The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, United States District Judge.
The plaintiff filed this action pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. After a trial the Court entered judgment for the plaintiff granting much, if not all, of the relief she requested. Thereafter, pursuant to the ADEA, the plaintiff sought an award for attorney's fees and costs. See 29 U.S.C. § 626(b). She states that the parties discussed the matter to determine whether their differences on the amount of fees could be settled and when an agreement could not be reached, she moved for an award of attorney's fees and costs.
In her motion, the plaintiff represents that her attorney, Walter C. Wallace, calculated his fee at $ 75.00 per hour. He states that the total hours worked amount to 551 1/2 resulting in a total "lodestar" figure of $ 41,362.50. In addition, the plaintiff requests an upward adjustment of 50 percent for risk of nonpayment and 50 percent for delay in payment, or a total adjustment of 100 percent making for a total request for fees in the amount of $ 82,725.00. In addition, the plaintiff requests an award for costs in the amount of $ 1,576.02, making for a total award for attorney's fees and costs in the amount of $ 84,301.02.
The defendant objects to an award in the above amount. It does not oppose the proposed award for costs, does not oppose an award for attorney's fees, does not seriously object to the lodestar of $ 75.00 per hour but, does oppose an award based on 551 1/2 hours and also opposes an award which would include an upward adjustment.
"Any fee-setting inquiry begins with 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, 401, 641 F.2d 880, 891 (1980). See also, Murray v. Weinberger, 239 U.S.App.D.C. 264, 741 F.2d 1423 (1984); National Association of Concerned Veterans v. Secretary of Defense, 219 U.S.App.D.C. 94, 675 F.2d 1319 (1982). Here, the defendant does not really dispute the hourly fee claimed by counsel for the plaintiff although it does state that plaintiff's counsel has submitted no evidence of his customary rate or that the $ 75.00 rate was actually charged by others. Plaintiff's counsel has filed an affidavit responding to that issue. He states that his customary rate for legal services during the period worked in this case, namely 1977 until and including 1980, was $ 75.00 per hour. He also states that his current market rate would be between $ 150 to 175 per hour. Based upon the affidavit and the amount of the hourly rate charged, the Court is satisfied that $ 75.00 is a reasonable hourly rate. Thus, that portion of the "lodestar" is settled; he is entitled to receive $ 75.00 per hour.
Defendant argues that the total hours charged for the prosecution of this case is excessive, and it suggests that the Court should limit that amount to 200 hours which defendant feels is reasonable under the facts of this case. Defendant bases its argument, in part, on Harmon v. San Diego County, 736 F.2d 1329 (9th Cir. 1984). In Harmon, the plaintiff brought an action pursuant to Title VII of the Civil Rights Act of 1964 and, after prevailing, requested an award of fees in the amount of $ 98,562.18, including a 1.75 multiplier, and costs in the amount of $ 6,721.39. After a hearing, the District Court awarded the plaintiff $ 15,000 in attorney's fees and $ 724.17 in costs. The appellate court noted that the trial court reviewed the application for fees and costs and concluded that 454.2 hours was unreasonable in that case and made a determination that "any time in excess of 200 hours was frivolously spent." 736 F.2d at 1331. Defendant argues that this Court should do the same and that, based upon the nature of the case and the limited issues involved, the Court should set a limit of 200 hours as reasonable, and make its award based upon that figure.
This Court declines to accept defendant's suggestion. Each case is different and each case must be judged on its own facts. Moreover, the Court does not have the benefit of the trial court's opinion in Harmon and therefore cannot make a valid comparison of the facts there with those in the instant case. Additionally, there is a danger in suggesting to litigants in discrimination suits that they have a limited amount of time allotted to put their case together and present it for trial. This is especially true where the plaintiff does not have total control over the litigation. For example, the actions of the defendant may very well delay the proceedings and require the plaintiff to expend additional time in attempting to obtain evidence which plaintiff may feel is necessary. And, as counsel in this case has pointed out, it is not enough to measure an attorney's work load by what is actually filed in court because based upon a tactical decision, although counsel may be prepared to file additional material, he may decline to do so for any number of reasons. The fact that counsel may charge an hour for the preparation of a two page letter is not necessarily indicative of the time and research expended in preparing the letter. For all of these reasons, the Court concludes that it would be unfair to set some arbitrary figure and the "reasonable" time necessary to prepare a case for trial and, accordingly, the Court rejects the argument that it should allot plaintiff 200 hours for the preparation of this case.
