The opinion of the court was delivered by: RICHEY
This matter is before the Court on plaintiffs' Third Motion for Attorneys' Fees, Motion for Attorneys' Fees on Appeal and Supplemental Motion for Attorneys' Fees. Defendants filed an "initial" opposition to plaintiffs' first two motions and an opposition to the Supplemental Motion. Based upon the pleadings, the entire record amassed in this case and the Court's extensive experience in dealing with the counsel involved in this case, the Court will award plaintiffs' counsel attorneys' fees in the amount of $39,359.75. The Court's reasons for fixing this award follow.
In 1976, Donald L. Bachman filed suit against the Federal Trade Commission ("FTC") alleging that the Commission engaged in racially discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Soon thereafter, the Court granted certification to a class of plaintiffs consisting of all black employees and applicants for employment with the FTC in professional positions GS-9 and above. Before trial, the parties entered into extensive negotiations which ultimately resulted in a settlement agreement (also referred to herein as a "stipulation" or "decree") that was approved by the Court on April 25, 1978. The stipulation set forth a broad-reaching plan designed to remedy discrimination at the FTC.
The settlement agreement provided that plaintiffs' counsel should oversee implementation of and monitor compliance with the plan during a five year period. As compensation for counsels' efforts, the stipulation provided that the Commission would "pay reasonable attorneys' fees, costs and expenses in amounts approved by the Court . . . subject to a maximum of $7,000 in the first year and $3,000 in each of the four succeeding years." Fees in excess of these amounts, however, could be awarded upon a showing of "extraordinary and unforeseeable circumstances."
Plaintiffs currently have three attorneys' fees motions pending before the Court. In the first, plaintiffs' Third Motion for Attorneys Fees, they seek compensation for work performed from January 1, 1981 through December 31, 1981 and for time expended preparing the petition itself. The second, plaintiffs' Motion for Attorneys' Fees on Appeal, seeks recompense for work in defending the Commission's appeal of the Court's second fee award and for time spent responding to the FTC's supplemental opposition to plaintiffs' second fee application (which amount was not included in the second fee petition). Finally, in plaintiffs' Supplemental Motion for Attorneys' Fees, they seek compensation for time expended in responding to the government's numerous discovery requests in connection with the third fee petition.
Plaintiffs' counsel's entitlement to attorneys' fees is governed by the parties agreement. Accordingly, the Court must look first to the stipulation to determine whether an award beyond the $3,000 allocated in the agreement is warranted. If the Court decides this question in the affirmative, it must then decide what additional amount is appropriate.
AN AWARD OF FEES GREATER THAN $3,000 IS WARRANTED BECAUSE OF EXTRAORDINARY AND UNFORESEEABLE CIRCUMSTANCES.
The parties' stipulation limits plaintiffs' counsel's fees to $3,000 for the period covered by these three petitions unless there are extraordinary and unforeseeable circumstances. Therefore, before the Court makes an award in excess of this amount it must find that such circumstances exist. Further, such a finding is necessary to justify each item of award in excess of the allocated amount. Plaintiffs argue that two extraordinary circumstances justify their third fee request. First, plaintiffs cite to problems which arose with regard to the study of the FTC's hiring and promotion policies conducted by an organization retained for this purpose, Personnel Decisions Research Institute ("PDRI"). From the very beginning, dealings with PDRI did not proceed as planned. Every deadline set by the Court had to be moved at least once and often on several occasions.
Moreover, PDRI and the FTC engaged in several substantial substantive disagreements as to how the study should be conducted. These disagreements caused further delays and demanded additional attention by plaintiffs' counsel. As a result of the problems that arose, PDRI presented its final report to the FTC and plaintiffs' counsel nearly two full years later than the parties had anticipated in entering into the stipulation.
Further, the final report submitted by PDRI for counsel to review was 12 inches high and contained far more detail than had been anticipated. The Court finds that the problems which arose surrounding the PDRI study, occasioning such substantial delay and requiring plaintiffs' counsel's attention, clearly consitutes just the sort of unforeseeable circumstance that the decree envisioned as justifying an additional fee award.
Plaintiffs' motion for fees for appeal also meets the extraordinary and unforeseeable test. The stipulation contemplated that the fees it allotted would be adequate absent extraordinary and unforeseeable circumstances. Its $3,000 limit therefore, envisioned neither litigation of attorneys' fee awards nor appeal of such matters. It is difficult to imagine that plaintiffs would have agreed to limit their compensation to $3,000 if they foresaw that they would have to fight for a reasonable fee award both at the district court and at the circuit court level in light of the immense expense that litigation entails.
The decree plainly limited counsel to $3,000 only if there were no extraordinary circumstances. Once those circumstances arose, however, counsel became entitled to the full amount to which they could demonstrate entitlement. It logically follows that they must also be entitled to recompense for the time and effort expended in demonstrating entitlement in this Court and defending it, if necessary, in the Court of Appeals. Further, it was the government's appeal that required plaintiffs' counsel to expend the additional effort for ...