The opinion of the court was delivered by: Curtin, District Judge.
Pending is the application of the attorneys for
intervenor-plaintiffs Afro-American Police Association, et al.
("intervenors"), for attorneys' fees and related expenses from
defendant City of Buffalo ("City"). In support of the
application, the intervenors have submitted affidavits with
exhibits of Paul C. Saunders, Esq. (Items 355, 359), and of
Richard T. Seymour, Esq. (Item 354). In opposition to the
application, the City has filed two affidavits of Michael Risman,
Esq., Senior Deputy Corporation Counsel (Items 358, 360).
There are several aspects to the application. The first
concerns efforts related to the United States Supreme Court's
decision in Firefighters Local Union No. 1784 v. Stotts,
467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). The intervenors
seek compensation for work done in successfully opposing the
motions brought in 1985 by the City and the United States
Department of Justice to eliminate the hiring goals ordered by
this court in light of Stotts. The intervenors also seek
compensation for the additional work done in opposing the appeal
subsequently taken to the United States Court of Appeals for the
Second Circuit, and for their efforts in pursuing a petition for
certiorari after the Second Circuit's affirmance.
The second aspect relates to work done by the intervenors in
resisting the motions by the City and the Department of Justice
to lift the 50% interim hiring goals. In regard to those motions,
the intervenors were not entirely successful because the court,
in an interim order dated August 9, 1989, and in the final order
dated September 5, 1989, see United States v. City of Buffalo,
721 F. Supp. 463 (W.D.N.Y. 1989), found that the City had
substantially complied with the conditions for lifting the 50%
hiring goals that had been implemented as part of the court's
1979 remedial decree.
The court did, however, direct that interim hiring goals were
still necessary and that they should be based on applicant flow,
a position urged by the intervenors in the alternative.
The third aspect relates to efforts of the intervenors in
preparing for trial on the issue of the validity of the City's
selection procedures. Much discovery was necessary, and on the
eve of trial the City agreed to develop a new test rather than to
attempt to establish at trial the validity of the existing test.
The intervenors argue that, since this was the relief they had
hoped to obtain at trial, their efforts in bringing about this
result merit a fee award.
Mr. Saunders has detailed his efforts and those of his
litigation team in his initial affidavit. A detailed statement of
the hours spent and the work done by him and by his associates is
set forth in this filing. He seeks a total fee — based on three
suggested alternative hourly rates of $225, $250, or $275 —
ranging from $128,162 to $159,282.10, as well as disbursements
totaling $22,438.35. The application reveals that Mr. Saunders is
well qualified and experienced. In addition, the records
submitted in support of the application are contemporaneous and
Mr. Seymour's affidavit indicates that he has specialized in
litigating many largescale employment-discrimination cases. In
this case, his main responsibility was to provide special advice
to Mr. Saunders and his associates in handling complicated legal
issues that arose during the course of the litigation. He seeks
compensation at an hourly rate of $225, and has provided a
detailed account of his qualifications and experience and of the
time he has spent working on this case. He seeks a total of
$15,975 in fees and reimbursement of $2,642.49 for out-of-pocket
The City opposes the fee application, arguing alternatively
that the intervenors did not prevail or, if it is found that they
did prevail, that there was only moderate relief granted. The
City argues that the actions that eventually led to the fee
application were initiated and pressed mainly by the Department
of Justice, and that, consequently, the City should not be
responsible for the intervenors' attorneys' fees. The City also
asserts that an examination of the application shows that there
is duplication of effort among the intervenors' lawyers, and that
the hourly rate sought for each is excessive.
The threshold issue for each aspect of the application is
whether the intervenors can be considered "prevailing parties."
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939,
76 L.Ed.2d 40 (1983). A plaintiff will be considered a prevailing
party if he or she "has succeeded on `any significant issue in
litigation which achieve[d] some of the benefit the parties
sought in bringing suit.'" Texas State Teachers Ass'n v. Garland
Independent School Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486,
1493, 103 L.Ed.2d 866 (1989) (quoting Nadeau v. Helgemoe,
581 F.2d 275, 278-79 (1st Cir. 1978)). A plaintiff must receive "at
least some relief on the merits of his claim before he can be
said to prevail." Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct.
2672, 2675, 96 L.Ed.2d 654 (1987). See also Dague v. City of
Burlington, 935 F.2d 1343, 1357 (2d Cir. 1991); Koster v.
Perales, 903 F.2d 131, 134-35 (2d Cir. 1990).
If I find the intervenors to have prevailed on a given aspect
of their application, I shall then use the instruction set forth
by the Supreme Court in Hensley v. Eckerhart with regard to any
fees awarded. The court stated in that case:
The most useful starting point for determining the
amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate. . . .
The product of reasonable hours times a reasonable
rate does not end the inquiry. There remain other
considerations that may lead the district court to
adjust the fee upward or downward, including the
important factor of the "results obtained." This
factor is particularly crucial where a plaintiff is
deemed "prevailing" even though he succeeded on only
some of his claims for relief. . . .
In some cases a plaintiff may present in one
lawsuit distinctly different claims for relief that
are based on different facts and legal theories. In
such a suit, even where the claims are brought
against the same defendants — often an institution
and its officers . . . — counsel's work on one claim
will be unrelated to his work on another claim.
