18-1820-cv(L)
Chabad Lubavitch of Litchfield v. Litchfield




                               UNITED STATES COURT OF APPEALS

                                      FOR THE SECOND CIRCUIT

                                               August Term 2018

        Argued: June 10, 2019                         Decided: August 14, 2019

                                   Docket Nos. 18‐1820‐cv; 18‐1845‐cv

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC.,

                 Plaintiff‐Appellee‐Cross‐Appellant,

                                 v.

LITCHFIELD HISTORIC DISTRICT COMMISSION,
BOROUGH OF LITCHFIELD, CONNECTICUT,

         Defendants‐Appellants‐Cross‐Appellees.1
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

Before: NEWMAN, HALL, and CHIN, Circuit Judges.

        Appeal and cross‐appeal from an order of the District Court for the District

of Connecticut (Janet C. Hall, District Judge) awarding attorney’s fees to Chabad

Lubavitch of Litchfield County, Inc. against Litchfield Historic District


        1   The Clerk is requested to amend the official caption as above.
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Commission and Borough of Litchfield, Connecticut in litigation successfully

claiming a violation of the Religious Land Use and Institutionalized Persons Act,

42 U.S.C. §§ 2000cc et seq. Defendants‐Appellants contend that Plaintiff‐Appellee

was not a prevailing party. Plaintiff‐Appellee contends fees were improperly

disallowed for time spent during administrative proceedings.

      Affirmed.



                                H. James Stedronsky, Stedronsky & Meter, LLC,
                                      Litchfield, CT, and C. Scott Schwefel,
                                      Shipman, Shaiken & Schwefel, LLC, West
                                      Hartford, CT (Mark S. Shipman, Shipman,
                                      Shaiken & Schwefel, LLC, West Hartford,
                                      CT, on the brief), for Defendants‐
                                      Appellants‐Cross‐Appellees Borough of
                                      Litchfield, Connecticut and Litchfield
                                      Historic District Commission, respectively.

                                Daniel P. Dalton, Dalton & Tomich, PLC, Detroit,
                                     MI, for Plaintiff‐Appellee‐Cross‐Appellant
                                     Chabad Lubavitch of Litchfield County, Inc.


JON O. NEWMAN, Circuit Judge:

      This appeal primarily requires determination of whether a plaintiff in

litigation successfully claiming a violation of the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq. (“RLUIPA”) is entitled to

attorney’s fees pursuant to 42 U.S.C. § 1988(b) as a prevailing party and, if so,

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whether such fees may be awarded for time spent during administrative

proceedings that preceded the challenged action. These issues arise on an appeal

by the Borough of Litchfield, Connecticut, (“Borough”) and the Litchfield Historic

District Commission (“HDC”) (collectively, “Defendants”), and a cross‐appeal by

Plaintiff Chabad Lubavitch of Litchfield County Inc. (“Chabad”) from the May 23,

2018, order of the District Court for the District of Connecticut (Janet C. Hall,

District Judge) awarding attorney’s fees to Chabad. See Chabad Lubavitch v. Borough

of Litchfield, No. 3:09‐CV‐1419 (JCH), 2018 WL 2332075 (D. Conn. May 23, 2018)

(“Fee Opinion”). The District Court ruled that Chabad was a prevailing party in the

underlying litigation, but denied fees incurred during the administrative

proceedings and reduced the award further by 50 percent to reflect Plaintiff’s

partial success. The underlying litigation concerns Chabad’s challenge to

Defendants’ rulings on its application for a Certificate of Appropriateness

(“COA”) to renovate an historic building that it owns.

      We conclude that Chabad is entitled to attorney’s fees as a prevailing party,

that it may not obtain fees for the administrative proceedings for failure to identify

“the discrete portion of the work product from the administrative proceedings”

for which fees might have been awarded, North Carolina Dep’t of Transportation v.



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Crest Street Community Council, Inc., 479 U.S. 6, 15 (1986), and that the 50 percent

reduction was appropriate. We therefore affirm.

                                     Background

      Facts. Chabad is a religious corporation that owns a building (“Chabad

House”) in the Litchfield Historic District. The Borough of Litchfield is an

independent municipal corporation within the town of Litchfield, Connecticut.

