The opinion of the court was delivered by: TENNEY
This is a motion for attorneys' fees and costs under the Civil Rights Attorney's Fees Award Act of 1976, as amended, 42 U.S.C. § 1988 (1976 & Supp. V 1981), and under 28 U.S.C. § 1920 (1976) and Federal Rules of Civil Procedure 54(d) and 56. Plaintiffs originally requested an award of $104,986.45. Subsequent to the Second Circuit Court of Appeals' decision in New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983), the plaintiffs indicated that an award of approximately $50,000 would be appropriate.
For the reasons stated below the plaintiffs are granted the total sum of $35,450.51.
The factual background of this civil rights action and the issues that it raised are set forth in the previous opinions of this Court, 83 F.R.D. 600 (S.D.N.Y. 1979), and 497 F. Supp. 1217 (S.D.N.Y. 1980), aff'd in part, rev'd in part, 647 F.2d 332 (2d Cir. 1981), and will not be repeated in detail. The pertinent facts for the purposes of this motion are as follows. At the time this action was commenced, plaintiffs, Julianna McKenna ("McKenna") and Alice Brown ("Brown"), were tenants in a housing project in Peekskill, N.Y. The Peekskill Housing Authority ("the Authority"), which operated the project, had a rule that prohibited tenants from having overnight or weekend guests without first obtaining the Authority's prior approval. In October 1978 the plaintiffs brought a class action suit under 42 U.S.C. § 1983 challenging the constitutionality of the rule. They sought injunctive and declaratory relief individually and on behalf of all others similarly situated. In addition, each named plaintiff sought $25,000 in damages.
The Court denied the plaintiffs' motion for class certification. 83 F.R.D. 600. In a subsequent decision the Court denied the plaintiffs' motion for summary judgment and granted summary judgment in favor of the defendants. 497 F. Supp. 1217. On appeal, the Second Circuit affirmed the dismissal of the claims for declaratory and injunctive relief on the ground of mootness -- while the appeal was pending the Authority passed a resolution rescinding the rule. 647 F.2d at 334. The court, however, reversed the dismissal of the damage claim and remanded the case for a determination of damages and an award of reasonable attorneys' fees. Id. at 336. After the remand, the parties agreed to settle the damage claims; MeKenna received $1,500 and Brown $500.
Attorneys from the Westchester Legal Services, Inc. represented the plaintiffs through the appeal. Following remand, the law firm of Hughes Hubbard and Reed represented the plaintiffs pro bono publico. It has not requested attorneys' fees.
This circuit uses the lodestar approach to calculate attorney's fees. New York State Ass'n for Retarded Children, Inc. v. Carey, supra, slip op. at 4568; Cohen v. West Haven Bd. of Police Comm'rs, 638 F.2d 496, 504-05 (2d Cir. 1980); City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir. 1977). Under this approach "attorney's fees are calculated by multiplying the number of billable hours that the prevailing party's attorneys spend on the case by "the hourly rate normally charged for similar work by attorneys of like skill in the area." New York State Ass'n for Retarded Children, Inc. v. Carey, supra, slip op. at 4568 (quoting Grinnell, supra, 460 F.2d at 1098). After a base fee has been calculated, using these relatively objective factors, the district court has the discretion to adjust the fee award upward or downward in light of one or more subjective factors, such as the complexity of the issues raised, the risk involved and the results obtained. Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40, 51 U.S.L.W. 4552 (U.S. May 16, 1983); New York State Ass'n for Retarded Children, Inc., supra, slip op. at 4568; Cohen v. West Haven Bd. of Police Comm'rs, supra, 638 F.2d at 505.
Using the lodestar approach, the plaintiffs submitted the following schedule of fees and costs:
Attorney Hours Rate Figure
Andrew L. Levy 539.00 $145 $ 78,155.00
John T. Hand
(for Westchester Legal
Services) 11.00 $135 1,485.00
(for John T. Hand
individually) 12.00 $135 1,620.00
Martin A. Schwartz 10.25 $135 1,383.75
Total: $ 82,643.75
Lodestar Adjustment (25% upward) 20,660.94
Total Fees Awarded $103,304.69
Total Costs 1,681.76
TOTAL AWARD: $104,986.45
Each of the staff attorneys assigned to the case by Westchester Legal Services, Inc. -- Andrew L. Levy ("Levy"), John T. Hand ("Hand"), and Martin A. Schwartz ("Schwartz") -- has more than twelve years of experience in legal services for the poor. Levy handled the majority of the litigation; Hand assisted him; and Schwartz prepared the fee award application.
Subsequent to the plaintiffs' motion for fees the Second Circuit rendered its decision in New York State Association for Retarded Children, Inc. v. Carey. The court reversed a decision that had awarded over $1,400,000 in attorneys' fees and costs to two non-profit organizations, the Legal Aid Society and the New York Civil Liberties Union. In calculating the lodestar figure, the district court had accepted hourly rates derived primarily from the billing rates used by one of New York City's largest law firms. Although the case spanned a ten year period and involved complex legal issues, the court of appeals observed that "an award to non-profit lawyers based upon billing rates charged by profit-making lawyers inevitably produces a windfall." Id. at 4589.
The court concluded, inter alia, that:
2. Attorney's fees awarded to non-profit law offices should be calculated at billing rates of private attorneys of comparable skill and experience, subject to a maximum "break point" rate to be selected by the district judge in each case at the point above which private billing rates include such a significant profit component and an overhead cost so significantly above that of non-profit law offices that use of such rates would produce a windfall for such offices. Non-profit law offices ...