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March 5, 1987

Michael Lebron, Plaintiff,
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 Court accepts Lebron's proposed fee schedule, but reviews Lebron's time records in the context of comparably experienced civil rights litigators, and strikes hours that appear to be based on counsel's relative inexperience with this area of the law.

 B. Reasonable Hours

 The second element in the lodestar formula is the number of hours reasonably expended on behalf of the prevailing party. To determine the number of hours reasonably expended, the Court must first determine the particular services for which Lebron is entitled to attorneys' fees. In this case, the parties disagree over Lebron's right to recover the cost of his attorneys' pre-litigation negotiations with WMATA, and for certain claims upon which Lebron did not ultimately prevail. Once the compensable services are identified, the Court examines the amount of time expended on each to ensure that a reasonable number of hours is claimed.

 1. Compensable Services

 Lebron's fee petition includes 22.25 hours spent in pre-litigation efforts to persuade WMATA to accept his poster. These hours included basic research on the potential First Amendment issues as well as research on WMATA's advertising policies. The Supreme Court addressed the compensability of time spent pursuing administrative relief in Webb v. Board of Education of Dyer County, 471 U.S. 234, 105 S. Ct. 1923, 85 L. Ed. 2d 233 (1985), and concluded that time spent pursuing optional administrative relief ordinarily would not be compensable under 42 U.S.C. § 1988. Id. at 1928. The Supreme Court did note, however, that portions of such work would be compensable to the extent that the effort "was work that was both useful and of a type ordinarily necessary to advance the civil rights litigation . . . ." Id. at 1929. Accordingly, the Court will allow Weightman's hours devoted to initial research and client interviews (9.5 hours), but will reduce the compensable hours devoted to correspondence with WMATA from 12.75 hours to 6 hours. *fn4" This reduction represents the Court's effort to separate the compensable time spent obtaining necessary information from WMATA and building a record for future judicial review from the non-compensable time spent pleading Lebron's case before WMATA personnel.

 WMATA also challenges Lebron's entitlement to fees related to several claims upon which Lebron did not prevail at trial or appeal. First, WMATA argues that the lodestar should not include hours devoted to Lebron's claims against individual defendants, because Lebron ultimately prevailed only on his claims against WMATA. Second, WMATA challenges Lebron's submission of hours devoted to an unsuccessful effort to have the Court impose sanctions on WMATA pursuant to Fed. R. Civ. P. 11.

 In Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), the Supreme Court explained the process to be used by courts in determining whether a party has "prevailed" on a particular claim. When a prevailing party seeks attorneys' fees for time spent on unsuccessful claims, two considerations are relevant: the legal and factual relation of the unsuccessful claims to the successful claims, and the moving party's overall degree of success. Id. at 435. When a group of claims involves "a common core of facts or . . . related legal theories," it would be improper to view the suit "as a series of discrete claims . . . ." Id. Similarly, when a party has received "excellent results," courts should not unduly penalize the party for pursuing that relief on alternative grounds. Id. "Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters." Id.

 Both of the Hensley factors support inclusion of the hours spent on Lebron's individual claims. Although eventually dismissed, the claims sought the same relief sought under Lebron's successful claim against WMATA and were based on the same set of facts and legal theories, as were the successful claims. The only difference between the individual and institutional claims was the defendants' amenability to suit. Therefore, the individual claims are sufficiently related to the institutional claims to support inclusion in the fee award. Cf. City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986) (upholding award of attorneys' fees for time spent on individual claims, even though dismissed on summary judgment).

 The unsuccessful motion for sanctions presents a more attenuated case. During the original litigation in this Court, WMATA failed to file a timely opposition to a motion by Lebron. The Court denied Lebron's request for sanctions and granted WMATA a short extension of time within which to file its opposition. While the sanctions motion was "related" to Lebron's substantive claims, its legal and factual basis was not so intertwined that an independent determination of Lebron's success would be impractical or unjust. Nor is this the case of a collateral motion intended to enforce or expand the scope of relief ultimately available to the successful party. See Laffey, 572 F. Supp. at 363; Blake v. Hoston, 513 F. Supp. 663, 666 (D.D.C. 1981). Consequently, the motion must stand on its own merits. Although Lebron contends that the motion was successful because WMATA thereafter adhered to the Court's time limits for filings, the Court concludes that Lebron should not be considered a "prevailing party" with respect to his sanctions motion and the 9.25 hours (three hours of research and 6.25 hours of drafting) thus expended by Weightman should be stricken.

