relevant to this litigation include the level of experience and reputation of the attorney, the difficulty of the issues involved, the level of skill necessary, and the undesirability of the case. Copeland III, supra, 641 F.2d at 892; Evans v. Sheraton Park Hotel, supra, 503 F.2d at 187-88. Plaintiff's counsel contends that an hourly rate of $ 85.00 would be reasonable. See note 8, supra. He finds support for this rate in his approximately six years of experience, largely in labor and Title VII law, an advanced law degree, and the undesirability of the case, "as it involved extensive discovery proceedings and mastery of the Postal Service's complex promotion procedure." Affidavit of Lawrence S. Lapidus, Esquire, in Support of Petition for Attorney's Fees.
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 proceedings" and "the Postal Service's complex promotion procedure" cited by Mr. Lapidus were relevant to plaintiff's discrimination claim only and not to the witness compensation claim upon which he prevailed.
The Court agrees that it may have been "undesirable" for Mr. Lapidus to proceed with the case once plaintiff's discrimination claim was rejected, given the expectation that compensation for further efforts would not be forthcoming. But an upward adjustment in rate to allow for this undesirability would still not yield $ 85.00 per hour. Based upon Mr. Lapidus's background, his six years of experience, and the fact that he is seeking compensation for work on a previously unexplored but not extremely complex issue for which the prospect of payment were not good, the Court finds that an award of $ 70.00 per hour would constitute a "reasonable hourly rate."
Plaintiff requests compensation for 32.4 hours of work, and details how this time was expended in an affidavit. Upon review of this affidavit, the Court finds that all of the 32 hours except the 4.8 hours attributed to the drafting of the complaint were "reasonably expended" on the witness compensation issue under the Copeland III standard, and compensation for them will be granted. Nowhere in the complaint was the differential compensation of plaintiff's and defendant's witnesses even mentioned. See note 2, supra. For that reason, it is clear that the 4.8 hours expended on drafting the complaint must have been "time spent litigating claims upon which the party seeking the fee did not ultimately prevail," Copeland III, supra, 641 F.2d at 891-892, and compensation for them must be denied.
In Copeland III, supra, the Court of Appeals, quoting the District Court opinion, warned against a mechanical approach to the computation of fees. 641 F.2d at 888. However, it also noted that "the burden of justifying any deviation from the "lodestar' rests on the party proposing the deviation." 641 F.2d at 892.
Plaintiff proposes an upward adjustment of the lodestar figure for two reasons: first, because Copeland III allows for "upward contingency adjustments" "to compensate for the possibility at the outset that the litigation would be unsuccessful" 641 F.2d at 893; and second, because Copeland III provides for such an adjustment to reflect the delay in counsel's receipt of payment. 641 F.2d at 893.
The Court does not find that an upward contingency adjustment of the lodestar figure would be appropriate. Extra compensation for potentially unsuccessful litigation is suggested in Copeland III where the risk of failure is apparent "at the outset" of the litigation. However, in the present case, plaintiff's counsel could not know at the outset of the litigation that there was a risk of failure, since he did not know that the issue upon which he would eventually prevail would even be raised or considered by the Court. As far as the delay in receipt of payment is concerned, the Copeland III court stated that
if the "lodestar' itself is based on present hourly rates, rather than the lesser rates applicable to the time period in which the services were rendered, the harm may be largely reduced or eliminated. 641 F.2d at 893, n.23.
The Court believes that the rate of $ 70.00 per hour is appropriate for the present time, and that therefore an upward adjustment to compensate for delay is unnecessary. For these reasons, the Court finds that plaintiff has not carried the burden of an upward deviation from the lodestar, and no such adjustment will be granted.
Defendant argues that the lodestar should be adjusted downwards, due to "the Court's unequivocal holding for the defendant on the merits, and plaintiff's counsel's lack of productive contribution to the final resolution of the issue on which plaintiff prevailed." Opposition to Plaintiff's Motion for Attorney's Fees and Costs (December 1, 1980) p. 8. Copeland III states that "a quality adjustment is appropriate only when the representation is unusually good or bad." 641 F.2d at 893. It can certainly not be said that the quality of Mr. Lapidus' representation was unusually bad, and therefore the Court will not decrease the lodestar figure.
Mr. Lapidus also asks that Mr. Solamon Lippman, an attorney with whom he consulted on the witness compensation issue, be compensated at a rate of $ 125.00 per hour for 3.5 hours of work. Aside from the fact that the Court views this hourly rate as somewhat high, and that plaintiff's brief gives the Court no basis upon which to judge whether the rate is "prevailing in the community for similar work," see p. 5, supra, plaintiff has not convincingly demonstrated that the time Mr. Lippman expended was not duplicative and unnecessary. See Copeland III, supra, 641 F.2d at 891. Accordingly, to the extent Mr. Lapidus' motion for fees encompasses Mr. Lippman's claim, it will be denied.
For the reasons stated above, it is this 20th day of February, 1981,
ORDERED That plaintiff's motion for attorney's fees and costs be and it is denied insofar as it applies to the services of Mr. Solaman Lippman, and it is further
ORDERED That plaintiff's motion for attorney's fees, at an hourly rate of $ 70.00 for 27.6 hours expended, and for costs of $ 63.15 be and it is hereby granted, and it is further
ORDERED That plaintiff's counsel be and he is hereby awarded the sum of $ 1,977.15 in attorney's fees and costs, and it is further
ORDERED That defendant shall remit to plaintiff's counsel the sum of $ 1,997.15 not later than 20 days from the date of this order.