Defendant argues next that the time charged for specific items performed by counsel is unreasonable. In support of this argument, the defendant challenges 22 separate items of work performed by plaintiff's counsel and seeks to demonstrate that counsel either overcharged for that work, or used an unusual amount of time to complete his task. Defendant's Memorandum in Response to Motion for Attorney's Fees and Costs at Part II. At first glance, defendant's point appears to be well taken with respect to some of the items claimed by plaintiff's counsel. But, as this Court has noted above, while it may take only five minutes to dictate, review and sign a letter, the actual preparation of that letter may consume more time based upon counsel's consideration of what the letter should or should not contain. That may be a tactical decision, and unless the Court can find that the time is clearly unreasonable, the claim should be allowed.
In response to the defendant's itemized attack on his claim, plaintiff's counsel filed a lengthy and detailed affidavit consisting of 36 pages. He addresses each of the 22 items objected to by the defendant. In the view of this Court, he has adequately explained each of the items, and the time used thereon. The one item that raised some concern was item 20 in which plaintiff's counsel claimed 34.5 hours for preparation of responses to defendant's interrogatories relating to the expert witness plaintiff intended to call at trial. The response prepared by plaintiff's counsel is detailed and complete. He sets forth the 12 opinions the expert expected to express during the trial and additionally sets forth, by reference to the depositions of defendant's witnesses, those facts upon which he bases his opinion. See Defendant's Opposition Exhibit DD. These answers were not volunteered by plaintiff, but were given in response to interrogatories propounded by defendant which required detailed responses. After reviewing defendant's interrogatories, plaintiff's responses thereto, and the supporting affidavit filed by Mr. Wallace, the Court cannot say that the claimed hours are unreasonable.
After carefully reviewing Part II of defendant's opposition and the responses thereto, the Court concludes that the defendant's objections are not well taken and that the time expended by plaintiff's counsel was reasonable.
Another issue raised by defendant is whether the plaintiff is entitled to recover counsel fees for her attorney's services relating to her unemployment compensation claim. The amount involved is relatively small, approximately $ 806.25. While it is true that she did not prevail on this claim, the plaintiff's attorney sets forth the reasons why he felt it was necessary to pursue this claim in relation to plaintiff's discrimination action. He correctly notes that one of the issues in the discrimination case was whether she voluntarily took leave of her job at the defendant's restaurant. She contended throughout that she did not and she ultimately prevailed on that issue before this Court. As her counsel notes, this issue must be judged on the state of the law in 1977. At that time he felt it was necessary to pursue the unemployment compensation claim in order to protect her rights. See Wallace affidavit at 3-8. Under the circumstances, the Court concludes that this portion of the claim is proper and the claim will be allowed.
The final issue before the Court is whether it should allow for an upward adjustment in the fee award. As the Supreme Court has noted: "Where a plaintiff has obtained excellent results, [her] attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified." Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 1940, 76 L. Ed. 2d 40 (1983). But this does not mean that an attorney is entitled to an upward adjustment as a matter of course, or simply because the action involves a claim of discrimination. The ultimate issue is whether enhancement is necessary in order to provide fair and reasonable compensation. Blum v. Stenson, 465 U.S. 886, 901, 104 S. Ct. 1541, 1550, 79 L. Ed. 2d 891 (1984). Where there is a request for enhancement, the plaintiff has the burden of demonstrating that her attorney is entitled to an upward adjustment.
Here, counsel for the plaintiff seeks an upward adjustment for risk of nonpayment and delay in payment. He seeks a ...