 2. Reasonableness of Hours

 As noted above, a major concern in this case is the relative inexperience of Lebron's counsel in litigating First Amendment cases. Prior to this case, Lebron's attorneys had practiced primarily in the area of public utility ratemaking, and admittedly took on this matter in a pro bono capacity. Although it is fine that Weightman and Roth made their services available in a case which if unsuccessful, would have provided no fee, the Court must take account of the fact that they volunteered to enter a relatively unfamiliar area of the law. Laffey, 746 F.2d at 22. If Lebron's attorneys are to be compensated at the market rate for First Amendment litigators, they may be compensated only for the number of hours that a First Amendment litigator, with a comparable number of years of experience, would take to complete a particular task. The Court has a duty to scrutinize the record and strike "hours that are 'excessive, redundant, or otherwise unnecessary . . . .'" Murray v. Weinberger, 239 U.S. App. D.C. 264, 741 F.2d 1423, 1427 (D.C. Cir. 1984) (quoting Hensley, 461 U.S. at 434).

 The Court notes at the outset that Lebron's attorneys have facilitated review of the record by providing detailed chronologies of how they spent their time litigating this case. This day-to-day record, compiled from the attorneys' contemporaneous time records, allows the Court to assess the reasonableness of the time spent on particular tasks. See 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). The Court addresses WMATA's challenges according to the categorical groupings used by WMATA in its opposition.

 a. Pretrial and Trial Preparation

 Weightman claims 16 hours in preparation for and attendance at the hearing on the temporary restraining order, and 41.75 hours in preparation for and attendance at the consolidated preliminary injunction hearing and trial on the merits. WMATA challenges the time as excessive, claiming that Weightman has attempted to charge for the time spent on "self-education." WMATA requests reduction to four hours for the TRO hearing work and 10 hours for the trial work. The Court does not find 16 hours to be an excessive amount of time to spend in performing preliminary research, preparing for, and arguing a TRO motion, especially since Weightman's supervising partner has submitted only 0.25 hour for his involvement in preparing for the TRO hearing.

 However, upon reviewing the record, the Court concludes that a portion of Weightman's time spent preparing for the trial is attributable to his lack of familiarity with constitutional litigation. Although Weightman is not expected to exercise the skills of a First Amendment expert, he is expected to exercise the skills of a second-year associate practicing as a First Amendment litigator. Accordingly, the Court concludes that Weightman's time spent in "strategy sessions" should be reduced from 7.25 hours to 4.5 hours, his time spent preparing and reviewing case materials should be reduced from 18.5 hours to 12 hours, and his time spent interviewing potential witnesses should be reduced from 6.5 hours to 4 hours. The total time claimed thus is reduced from 41.75 hours to 30 hours.

 Roth, the supervising partner, devoted a total of 15 hours to the case between December 2, 1983, and trial on February 9, 1984. WMATA does not challenge the reasonableness of that time, and the Court concludes that 15 hours is reasonable.

 b. Research

 Legal research represents a significant portion of the total hours claimed by Weightman -- 85.75 hours on matters before the trial court and 123.25 hours at the appellate level -- as well as the area in which a lack of experience in First Amendment litigation is most likely to have affected attorney efficiency. *fn5" Although this case should not be considered simple, the Court believes that research time would have been considerably less if at least some of the experience of Weightman and Roth had been in First Amendment litigation rather than in public utility ratemaking.

 Therefore, the Court concludes that legal research hours between the TRO hearing and trial should be reduced from 73.25 hours to 40 hours, and research hours for the proposed findings of fact should be reduced from 9.25 hours to 4.5 hours. With respect to the appeal, research on injunctions pending appeal should be reduced from 43 hours to 20 hours, and research for the appellate briefs should be reduced from 93 hours to 40 hours. The Court does not understand, nor does Lebron's fee petition make particularly clear, why an additional 93 hours of research were required to brief for the Court of Appeals essentially the same issues which were considered at the trial level. Research hours for the supplemental mootness brief should be reduced from 28.75 hours to 20 hours.

 WMATA also challenges 25 hours of law clerk research on the issues of qualified and sovereign immunity, on the grounds that this research involved individual claims upon which Lebron did not prevail. The Court rejected this argument above, and thus the hours are not inappropriate on those grounds. Moreover, the Court notes that research on sovereign immunity would have related to WMATA, not the individual defendants. Therefore, the 25 hours of law clerk time will be approved.

 c. Drafting

 WMATA also challenges Lebron's attorneys' hours for drafting pleadings and other papers. Weightman claims 86.25 hours drafting and editing the pleadings before the trial court, 27.25 hours drafting proposed findings of fact and conclusions of law, 61.25 hours drafting pleadings seeking an injunction pending appeal, 24.5 hours drafting the reply brief, and 23 hours drafting the supplemental mootness brief. Clearly, 222.25 billable hours, the equivalent of six or seven solid weeks worth of work, is an excessive amount of time to spend drafting the pleadings in this case. Although it is likely that this was primarily due to the fact that Weightman was only a first- or second-year associate, a portion of the inefficiency must be traced to his and Roth's inexperience in the First Amendment area. Accordingly, the Court believes that the trial court drafting time should be reduced to 65 hours, the proposed findings of fact and conclusions of law time should be reduced to 20 hours, and the pleadings for an injunction pending appeal should be reduced to 45 hours. The drafting hours for the appellate briefs are reasonable and will not be reduced.

