Attorney fees under 42 USC § 1988; Calculation of the award; Whether the district court had discretion to award fees for work performed by plaintiff’s counsel in state-court takings proceedings & defendant’s bankruptcy; Webb v Board of Educ of Dyer Cnty; Pennsylvania v Delaware Valley Citizens’ Council for Clean Air; Award of “expert witness fees” under § 1988(c)

[This appeal was from the ED-MI.] The court vacated the district court’s attorney fee award in this takings case, holding that it erred by ruling that it had no discretion to award fees for work performed by plaintiff-HRT Enterprises’ counsel in state-court takings proceedings and in defendant-City of Detroit’s bankruptcy. It also erred by awarding plaintiff expert witness fees under § 1988(c). HRT requested $1,796,626.87 in attorney fees, but considering the “far from perfect” supporting billing records, the “district court ‘reduce[d] the lodestar in rough proportion to the observable incidence of disallowable fees’ by applying ‘a 33% discount against the gross number of compensable hours to account for the pervasive corruption of the billing records.’” This resulted in a final award of $720,486.25, including $40,906.25 in expert witness fees. The parties cross-appealed. As to the district court’s ruling on the award of attorney fees, the court noted that even though it has “held that fees for ‘a completely separate case’ are generally unrecoverable under § 1988[,]” case precedent provides “an exception for work performed in certain related proceedings.” The court concluded the “district court erred in failing to recognize this exception and to consider, in its discretion, whether work performed in the state-court takings proceedings and the bankruptcy could be awarded.” The court noted that “the state-court takings proceedings were not only useful and of a type ordinarily necessary to advance HRT’s federal takings claim—they were required under law. Accordingly, the district court had discretion to award fees for work performed in these proceedings under § 1988.” In addition, “HRT’s litigation in the bankruptcy was ‘crucial to the vindication’ of its Fifth Amendment right to full compensation.” Thus, the district court “had discretion to award fees under § 1988 for work performed in these proceedings, and it erred in concluding otherwise.” The court then considered whether the district court abused its discretion by awarding $40,906.25 in expert witness fees under § 1988(c). “Under the plain language of § 1988(c), expert fee-shifting is expressly allowed in actions or proceedings, but only those to enforce a provision of § 1981 or § 1981a. The statute does not reference § 1983[.]” Vacated and remanded.