Palmer v. Shultz, Civ. A. No. 76-1439

• Decision Date: 17 September 1984
• Docket Number: Civ. A. No. 76-1439,77-2006.
• Citation: 594 F. Supp. 433
• Parties: Alison PALMER, et al., Plaintiffs, v. George P. SHULTZ, Defendant. Marguerite COOPER, et al., Plaintiffs, v. George P. SHULTZ, Defendant.
• Court: U.S. District Court — District of Columbia

594 F. Supp. 433

Alison PALMER, et al., Plaintiffs, v. George P. SHULTZ, Defendant.

Marguerite COOPER, et al., Plaintiffs, v. George P. SHULTZ, Defendant.

Civ. A. Nos. 76-1439, 77-2006.

United States District Court, District of Columbia.

September 17, 1984.

Ellen Wayne, Terris & Sunderland, Washington, D.C., for plaintiffs.

Diane M. Sullivan, Asst. U.S. Atty., Washington, D.C., for defendant.

MEMORANDUM

JOHN LEWIS SMITH, Jr., Senior District Judge.

This matter is before the Court on plaintiffs' application for an award of attorney's fees and expenses under § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). In applications filed December 12, 1983, and July 12, 1984, plaintiffs request a total of $450,797.12 in fees and expenses. The request arises from a class action against the Department of State, in which plaintiffs alleged widespread sex discrimination by defendant with respect to employment practices in the Foreign Service. On October 12, 1983, some seven years after suit was filed, this Court approved a consent decree settling the portion of the case involving applicants for junior-level Foreign Service positions. That decree supplies the basis for plaintiffs' claim that they are the "prevailing party" and thereby entitled to an award under § 706(k).

This is an unusual case. Major pieces of Title VII litigation often produce major pieces of attorney's fees litigation. The substantive standards involve resolution of numerous factual issues, subsumed under this analytical heading or that, all litigable, and all subject to an imprecise test of "reasonableness." The procedural standards, most thoroughly set out by the Court of Appeals in National Association of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319 (D.C.Cir.1982), require detailed documentation of the attorney's efforts, and establishment through affidavit of a "prevailing market rate" in a "market" that really does not exist. The result is often lengthy records, lengthy proceedings, and lengthy "opinions" where the Court not so much opines but rather acts as a blackrobed bookkeeper. It is not surprising that judges frequently decry the entire process.

This case is not like that. The issues are few in number, and legal in character. The government offers no opposition on several key questions. It concedes that plaintiffs are the prevailing party. It does not challenge in any respect the "reasonableness" of the hours claimed by plaintiffs. It provides but four pages of evidence of prevailing market rates. For their part, plaintiffs base their request for a multiplier on only one of the three grounds generally accepted as supporting an adjustment to the lodestar. The parties join issue on only three matters: the prevailing market rate, the use of current market rates in claims against the government, and plaintiffs' entitlement to compensation for certain expenses. Upon careful review of the record, and of recent developments in the law, the Court concludes that plaintiffs are entitled to an award of $439,541.48.

1. The Lodestar: Appropriate Hourly Rate

"The initial task in determining an appropriate fee award ... is to establish the `lodestar': the number of hours expended multiplied by a reasonable hourly rate." Concerned Veterans, supra, 675 F.2d at 1323 (citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc) ("Copeland III")). See also Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Defendant does not question the "number of hours expended" by plaintiffs' counsel, and with good reason: plaintiffs fully document and justify the hours claimed.¹ Defendant does challenge plaintiffs' requested hourly rates, and to that issue the Court now turns.

Seventeen different attorneys from Terris & Sunderland worked on this matter over the past eight years. The proposed rate schedule, based on years of experience, ranges from a high of $150 per hour for Mr. Terris, to a low of $75 per hour for the most junior associates. See Plts.Mem. at 20. Because of the firm's policy of assigning primary responsibility at any given time to one or two associates, attorneys in the 4-7 and 8-10 year categories ($95-110) performed most of the work. See id.; First Terris Affidavit at ¶ 14.

Plaintiffs' proposed rate schedule is tested against this standard: "a reasonable hourly rate is that prevailing in the community for similar work." Concerned Veterans, supra, 675 F.2d at 1323 (citing Copeland III, supra, 641 F.2d at 1323). Defendant finds plaintiffs' proposal excessive. According to defendant, "similar work" means representation of plaintiffs in Title VII cases. "Prevailing rate" means the actual rate charged to plaintiffs by the applicant and by other Title VII attorneys. Defendant suggests that its own settlement policy, offering rates in a $45-75 range, more accurately reflects the true "prevailing community rate." See Def. Mem. at 2-3.

