The opinion of the court was delivered by: OBERDORFER
This is another " 'second major litigation '"
in the "unnecessary volume of attorney fee disputes"
the policy of the United States Attorney in this District to settle fee applications without a contest in court only when counsel accept rates not in excess of $75 per hour for partners and $60 per hour for associates.
Commonwealth of Puerto Rico v. Heckler, 745 F.2d 709, 714 n.7 (D.C. Cir. 1984). For reasons stated below, plaintiff's application for fees will be granted.
By a written contract entered into on September 29, 1983, plaintiff engaged Joel P. Bennett as her attorney to prosecute an employment discrimination claim that she had previously initiated against the Department of Agriculture.
Plaintiff contracted "to pay . . . for attorney time at the rate of $110 (partner); $55 (associate) per hour, plus costs, . . . on a monthly basis as legal services are performed." See Contract for Legal Services para. 2 (attached as Exhibit 1 to Plaintiff's Motion for Attorney's Fees and Costs, filed Oct. 29, 1984).
The time of law clerks and paralegals was billable at $35 per hour. These rates were made effective for one year; any future increase in rates was not to exceed $15 per hour per year. This undertaking was not contingent on success. The fee was payable and the costs reimbursable, win, lose or draw.
The plaintiff and Mr. Bennett have performed their contract in a thoroughly business-like way. The legal services have borne fruit in a September 26, 1984 settlement that has produced for plaintiff a substantial amount of back pay and an increase in her annuity. She, in turn, has regularly paid the monthly bills rendered to her for services and for costs advanced by her attorney.
Each monthly bill stated the number of hours spent on the case by any partner, law clerk or paralegal during the month, the hourly rate at which that time was charged and the total time charged for each category of service. Each cost item was substantiated by a contemporaneous voucher. The charges for services were supported by detailed diary entries that accounted for time by hours and tenths of hours. On the eve of the first anniversary of the contract, Mr. Bennett advised his client of a $5 increase in the hourly rate for the ensuing year.
On October 29, 1984, after the settlement had been consummated, plaintiff filed a motion for attorney's fees for the services of Mr. Bennett and his staff in the amount of $7,768.80, calculated at the hourly rates ($110, $55 and $35) at which Mr. Bennett had billed and the client had paid for those services. As indicated, the time charges were supported by detailed, self-explanatory diary entries and the cost items were supported by contemporaneous vouchers.
The plaintiff further supported the motion by appending as exhibits an October 29, 1984 declaration by Mr. Bennett (filed under penalty of perjury) and a copy of his resume.
Mr. Bennett's declaration disclosed that up to that time he had handled 80 cases in the employment discrimination area, and tried over 30 employment discrimination cases in federal district courts, mostly against the federal government. He stated that he usually spends between 80 and 90 percent of his clients' billable time per month on employment discrimination and related employment matters. He listed 17 such cases filed between 1976 and 1983 in which he has collected -- through settlement or judgment -- fees and costs totalling $155,349.11. The declaration further stated:
My regular hourly rates during my representation of the plaintiff in this matter have been $110.00 - $125.00 per hour for my time, $55.00 - $60.00 per hour for associates and $35.00 - $40.00 per hour for law clerks and paralegals. See Exhibit 6 hereto. I have learned from personal inquiry that these regular hourly rates are comparable to those of similarly situated attorneys in this city. . . . Since October 15, 1982, my regular hourly rate has been $110.00 - $125.00 per hour and the vast majority of clients have retained me at that rate of [sic] had their rate raised to $110.00 or higher per hour pursuant to our retainer agreement, which routinely provides for annual adjustments.
Declaration of Joel P. Bennett at 6-7 (emphasis in original).
Plaintiff also filed as an exhibit to her original motion a further declaration by Mr. Bennett concerning hourly rates that he charged from June 1, 1982 through December 30, 1983, consisting of all of his open cases as of January 3, 1984, excluding this matter. Exhibit 6. The declaration listed 36 fee arrangements: 21 of them were listed as EEO matters, of which 9 involved private employers, 2 involved the District of Columbia, and 10 involved the United States as employer. The hourly rate for partners on all but three of the employment discrimination matters was stated to be $110 per hour or more. In two of the exceptions, the rate was $100 per hour in 1982, and rose to $110 per hour in 1983. The third exception, where the rate was $92.50, was a case that had been taken over from another firm that had fixed a reduced fee to begin with.
As evidence of the market rate in the precise field of employment discrimination, plaintiff cited fee awards by other judges of this court. In one such case cited by plaintiff, for example, lawyers were awarded $75 per hour for work performed in 1977 and $85 per hour for work performed in 1978, Bachman v. Pertschuck, No. 76-0079 (D.D.C. March 14, 1979); $100 per hour for subsequent post-settlement work, Bachman v. Pertschuck, No. 76-0079 (D.D.C. Aug. 18, 1981), aff'd without opinion, No. 81-2130 (D.C. Cir. June 15, 1982); and $135 per hour for more recent legal service, Bachman v. Miller, 567 F. Supp. 317, 321 (D.D.C. 1983). See also Environmental Defense Fund, Inc. v. EPA, 217 U.S. App. D.C. 189, 672 F.2d 42 (D.C. Cir. 1982) ($110 per hour); Jordan v. United States Dept. of Justice, 223 U.S. App. D.C. 325, 691 F.2d 514, 521 (D.C. Cir. 1982) ($125 per hour); North Slope Borough v. Andrus, 515 F. Supp. 961 (D.D.C. 1981) ($45 to $125 per hour), rev'd on other grounds sub nom. Village of Kaktovik v. Watt, 223 U.S. App. D.C. 39, 689 F.2d 222 (D.C. Cir. 1982). Indeed, another judge of this Court has approved a magistrate's recommendation of rates of $90 per hour until May 1982, $100 per hour until June 1983, and $110 per hour thereafter for Mr. Bennett himself in an employment discrimination case against the government. The magistrate, after meticulous review, was of the opinion that these rates were "reasonable at the time and are in accord with the prevailing community rates." Arnold v. Secretary of Commerce, C.A. No. 81-1968, slip op. at 13 (D.D.C. July 28, 1983) (Burnett, Mag.), approved August 10, 1983 (Johnson, J.), appeal dismissed, No. 83-2143 (D.C. Cir. Jan. 6, 1984).
