The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
In a memorandum of decision dated October 17, 1973, this court directed that an evidentiary hearing be held on the plaintiff's motion for supplementary attorney's fees for services rendered in the United States Court of Appeals for the Second Circuit, 462 F.2d 777 and the United States Supreme Court. 412 U.S. 1, 93 S. Ct. 1943, 36 L. Ed. 2d 702. The hearing, at which testimony concerning the reasonableness of the fee was offered, took place on October 19th and November 16th, 1973. The court hereby awards plaintiff's counsel the sum of $5,000 for services rendered in the Court of Appeals and the sum of $5,500 for services rendered in the Supreme Court.
At the hearing, plaintiff's counsel testified that he had expended 158 hours in performing various services relating to the appeal before the Court of Appeals, and 354 hours in performing services relating to the appeal before the Supreme Court. Plaintiff's counsel is an experienced labor lawyer. The issues involved in the appeals were novel. His skill and effort brought success to the plaintiff and other members of the defendant-union.
I find that of the 158 hours devoted to preparing the appeal before the Court of Appeals, approximately 100 hours were spent performing services that may be fairly classified as legal. Of the 354 hours devoted to the appeal before the Supreme Court, I find that approximately 110 hours may be fairly classified as time spent performing legal services.
The fair and reasonable hourly rate for the legal services rendered is $50.00. Plaintiff's counsel is entitled to the sum of $5,000 for services rendered in the Court of Appeals and $5,500 for services rendered in the Supreme Court.
Defendant vigorously opposes the grant of counsel fees for services rendered in the Supreme Court on the ground that the appeal involved solely the right to counsel fees.
The fact that the right to counsel fees was the only issue litigated on appeal does not in itself, however, preclude recovery by plaintiff's counsel for services rendered in that appeal. In Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972), the court noted that "the single question in this case is whether the district court erred in not awarding counsel fees . . . ." The court held that the failure to award counsel fees did constitute reversible error and, in remanding to the district court for the fixing of fees, stated that "costs in this court will be taxed to include appellants' counsel's fees."
Id. at 853 (Emphasis added.)
The determinative factor in awarding counsel fees is whether the services rendered conferred a "substantial benefit on the members of an ascertainable class." Mills v. Electric Auto-Lite, 396 U.S. 375, 393-94, 90 S. Ct. 616, 626, 24 L. Ed. 2d 593 (1970), as quoted in Hall v. Cole, 412 U.S. 1, 5, 93 S. Ct. 1943, 1946, 36 L. Ed. 2d 702 (1973). Although conceding that the union's treasury may be burdened by counsel fees for services rendered on behalf of one union member which benefit all members, the defendant argues that services rendered by plaintiff's counsel seeking to protect his right to the fee benefit only that individual plaintiff and not the union as a whole. Defendant cites Kahan v. Rosenstiel, 424 F.2d 161, 174 n. 16 (3d Cir.), cert. denied, 398 U.S. 950, 90 S. Ct. 1870, 26 L. Ed. 2d 290 (1970), and Dillon v. Berg, 351 F. Supp. 584 (D. Del. 1972), in support of this proposition. The court in Dillon, relying on Kahan4 refused to award attorneys' fees for "that portion of the effort which conferred special benefits on the plaintiffs over and above that conferred on the general class. . . ." 351 F. Supp. at 588. These cases stand solely for the proposition that a class should pay only to the extent that it actually benefits from an action. The cases shed no light on the question of whether litigation to secure and protect counsel fees confers "special benefits" on the plaintiff "over and above that conferred on the general class."
With the exception of Knight v. Auciello, supra, the search for authority on this precise point proved to be fruitless. The court finds some support for reimbursing counsel in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968). There the Court stated that:
If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest . . . . Congress therefore enacted the provision for counsel fees . . . to encourage individuals injured by racial discrimination to seek judicial relief under Title II.
Similarly, the Supreme Court in Hall v. Cole, upholding this court's award of counsel fees for services rendered at trial, pointed to the Congressional objectives in enacting the Labor Management and Disclosure Act:
Title I of the LMRDA -- the "Bill of Rights of Members of Labor Organizations" -- was specifically designed to promote the "full and active participation by the rank and file in the affairs of the union," and . . . the rights enumerated in Title I were deemed "vital to the independence of the membership and the effective and fair operation of the union as the representative of its membership."
412 U.S. at 7-8, 93 S. Ct. at 1947-48 (citations omitted). The rights of union members granted under Title I of the LMRDA would be valueless without the means to vindicate them. The services rendered by plaintiff's counsel established the right of union members to reasonable counsel fees in the prosecution of claims protecting their Title I rights. In essence, plaintiff's counsel served as a private attorney general.
The challenge to his fee is a matter ...