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THOMPSON v. KENNICKELL

March 30, 1989

DOROTHY M. THOMPSON, et al., Plaintiffs,
v.
RALPH E. KENNICKELL, JR., Public Printer, Defendant



The opinion of the court was delivered by: RICHEY

 Like an old, unwanted shoe that continues to turn up, this matter is again before the Court on remand from the Court of Appeals. In Thompson v. Kennickell, 266 U.S. App. D.C. 452, 836 F.2d 616 (D.C. Cir. 1988), the Court of Appeals decided several issues relating to plaintiffs' application for attorney fees, but remanded for decision on two others. The remaining issues are: (1) the historical hourly rate at which Roderic V.O. Boggs should be compensated for time spent in this litigation; and (2) whether a contingency enhancement should be applied to the lodestar figure for all attorneys in this litigation. In addition, as to the first issue, the Court of Appeals specifically directed this Court to determine whether a 1978 settlement agreement that Mr. Boggs filed in an unrelated case, in which he stipulated to an hourly rate of $ 60, establishes his normal hourly billing rate for purposes of this matter.

 As described further below, the Court finds that Mr. Boggs' 1978 stipulation is legally irrelevant to a determination of the reasonable hourly rate plaintiffs are entitled to receive for Mr. Boggs' services in this lawsuit. Instead, the Court concludes that Mr. Boggs' hourly rate should be set by reference to rates charged during the same period by the law firm of Hogan & Hartson. Further, the Court agrees with the plaintiffs that a contingency enhancement of 100% is necessary and appropriate in the circumstances of this case. The record indicates that the local private market for legal services treats contingent fee cases, as a class, differently than non-contingent fee cases. The record further indicates that, absent a contingency enhancement of the magnitude here sought, the plaintiffs would have faced substantial difficulties in finding counsel in the local market. Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711, 107 S. Ct. 3078, 3089, 97 L. Ed. 2d 585 (O'Connor, J., concurring) (establishing criteria for contingency enhancements). Thus, the Court awards the plaintiffs a total attorneys' fee of $ 1,732,700. *fn1"

 I. MR. BOGGS' HOURLY RATE

 A. The 1978 Stipulation in the Bryant Litigation

 The Court first addresses the significance of the 1978 stipulation Mr. Boggs executed in settling Bryant v. Benevolent and Protective Order of Elks, C.A. No. H-75-1864 (D. Md. 1978). The Court of Appeals appears to have attached some importance to the stipulation, remanding the matter to this Court for a determination of whether the stipulation establishes Mr. Boggs' "normal hourly rate." Thompson, 836 F.2d at 620. *fn2" The Court of Appeals expressly directed this Court to assess the stipulation in light of the standards articulated in Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4, 15-25 (D.C. Cir. 1984), Save Our Cumberland Mountains, Inc. v. Hodel, 263 U.S. App. D.C. 409, 826 F.2d 43, 47-50 (D.C. Cir. 1987)(panel decision), and Blum v. Stenson, 465 U.S. 886, 892-96, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). Thompson, 836 F.2d at 620.

 The Court concludes that Mr. Boggs' 1978 stipulation is of no significance whatsoever. First, two of the decisions that the Court was to consider on remand -- Laffey and the panel decision in Cumberland Mountains -- no longer represent controlling authority, having been found to depart from the teachings of the third and necessarily dispositive case, Blum. See Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988)(en banc opinion)(reversing Laffey in substantial part and vacating the panel decision in Cumberland Mountains). What is of more importance, however, the reasoning of the en banc opinion in Cumberland Mountains, which resurrected and reinstated the true teachings of Blum in this Circuit, makes clear that even if Mr. Bogg's 1978 stipulation is what the Government claims it is -- an accurate statement of the value Mr. Boggs attached to his services in 1978 *fn3" -- that fact is without legal significance.

 The reasoning of the en banc opinion in Cumberland Mountains implicitly but clearly rejected that view. Cumberland Mountains held that a private attorney, who actually charges below-market hourly rates to certain "worthy" clients, will not be limited to those below-market, "actual" rates should his or her "worthy" clients prevail. Instead, the private attorney will be entitled to a fee award based upon higher, prevailing market rates. Cumberland, 857 F.2d at 1524. The fact that the lower, below-market rate may have been, or will be in the future, sufficient actually to obtain the attorney's services is without significance. The concept of opportunity cost (as embodied in an attorney's actual, below market billing history) as a measure of an appropriate fee award no longer controls. See Laffey, 746 F.2d at 32 n.3 (Wright, J., dissenting)(cases relied upon in legislative history of 42 U.S.C. ┬ž 1988 "make clear that Congress did not intend to use historical billing rates as a cap on fee awards") (cited approvingly in Cumberland Mountains, 857 F.2d at 1523 (en banc opinion). A recent decision of the Supreme Court further confirms that an attorney's actual fee expectations when he or she assumes representation are irrelevant to the computation of a fee award. Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989)(maximum fee award not limited by contingent fee contract based upon percentage of damages).

 The en banc decision in Cumberland Mountains was hardly revolutionary. In fact, it simply returned the rule of this Circuit to first principles, as originally expressed in Blum v. Stenson, 465 U.S. 886, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). In Blum, the Supreme Court held that a "reasonable fee" is "to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel." Id. at 895 (emphasis added). Blum nowhere suggests that opportunity cost is in any way relevant to the calculation of a reasonable fee. Indeed, Blum expressly rejects that position. *fn5" Thus, Blum refutes the contention that an attorney's actual billing history, as an indicium of what is required to attract that attorney's services, bears any relevance to the calculation of a reasonable fee.

 The foregoing establishes that Mr. Boggs' 1978 stipulation in the Bryant litigation is irrelevant to this action. The Court of Appeals implied, and the Government now contends on remand, that the stipulation shows what Mr. Boggs regarded as the worth of his services. The Government argues that because $ 60 an hour, by Mr. Boggs' own admission, could purchase his services in 1978, he need only be compensated at that level for 1978, and, presumably, at a proportionately low level for the remaining years in question. *fn6" The Court of Appeals undoubtedly meant the same thing when it said that:

 
We see no reason why the stipulation -- if it provides evidence of [Mr. Boggs'] customary billing rate -- does not reflect "the opportunity cost of foregone representations." Laffey, 746 F.2d at 18. Accordingly, the stipulation may provide evidence of the presumptively reasonable rate for public-interest counsel.

 Thompson, 836 F.2d at 620. Yet, because Cumberland Mountains implicitly rejected the contention that opportunity costs -- as contemplated by the Court of Appeals in Thompson and by the Government on remand -- play any role in establishing a reasonable fee, this Court refuses to attach any significance to Mr. Boggs' 1978 stipulation. Under Blum, and under the en banc decision in Cumberland Mountains, the ...


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