07-1146 | Omnilex

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: October 22, 2008
Final briefs submitted
November 7, 2008
Decided: August 28, 2009)

Docket No. 07-1146-CV

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DAVID BLIVEN,

Plaintiff-Appellant,

\- V. -

HON. JOHN HUNT, both in his individual and official
capacity, HON. BARBARA SALINITRO, both in her
individual and official capacity, HON. GUY
DePHILLIPS, both in his individual and official
capacity, DOUGLAS FOREMAN, both in his individual and
official capacity, JULIE STANTON, both in her
individual and official capacity, CHERYL JOSEPH-
CHERRY, both in her individual and official capacity,
HON. JOSEPH LAURIA, both in his individual and
official capacity, and CITY OF NEW YORK,

Defendants-Appellees,

"JOHN DOES," 1-10, both in their individual and
official capacities, the identity and number of whom
is presently unknown to the plaintiff,

# Defendants.

Before: KEARSE, SACK, and KATZMANN, Circuit Judges.

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Appeal from a judgment of the United States District Court
for the Eastern District of New York, Sandra J. Feuerstein,
Judge, dismissing, on grounds of judicial immunity and failure to

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state a claim, complaint alleging denial of due process and
breach of contract because of payments to plaintiff of less than
the amounts of compensation he requested as a public defender.
Affirmed.

DAVID BLIVEN, White Plains, New York,
Plaintiff-Appellant pro se.

DIANA R.H. WINTERS, Assistant Solicitor
General, New York, New York (Andrew M.
Cuomo, Attorney General of the State
of New York, Barbara D. Underwood,
Solicitor General, Michael S.
Belohlavek, Senior Counsel, New York,
New York, on the brief), for
Individual Defendants-Appellees.

SUSAN CHOI-HAUSMAN, Senior Counsel, New
York, New York (Michael A. Cardozo,
Corporation Counsel of the City of New
York, Pamela Seider Dolgow, Duncan
Peterson, New York, New York, on the
brief) , for Defendant-Appellee City of
New York.

KEARSE, Circuit Judge :

Plaintiff pro se David Bliven, an attorney who was a
member of the public defender panel in New York City, appeals from
a judgment entered in the United States District Court for the
Eastern District of New York, Sandra J. Feuerstein, Judge,
dismissing his action, brought principally under 42 U.S.C. § 1983,
alleging that the individual defendants -- judges and staff
attorneys in the New York State ("State") court system -- and the
City of New York (the "City") denied him due process by granting
him compensation in less than the amount he requested for services

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he performed as court-appointed counsel, and alleging breach of
contract by the City. The district court dismissed the complaint
against the individual defendants as frivolous on its face in
light of those defendants' entitlement to judicial immunity. It
dismissed the federal claims against the City pursuant to Fed. R.
Civ. P. 12 (b) (6) for failure to state a claim on which relief can
be granted. Bliven challenges these rulings on appeal, contending
principally (a) that the individual defendants are not entitled to
judicial immunity because they were acting in their
administrative, not judicial, capacities, and (b) that the City is
liable because the individual defendants, in setting his
compensation, were municipal policymakers. Finding no merit in
Bliven's challenges, we affirm.

## I. BACKGROUND

The following description of the events is drawn from
Bliven's complaint, whose factual allegations we take as true for
purposes of reviewing the dismissal pursuant to Rule 12 (b) (6) .

### A. Bliven's Claims

From 2000 until April 2005, Bliven was a member of New
York City's Assigned Counsel Panel, serving as a public defender
principally in New York Family Court in Queens County. He was
assigned cases in that court by individual family court judges and
represented children, as their "law guardian, " or adults in cases

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involving child custody and support, family offenses, juvenile
delinquency, and children in need of protection.

