National Ass'n of Concerned Veterans v. Secretary of Defense

• Decision Date: 25 February 1982
• Docket Number: 81-1791 and 81-1965,Nos. 81-1364,81-1424,s. 81-1364
• Parties: 28 Fair Empl.Prac.Cas. 1134, 28 Empl. Prac. Dec. P 32,665, 219 U.S.App.D.C. 94 NATIONAL ASSOCIATION OF CONCERNED VETERANS, et al., Appellees/Cross-Appellants, v. SECRETARY OF DEFENSE, et al., Appellants/Cross-Appellees. Mark GREEN and Corporate Accountability Research Group v. DEPARTMENT OF COMMERCE, Appellant. Beverly L. B. PARKER v. SECRETARY OF TRANSPORTATION, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1319

675 F.2d 1319

28 Fair Empl.Prac.Cas. 1134,

28 Empl. Prac. Dec. P 32,665, 219 U.S.App.D.C. 94

NATIONAL ASSOCIATION OF CONCERNED VETERANS, et al., Appellees/Cross-Appellants, v. SECRETARY OF DEFENSE, et al., Appellants/Cross-Appellees.

Mark GREEN and Corporate Accountability Research Group v. DEPARTMENT OF COMMERCE, Appellant.

Beverly L. B. PARKER v. SECRETARY OF TRANSPORTATION, Appellant.

Nos. 81-1364, 81-1424, 81-1791 and 81-1965.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 25, 1982 in No. 81-1965.

Submitted on Briefs Feb. 25, 1982 in Nos. 81-1364, 81-1424.

Argued Feb. 26, 1982 in No. 81-1791.

Decided April 23, 1982.

Appeals from the United States District Court for the District of Columbia (D.C.Civil Action Nos. 79-0211, 77-0363 and 79-3443).

Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the briefs were filed, and Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the briefs, for appellants in all cases. Cheryl M. Long, Asst. U. S. Atty., Washington, D. C., was also on the brief, for appellant in No. 81-1965.

Barton F. Stichman, David F. Addlestone, and Ronald Simon, Washington, D. C., were on the brief, for appellees in No. 81-1364.

John Oliver Birch, Asst. U. S. Atty., Washington, D. C., argued on behalf of appellants in No. 81-1791 and No. 81-1965.

David C. Vladeck, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on the brief, argued on behalf of appellees in No. 81-1791.

Charles Stephen Ralston, New York City, with whom Jack Greenberg, New York City, was on the brief, argued on behalf of appellees in No. 81-1965.

Before TAMM and WILKEY, Circuit Judges, and GERHARD A. GESELL, ^* United States District Judge for the District of Columbia.

Opinion PER CURIAM.

Concurring opinion filed by Circuit Judge TAMM.

PER CURIAM:

In each of the three captioned appeals the United States challenges the award by the District Court of attorneys' fees to the successful plaintiffs below. These appeals are consolidated for convenience in this single opinion because they raise common questions relating to the application of this Court's Copeland III decision. Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc ).

Two of these cases were brought under the Freedom of Information Act, 5 U.S.C. § 552 (1976) ("FOIA"), and the third arose under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). The District Court awarded a fee in each case only after first determining that claimant had "prevailed" and was otherwise entitled to a fee award in some amount. ¹ In each instance the District Court then attempted to apply the "market value" approach approved in Copeland III in order to determine an appropriate fee. ² On appeal the United States does not challenge appellees' entitlement to attorneys' fees but contends that the awards failed to comply with the requirements of Copeland III and that the level of the fees is excessive.

The initial task in determining an appropriate fee award under Copeland III ³ is to establish the "lodestar": the number of hours reasonably expended multiplied by a reasonable hourly rate. 641 F.2d at 891. A reasonable hourly rate was defined in Copeland III as that prevailing in the community for similar work. Id. at 892. Once established, the lodestar may be adjusted to reflect various other factors. The Court noted that a premium should generally be awarded if counsel would have obtained no fee in the event the suit was unsuccessful or if the fee award is made long after the services were rendered. Id. at 892-93. In addition, it indicated that the lodestar figure may be either increased or reduced to recognize legal representation of unusually superior or inferior quality. Id. at 893-94. Recognizing that some of the elements of this formula were necessarily somewhat imprecise, the Court emphasized that "we ask only that the district court judges exercise their discretion as conscientiously as possible, and state their reasons as clearly as possible." Id. at 893.