The Borough established HDC to govern aspects of the construction and

modification of buildings within the Litchfield Historic District.

      Chabad planned to build an addition to its building to accommodate its

rabbi’s family and the needs of the Chabad community. The proposed expansion

required Chabad to apply to HDC for a certificate of appropriateness (“COA”).

HDC held four meetings in 2007 to consider Chabad’s application. The purpose of

one of the meetings was to determine “whether denial of the Chabad’s application

would place a ‘substantial burden’ on the Chabad’s religious exercise.” Chabad

Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, Connecticut, No. 3:09‐cv‐

1419, 2017 WL 5015624, at *9 (D. Conn. Nov. 2, 2017) (“Merits Opinion”).

      In December 2007, HDC denied Chabad’s application without prejudice.

HDC stated that it would not approve an addition as large as that proposed by



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Chabad, which was “‘over five times as large’” as the original structure, and

“’dominate[d] the original house in every aspect’” See id. at *11 (quoting HDC

decision). However, HDC said that it would approve “‘an addition equal in square

footage to the [original] house.’” Id. at *12 (quoting HDC decision). HDC therefore

invited Chabad to submit a new proposal. HDC did not consider the religious

needs of the Chabad in its decision, but analyzed Chabad’s use of the proposed

interior “‘in an attempt to address what [the] RLUIPA required of [it].’” Id.

(quoting HDC decision).

       Litigation history. Rather than submit a new proposal, Chabad filed a

complaint against the Borough and HDC in September 2009, challenging HDC’s

denial of the COA as a violation of RLUIPA.2 In February 2012, the District Court

granted Defendants’ motion for summary judgment dismissing the complaint in

its entirety. Chabad Lubovich of Litchfield County, Inc. v. Borough of Litchfield, 853 F.

Supp. 2d 214, 238 (D. Conn. 2012). On Plaintiffs’ appeal, this Court vacated the

judgment with respect to Plaintiffs’ claims that denial of the COA imposed a

substantial burden on the exercise of their freedom of religion and violated the

RLUIPA’s nondiscrimination requirement. Chabad Lubavitch of Litchfield County,


       2The complaint named an additional plaintiff and additional defendants, none of whom
remains as a party to the litigation.

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Inc. v. Litchfield Historic District Commission, 768 F.3d 183, 202 (2d Cir. 2014). We

remanded for further consideration of those claims.

      Before and during trial, the scope of the litigation was narrowed. The

District Court precluded evidence of damages so that the sole issue at trial on

Chabad’s claim for a declaratory judgment and an injunction was whether, and to

what extent, HDC had placed a substantial burden on Chabad’s religious practice

in violation of RLUIPA. In November 2017, the District Court issued its decision,

ruling that Defendants had violated RLUIPA and granting the one remaining

Plaintiff’s request for relief in part. See Merits Opinion. The Court held that Chabad

was entitled to a first floor and basement as large as it had requested, that denial

of an addition to the building to that extent would be a substantial burden on the

exercise of Chabad’s religious rights, but that other aspects of the application, such

as a request for a swimming pool, need not be approved. The Court issued a

mandatory injunction ordering HDC to approve Chabad’s application for a COA

“based on the court’s conclusion that the denial substantially burdened the

Chabad’s religious exercise” and violated RLUIPA. Id. at *34. However, the Court

also ordered Chabad to submit an amended COA application that removed the

second story from its proposed plans based on the Court’s ruling that Chabad



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would not be substantially burdened by having its rabbi live near the Chabad

House. The Court ordered Chabad to submit an amended plan within thirty days

and ordered HDC to approve the plan within thirty days of submission.

      Attorney’s fees. Chabad did not submit an amended plan conforming to the

Disrict Court’s ruling, an omission central to HDC’s position on this appeal.

Instead, Chabad returned to the District Court with a motion for attorney’s fees

pursuant to section 1988(b). Opposing the motion, Defendants moved to introduce

evidence that after judgment Chabad had sought a COA for a modified plan for a

building larger than what the HDC originally said it would approve, but smaller

than what Chabad originally requested. HDC’s proposed evidence showed that it

had granted a COA for Chabad’s modified plan. The Chabad represented that the

structure would meet all of its religious needs, but the HDC granted the COA

without any reference to RLUIPA. Based on these developments, Defendants

argued that Chabad was not a prevailing party within the meaning of section

1988(b).

