Morgan v. Gittens
| Citation | 915 F. Supp. 457 |
| Decision Date | 31 January 1996 |
| Docket Number | Civil Action No. 72-911-WAG. |
| Parties | Tallulah MORGAN, et al., Plaintiffs, v. Robert GITTENS, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
COPYRIGHT MATERIAL OMITTED
Robert P. Pressman, Lexington, MA.
Thomas I. Atkins, Brooklyn, NY.
Matthew E. Dwyer, Dwyer & Jenkins, Boston, MA.
Rhoda E. Schneider, Mass. Dept. of Education, Malden, MA.
Henry C. Dinger, Goodwin, Procter & Hoar, Boston, MA.
Linda Walsh, Boston School Department, Boston, MA.
Douglas H. Wilkins, Assistant Attorney General, Boston, MA.
Steven P. Perlmutter, Robinson & Cole, Boston, MA.
Caroline B. Playter, Kehoe, Doyle, Playter & Novick, Boston, MA.
Richard W. Coleman, Segal, Roitman & Coleman, Boston, MA.
Martin Walsh, Regional Director, Community Relations Services, Department of Justice, Boston, MA.
As noted in the Final Judgment and the Final Judgment as Amended,2 the Court has under advisement plaintiffs' applications for awards of attorneys' fees and expenses pursuant to 42 U.S.C. § 1988. In November 1988 Attorneys Atkins and Pressman were awarded compensation for services and expenses through December 14, 1988 and October 5, 1988 respectively, Atkins by court order and Pressman by agreement with defendant. Since then plaintiffs have filed a series of applications, initially in December 1989, followed by several supplements3 covering services and expenses of Atkins and services of Pressman through the summer of 1993. They have not sought compensation for time spent thereafter on miscellaneous matters and preparing further memoranda.4 Defendant City of Boston has responded to each of plaintiffs' applications, contesting their right to any awards at all and raising several particular objections.
The Court heard oral argument on April 18, 1990 and has received voluminous supporting materials, including comprehensive, detailed and contemporaneous records of time spent and expenditures incurred; affidavits of the applicants stating their general qualifications and describing particular services in the instant case; affidavits of members of the bar of this court attesting to the reasonableness of the hourly rates charged; reports in legal publications as to fees customarily charged in 1989 by lawyers in law firms in Boston and elsewhere; and transcripts of prior proceedings in this case.5 In ruling upon the pending applications, the Court has analyzed a small mountain of filings which might in other contexts be overkill —but not here because the events to which the services of counsel relate are long past and had to be reconstructed.
Thomas I. Atkins, Esquire, is in private practice specializing in civil rights litigation, particularly school desegregation cases, with offices in Brooklyn, New York. Due to his scholarship and long specialized experience, Mr. Atkins is in a class by himself representing plaintiffs in this type of litigation. Before moving to the national scene, he was active in Boston civic affairs since his days at Harvard Law School. For example, he was elected as a city councillor for two terms, and learned of the City's racial tensions first hand.
Robert Pressman, Esquire, has comparable credentials, outlined in his affidavit filed with plaintiffs' application dated January 24, 1990. Following five years with the Civil Rights Division of the Department of Justice, he came in 1970 to the Center for Law and Education in Cambridge, a national support center for the entire legal services program on education issues. Mr. Pressman has tried school desegregation cases in a dozen federal district courts, argued appeals in several federal circuits and been a principal contributor for two years to the Education Law Bulletin. Of all the attorneys who have filed appearances for various parties to these proceedings, who probably number in the thirties, he is the only one who was with the case since its inception, attending more hearings and submitting more briefs than any other lawyer. Being an employee of the Center, the Court's award to plaintiffs for his services will go to the Law and Education Center, Inc.
Total compensation sought by plaintiffs for Atkins' services is $129,123 plus reimbursement of expenses amounting to $3,162.69, and for Pressman $109,311 for services with no claim for expenses. The application for Atkins is predicated on an hourly rate of $300, and for Pressman a rate of $200. Both applications are approximately $18,000 greater than those submitted on August 27, 1993 for such services and expenses. At that time, as shown in the following tables of applications filed on the dates and covering the time periods specified, hourly rates charged by Atkins increased from $240 in 1988 to $300 in 1991; and by Pressman from $140 in 1988 to $200 in 1991.6 Plaintiffs are now seeking awards for the first three years, 1988-91, at rates which their attorneys began charging in 1991.