Defendants John Hunt, Barbara Salinitro, and Guy
DePhillips were judges on the family court; Judge DePhillips was
the supervising judge; defendant Joseph Lauria was a State
Administrative Judge. Defendants Douglas Foreman, Julie Stanton,
and Cheryl Joseph-Cherry were, respectively, staff attorneys for
Judges Hunt, Salinitro, and DePhillips.

Under the assigned-counsel plan, established pursuant to
State law, see N.Y. County Law art. 18-B ( "Article 18-B") , §§ 722
and 722-a to 722-f, a municipality is required to compensate
attorneys assigned pursuant to Article 18-B at statutory rates --
set as of January 2004 at $75 per hour for offenses above the
misdemeanor level -- "for time expended in court before a
magistrate, judge or justice and
for time reasonably
expended out of court, " N. Y. County Law § 722-b(1), up to a
maximum total of $4,400, see id. § 722-b (2), plus "reimbursement
for expenses reasonably incurred, " id. § 722-b(1) . The attorney's
compensation and reimbursement in a given case are to be "fixed by
the trial court judge, " who, in "extraordinary circumstances
may provide for compensation in excess of the [statutory] limits."
Id. § 722-b(3). Regulations provide that " [r]equests for
reconsideration of any order of the trial court fixing
compensation" may be "reviewed by the appropriate administrative

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judge,
who may modify the award if it is found that the

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award reflects an abuse of discretion by the trial judge." N. Y.
Comp. Codes R. & Regs. tit. 22, §§ 127.3 (c), 127.2 (b).

Bliven commenced the present action in 2005, alleging
principally that, beginning in March 2002, the individual
defendants conspired to deny him the compensation to which he was
entitled, in retaliation for his having made disfavored motions in
approximately 15 child protective and foster care cases in 2001 to
compel the disclosure of "the entire caserecord [sic] " (Complaint
[ 22) maintained by the Administration for Children's Services
("ACS") (see, e.g., id. [[ 22-32, 55). He alleged that between
March and September 2002, "nearly every voucher [he] submitted for
public defender compensation -- at least regarding an ACS or foster
care agency case -- to Judges Hunt or Salinitro were [sic] reduced
by $50-150, all with no oral or written explanation as to why the
voucher was reduced" (id. ( 30), and that Foreman and Stanton told
Bliven that his vouchers were reduced because of his filing of the
motions to compel disclosure of complete ACS files (see id. 11 28,
31) .
Other vouchers submitted by Bliven were reduced by
substantially greater amounts (see, e.g., id. (1 32, 34, 37); the
total by which Bliven alleged he was underpaid was $16,637.39 (see
id. 1 44) .

Bliven also alleged that as a result of his complaining
about the reductions of his vouchers, he was threatened that the
judges would file a grievance against him. He alleged that he was
thus forced to withdraw from the public defender panel, thereby
losing two-thirds of his usual income. (See id. 11 46-47.)

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The Complaint sought $16, 637.39 from the City on a theory
of breach of contract. (See id. 11 39-44.) In addition, it
sought, inter alia, $5 million in compensatory damages from all of
the defendants on each of seven causes of action on various
theories, including hostile work environment (see id. (1 45-48) ,
conspiracy to deprive Bliven of the compensation to which he was
entitled (see id. (1 49-56), conspiracy to deprive him of equal
protection and to deprive persons charged with child neglect
and/or child abuse of effective assistance of counsel (see id.
[1 57-61), denial of substantive and procedural due process (see
id. 11 62-69), and failure of the City to train, investigate, and
discipline the individual defendants (see id. [{ 79-85). The
complaint also sought $25 million on a "Class-Action-Right To
Counsel" theory (id. 11 70-73), and sought injunctive relief
(a) prohibiting the State and the City from requiring judicial
approval of public defender vouchers, and (b) ordering that any
such fee disputes instead be submitted to arbitration (see id.,
WHEREFORE [ D) .

