US v. City of Buffalo, CIV-73-414C.

• Decision Date: 15 August 1991
• Docket Number: No. CIV-73-414C.,CIV-73-414C.
• Parties: UNITED STATES of America, Plaintiff, v. The CITY OF BUFFALO, et al., Defendants.
• Court: U.S. District Court — Western District of New York

770 F. Supp. 108

UNITED STATES of America, Plaintiff, v. The CITY OF BUFFALO, et al., Defendants.

No. CIV-73-414C.

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

August 15, 1991.

Cravath, Swaine & Moore (Paul C. Saunders, of counsel), New York City, Lawyers' Committee for Civil Rights Under Law (Richard T. Seymour, of counsel), Washington, D.C., for intervenor-plaintiffs Afro-American Police Ass'n, et al.

R. Peter Morrow, III, Acting Corp. Counsel (Michael B. Risman, Sr. Deputy Corp. Counsel, of counsel), Buffalo, N.Y., for defendant City of Buffalo.

CURTIN, District Judge.

Pending is the application of the attorneys for intervenor-plaintiffs Afro-American Police Association, et al. ("intervenors"), for attorneys' fees and related expenses from defendant City of Buffalo ("City"). In support of the application, the intervenors have submitted affidavits with exhibits of Paul C. Saunders, Esq. (Items 355, 359), and of Richard T. Seymour, Esq. (Item 354). In opposition to the application, the City has filed two affidavits of Michael Risman, Esq., Senior Deputy Corporation Counsel (Items 358, 360).

There are several aspects to the application. The first concerns efforts related to the United States Supreme Court's decision in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). The intervenors seek compensation for work done in successfully opposing the motions brought in 1985 by the City and the United States Department of Justice to eliminate the hiring goals ordered by this court in light of Stotts. The intervenors also seek compensation for the additional work done in opposing the appeal subsequently taken to the United States Court of Appeals for the Second Circuit, and for their efforts in pursuing a petition for certiorari after the Second Circuit's affirmance.

The second aspect relates to work done by the intervenors in resisting the motions by the City and the Department of Justice to lift the 50% interim hiring goals. In regard to those motions, the intervenors were not entirely successful because the court, in an interim order dated August 9, 1989, and in the final order dated September 5, 1989, see United States v. City of Buffalo, 721 F.Supp. 463 (W.D.N.Y.1989), found that the City had substantially complied with the conditions for lifting the 50% hiring goals that had been implemented as part of the court's 1979 remedial decree. The court did, however, direct that interim hiring goals were still necessary and that they should be based on applicant flow, a position urged by the intervenors in the alternative.

The third aspect relates to efforts of the intervenors in preparing for trial on the issue of the validity of the City's selection procedures. Much discovery was necessary, and on the eve of trial the City agreed to develop a new test rather than to attempt to establish at trial the validity of the existing test. The intervenors argue that, since this was the relief they had hoped to obtain at trial, their efforts in bringing about this result merit a fee award.

Mr. Saunders has detailed his efforts and those of his litigation team in his initial affidavit. A detailed statement of the hours spent and the work done by him and by his associates is set forth in this filing. He seeks a total fee — based on three suggested alternative hourly rates of $225, $250, or $275 — ranging from $128,162 to $159,282.10, as well as disbursements totaling $22,438.35. The application reveals that Mr. Saunders is well qualified and experienced. In addition, the records submitted in support of the application are contemporaneous and detailed.

Mr. Seymour's affidavit indicates that he has specialized in litigating many largescale employment-discrimination cases. In this case, his main responsibility was to provide special advice to Mr. Saunders and his associates in handling complicated legal issues that arose during the course of the litigation. He seeks compensation at an hourly rate of $225, and has provided a detailed account of his qualifications and experience and of the time he has spent working on this case. He seeks a total of $15,975 in fees and reimbursement of $2,642.49 for out-of-pocket expenses.

The City opposes the fee application, arguing alternatively that the intervenors did not prevail or, if it is found that they did prevail, that there was only moderate relief granted. The City argues that the actions that eventually led to the fee application were initiated and pressed mainly by the Department of Justice, and that, consequently, the City should not be responsible for the intervenors' attorneys' fees. The City also asserts that an examination of the application shows that there is duplication of effort among the intervenors' lawyers, and that the hourly rate sought for each is excessive.

The threshold issue for each aspect of the application is whether the intervenors can be considered "prevailing parties." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). A plaintiff will be considered a prevailing party if he or she "has succeeded on `any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit.'" Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). A plaintiff must receive "at least some relief on the merits of his claim before he can be said to prevail." Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654 (1987). See also Dague v. City of Burlington, 935 F.2d 1343, 1357 (2d Cir.1991); Koster v. Perales, 903 F.2d 131, 134-35 (2d Cir.1990).

If I find the intervenors to have prevailed on a given aspect of their application, I shall then use the instruction set forth by the Supreme Court in Hensley v. Eckerhart with regard to any fees awarded. The court stated in that case:

The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate....

The district court also should exclude from this initial fee calculation hours that were not "reasonably expended." ... Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.... Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority....

....

The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the "results obtained." This factor is particularly crucial where a plaintiff is deemed "prevailing" even though he succeeded on only some of his claims for relief....

In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants — often an institution and its officers ... — counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in pursuit of the ultimate result achieved." ... The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.

461 U.S. at 433-35, 103 S.Ct. at 1939-40 (citations and footnotes omitted) (emphasis supplied).

Keeping these criteria in mind, I will first discuss the merits of each claim and, if I conclude that the intervenors have prevailed on any claim, then determine a percentage figure indicating the extent to which they have prevailed. The claims may be conveniently divided into three general categories: a) the Stotts claim, which will be further divided into separate consideration of that claim before the Second Circuit and in the petition for certiorari that followed; b) the motion to terminate the 50% hiring goals, which also shall be further divided; and c) the order granted on the eve of trial.

A. The Stotts Claim

Mr. Saunders's firm, Cravath, Swaine, & Moore, and the Lawyers' Committee for Civil Rights Under Law, with which Mr. Seymour is associated, were asked to appear for the intervenors when the Department of Justice, the City, and other intervenors attempted to vacate or to modify this court's order of November 23, 1979, which had set 50% minority hiring goals for the Buffalo Police Department. After intervention was granted, counsel for the intervenors filed papers opposing these efforts. The motions filed by the City and the other parties were based upon the Supreme Court's decision in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). This court held that Stotts did not apply, noting that the Second Circuit's decision in EEOC v. Local 638 ... Local 28 of Sheet Metal Workers' Int'l Ass'n, 753 F.2d 1172 (2d Cir.1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986), clearly appeared to be controlling. See United States v. City of Buffalo, 609 F.Supp. 1252, 1253 (W.D.N.Y.1985). The ensuing appeal to the Second Circuit resulted in the affirmance of this court's order. See 779 F.2d 881 (2d Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). The appeal was taken by the United States but, although it did not file a notice of appeal, the City filed a brief in support of the Department of Justice's position.

It is apparent that the intervenors have prevailed on this issue. The City argues,...