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September 12, 1986

ALFRED U. McKENZIE, et al., Plaintiffs,

Barrington D. Parker, Senior District Judge.

The opinion of the court was delivered by: PARKER


Barrington D. Parker, Senior District Judge:

 In 1973, plaintiffs filed this case against the United States Government Printing Office ("GPO"), alleging racial discrimination against blacks in hiring and promotion practices, a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Protracted and hotly contested litigation ensued which, unfortunately, has still not concluded. Plaintiffs have now filed a motion for an interim award of attorneys' fees under 42 U.S.C. § 2000e-5(k). The Court believes that such an award is justified and grants plaintiffs' motion as explained below.


 When this case was filed, the Civil Rights Act Amendments of 1972, which made Title VII applicable to federal government employees, were barely a year old. In the early stages of this proceeding, therefore, plaintiffs' counsel were exploring an uncertain legal landscape. During the course of the litigation, the Supreme Court and our Circuit Court regularly handed down landmark decisions on Title VII issues, *fn1" both procedural and substantive, requiring counsel to constantly reassess and sometimes reshape their arguments. Their task was made no easier by the government, which fought plaintiffs' claim with every weapon at its disposal and consistently refused to acknowledge that the GPO had violated any Title VII rights of black workers.

 In 1975, after the initial stages of this case which included class certification proceedings, substantial discovery, and a remand for further administrative proceedings, the parties filed cross-motions for summary judgment. In January 1977, the Court issued a Memorandum Opinion and Order, finding that plaintiffs had established GPO's liability. McKenzie v. McCormick, 425 F. Supp. 137 (D.D.C. 1977). Over the next four years, extensive and complicated proceedings developed concerning plaintiffs' application for appropriate final relief. Plaintiffs twice obtained preliminary injunctions to prevent proposed GPO employment decisions that threatened the Court's ability to order effective relief. Further discovery and the use of court appointed experts were necessary. On January 30, 1981, the Court issued a comprehensive order granting plaintiffs broad injunctive relief and the possibility of monetary relief for individual class members. McKenzie v. Saylor, 508 F. Supp. 641 (D.D.C. 1981). Plaintiffs were declared the prevailing party for purposes of attorneys' fees and costs.

 In McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62 (D.C. Cir. 1982), the Court of Appeals affirmed the 1977 liability ruling in substantial part, holding that summary judgment for the plaintiffs was proper except with respect to their allegations of discriminatory selection of journeymen after 1971. The case was remanded for further proceedings on that issue. The January 1981 relief order was upheld in full, except that specific timetables for the promotion of black employees were vacated. Since the Court of Appeals decision, there have been further proceedings concerning the exact procedures for adjudicating individual back pay claims and specific disputes over the defendant's compliance with the relief order.

 Plaintiffs originally filed a petition requesting attorneys' fees and costs in April 1981. The present motion for an interim award, filed in August 1985, covers the same period that is the subject of the original petition -- from the outset of the case until January 30, 1981, the date of the final relief order. In a supplemental motion filed in November 1985, plaintiffs revised and updated their request in light of intervening case law and objections raised by the government in its opposition to the motion for an interim award.

 The government does not dispute that plaintiffs are entitled to recover attorneys' fees as the prevailing party in this litigation or that an interim award of some kind is permissible. When a party has succeeded in obtaining substantial interlocutory relief, an interim award of fees may be made. See Bradley v. School Board of City of Richmond, 416 U.S. 696, 723, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974); Grubbs v. Butz, 179 U.S. App. D.C. 18, 548 F.2d 973, 976-77 (D.C. Cir. 1976). Defendant objects, however, to the amount of the interim award proposed by the plaintiffs.


 I. The Lodestar

 It is well established in this Circuit that the first step in determining the appropriate amount of attorneys' fees in a particular case is the calculation of a "lodestar" figure. This is done by multiplying the reasonable hourly rates for the attorneys to whom fees are to be awarded by the number of hours reasonably devoted to the litigation by each attorney. See Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4 (D.C. Cir. 1984, cert. denied, 472 U.S. 1021, 105 S. Ct. 3488, 87 L. Ed. 2d 622 (1985); National Association of Concerned Veterans v. Secretary of Defense ("NACV"), 219 U.S. App. D.C. 94, 675 F.2d 1319 (D.C. Cir. 1982); Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880 (D.C. Cir. 1980) (en banc). While the lodestar methodology was first developed in cases where fees were to be awarded from monetary settlements or verdicts in class actions, the Supreme Court has implicitly approved the practice in statutory fee cases such as Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), and Blum v. Stenson, 465 U.S. 886, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). See Court Awarded Attorney Fees: Report of the Third Circuit Task Force, 108 F.R.D. 237, 241-46 (1985).

