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August 15, 1991


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 detailed.

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 expenses.

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 district court also should exclude from this
  initial fee calculation hours that were not
  "reasonably expended." . . . Cases may be
  overstaffed, and the skill and experience of lawyers
  vary widely. Counsel for the prevailing party should
  make a good-faith effort to exclude from a fee
  request hours that are excessive, redundant, or
  otherwise unnecessary. . . . Hours that are not

  billed to one's client also are not properly billed
  to one's adversary pursuant to statutory authority.
    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.

A. The Stotts Claim

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.

As to this part of the application, the intervenors prevailed over the opposition of both the City and the United States. The question thus arises whether the City's liability for fees and expenses should be considered joint and several. In Koster v. Perales, the Second Circuit provided the following guidance:

  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 expenses.

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 these efforts.

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 ...

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