The opinion of the court was delivered by: TENNEY
This employment discrimination suit, commenced in 1972, was settled by agreement of the parties in 1975. Plaintiffs then petitioned pursuant to 42 U.S.C. § 2000e-5(k) for an award of reasonable attorney's fees incurred in advancing their claim. This Court granted that request, holding that plaintiffs were entitled to the benefits of the statute as prevailing parties because they had achieved through settlement the abolition of certain discriminatory employment practices and vindication of their personal claims. Richardson v. Civil Service Comm'n, 420 F. Supp. 64, 67 (S.D.N.Y. 1976). The fixing of an appropriate award of attorney's fees was referred to United States Magistrate Leonard A. Bernikow, id. at 68, and by Report and Recommendation dated October 4, 1977 ("Magistrate's Report") the Magistrate endorsed an award totaling $30,810 for the services of those attorneys who had represented the plaintiffs.
Defendants have timely objected to the Magistrate's Report pursuant to 28 U.S.C. § 636(b). After making a "de novo determination of those portions of the report . . . to which objection is made," id., this Court finds the defendants' objections without merit and, for the reasons set forth, the award of attorney's fees as specified by Magistrate Bernikow is confirmed.
Counsel for plaintiffs consisted of Deborah M. Greenberg of the NAACP Legal Defense and Educational Fund, Inc.; Ronald Ellis of the same organization; Robert A. Engel, William C. Wittemore and K. Scott Muldoon of the Community Law Office ("CLO"), which is described as "essentially a joint venture by its staff and the private bar," Affidavit of David W. Wechsler, sworn to December 17, 1976, para. 4; and Steven H. Bazerman, one of the "more than 300 presently active volunteer attorneys from more than 50 participating law firms and corporate law departments" who, with staff attorneys, cooperate to deliver legal services through CLO. Id. para. 5. Magistrate Bernikow approved fees at the rate of $90 per hour for the time expended by staff attorney Greenberg and volunteer Bazerman, and at $60 per hour for the other named attorneys as junior associates of the two lead counsel. The Magistrate's computations of compensable time included, inter alia, hours spent preparing and litigating an unsuccessful motion for a temporary restraining order and preliminary injunction and hours spent litigating the right to attorney's fees. Defendants dispute the inclusion of these two categories of expended time, the recommended rate of compensation, and the inclusion of compensation to volunteer attorneys.
It appears that defendants did not raise with the Magistrate the issue of compensability for hours spent at the commencement of the litigation in their unsuccessful request for a temporary restraining order and preliminary injunction. Instead, plaintiffs contend, and defendants do not deny, that a general compromise between the parties as to the total number of compensable hours was reached at a conference held between the parties during a hearing before the Magistrate. Plaintiffs' Response to Defendants' Objections 8. At the outset it should be noted that it is extremely late in the day for defendants to raise the issue of unsuccessful motion practice, especially where defendants do not deny that a virtual stipulation as to hours was presented to the Magistrate, where they make no argument that plaintiffs' initial procedural move was frivolous or made in bad faith, and where they cannot deny that plaintiffs ultimately prevailed. Furthermore, the statute invoked by plaintiffs provides for "reasonable" fees to prevailing litigants; it does not condition that mandate with the caveat that the grant to the party who won the war should be docked for every skirmish lost along the way.
Nor is there support for defendants' position in the case of Perkins v. New Orleans Athletic Club, 429 F. Supp. 661 (E.D. La. 1976), cited by them for the proposition that the mere designation of a party as "prevailing" does not imply that he was successful on all claims or that he should recover all requested attorney's fees. This is clearly the reasoning in Perkins, a case where plaintiff prevailed on only a minimal portion of the substantive claim asserted, yet recovered attorney's fees (in the face of defendants' vigorous objections) "so far as [the fees] were requisite to the issues on which plaintiff did prevail." Id. at 667. However, it is hard to see how Perkins can be read to imply that unsuccessful motion practice in the course of litigation is ipso facto "unreasonable," or is cause for automatic reduction in recoverable fees. In Perkins the court conditioned the award on the quantum of success in the end; it did not even speak to the means employed.
This Court finds more persuasive the argument advanced by plaintiffs and accepted by other courts that absent a showing of frivolity or bad faith a court engaged in measuring the fairness of fees sanctioned by the statute should not judge the strategic wisdom of every litigational tactic used or employ omniscient hindsight to expand or contract an award by a standard "[requiring] attorneys (often working in new or changing areas of the law) to divine the exact parameters of the courts' willingness to grant relief." Stanford Daily v. Zurcher, 64 F.R.D. 680, 684 (N.D. Cal. 1974), aff'd, 550 F.2d 464 (9th Cir. 1977), cert. granted, 434 U.S. 816, 98 S. Ct. 52, 54 L. Ed. 2d 71 (1977); see Locklin v. Day-Glo Color Corp., 429 F.2d 873, 879 (7th Cir. 1970). This is especially true where the parties who ultimately prevailed did not initially succeed in obtaining a preliminary equitable remedy, the imposition of which is an extraordinary measure charily awarded only in the exercise of the sound discretion of the court.
Fees for Litigating to Recover Fees
It is clearly accepted in this circuit that an award of attorney's fees under section 2000e-5(k) may include time expended by the attorney to prove entitlement to those fees. In Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y.), aff'd, 538 F.2d 10 (2d Cir. 1976), the district court specifically included compensation for time spent litigating this question, id. at 348; the court of appeals confirmed the district court award in all respects. The same proposition is firmly established in other circuits as well. E.g., Rosenfeld v. Southern Pacific Co., 519 F.2d 527 (9th Cir. 1975); Hairston v. R & R Apartments, 510 F.2d 1090, 1093 (7th Cir. 1975); Knight v. Auciello, 453 F.2d 852, 853 (1st Cir. 1972); Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 539 (5th Cir. 1970).
In the face of this precedent, defendants urge that this Court adopt the reasoning recently applied by the United States Court of Appeals for the Second Circuit in City of Detroit v. Grinnell, 560 F.2d 1093 (2d Cir. 1977) (" Grinnell II "). In that antitrust case attorneys representing the prevailing class were not allowed compensation for time spent in connection with their fee application. The Grinnell II analysis is clearly inapplicable to civil rights actions. In an antitrust suit the award to counsel is deducted from the common fund recovered and to be shared by the successful plaintiffs under the equitable fund theory which permits "an attorney whose actions have conferred a benefit upon a given group or class of litigants [to] file a claim for reasonable compensation for his efforts." Id. at 1098. The Grinnell II court reasoned that because no expansion of the fund would occur through the attorney's efforts to prove his just fee, those victorious plaintiffs who would ultimately share in the fund -- minus attorney's fees -- ought not to have the fund further diminished by legal activities which did not inure to their benefit.
No similar rationale is applicable to an award of attorney's fees in civil rights cases. Such fees are not deducted from a common fund to be shared by the prevailing parties; they are taxed against the losing parties in order to promote compliance with basic legislative policy: "If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate ...