fees in the amount of $ 46,970.25 and costs in the amount of $ 3,796.96 are awarded to trial counsel without objection.
Plaintiffs' appellate counsel, different from plaintiffs' trial counsel, have requested on behalf of all eight plaintiffs an award of fees and costs for work performed on appeal. The defendants have challenged that request, primarily on the grounds that the five plaintiffs who ultimately succeeded in their § 1981 claims did not "prevail" on the two main appellate issues resolved by the Circuit and that the three plaintiffs who had their entire case dismissed cannot be said to have prevailed at all.
Defendants' attempt to bifurcate a determination of whether plaintiffs prevailed on appeal from whether plaintiffs prevailed at trial for purposes of determining eligibility of fees is rejected. Defendants have not cited any authority for their position, and the language of the fees statute and of Supreme Court opinions applying the statute do not appear to support defendants' contention. Section 1988 refers to any "action or proceeding" to enforce the enumerated civil rights provisions and does not distinguish between trial and appellate stages. In addition, the Supreme Court has directed lower courts resolving fee requests to examine whether "resolution of the dispute" changed the legal relationship between the parties, Texas State Teachers Ass'n, 489 U.S. at 792 and whether the plaintiff succeeded on any significant issue "in litigation." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). That language strongly indicates that whether a party "prevailed" as that term is used in § 1988 is determined by examination of the entire case and not at various stages of the litigation. As one court articulated, "[A] proposed bifurcated definition of the prevailing party is lacking in logical force. Regardless of how many courts consider this matter, it is only one lawsuit with only one prevailing party." Clymore v. Far-Mar-Co, Inc., 576 F. Supp. 1161, 1164 (W.D. Mo. 1983). See also Alizadeh v. Safeway Stores, Inc., 910 F.2d 234, 237-38 (5th Cir. 1990) (Even though defendant did not prevail on an initial appeal, it ultimately prevailed on the merits of the litigation and was therefore entitled to fees incurred for work done on the appeal.) Given that Dougherty, Buckler, Watts, Ford, and Flaherty ultimately succeeded in their § 1981 claims and were determined by this Court and the Court of Appeals to be entitled to both declaratory and monetary judgments, those plaintiffs are eligible for the reasonable fees and costs incurred on both the trial and appellate levels, including fees and costs incurred in defending on appeal specific issues which were ultimately decided against them.
Although Dougherty, Buckler, Watts, Ford, and Flaherty are eligible for reasonable fees and costs incurred on appeal, Bowerman, Elmore, and Phillips are not. Those three plaintiffs were ultimately denied all requests for monetary, injunctive, and declaratory relief. In addition, because all plaintiffs had resigned from the fire department more than two years before their Title VII action was commenced, defendants' withdrawal of their challenge to this Court's finding of discriminatory action could not have materially altered the legal relationship between the parties. See Rhodes v. Stewart, 488 U.S. 1, 4 (two plaintiffs who received a declaratory judgment that a prison policy was illegal could not be considered prevailing parties because one had died and the other was paroled before the judgment was issued); Hewitt, 482 U.S. at 763-64 (plaintiff could not be considered a prevailing party under § 1988 because he received no formal judicial relief and because even if his suit could be found to be the direct cause of an amended prison regulation, he had long since been released from prison and could not enjoy the benefit of the policy change). Accordingly, the prerequisites for fees and costs not having been met, the portion of plaintiffs/appellees' motion seeking fees and costs for Bowerman, Elmore, and Phillips is denied.
Once a finding of eligibility for fees has been made, a "lodestar" must be determined, which is equal the hours reasonably expended by counsel multiplied by a reasonable hourly rate. See Nat'l Ass'n of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1323 (D.C. Cir. 1982); Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 891 (D.C. Cir. 1980). The calculation of the reasonable hours expended requires a computation of the actual amount of hours worked and a determination of the amount of those hours that were reasonably incurred. See Copeland at 891. It is the party seeking to recover fees that bears the burden of establishing the amount and reasonableness of hours worked. See Nat'l Ass'n of Concerned Veterans at 1327.