 Part of the advantage of the lodestar method is that it gives an air of objectivity to the determination and thus should forestall a "second major litigation," Hensley, 461 U.S. at 437, on the question of fees. Without question, prolonged, petty disputes over fees are wasteful of the courts' resources and have a damaging impact on the morale, not to mention the reputation, of the legal profession as a whole. See id. at 442 (Brennan, J., concurring in part and dissenting in part) (characterizing appeals from fee awards as "one of the least socially productive types of litigation imaginable"). Despite the warnings of our Circuit Court against nit-picking disagreements, intransigence, and unreasonable negotiating positions, e.g., Commonwealth of Puerto Rico v. Heckler, 240 U.S. App. D.C. 333, 745 F.2d 709, 714 (D.C. Cir. 1984); NACV, 675 F.2d at 1338 (Tamm, J., concurring), the government has fought attorneys' fees petitions "tooth and nail." This proceeding is no exception. In reviewing this petition, the Court has endeavored to fairly and equitably assess all reasonable challenges to plaintiffs' claims, but has resisted and will continue to resist the government's invitation to undertake a line by line examination of the fee request and "pleading by pleading examination of the copious files in this case." Copeland, 641 F.2d at 903. The parties are advised that, unless directed to the contrary by appellate authority, the Court will employ a similar approach in evaluating subsequent petitions in this case, including requests for fees for the numerous pleadings filed relating to this interim petition.

 A. Reasonable Hourly Rates

 1. Compensation for Delay

 Much of the briefing on this interim fee petition concerned an issue which was, to a great extent, recently resolved by the Supreme Court. Plaintiffs consistently maintained that the government would not be prejudiced by the award of the full amount requested in their interim petition, based on historical rates, because a final award would undoubtedly include a multiplier or use current hourly rates in order to compensate for the long delay in payment. *fn2" This argument was fully consistent with the law in this Circuit, particularly the decision in Murray v. Weinberger, 239 U.S. App. D.C. 264, 741 F.2d 1423, 1433 (D.C. Cir. 1984); see also Laffey, 746 F.2d at 20 n.104; Copeland, 641 F.2d at 893 n.23.

 However, on July 1, 1986, in Library of Congress v. Shaw, 478 U.S. 310, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986), the Supreme Court held that in enacting the attorneys' fees provision of Title VII, Congress did not waive the federal government's traditional immunity from interest awards. Thus it disallowed an award of attorneys' fees that included a 30 percent multiplier to compensate for a delay in payment. An introductory section of the opinion noted that Judge Ginsburg, dissenting from our Court of Appeals' opinion approving the multiplier, felt that the use of current rates to compensate for delay, as approved in Murray v. Weinberger, would not violate the no-interest rule. 106 S. Ct. at 2961. The Court later held that whether the multiplier applied by the district court was characterized as interest or compensation for delay was irrelevant:


Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money. . . . Thus, whether the loss to be compensated by an increase in a fee award stems from an opportunity cost or from the effects of inflation, the increase is prohibited by the no-interest rule.

 Id. at 2965 (citations and footnote omitted).

 This language strongly suggests that the use of current rates would also run afoul of the no-interest rule. On the other hand, it might be argued that in this section of its opinion, the Supreme Court was addressing the multiplier used in this case before it, not the alternative approach favored by Judge Ginsburg. The use of current rates in the calculation of the lodestar was not specifically disapproved and in part responds to concerns to which a multiplier does not. *fn3"

 This proceeding is a prime example of the inequity of prohibiting any method of computing fees that compensates for delay. Thirteen years after the filing of the complaint, plaintiffs' counsel have yet to receive any compensation for their services. A final award may still be years away. And despite the Supreme Court's expressed distaste for making attorneys' fees proceedings a "second major litigation," Hensley, 461 U.S. at 437, the government now has little financial incentive to expeditiously resolve attorneys' fees claims. Prolonged litigation may become the rule rather than the unfortunate exception. Nonetheless, pending further guidance from appellate authority, the Court will award fees based on historical rates only. *fn4"

 2. Rates Allowed in This Proceeding

 Having decided to use historical rates in the calculation of the lodestar, the Court now considers the rates charged by the individual attorneys involved in this case. A "reasonable hourly rate is that prevailing in the community for similar work." Copeland, 641 F.2d at 892; accord Blum v. Stenson, 465 U.S. at 895-96 & n.11. The starting and usually the ending point in this analysis if an attorney is involved in private practice is the hourly rate charged for services by the attorney or his firm. See Laffey, 241 U.S. App. D.C. 11, 746 F.2d 4 at 16-17. To encourage settlement and avoid turning every petition into a complicated ratemaking proceeding, this Circuit has held that " in almost every case, the firms' established billing rates will provide fair compensation." Id. at 24 (emphasis in original).