### B. The Decisions of the District Court

In an Opinion and Order dated December 12, 2005, reported
at 418 F. Supp. 2d 135, the district court dismissed the complaint
against the individual defendants sua sponte. As to Bliven's
claims for monetary relief, the court concluded that those
defendants were "absolutely immune from liability for judicial
acts" because Bliven "does not allege that the judges were acting

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beyond their judicial capacity or in the clear absence of
jurisdiction." Id. at 137-38.

The court also dismissed Bliven's claims for injunctive
relief against the individual defendants. It concluded that any
such relief was unavailable because "'in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory
relief was unavailable, '" and Bliven had failed to allege that a
declaratory decree was violated or that declaratory relief was
unavailable. Id. at 139 (quoting Federal Courts Improvement Act
of 1996, § 309 (c), Pub. L. No. 104-317, 110 Stat. 3847, 3853
(1996) (amending 42 U.S.C. § 1983) ) .

In a subsequent unpublished Opinion and Order dated June
28, 2006, the district court denied a motion by Bliven to amend
his complaint to add an allegation that the individual defendants,
at the relevant times, were acting not in their judicial
capacities but instead in their administrative and/or ministerial
capacities. Accepting and adopting the report and recommendation
of the magistrate judge to whom the motion had been referred,
which reasoned that all of the actions complained of by Bliven and
all of his contacts with the individual defendants had been in
their judicial capacities, the district court concluded that
Bliven's proposed amendment would be futile.

Finally, in an Opinion and Order dated February 9, 2007,
reported at 478 F. Supp. 2d 332, the district court granted a

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motion to dismiss the federal claims against the City for failure
to state a claim. The court ruled that the individual defendants
were not municipal policymakers because (a) they were employees of
the State, not the City, see id. at 338-39, and (b) their
" [d]eterminations of attorney compensation do not establish
municipal policy, but only effectuate the statutory policy
established by the State legislature to compensate appointed
counsel, " id. at 338. The court ruled that the complaint failed
to state a claim for failure to train or supervise, etc., because
the City was not responsible for training or supervising the
individual defendants as they are employees of the State. See
id. at 340. Having dismissed all of Bliven's federal claims, the
court declined to exercise supplemental jurisdiction over his
claim against the City for breach of contract.

### II. DISCUSSION

On appeal, Bliven contends that the district court erred
when it ruled that the individual defendants are entitled to
judicial immunity, arguing that the individual defendants'
determinations of compensation for court-appointed attorneys are
employment-related, administrative decisions for which judicial
defendants are not afforded absolute immunity. (See Bliven brief
on appeal at 14-15.) Bliven also challenges the dismissal of his
federal claims against the City, pursuing his contention that the
individual defendants act as "municipal policymaker [s] for

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purposes of determining compensation for New York City public
defenders." (Id. at 21.) For the reasons that follow, we find no
merit in Bliven's contentions.

#### A. Judicial Immunity

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It is well settled that judges generally have absolute
immunity from suits for money damages for their judicial actions.
See, e.g., Mireles v. Waco, 502 U.S. 9, 9-10 (1991) ; Forrester v.
White, 484 U.S. 219, 225-26 (1988). Such judicial immunity is
conferred in order to insure "that a judicial officer, in
exercising the authority vested in him, shall be free to act upon
his own convictions, without apprehension of personal consequences
to himself." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347
(1871) . Thus, even allegations of bad faith or malice cannot
overcome judicial immunity. See, e.q., Pierson v. Ray, 386 U.S.
547, 554 (1967) ; Tucker v. Outwater, 118 F.3d 930, 932 (2d Cir.),
cert. denied, 522 U.S. 997 (1997). In addition, as amended in
1996, § 1983 provides that "in any action brought against a
judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable." 42 U.S.C. § 1983.