ATKINS' PERIODIC APPLICATIONS
PERIOD COVERED HOURS RATE FEES COSTS TOTALS SUBMITTED
12/15/88-12/16/89 239 240/hr 57,360.00 2,134.41 59,494.41 1/24/90
1/3/90-4/30/90 4.5 265/hr 12,852.50 192.70 13,045.20 4/30/90
5/1/90-5/18/90 23.25 265/hr 6,161.25 n.a. 6,161.25 5/18/90
5/19/90-5/21/90 21.00 265/hr 5,565.00 308.70 5,873.70 6/6/90
5/30/90-4/2/91 17.75 265/hr 4,703.75 n.a. 2,928.75 4/8/91
9/26/90-12/4/90 7.50 265/hr 1,987.50 n.a. 1,987.50 4/8/91
4/15/91-8/24/93 73.41 300/hr 22,023.00 526.88 22,549.88 8/24/93
TOTALS: 430.41 110,653.00 3,162.69 113,815.69
PRESSMAN'S PERIODIC APPLICATIONS
AFFIDAVIT DATE DATES OF WORK HOURS RATE TOTAL
12/29/89 10/6/88-12/29/88 12.40 $140 $ 1,736.00
4/9/90 1/13/89-12/28/89 211.77 $160 $33,883.20
5/18/90 1/2/90-5/18/90 114.23 $160 $18,276.80
4/3/91 7/3/90-4/1/91 83.15 $160 $13,304.00
10/28/93 4/11/91-6/28/93
-50% of hours 62.50 $180 $11,250.00
-50% of hours 62.50 $200 $12,500.00
TOTAL HOURS: 546.55 AMOUNT: $90,950.00
Fees claimed in these periodic filings totalled $201,603; fees now sought total $238,434, an increase of $36,831. Expenses of $3,162.69,7 all incurred by Atkins, remain the same.
Without waiving explicitly a general objection to the Court's continuing jurisdiction to award fees under § 1988, defendants have modified their position regarding reasonable hourly rates for services of plaintiffs' attorneys. In two oppositions filed in April, 1990, they first contended that maximum hourly rates for Atkins' services should be $140 and $90 for Pressman. The second opposition increased these figures to $200 and $140 respectively; but argued that roughly two-thirds of the applicants' services should be classified as "non-core" and compensated at the lower hourly rates of $160 and $100 respectively. A later defendants' memorandum in opposition filed in December 1993, applicable to services after April 11, 1991, agrees to increased hourly rates of $300 and $190 for core work8 but suggests $190 and $120 for non-core, respectively. Total fees proposed by defendants in their December 13, 1993 memorandum in opposition, without waiving substantive objections, are $56,674.15 for Atkins and $50,372.20 for Pressman, a total of $107,046.35. Costs of $3,162.69 incurred by Atkins have not been reduced by defendants in relation to fee reductions.
Consideration of the merits of plaintiffs' pending applications requires an understanding of the relevant history of these proceedings. It is recounted in detail in Morgan v. Nucci, 620 F.Supp. 214, 217-218 (D.Mass. 1985), and Morgan v. Nucci, 831 F.2d 313, 315-17 (1st Cir.1987), and shows how the Court's remedial orders were lifted incrementally, a procedure later endorsed in Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430, 1444-45, 118 L.Ed.2d 108 (1992). The case was closed, except for the pending applications, in similar incremental fashion by so-called Final Orders dated September 3, 1985 (attached as Appendix A), Final Judgment dated May 31, 1990, Amended Final Judgments dated September 19, 1990 and June 21, 1991 and Final Judgment as Amended dated July 19, 1994. An important closing order, vacating the Court's injunctive orders which had governed the student assignment process, was also issued by the Court of Appeals on September 28, 1987. See 831 F.2d at 326.
Thereupon, the Defendant Mayor hired two consultants, Michael Alves and Charles Willie9, to develop a new student assignment plan. After several months of consultations and hearings, the consultants in December 1988 proposed a plan to the Boston School Committee ("BSC") which approved its general framework on December 28, 1988. Following a public hearing on February 14, 1989, the Committee, on February 27, 1989, voted to adopt the plan subject to further modification arising out of the 90-day process ordered in paragraph 8 of the Court's 1985 final orders. The State Board convened eleven negotiating sessions, in which plaintiffs' counsel participated fully, which proposed numerous changes which were eventually adopted in April 1989 by the School Committee. Called the Controlled Choice Plan ("CCP"), it was scheduled for implementation at entry elementary grades in September 1989 (Phase I) and systemwide in September 1990 (Phase II); meanwhile the Court plan would continue in effect.
Dissatisfied with some aspects of the CCP, and seeking more time for further study and amendments, plaintiffs moved for an injunction against its implementation on the ground that it would tend to resegregate the schools. After hearings on May 26, 30 and 31, 1989, the Court denied plaintiffs' motion, and Phase I of...
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