plaintiffs did not obtain monetary relief or federal investigation with an eye toward prosecution, the latter presumably due to statute of limitations problems. They did, however, achieve the policy objectives outlined in the second amended complaint.
The Court and the parties alike recognized that plaintiffs' major reason for pursuing this lawsuit was to publicize and correct the government policy of deferring to prior state civil rights prosecutions, with its discriminatory impact on Carnell Russ and other minority group members. The joint motion to dismiss and the resulting Supplemental Memorandum Order of August 16, 1977, identify this as the "primary objective" of the suit and admit that the Bell memorandum is "in accord" with that policy objective.
In his memorandum, Attorney General Bell announced that the 1959 non-dual prosecution policy shall not govern in civil rights cases. While not admitting that the 1959 policy had been used in the Russ case or others, the memo suggests that agency practice had not been one hundred percent in accord with the standards outlined in the memo. Even assuming that the memo was issued to clarify government policy or to prod federal attorneys and investigators to pursue dual prosecutions more vigorously, its issuance was bound to benefit victims of civil rights crimes.
Discovery in this case revealed that the FBI and Justice Department received many complaints requesting independent federal investigations of the shooting deaths of minority persons by white law enforcement officers, following questionable state proceedings. The most publicized of these involved the 1975 killing of Ricardo Morales, a Mexican-American, by Texas Police Chief Frank Hayes, for which Chief Hayes was sentenced by a state court to two to ten years for Aggravated Assault. United States v. Hayes, SA 77-Cr-38 (W.D.Tex. July 8, 1976). The U.S. Attorney reversed his decision not to prosecute, which had been based in part on the non-dual prosecution policy, only after massive pressure was brought to bear by civil rights groups and national politicians. See Affidavit of Ruben Sandoval, December 4, 1976.
In issuing the dual prosecution memorandum as one of his first official acts, Attorney General Bell was presumably addressing the major policy problem reflected by such numerous complaints. While the Morales case may have been the immediate motivation for the memo, the plaintiffs in this litigation also played a role in causing his action. In a situation such as this, where policy matters are concerned, plaintiffs should not be denied prevailing party status and attorneys' fees only because other citizens have paralleled their attempts to correct the offending policies.
Indeed, the policy ramifications of this case distinguish it from the Title VII catalyst cases discussed by both parties. See Foster v. Boorstin, 182 U.S. App. D.C. 342, 561 F.2d 340 (1977); Fogg v. New England Tel. & Tel. Co., supra. Where filing of a discrimination suit by an employee leads an employer to change promotion procedures, without the necessity of concluding court proceedings, it is not difficult to credit the employee with the change. Here, the plaintiffs challenged alleged policies of discriminatory investigation and prosecution by the federal government. Given that such discrimination is more subtle than that involved in the average Title VII case, plaintiffs cannot be faulted because the relief sought and obtained is also difficult to pinpoint. The standards for dual prosecution set forth in the memorandum are intended to and will benefit victims of civil rights crimes. Pursuant to the terms of this Court's Order of August 16, 1977, the defendants are to comport with these standards, thereby increasing the likelihood that a Carnell Russ incident will not be repeated. Plaintiffs deserve credit for achievement of this policy objective.
The Court, exercising its discretion under 42 U.S.C. § 1988, finds that the disposition of this case leaves plaintiffs entitled to an award of reasonable attorneys' fees and costs.
III. Reasonable Attorneys' Fees and Costs
To gauge the reasonableness of attorneys' fees requested by plaintiffs, the Court has referred to the relevant criteria of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), adopted by this Circuit in Evans v. Sheraton Park Hotel, 164 U.S. App. D.C. 86, 503 F.2d 177 (1974), which include: 1) the experience and reputation of the attorneys; 2) the time and labor required; 3) the novelty and difficulty of the questions; 4) the nature and length of the professional relationship with the client; 5) the amount involved and results obtained; and 6) the customary fee.
Plaintiffs have filed affidavits in support of their request for attorneys' fees of $28,700.00. Their principal attorney, James I. Meyerson, Esquire, has been an Assistant General Counsel for the NAACP since 1970 and has accumulated extensive litigation experience in the civil rights field. He seeks compensation at the rate of $100.00 per hour for 236 hours of legal work and 24 hours of travel. J. Francis Polhaus, Esquire, NAACP attorney for 24 years, also seeks compensation at $100.00 per hour for 27 hours of legal work, including 17 hours on the motion for attorneys' fees.
Defendants view the requested amount to be unreasonably high, though they do not specifically contest the rate charged or the hours invested. They do object to plaintiffs' failure to document their attorneys' reputation or fees awarded in similar cases.
The Court finds that the award requested, minus compensation for travel hours, is reasonable and fair. The rate of $100.00 per hour is commensurate with counsels' experience in the civil rights field and their reputation, of which the Court takes notice. Given the breadth of plaintiffs' complaint and the novelty of the policy attack, which explains why comparable awards cannot be quoted, the hours spent on legal work are justifiable. Hourly compensation for travel hours, above and beyond expenses, is inappropriate. In sum, therefore, plaintiffs are entitled to attorneys' fees of $26,300.00.
In addition, plaintiffs seek to tax $855.30 in costs: $210.00 in plane fare and $96.00 in expenses incurred by counsel on three trips to Washington, D.C., to take depositions, to argue a discovery motion before the United States Magistrate, and to argue motions before the Court; $222.25 for deposition transcripts; $77.05 for expenses incident to the depositions; and $250.00 for copying charges.
On the basis of 28 U.S.C. §§ 1920 and 2412, the Court will allow the transcript ($222.25) and copying costs ($250.00) to be taxed in full. Plaintiffs are also entitled to be reimbursed for transportation costs ($140.00) incurred by counsel to appear before the Court on the two noted occasions. Plaintiffs will not be allowed travel related expenses or the $77.05 of unspecified costs incident to taking of depositions. Costs will therefore be taxed in the amount of $612.25.
On the basis of the foregoing discussion and computation, the Court has determined that plaintiffs are entitled to a total award of $26,912.25, representing $26,300.00 in attorneys' fees and $612.25 in costs.
An appropriate Order will be entered. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 448 F. Supp.]
In accordance with the Memorandum of this Court entered this date, it is this 31st day of March, 1978,
ORDERED that plaintiffs' application for attorneys' fees and costs be granted in the amount of $26,912.25, representing $26,300.00 in fees and $612.25 in costs, which is a fair and reasonable award in the present case; and it is
FURTHER ORDERED that defendant shall, within 30 days of the date of this Order, pay to plaintiffs' counsel, James I. Meyerson, Esquire, and J. Francis Polhaus, Esquire, the aforementioned sum of $26,912.25; and it is
FURTHER ORDERED that plaintiffs' counsel shall, upon receipt of the aforementioned sum of $26,912.25, reimburse to plaintiffs such sums as counsel have collected to date for their services in connection with this case.
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