the fees and costs that she had borrowed money to pay, plaintiff requested a 10 percent upward adjustment in her award as contemplated by Shaw v. Library of Congress, 241 U.S. App. D.C. 355, 747 F.2d 1469 (D.C.Cir. 1984). Id. at 3-4. Also, with respect to the fees still in dispute, plaintiff sought an interim payment at the $75 hourly rate at which the United States conceded, in Commonwealth of Puerto Rico v. Heckler, supra, that it generally settled fee claims. Id.10
Mr. Bennett's supplemental declaration further chronicled his observation of a "consistent pattern of delay" in litigated attorney's fee cases both generally and in this case specifically. Supplemental Declaration of Joel P. Bennett at 1. For example, he noted that in all three cases where he had won a litigated award of attorney's fees against the United States, there was a substantial delay in payment because the Department of Justice filed a notice of appeal within 60 days after the district court award, requested an extension of time to file briefs, and then dismissed the appeal without consummating it. Id. at 1-2. As to this particular case, Mr. Bennett attached to the supplemental declaration a copy of his November 21, 1984 letter to the defendant's counsel summarizing his repeated efforts to resolve this dispute speedily. The letter reminded defendant's counsel that he had advised her on November 5, 1984, to let him "know what you want [by way of discovery with respect to the hourly rate] and I would supply it, if it were reasonable, without . . . formal discovery." Id., Exhibit 7 at 1. The letter also recited that on November 16, 1984, Mr. Bennett reiterated this request, and reemphasized that his client had borrowed money to pay his fee. Id. at 2. In addition, the letter requested that defendant's counsel expedite payment on the settlement that had been negotiated for attorney's fees for the administrative stage of the case, and further requested, once again, that she advise "informally what discovery you seek as to the hourly rate I have charged Ms. Kyles so that I can give you whatever you need that is proper." Id. Finally, the letter -- noting that the only concern in this matter was counsel's hourly rate (since September 1983) -- formally requested that the government agree to an interim payment calculated at $75 per hour, citing Shaw v. Library of Congress, supra, and Parker v. Lewis, 216 U.S. App. D.C. 91, 670 F.2d 249 (1982). Id. The letter suggested that this would "leave for litigation only the differential between the maximum your office will pay and the amount actually charged Ms. Kyles for [her counsel's] time." Id. These suggestions, however, were apparently to no avail, and the litigation went to issue.
On December 21, 1984, this Court made a finding that in this case a $75 minimum was incontestable and entered an order on the authority of Parker v. Lewis, supra, at 250, requiring defendant to make an interim payment of $5,448.75 calculated at $75 per hour.
On December 27, 1984, defendant moved for reconsideration of the interim award and an enlargement of time within which to make the payment.
In support of the motion for reconsideration, defendant reiterated the contention that since the plaintiff had failed to substantiate the hourly rate sought, "this Court lacks discretion to make an award in accordance with Laffey. . . ." Memorandum in Support of Defendant's Motion for Reconsideration at 2. Moreover, defendant contended, Parker v. Lewis does not contemplate that a mere district court may make an interim award. Id. at 4. Defendant argued that in that case, although the Court of Appeals did direct that an interim award be paid pending its further consideration of the only portion of the award genuinely in dispute, it did so only after a district court had already made findings below. Id. at 4. According to defendant here, moreover, plaintiff was not entitled to any upward adjustment because of delay, because such adjustment is only authorized where there has been delay in payment to the attorney; the fact that plaintiff actually paid her attorney, defendant argued, distinguishes Shaw. Id. at 5. On January 15, 1985, the Court held a hearing on the motion for reconsideration of the interim award and at the conclusion of the hearing denied the motion.
In support of the motion for an extension of time for payment, defendant represented that it was "moving as expeditiously as possible to obtain a determination as to whether appellate review will be sought." Defendant's Motion for Extension of Time within which to Remit Attorney's Fees at 4. Since defendant could notice a protective appeal in any event, the Court extended the time in which defendant was required to remit the interim payment of attorney's fees to February 25, 1985.
