Cowan v. Prudential Ins. Co. of America

• Decision Date: 12 June 1991
• Docket Number: No. 930,D,930
• Citation: 935 F.2d 522
• Parties: 56 Fair Empl.Prac.Cas. 229, 56 Empl. Prac. Dec. P 40,850, 60 USLW 2001, 60 USLW 2059 Curtis COWAN, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee. ocket 90-7865.
• Court: U.S. Court of Appeals — Second Circuit

Page 522

935 F.2d 522

56 Fair Empl.Prac.Cas. 229,

56 Empl. Prac. Dec. P 40,850, 60 USLW 2001,

60 USLW 2059

Curtis COWAN, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

No. 930, Docket 90-7865.

United States Court of Appeals Second Circuit.

Argued Jan. 30, 1991.

Decided June 12, 1991.

David N. Rosen, New Haven, Conn. (Joseph D. Garrison, of counsel), for plaintiff-appellant.

Dean C. Berry, Washington, D.C. (Gibson, Dunn & Crutcher, of counsel), for defendant-appellee.

Before KEARSE, PRATT and McLAUGHLIN, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Plaintiff appeals the award of only $20,000 in attorney's fees under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. Sec. 1988, entered in the United States District Court for the District of Connecticut, Ralph K. Winter, United States Circuit Judge, sitting by designation. The fee was awarded after a bench trial in an employment discrimination suit that resulted in a damage award of $15,000 for emotional distress. Following the prescribed "lodestar" approach, see City of Riverside v. Rivera, 477 U.S. 561, 568, 106 S.Ct. 2686, 2691, 91 L.Ed.2d 466 (1986), the district court initially calculated a reasonable attorney's fee to be $54,012.76, but then entered judgment for $20,000 in order to make the fee award more proportional to the damage award.

Plaintiff now claims that the district court erroneously interpreted Rivera as requiring proportionality between attorney's fees and damages. As a result, plaintiff claims, the district court incorrectly reduced the "lodestar" attorney's fee award. Plaintiff also claims that the district court overlooked, and therefore failed to allow, his proposed bill of costs which had been filed. We agree with the plaintiff on both claims; therefore, we reverse the judgment and remand to the district court to award the reasonable "lodestar" fee of $54,012.76, together with costs to be fixed after reviewing plaintiff's proposed bill of costs.

BACKGROUND

Plaintiff Curtis Cowan, who is black, brought an action against his former employer, defendant Prudential Insurance Company of America ("Prudential"), alleging that Prudential had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. ("Title VII"), and 42 U.S.C. Sec. 1981, by discriminating against him on the basis of race in a series of promotion decisions. For trial purposes, the issues of liability and damages were bifurcated. After a bench trial, the district court did not find any widespread discrimination at Prudential, but it did find that Prudential had violated Title VII and Sec. 1981 when Cowan's superior failed to even consider Cowan for three promotions for which he was qualified. Cowan v. Prudential Ins. Co., 703 F.Supp. 177 (D.Conn.1986). The district court awarded Cowan $15,000 in damages for emotional distress under Sec. 1981, but did not award any backpay. Cowan v. Prudential Ins. Co., 703 F.Supp. 196 (D.Conn.1987). On the first appeal, we affirmed as to both liability and damages. Cowan v. Prudential Ins. Co., 852 F.2d 688 (2d Cir.1988).

The district court then turned to the task of determining attorney's fees and considered the problem of how the Supreme Court's decision in Rivera affected that determination. It specifically addressed the question of whether Rivera required some degree of proportionality between the fee award and the damage award.

The district court rendered alternative decisions because the law was "unclear as to the effect of the size of the damage award on the size of the permissible fee award". Cowan v. Prudential Ins. Co., 728 F.Supp. 87, 89 (D.Conn.1990). The court first calculated a "lodestar" award of $54,012.76 for time spent by counsel on those issues on which the plaintiff prevailed. It then proceeded to fix an alternative fee award of $20,000 after holding that Rivera constrained the court to consider "both the size of the damage award and the congressional purpose of encouraging the prosecution of meritorious civil rights cases" in determining the final fee award. Id. Finally, it determined a second fee alternative of $6,000 by applying a strict rule of proportionality and taking into account "only the size of the actual damage award". Id. The district court entered judgment using the $20,000 alternative fee award.

