under judgments against it; as such, these provisions constitute the federal government's waiver of the sovereign immunity that would otherwise obtain as to such awards. In waiving the federal government's sovereign immunity, however, these statutes expressly condition the federal government's payment of money damages upon the plaintiff's having obtained a final judgment. Because the judgment here is not final -- i.e., it has not yet been sustained on appeal -- the Army contends that any award of interim attorney's fees and costs would be inconsistent with 28 U.S.C. § 2414 and 31 U.S.C. § 1304(a). The Army suggests that any award which ignores these statutes constitutes an impermissible encroachment upon the sovereign immunity of the federal government.
The Court rejects the Army's contention, and concludes that it may award interim attorney's fees and costs at this stage of the litigation. In the Court's view, such an award does not violate the sovereign immunity of the federal government.
The Court is not alone in reaching this conclusion. In McKenzie v. Kennickell, 669 F. Supp. 529 (D.D.C. 1987), and in Jurgens v. Equal Employment Opportunity Comm., 660 F. Supp. 1097 (N.D.Tex. 1987), federal defendants presented the same arguments in opposition to an award of interim fees and costs as the Army offers here. The courts in both cases rejected the argument. This Court agrees with the analysis advanced by Brown, and adopted in McKenzie and Jurgens, and will therefore award interim fees and costs in this case.
As noted by the courts in both McKenzie and Jurgens, section 2000e-5(k) constitutes a specific concession by Congress that "the United States shall be liable for costs [including attorney's fees] the same as a private person." This provision clearly manifests Congress' intent to eliminate any distinction in the terms by which a private person and the United States may be liable for costs, including attorney's fees, in a Title VII action. For such purposes, the United States is to stand in the shoes of a private litigant, having waived in section 2000e-5(k) the protections that sovereign immunity might otherwise afford. Library of Congress v. Shaw, 478 U.S. 310, 323, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986) ("In making the Government liable as a defendant under Title VII, Congress effected a waiver of the Government's immunity from suit, and from costs including reasonable attorney's fees.").
This express waiver of sovereign immunity, occurring in a limited, defined context, must control as against the broader, generalized terms of 28 U.S.C. § 2414 and 31 U.S.C. § 1304(a). McKenzie, 669 F. Supp. at 534; Jurgens, 660 F. Supp. at 1102.
Further, the Court finds that payment of interim costs and fees is wholly consistent with the policies underlying section 2000e-5(k). Absent such "bridge" awards, plaintiffs in Title VII actions against the federal government, in this Court's view, would be severely hampered in their search for counsel. Title VII actions of this type are typically lengthy affairs (the instant case being a prime example) which, when taken at all, are almost always taken by counsel on a contingent fee basis. Absent interim infusions of capital in response to early successes, it seems to the Court likely that the balance of risks and incentives which counsel face under these circumstances will be skewed against taking such cases. This effect will directly undermine Title VII's carefully crafted private enforcement structure, of which section 2000e-5(k) is a central part. Jurgens, 660 F. Supp. at 1102-03. As private plaintiffs in these cases already face ample obstacles in their quests for justice, the Court declines to add another by limiting the availability of interim attorney's fees and costs.
Having concluded that Brown will be entitled to an interim award, it remains for the Court to determine the precise amount of that award. Brown seeks a total award of $ 54,309.03. The Army objects to this amount, contending that it almost certainly includes compensation for time spent on claims as to which Brown has not yet been found the prevailing party.
Brown's fee application is adequately supported; the Army's opposition is not. See NAACP v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1337-38 (D.C. Cir. 1982) (Tamm, J., concurring) ("The burden of proceeding then shifts to the party opposing the fee award, who must submit facts and detailed affidavits to show why the applicant's request should be reduced or denied. . . Neither broadly based, ill-aimed attacks, nor nit-picking claims by the Government should be countenanced."). Nevertheless, in fairness, the Army makes a valid point. Much remains in this litigation; Brown can hardly deny that to compensate his counsel for all time spent working on his behalf during the relevant period would effectively compensate them for work regarding issues that have not yet been decided in Brown's favor, and which may never be decided in his favor. Under these circumstances, it seems appropriate to reduce somewhat the amount of the interim award to reflect the fact that certain issues remain outstanding.
Unfortunately, both parties have taken an all-or-nothing approach in their papers; neither have suggested an appropriate reduction of the amount requested in the event the Court decided -- which it has -- to make an interim award, but to limit that award somewhat. Accordingly, it is for the Court to choose, based upon the long record in this case, and again based upon the issues as to which Brown has prevailed with the assistance of present counsel, a percentage by which the amount requested shall be reduced. In the Court's view, a 33% reduction of the amount sought -- producing an award of $ 36,387.05 -- is fair and reasonable.
This figure corresponds to the degree of success that Brown's counsel have obtained for him thus far, while excluding immediate compensation for time spent on issues that have not yet been resolved. The Court will give the parties 10 days from the date of this Order to show why the 33% reduction may be inappropriate. Upon consideration of the parties' submissions, the Court will either modify the reduction to reach what it finds to be the proper figure, or will leave the reduction where it now stands, at 33%.