The opinion of the court was delivered by: BARTELS
Plaintiffs in the above-entitled class action, except for New York State Association of Retarded Children ("NYSARC"), seek attorney's fees pursuant to 42 U.S.C. § 1988 for services rendered from the inception of the suit through April 1, 1980.
The facts of the case have been fully set forth in numerous opinions of this court, both published and unpublished,
familiarity with which is assumed. Briefly, the suit was brought in March, 1972 against New York State under 42 U.S.C. § 1983 on behalf of retarded children and adults residing at Willowbrook Developmental Center, now known as Staten Island Developmental Center ("Willowbrook"). Plaintiffs alleged that conditions at Willowbrook, including, among other things, severe overcrowding and understaffing, violated their constitutional rights, and sought preliminary injunctive relief restricting certain abuses and requiring improved care. In April, 1973 Judge Judd granted a preliminary injunction according much of the relief requested. NYSARC v. Rockefeller, 357 F. Supp. 752, 756 (E.D.N.Y.1973). Trial of the case began on October 1, 1974 and ended on January 6, 1975 after attempts at settlement failed. However, renewed settlement negotiations after trial culminated in the signing of a consent decree by all parties in April, 1975. NYSARC v. Carey, 393 F. Supp. 715 (E.D.N.Y.1975). The Consent Judgment mandated that Willowbrook residents "be provided with the least restrictive and most normal living conditions possible," establishing detailed standards of care for class members and setting a timetable for "de-institutionalization" of the facility. The decree also provided for the creation of a Review Panel to monitor compliance with its terms and make recommendations to defendants "of steps deemed necessary to achieve or maintain compliance with the provisions of the judgment." Consent Judgment, Steps, Standards and Procedures para. 8(b).
It is fair to say that since April, 1975 all litigation concerning Willowbrook has revolved around questions of interpretation, implementation or enforcement of the terms of the Consent Judgment.
Plaintiffs' counsel's vigorous and effective representation of their clients has played a crucial role in the effort to turn the promises of the Consent Judgment into reality for the Willowbrook class members.
Title 42 U.S.C. § 1988 provides in relevant part that:
In any action or proceeding to enforce a provision of section . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
This court decided on March 21, 1978 that plaintiffs, as the prevailing parties within the meaning of the statute, were entitled to attorney's fees for services rendered in the case up to that time. NYSARC v. Carey, No. 72-C-356/357, slip op. at 7 (E.D.N.Y. March 21, 1978). The present application is for 16,409.7 hours logged by eight attorneys and two law students, valued by plaintiffs at $1,312,642.10, and costs and expenses valued at $21,035.48. With the application of the 100% bonus sought by counsel, the total amount sought is $2,542,430.63.
In passing upon counsel's request, we follow the two-step procedure mandated in this circuit for the calculation of fee awards. First, it is necessary to establish a "lodestar" figure obtained by multiplying the hours properly expended in litigating the case by the hourly rate "normally charged for similar work by attorneys of like skill in the area." Cohen v. West Haven Bd. of Police Com'rs, 638 F.2d 496, 497, 505 (2d Cir. 1980); City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2d Cir. 1974). Second, the court may adjust the lodestar upward or downward in light of "subjective" factors like the complexity of the case, counsel's skill, novelty of questions presented or nature of results achieved. Cohen, 638 F.2d at 505.
Defendants do not deny liability for fees in this case, but vigorously contest the amount sought by plaintiffs, claiming that counsel seek compensation for excessive hours at inflated hourly rates. They also contend that no bonus or multiplier is warranted. Before turning to our discussion of those points, however, we must mention briefly defendants' contentions that plaintiffs are entitled to no fees for services rendered prior to October 19, 1976, the effective date of § 1988.
It is by now well settled that § 1988 is applicable to cases pending when it became effective. Beazer v. New York City Transit Authority, 558 F.2d 97 (2d Cir. 1977), rev'd on other grounds, 440 U.S. 568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979); Miller v. Carson, 563 F.2d 741 (5th Cir. 1977). Defendants argue, however, that at the time of the signing of the Consent Judgment the parties contemplated that the then pending decision of the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975), would govern plaintiffs' request for an award of fees. Alyeska strictly limited the availability of fees. If it were applicable to the present application, the award of compensation would be problematic. Defendants also contend that even if Alyeska is not deemed to be applicable to plaintiffs' application, compensation for services rendered before October 19, 1976 must be denied because the first phase of the case was no longer pending when § 1988 became effective and attorney's fees under § 1988 can only be granted in cases pending at the statute's inception. Both of these arguments were rejected by the court in its decision of March 21, 1978, and defendants have not shown why the court should reverse its ruling.
Calculating the Lodestar
The starting point for determining counsel fees is the calculation of a "lodestar" representing the number of hours worked multiplied by a reasonable hourly rate. For the purposes of this application counsel have divided the litigation into four stages, as follows:
Stage I: Inception of suit through
December 31, 1973;
Stage II: January 1, 1974 through
December 31, 1975;
Stage III: January 1, 1976 through
December 31, 1977;
Stage IV: January 1, 1978 to April 1, 1980
(and hours spent on fee
Plaintiffs seek compensation at a different rate for each attorney at each stage, depending on the attorney's years of experience at the time services were rendered.
Defendants object to compensation at the hourly rates sought on the grounds that: the rates reflect a market value standard which is inappropriate for non-profit law organizations; the award to the Legal Aid Society should in any event be reduced by a percentage equal to the percentage of its budget that is federally funded; the same rate is sought for all work, regardless of the type of service rendered; the rates sought are current rather than those prevailing at the time the services were rendered; the rates sought are higher than those charged by attorneys of like skill in the community for similar work.
