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April 1, 1976

F. DAVID MATTHEWS, Secretary, Department of Health, Education, and Welfare, Defendant

The opinion of the court was delivered by: RICHEY



 This case is before the Court on plaintiff's motion for attorneys' fees, pursuant to 42 U.S.C. § 2000e-5(k). This Court finds that plaintiff is entitled to an award of reasonable attorneys' fees for the reasons set forth below.


 On February 15, 1973, plaintiff, Dorothy Parker, filed an administrative complaint with the Office of Education of the Department of Health, Education, and Welfare (HEW), alleging discrimination due to her race and sex and seeking an immediate promotion from her position as a GS-9. An investigation was conducted and, on September 7, 1973, the investigative report concluded that the plaintiff had been discriminated against and recommended that plaintiff be promoted to a GS-13. In the spring of 1974, HEW implemented part of the investigative report by promoting plaintiff to a GS-11 with assurances that she would soon be promoted to a GS-14 as the original investigative report had recommended. In the spring of 1975, HEW issued its final determination: that it would disregard the investigative report as well as the recommendation of the Office of Education's Equal Employment Opportunity Staff Officer. Thereafter, plaintiff filed the instant law suit.

 In defendant's answer filed July 22, 1975, all allegations of the complaint were denied. Less than two months later, on September 18, 1975, HEW issued a formal decision to the effect that plaintiff had been discriminated against on the basis of race and sex, and that she should be retroactively promoted to GS-13, with appropriate back pay.

 On November 14, 1975, this Court entered an order approving the settlement of the instant litigation, which reserved the question of attorneys' fees for judicial decision.


 Plaintiff, who has entered into a settlement as to her Title VII claim, seeks attorneys' fees as a "prevailing party" in accordance with 42 U.S.C. § 2000e-5(k). Defendant, while having agreed to the settlement, asserts that plaintiff is not the prevailing party, since the case was disposed of by settlement rather than by a judgment after a full adjudication on the merits. In view of defendant's argument, the question presented is whether a plaintiff who enters into a settlement may still be a "prevailing party" within the meaning of that term as used in 42 U.S.C. § 2000e-5(k).

 Section 2000e-5(k) limits the award of attorneys' fees to a "prevailing party":


"In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private party."

 There is, however, no definition of "prevailing party" in the statute, nor is there an explanation of the term in the legislative history of the Act. See 2 U.S. Cong. & Adm. News 2355 (1965). The Court must, therefore, look to the plain meaning of the language of the statute.

 The defendant maintains that the plain meaning of "prevailing party" clearly subsumes the concept of a favorable judicial determination of the merits of the action. Under defendant's view, attorneys' fees could not be awarded where a settlement resolves the litigation. This Court does not agree that the plain meaning of "prevailing party" is limited to plaintiffs who have obtained a favorable judgment after a full adjudication of the merits.

 If the Court were to adopt defendant's suggested meaning plaintiffs would be forced to try every case for the purpose of insuring an award of attorneys' fees. This result makes defendant's assertion untenable, since any suggested interpretation of the language of the statute which would lead to an absurd or futile result, or which would not further or be consonant with the purpose of the act, must be rejected. United States v. American Trucking Associations, Inc., 310 U.S. 534, 543, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940); Organized Migrants in Community Action, Inc., v. Brennan, 172 U.S. App. D.C. 147, 520 F.2d 1161 (D.C. Cir. 1975); International Telephone & Telegraph Corp. v. General Telephone & Electronics Corp., 518 F.2d 913 (9th Cir. 1975).

 Certainly it would not be reasonable to interpret the term "prevailing party" so as to discourage settlement of cases, thereby making the interpretation contravene the generally-favored policy of the law to encourage settlement of litigation. Moreover, requiring full litigation in all cases cannot be the criterion for furthering the purpose of the Civil Rights Act.

 The policy considerations underlying an award of attorneys' fees in civil rights actions are clear. In civil rights litigation, individual litigants assume the position of "private attorneys general" *fn1" vindicating a congressional policy against discrimination. When the Civil Rights Act of 1964 was passed, it was understood "that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law." Newman v. Piggie Park Enterprises, 390 U.S. 400, 401, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968). It is only through attorneys' fees provisions that litigants can be assured of the competent counsel they need for the effective enforcement of their right not to be discriminated against. Newman v. Piggie Park Enterprises, supra, at 402, lays out the important rationale for the provision on attorneys' fees:


"If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees -- not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II."

