Palmigiano v. Garrahy

• Citation: 616 F.2d 598
• Decision Date: 03 March 1980
• Docket Number: Nos. 79-1183,79-1185,s. 79-1183
• Parties: Nicholas PALMIGIANO et al., Plaintiffs, Appellees, v. J. Joseph GARRAHY et al., Defendants, Appellants. Leonard JEFFERSON et al., Plaintiffs, Appellees, v. Bradford E. SOUTHWORTH et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 598

616 F.2d 598

Nicholas PALMIGIANO et al., Plaintiffs, Appellees, v. J. Joseph GARRAHY et al., Defendants, Appellants.

Leonard JEFFERSON et al., Plaintiffs, Appellees, v. Bradford E. SOUTHWORTH et al., Defendants, Appellants.

Nos. 79-1183, 79-1185.

United States Court of Appeals First Circuit.

Submitted Nov. 9, 1979.

Decided March 3, 1980.

Dennis J. Roberts, II, Atty. Gen., and Eileen G. Cooney, Sp. Asst. Atty. Gen., Providence, R. I., on brief for defendants, appellants.

Matthew L. Myers, Providence, R. I., Alvin J. Bronstein, Washington, D. C., and Robert Mann, Providence, R. I., on brief, for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This is another round in the litigation about conditions at the Adult Correctional Institutions in Rhode Island. See Palmigiano v. Garrahy, 599 F.2d 17 (1st Cir. 1979). In this appeal the state defendants contest an award of attorney's fees totalling $115,483.75 made to the plaintiff prisoners under the Civil Rights Attorney's Fees Awards Act of 1976 (the Fees Act), Pub.L.No. 94- 559, 90 Stat. 2641 (amending 42 U.S.C. § 1988). ¹ The prisoners were represented by four lawyers: three were employed by the National Prison Project of the privately funded American Civil Liberties Union and the fourth, Robert Mann, was in private practice. The defendants accept the fee award as it relates to Mr. Mann's services. In addition, they concede that fees may be awarded for the services of attorneys employed by a public interest organization such as the National Prison Project, and that the district judge weighed each of the twelve factors we have said must be considered in making a fee award under the Fees Act. See King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir. 1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Nevertheless, the defendants contend that the district court erred in failing to consider the salaries of the National Prison Project lawyers in computing a reasonable fee.

The district court understood the defendants to be arguing that the award for these lawyers' services must be limited to the actual cost to the National Prison Project in litigating the plaintiffs' lawsuits, as represented by the salaries paid counsel for the time spent on the cases. ² In rejecting this argument, the district court considered itself bound by decisions of this court, particularly Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) and Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978), to compensate counsel on the same basis as private practitioners. Palmigiano v. Garrahy, 466 F.Supp. 732, 736 (D.R.I.1979); Jefferson v. Southworth, C.A. No. 77-544, slip op. at 18 (D.R.I. February 22, 1979). In addition, it found no support in other case law or the legislative history of the Fees Act for computing fees differently for a public interest organization and thought that lesser compensation would undermine certain purposes of fee awards: to deter illegal conduct, to encourage private enforcement of civil rights laws, and to attract competent counsel. Palmigiano v. Garrahy, supra, 466 F.Supp. at 736. The court also noted that the National Prison Project was prevented by its work in the present cases from applying its resources to other civil rights litigation; it added that the fee award in these cases would help to finance other such lawsuits. Id.

Because the district court relied substantially on first circuit cases in refusing to give weight to counsels' salaries, we begin by reviewing our own precedent. In King v. Greenblatt, supra, 560 F.2d at 1026-28, we announced that we would require courts awarding fees under the Fees Act to consider the twelve factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) ³ and affirmed a fee award to private counsel that seemed reasonable under the Johnson criteria. A lawyer's salary was not among the twelve criteria cited. To the contrary, the Johnson test focussed largely on the reasonable market value of the services rendered.