Judges are not, however, absolutely "immune from liability
for nonjudicial actions, i.e., actions not taken in the judge's
judicial capacity. " Mireles, 502 U.S. at 11; see also Huminski v.
Corsones, 396 F.3d 53, 75 (2d Cir. 2005). In determining whether

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an act by a judge is "judicial," thereby warranting absolute
immunity, we are to take a functional approach, for such "immunity
is justified and defined by the functions it protects and serves,
not by the person to whom it attaches, " Forrester, 484 U.S. at 227
(emphasis in original) . " [T]he factors determining whether an act
by a judge is a 'judicial' one relate to the nature of the act
itself, i.e., whether it is a function normally performed by a
judge, and to the expectations of the parties, i.e., whether they
dealt with the judge in his judicial capacity." Stump v.
Sparkman, 435 U.S. 349, 362 (1978); see, e.g., Mireles, 502 U.S.
11 at 12-13.

In employing this functional analysis, the Supreme Court
has generally concluded that acts arising out of, or related to,
individual cases before the judge are considered judicial in
nature. Actions that are judicial in nature include issuing a
search warrant, see Burns v. Reed, 500 U.S. 478, 492 (1991) ;
directing court officers to bring a particular attorney before the
judge for a judicial proceeding, see Mireles, 502 U.S. at 12-13;
granting a petition for sterilization, see Stump, 435 U.S. at
362-64; and disbarring an attorney as a sanction for the
attorney's contumacious conduct in connection with a particular
case, see Bradley, 80 U.S. (13 Wall.) at 354-57. The fact that a
proceeding is "informal and ex parte . . . has not been thought to
imply that an act otherwise within a judge's lawful jurisdiction
was deprived of its judicial character." Forrester, 484 U.S. at
227; see, e.q., Stump, 435 U.S. at 363 n.12 (the fact " [t]hat

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there were not two contending litigants did not make Judge Stump's
act [in granting mother's petition for sterilization of her
" ' somewhat retarded'" daughter] any less judicial"). In Huminski
v. Corsones, we concluded that a judge's orders prohibiting
Huminski from appearing in or around state-court facilities were
judicial acts because Huminski's conduct and communications,
perceived as potentially threatening, were complaining of rulings
in a criminal case in which he had been the defendant and over
which the judge had presided. See 396 F.3d at 78.

In contrast, a judge's " [a]dministrative decisions, even
though they may be essential to the very functioning of the
courts, have not similarly been regarded as judicial acts."
Forrester, 484 U.S. at 228. Such administrative actions include
demoting or dismissing a court employee, see id. at 229-30; and
compiling general jury lists to affect all future trials, see Ex
parte Virginia, 100 U.S. 339, 348 (1879). Similarly, judges are
not entitled to judicial immunity for promulgating a code of
conduct for attorneys, though for that function they have been
held entitled to legislative immunity. See Supreme Court of
Virginia v. Consumers Union of United States, Inc., 446 U.S. 719,
731, 734 (1980) ; see, e.g., id. at 731 (judges' "propounding the
[State Bar] Code was not an act of adjudication but one of
rulemaking" in their legislative capacity) .

A private actor may be afforded the absolute immunity
ordinarily accorded judges performing their authorized judicial
functions if the private actor's role is "'functionally

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comparable'" to the roles of those judges, Butz v. Economou, 438
U.S. 478, 513 (1978), or his acts are integrally related to an
ongoing judicial proceeding, see, e.g., Oliva v. Heller, 839 F.2d
37, 40 (2d Cir. 1988) (judge's law clerk assisting the judge in
making judicial decisions was entitled to judicial immunity for
his participation in those functions) ; Dorman v. Higgins, 821 F.2d
133, 137 (2d Cir. 1987) (federal probation officer preparing and
furnishing presentence reports to the court was entitled to
judicial immunity for that function) ; see generally Mitchell v.
Fishbein, 377 F.3d 157, 172-74 (2d Cir. 2004). But private
persons assisting judges are not accorded absolute immunity with
respect to the performance of functions that are nonjudicial.
See, e.g., id. at 174 (no such immunity for persons compiling
lists of attorneys available to serve pursuant to Article 18-B in
the future ("18-B Panels") ) .