On November 8, 1984, ten days after plaintiff filed her fee application, defendant responded with a Motion for Enlargement of Time Within Which to Respond to Plaintiff's Motion for Attorney's Fees and Costs. Defendant claimed that it intended to conduct discovery by interrogatories, requests for production of documents and "at least one" oral deposition concerning the reasonableness of the hourly rate claimed. As explanation, defendant announced an intention to discover the prevailing market rate, counsel's billing practices, his customary billing rate in this and other cases, and the amount actually paid to counsel by other clients. The motion noted that plaintiff's application already provided " certain documents which appear to be billing records of the instant action and a declaration concerning fees awarded in certain litigation," but argued that this "limited information is an insufficient basis upon which to predicate a response to plaintiff's motion." The defendant did not mention the exhibit specifying counsel's hourly rates for the 36 cases then open in his office. See supra slip op. at 5.
Plaintiff, on November 14, 1984, opposed defendant's motion for enlargement by charging that defendant, by seeking an " extraordinary period of 60 days to respond to a straight-forward motion . . . requesting a total of only $7,768.80," was engaging in "dilatory tactics."
Plaintiff's Opposition to Defendant's Motion for Enlargement of Time at 1.
Plaintiff's opposition stressed that plaintiff had "modest means," had borrowed the funds to pay her attorney, and that the delay cost her interest. Id. at 2. The opposition emphasized, without contradiction by defendant, that plaintiff's counsel had offered to give defendant "whatever reasonable discovery he sought without resorting to formal discovery but counsel for the defendant indicating [sic] that she did not even know what she wanted yet. . . ." Id. Counsel for plaintiff represented that the data contained in Exhibit 6 "is the actual amount clients have paid." Id. at 3. Plaintiff argued that she had furnished more than enough information for a decision on her claim. Id. Plaintiff charged that the discovery sought was " excessive and merely a pretext to use the might of the Executive Branch of the United States Government to force plaintiff to compromise her claim due to the delaying tactics of defendant and his counsel." Id. On November 20, 1984, the Court denied defendant's motion for enlargement and directed that a response to the fee application be filed by December 3, 1984.
The December 3 response acknowledged that plaintiff had claimed that her counsel's asserted hourly rate was his "customary billing rate," which, according to Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4 (D.C. Cir. 1984), would "presumptively [be] his reasonable hourly rate" for purposes of determining the amount to be awarded. Id. at 15 n.69. The response remarkably suggested, however, that Laffey was not the law of the Circuit because the time for petitioning for a writ of certiorari in that case had not yet expired. Defendant's Opposition to Plaintiff's Motion for Attorney's Fees and Costs at 2 & n.2 [hereinafter "Defendant's Fee Opposition"]. The response took no issue with the reasonableness of the number of hours charged by counsel, and conceded that " '. . . in the normal case the Government must either accede to the applicant's requested rate or provide specific contrary evidence tending to show that a lower rate would be appropriate. '" Id. at 2 n.4 (quoting Concerned Veterans, supra, at 1326). Nonetheless, the response again contended that plaintiff had failed to substantiate the rate sought, and seemed to argue that this case is one of those "occasions in which the applicant's showing is so weak that the Government may without more simply challenge the rate as unsubstantiated." Concerned Veterans, supra, at 1326; see Defendant's Fee Opposition at 3 n.4. Defendant further claimed that it was not "permitted" to challenge the reasonableness of the rate sought and was unable to address the merits of plaintiff's application by providing specific contrary evidence because the Court had precluded discovery. Defendant's Fee Opposition at 3 n.4.
To demonstrate that plaintiff's rate claim was unsubstantiated, defendant pointed to the fact that counsel did not furnish data about the rates he had been paid in contingent fee cases. Id. at 2-3. Moreover, defendant professed to find no evidence that rates agreed to by counsel and his retained clients were the same as those actually paid by those clients. Id. at 4. Finally, defendant claimed the rates were unsubstantiated because plaintiff failed to establish that the awards relied upon "'were determined based on actual evidence of prevailing market rates, [that] the attorneys involved had similar qualifications, and [that] issues of comparable complexity were raised. '" Id. (quoting Concerned Veterans, supra, at 1325 n.7).
Plaintiff's December 12, 1984 reply to this opposition made several points. To meet the defendant's professed concern that plaintiff's counsel had failed to submit data about the manner in which he charged his non-hourly rate clients, plaintiff filed a supplemental declaration by Mr. Bennett providing such data. See Plaintiff's Reply, Exhibit 6 at 2. The supplemental declaration also contained a statement, under penalty of perjury, asserting that the rates agreed upon with his clients were, in fact, the rates at which they paid. See id. at 2-3. As to defendant's remaining objection, plaintiff invited the defendant's attention to eight reported cases, the facts of which could be used to determine the comparability of counsel's qualifications and the relative difficulty of the other cases. Plaintiff's Reply at 5-6.
Plaintiff brushed aside defendant's unusual ...