      The District Court denied Defendants’ motion to present evidence of post‐

judgment developments, see Fee Opinion, 2018 WL 2332075, at *5, *13 and granted

in part Plaintiff’s motion for fees, see id. at *13. The Court ruled that Defendants’



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proposed evidence was not relevant because Plaintiff’s entitlement to fees was to

be determined as of the time when the judgment was entered. At that time, the

Court ruled, Chabad was a prevailing party because the judgment altered the

parties’ “‘legal relationship’” to the benefit of Plaintiff. Id. at *4 (quoting Farrar v.

Hobby, 506 U.S. 103, 111 (1992)). However, the Court found that Plaintiff was only

partially successful.    Although the Court noted that Plaintiff’s claims were

intertwined factually, it believed that Plaintiff had achieved success on only some

of its claims and that a 50 percent reduction of the fees sought was warranted. The

Court declined to award attorney’s fees for the administrative proceedings,

reasoning that Plaintiff’s rights were not violated until the end of those

proceedings at which time the original application for a COA was denied. Based

on the claimed hours and hourly rates for the portions of fees, which are not

disputed on appeal, the Court awarded $611,662.09 in attorney’s fees and

$105,281.36 in costs, for a total monetary award of $717,405.95.

                                       Discusion

      Standard of review. This Court reviews an award of attorney’s fees for abuse

of discretion, which occurs “when (1) [a District Court’s] decision rests on an error

of law . . . or clearly erroneous factual finding, or (2) its decision . . . cannot be



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located within the range of permissible decisions.” McDaniels v. County of

Schenectady, 595 F.3d 411, 416 (2d Cir. 2010) (internal citations and quotation marks

omitted).

      Because the question whether a party prevailed is a legal one, this Court

reviews it de novo. Preservation Coalition of Erie County v. Federal Transit

Administration, 356 F.3d 444, 450 (2d Cir. 2004) (internal citation omitted).

      Prevailing party. The Civil Rights Attorney’s Fees Awards Act of 1976

provides in relevant part: “In any action or proceeding to enforce a provision

of . . . [RLUIPA] . . . , the court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorneyʹs fee as part of the costs . . . .”

42 U.S.C. § 1988(b).

      To qualify as a prevailing party, a plaintiff “must obtain at least some relief

on the merits of his claim. The plaintiff must obtain an enforceable judgment

against the defendant from whom fees are sought . . . . Whatever relief the plaintiff

secures must directly benefit him at the time of the judgment or settlement.”

Farrar, 506 U.S. at 111 (internal citations omitted). Said differently, “a plaintiff

‘prevails’ when actual relief on the merits of his claim materially alters the legal

relationship between the parties by modifying the defendant’s behavior in a way



                                              9
that directly benefits the plaintiff.” Id. at 111‐12. The Supreme Court has

“repeatedly held that an injunction or declaratory judgment, like a damages

award, will usually satisfy that test.” Lefemine v. Wideman, 568 U.S. 1, 4 (2012)

(internal citation omitted).

      Here, Plaintiff obtained a judgment against Defendants declaring that

Defendants violated RLUIPA by denying a COA to Chabad and enjoining HDC to

grant Chabad a COA once Chabad submitted a revised application. That

judgment, on the day it was entered, was of considerable value to Plaintiff. It not

only upheld its legal position that its rights had been violated, but, more

important, it greatly enhanced Plaintiff’s bargaining position in whatever further

negotiation with HDC Plaintiff might undertake.

      As the District Court correctly ruled, it does not matter what happened after

judgment was entered. The fact that Chabad did not present a plan conforming to

the Court’s judgment, thereby triggering HDC’s duty to approve that plan, is

irrelevant. A person need not claim the winner’s prize to be a winner; it need only

win the event. Chabad “won” and became a prevailing party when it obtained a

beneficial “enforceable judgment.” Farrar, 506 U.S. at 111.




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      Defendants’ reliance on Rhodes v. Stewart, 488 U.S. 1 (1988), is unavailing.

“Th[at] case was moot before judgment issued, and the judgment therefore

afforded the plaintiffs no relief whatsoever.” Id. at 4.