Bliven, in contending that the family court judges'
rulings on his vouchers were acts that were administrative rather
than judicial in nature, relies heavily (see Bliven brief on
appeal at 11, 16-20) on Mitchell v. Fishbein, in which we ruled
that the screening committee ("Committee") responsible for
compiling a list of attorneys to be members of an 18-B Panel
performed functions that were administrative and legislative,
rather than judicial. His reliance is misplaced. The principal
hallmark of the judicial function is a decision in relation to a
particular case. In Mitchell v. Fishbein, the Committee simply
assembled the 18-B Panel, certifying, recertifying, and

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decertifying attorneys who were willing and qualified to
represent an indigent defendant charged with a crime, and who
would, if appointed in the future, be entitled under Article 18-B
to compensation for their services. The Committee did not
determine which attorney would be appointed in any particular
case; indeed, in any given case the court was free to appoint an
attorney who was not on the 18-B Panel. Further, the Committee's
decision not to recertify Mitchell affected only his entitlement
to compensation for cases to which he might be appointed in the
future; the refusal to recertify did not affect any particular
case, as it did not remove Mitchell from any case he was then
handling. See, e.g., 377 F.3d at 168-69, 172. Thus, although
essential to the operation of the judicial system generally, the
functions performed by the Committee were not integrally related
to any specific judicial proceeding. We concluded that

the Screening Committee, in compiling a list of
qualified attorneys, acts as an administrative body,
rather than conducting proceedings that are judicial,
and . . . its denial of Mitchell's application for
recertification to the 18-B Panel was a decision that
was not judicial but legislative.

Id. at 167-68.

In contrast to the Committee functions in Mitchell v.
Fishbein, the determination by a judge as to whether a given fee
request by an 18-B Panel member is reasonable is clearly case-
related. Compensation for cases above the misdemeanor level is
set "at a rate of seventy-five dollars per hour for time expended
in court before a magistrate, judge or justice and seventy-five
dollars per hour for time reasonably expended out of court, " N. Y.

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County Law § 722-b (1) (b) (emphasis added), with a ceiling of
$4,400, see id. § 722-b (2) (b) ; and reimbursement is authorized
"for expenses reasonably incurred, " id. § 722-b (1) (b) (emphasis
added). "Each claim for compensation and reimbursement shall be
supported by a sworn statement specifying," inter alia, "the time
expended, services rendered, expenses incurred." Id. § 722-b (4) .
Except with respect to services on appeal, the "compensation and
reimbursement shall be fixed by the trial court judge, " who may
award compensation above the normal ceiling in "extraordinary
circumstances." Id. § 722-b(3). An attorney dissatisfied with
the fee awarded may "request [] . . . reconsideration, " N. Y. Comp.
Codes R. & Regs. tit. 22, § 127.3 (c) , whereupon the amount awarded
will be "reviewed by the appropriate administrative judge" who may
modify the award if he finds that it "reflects an abuse of
discretion by the trial judge," id. § 127.2 (b). Thus, the
functions at issue here are case-specific and not similar to the
functions at issue in Mitchell v. Fishbein.

Bliven also relies on the fact that the New York Court of
Appeals in Levenson v. Lippman, 4 N.Y.3d 280, 794 N.Y.S.2d 276
(2005), characterized the "award of compensation fees" for
assigned counsel as an "administrative rather than a judicial act
of the trial judge, " id. at 291, 794 N. Y.S.2d at 281. The issue
in that case was whether the State's Chief Administrative Judge
had violated State law in amending pertinent regulations to
provide that awards of compensation to 18-B Panel attorneys in
amounts exceeding the statutory ceiling were reviewable by "the

