bases for the exercise of its discretion; derivative estimates such as this one cannot serve to support an award. Therefore, while it is regrettable that the necessary time records could not be located, assuming Mr. Tully kept them at all, this petition for fees cannot be consolidated under Plaintiff's claim and Defendants must be denied.
Motion to Intervene in Order to Petition for Fees Due Mr. Craig T. Sawyer
Mr. Riley Pointer presents the Court with a motion to intervene in this action in order to petition for fees allegedly due Mr. Craig T. Sawyer. Like Mr. Tully, Mr. Sawyer participated in Plaintiff's action at the administrative stage. Mr. Sawyer also assisted Plaintiff's subsequent counsel, Ms. Patricia Barry at a trial on the merits of Plaintiff's claims before this Court. In a fashion similar to that of Mrs. Tully, this petitioner has created estimations of the time spent by Mr. Sawyer on Plaintiff's case. For the same reasons expressed for the denial of Mrs. Tully's petition on her husband's behalf, the Court would deny Mr. Pointer's request.
However, there are policy justifications against this motion to intervene. Fed. R. Civ. P. 24 which provides for intervention, is not applicable to Mr. Pointer's claim. The rule allows for intervention when the would-be intervenor can demonstrate an interest in property which is the subject of the action. Mr. Pointer, having no interest in Plaintiff's case, seeks to utilize this litigation to obtain partial satisfaction of a judgment against Mr. Sawyer in the amount of $ 105,765.00. Since the Title VII provision allowing an award for fees and costs is not meant for the attorney's benefit, it is certainly not for his creditors. Mr. Sawyer could not make such a claim; Mr. Pointer, although a judgment creditor, certainly cannot. The motion to intervene must be denied.
The Court also notes that Mr. Sawyer's widow has renounced any claims to outstanding receivables owed to Mr. Sawyer. In addition, there being no estate, there is no one who may later pursue claim for fees against Plaintiff personally. Therefore, there is no reason for the Court to consider a petition for fees owed Mr. Sawyer in order to protect Plaintiff. Mr. Pointer's motion to intervene is improper and purely speculative.
Petition for Fees and Costs of Patricia J. Barry
The Court has determined that Patricia Barry presents the only petition for fees and costs which should be consolidated with Plaintiff's request for reimbursement. She makes a request for an attorney's fee of $ 39,275.00 and costs of $ 223.97. Since Plaintiff prevailed on the merits, counsel having achieved excellent results for her client following a trial on the merits and a decision in Plaintiff's favor upon the government's appeal, the government does not contest Plaintiff's entitlement to an award of fees for counsel's services, only the amount of that award.
Ms. Barry submitted a thoroughly documented petition, now consolidated under Plaintiff's claim, from which the Court may comfortably determine the "reasonable" amount of attorney's fees due. She requests $ 100.00 per hour for a total of 323.8 hours of work on Plaintiff's case. In addition, Ms. Barry requests that the Court award an upward adjustment of 25% to reflect the contingent nature of the suit, the complexity of the legal issues involved and to compensate for the nine-year litigation and delay in payment. It is the government's position that Ms. Barry should be compensated at no more than $ 65.00 per hour. Further, the government urges the Court to reduce the hours for (1) the lost issue concerning pre- and post-judgment interest on the backpay award, (2) "undemanding legal activities" and (3) the "almost illegible nature" of the time records submitted.
The "Lodestar" Calculation
The initial task for the Court in calculation an appropriate fee award is to establish the "lodestar": the number of hours reasonably expended multiplied by a reasonable hourly rate. Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 891 (D.C. Cir. 1980). While the "lodestar" is presumed to produce a reasonable and fully compensatory award, the Court's inquiry does not end here. Once a lodestar figure is reached the Court may consider an upward adjustment enhancing the award to reflect such factors as the contingent nature of success and the risk of non-payment, Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984), the level of skill necessary and the quality of counsel's representation, and any delay in payment. Copeland v. Marshall, at 892-894. The Court is also obligated to consider the level of success achieved in relation to the amount of the fee award. Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).
Reasonable Hourly Rate
The standard for determining a reasonable hourly rate is found in the often-cited statement: "the reasonable hourly rate is that prevailing in the community for similar work." Copeland, 641 F.2d at 892. This approach was arrived at for the simplicity of its administration and because a "market approach" complies with the legislative mandate to assure competent counsel to persons seeking to vindicate civil rights, thereby providing an "incentive to ferret our discrimination" without "windfall profits" to attorneys. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1326 (D.C. Cir. 1982). Most recently, the regular or "customary" billing rate has replaced the "prevailing market rate" as presumptively reasonable. Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4 (D.C. Cir. 1984).
However, the new presumption of reasonableness of an attorney's regular, customary billing rate can only apply to those attorneys who have a well-established billing practice. For attorneys associated with public interest groups or single practitioners who specialize in Title VII cases and who receive most of their remuneration from fee awards, resort to the rate prevailing in the community for similar services continues to offer the most efficient and fair method for assessing a proper hourly rate. E.g., Blum v. Stenson, supra. Ms. Barry has declared and supported her contention that she is a solo practitioner specializing in Title VII cases and that she receives most of her remuneration from fee awards. In this instance, the Court is therefore in a position to refer to the prevailing market rate as the most sensible approach to determining her reasonable rate of compensation.
There is ample evidence which supports $ 100.00 per hour as Ms. Barry's reasonable rate of compensation. For instance, Plaintiff proved unlawful discrimination and received a backpay award of $ 129,545.20, before setoffs, largely through the efforts of this attorney. Further, the affidavits of Lawrence Speiser and Eduard Pena, Jr. support her contention that $ 100.00 is a reasonable hourly rate for attorneys having a regular billing practice in the area of civil rights litigation. As such, this figure could serve as the base figure for the lodestar calculation.
