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DAVIS v. BOLGER

February 20, 1981

Kenneth W. DAVIS, Plaintiff,
v.
William F. BOLGER, Defendant



The opinion of the court was delivered by: GREENE

MEMORANDUM ORDER

On September 22, 1978, plaintiff filed a complaint alleging that defendant Postal Service had violated Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., by denying him a promotion on the basis of race, sex, color and age. After trial, the Court found, on July 29, 1980, *fn1" that plaintiff has not made a prima facie showing of discrimination, and that even if such a showing had been made, defendant had demonstrated legitimate non-discriminatory reasons for the denial of promotion. Although the Court denied plaintiff's Title VII claims on that basis, it granted relief on a different issue not directly related to whether or not plaintiff had suffered discrimination at the hands of the Postal Service: that is, in response to information that the Postal Service allowed employees testifying on its behalf to claim paid leave to their time in court while compelling employees testifying for plaintiff to take annual leave or leave without pay, *fn2" the Court ordered that plaintiff and his witnesses be compensated to the same extent as were defendant's witnesses. On August 7, 1980, defendant moved the Court either to reopen this judgment so as to receive additional evidence on the witness compensation issue, or to remand the judgment so as to strike out that portion ordering the compensation of plaintiff and his witnesses. Both parties thereupon briefed this issue extensively, and the Court denied defendant's motion in a Memorandum Order dated November 7, 1980.

 Plaintiff's counsel Mr. Lawrence S. Lapidus, now moves the Court to grant him attorney's fees and costs to compensate him for the time expended upon the witness compensation issue. *fn3" This motion requires the Court to make two separate inquiries: first, is plaintiff a "prevailing party" within the terms of section 706(k) of Title VII *fn4" such that he is entitled to a reasonable attorney's fee, and second, if plaintiff is so entitled, what would constitute a reasonable fee in this case?

 I

 Defendant argues that plaintiff cannot be considered to be the "prevailing party" on any claim for the purposes of section 706(k) because he clearly did not prevail on his discrimination claim. In support of this proposition, defendant cites Grubbs v. Butz, 179 U.S. App. D.C. 18, 548 F.2d 973 (D.C. Cir. 1976), where the court held that an award of an interim attorney's fee to a Title VII plaintiff who had prevailed on an interlocutory appeal but had not yet established discrimination on the merits was inappropriate.

 Although it is true that plaintiff did not demonstrate unlawful discrimination in his denial of promotion, the Court did find that defendant had erected an unnecessary and harmful obstacle in the path of plaintiffs pursuing discrimination claims contrary to the policies underlying Title VII. *fn5" The Court found that "the practice of differentially compensating plaintiffs' and defendants' witnesses in Title VII cases impedes the effectuation of the anti-discrimination policies embodies in (Title VII)," November 7, 1980, Memorandum Order, p. 3, and for that reason, ordered that plaintiff and his witnesses be paid for their court attendance. In the view of the Court, there can be no doubt but that plaintiff has prevailed on a claim rooted in the antidiscriminatory mandate of Title VII. *fn6"

 One of the purposes served by the fee award provision of Title VII is to deter actions on the part of employers at variance with the spirit and the letter of the statute. See Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 890, (D.C. Cir. 1980) (Copeland III ). An award of fees in this case would presumably deter the Postal Service and other government agencies from actions that unlawfully place Title VII plaintiffs at a disadvantage with respect to their governmental employers as they pursue their discrimination claims through the courts. Requiring the Postal Service to pay counsel's fee here would thus serve to effectuate a major purpose underlying section 706(k).

 Another purpose underlying the attorney's fee provision is to encourage private individuals injured by racial discrimination to seek the relief made available under Title VII to act, in essence, as "private attorneys general" in the enforcement of the laws prohibiting discrimination in employment. In furtherance of that end, many courts, including those in this Circuit, have held that "statutes authorizing award of attorneys' fees as part of private enforcement schemes in the Civil Rights Act should be broadly interpreted." Parker v. Califano, 182 U.S. App. D.C. 322, 561 F.2d 320, 330 (D.C. Cir. 1977); Evans v. Sheraton Park Hotel, 164 U.S. App. D.C. 86, 503 F.2d 177, 187-189 (D.C. Cir. 1974). This policy becomes more compelling when, as here, the defendant is a federal agency. Title VII does not authorize the Attorney General or the EEOC to bring suits on behalf of federal employees, who cannot rely on a public enforcement mechanism to protect their right to freedom from employment discrimination in court ( Copeland III, supra, 641 F.2d at 895; Parker v. Califano, supra, 561 F.2d 331) and who therefore may be said to be more urgently in need of the "private attorney general" assistance than others.

 In a very real sense, plaintiff's counsel acted in just that capacity in this case. The bulk of the work performed by him on the witness compensation issue occurred in response to defendant's motion to amend or alter the Court's judgment of July 29, 1980 that is, after the individual discrimination claim of Kenneth Davis had been denied. Counsel pursued the matter, moreover, in spite of the fact that he would not be compensated for his efforts by his client. *fn7" In his own words, he "found himself obligated to proceed on this issue in order to secure the important principle of witness compensation on an equal basis for all federal workers." Memorandum in Support of Motion for Attorneys' Fees and Costs (November 20, 1980) p. 2. That he prevailed on this issue inures not only to the benefit of plaintiff's witnesses, but also to the benefit of federal employees generally who may seek the vindication of their rights under Title VII through the courts.

 Accordingly, the Court finds that plaintiff is a "prevailing party" under section 706(k) of the Title VII with regard to the witness compensation issue, and is therefore entitled to a reasonable attorney's fee for the work performed thereon.

 II

 The most recent discussion by the Court of Appeals in this Circuit of what constitutes a "reasonable attorney's fee" under section 706(k) appears in Copeland III, supra, 641 F.2d at 889. Under that Opinion, the District Court is required to begin with a "lodestar" fee-setting formula, consisting of "the number of hours reasonably expended multiplied by a reasonable hourly rate." 641 F.2d at 891. The resulting figure should form the basis of the fee at which the court arrives. 641 F.2d at 891.

 The Court finds $ 85.00 per hour to be excessive for work by a relatively young attorney on an issue which, though novel, was not exceedingly complex. In a recent case decided by this Court, an attorney with over eighteen years of experience in civil rights litigation was awarded $ 85.00 per hour for work performed during the year of 1979, and his associate with five years of experience was awarded $ 50.00 per hour. Marimont v. Califano, No. 73-1992 (D.D.C. May 10, 1979) p. 3. Even adjusting for a year's worth of inflation would not produce a figure comparable to $ 85.00 for plaintiff's counsel with his six years of practice. The difficulty of the issues involved do not mandate a heightened hourly rate; although the witness compensation issue is novel, it is not extremely complicated and the "extensive discovery ...


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