 Where a lawyer or firm has no established rate, a court must determine the prevailing market rate. "Rates charged in private representations may afford relevant comparisons." Blum v. Stenson, 465 U.S. at 896 n.11. The burden is on the applicant to establish that the requested rate is the prevailing community rate, through affidavits and references to fee awards in similar cases. Once such a showing has been made, the government bears the burden to go forward with evidence that the rate is erroneous. See NACV, 675 F.2d 1319 at 1325-26.

 Plaintiffs' attorneys fall into three categories. The bulk of the legal services in the early years of this proceeding were performed by lawyers from the law firm of Hogan & Hartson through its Community Services department. Significant assistance was also provided by attorneys from two public interest organizations -- Washington Lawyers Committee for Civil Rights Under Law and, beginning in 1977, Institute for Public Representation. Plaintiffs base their fee petition for all attorneys on the rates charged by Hogan & Hartson attorneys from 1973-1980, based on a detailed affidavit from a partner in that firm. *fn5"

 For the attorneys actually employed by Hogan & Hartson, the rates claimed are presumptively reasonable. Nevertheless, the government insists that "the rates charged by Hogan & Hartson attorneys in the course of the firm's general practice has [sic] no necessary relevance to the appropriate fees to be charged in this case." *fn6" It argues that because the work was performed by the firm's Community Services department which handles pro bono cases, plaintiffs must show in addition that the firm's rates are what prevails in the community for Title VII work. Judge Wilkey succinctly answered this argument in Laffey : "When fixed market rates already exist, there is no good reason to tolerate the costs of turning every attorneys fee case into a major ratemaking proceeding. . . . The established rates represent the opportunity cost of what the firm turned away in order to take the litigation." Laffey, 746 F.2d at 24. This is true no matter what department of the firm handled the case.

 While there is no similar presumption that Hogan & Hartson's rates are reasonable for the public interest attorneys, a number of factors support a conclusion that they are appropriately used in this proceeding. First, plaintiffs have called the Court's attention to attorneys' fees awards in similar or comparable cases. *fn7" These cases show that the requested rates are well within the range of what other courts have found to be reasonable. *fn8" Next, the two public interests lawyers who devoted the most time to the case, Douglas Parker and Dale Swartz, actually began their work on this litigation while employed by Hogan & Hartson. They thus brought experience and knowledge of the case with them that most likely significantly decreased the ultimate expenditure of hours. Therefore, even if the rates charged by Hogan & Hartson were at the high end of the market rate for Title VII work, these lawyers' services merit that rate.

 Finally, and perhaps most significantly, the government has never argued, much less attempted to show, that the rates claimed for the public interest attorneys are excessive. As the court stated in NACV,


Although there may be occasions in which the applicant's showing is so weak that the Government may without more simply challenge the rate as unsubstantiated, in the normal case the Government must either accede to the applicant's requests rate or provide specific contrary evidence tending to show that a lower rate would be appropriate.

 675 F.2d at 1326. Two years after the decision in Laffey and four years after the decision in NACV, the government certainly possesses the background factual information necessary to mount a specific challenge to the reasonableness of the rates requested here if such a challenge has any merit whatsoever. See id. at 1327. Plaintiffs' submission is simply not so weak that it can be challenged solely for being unsubstantiated. Accordingly, for purposes of the lodestar calculation, the hourly rates requested by plaintiffs will be used. Some minor adjustments, noted below, have been made to resolve inconsistencies in plaintiffs' submission. The Court finds that these rates are properly used to compensate for the services plaintiffs' attorneys provided during the period presently under consideration, 1973-1980. Attorney Year Rate Hogan & Hartson Ferren 1973 $70.00 1974 85.00 Tatel 1974 75.00 1975 75.00 1977 95.00 D. Parker 1973 40.00 1974 45.00 1975 60.00 Polmer 1973 35.00 1974 40.00 n9 1975 55.00 1976 60.00 Swartz 1977 45.00 1978 50.00 Wolk 1977 50.00 Minceberg 1977 40.00 1978 40.00 1979 60.00 1980 75.00 Raven-Hansen 1978 65.00 1979 80.00 1980 90.00 McClearyCale 1978 40.00 Keeney 1979 65.00 Moody 1980 60.00 Wolff 1980 65.00 Stone (law clerk) 1977 25.00 Moore (paralegal) 1976 25.00 1977 30.00


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