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MCKENZIE v. KENNICKELL

September 10, 1987

Alfred U. McKenzie, et al., Plaintiffs,
v.
Ralph E. Kennickell, Jr., Defendant



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 The specific question presented and resolved in this Memorandum Opinion is whether or not class plaintiffs in this Title VII protracted litigation who have prevailed on the merits and clearly proved that black workers employed at the United States Government Printing Office ("GPO") were victims of racial discrimination, are entitled to an interim award of attorneys' fees and legal expenses. The interim award is requested pending a determination by the Court of their full entitlement. Counsel for the GPO have stubbornly resisted payment of such an award.

 The legal memoranda of counsel for the parties have been fully considered. For the reasons set forth below, the arguments advanced by the government are rejected.

 I. BACKGROUND

 This Title VII litigation commenced in early 1973. For close to 15 years, the case has been vigorously pursued and hotly contested before both the trial and the appellate courts. On July 2, 1987 the Court approved a Stipulation and Final Order resolving all pending substantive issues. At a fairness hearing, immediately preceding the approval of the Stipulation and Final Order, several plaintiffs testified and summed up the significance of the litigation and the results achieved towards eliminating racial discrimination at the Government Printing Office. Mr. Willis E. Jones, one of the original class plaintiffs who had been employed at the GPO for 24 years before retiring in 1986, announced in open court that the law suit brought "a tremendous amount of improvements in the employment of black employees" and that the litigation resulted in "quite a victory for us." *fn1" The law suit brought about changes leading to eradication of long-existing discriminatory and unlawful employment policies and practices. Plaintiffs' counsel also negotiated a reasonable and fair award of monetary damages for their clients.

 Having ultimately prevailed in their efforts, plaintiffs' counsel now seek reasonable compensation for services rendered over the course of this proceeding. On September 12, 1986 counsel were awarded an interim payment covering legal services provided and expenses advanced on behalf of plaintiffs for an earlier period of the litigation, from 1973-1980. McKenzie v. Kennickell, 645 F. Supp. 437 (D.D.C. 1986). Now that the litigation has been finally resolved on the merits, they seek compensation for legal services rendered and expenses incurred since 1981.

 The government concedes that plaintiffs are entitled to an additional award. Indeed, government counsel stipulated to a provision in the final order of July 2, 1987, that it would attempt to agree on the amount of costs, including reasonable attorneys' fees, to which plaintiffs were entitled. Prior to that commitment, which the Court viewed as having been made in good faith, the government had on hand for review since April 20, 1987, full documentation and support for plaintiffs' fee request. Plaintiffs submitted the data to allow the government to evaluate and determine the reasonableness of the amount requested by plaintiffs and, hopefully, to facilitate a settlement. Yet, five months later, no progress has been made. Contrary to the representation that it would make good faith attempts to agree on an award, it has contested and vigorously challenged every amount claimed. At a recent hearing, government counsel marshalled the usual array of arguments to support its position that plaintiffs' requests were excessive. It reiterated those objections raised in connection with the September 12, 1986 award, contending that the hours claimed were unreasonable, that the request improperly included charges for non-attorney time, that plaintiffs sought compensation for issues upon which they did not prevail, that plaintiffs failed to exercise appropriate billing judgment and cost containment, and that the billing rates exceeded prevailing community rates. Many of the objections could be characterized as minute, feckless and unjustified criticism.

 Following the latest rejection of their fee request, plaintiffs petitioned the Court for immediate relief and requested payment at the very least, of that amount of the total request which the government could not reasonably dispute. Concerned that the request would escalate into a piece of full fledged litigation resulting in further delay of compensation earned and properly due, on August 10, 1987, this Court directed the government to identify an amount that in its opinion represented an irreducible minimum lodestar fee *fn2" to which plaintiffs were entitled. The order required that such amount should be paid "forthwith." That ruling was made because of the government's earlier affirmation that plaintiffs' counsel were entitled to a reasonable award for their efforts. Under the circumstances, it appeared to the Court that the government was in a position to identify an amount that it could not in good faith dispute. In accordance with the August 10 ruling, the government reported that $ 200,000 was an irreducible minimum award to which plaintiffs were entitled.

 However, on the heels of that representation, the government moved for a modification or a stay of the "forthwith" payment provision of the order claiming that it did not allow time for proper consideration of whether or not to pursue appellate review. A stay for a period of 60 days pending such a determination was requested. Alternatively, it requested that the order be modified to provide that payment be made within 60 days.

 Two grounds were advanced to support the motion. Counsel characterized the August 10 ruling as an interim order and contended that it was neither necessary nor appropriate; that interim fees are properly awarded only when counsel have become impoverished as a result of efforts and investment in an action and would otherwise have to abandon the litigation. Since the merits of this proceeding and the substantive litigation have been finally resolved, the government suggested that an interim award would only serve as a "fee-generation technique" to fund and encourage long-term fee litigation. As a second reason, counsel argued that the Court is not empowered to order interim fee awards against the federal government; that the provisions of 31 U.S.C. § 1304(a), governing payment of judgments against the United States, prohibit such awards and only permits payment when a judgment is final under 28 U.S.C. § 2414. The government maintains that the August 10 order was not final until "the Attorney General determines that no appeal shall be taken from a judgment or that no further review will be sought from a decision affirming the same . . . ." 28 U.S.C. § 2414. Since Rule 4(a), Fed. R. App. P., grants the government 60 days to file a notice of appeal, the government argues that, at the very least, it should be granted a stay for 60 days to make a determination whether to appeal the August 10 order.

 In opposing the government's motion, plaintiffs countered and argued that a motion for a stay to permit time to decide whether to appeal is futile because the August 10 ruling is not a final appealable judgment. They also pointed out that the government has conceded that plaintiffs deserve a reasonable award and thus its refusal to pay an undisputed minimum amount is a clear demonstration of bad faith.

 The practical effect of the government's tactics to delay payment is to reduce the value of any award and increase unnecessarily plaintiff's litigation costs. Indeed, the government's present actions are a replay of the same scenario that followed the September 12, 1986 fee award. After that award was made, the government waited until the 59th day before filing a "protective" notice of appeal. The notice automatically stayed the entry of judgment. It then dallied an additional month, until mid-December 1986, before it finally decided to dismiss the ...


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