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April 3, 1986

RAYMOND J. DONOVAN, Secretary of Labor, Plaintiff and JAMES RICKS, Plaintiff-Intervenor

Aubrey E. Robinson, Jr., Chief United States District Judge.

The opinion of the court was delivered by: ROBINSON, JR.



 For the Court's consideration is a petition for attorneys' fees and costs arising out of an action under the Labor-Management Reporting and Disclosure Act of 1959, as amended, 29 U.S.C. § 481 et seq. (LMRDA).


 This action concerns the conduct of several elections held by the Washington Teachers' Union (WTU). The first of these, held on May 18, 1981, resulted in James Ricks, an unsuccessful candidate for President, filing an administrative complaint with the Secretary of Labor pursuant to 29 U.S.C. § 482(a). Finding numerous violations of the Act, the Secretary filed a complaint in this Court requesting that the election be nullified and a new election held. Ricks was permitted to intervene in the action. Two supervised rerun elections later, the Secretary finally certified the results over a challenge and an appeal by Ricks. Ricks' attorneys -- Oliver Denier Long, Kenneth Henley, John V. Long, and Patrick B. Shaw -- now seek fees and costs from WTU totalling $ 83,297,36.


 The Court of Appeals for this Circuit has approved awarding attorneys' fees and costs to intervenors in Title IV suits under LMRDA. Usery v. Local No. 639, International Brotherhood of Teamsters, 177 U.S. App. D.C. 222, 543 F.2d 369 (D.C. Cir. 1976). The rationale of Usery is that Title IV cases are like other cases under LMRDA where "courts have uniformly applied a 'common benefit' analysis to award attorneys' fees to private litigants." Id. at 382.


Significantly, in none of these decisions was there a statutory provision that expressly authorized the award made. Rather, the governing rationale was that union members by bringing suits against their union help vindicate the statutory policy in favor of union democracy which necessarily redounds to the benefit of the entire membership.


'Fee-shifting' is particularly appropriate because of the clear match between the party assessed and the beneficiary of the litigation.

 Id. at 383.

 The key, then, to determining whether a particular case is appropriate for the award of fees is whether at each stage of the litigation the union received a common benefit. It is therefore the Court's first task to chart the course of the litigation from Ricks' initial complaint to his final appeal and determine at each point whether his attorneys rendered "material assistance to the Secretary and the court in the interest -- of the public and the union rank and file -- in union democracy." Id. at 384.


 1) Period Before the Secretary of Labor Filed Suit: April 1981 - November 1981

 In April, 1981, Ricks requested the law firm of Long, Henley & Long to represent him in this action. On Ricks' behalf the firm exhausted internal union remedies and filed a protest of the election with the Secretary of Labor. Defendant does not oppose the award of fees for this period and because this activity meets the common benefit standard fees shall be awarded.

 2) Period After the Secretary of Labor Filed Suit Through the Course of the Trial: December 1, 1981 - November 21, 1982

 After Ricks intervened in the Secretary's action, his counsel claim to have played a "leading role in the investigation and prosecution of the litigation." Defendant counters, without evidence, that Ricks' efforts were "merely duplicative of the efforts of the Secretary." Supporting the attorneys' request for fees during this period are affidavits from Assistant United States Attorney John Bayly, Jr. and Susan Webman, counsel for the United States Department of Labor. Both state that Ricks' lawyers were helpful. Webman says that Ricks' attorneys helped locate witnesses for trial and provided the Department with synopses of anticipated testimony. Because the attorneys' evidence establishes that their services were helpful to the ultimate outcome of the trial, which was to overturn an unfair election, and because this outcome was important in the vindication of union democracy, they shall receive an award of fees for this period.

 3) Supervising and Challenging the First Rerun Election: November 22, 1982 - April 6, 1983

 According to the affidavit of Oliver Long, after trial he participated in a pre-election conference, advised the Labor-Management Services Administration (LMSA) regarding the conduct of the rerun election, attended the election tally and prepared protests filed with LMSA. He claims that his work "was instrumental in identifying to the Department of Labor both mailing list irregularities and the counting of votes by individuals who never cast a ballot." Defendant counters, again without evidence, that Intervenor did not render material, compensible assistance during this period. This is the sum of the evidence concerning this period of the litigation. Because Defendant has offered nothing under oath to refute Long's affidavit, Long shall receive fees for his work. There is no evidence to refute Long's statement in his memorandum that he persuaded the Secretary of Labor not to certify the results of the rerun election through his work during this period.

 4) Opposing the Department of Labor: April 7, 1983 - End of Appeal

 Ricks' attorneys also seek fees for several unsuccessful actions they took against the Department of Labor. First, they seek fees for the time spent on their unsuccessful Motion for a Temporary Restraining Order or Preliminary Injunction against the Secretary of Labor. They also seek fees for their unsuccessful efforts to exclude the offices of president and vice president from the second rerun election. (Ricks had been elected president of the union in the first rerun election. The Court decided that a re-election was necessary for all offices.) Intervenor offers no evidence that this work gave the union a common benefit. Defendant's position seems more plausible -- that the attorneys were interested in Ricks alone and that the union cannot be equitably charged for this work. Intervenor's actions merely delayed the second rerun election unnecessarily.

 Beginning in June, 1983, Intervenor's efforts were spent opposing the certification of the second rerun election. There is no evidence that this appeal provided a common benefit to the Union, although Petitioner claims that by obtaining an adequate statement of reasons for the certification he "promote[d] union democracy" and conferred a benefit on the union generally.

 The WTU shall not have to pay for the work done during this period. The union gained little if anything from finding out why the second rerun election was not invalid. Additionally, of the nine grounds for appeal asserted by Intervenor, only one accomplished the limited success of requiring the Department of Labor to explain more fully why it certified the election. Of the other grounds, the Court of Appeals in Donovan v. Local 6, Washington Teachers' Union, AFL-CIO, 241 U.S. App. D.C. 274, 747 F.2d 711 (D.C. Cir. 1984), called two "plainly incorrect," Id. at 717, 720, one "frivolous," Id. at 718, one unsupported by "a single reason," Id., and one asking for relief that would be a "pointless exercise." Id. at 720.

 5) Fees Incurred in Preparation of the Fee Application

 Although WTU claims that it did not receive a common benefit from the hours petitioners spent on their fee applications, this Court has awarded fees for such work. See e.g., Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4 (D.C. Cir. 1984); Elmore v. Shuler, Civil Action No. 81-0278 (D.C.D.C. 1985).

 In sum, the application of the common benefit principle to the facts of the case at hand, results in the conclusion that Intervenor's attorneys shall receive fees for their work from April 1981 through April 6, 1983, plus their reasonable hours spent on the fee applications.


 Once it has been determined that Petitioner is entitled to some award of fees, the next step is to determine the lodestar -- the number of hours reasonably expended, multiplied by a reasonable hourly rate. "The figure generated by that computation is the basic fee from which a trial court judge should work." Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880 (D.C.Cir. 1980).

 a. Amount of Time Reasonably Expended During the two years of this litigation for which Petitioners are entitled to fees, 264.4 hours are claimed as follows: TIME PERIOD HOURS CLAIMED 1. April 1981 - November 1981 Henley 10.0 J. Long 0.3 Shaw 54.1 2. December 1, 1981 - November 21, O. Long 125.4 1982 J. Long 3.0 Henley 0.6 3. November 22, 1982 - April 6, 1983 O. Long 67.5 J. Long 3.0 Henley 0.5


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