However, there are a variety of factors to support a lesser rate of compensation for counsel's services. The Court has determined that an award of $ 85.00 per hour is the most reasonable rate of compensation for Ms. Barry's services in this case. First of all, while $ 100.00 per hour is a reasonable hourly rate for attorneys performing civil rights litigation, in this case, the Court would nonetheless be forced to discount this rate to account for the fact that, as a single practitioner with little other help available, Ms. Barry necessarily performed certain tasks which did not require the level of skill meriting $ 100.00 per hour. The Court must consider all of the circumstances in setting an appropriate hourly rate. The rate chosen must take into account the fact that different kinds of work were performed, requiring different levels of skill. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974).
More importantly, $ 85.00 per hour is the rate agreed upon by counsel and client for work performed at the appeals level and thereafter. It is clear that the agreed upon rate was intended to apply specifically from the time Plaintiff was forced to defend her victory in this Court; nonetheless, the hourly amount does provide the Court with evidence of the value of Ms. Barry's services to herself and to her client. While counsel may not have an established billing practice, she and Plaintiff arrived at a rate which the Court presumes to be in reasonable relation to that which counsel's services might command in the marketplace. Moreover, the Court is concerned with providing a fully compensatory fee in this case; if this is the rate which the parties have determined to be adequate, then $ 85.00 per hour is the rate at which this attorney is willing to accept civil rights cases from fee-paying claimants. This figure is therefore a basis from which the Court may set an award sufficient to fulfill the purpose of fee-shifting in Title VII cases.
Of course, it is possible that Plaintiff and Ms. Barry would arrive at a greater or lesser figure as the hourly rate for counsel's services at the trial level. The Court has no objective basis for assuming the $ 85.00 per hour figure would be changed at all nor for determining what any change would be. Rather than ponder this unanswerable question in an attempt to arrive at a second hourly rate for services performed at the trial level, the Court finds that $ 85.00 per hour is a reasonable and fair rate of compensation for Ms. Barry's services at all stages of the litigation; this amount will serve as the base of the "lodestar."
Reasonable Number of Hours Expended
Attorneys' fees may only be awarded for time reasonably expended. Having determined the reasonable hourly rate, the Court must now turn to consider the number of hours expended in the pursuit of Plaintiff's success. "The number of hours spent on behalf of the prevailing party is determined by evaluating the total number of hours expended and disallowing unproductive time or time spent on successful claims . . . must be excluded from the lodestar calculation." Murray v. Weinberger, 239 U.S. App. D.C. 264, 741 F.2d 1423, 1427 (D.C. Cir. 1984). Ms. Barry requests compensation for 323.8 hours of work performed on Plaintiff's behalf. In considering whether this request is reasonable, the Court must scrutinize the time records provided as evidence of and support for the number of hours expended. These records must be sufficiently detailed to allow this Court to make an independent determination of whether the hours spent are justified. Concerned Veterans, 675 F.2d at 1327.
Contrary to the characterization of her petition as "patently deficient," Ms. Barry has submitted ample documentation of her claim. In fact, the petition is so candidly and thoroughly documented that the government has been able to use it to make several persuasive arguments in favor of reductions. After considering those arguments, and upon independently reviewing the hours spent on this case, the Court finds that there are categories of activity for which the number of hours must be reduced.
While the overall number of hours claimed by counsel is not excessive, approximately 200 telephone calls and conferences with Plaintiff are not justified. Counsel should have exercised "billing judgment." The many telephone conversations between attorney and client total 38.8 hours or almost one full work week. The Court finds it unlikely that Ms. Barry would expect a fee-paying client to pay her $ 85.00 per hour for one week's worth of conversation. Then, the conferences between attorney and client make for an additional claim of 26.4 hours. Together, Ms. Barry requests 65.2 hours of largely unexplained conference and telephone time with her client.
It is admirable that counsel maintained close contact with her client; a certain amount of consultation time is necessary and justifiably compensated. However, the Court finds that here the number of hours is excessive. Moreover, "counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley v. Eckerhart, 461 U.S. at 434. The Court finds that since justification for the high number of calls and conferences is not found in the petition and since the Court must exclude unproductive time from the lodestar calculation, the number of hours spent on calls and conferences with Plaintiff shall be reduced by 50% to reflect a reasonable amount of time for these activities. Therefore, the claimed hours shall be reduced by 32.6 hours to reflect the time not "reasonably expended" on the telephone and in conference with Plaintiff.
Secondly, the Court must reduce the claim by 9.6 hours in order to reflect the time spent on "lost" issue of pre- and post-judgment interest on the backpay award. Hours spent on issues on which Plaintiff did not prevail are not compensable. The only such issue identified is that regarding the availability of interest. However, in addition to these hours, Plaintiff apparently agreed not to pursue a claim for compensation for 8.1 hours spent on a motion for clarification in exchange for a promise from the Defendants not to oppose the motion. These hours are also not compensable. Having made the agreement, Plaintiff must now abide by it. Therefore, the claimed hours will be reduced by 17.7 hours to account for the time spent on the "lost" issues and time for which compensation has been waived.
Therefore, the Court has determined that a reduction of hours in the amount of 50.3 is necessary to achieve the "reasonable number of hours expended" in this litigation. The claim for 323.8 hours is reduced, first, by 32.6 to account for an absence of "billing judgment" regarding excessive and unexplained calls and conferences. The hours are further reduced for time spent on the "lost" issue of pre- and post-judgment interest on the backpay award. The total number of compensable hours is therefore 273.5.
For the reasons set forth above, the Court awards the following lodestar figures:
PATRICIA J. BARRY
Rate $ 85
© 1992-2004 VersusLaw Inc.