Society for Good Will to Retarded Children v. Cuomo

• Decision Date: 17 November 1983
• Docket Number: No. 78-Civ.-1847.,78-Civ.-1847.
• Citation: 574 F. Supp. 994
• Parties: SOCIETY FOR GOOD WILL TO RETARDED CHILDREN, INC., et al., Plaintiffs, v. Mario M. CUOMO, as Governor of the State of New York, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

574 F. Supp. 994

SOCIETY FOR GOOD WILL TO RETARDED CHILDREN, INC., et al., Plaintiffs, v. Mario M. CUOMO, as Governor of the State of New York, et al., Defendants.

No. 78-Civ.-1847.

United States District Court, E.D. New York.

November 17, 1983.

Murray B. Schneps, Michael S. Lottman, New York City, for plaintiffs.

Robert Abrams, Atty. Gen. of New York, New York City by Caren S. Brutten, William J. Caplow, Frederick K. Mehlman, Asst. Attys. Gen., New York City, Alan M. Adler, Deputy Counsel State of New York, Albany, N.Y., for defendants.

MEMORANDUM AND ORDER

WEINSTEIN, Chief Judge:

Plaintiffs have obtained extensive relief in this class action challenging conditions and practices at Suffolk Developmental Center. Society for Good Will to Retarded Children, Inc. v. Cuomo, 572 F.Supp. 1300 (E.D.N.Y.1983). They now move for counsel fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976. 42 U.S.C. § 1988.

Although a hearing on this matter would have provided helpful insights into the relevant realities of current law practice and its economics, this motion is decided on written submission on the request of all parties. Cf. Williams v. Alioto, 625 F.2d 845, 849 (9th Cir.1980) (per curiam) (no requirement of evidentiary hearing for section 1988 fee determination), cert. denied, 450 U.S. 1012, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1981); Konczak v. Tyrrell, 603 F.2d 13, 19 (7th Cir.1979) (affidavits and briefs are adequate to decide fee issue), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980); City of Detroit v. Grinnell Corp., 495 F.2d 448, 469-70 (2d Cir.1974) (Grinnell I) (in equitable fund cases the "court should typically take pains to allow a complete airing of all objections to a petitioner's fee claim").

I. BACKGROUND

Plaintiffs filed this action in August of 1978. There followed numerous motions and hearings and a twenty-one day trial in 1982. See Society for Good Will to Retarded Children, 572 F.Supp. at 1353, for a detailed procedural history. The docket sheet's 296 entries provide some indication of the enormous work required of counsel. More than fifty witnesses were heard and over 300 exhibits received.

During the entire litigation Mr. Murray B. Schneps has represented plaintiffs. He was plaintiffs' sole counsel until March 1982, approximately one month before the start of trial. At that time Mr. Michael S. Lottman joined him as trial counsel.

Mr. Schneps is a sole practitioner with his office in Manhattan. He has been practicing law for twenty years. For the last fourteen years he has worked extensively in litigation involving the legal rights of the handicapped. Among other cases, Mr. Schneps participated in the Willowbrook litigation. New York State Association for Retarded Children, Inc. v. Carey, 393 F.Supp. 715 (E.D.N.Y.1975).

Mr. Lottman is also experienced in this type of litigation. He serves as a hearing master for the Federal District Court in Philadelphia for the Penhurst case. Halderman v. Penhurst State School and Hospital, 612 F.2d 84 (3rd Cir.1979), rev'd and remanded, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), on remand, 673 F.2d 647 (3rd Cir.1982). He was admitted to the bar in 1969 and for the past ten years has concentrated his practice in the field of the legal rights of the handicapped, especially mentally disabled persons.

Both Mr. Schneps and Mr. Lottman represented their clients with extraordinary skill and tenacity. This case was strongly contested by the State of New York. In the preliminary stages the state was represented by the well known New York firm of LeBoeuf, Lamb, Leiby and MacRae. During the trial defendants were represented by three or more Assistant Attorney Generals.

II. PREVAILING PARTY

In civil rights actions "the Court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. "The purpose of section 1988 is to ensure `effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (quoting H.R.Rep. No. 94-1558, p. 1 (1976)). Plaintiffs are the prevailing parties. They have obtained substantial relief from this Court on almost all issues. See Society for Good Will to Retarded Children, 572 F.Supp. 1352 (E.D.N.Y.1983). The threshold statutory requirement that they prevail on some aspect of their claim for relief has been met. See Hensley v. Eckerhart, supra, 103 S.Ct. at 1939.