 In Title VII actions, the Piggie Park rationale has been frequently reiterated. See Bowie v. Weinberger, No. 74-1801 (D.D.C. June 17, 1975); Smith v. Kleindienst, 8 F.E.P. 753 (D.D.C. June 24, 1975) aff'd sub nom. Smith v. Levi, 527 F.2d 853 (D.C. Cir. 1975); Wade v. Mississippi Co-op Extension Service, 378 F. Supp. 1251 (N.D. Miss. 1974); Clark v. American Marine Corp., 320 F. Supp. 709 (E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 1971). Considering this policy, it would be inconsistent to deny an award of attorneys' fees to those plaintiffs merely because they choose to settle rather than obtain a final judicial determination.

 Nor does this Court believe that the term "prevailing party" necessarily connotes a final judicial determination. Blacks' Law Dictionary (rev. 4th ed. 1968, p. 1352), supplies the following definition:


"That one of the parties to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of his original contention. [citations omitted].


"To be such [a prevailing party] does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who has made a claim against the other, had successfully maintained it." [citations omitted] [emphasis supplied].

 According to this definition, which this Court adopts, the operative factor is success, not at which stage or how that success is achieved, i.e. trial or settlement. The same conclusion has been reached by other courts when considering other statutory schemes permitting attorneys' fees and costs to the "prevailing party."

 While the definition of "prevailing party" has ofttimes been expressed as a party who obtains a favorable judgment, *fn2" this appears to have been a matter of circumstance rather than an intentional limitation. When directly presented with the question whether a statute providing for the recovery of fees to the "prevailing party" encompassed circumstances less than a final judgment, courts have found it logical and reasonable to extend the definition of "prevailing party" beyond the restrictive view taken by the defendant herein. In Corcoran v. Columbia Broadcasting System, 121 F.2d 575 (9th Cir. 1941), which dealt with the Copyright Act's provision providing for "an award to the prevailing party a reasonable attorney's fee as part of the costs," 17 U.S.C. § 116, the Court held that the "authority given is not in terms limited to the allowance of fees to a party who prevails only after a trial on the merits." Id. at 576. *fn3" See also Hart v. Wolff, 489 P.2d 114, 119 (Alaska 1971). In one notable case, wherein a party had obtained a final judgment and sought fees under a statute with language similar to the one herein, a court refused to find the party the "prevailing party" pointing out that the other party had at all times admitted liability and had communicated this fact to its adversary before the complaint was filed; the only issue tried was the one admitted; and, that the successful party merely recovered an amount tendered before trial. McCrary v. New York Life Ins. Co., 84 F.2d 790, 795 (8th Cir. 1936). The court concluded that "resort to law was [not] reasonably necessary to secure [the party's] rights." Id.

 This Court believes the Corcoran-McCrary analysis is both reasonable and applicable to the interpretation of the term "prevailing party" as used in 42 U.S.C. § 2000e-5(k). *fn4" It would, however, be equally objectionable to interpret the statute as permitting attorneys' fees to be awarded in all cases which end in settlement. Certainly, attorneys' fees should not be awarded in nuisance settlements. Therefore, to avoid an abuse of the attorneys' fees provision, there must be some additional measure employed by the courts to determine whether the plaintiff is in fact the "successful party" and whether the plaintiff's action has advanced the public interest. Several courts have applied the "catalyst" concept. In Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970), plaintiff's suit was described as the catalyst which forced defendant to "voluntarily" comply with Title VII requirements. Although the plaintiff in Parham did not prevail in his individual claim, the suit did force the employer into remedial action as to the class. Attorneys' fees were awarded, the court noting that plaintiff, "[having] prevailed in his contentions of social discrimination against blacks generally," was entitled to the award, 433 F.2d at 430. Accord, Reed v. Arlington Hotel Co., Inc., 476 F.2d 721 (8th Cir. 1973). *fn5" While the "catalyst" concept is extremely useful, it appears that, generally speaking, the awarding of attorneys' fees must turn on the facts of the particular case. This Court concludes that to be a "prevailing party" within the meaning of that term as used in 42 U.S.C. § 2000e-5(k) does not require as an essential criteria the securing of a favorable judgment after trial on the merits; that a party who settles his or her Title VII lawsuit may be a "prevailing party" under the statute; and that whether to award attorneys' fees where there has been a settlement of a Title VII lawsuit must be determined by a close scrutiny of the totality of the circumstances surrounding the settlement, focusing particularly on the necessity for bringing the action and whether the party is the successful party with respect to the central issue -- discrimination.

