A recent Law 360 story by Madison Arnold, “11th Circ. Oks Lower Atty Fees in Food Not Bombs Case”, reports that the Eleventh Circuit upheld a decision to cut attorney fees from about $1.5 million to just under $600,000 in a civil rights case involving a group that shares food with homeless populations against the city of Fort Lauderdale. A three-judge panel found that Fort Lauderdale Food Not Bombs was wrong in challenging both the reduction in its counsel's requested hourly rates and the reduction in the requested number of hours reasonably expended.
"We cannot conclude that the magistrate judge's findings with respect to the reasonable hourly rate are clearly erroneous," the panel wrote. "The findings are supported by ample evidence, including the hourly rates either awarded to, or requested by, the appellants' attorneys in recent prior cases ... the expert opinion of the city's expert, and the awards to other attorneys in comparable cases in the Southern District of Florida."
Food Not Bombs is an all-volunteer movement, but not an organized nonprofit, that recovers food planned to be discarded and shares meals with the hungry, according to its website. It hosts weekly food sharing at Stranahan Park, a public park in Fort Lauderdale where people without homes congregate. The city chapter and some of its members sued the city in January 2015, alleging that a zoning ordinance and park rule effectively banned them from engaging in First Amendment conduct.
They argued that sharing food to communicate a political message, which criticizes the money spent on war around the world, was expressive conduct. After a drawn-out legal battle, a final judgment was finally entered in December 2021, finding that the way the city applied its park rule to deter expressive food sharing violated the movement's First Amendment rights. Each of the five plaintiffs received a judgment against the city of $2,500 in addition to attorney fees.
Food Not Bombs sought $1,527,636 in attorney fees, arguing that its counsel needed substantial skill, experience and expertise in civil rights cases and had qualifications that showed that expertise. A magistrate judge, however, found that the 2,505 of work hours Food Not Bombs' attorneys said they worked on the case should be reduced about 40% across the board.
The judge also decided that the hourly rate requested for each of the attorneys was higher than what they were awarded or requested in past cases. For example, Kirsten Anderson and Jodi Siegel were awarded a blended rate of $375 per hour from the Middle District of Florida in 2021. In the Food Not Bombs case, Anderson requested a rate of $565, and Siegel asked for $785. The magistrate judge eventually landed on $375 for Anderson and $500 for Siegel, as well as lower rates for the other attorneys. Those attorneys appealed to the Eleventh Circuit, citing their success as reason for a larger payout.
"Their combined legal skills convinced this court, twice, that their clients' food sharing with others for a political purpose is protected by the First Amendment, that the city's enforcement of a park rule to restrict their activities was unconstitutional, and that the district court erred in its summary judgment opinions," the attorneys argued. They added that they "achieved not only what was sought at the complaint stage — a declaration, injunction and damages — but also obtained two precedential opinions from this circuit that will influence the law in this subject area for years to come."
However, the court found no error in the magistrate judge's decision, saying that in his findings of fact, the judge relied on the parties' experts' opinions, applicable law and rates awarded within the district, among other standards. "The magistrate judge also relied on his own knowledge and experience, 'having considered the length, extent and novelty of the litigation involved in the instant case,' and on the prior awards to these attorneys for plaintiffs in other cases," the panel said.