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DOUGHERTY v. BARRY

May 5, 1993

EDWARD F. DOUGHERTY, et al., Plaintiffs,
v.
MARION S. BARRY, JR., et al., Defendants.



The opinion of the court was delivered by: JOYCE HENS GREEN

 Presently pending in these two civil rights actions are a motion for attorneys' fees and costs incurred during the initial trial of the cases, a motion for attorneys' fees and costs incurred during the appeal of the cases, the issue of damages to which the five successful plaintiffs are entitled (on remand from the Court of Appeals), and defendants' request for mediation between the parties on these matters. With this Order, it is earnestly hoped that these cases are extremely close to final resolutions.

 BACKGROUND

 These related actions arise from promotions of two black individuals to deputy fire chief positions within the District of Columbia Fire Department. The eight plaintiffs, who are all white, alleged that they were eligible for those promotions and contended that they were not selected because of their race. Edward F. Dougherty, Andrew T. Buckler, Jr., Wilton E. Watts, Henry J. Ford, and Francis X. Flaherty brought Civil Action No. 82-1687 pursuant to the Civil Rights Act of 1866, codified as 42 U.S.C. § 1981, and the Fifth Amendment to the United States Constitution. Those five plaintiffs and Bernard M. Bowerman, Vincent K. Elmore, and William H. Phillips brought Civil Action No. 83-0314 pursuant to Title VII of the Civil Rights Act of 1964, codified as 42 U.S.C. §§ 2000e et seq. Although not consolidated, the two cases were resolved together after a four day trial. The Court found in favor of all eight plaintiffs and granted a declaratory judgment stating that they were subjected to unlawful discrimination in the selection process underlying the promotions. Dougherty v. Barry, 607 F. Supp. 1271, 1289 (D.D.C. 1985). The Court also awarded retroactive monetary relief to all eight plaintiffs, but because plaintiffs did not expressly request prejudgment interest in their complaints, such interest was not awarded. Id. at 1289-90. Because all eight of the plaintiffs had resigned from the fire department before filing suit, the Court denied as moot their requests for injunctive relief. Id. at 1289.

 The defendants appealed the Court's judgments, specifically challenging the findings of liability, the conclusion that plaintiffs' Title VII claims were timely filed, and the computation of damages. Before the Court of Appeals issued its ruling, the defendants withdrew their challenge to the liability finding. After oral argument, the Court of Appeals found in favor of the defendants on the two remaining appellate issues, dismissed all Title VII claims as untimely (thereby finding that Bowerman, Elmore, and Phillips, who were not parties to the § 1981 suit, were not entitled to any relief), and remanded the cases for a recomputation of damages. Dougherty v. Barry, 276 U.S. App. D.C. 167, 869 F.2d 605 (D.C. Cir. 1989).

 Upon remand, and pursuant to a motion filed by the plaintiffs, conferences have been held by the Court to assist in attempts to settle the remaining issues in the cases. Prior to one of the conferences, plaintiffs filed a settlement conference statement, in which they proposed methods for the computation of damages and in which they reiterated their positions on attorneys' fees issues. Subsequent to that conference, which did not result in settlement, the defendants filed a response to plaintiffs' statement, indicating that the defendants did not challenge an award of attorneys' fees and costs to counsel for work performed at the trial level but that they did contest any award for fees and costs incurred on appeal. The response also took issue with plaintiffs' proposed methods of computing damages. Plaintiffs filed a reply to the response, and defendants filed a surreply.

 On February 17, 1993, the defendants asked the Court to refer the cases to mediation. Plaintiffs opposed the request, although they indicated they would take part in non-binding mediation in good faith if ordered to do so. Because of the length of time this matter has been pending, and because it appears that mediation is unlikely to succeed, defendants' request is denied and all outstanding issues are resolved below.

 DISCUSSION

 A. Damages

 In its opinion remanding the issue of damages, the Court of Appeals held that the extent of the monetary relief granted by the District Court was "overly generous," 879 F.2d at 614, and instructed, "In order to restore appellees to the position they would have occupied absent discrimination, the district court should have awarded each appellee a fraction of the promotions' value commensurate with the likelihood of his receiving one of the promotions. . . . On remand, then, the district court may *fn1" simply divide the monetary value of the two promotions equally among appellees." Id. at 615. Unfortunately, the task now facing the Court is not as simple as it might appear, given that the value of the promotions varied among the plaintiffs in accordance with their previous differing salaries, benefits, and life expectancies.

 Recognizing the varying values of the promotions, the parties have proposed several different methods of determining damages. The methods include taking the average of the amounts which each of the five plaintiffs would have received had he obtained a promotion, multiplying that average by two in light of the fact that two promotions were available, and dividing the result equally among the five claimants; distributing the sum of the two highest amounts equally among the claimants; distributing the sum of the two lowest amounts equally among the plaintiffs; and taking the sum of the value of the promotions of the two most senior claimants and distributing that amount equally. Upon careful consideration of the remand and elementary principles of probability and statistics, the Court has formulated its own method of distribution.

 The value of a promotion to each of the five plaintiffs (which will then be multiplied by 0.4 to determine the damages for each plaintiff) shall be computed in accordance with the methodology set forth by the Court in its reported Memorandum Opinion. *fn3" The annuity adjustment payments shall be reduced to "present value" as of April 30, 1985, the date of the initial judgments.

 In accordance with 28 U.S.C. § 1961, postjudgment interest is awarded and shall be computed as directed by that provision, using an interest rate of 9.15 percent, which, according to the Clerk of the Court, was the coupon issue yield equivalent of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgments. Because plaintiffs did not expressly request prejudgment interest in their complaint and did not appeal their failure to obtain prejudgment interest after trial, no prejudgment interest is awarded. See McKnight v. General Motors Corp., 768 F. Supp. 675, 683 ...


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