included in the plaintiff's original calculations. Such work is clerical in nature and not compensable under FOIA's attorney's fees provisions. The Court concludes, therefore, that 26.0 hours of work in preparation of plaintiff's first and second applications for fees should be included in the lodestar calculation.
3. Plaintiff's Hourly Rates are not Excessive.
The defendants' third objection to the plaintiff's calculation of the lodestar is to the hourly rates claimed by the plaintiff for the period of 1981-1986. The plaintiff seeks compensation at the following rates: $ 115 for work performed in 1981-1984; $ 125 per hour for work performed in 1985-1989; and $ 150 per hour for work performed in 1990. The defendants contend that the rates claimed by the plaintiff for work performed during 1981-1986 are excessive in light of this Court's unpublished opinion in Dennis v. Federal Bureau of Investigations, Civ. No. 83-1422, Slip Op. (D.D.C. May 1, 1987). In Dennis, this Court awarded Mr. Lesar, the same attorney who is counsel for the plaintiff in this case, an hourly rate of $ 100 under the attorney's fees provisions of FOIA. This Court also refused to increase co-counsel's hourly rate in Dennis to $ 125 because it found "the prevailing rate for FOIA-related work in the District of Columbia [is] $ 100 per hour." Dennis, slip op. at 3.
However, the plaintiff points out that in a companion case to the present action, an identical schedule of hourly rates was upheld as reasonable. See Allen II, Civ. No. 81-2543, slip op. at 2-3 (D.D.C. Oct. 10, 1989). The plaintiff also resubmits affidavits and evidence that were before Judge Thomas Flannery in Allen II, which support the plaintiff's contention that the proposed rates are comparable to the prevailing market rates in Washington, D.C. during 1981-1986. Finally, the plaintiff contends that the only evidence of the prevailing market rates before this Court in Dennis was counsel's own billing rate of $ 100.
After careful review of the evidence submitted by both parties, the Court concludes that the rates proposed by the plaintiff are reasonable. Although this Court did award a somewhat lower rate in Dennis for FOIA-related work performed during approximately the same time period, the Court here is persuaded by the plaintiff's showing that fees of $ 115 per hour in 1981-1984 and $ 125 in 1985-1989 reflect prevailing rates charged in the local market at those times. Moreover, this finding is consistent with Judge Flannery's determination in Allen II. Therefore, the Court will apply the rates proposed by the plaintiff in calculating the lodestar.
B. Contingency Enhancement of a Portion of the Lodestar.
In King v. Palmer, 285 U.S. App. D.C. 68, 906 F.2d 762 (D.C.Cir. 1990), the Court of Appeals reiterated that Justice O'Connor's two part test set forth in Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 483 U.S. 711, 97 L. Ed. 2d 585, 107 S. Ct. 3078 (1987), governs the availability and amount of contingency enhancements in the circuit. See also McKenzie v. Kennickell, 277 U.S. App. D.C. 297, 875 F.2d 330, 332-35 (D.C.Cir. 1989); Weisberg v. U.S. Dept. of Justice, 270 U.S. App. D.C. 233, 848 F.2d 1265, 1272 (D.C. Cir. 1988); Thompson v. Kennickell, 266 U.S. App. D.C. 452, 836 F.2d 616, 621 (D.C. Cir. 1988). Under Justice O'Connor's test, a plaintiff seeking a contingency enhancement must show: first, whether the relevant legal market compensates for contingency and second, whether the plaintiff would have encountered great difficulty, absent a contingency enhancement, in finding counsel. The Court of Appeals determined, in King, that the relevant legal market for purposes of the first part of this test included "all contingency claims in the District of Columbia, with special reference to those involving complex litigation." King, 906 F.2d at 766. As to the market so defined, the Court held that a 100 percent enhancement was the prevailing market level. Id. It further held that the same percentage enhancement should be applied to the contingent portion of a fee regardless of whether the case was fully or partially contingent. Id. However, fees for time spent securing an award of attorney's fees could not be enhanced. Id. at 769.
The plaintiff asserts he is entitled to a 100 percent enhancement of the lodestar (minus fees associated with the interim award applications) under King.4
The defendants contend that King is not controlling. They argue that the Court of Appeals in King did not address the issue of whether an enhancement of an interim award of attorney's fees is appropriate. Defendants further argue that the only court to address this issue refused to award an enhancement of interim fees. And they contend that an enhancement of the interim award would constitute a "windfall" to the plaintiff.
The Court is hard-pressed to see how an enhancement of the plaintiff's interim award is a windfall at this stage of the litigation. Plaintiff's counsel has pursued this case diligently for nearly a decade without compensation. Because interest awards are not available against the government, the plaintiff will never recoup the value lost due to the delay in receiving fees. The plaintiff should not have to suffer further loss of value by being forced to await the end of the FOIA litigation to receive a contingency enhancement for work already completed.
Furthermore, the defendants suggest that the proper time for a contingency enhancement of an interim award is at the end of the document production phase of the FOIA litigation. But this case has all but reached the end of this phase. And as the Court has previously indicated, the defendants are responsible for the delay in the completion of the document production phase; thus, their right to object to the timing of the enhancement is questionable. Therefore, the Court finds that a 100 percent contingency enhancement is a reasonable part of the plaintiff's compensation. In compliance with King, the Court excludes from the lodestar, any fees attributable to the plaintiff's first and second applications for attorney's fees, and award the 100 percent enhancement to the remaining portion.
For the above stated reasons, the Court awards the plaintiff a lodestar of attorney's fees in the amount of $ 25,932.50.
The lodestar includes $ 8,360.00 in reimbursement for time spent on attorney's fees issues.
The Court subtracts this amount from the lodestar and enhances the remaining portion by 100 percent. These calculations result in a final award of attorney's fees in the amount of $ 43,505.
Plaintiff Allen's costs, $ 276.02, are added to this figure and the sum of $ 43,781.02 is awarded to the plaintiff. An appropriate order is attached.
ORDER - October 25, 1990, Filed
Upon consideration of plaintiff's Second Application for an Interim Award of Attorney's Fees and Costs; defendant's brief in opposition; plaintiff's reply; supplemental papers supporting and opposing the application; the entire record; and for the reasons set forth in the accompanying opinion, it is by the Court this 25th day of October 1990,
ORDERED that the plaintiff Mark Allen is awarded interim attorney's fees in the amount of $ 25,932.50; it is further
ORDERED that the plaintiff is awarded a 100 percent contingency enhancement of a portion of the above award, in the amount of $ 17,572.50, and costs in the amount of $ 276.02; it is further
ORDERED that the defendants pay to the plaintiff the total amount of $ 43,781.02 within 60 days of this order.
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