Vaughns v. Bd. of Educ. of Prince George's County

• Decision Date: 09 November 1984
• Docket Number: K-81-2597.,Civ. No. 72-325-K
• Parties: Sylvester J. VAUGHNS, Jr., etc., et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, et al. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, et al.
• Court: U.S. District Court — District of Maryland

598 F. Supp. 1262

Sylvester J. VAUGHNS, Jr., etc., et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, et al.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, et al.

Civ. Nos. 72-325-K, K-81-2597.

United States District Court, D. Maryland.

November 9, 1984.

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Richard V. Falcon, Baltimore, Md., Joseph M. Hassett, David S. Tatel, John C. Keeney, Jr., Patricia A. Brannan and Hogan and Hartson, Washington, D.C., Thomas I. Atkins, Michael Sussman and Teresa Demchak, NAACP Special Contribution Fund, Brooklyn Heights, N.Y., William L. Robinson and Norman J. Chachkin, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., for plaintiffs.

Paul M. Nussbaum and Andrew W. Nussbaum, Mount Rainier, Md., and George D. Solter, Alfred L. Scanlon, Jr., and Gerson B. Mehlman, Baltimore, Md., for defendants.

FRANK A. KAUFMAN, Chief Judge.

Presently before this court is plaintiffs' request for attorney's fees and expenses under 42 U.S.C. § 1988 and 28 U.S.C. § 1920¹ in connection with the most recent phase of desegregation litigation concerning the schools of Prince George's County, Maryland. The history of this litigation stretches back to 1972 when Vaughns v. Board of Education of Prince George's County, 355 F.Supp. 1034, was first filed. On March 13, 1975, this court issued a Memorandum and Order in Vaughns closing the court file subject to the right of any party to petition the court to reopen the case. From the date of that Memorandum and Order until September 1, 1981, there were no developments in Vaughns. On that latter date, some of the original plaintiffs in Vaughns filed a motion to reopen, challenging defendants' conduct of the Prince George's County school system in seven areas: faculty hiring, faculty assignments, special education for the handicapped, special education for the talented and gifted, student discipline, student class-room assignments and student assignments to schools. With regard to each of those areas, plaintiffs raised three issues: whether defendants had eliminated all vestiges of the pre-1973 discrimination which was the subject of the first phase of the Vaughns litigation, whether defendants had engaged in any acts of intentional discrimination from 1973 to the time of trial in 1982, and whether during that period of years defendants had violated any outstanding order or decree of this court.

Defendants challenged the motion to reopen on a number of grounds including lack of subject matter jurisdiction. Although rejected by this court, those contentions did lead plaintiffs in Vaughns to file, as a precautionary measure, a new case, National Association for the Advancement of Colored People v. Board of Education of Prince George's County, Civil No. K-81-2596 (NAACP), which repeated the allegations made by plaintiffs in Vaughns.² Shortly after NAACP was instituted, Vaughns and NAACP were consolidated for all purposes pursuant to Federal Rule of Civil Procedure 42(a). After a period of intensive discovery during the last two months of 1981 and the early part of 1982, the Vaughns and NAACP cases were tried before the court in May and June, 1982. Trial lasted twenty-five days and was recorded in approximately 5,100 transcript pages. Twenty witnesses were called and approximately 450 exhibits were introduced.³ After trial, this court, in its opinion, Vaughns v. Board of Education of Prince George's County, 574 F.Supp. 1280 (D.Md.1983), determined that plaintiffs' allegations with regard to all areas except student assignments to schools were without merit.⁴