On February 4, 1985, defendant moved for a further extension of time to make the interim payment until 60 days after the denial of the motion for reconsideration. The Court summarily denied that second application for an extension.
Before reaching the precise issue here it is appropriate to restate some fundamentals. Title 42 U.S.C. § 2000e-5(k) provides that in Title VII actions
the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . .
The purpose of this and related statutes is to ensure effective access to the judicial process for persons who have claims under the civil rights laws. S.Rep. No. 1011, 94th Cong., 2d Sess. 2-6 (1976) (discussing purpose behind both 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k)). Fee awards should be "adequate to attract competent counsel, [though] . . . not produce windfalls to attorneys." See Hensley v. Eckerhart, supra, 103 S. Ct. at 1938 n.4. Moreover, the Supreme Court has stated that "[a] request for attorney's fees should not result in a second major litigation." Id. at 1941. "Ideally," the Supreme Court has said, "litigants will settle the amount of [the] fee." Id. The Court re-emphasized "that the district court has discretion in determining the amount of a fee award." Id.
Blum v. Stenson, supra, 104 s. Ct. 1541, provides valuable guidance as to the level at which "reasonable" hourly rates can today be expected to be set. Blum confronted the Supreme Court with the problem of determining the reasonable rate payable to the New York Legal Aid Society for successful litigating service in a civil rights case. The Society rendered such services without charge and therefore had no experience from which it could prove the rate it actually charged or the rate the consumer actually paid for its service. Defendant, supported by the Solicitor General as amicus curiae, argued that non-profit legal aid organizations should be compensated on a cost-related rate basis, rather than a market rate basis, because the market rates for for-profit organizations include elements of cost and of profit. The Court rejected the suggestion that non-profit counsel should be compensated at a lower rate than private counsel. Id. at 1547. Thus, in Blum, the Supreme Court affirmed an award by the District Court for the Southern District of New York for services rendered in 1978 to 1980 at the rates of $95 an hour for an attorney who had 1-1/2 years legal practice, $100 per hour for another attorney who also had 1-1/2 years of legal aid practice but had also clerked for a year for a state court judge, and $105 per hour for a third lawyer who had 1-1/2 years of legal aid practice but who had clerked for two years for a federal district judge. Id. at 1544 n.4.
The Supreme Court has stated in a related context that when Congress authorized federal employees to bring employment discrimination claims against the government it intended to accord them "the full rights available in the courts as are granted to individuals in the private sector under title VII." Chandler v. Roudebush, 425 U.S. 840, 841, 48 L. Ed. 2d 416, 96 S. Ct. 1949 (1976) (quoting S.Rep. No. 415, 92d Cong., 1st Sess. 16 (1971); see also Shaw v. Library of Congress, supra, at 1484.
Recent rulings of our Court of Appeals are particularly instructive. Parker v. Lewis, supra, for example, expressed concern "that the public policy dictating that attorney's fees be awarded not be completely undercut by routine delays in payment of fees that are properly due and owing." 670 F.2d at 250. The Parker Court felt "compelled to assure a quick conveyance of funds . . . and an expeditious determination of any additional attorneys' fees due." Id.
Even more recently, in Commonwealth of Puerto Rico v. Heckler, supra, the Court of Appeals noted that
it is 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. In view of that firm policy, adhered to despite precedents approving rates considerably in excess of the $75 and $60 figures . . . [ e.g., $110 to $125 per hour], Puerto Rico's counsel suggested that presentation of their agreed-upon hourly rates or other market rate documentation would not have avoided "a second major litigation."
745 F.2d at 714 n.7. Appearing to endorse the comment of Puerto Rico's counsel, the Court of Appeals pointedly stated in the text of the opinion illuminated by the foregoing note:
In this area, as in others, the conduct and attitudes of official actors may be contagious. That conduct will not be "worthy of our great government," if it is obdurate or intransigent. Nonnegotiable postures on fee awards may waste resources for all concerned. We repeat, and underscore the special importance of government attention to, the Supreme Court's call for "conscientious effort" to resolve differences over fee awards reasonably, responsibly, and without precipitating another federal case.