      The District Court correctly ruled that Chabad was a prevailing party under

section 1988.

      Fees for administrative proceeding. On the cross‐appeal, Plaintiff contends that

the District Court erred in not awarding attorney’s fees for the time spent seeking

a COA in administrative proceedings before HDC. In denying Plaintiff’s request

for fees incurred during those proceedings, the District Court explained that

Plaintiff was not entitled to fees for proceedings that preceded a violation of its

rights, which did not occur until HDC denied the application for a COA at the

conclusion of the administrative proceding.

      “Section 1988 permits attorney’s fees ‘for time spent on administrative

proceedings to enforce the civil rights claim prior to the litigation.’” Tsombanidis v.

West Haven Fire Department, 352 F.3d 565, 581 (2d Cir. 2003) (quoting North Carolina

Dep’t of Transportation, 479 U.S. at 15. The District Court correctly recognized that

Plaintiff did not litigate the administrative proceedings before HDC to enforce its

RLUIPA claim. It did not have such a claim until HDC denied the COA



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application. However, the Supreme Court has stated that “even if the prior

proceeding is not a proceeding to enforce one of the § 1988 civil rights laws, the

discrete portion of the work product from the administrative proceedings that was

both useful and of a type ordinarily necessary to” secure the final result obtained

from the litigation “can be part of the attorneyʹs fees awarded under § 1988.” Id.

(citations and quotation marks omitted).

      In Cullen v. Fliegner, 18 F.3d 96 (2d Cir. 1994), we had occasion to consider

the propriety of awarding fees for the discrete portion of the work product from

an administrative proceeding. Id. at 106. The plaintiff sought to enjoin a school’s

disciplinary proceeding against him, arguing that the school was haphazardly

enforcing a state electioneering law. See id. at 101. We affirmed the District Court’s

award of attorney’s fees pursuant to section 1988 for a “portion” of the fees

incurred while working on the disciplinary proceeding. See id. at 106. We saw no

reason to disagree with the District Court’s appraisal that a discrete portion of the

work done in connection with the disciplinary proceeding was both useful and

ordinarily necessary. See id.

      The significant aspect of Cullen is that the prevailing plaintiff there had not

claimed all fees in connection with the administrative proceedings, but had



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“appropriately excluded from his request those fees incurred that were particular

to the disciplinary proceeding and could not be transferred to the district court

action,” id., thereby identifying from among the total hours of the administrative

proceedings the particular hours that it claimed satisfied the “discrete portion”

test of North Carolina Dep’t of Transportation. In the District Court in the case before

us, Plaintiff made no similar separation. Thus, the District Court was given no

basis to make even a partial award of fees for the administrative proceedings. In

these circumstances, the District Court acted within its discretion by awarding no

fees for those proceedings.

      Fee reduction. On the cross‐appeal, Plaintiff also challenges the District

Court’s 50 percent reduction of the amount of fees claimed, after elimination of

time spent in the administrative proceedings, based on Plaintiff’s only partial

success. When a plaintiff has achieved partial success, “[t]he most important factor

in determining a reasonable fee for a prevailing plaintiff is ‘the degree of success

obtained.’” LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 760 (2d Cir. 1998) (quoting

Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996)). “[W]hen a plaintiff has achieved

substantial success in the litigation but has prevailed on fewer than all of his

claims, the most important question in determining a reasonable fee is whether the



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failed claim was intertwined with the claims on which he succeeded.” Id. at 762.

Here, the District Court ruled that all the equitable and damages claims were

intertwined factually, and said that it would evaluate the success of the litigation

as a whole rather than on a claim‐by‐claim basis due to the interrelated nature of

the claims. The Court acted within its discretion in concluding that a 50 percent

reduction was warranted because, on the one hand, “Chabad achieved a legal

victory and was awarded significant injunctive relief but, on the other hand, . . .

was denied much of the disputed injunctive relief it requested and failed to

support a claim for money damages.” Fee Opinion, 2018 WL 2332075, at *7. See

Barfield v. New York City Health and Hospital Corp., 537 F.3d 132, 151‐53 (2d Cir. 2008)

(approving 50 percent reduction).

                                     Conclusion

      The order of the District Court is affirmed.




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