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appropriate administrative judge." Id. at 286, 794 N.Y.S.2d at
277. Although the State's Civil Practice Law and Rules provide
generally that " [t]he appellate division shall review questions of
law and questions of fact on an appeal from a judgment or order of
a court of original instance, " N. Y.C. P.L.R. § 5501 (c) , there was
no provision in the County Law for any review of excess
compensation awards, and the Levenson Court concluded that the
State's legislature had thereby "simply created a gap in the
administrative process that the Chief Administrator was entitled
to fill, " 4 N. Y.3d at 291, 794 N.Y.S.2d at 281; see also id. at
292 & n .* , 794 N. Y. S.2d at 281-82 & n .* (concurring opinion)
(noting that the legislature had failed to enact proposed
legislation calling for review by the Appellate Division, leaving
"a void in oversight") . The New York Court of Appeals upheld the
Chief Administrative Judge's amendment providing for review of
above-ceiling awards by the appropriate administrative judge,
noting that " [o]therwise, these awards would be wholly
unreviewable, " id. at 291, 794 N. Y. S.2d at 281 (majority opinion) .

Notwithstanding the New York Court of Appeals'
characterization of 18-B Panel fee awards as administrative for
purposes of ensuring their reviewability, we are not persuaded
that a judge's decision as to a reasonable attorney's fee is an
administrative, rather than a judicial, decision for purposes of
determining whether the judge is to have absolute immunity for
that decision. Cf. District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 477-78 (1983) (state's characterization of

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proceedings as "ministerial" rather than "judicial" does not
control federal court's analysis of whether a proceeding is
judicial for purposes of the Rooker-Feldman doctrine because "we
must for ourselves appraise the circumstances" of the proceeding
(internal quotation marks omitted) ). The authority to decide what
is a reasonable attorney's fee for representing a client in a
particular case is plainly a part of the judicial function
performed in many cases. Although the general "American Rule" is
that the prevailing party in federal court litigation is not
entitled to recover legal fees incurred in the conduct of that
litigation, see, e.g., Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240, 247 (1975), numerous statutes allow -- and
sometimes require -- the court to award reasonable attorneys' fees,
generally to the prevailing party, but in some instances to either
party, see, e.g., 42 U.S.C. § 1988 (b) (in action brought under
42 U.S.C. § 1983 or various other laws to vindicate civil rights,
"the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney's fee"
(emphases added) ) ; 29 U.S.C. § 216 (b) (in action for violation of
the Fair Labor Standards Act of 1938, the court "shall, in
addition to any judgment awarded to the plaintiff or plaintiffs,
allow a reasonable attorney's fee" (emphases added) ) ; see id.
§ 1132 (g) (1) (in a civil action by a participant, beneficiary, or
fiduciary to enforce the Employee Retirement Income Security
Program, "the court in its discretion may allow a reasonable

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attorney's fee and costs of action to either party" (emphases
added) ) .

Other statutes authorizing the court to award "a
reasonable attorney's fee" to a prevailing private party include
29 U.S.C. § 626 (b) (for actions under the Age Discrimination in
Employment Act (incorporating the remedies provided in
id. § 216 (b) ) ) ; 42 U.S.C. § 2000e-5 (k) (for actions under Title
VII of the Civil Rights Act of 1964); id. § 2000a-3 (b) (for
actions under Title II (public accommodations provisions) of the
Civil Rights Act of 1964) ; id. § 3613 (c) (2) (for actions under
the Fair Housing Act, Title VIII of the Civil Rights Act of 1968) ;
id. § 19731 (e) (for actions under the Voting Rights Act); id.
§ 12205 (for actions under the Americans with Disabilities Act) ;
29 U.S.C. § 794a (b) (for actions under the Rehabilitation Act of
1973) ; 20 U.S.C. § 1415 (i) (3) (B) (i) ("reasonable attorneys' fees"
for actions under the Individuals with Disabilities Education
Act) ; 15 U.S.C. § 15 (for civil actions under the antitrust
laws) ; 18 U.S.C. § 1964 (c) (recovery on a civil Racketeer
Influenced and Corrupt Organizations claim "shall . . . includ [e]
a reasonable attorney's fee") ; and 28 U.S.C. §§ 2412 (d) (1) (A) and
(2) (A) (under the Equal Access to Justice Act, in actions by or
against the United States, " [e]xcept as otherwise specifically
provided by statute, a court shall award to a prevailing party"
attorneys' fees, generally limited to $125 per hour, "unless the
court finds that the position of the United States was

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substantially justified or that special circumstances make an
award unjust") .

