one or more of its federal

civil rights claims. In describing what constitutes a prevailing

party, the Supreme Court has embraced a “generous formulation.”

Texas State Teachers Ass’n v . Garland Indep. Sch. Dist.,

(1989). That formulation is not, however, without

substance. To be deemed a prevailing party, a plaintiff must

have received “at least some relief on the merits of his claim.”

Hewitt v . Helms,

(1987). That is to say, the

plaintiff “must be able to point to a resolution of the dispute

which changes the legal relationship between itself and the

defendant.” Garland,

.

Moreover, the benefit to the plaintiff must be the product

of a “judicially sanctioned change in the legal relationship of

the parties.” Buckhannon Bd. & Care Home, Inc. v . W . V a . Dep’t

of Health & Human Resources,

9 8 , 605 (2001). A

plaintiff who claims that his or her suit was the “catalyst” that

prompted a defendant to voluntarily alter its behavior is not,

without more, a “prevailing party.” Id. at 610. In other words,

5 to qualify as a prevailing party under section 1988, a plaintiff

must be able to point to an enforceable judgment or court-ordered

consent decree that effected a material alteration of the legal

relationship between the parties. Id. at 604. A defendant’s

voluntary cessation of challenged conduct, even after suit was

filed, does not, standing alone, bestow prevailing party status

on a plaintiff.

As an aside, the court notes that this litigation was not

brought as a class action. Instead, it was brought by five

individuals. Thus, to constitute prevailing parties, one or more

of those five individuals must demonstrate that he or she

actually benefitted, in a direct and material way, from the

relief granted by this court.

II. Calculating an Appropriate Fee Award.

If a plaintiff is properly viewed as a prevailing party, the

next step is to determine the amount, if any, of attorney’s fees

to which he or she is entitled. “The most useful starting point

for determining the amount of a reasonable fee is the number of

hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Hensley v . Eckerhart,

2 4 , 433

(1983). Importantly, however, the “product of reasonable hours

6 times a reasonable rate does not end the inquiry.” Id. at 434.

In cases such as this, where a plaintiff has obtained only

limited success, the court must “focus on the significance of the

overall relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation.” Id. at 435. As the

Supreme Court observed:

If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.

Id. at 436.

III. Plaintiffs’ Entitlement to Fees.

Plaintiffs did not prevail with respect to the majority of

the claims advanced in their complaint. As to their primary

claim - that the DMV could not, consistent with the Constitution,

require non-citizens to appear exclusively in Concord to obtain

initial or renewal driver’s licenses - the court ruled in favor

of the State and denied plaintiffs the injunctive and declaratory

relief they sought. Fahy I ,

. Likewise, as

7 to plaintiffs’ claim that the DMV employed an unwritten policy of

imposing on non-citizens more onerous requirements regarding

proof of New Hampshire residency, the court again ruled in favor

of the DMV, concluding that even if the DMV once had such a

policy, it was no longer enforcing i t .

As to plaintiffs’ challenge to the DMV’s policy of requiring

non-citizens to take a road-skills test even if they are

surrendering a valid drivers’ license from another state, the

court held that plaintiffs lacked standing. The court reached

the same conclusion with regard to plaintiffs’ claim that the

DMV’s policy of requiring non-citizens to provide various

documents from their home country violated their constitutional

rights. In both cases, the court concluded that none of the

named plaintiffs had been subjected t o , or adversely affected by,

the challenged policy.

Plaintiffs did, however, obtain some form of judicial relief

with respect to two of the six claims advanced in their petition:

(1) their challenge to the DMV’s issuance to non-citizen

applicants for original driver’s licenses of a paper, 45-day

temporary license, when citizens receive a laminated, 6-month

photo-I.D. temporary license; and (2) their challenge to an

8 allegedly unwritten policy requiring certain categories of non-

citizens to renew their driver’s licenses more frequently than

the statutorily prescribed five-year period.1

As to the first of those claims, however, plaintiffs cannot

be viewed as “prevailing parties” since each had already obtained

an original New Hampshire driver’s license well before the court

entered judgment in this case. Thus, while this litigation might

well have precipitated the change in DMV policy, the individual

plaintiffs did not benefit from that change in any material way.

That is to say, because each plaintiff already held an original

New Hampshire driver’s license when the court entered judgment in

this case, none will ever realize any benefit from the

1 Parenthetically, the court notes that while the DMV’s practice of issuing paper, temporary driving permits to non- citizen applicants for original driver’s licenses was plainly unlawful, plaintiffs’ claims concerning that practice were, as the DMV points out, probably moot (since none of the named plaintiffs will ever be subjected to that policy again). At this juncture, however, that point is of little moment. The DMV has discontinued its practice of issuing the paper driving permits and, even if it had not, a properly constructed class action suit (not subject to the mootness problem) would plainly prevail on a constitutional challenge against that practice. At a minimum, the point illustrates the problem with bringing individual claims, rather than a class action, when challenging practices that occur only once with respect to any particular individual and, therefore, do not fall within the “capable of repetition, but evading review” doctrine. See, e.g., Weinstein v . Bradford,

4 7 , 149 (1975).

9 elimination of the DMV’s former policy of issuing temporary, 45-

day, paper driving permits to non-citizen applicants for original

driver’s licenses. Moreover, as to the DMV’s prior practice of

issuing temporary licenses to non-citizens seeking renewal

licenses, the DMV voluntarily stopped that practice in April of

2005. See Affidavit of Nancy Smith, Attachment 4 (document n o .

70-7).