 Roth devoted a total of 12.5 hours to reviewing and editing the motions for injunction pending appeal and the appellate briefs. WMATA does not challenge this total (except to draw reference to the great disparity between Roth's time and Weightman's time) and the Court finds that it is reasonable.

 d. Oral Argument

 WMATA challenges Weightman's claim of 25 hours and Roth's claim of nine hours preparing for and attending oral argument before the Court of Appeals. Weightman actually recorded a rather remarkable 76.5 hours preparing for the argument (almost two full 40-hour weeks), but excluded 51.5 hours in the exercise of billing judgment. The Court finds that 23 hours is not an unreasonable preparation time for a second-year associate about to argue a case before a United States Court of Appeals, and seven hours is not an unreasonable amount of time for the supervising partner. The Court will, however, strike Roth's claim for 0.75 hours to "evaluate" Weightman's oral argument, and Weightman's claim for 2.25 hours to "review" the oral argument. Those costs are not appropriately passed on to a client or, in this case, to the losing party.

 e. Allocation of Tasks

 WMATA objects to Weightman's performance of tasks that arguably could have been performed less expensively by paralegals. When a fee petition is based on a firm's normal billing rate, a court should be hesitant to challenge an allocation of tasks that is consistent with the firm's normal staffing practice. Laffey, 746 F.2d at 25-26. Here, WMATA challenges Weightman's claim of 1.25 hours spent filing the complaint and amended complaint, 15.75 hours spent assembling record cites for the proposed findings of fact and conclusions of law, and 19.25 hours spent assembling record cites for the appellate brief. Weightman concedes that a portion of the time spent assembling record cites was devoted to proofreading, but claims that a large portion was devoted to discretionary selections that must be performed by the attorney. Clearly, the filing of documents with the Court should be delegated to support staff. Likewise, the proofreading of documents for typographical errors should be delegated. Therefore, the Court will allocate the 1.25 filing hours and seven of the remaining hours to paralegal work.

 Lebron claims an additional 32.5 hours of law clerk time for cite checking and research, and 10 hours of paralegal time. WMATA's only challenge to these claims is with respect to 25 hours of law clerk research related to claims against the individual defendants. Because the Court must reject WMATA's argument that the individual claims are "unrelated" to the institutional claims and therefore non-compensable, these hours will be included in the fee award. Accordingly, Lebron will be awarded fees for 32.5 hours of law clerk time and 18.25 hours of paralegal time.

 f. Miscellaneous

 Weightman claims eight hours and Roth claims 1.5 hours in connection with settlement negotiations. These hours are not excessive, and will be approved. Additionally, Weightman's fee submission includes 28.25 hours for conferences with Lebron and other attorneys, 14.25 hours spent reviewing WMATA's pleadings and this Court's orders, and three hours to draft minor pleadings. Roth claims a total of 8.25 hours for general supervisory tasks during the time period between the denial of the TRO and the final decision in the Court of Appeals. WMATA does not seriously challenge these claims and the Court finds them reasonable.

 3. The Lodestar The lodestar for Weightman's and Roth's work on the merits is calculated as follows: Services Attorney Rate Hours Total Administrative work useful Weightman $ 57 15.5 $ 883.50 and necessary to litigation Preparation for and attendance Weightman 57 20.0 1,140.00 in court " 65 35.0 2,275.00 Roth 115 24.0 2,760.00 Research Weightman 57 40.0 2,280.00 " 65 84.5 5,492.00 law clerks 35 32.5 1,137.50 Drafting Weightman 57 65.0 3,705.00 " 65 112.5 7,312.50 Roth 115 12.5 1,437.50 Conferences, review of Weightman 57 31.25 1,781.25 pleadings, drafting minor pleadings " 65 14.25 926.25 Roth 115 8.25 948.75 Settlement negotiations Weightman 65 8.0 520.00 Roth 115 1.5 172.50 Document handling paralegal 32 18.25 584.00 $ 33,356.25


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