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
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 appeal. Even then, plaintiffs did not receive the award until March 27, 1987, a delay of more than six months after the Court's opinion was issued.
The government's "pauperization" principle is contrary, both to case law and the purposes behind the fee shifting statute. 42 U.S.C. § 2000e-5(k). The principle would require counsel to litigate themselves into the poor house before they could collect an interim fee. It would reduce the availability of interim awards and result in discouraging counsel from taking on deserving Title VII litigation.
Both our Circuit and the Supreme Court have affirmed "the propriety of an interim award once discrimination has been established." Grubbs v. Butz, 179 U.S. App. D.C. 18, 548 F.2d 973, 977 (D.C. Cir. 1976). In Bradley v. School Board of City of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), Justice Blackmun, in speaking for the Supreme Court, explicitly endorsed the liberal use of interim awards to minimize losses due to delay in payment when he concluded
to delay a fee award until the entire litigation is concluded would work substantial hardship on plaintiffs and their counsel, and discourage the institution of actions despite the clear congressional intent to the contrary evidenced by the passage of [the act].
Bradley, 416 at 723. Indeed, Justice Blackmun's analysis undermines the government's claim that interim awards are only justified if counsel would otherwise run out of money to continue the litigation. The government's theory contravenes the very purpose behind the fee shifting statute to ensure effective access to the judicial process for persons who have claims under the civil rights laws. S. Rep. No. 1011, 94th Cong., 2d Sess. 2-6 (1976), U.S. Code Cong. & Admin. News 1976, 5908, 5909-5913. In enacting the fee provision, Congress recognized that
in many cases . . . . the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.