 Applying the above test to the instant lawsuit, it is of significance that plaintiff's persistent efforts on the administrative level were repeatedly thwarted by the agency's non-action. After an initial finding of discrimination from the investigative report, it was six months before HEW issued an interim determination which only partially implemented the investigative finding. A year later, in the spring of 1975, HEW issued its final determination which completely disregarded the investigative report. The final determination stated that there had been no discrimination and plaintiff would remain in her position as a GS-11. Plaintiff was then forced into a position where a lawsuit in district court was the only means by which she could obtain the relief which she had begun seeking over two years previously. Significantly, the defendant answered the complaint by denying all the allegations of discrimination. Yet, on September 18, 1975, the defendant totally reversed itself and issued a new "final" determination which found that Ms. Parker had, in fact, been discriminated against by defendant. Due to this change in position, the parties agreed to settle the lawsuit as to plaintiff's Title VII claim since the agency's reversal had provided plaintiff with all the relief she had requested two years and seven months previously when she had filed her administrative complaint. On the basis of the facts surrounding the settlement of this action, this Court finds that the plaintiff is the "prevailing party" and that the award of attorneys' fees is appropriate pursuant to 42 U.S.C. § 2000e-5(k).


 In awarding an amount of attorneys' fees, the district court must carefully delineate the relevant factors which entered into the court's consideration of the award. "Further, this court . . . agrees that in determining the fee the court must seek to afford reasonable compensation to the attorney, mindful that there has been great criticism of attorneys for excessive fees in contingent fee situations." National Association of Regional Medical Programs, Inc. v. Weinberger, 396 F. Supp. 842, 848 (D.D.C. 1975), citing Kiser v. Miller, 364 F. Supp. 1311, 1315 (D.D.C. 1973), modified on other grounds, sub nom. Kiser v. Huge, 517 F.2d 1275 (D.C. Cir. 1975) (en banc). The applicable standards for determining the actual amount of the award are set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), as adopted by this Circuit in Evans v. Sheraton Park Hotel, 164 U.S. App. D.C. 86, 503 F.2d 177 (1974). In making this award, this Court's intent is to assure fair and reasonable compensation to plaintiff's attorneys as well as to encourage similar service from public interest advocates in the future.

 In support of plaintiff's motion for attorneys' fees, her counsel, Linda R. Singer, has submitted various papers to this Court:


1. Her affidavit as the attorney employed by plaintiff in this action, as well as affidavits of the two associates who worked on the case, Peter A. Jaszi and Jeffrey L. Squires.


2. An itemized expense schedule.


3. Descriptions of the legal services rendered on behalf of plaintiff by all three attorneys. This description is in chronological order covering the three years in which plaintiff's attorneys have been involved in the case.


4. A memorandum of points and authorities in support of her motion, as well as a reply to defendant's opposition.

 The affidavits of plaintiff's attorneys indicate that a total of 195 hours have been spent on behalf of plaintiff. Calculated at the customary rates charged by the plaintiff's attorneys, the requested amount would come to $10,340.00, plus $42.86 in expenses. Of this 195 hours, approximately 153 have been spent on the merits of the case before this Court and on the administrative level before the HEW. The remaining 42 hours were spent on the present motion for attorneys' fees. In Smith v. Kleindienst, 8 F.E.P. 753 (D.D.C. 1973), aff'd sub nom. Smith v. Levi, 527 F.2d 853 (D.C. Cir. 1975); an award of attorneys' fees included both the amount of time spent by plaintiff's attorneys on the administrative and the district court levels. In awarding attorneys' fees in Smith, supra, the Court did not make a distinction between the time spent during agency proceedings and the time spent in court. The issue on appeal was simply whether the fee was excessive, the court holding that it was not. Accordingly, this Court will not make a distinction between the time spent by plaintiff's attorney on the administrative and judicial levels. Plaintiff was forced to bring this action to the federal courts because of the agency's refusal to implement the finding of discrimination. Moreover, counsel's representation before both the agency and this Court has been in furtherance of the policies behind the Civil Rights Act. *fn6" Ms. Singer has been a member of the Bar of this court since 1968, and a partner in the law firm of Goldfarb & Singer since 1971. In the course of her practice, she has handled a significant number of cases in the area of employment discrimination. Ms. Singer has indicated that her normal hourly rate has changed over the course of her representation of Ms. Parker as follows: From 2/1973 to 7/30/73 $50.00 per hour From 8/1/73 to 9/30/73 60.00 per hour From 10/1/74 to 8/31/75 65.00 per hour From 9/1/75 to present 75.00 per hour


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