Accordingly, work on an unsuccessful claim cannot be
deemed to have been "expended in pursuit of the
ultimate result achieved." . . . The congressional
intent to limit awards to prevailing parties requires
that these unrelated claims be treated as if they had
been raised in separate lawsuits, and therefore no
fee may be awarded for services on the unsuccessful
461 U.S. at 433-35, 103 S.Ct. at 1939-40 (citations and footnotes
omitted) (emphasis supplied).
Keeping these criteria in mind, I will first discuss the merits
of each claim and, if I conclude that the intervenors have
prevailed on any claim, then determine a percentage figure
indicating the extent to which they have prevailed. The claims
may be conveniently divided into three general categories: a) the
Stotts claim, which will be further divided into separate
consideration of that claim before the Second Circuit and in the
petition for certiorari that followed; b) the motion to terminate
the 50% hiring goals, which also shall be further divided; and c)
the order granted on the eve of trial.
Mr. Saunders's firm, Cravath, Swaine, & Moore, and the Lawyers'
Committee for Civil Rights Under Law, with which Mr. Seymour is
associated, were asked to appear for the intervenors when the
Department of Justice, the City, and other intervenors attempted
to vacate or to modify this court's order of November 23, 1979,
which had set 50% minority hiring goals for the Buffalo Police
Department. After intervention was granted, counsel for the
intervenors filed papers opposing these efforts. The motions
filed by the City and the other parties were based upon the
Supreme Court's decision in Firefighters Local Union No. 1784 v.
Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984).
This court held that Stotts did not apply, noting that the
Second Circuit's decision in EEOC v. Local 638 . . . Local 28 of
Sheet Metal Workers' Int'l Ass'n, 753 F.2d 1172 (2d Cir. 1985),
aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986),
clearly appeared to be controlling. See United States v. City of
Buffalo, 609 F. Supp. 1252, 1253 (W.D.N.Y. 1985). The ensuing
appeal to the Second Circuit resulted in the affirmance of this
court's order. See 779 F.2d 881 (2d Cir. 1985), cert. denied,
478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). The appeal
was taken by the United States but, although it did not file a
notice of appeal, the City filed a brief in support of the
Department of Justice's position.
It is apparent that the intervenors have prevailed on this
issue. The City argues, however, that fees should be charged to
the United States and not to the City. But the attorney for the
City appeared before and urged this court to modify the 1979
order. And although the City did not file a notice of appeal, its
attorney was present at oral argument before the Second Circuit
and lent support to the Justice Department's formal appeal.
Although the law governing apportionment of
attorney's fees assessments remains relatively
unsettled . . . district courts have appropriately
considered a variety of factors in allocating fee
liability including the relative culpability of the
parties . . . and the proportion of time spent
litigating against each defendant. . . .
On the basis of these considerations, the district
court may allocate the fee award between the
responsible parties, setting the percentage for which
each is liable where the claims against the
defendants are separate and distinct or where
culpability is significantly unequal . . . or it may
hold the responsible parties jointly and severally
liable for the fee award.
903 F.2d at 139 (citations omitted). The court further noted that
"although apportionment may in some cases be a more equitable
resolution, there is no rule in this circuit that requires it
whenever possible." Id. Although these guidelines on
apportionment were set forth in the context of determining the
relative liability for fees between two or more defendants who
had been found substantively accountable on an underlying cause
of action, I find the guidelines useful in the context presented
here: of the two parties responsible for the fees incurred by the
intervenors, one — the United States — is a plaintiff.
Under the circumstances presented here, it would be most
difficult and impractical to pinpoint the relative responsibility
of the City and of the United States for the collective position
taken. In any event, I find that the City was no less responsible
than the United States for the intervenors' efforts in regard to
the Stotts claim before both this court and the Second Circuit.
Therefore, I hold that the City should be held fully answerable,
and thus impose joint and several liability for these fees and
After the intervenors' success before the Second Circuit, both
they and the United States petitioned for a writ of certiorari.
Mr. Saunders explains that this was done for the purpose of
attempting to consolidate this case with two other cases in which
the Supreme Court had already granted certiorari to review the
same issue and which, in Mr. Saunders's view, had less favorable
factual settings. The Supreme Court denied the petitions on July
7, 1986. In the present case, the original application for
certiorari was made by the Justice Department and not by the
City. Consequently, no award shall be made against the City for
B. The 1989 Motion to Terminate Hiring Goals
In June, 1989, the Department of Justice and the City again
moved to vacate the 50% hiring goals. The City argued that the
minority composition of both the police and fire departments
sufficiently reflected the minority composition of Buffalo's
civilian labor force so as to justify terminating the one-for-one
interim hiring requirements. The United States agreed that the
50% goals should be terminated, arguing that the City had
substantially complied with that part of the court's 1979
remedial decree. The City also argued that it had valid
job-selection procedures in place, thereby obviating the need for
additional interim hiring requirements; in the alternative, the
City argued that the court, if it were to reject that argument,
should impose an interim requirement of 20% for Blacks and
Hispanics but no interim ratio for women.
The intervenors opposed the attempt to lift the one-for-one
interim hiring requirements as they applied to the police
department. Alternatively, they argued that, should the court
decide to lift the 50% hiring requirements, appointments should
be made based on "applicant flow" — that is, in proportion to the
percentages of Blacks, Hispanics, and women who took the written
examination from which the eligibility list was developed ...