The district court allowed no other costs, apparently unaware that plaintiff had filed a proposed bill of costs requesting $4,722.55.

DISCUSSION

As a preliminary matter, we address plaintiff's claim for costs, which need not detain us long. The district court was unaware that the plaintiff had submitted any bill of costs. The record before us, however, clearly shows that the plaintiff had made the requisite submission. Since the matter was not brought to the district judge's attention, we remand the issue to the district court where the matter should be submitted for an appropriate determination of costs.

We now turn to the more complicated and difficult aspect of this appeal. The central issue is whether a reasonable attorney's fee, calculated through the "lodestar" approach after eliminating from the multiplicand all the hours spent by counsel on unsuccessful issues, may be reduced still further in order to achieve "proportionality" between the attorney's fee award and the damage award. Since the Supreme Court's decision in City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986), this question has not been squarely addressed by this court.

Section 1988 of Title 42 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Initially, a court must determine whether a plaintiff seeking attorney's fees is a "prevailing party". Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Cowan clearly prevailed in this case.

Once plaintiff is found to have prevailed, it remains for the district court to determine what is a "reasonable attorney's fee". The starting point for calculating a reasonable attorney's fee is to "multiply[ ] the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984); see also Hensley, 461 U.S. at 433, 103 S.Ct. at 1939.

In this case, Cowan had originally requested fees totaling $84,970.75, plus costs of $4,722.55. The district court found, however, that Cowan's attorneys, in calculating the $84,970.75 figure, had not excluded a satisfactory number of hours for work done on unsuccessful claims and issues. After recalculating the reductions to reflect all the unsuccessful work, the court determined that $54,012.76 was the appropriate "lodestar" figure. We find no error in the district court's analysis and findings up to this point, for the allocation of fees between successful and unsuccessful claims necessarily lies largely in the discretion of the district court. Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.

Next, we deal with the issue of proportionality. We have previously considered the issue of whether a low damage award justifies the use of a negative multiplier in determining fees after a "lodestar" figure has been calculated. DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir.1985). In DiFilippo, we rejected such a reduction of the "lodestar" amount if the only reason for the reduction was simply a low damage award. We stated: " '[A]warding attorney's fees in a manner tying that award to the amount of damages would subvert the statute's goal of opening the court to all who have meritorious civil rights claims.' " Id. (quoting Lynch v. City of Milwaukee, 747 F.2d 423, 429 (7th Cir.1984)).

The district court here believed, however, that "Rivera clearly alter[ed] the law of this Circuit", Cowan, 728 F.Supp. at 93, and concluded that DiFilippo was no longer the law. It calculated a reasonable fee based on the "lodestar" approach, which under DiFilippo would have been the "presumptively appropriate" figure, but then reduced that figure, believing that Rivera made such a reduction necessary simply because the damage award was low.

This is where we disagree with the district court. Reducing the "lodestar" fee from $54,012.76 to $20,000 simply because plaintiff was unsuccessful in proving damages amounts to a double-discount against this prevailing plaintiff for his lack of monetary success. While the district court felt that Rivera required this downward adjustment, we conclude that no such command can be extracted from the four opinions in that case.

In Rivera, the Supreme Court addressed the specific question of whether an attorney's fee award that was eleven times the damage award was "per se 'unreasonable' within the meaning of the statute". Rivera, 477 U.S. at 564, 106 S.Ct. at 2689. The issue sharply divided the Court and produced an indecisive 4-1-4 decision, with one additional dissenting opinion. The ultimate result, however, was that five justices did approve an attorney's fee award of $245,456.25 even though the plaintiffs received only $33,350 in damages.

Four of the justices rejected a rule of proportionality in all situations. Justice Brennan, writing for the plurality, stated:

A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. * * * In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case.

Id. at 578, 106 S.Ct. at 2696 (Brennan, J., announcing judgment of Court) (emphasis added).

Justice Powell, who concurred only in the judgment of the Court, did so because he concluded that the district...