The framework thus established by Copeland III placed a difficult burden on the District Courts which can only be met where fee applicants meet their correspondingly

heavy obligation to present well-documented claims. Our review of these appeals establishes that there is a definite need for a further definition of the obligations of attorney fee applicants in documenting their claims as well as a need to define more clearly procedures to be followed in the District Court when opposition to a requested fee award is noted. We vacate each of the awards here under review and remand for further proceedings consistent with the procedures appropriate for implementing Copeland III as outlined in Part I of this opinion. The specific deficiencies found in the record of each of the captioned cases are stated in Part II.

I.

For purposes of convenience our discussion will be under the following headings which are suggested by one or more of the cases before us.

(1) What type of factual showing is necessary to establish the prevailing hourly rate in the community for similar work?

(2) What type of factual showing is necessary to establish the number of hours reasonably expended on the case?

(3) What type of factual showing is necessary to support a claim for an adjustment to the lodestar?

(4) When should the District Court allow formal discovery against the fee applicant?

(5) When should the District Court conduct an evidentiary hearing on an attorney fee application?

In resolving these issues the Court recognizes several competing concerns. The District Court must, of course, be supplied with sufficient information to determine a reasonable and equitable fee. Obviously, fee applications should not be rigidly confined to a single mold and experience will suggest appropriate variations, but there is a need to indicate the minimum documentation which should be presented to a District Court before it may act on a fee application. Procedural fairness also requires that the party opposing the fee be permitted the opportunity to scrutinize the reasonableness of the fee requested and to present any legitimate objections. The opponent of the fee award has a right to utilize all reasonable means to resolve any significant factual dispute that would substantially affect the size of the award.

But contests over fees should not be permitted to evolve into exhaustive trial-type proceedings. ⁴ Apart from the burden this would impose on District Courts, many factors used in calculating the fee award can usually be resolved with a reasonable degree of accuracy based on an adequately documented fee application. Other elements of the Copeland III formula, in particular any adjustment in the lodestar to reflect the risk that the suit would be unsuccessful or to recognize unusually good or bad representation, may be resolved by the District Court through a qualitative evaluation based primarily on the Court's own observation and facts readily submitted through the application itself. More importantly, attorneys would be deterred from undertaking FOIA and Title VII actions if each victory on the merits were inevitably but the prelude to an exhausting and uncertain battle over fees. This would frustrate the purposes of FOIA and Title VII.

With these general considerations in mind we turn to consider each of the issues listed above. A full discussion of the key elements in fee determination is necessary to guide resolution of these cases on remand and to emphasize the need to develop a more standardized approach for future application of our controlling decision in Copeland III. ⁵

(1) What type of factual showing is necessary to establish the prevailing rate in the community for similar work?

The key issue in establishing the proper lodestar is to determine the reasonable hourly rate "prevailing in the community for similar work." 641 F.2d at 892. The Setting a prevailing hourly rate has proven more difficult than perhaps may have been contemplated. Lawyers organize their practice in many different ways and employ a variety of billing techniques. Some counsel, including those associated with the more substantial firms in this city, have well-established billing practices and generally receive remuneration from their clients on a regular basis. The hourly rate obtained by an individual attorney will vary, however, not only according to the various factors enunciated in Copeland III, but also depending on his personal professional interests and the ability of his clients to pay. On the other hand, lawyers associated with public interest groups or single practitioners who specialize in Title VII or FOIA cases, for example, may obtain all or most of their fees from fee awards. Attorneys in this second group may not have an established "billing rate" that reflects how their own services have been valued in the market. Other lawyers undoubtedly fall somewhere between these two stereotypes. Sharp inflation has made even more difficult the judicial task of determining a prevailing rate since inflation perforce induces rapid change in billing practices.

Court in Copeland III indicated that some "relevant considerations" included "the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney's reputation, and the undesirability of the case." Id. The Court also noted that the hourly rate should generally depend on the experience of the attorney and the type of work involved. Id. However, no guidance was provided as to the nature of the submission an applicant for a statutory fee award should make in the District Court to support the hourly rate requested. ⁶

The complexity of the market for legal services does not, however, reduce the importance of fixing the prevailing hourly rate in each particular case with a fair degree of accuracy. An applicant is required to provide...