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El-Tabech v. Clarke

August 13, 2010


Appeals from the United States District Court for the District of Nebraska.

The opinion of the court was delivered by: Loken, Circuit Judge.

Submitted: April 13, 2010

Before LOKEN, COLLOTON, and GRUENDER, Circuit Judges.

Mohamed El-Tabech, a Muslim inmate serving consecutive life sentences in Nebraska's Tecumseh State Correctional Institution (TSCI), commenced this 42 U.S.C. § 1983 action alleging that prison officials were violating his religious rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq. After a bench trial, the district court issued an order requiring defendants to post a copy of his prayer schedule so that TSCI guards are aware of it and directing the parties to negotiate procedures to provide El-Tabech kosher meals. El-Tabech v. Clarke, Mem. & Order dated July 17, 2007 (D. Neb. No. 4:04cv3231). Ten weeks later, granting the parties' Joint Stipulation, the court ordered defendants to implement a stipulated "Kosher Equipment and Meal Preparation Process" to provide El-Tabech "a nutritionally-sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures," and to allow "a person with expertise in the area of kosher diet preparation and service" to verify that "the Kosher Process, once implemented . . . meet[s] Defendants' stated commitment to never serve Mr. ElTabech non-kosher food." Order dated Oct. 5, 2007. In May 2008, the court awarded El-Tabech as prevailing party attorneys' fees and costs, as authorized by 42 U.S.C. § 1988(b). None of these orders was appealed.

In October 2008, El-Tabech moved for an order under Rules 69(a) and 70 of the Federal Rules of Civil Procedure directing defendants to pay the fee award to ElTabech's attorneys and increasing the post-judgment interest rate payable on that award. On February 4, 2009, the district court granted the motion. In Case No. 09-1554, the State appeals that order. In August 2008, El-Tabech moved for an order holding defendants in contempt for alleged violations of the injunction orders. On March 4, 2009, the district court granted El-Tabech the relief requested on one claim, modifying the stipulated injunction to require that El-Tabech be provided only prepackaged kosher foods. He promptly submitted a supplemental fee request, which the district court granted on June 10, 2009, awarding $73,360.20 in attorneys' fees and $271.20 in costs for post-judgment work. In Case No. 09-2691, the State appealed both orders. We dismissed the appeal of the contempt order as untimely, leaving only the appeal of the supplemental fee award. We consolidated the two cases on appeal and now reverse both orders and remand for further proceedings.

I. Enforcing the Original Fee Award (No. 09-1554)

Though the Eleventh Amendment bars an award of damages against a State in a § 1983 action, a federal court may award attorneys' fees and other costs against the State under § 1988 as part of the prospective injunctive relief authorized in the landmark decision Ex parte Young, 209 U.S. 123 (1908). See Hutto v. Finney, 437 U.S. 678, 689-98 (1978). A Nebraska statute first enacted in 1982 expressly provides that a federal court award of fees and expenses against the State "shall be paid in the manner provided in the State Miscellaneous Claims Act." Neb. Rev. Stat. § 25-1806. The Miscellaneous Claims Act (MCA) provides that a claim must be submitted to the State Claims Board and, if approved by the Board, a claim for more than $50,000 "shall be reviewed by the Legislature [at its next session] and an appropriation made therefor if appropriate." Neb. Rev. Stat. § 81-8,300.

Time sheets submitted in support of El-Tabech's request for a supplemental fee award reveal that his attorneys began researching a "legal basis to challenge state statutory restrictions upon enforcing a federal court judgment" in February 2008. On May 5, some two months later, the district court awarded El-Tabech $204,986.28 in attorneys' fees and costs as the prevailing party. In late October, he filed a motion for relief under Rules 69(a) and 70 of the Federal Rules of Civil Procedure. In support, counsel submitted an affidavit averring that, on October 8, he called Assistant Attorney General Linda Willard and advised that El-Tabech would file a motion to enforce the attorneys' fee judgment and seek additional compensation for failure to pay because counsel "had not received any response to our prior requests for payment." After the State Claims Board advised Willard it had not received a claim requesting payment, she promptly advised counsel that, under Nebraska law, the judgment could not be paid without approval of a claim by the Claims Board and the Legislature, and that the Department of Correctional Services legal staff would promptly endorse a request for payment. The affidavit further averred that counsel's law firm operates under a line of credit that exceeds the amount of the May 5 judgment and accrues interest at the rate of five percent per year.

Contrary to counsel's affidavit, time sheets kept by El-Tabech's attorneys include the following entry dated June 13, 2008:

Correspondence from Neb. Dept. of Risk Management re: filing of claim for payment of judgment for attorney's fees. Research re: effect of filing of claim for payment of attorney's fee judgment. Preparation of memorandum re: same. Preparation of claim for attorney's fees for State Claim Board.

An entry dated September 10, 2008, recorded: "Review and revise State Claims Board claim form for attorney's fees and costs." Yet no claim was filed. Instead, counsel spent 69.4 hours between September 10 and October 8 preparing a motion to preempt the State's payment statutes and procedures, an exercise they began in February 2008. These facts were not disclosed to the district court until the time sheets were filed in March 2009, some six weeks after the court issued its ruling based on defendants' alleged dilatory conduct.

The district court granted this motion in the order being appealed. Its description of the motion is significant:

Plaintiff seeks an order directing the defendants to immediately issue a warrant payable to plaintiff's counsel to satisfy the May 5, 2008, judgment and also seeks an increase in the amount of post-judgment interest payable [on that] judgment to a rate deemed appropriate to insure the defendants' compliance with the court's order.

El-Tabech v. Clarke, Mem. & Order dated Feb. 4, 2009, at p.1. Explaining that "defendants' invocation of its lengthy claims procedure should not operate to the financial detriment" of attorneys awarded fees under § 1988, the court ordered:

1. Plaintiff's motion for relief under Fed. R. Civ. P. 69 or 70 (Filing No. 212) is granted.

2. Judgment is entered for interest in the amount of [$7,857.72] for the period from May 5, 2008 . . . ...

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