Ayers has also submitted an affidavit. It reveals that he spent 81 hours for work in the district court and 74 hours for appellate efforts. His costs and expenses, which include most of the duplicating costs for the case, come to $457.32, most of which have been borne by the Rural Housing Alliance.
While a flat fee is not the standard to be used, it is a consideration to be weighed in fixing the total fee. Recently, the going rate for established counsel has been deemed to be $75.00 per hour. Smith v. Saxbe, 8 F.E.P. Cases 752 (D.D.C. 1974), aff'd mem. 527 F.2d 853 (D.C. Cir. 1975); Palmer v. Rogers, 16 Fair Empl. Prac. Cas. (BNA) 702 (D.D.C. 1975). This represents a significant increase over the past few years and particularly, since this litigation started and since most of the work was done. Thus, the Court will have to come to an average fee for counsel who, incidentally, did not supply the Court with their fee schedules. The Court believes that a $60.00 rate for Roisman and Sternberg and a $50.00 rate for Reno is fair and reasonable. It should be noted that a majority of the work in this case occurred at a time when the rates were much lower. Nevertheless, the rates set herein are higher than the average for these years because the Court recognizes and appreciates the exceptional skill and high caliber of attorney Roisman, which was amply demonstrated in this case. While the Court is not as familiar with Mr. Reno, his work on the instant case was of a high professional level which also entitles him to a higher rate. Using this rate, counsels' fees would come to $15,390 for Roisman and Sternberg and $7,750 for Mr. Reno. To this must be added the $210 for law student research, which this Court finds well within bounds. This would result in a total award of $23,350 without costs. The Court has examined the affidavits of counsel to determine whether a reduction might be appropriate.
If this Court were to determine the amount of the award by the flat rate, it would have to find the amount to be less than the fair and reasonable value of the services rendered. This case resulted in the release of millions of dollars in loans for many deserving individuals seeking needed housing. The Court therefore believes that a substantial incentive factor should be added to the award.
The Court has compared the time spent with the nature of the work done and found it to be well within reason. Furthermore, the Court has carefully scrutinized the time spent on securing the award of fees. See National Council, supra, 387 F. Supp. at 996. While the time spent on this was considerable (Roisman spent 40 hours), the question presented was difficult. Therefore, no deduction is necessary.
In considering the complexity of the case and the novelty of the issues, the Court notes that the case involved some statutory construction as well as determining Congressional intent. See 361 F. Supp. 1320. There was precedent, however, which made determination of the issues less difficult. Taken as a whole, the case was of moderate complexity. But this is only one factor, and any deduction in the incentive factor is far outweighed by the nature and extent of the benefits secured by this lawsuit which must also be considered.
Finally, the Court must consider the defendants' request for discovery concerning the affidavits of plaintiffs' counsel. Defendants apparently seek to determine whether the time spent is properly supported. While their assistance would of course be helpful, it must be remembered that the award is not against the defendants (here, the government), and they do not stand in an adversarial position on this issue. See National Council, supra, 387 F. Supp. at 995 n.4. Further, it is the Court's responsibility to determine the fee and it is within its power to require disclosure of additional information if needed. It appears to this Court that in cases such as this, it is within the discretion of the Court whether to permit the defendants to engage in the requested discovery. In light of the role and power of the Court, the standards of behavior imposed on counsel by the Code of Professional Responsibility, and the fact that the burden is on counsel to present sufficient support for the award, it would appear that the requested discovery should only be permitted in exceptional cases. Further, no good cause appears evident for this discovery. Defendants' request for this supplemental discovery will, therefore, be denied.
Applying the criteria set forth in the applicable cases cited above, the Court has determined that a reasonable award for the time expended by Roisman and Sternberg to be $15,000 and $8,000 for Reno. The Court further finds that an incentive factor of 50 per cent is appropriate, bringing the award to $22,710* for Roisman and Sternberg, and $12,000 for Reno. Roisman and Sternberg are also entitled to their costs in the amount of $25.36, and Reno shall be awarded costs of $456.30. However, since the Rural Housing Alliance has paid for much of the costs sought by Reno, he shall be required to reimburse his client for what RHA has paid to him for costs in the instant case.
An Order in accordance with the foregoing shall be entered of even date herewith.
Charles R. Richey United States District Judge
Upon consideration of plaintiffs' motion for attorneys' fees, and in accordance with the Memorandum Opinion of the Court of even date herewith, it is, by the Court, this 6th day of April, 1976,
ORDERED, that plaintiffs' motion for attorneys' fees be, and the same hereby is, granted in the amount of $22,735.36, which includes attorneys' fees and expenses for attorneys Roisman and Sternberg, and $12,456.30, which includes attorneys' fees and expenses for attorney Lee P. Reno; and it is
FURTHER ORDERED, that defendants' motion to take discovery of plaintiffs' counsel be, and the same hereby is, denied; and it is
FURTHER ORDERED, that the parties hereto are to confer within five (5) days of the date of this Order concerning the method of payment, and then notify the Court within five (5) days thereafter of the method that is appropriate under the circumstances and submit an Order effectuating that agreement.
Charles R. Richey United States District Judge