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10th Circuit AGAIN Reverses Fee Award in Citizen Journalist Case

By William Peacock, Esq. | Last updated on

It's been more than a decade. Two trips to the Tenth Circuit. And they still haven't sorted out the tab for a $1,791 verdict in a First Amendment dispute.

Years ago, possibly irked over a filed business deal with the county, Michael Zinna launched and, two citizen journalist muckraking sites dedicated to shining light on local corruption. And while many citizen journalists peddle in rambling nonsense, others actually prove to be more than a keyboard and an unfilled psychiatric prescription. Zinna won a local reporting award, obtained press credentials, and exposed a handful of scandals.

His reward?, which targeted Zinna, was launched. Threats and intimidation followed. Zinna responded with First Amendment litigation.

Ratified in $1791

Long story short, Zinna filed a § 1983 action against a litany of local officials, most of whom were quickly dismissed. In the end, it came down to a single case, against local official James Congrove.

While the jury was deliberating, the judge received an odd note asking when the First Amendment was ratified. After receiving a response, the jury returned with an award of $1,791 -- more than the $1 nominal amount, but far less than Zinna had asked for.

Zinna then asked for attorneys fees in the amount of $503,000, which made the district court judge chuckle. The district court awarded $8,000 instead: $1,000 per day that the trial lasted.

We've Been Here Before

Two years ago, Zinna v. Congrove made it to the Tenth Circuit, where the court weighed the Farrar factors to determine that the legal victory was not "technical or de minimis," which would have made a reduced fee award appropriate. The district court previously ran through the same Farrar factors, but did so in a cursory fashion, then proceeded to toss out an imaginary number.

"It is not enough, however, for a court to simply 'eyeball a fee request and cut it down by an arbitrary percentage,'" the previous Tenth Circuit panel wrote. "[T]he court arbitrarily assumed that this amount was sufficient without reference to the record."

The panel then remanded for the district court to determine, "based on the facts and the timesheets submitted by Zinna, what work warrants reimbursement." The court also stated that the general process is to first determine the lodestar amount (hours worked multiplied by a reasonable rate), then adjust upward or downward if necessary.

Clear enough, right?

So What You're Saying Is ... Lodestar

Welcome back, Zinna. You must have really pissed off that trial judge.

Despite the clear instructions, the district court again managed to botch the fee award, this time awarding $16,240. On remand, the trial court conducted its own analysis of the Farrar factors and came to a different conclusion than the Tenth Circuit panel.

We'll say it again: the district court ignored the Tenth Circuit panel's holding. If you're expecting a bench-slapping, well, you'll be a bit disappointed -- these judges apparently don't have anger management issues.

"[W]e have no hesitation further concluding the district court acted in contravention of the law of the case doctrine when it determined Zinna was entitled to trial attorney's fees of $16,240.00," the tame panel wrote.

Congrove's wife, acting as executor of her late husband's estate, argued that the award should stand, as the previous panel was really, really wrong, but the polite panel disagreed before remanding and reassigning the case to a different district court judge.

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