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BOOS v. BARRY

January 7, 1989

MICHAEL BOOS, et al., Plaintiffs,
v.
MARION S. BARRY, et al., Defendants


Oliver Gasch, United States District Judge.


The opinion of the court was delivered by: GASCH

OLIVER GASCH, UNITED STATES DISTRICT JUDGE

 In this action plaintiffs successfully challenged the constitutionality of a portion of D.C. Code § 22-1115. Before the Court is plaintiffs' motion for an interim award of attorney's fees and costs. *fn1" Plaintiffs have not requested a hearing and this matter was decided on the briefs submitted by the parties. Because the request for fees is reasonable and well-documented, the Court grants the motion.

 Background

 Plaintiffs brought this action under 42 U.S.C. § 1983 challenging the constitutionality of D.C. Code § 22-1115. This Court entered summary judgment for the defendants in May, 1984. In 1986 a divided court of appeals affirmed. Finzer v. Barry, 255 U.S. App. D.C. 19, 798 F.2d 1450 (D.C. Cir. 1986). In May, 1988, the Supreme Court held that the first clause of section 22-1115 was unconstitutional but upheld the constitutionality of the second clause. Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988). This Court was directed to consider plaintiffs' claims for attorneys' fees and costs.

 The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that in civil rights actions courts "may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The Act was intended to ensure "effective access to the judicial process" for persons with civil rights claims. H.R. Rep. No. 1558, 94th Cong., p. 11 (1976) quoted in Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Consequently, "a prevailing plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'". Hensley, 461 U.S. at 429 (quoting S. Rep. No. 94-1011, p. 4 (1976)). Of course, the amount of the award varies due to the unique circumstances of each case. See id. at 429-30. But an appropriate benchmark is a fee which is "adequate to attract competent counsel, but which [does] not produce [a] windfall[]." Id. at 430 n.4. Counsel for the prevailing party should be paid "'for all time reasonably expended on a matter.'" Id. (quoting S. Rep. No. 94-1011, p. 6 (1976)).

 The D.C. Circuit has addressed the proper degree of discretion for lower courts to exercise when applying section 1988:

 
It is well recognized that the attorney fees provisions are to be liberally applied because the private plaintiff is the chosen instrument of Congress to vindicate a policy that Congress considered to be of the highest priority. District Courts, therefore, have only narrow discretion to deny fee awards. . . .

 Miller v. Staats, 227 U.S. App. D.C. 299, 706 F.2d 336, 340 (D.C. Cir. 1983) (quotations omitted). It is equally clear that fee applications should not evolve into exhausting and litigious battles. National Ass'n of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1324 (D.C. Cir. 1982).

 In plaintiffs' motion for an interim award of attorneys' fees, plaintiffs sought fees and costs in the amount of $ 86,303.11. Plaintiffs declared that the parties had agreed that at least that amount was owed if 42 U.S.C. §§ 1983 and 1988 apply to the District of Columbia. The balance of the motion was devoted to proving that those sections do apply. Defendants' opposition raised three grounds for opposing the award. Replying to the objections made, plaintiffs submitted extensive documentation and revised their request for an interim award to $ 124,569.70. The defendants' three objections and the plaintiffs' responses are evaluated in turn.

 I. Unjust Circumstances

 Defendants contend that there are "special circumstances" justifying the suspension of section 1988 because an award would be "unjust." See Newman v. Piggie Park Enter., 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968) (per curiam); Miller v. Staats, 706 F.2d at 340-43; Commissioners Court of Medina County, Texas v. United States, 221 U.S. App. D.C. 116, 683 F.2d 435, 440-41 (D.C. Cir. 1982). Defendants argue that D.C. Code § 22-1115 protects a federal interest, not a local District of Columbia interest, and therefore it would be unfair for the District to be liable for the plaintiffs' costs of overturning the statute. *fn2" Plaintiffs object to this analysis on three grounds. First, plaintiffs point to an agreement between the parties, referred to by the District itself in its Motion to Extend Time to Respond to Plaintiffs' Motion for an Interim Award. The District explained in that motion that an extension of time was warranted because the parties had reached agreement on most areas of dispute and were continuing to negotiate. Thus, defendants averred, "the Court will be requested to settle the dispute over fees with only a few issues left for the Court to address." Defendants' Motion To Extend Time to Respond to Plaintiffs' Motion for Interim Award of Attorneys' Fees and Costs at 2. The two issues that would be left for the Court were (1) the allocation of costs between the claim on which plaintiffs prevailed and the claim for which they did not and (2) whether the number of hours asserted was reasonable. The motion for extension specifically stated that the issue of liability was settled:

 
Areas of agreement which the parties have now reached include the following: (1) that plaintiffs, in part, are a prevailing party entitled to some fees ; (2) that plaintiffs' hourly rate, while not adequately supported . . . appears to be consistent with the prevailing market rate in this jurisdiction; (3) that the District of Columbia has been held liable for attorney's fees under 42 U.S.C. § 1988 in other cases. . . .

 Id. at 1-2 (emphasis added). Thus, plaintiffs claim, defendants are estopped from contending that they are not liable since they earlier represented ...


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