This approach is incorrect. The Supreme Court, the Court of Appeals, and this Court have rejected the various premises of defendant's argument, as well as its method of presentation. Needless to say, defendant's evidentiary offerings are of the sort expressly condemned in Concerned Veterans:

"It should be recognized that fees awarded in other cases are probative of the appropriate community rate only if they were determined based on actual evidence of prevailing market rates, the attorneys involved had similar qualifications, and issues of comparable complexity were raised ...

"A blunderbuss array of cases specifically selected to support a low hourly rate does not assist the District Court in determining the prevailing community rate. Carefully selected cases organized in a meaningful fashion, on the other hand, would be extremely useful." Concerned Veterans, supra, 675 F.2d at 1325 n. 7.

Defendant's legal argument is also deficient. Defendant incorrectly limits the inquiry to the plaintiff's side of the "Title VII market." In 1983, this Court rejected the notion that there are "separate prevailing rates for the defense and prosecution of Title VII actions." Laffey v. Northwest Airlines, 572 F.Supp. 354, 374 (D.D.C. 1983). In 1984, the Supreme Court rejected the notion that subject-matter defines "similar work." The Court held that statutory fee awards are set according to the "same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases...." Blum v. Stenson, supra, 104 S.Ct. at 1546 (quoting S.Rept. No. 94-1011 p. 6, U.S.Code Cong. & Admin. News 1976 pp. 5908, 5913). The key aspect of a case is its complexity, not its cause, a proposition in accord with both the law and the views of practitioners (see infra note 3).

Defendant is correct in observing that the court must examine the actual rates charged by plaintiffs' counsel. See Concerned Veterans, supra, 675 F.2d at 1326 (actual rate "highly relevant proof of the prevailing community rate"). The cases, however, recognize that firms may charge rates that — "for whatever reason — do not reflect the full value of their services." Laffey v. Northwest Airlines, supra, 572 F.Supp. at 374. See also Blum, supra, 104 S.Ct. at 1547 & n. 11; Concerned Veterans, supra, 675 F.2d at 1326 n. 7a; Copeland III, supra, 641 F.2d at 900. Some firms, including plaintiffs' counsel, charge rates that are "reduced to reflect the financial constraints of their clientele," Laffey, supra, 572 F.Supp. at 373, and others — the "public interest" bar — charge nothing at all.² All agree that employment and civil rights litigation is frequently, if not typically, handled by such firms. See Def.Mem. at 3; Plts.Reply at 8. Defendant finds great meaning in this circumstance: "just as in any other market, if all or most consumers pay a lower cost, that `reduced rate' is the market rate." Def.Mem. at 3. The Supreme Court, however, reached a different conclusion:

"Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily and Davis make this explicit. In Stanford Daily, the court held that it `must avoid ... decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.' 64 F.R.D. at 681." Blum, supra, 104 S.Ct. at 1547 (citations omitted).

The "lower costs" defendant points to are a function of the type of firm charging them. The type of firm after Blum is irrelevant. Blum thus seems to read much of the relevance out of an attorney's "actual charge," and nothing in Concerned Veterans precludes a court from examining the actualities of "actual rates." Cf. 675 F.2d at 1326 n. 7a. The Blum and Laffey cases make clear that actual rates do not necessarily reflect "market value," and market value is the touchstone of the fee inquiry.

Market value is properly derived by evaluating the complexity of the litigation, and the "skill, experience, and reputation" of the attorney handling the matter. Blum, supra, 104 S.Ct. at 1547 n. 11. The focus then shifts to the community:

"An applicant is required to provide specific evidence of the prevailing community rate for the type of work for which he seeks an award. For example, affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases provide prevailing community rate information. Recent fees awarded by the courts or through settlement to attorneys of comparable reputation and experience performing similar work are also useful guides in setting an appropriate rate." Concerned Veterans, supra, 675 F.2d at 1325.

Plaintiffs make all the showings necessary to justify the proposed rate schedule. There is no question that the case was and is complex. Defendant does not dispute it, and the record reveals it. The case involved...