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LEBRON v. WASHINGTON METRO. AREA TRANSIT AUTH.

March 5, 1987

Michael Lebron, Plaintiff,
v.
Washington Metropolitan Area Transit Authority, Defendants



The opinion of the court was delivered by: HARRIS

 Stanley S. Harris, United States District Judge

 This case had its inception, as plaintiff Michael Lebron testified, when he decided in 1983 that it would be "funny" to prepare and display a photomontage. While it is difficult to characterize it verbally, it apparently sought to portray President Reagan and other government officials as insensitive. Now, years later, the case is before the Court on Lebron's petition for costs and attorneys' fees, and motion for summary judgment on the issues of damages.

 In 1984, Lebron filed suit in this Court contesting the refusal of the Washington Metropolitan Area Transit Authority (WMATA) to rent space in WMATA's subway stations for the display of the political poster which WMATA concluded was deceptive. Lebron's suit, brought under 42 U.S.C. § 1983, alleged that WMATA's refusal abridged his rights of free expression under the First Amendment, and sought both injunctive and compensatory relief. After a consolidated preliminary injunction hearing and trial on the merits, this Court denied Lebron relief. Lebron v. Washington Metropolitan Area Transit Authority, 585 F. Supp. 1461 (D.D.C. 1984). Lebron appealed to the United States Court of Appeals for the District of Columbia Circuit, which reversed this Court's judgment, allowing Lebron to obtain the injunctive relief he sought. Lebron v. Washington Metropolitan Area Transit Authority, 242 U.S. App. D.C. 215, 749 F.2d 893 (D.C. Cir. 1984). The only substantive issue remaining before this Court is the issue of damages. Additionally, as a "prevailing party," Lebron has requested attorneys' fees pursuant to 42 U.S.C. § 1988. *fn1"

 Attorneys' Fees

 Section 1988 of Title 42 of the United States Code provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Although the statutory language indicates that fee awards are not mandatory, Congress intended that a prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render an award unjust." S. Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Ad. News, 5908, 5912 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968)). WMATA does not contest Lebron's entitlement to an award under § 1988, but does challenge the amount to be awarded.

 The Supreme Court has concluded that the "starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). This value, the "lodestar," will normally represent that reasonable fee, but the amount may be adjusted upward or downward to reflect rare and exceptional circumstances. Blum v. Stenson, 465 U.S. 886, 897, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). WMATA challenges Lebron's proposed hourly rates, the number of hours expended on the litigation, and Lebron's request for an upward adjustment of the lodestar.

 I. Litigation on the Merits

 A. The Reasonable Hourly Rate

 The Court should attempt to fix the "reasonable hourly rate" as close as possible to "the prevailing market rates in the relevant community." Blum, 465 U.S. at 895. In determining the market rate for the services of an attorney in private practice, the attorney's customary billing rate will provide a presumptive measure. Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4, 18-25 (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, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1325 (D.C. Cir. 1982).

 Lebron has had several attorneys involved in his case, each of whom is in private practice. Messrs. Weightman and Roth handled the litigation on the merits, and Messrs. Voight and Strauss were engaged to handle the fee petition. Weightman, Roth, and Strauss practice at a firm which maintains a two-tiered fee schedule, with work for public and non-profit clients billed at a lower rate than work for ordinary clients. *fn2" According to the lower fee schedule, Weightman's time was billed at $ 57 per hour prior to February 1984, at $ 65 per hour during the remainder of 1984, and at $ 75 per hour during 1985. Roth, a partner in the firm, charged $ 115 per hour in 1983 and 1984, and $ 130 per hour in 1985. Strauss' time was billed at $ 75 per hour in 1985. Voight, who was retained solely to prepare the fee petition, billed his time at $ 250 per hour in 1985.

 WMATA does not challenge the accuracy of these figures, but argues that they are nevertheless an inappropriate measure because none of the attorneys customarily practiced in the area of First Amendment law. In fact, Lebron's attorneys' principal area of expertise appears to be public utility ratemaking. However, the Court finds, on the basis of other available evidence concerning the market rate for complex federal litigation, that the billing rates suggested for the underlying litigation are reasonable. *fn3" First, the findings of the district court in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371-72 (D.D.C. 1983), rev'd on other grounds, 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), regarding the prevailing rates in this community for complex federal litigation indicate that the hourly rates proposed here by Lebron are slightly lower than those charged by civil rights litigators with comparable years of experience. Second, a survey of the billing rates of a number of larger local firms for "litigation," based on the National Law Journal's 1984 Directory of the Legal Profession, reveals that the fee schedule proposed by Lebron would be at the low end of the range. Although the broad classification "litigation" is less helpful than would be a breakdown according to type of case, Concerned Veterans, 675 F.2d at 1325, the totality of the available data persuades the Court that the hourly rates suggested by Lebron are within the range customarily charged in this community for such work.

 Moreover, while WMATA correctly has noted that Lebron's data are not exactly indicative of the appropriate market rate, WMATA has failed to provide anything more than speculation to support its challenges. Once Lebron provided hard evidence on his attorneys' customary billing rates, and evidence on the prevailing rates for similar work, the burden shifted to WMATA to present specific evidence that the proposed rates are erroneous. Concerned Veterans, 675 F.2d at 1326. The "reasonable hourly rate" is a highly elusive creature, e.g., Blum, 465 U.S. at 895 n.11, and without specific evidence indicating that a lower rate is appropriate, Lebron's showing is sufficient. However, WMATA's broader argument that Lebron's attorneys should not be able to charge the hourly rates of experienced civil rights litigators, while simultaneously expending an inordinate amount of time to familiarize themselves with unfamiliar legal subject matters, is well taken. See Laffey, 746 F.2d at 22. Therefore, the ...


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