In the area of student assignments to schools, this court held that defendants had violated outstanding orders of the court and had not eliminated all vestiges of the prior discriminatory system or achieved unitary status at any time since 1973, but that the evidence did not support a finding that "defendants ... acted with purposeful intent to discriminate on racial grounds or to cause resegregation." Id. at 1371. In an Order filed on September 20, 1983, this court resumed jurisdiction in Vaughns, adjusted the previously imposed 10%-50% guidelines for black pupil population to 10%-80%, affirmed the previously imposed thirty-five minute transportation guidelines, and required annual and semi-annual reports concerning the racial balance of Prince George's County schools. Defendants were also required to take all reasonable actions to achieve unitary status as quickly as possible and to take that requirement into account as "one of the factors to be considered by defendants in connection with the making of all decisions by defendants" (emphasis in original). Finally, the Order mandated that defendants state in writing in connection with "all formal memorializations of defendants' decisions with respect to school openings and closings, student attendance areas, and conversions to middle schools or like reorganizations ... the impact of such decisions on the racial composition of the schools in question." However, the Order mandated no adjustments in student attendance areas and did not reverse any of the changes made since 1975. Those rulings and that relief form the basis of plaintiffs' claim to be a "prevailing party" under 42 U.S.C. § 1988. In their petition for attorney's fees and expenses, plaintiffs state that a total of 7,538.8 hours of attorney, law clerk, and paralegal time were spent in connection with Vaughns and NAACP from May, 1980, through to the date of the request for attorney's fees, October 11, 1983.⁵ In their original submission, plaintiffs asked for compensation for 6,055.3 hours at an average rate of $104.20 per hour for a total of $630,957.75 plus expenses of $32,541.51. In support of that request, plaintiffs' attorneys submitted affidavits based upon time records contemporaneously maintained by them. Those affidavits detail on a day-to-day basis the activities of plaintiffs' counsel in connection with this litigation.

The difference between the gross total of 7,538.8 hours and the request for compensation based on 6,055.3 hours consists of some 1,243.25 hours of time incurred before September 1, 1981 for which plaintiffs are making no claim⁶ and of approximately 240.25 hours which plaintiffs' records indicate were spent solely on issues with regard to which they did not prevail. The remainder of the hours were, according to plaintiffs, either devoted entirely by their counsel to the issue of student assignments to schools or to tasks which were relevant to several issues, including that said issue, and are not subject to allocation among those several issues. In an amended request, plaintiffs have suggested a 27% reduction to account for such indivisible time. Plaintiffs arrived at the 27% figure by calculating, on the basis of a review of the trial transcript, the percentage of time spent at trial on issues in connection with which plaintiffs have not prevailed. That reduction, together with certain other minor adjustments, yields a total revised plaintiffs' request for fees in the amount of $458,679.07.

Plaintiffs' suggested average hourly rate of $104.20 per hour uses as its base, with two exceptions, the hourly rates charged by plaintiffs' counsel, Hogan & Hartson, to their regular clients as of August 31, 1983. The two exceptions are Messrs. Chachkin and Taylor, who have no formal association with Hogan & Hartson and who request hourly rates of $150 and $175 per hour, respectively. Hogan & Hartson attorney time is billed at $70-$110 per hour for the range of associates who worked on this litigation and at $155 per hour for the two partners involved, Messrs. Hassett and Tatel. Plaintiffs also request compensation for time spent by law clerks and paralegals employed by Hogan & Hartson at the rate of $35-$60 per hour.

With regard to expenses, plaintiffs' original claim has been reduced by plaintiffs' counsel and, as revised, is broken down as follows for the period 1981-83:

                Local transportation        $ 1,022.73
                Out-of-town transportation    5,465.83
                Postage/freight/telephone     1,955.99
                Computer research               881.83
                Outside photocopying            300.78
                Inside photocopying           9,557.25
                Depositions & transcripts     7,832.27
                Court costs                     220.50
                Staff overtime                3,545.51
                                            __________
                  Total                     $30,782.69
                

I

Defendants, in their opposition to plaintiffs' request, do not challenge plaintiffs' status as "prevailing parties" in this litigation. Defendants do contend, however, that plaintiffs have incorrectly applied the teachings of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), in several important respects. First, defendants argue that plaintiffs' documentation is inadequate and inaccurate. Second, defendants contend that plaintiffs have failed to show that the hours spent by their counsel were "reasonably expended." In particular, defendants allege that plaintiffs' counsel "have failed to make any effort to delete excessive, unnecessary and duplicative time" and that the quality of counsel's efforts was such that "very little if any of plaintiffs' counsel's time was reasonably expended." Third, defendants contest the reasonableness of plaintiffs' claimed hourly rates and point to recent awards in this district which have been based on substantially lower figures. Fourth, plaintiffs' failure to prevail on most of the claims asserted and the limited relief accorded require, according to defendants, that, under Hensley, the award must be "drastically reduced" below the amount plaintiffs request. Because of those defects in presentation by plaintiffs, defendants' position is that plaintiffs are entitled, on the record in these cases, to no award.

"A request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941...