Health v. C.A.B., 233 U.S. App. D.C. 79, 724 F.2d 211, 220-21 (D.C. Cir. 1984).
Further complicating the Court's effort to ascertain the degree of NORML's contribution as a prevailing party are the deficiencies in documentation of time expended on the case. NORML's three attorneys each submitted time logs and supporting affidavits, claiming a total of approximately 230 hours of work on the underlying case. These records, some of which are after-the-fact estimates, see Supplemental Affidavits of Meyers and Sirulnik, are at best vague and at worst cryptic. The time logs provide little or no reference to the substance of the work claimed. As such, they are insufficient to enable the Court to access accurately the work that should be compensated and that which is duplicative or excessive. Hensley v. Eckerhart, 461 U.S. at 434; see also National Association of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1327 (D.C. Cir. 1982) ("casual after-the-fact estimates of time expended on a case are insufficient to support an award of attorneys' fees.")
In making its fee determination, a court is not required to "'become enmeshed in a meticulous analysis of every detailed facet of the professional representation. '" Copeland v. Marshall, 641 F.2d at 903 (quoting Lindy Brothers Builders v. American Radiator & Standard Sanitary Corporation, 540 F.2d 102, 116 (3d Cir. 1976)). Accordingly, the Court will make a reduction in the requested award. Hensley v. Eckerhart, 461 U.S. at 433; Action on Smoking and Health v. C.A.B., 724 F.2d at 220.
B. The Lodestar
In this Circuit, courts determine the appropriate award of attorneys' fees by establishing a "lodestar" rate, which is the number of hours reasonably expended multiplied by a reasonable hourly rate. The courts may then adjust the lodestar rate upward or downward by use of a multiplier to reflect various factors. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1323.
1. Hourly Rate
In establishing the lodestar rate, the Court must first determine a reasonable hourly rate, which this Circuit has defined as "that prevailing in the community for similar work." Copeland v. Marshall, 641 F.2d at 892. The fee applicant is charged with providing the Court with "specific evidence" of the prevailing community rate for similar services which the attorney performed. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1325. Adequate proof includes affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases, fees awarded by courts or through settlements to attorneys of comparable experience rendering comparable services, and the hourly rate customarily charged by the fee applicant. "What is needed are some pieces of evidence that will enable the District Court to make a reasonable determination of the appropriate hourly rate." Id. at 1326.
NORML claims $75 per hour, the maximum rate allowed by the EAJA, 28 U.S.C. § 2412(d)(2)(A), for each of its three attorneys. Messrs. Meyers, Sirulnik, and Zeese each submitted affidavits outlining their qualifications.
Peter H. Meyers graduated from law school in 1971. He had practiced law for 12 years at the time of the underlying action and he is a member of the faculty at George Washington University Law School. Mr. Meyers has argued cases before numerous federal and state courts, including the United States Supreme Court. In addition, Mr. Meyers has authored or edited several legal publications in the area of drug law. Mr. Meyers asserts that he would receive $100 to $125 per hour if engaged in private practice. Meyers Affidavit paras. 2, 3, 4, 6, 7. The Court finds that an hourly fee of $75 for Mr. Meyers is justified given his experience.
Eric S. Sirulnik received his J.D. in 1968 and a Masters of Law degree in 1971. He is a tenured law professor at George Washington University Law School, and is admitted to practice before the Bars of Massachusetts and the District of Columbia. Mr. Sirulnik also has substantial litigation experience. Mr. Sirulnik asserts that he could command $100 to $125 per hour if engaged in the private practice of law. Sirulnik Affidavit paras. 2, 3, 5, 6, 7. Given Mr. Sirulnik's experience, the Court finds that an hourly rate of $75 is reasonable.
Kevin B. Zeese graduated from law school in 1980 and is admitted to practice in the District of Columbia. Since 1980, Mr. Zeese has been with NORML as an attorney and, since August 15, 1983, the NORML National Director. Mr. Zeese also maintains a private law practice which is 90 percent criminal law. Mr. Zeese states that if engaged in private practice, he could command an hourly fee of $75 to $150. Affidavit paras. 2, 3, 7, 8. Taking into account Mr. Zeese's limited experience, the Court finds that an hourly fee of $60 is reasonable. See generally Veterans Education Project v. Secretary of the Air Force, 515 F. Supp. 993, 995 (D.D.C. 1982), aff'd, 679 F.2d 263 (D.C. Cir. 1982).
2. Number of Hours
NORML claims that its three attorneys spent 230.60 hours on the underlying action and 61.25 hours on the attorneys' fees issue. As discussed earlier, the Court finds that NORML's suit substantially overlapped the Sierra Club action. See supra slip op. at 13. As a result of the duplication of efforts and the insufficient documentation of time expended on NORML's part, the Court will make an 80 percent reduction in the number of hours claimed by NORML in the underlying action. The Court will compensate fully NORML's attorneys for the hours expended on the attorneys' fees issue. Environmental Defense Fund v. Environmental Protection Agency, 672 F.2d 42 at 62 (D.C. Cir. 1982).
3. The Multiplier
Finally, NORML seeks a multiplier of 48.29 percent to reflect a cost-of-living increase based on the Consumer Price Index (8.29 percent), quality of representation (20 percent), and bad faith on the defendants' part (20 percent). The EAJA authorizes a cost-of-living adjustment, and the Court grants this increase pursuant to 28 U.S.C. § 2412(d)(2)(A)(ii).
The Court will not entertain NORML's request for an upward adjustment of 20 percent to reflect the quality of representation. Such an adjustment is justified only on rare occasions. The Court of Appeals addressed itself to this issue in Donnell v. United States, 220 U.S. App. D.C. 405, 682 F.2d 240, 254 (D.C. Cir. 1982):
We have found it all too common for the District Courts to adjust the lodestar upward to reflect what the courts view as a high level of quality representation. This trend should stop. Copeland contemplated such adjustments only for rare cases: "A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the 'lodestar. '"
Accord, National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1329 ("an adjustment for the quality of representation should not routinely be awarded.") No such quality adjustment will be made here, especially given NORML's secondary role in the underlying litigation.
NORML also claims a 20 percent upward adjustment for the defendants' bad faith. This Court need not decide whether bad faith is among the factors that justify an upward adjustment of the lodestar, as the Court finds no such bad conduct on behalf of the defendants. See Copeland v. Marshall, 641 F.2d at 905-08.
C. Summary of Attorneys' Fees Award
Fee Application Underlying 80 Percent
Attorney Hours Case Hours Reduction Rate Total
Meyers 25.50 (79.0) 15.80 $75 $3097.50
Sirulnik 6.0 (23.0) 4.6 $75 795.00
Zeese 29.75 (128.60) 25.72 $60 3328.20
© 1992-2004 VersusLaw Inc.