rate brackets, it is the market rate for purposes of calculating the lodestar." Id. at 24-25 (emphasis in original). Adjustments should be made only in exceptional circumstances and are best accomplished by adjusting the lodestar during the subjective phase of the fee setting procedure. Id. at 25.
Where an attorney or a law firm has no established rate, a court must determine the prevailing market rate. "Rates charged in private representations may afford relevant comparisons." Blum, 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 present evidence that the rate is erroneous. See NACV, 675 F.2d at 1325-26.
Plaintiffs' attorneys fall into three groups. The first includes those lawyers who were employed by private, for-profit law firms. Brent Rushforth and James McElfish were employed by Dow, Lohnes & Albertson. The second group of attorneys work for public interest firms and therefore do not normally collect a fee from their clients. Nancy Crisman, Katherine Ransel, Stephen Preston, and Lawrence Goldberg worked at Advocates for the Public Interest, formerly Center for Law in the Public Interest. Finally, a third group of attorneys work for private firms with a public interest law practice. Thomas Galloway and Eldon Greenberg operate their own firm handling health and safety and environmental issues for citizen groups, environmental and conservation organizations, miners and workers at mines, and widows of mine disasters. Mr. Bishop initially worked on the case for Harmon & Weiss, another private-public interest law firm.
1. Issues Raised by the Government
The government raises several arguments against the plaintiffs' fee schedule. First, it contends that plaintiffs' counsel should be compensated at different rates depending on the type of legal work they performed. Copeland did indeed suggest that legal research might warrant a lower rate than court appearances. 641 F.2d at 892. The more recent Laffey decision, however, clearly instructs the lower courts that a firm's own billing practices are given great weight in setting reasonable rates. None of the firms involved here differentiate in their billing rates between different categories of activities, and, indeed, such a differentiation is extremely rare in the legal community. As a matter of judicial administration, moreover, defendants' proposed course is burdensome. Cf. Laffey, 746 F.2d at 15. The Court is not prepared to assess the relative worth of legal activities, when the market provides no guidance.
Second, the government argues that plaintiffs involved an excessive number of experienced attorneys who commanded high billing rates which caused an inflated lodestar. Defendants suggest that the case could have been handled by a single lead attorney and one associate.
This argument is altogether lacking in merit. First, the government has exaggerated the supposedly top heavy staffing of the case. A number of undoubtedly very experienced and qualified attorneys represented the plaintiffs, but their activities, and therefore the hours they claim, were directed to different aspects of the litigation. Mr. Rushford was primarily responsible for district court litigation, Mr. Galloway's main expenditure of time came on settlement and monitoring. Ms. Crisman's work mainly concerned the appeals and the present fee petition. In addition, Ms. Ransel and Mr. Bishop, also characterized by the government as seeking partnership rates, were "junior" partners in terms of experience and will be compensated as such. In addition, as already noted, it was eminently reasonable for plaintiffs' counsel to spread the risk of loss in this hotly contested case among a number of firms.
Finally, the government argues that the rates requested by plaintiffs' counsel exceed the market rate in this area. However, its scanty selection of "evidence" simply is not as convincing as the well-marshalled, organized, and detailed supporting materials offered by the plaintiffs. The government has failed to demonstrate that plaintiffs' proposed rates are erroneous, and therefore, if consistent with the standards of this Circuit, those rates will be allowed.
See NACV, 675 F.2d at 1326.
2. Rates Allowed in This Case
The Declaration of Brent Rushforth indicates the rates charged by Dow, Lohnes & Albertson for his services and those of James McElfish during the years covered by the fee request. n7 The rates are presumptively reasonable, falling well within the rates charged by private law firms in this city, as demonstrated by numerous supporting affidavits and exhibits. They are also in line with the rate schedule approved by the trial court in Laffey as market rates for litigating attorneys with varying amounts of experience. 572 F. Supp. at 371. The Court approves these rates as within the bracket of reasonable rates for similar work in Washington, D.C.
Attorney Year Rate
Rushforth 9/81 - 2/83 $125
3/83 - 2/84 $ 140
3/84 - 8/84 $ 150
9/84 - 11/84 $ 160
12/84 - 1985 $200
McElfish 9/81 - 1/83 $ 70
2/83 - 8/83 $ 80
9/84 - 11/84 $ 90
12/84 - 1985 $110
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