Defendants' objections are exaggerated and largely without merit. It is well settled in this circuit that the public interest character of a law office is not a reason for reducing the fee award, which is to be measured by the standard of what other attorneys in the local community charge for similar services. Beaxer, 558 F.2d at 100; Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976); Mid-Hudson Legal Services v. G & U Inc., 465 F. Supp. 261 (S.D.N.Y. 1978). This circuit has indicated that district courts have discretion to reduce fee awards on account of federal funding, but that such a reduction is not mandatory and should not be done routinely. Gagne v. Maher, 594 F.2d 336, 345 (2d Cir.), aff'd, 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1979); EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 592-93 (2d Cir. 1976), cert. denied, 430 U.S. 911, 97 S. Ct. 1186, 51 L. Ed. 2d 588 (1977). While some courts have reduced fee awards to non-profit law organizations receiving public funding, Gagne v. Maher, 455 F. Supp. 1344, aff'd in part and remanded in part, 594 F.2d 336 (2d Cir.), aff'd, 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1979); EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 400 F. Supp. 993, 998 (S.D.N.Y.1976), aff'd in part and rev'd in part, 542 F.2d 579 (2d Cir. 1976), cert. denied, 430 U.S. 911, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1977), we believe it is more consistent with § 1988's purpose of encouraging litigation to vindicate civil rights to compensate counsel at prevailing community rates. EEOC v. Sage Realty Corp., 521 F. Supp. 263, 268-69 (S.D.N.Y.1981); Mid-Hudson Legal Services, supra; Holley v. Lavine, 464 F. Supp. 718 (S.D.N.Y.), aff'd, 605 F.2d 638 (2d Cir. 1979), cert. denied, 446 U.S. 913, 100 S. Ct. 1843, 64 L. Ed. 2d 266 (1980).
Defendants' assertion that different types of legal work should be compensated at different rates is not completely accurate. The touchstone for setting an appropriate hourly rate is billing practices in the local legal community. City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir. 1977); Cohen, 638 F.2d at 505. It appears from affidavits submitted by private practitioners, both in this case and others decided by this court, that attorneys in the New York metropolitan area bill at a single rate all types of work properly chargeable to a client. This is not to say that plaintiffs' counsel should be compensated at attorney's rates for non-legal work of an administrative or clerical nature. Steinberg v. Carey, 470 F. Supp. 471 (S.D.N.Y.1979). But we defer our computation of the time each attorney spent on non-legal matters to our discussion of the hours claimed by counsel.
Defendants also assert that plaintiffs seek fees at a higher rate than is customarily charged by local attorneys of comparable skill for similar work. Attorney's fees in § 1988 fee awards should "be governed by the same standard which prevails in other types of equally complex Federal litigation such as antitrust cases, and not be reduced because the rights involved may be nonpecuniary in nature." S.Rep. No.94-1011, 94th Cong. 2d Sess. p. 6, U.S. Code Cong. & Admin.News 1978, p. 5908, 5913. Based on the court's acquaintance with fees currently charged by local firms, both large and small, and on its reading of the affidavits of John Hupper of Cravath, Swain & Moore and Melvyn Weiss of Milberg, Weiss, Bershad & Specthrie, the rates sought, while somewhat high in comparison to fees awarded counsel in local civil rights cases, are not excessive. Stenson v. Blum, 512 F. Supp. 680 (S.D.N.Y.), aff'd without opinion, 671 F.2d 493 (2d Cir. 1981); Ross v. Saltmarsh, 521 F. Supp. 753 (S.D.N.Y.1981); Bradford v. Blum, 507 F. Supp. 526 (S.D.N.Y.1981); Becker v. Blum, 487 F. Supp. 873 (S.D.N.Y.1980); Cleary v. Blum, 507 F. Supp. 514 (S.D.N.Y.1981); Swift v. Blum, 502 F. Supp. 1140 (S.D.N.Y.1980).
Although defendants argue that historical rates should be utilized in determining plaintiffs' attorney's fee, aside from the difficulty of calculating rates on an historical scale, the court believes that current, rather than historical, rates should be applied. As plaintiffs have waited eight years to receive any compensation, a calculation at present rates is appropriate to compensate them for inflation and loss of interest. City of New York v. Darling-Delaware, 440 F. Supp. 1132 (S.D.N.Y.1977); Axinn & Sons Lumber Co. v. L.I.R.R., No. 75-C-280 (E.D.N.Y. July 27, 1981). But see Desimone v. Industrial Bio-Test Laboratories, Inc., 83 F.R.D. 615, 621 (S.D.N.Y.1979); Kane v. Martin Paint Stores, Inc., 439 F. Supp. 1054, 1055 (S.D.N.Y.1977), aff'd without opinion, 578 F.2d 1368 (2d Cir. 1978).
Hours for which Compensation is Sought
Counsel seek compensation for a total of 16,409.7 hours. The total broken down into each attorney's claim is as follows:
Attorney Stage I Stage II Stage III Stage IV tion Total
Bruce Ennis 1098.15 1185.46 292.61 18.72 -- 2594.94
Hansen 30 812.97 568.67 610.29 63.3 2085.23
John Kirklin 914.92 91.62 15.95 10.92 150.15 1183.56
Robert Feldt 530 530
Finkel 125 10 135
Barrett 2912 2276.96 905.76 55 6149.72
Leonard 700 ...