As to the second claim on which plaintiffs obtained judicial

relief - the DMV’s alleged practice of issuing licenses to

certain non-citizens that expired in fewer than five years - all

plaintiffs claim that they were subjected to that policy and

received a renewal driver’s license that expired in fewer than

five years. See Fahy I ,

. But, the DMV

points out that on April 2 7 , 2005, it clarified its pilot program

and specifically instructed all DMV employees that if a

“permanent resident card has ‘indefinite’ status, the applicant

will be issued a 5 year driver license.” Affidavit of Nancy

Smith, Attachment 4 (document n o . 7 0 - 7 ) . And, says the DMV, all

plaintiffs obtained renewal licenses after the DMV voluntarily

changed its policies, but before the court issued its orders in

this case. Consequently, the DMV claims none of the plaintiffs

actually benefitted as a result of the court’s having ruled in

10 their favor. According to the DMV, the benefits plaintiffs

secured were the result of its having voluntarily changed its

policies.

Plaintiffs have not responded to the DMV’s assertions.

Nevertheless, in their motion to amend judgment, plaintiffs

asserted that, despite the DMV’s clarification of the pilot

program on April 2 7 , 2005, it continued to unlawfully link the

expiration date of driver’s licenses issued to certain categories

of non-citizens to the expiration date of their legal status

documents. Plaintiff’s memorandum in support of motion to amend

judgment (document n o . 57-2) at 4 . Accordingly, the court issued

its order dated June 2 6 , 2006, declaring that “to the extent the

issue remains unresolved, it is plain that the New Hampshire

Department of Motor Vehicles is not authorized by federal law,

state law, or even its own administrative regulations, to issue

drivers’ licenses that expire in fewer than five years to certain

categories of non-citizens, in which plaintiffs are included.”

Fahy I I ,

(D.N.H. June 2 6 , 2006). As to that

issue, then, plaintiffs plainly benefitted in a meaningful way

from the court’s order, thus making them “prevailing parties,”

for purposes of awarding fees, albeit to a limited extent.

11 IV. Calculation of a Reasonable Fee Award.

Having determined that plaintiffs are properly viewed as

prevailing parties with respect to one of the six claims advanced

in their petition, the court must next determine a reasonable

award of fees. As the Supreme Court has noted, the most critical

factor to consider in arriving at an appropriate fee award is the

degree of success obtained by plaintiffs. See Hensely, 461 U.S.

at 436. Considering plaintiffs’ success on a claim-by claim

basis, the relief actually awarded them, and the societal

importance of the rights vindicated, see Coutin v . Young &

Rubicam Puerto Rico, Inc.,

3 1 , 338 (1st Cir. 1997),

plaintiffs’ overall success was modest, but noteworthy.

Consequently, they are entitled to a correspondingly modest award

of attorney’s fees. And, since plaintiffs’ claims were

substantially inter-related, thereby making it difficult to

segregate out fees generated on claims as to which plaintiffs did

not prevail, application of a strict lodestar fee calculation

would be both inappropriate and unworkable. See generally,

Andrade v . Jamestown Housing Auth.,

, 1191 (1st Cir.

1996). See also Pearson v . Fair,

7 , 46 (1st Cir.

1992).

12 Applying the general principles articulated in the cases

cited above, the court concludes that an award of $35,000 in

attorney’s fees constitutes a fair, equitable, just, and

reasonable amount, representing approximately twenty percent of

the total amount plaintiffs seek. See Pearson,

(awarding fees in an amount representing approximately fifteen

percent of the total award sought). See generally Hensley, 461

U.S. at 436-37 (“There is no precise rule or formula for making

these determinations. The 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. The court

necessarily has discretion in making this equitable judgment.”).

Conclusion

As the court noted in Fahy I , prior to plaintiffs having

filed this suit, the DMV:

was engaged in several practices that were arguably questionable from a constitutional standpoint. But, to its credit (and perhaps at the urging of plaintiffs’ counsel), the State recognized those problems and addressed nearly all of them in ways that both comply with constitutional requirements and protect the security of its citizens by minimizing the opportunity for fraud in connection with the acquisition of New Hampshire driver’s licenses.

13 Fahy I, slip op. at 44-45. Without question, plaintiffs’ suit

served as a definite “catalyst” in prompting the State to re-

examine its policies and, with one exception, to voluntarily

amend those policies in a way that is consistent with

constitutional and statutory mandates. For that, plaintiffs and

their counsel should be commended.

Unfortunately for plaintiffs, however, the Supreme Court has

expressly rejected the so-called catalyst theory when determining

fee awards under section 1988. And, applying the required

analysis to the case at hand, the court is constrained to

conclude that plaintiffs are entitled to a substantially lower

award of fees than the one they seek. Accordingly, plaintiffs’

motion for attorneys’ fees (document no. 67) is granted in part

and denied in part. It is granted to the extent that plaintiffs

are hereby awarded the sum of $35,000.00 in attorneys’ fees,

pursuant to

. In all other respects, it is

denied.

SO ORDERED.

Steven J. __McAuliffe Chief Judge

October 26, 2006

14 cc: Christine C . Wellington, Esq. Stephanie A . Bray, Esq. Nancy J. Smith, Esq.

15