In Reynolds v. Coomey, supra, we were faced with an appeal from the denial of attorney's fees for the services of NAACP Legal Defense Fund staff attorneys. Reversing, we stated: "Attorney's fees are, of course, to be awarded to attorneys employed by a public interest firm or organization on the same basis as to a private practitioner." 567 F.2d at 1167. We instructed the district court to determine reasonable attorney's fees in the light of King v. Greenblatt. Id. ⁴ Likewise, in Perez v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir. 1978), we remanded for an award of attorney's fees for representation by the publicly funded Puerto Rico Legal Services, Inc., citing the above quoted language from Reynolds v. Coomey. See also Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979), remanding the case a second time for a fee award consistent with King v. Greenblatt.

The next case involving a fee award to a legal services organization was Lund v. Affleck, supra. In that case, unlike Reynolds and Perez, the district court had awarded fees, which as here were assessed against Rhode Island officials. Although it is not altogether clear from our opinion, the Rhode Island defendants argued on appeal both that legal services organizations may not recover attorney's fees and, in the alternative, that recovery should be limited to their costs. 587 F.2d at 76; Brief for Defendants at 20-21, 25. We considered the first argument foreclosed by our recent decision in Perez, and upheld awards that had been made in accordance with King v. Greenblatt, with reference to billing rates of $55 and $60/hour. Id. at 76-78.

A review of these cases demonstrates that we have previously held that public interest organizations (whether privately or publicly funded) be awarded attorney's fees under the Fees Act on the same basis as private practitioners. In Lund, especially, we were not impressed with the argument that attorney's fees to a legal services organization should be limited to the organization's costs. In this case the defendants would have us take a new approach. We decline to do so, and take this opportunity to explain why we adhere to our previously stated views.

First and foremost, we think that compensating public interest lawyers the same way as private practitioners is consistent with the legislative history of the Fees Act. The Senate Judiciary Committee Report, which states that fees are to be awarded according to the standards in Johnson v. Georgia Highway Express, Inc., draws no distinction between employees of public interest organizations and members of the private bar. S.Rep.No. 1011, 94th Cong., 2d Sess. 6, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 5908, 5913. Indeed, the Senate Report cites with approval Davis v. County of Los Angeles, 8 EPD P 9444 (C.D.Cal.1974), a Title VII case in which the court said, in determining the amount of attorney's fees to award:

(I)t is not legally relevant that plaintiffs' counsel . . . are employed by the Center for Law in the Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys' fees to be computed in the traditional manner . . .

Id. at PP 9444-45. The court made its award by calculating reasonable hourly rates and referring to the factors mentioned in Johnson v. Georgia Highway Express, Inc. Id. See also Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483, 486 (W.D.N.C.1975), also cited in the Senate Report. Likewise, the House Judiciary Committee Report, H.R.No. 1558 94th Cong., 2d Sess. 8 n.16 (1976), cites civil rights cases squarely holding that fee awards may not be reduced because the prevailing party's attorney is employed by a civil rights or tax exempt organization. Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976) (award for services of Puerto Rico Legal Defense and Education Fund upheld); Fairley v. Patterson, 493 F.2d 598, 606-07 (5th Cir. 1974) (award to Lawyers Committee for Civil Rights Under Law reversed as too small).

Furthermore, we think that allowing full compensation for the services of public interest lawyers serves the clearly expressed legislative purpose of encouraging private enforcement of civil rights laws. S.Rep.No. 1011, supra, at 5; H.R.Rep.No. 1558, supra, at 2. As the district court pointed out, the National Prison Project, like other such organizations, has finite resources, and a full fee award will enable it to undertake further civil rights litigation. ⁵

Second, we note that other courts have recently and convincingly rejected the notion that fee awards under the Fees Act (42 U.S.C. § 1988) or comparable statutes should be reduced or keyed to an attorney's salary when a prevailing party has been represented by a public interest organization. In Rodriguez v. Taylor, 569 F.2d 1231, 1247-48 (3rd Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), an ADEA case, the third circuit discussed this issue at length and concluded that the district court had abused its discretion in considering the salaries of legal services lawyers in setting fees. Other cases refusing to set fees in accordance with salaries are Lackey v. Bowling, 476 F.Supp. 1111, 1116-17 (N.D.Ill.1979) (award to legal services organization under § 1988) and Gunther v. Iowa State Men's Reformatory, 466 F.Supp. 367, 368-69 (N.D.Iowa 1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev'd on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work). ⁶

Third, we are not convinced by the defendants' suggestion that setting fees in this case without regard to the salaries paid by the National...