III. COMPUTATION OF FEES

The statute requires fixing of a "reasonable attorney's fee". 42 U.S.C. § 1988. Computation begins with a determination of the number of hours reasonably expended by the prevailing party's counsel; that number is then multiplied by a reasonable hourly rate. Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40; Cohen v. West Haven Bd. of Police Commissioners, 638 F.2d 496, 505 (2d Cir.1980); City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir.1977) (Grinnell II) ("lodestar" approach); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974) (Grinnell I). See generally 2 M. Derfner & A. Wolf, Court Awarded Attorney Fees ¶ 16 (1983). The Court may then adjust this figure to compensate counsel for factors such as risk, quality of representation and results obtained. See Hensley v. Eckerhart, 103 S.Ct. at 1940; New York Association for Retarded Children, Inc. v. Carey, ("NYSARC"), 711 F.2d 1136, 1153 (2d Cir.1983).

Based on the legislative history of section 1988 the Supreme Court has indicated that the following factors should be considered in determining a fee:

(1) the time and labor required;

(2) the novelty and difficulty of the questions;

(3) the skill requisite to perform the legal service properly;

(4) the preclusion of employment by the attorney due to acceptance of the case;

(5) the customary fee;

(6) whether the fee is fixed or contingent;

(7) time limitations imposed by the client or the circumstances;

(8) the amount involved and the results obtained;

(9) the experience, reputation, and ability of the attorneys;

(10) the "undesirability" of the case;

(11) the nature and length of the professional relationship with the client; and

(12) awards in similar cases.

Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 1937 n. 3, 76 L.Ed.2d 40. While all these factors have not been referred to separately below, each has been considered in arriving at the final award.

A. Hours

Plaintiffs have submitted detailed affidavits in support of their claim for 3406.89 hours. Most of those hours represent work by Mr. Schneps (2747.89), with the remainder being hours of Mr. Lottman (659). In general the affidavits of both attorneys identify the date, nature of the work done, and hours worked in conformity with this circuit's requirements. See NYSARC, 711 F.2d 1136, 1147-48.

For the period May through June of 1978, Mr. Schneps does not provide a breakdown for the work done. He claims 20.5 hours to "review questionnaires, information and documents, research and general organization of complaint." Again for July of 1978, he claims 38.5 hours for "research, telephone calls, drafts and preparation of complaint." The NYSARC requirement of specific documentation, however, applies only to work done after the date of that opinion, June 15, 1983. Moreover, this amount of time, 59 hours, is negligible. It is entirely reasonable as measured by the documents and other preparatory work required during this period.

At all stages of this case plaintiffs' lawyers have kept their hours remarkably low. They were able to proceed with only one or two lawyers. The total number of hours claimed, 3406.89, is entirely reasonable, especially in comparison to those in similar class action cases challenging conditions at institutions for the mentally disabled. See NYSARC, 711 F.2d 1136, 1147-48 (in similar class action challenging conditions at state facility for the mentally retarded district court allowed 11,034 hours and denied 5377 hours for work of eight lawyers; Second Circuit upheld with exception of 322 hours); Association for Retarded Citizens v. Olson, 561 F.Supp. 495, 501, 502, 508 (D.N.D.1982) (allowing over 5000 hours in class action challenging conditions and treatment of mentally retarded persons). As the Supreme Court has noted, "cases may be overstaffed". Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. This one was not.

1. Travel Time

Plaintiffs seek compensation for 104.75 hours for time Mr. Lottman spent traveling from Washington, D.C. and Philadelphia to New York. Mr. Lottman resides in Washington, D.C. and conducts most of his business in Philadelphia. His participation in this case as trial counsel along with Mr. Schneps required travel. The defendants urge that this time is not properly charged to them.

There is no consensus on the point. One court has allowed full compensation for time spent in travel. See Chrapliwy v. Uniroyal, Inc., 509 F.Supp. 442, 454-55 (N.D.Ind.1981) (Title VII class action), aff'd in relevant part, 670 F.2d 760 (7th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 2428, 77 L.Ed.2d 2428 (1983). Some courts have refused to award any time for travel. See Thomas v. Board of Education, 505 F.Supp. 102, 104 (N.D.N.Y.1981); NAACP v. Bell, 448 F.Supp. 1164, 1168 (D.D.C. 1978), rev'd on other grounds, 609 F.2d 514 (1979), cert. denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1114 (1980). Several courts have granted compensation, but at a lower rate than that allowed for activities such as court appearances and research. See Dunten v. Kibler, 518 F.Supp. 1146, 1152 & n. 5 (N.D.Ga.1981); McPherson v. School District No. 186, 465 F.Supp. 749 (S.D.Ill.1978); Keyes v. School District No. 1, 439 F.Supp. 393 (D.Colo.1977). The Second Circuit has not addressed this issue.

The legislative history of section 1988 supports allowing compensation for lawyer's travel time. The Senate Report states...