Because the plaintiffs have not separated the hours worked and costs incurred solely on behalf of the five prevailing plaintiffs from the hours and costs expended on behalf of the three plaintiffs that did not prevail, and because plaintiffs have not sufficiently shown that the same amount of fees and costs would have been incurred regardless of whether the three nonprevailing plaintiffs were involved in the appeal, the Court will not compute at this time the amount of appellate fees and costs to which plaintiffs are entitled. Although plaintiffs' counsel have indicated that segregating the hours worked and costs incurred on behalf of the prevailing and nonprevailing plaintiffs may be impossible and that the same amount of attorneys' fees and expenses would have been incurred had only the § 1981 case been prosecuted, see Plaintiff's Settlement Conference Statement at 6-7, counsel have not sufficiently supported those assertions. Accordingly, counsel are directed to attempt to segregate hours worked and costs expended for Dougherty, Buckler, Watts, Ford and Flaherty from hours worked and costs incurred on behalf of Bowerman, Elmore, and Phillips. If no hours or costs were expended solely on behalf of the three plaintiffs, counsel are to provide sufficient evidence of that fact. Should counsel be unable to segregate the hours and costs or fail to establish that all hours and costs would have been incurred regardless of whether the three plaintiffs were involved in the appeal, counsel shall segregate the hours and costs incurred in furtherance of the Title VII case from those incurred in furtherance of the § 1981 case.
The Court will then use the hours expended on the § 1981 appeal to compute the lodestar.
For the reasons stated above, it is hereby
ORDERED that Defendants' Request for Mediation is denied.
It is FURTHER ORDERED that Edward F. Dougherty, Andrew T. Buckler, Jr., Wilton E. Watts, Henry J. Ford, and Francis X. Flaherty shall each be awarded damages equal to two-fifths of the amount he would have received had he been able to definitively establish that he would have obtained one of the two promotions at issue. Counsel shall file on or before May 24, 1993 a joint statement calculating the damages for each plaintiff in accordance with the instructions provided in this Order. The statement shall provide sufficient detail to enable the Court to ensure that the calculations are correct. The Court will promptly enter judgment in the specific monetary amounts once it has received and reviewed the joint statement.
It is FURTHER ORDERED that Plaintiffs' Petition for Attorneys' Fees and Costs and Plaintiffs' Supplemental Petition for Costs, filed by trial counsel, are granted without opposition. Trial counsel are awarded $ 46,970.25 in fees and $ 3,796.96 in costs. These payments shall be made forthwith.
Because Edward F. Dougherty, Andrew T. Buckler, Jr., Wilton E. Watts, Henry J. Ford, and Francis X. Flaherty have been found to be "prevailing parties" and because Bernard M. Bowerman, Vincent K. Elmore, and William H. Phillips have not prevailed for purposes of 42 U.S.C. § 1988, it is
FURTHER ORDERED that Plaintiffs'/Appellees' Application for Attorney's Fees is granted in part and denied in part. To assist the court in determining the specific amount of fees and costs to which the prevailing plaintiffs are entitled, plaintiffs' counsel shall submit on or before May 28, 1993 a detailed accounting of the hours worked and costs incurred on appeal which segregates the costs and fees according to the prevailing and nonprevailing plaintiffs. If no hours were expended or costs incurred solely on behalf of the nonprevailing plaintiffs, counsel are to provide sufficient evidence of that fact. If it is impossible to accomplish such segregation, counsel shall provide a detailed accounting separating hours worked and costs incurred on appeal for the Title VII case from hours worked and costs incurred on appeal for the § 1981 case. Any response by defendants to plaintiffs' counsel's submission shall be filed on or before June 8, 1993. Plaintiffs' counsel's reply, if any, shall be filed on or before June 15, 1993. All submissions shall contain sufficient detail to allow the Court to audit the numbers provided. Once all filings have been received, the Court will promptly compute and award the appropriate appellate fees and costs.
IT IS SO ORDERED.
May 5, 1993
JOYCE HENS GREEN
United States District Judge