In cases under the above statutes, the governing
principles and procedures are essentially the same. See, e. g.,
Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (the same
standards are "generally applicable in all cases in which Congress
has authorized an award of fees to a 'prevailing party'") .
Applications for awards of fees must be documented by time
records. See, e.q., id. at 437 (attorney "should maintain
billing time records in a manner that will enable a reviewing
court to identify distinct claims"); New York Association for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.
1983) (contemporaneously created time records should "specify, for
each attorney, the date, the hours expended, and the nature of the
work done"). In determining what fee is reasonable, the court
takes account of claimed hours that it views as "excessive,
redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434.
In so doing, "the district court does not play the role of an
uninformed arbiter but may look to its own familiarity with the
case and its experience generally as well as to the evidentiary
submissions and arguments of the parties." DiFilippo v. Morizio,
759 F.2d 231, 236 (2d Cir. 1985). And in light of the district
court's familiarity with the particular case, its award of
attorneys' fees is reviewed only for abuse of discretion. See,
e.g., Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998) ;
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998) ;

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In re Bolar Pharmaceutical Co. Securities Litigation, 966 F.2d
731, 732 (2d Cir. 1992) ; see generally Hensley, 461 U.S. at 437
("We reemphasize that the district court has discretion in
determining the amount of a fee award. This is appropriate in
view of the district court's superior understanding of the
litigation and the desirability of avoiding frequent appellate
review of what essentially are factual matters. ") .

In all of these matters, the court performs a judicial
function in assessing the attorney's documentation as to how the
hours charged were spent and determining whether, in light of the
case itself, the fee requested is one that is "reasonable." The
result is an award -- or a denial -- of fees for work done in a
particular case.

In sum, we see no principled difference between the
nature of the task performed in setting reasonable fees under
these federal fee-shifting statutes and the task performed by a
family court judge in determining the fee to be awarded to the
18-B Panel attorney. In each instance, the focus is on a
particular case; the attorney must document the hours he claims he
spent on the issues in that case; the request is ruled on by the
judge who presided over the case, and hence is familiar with the
issues and the attorney's submissions; the pertinent focus is on
the reasonableness of the number of out-of-court hours spent on
that case; and the amount awarded by the trial judge is reviewable
25 for abuse of discretion. Accordingly, we reject Bliven's
contention that the actions of the family court judges in ruling

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on his vouchers, and the supportive actions of their assisting
court attorneys, were not judicial acts.

### B. Municipal Liability

Bliven also contends that the district court erred in
dismissing his federal claims against the City based on its
conclusion that the defendant judges were not municipal
policymakers. This contention is meritless.

The matter of whether a given official is a municipal
policymaker is a question of law. See, e.g., Jett v. Dallas
Independent School District, 491 U.S. 701, 737 (1989) ; Jeffes v.
Barnes, 208 F.3d 49, 57 (2d Cir.), cert. denied, 531 U.S. 813
(2000). The clear policy at issue here is that an 18-B Panel
attorney should not be compensated for out-of-court time that was
not "reasonably expended." N. Y. County Law § 722-b (1) . That
policy is established by the statute. Judges, in determining
whether the attorney's expenditure of the claimed out-of-court
hours in a particular case was in fact reasonable, merely apply
the policy; they do not make it.

# CONCLUSION

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We have considered all of Bliven's arguments on this
appeal and have found them to be without merit. The judgment of
the district court is affirmed.

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August Term, 2008 Argued: October 22, 2008 Final briefs submitted November 7, 2008… v. - HON. JOHN HUNT, both in his individual

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