The opinion of the court was delivered by: Mukasey, District Judge.
The last phase of this pension benefits case is plaintiff's
application for counsel fees, most of which were incurred
after plaintiff was offered and declined the identical relief
she won after more than a year of additional litigation.
Because I do not read the Equal Access to Justice Act to
require that defendants subsidize such profligacy, plaintiff's
counsel will recover a fee of $4750, instead of the requested
Defendants cut off completely plaintiff's retirement
benefits, without a pre-deprivation hearing, because of an
apparent discrepancy between her claimed birth date and what
they believed to be her actual birth date. That discrepancy
translated into a difference of $1.01 per month in her
benefits. Compare Complaint Exh. E ($296 per month) with
Complaint Exh. P ($294.99 per month) By any standard,
defendants' summary termination of plaintiff's benefits was an
unfair and gross bureaucratic overreaction. After plaintiff
fended off defendants' motion to dismiss in October 1990, see
749 F. Supp. 1254 (S.D.N.Y. 1990), she won a summary judgment in
August 1991, see 769 F. Supp. 570 (S.D.N.Y. 1991), recognizing
that she had been denied due process and awarding her a hearing
and nominal damages of $1. No other relief was warranted
because plaintiff's correct birth date has yet to be determined
definitively, defendants have resumed plaintiff's retirement
benefits albeit at the lesser rate, and defendants have waived
any Eleventh Amendment bar to an award of back benefits should
plaintiff prevail at a hearing on that issue. Familiarity with
both of those earlier opinions is assumed for current purposes.
The response was a letter from plaintiff's counsel dated
April 30, 1990 expressing both skepticism and confusion about
the proffered hearing. (Colucci Aff. Exh. D) In a somewhat
exasperated reply ("If you say you are confused, I have no
choice but to believe you. Let me make it simple."),
defendant's counsel reiterated and explained the offer.
(Colucci Aff. Exh. E) That generated yet another skeptical
letter from plaintiff's counsel, dated May 9, 1990, demanding
to know on what authority a hearing was offered, a copy of
"the written procedures and/or regulations, if any, that might
exist," and restoration of plaintiff to a pension level
consistent with the birth date she is not claiming. (Colucci
Exh. F) In a letter dated May 10, 1990, defendant's counsel
again cited the statute as authority, disclosed where the
regulations could be found, and took the position that
plaintiff should receive her pension at the diminished rate
until her right to the higher rate, based on an earlier birth
date, was established. Once again, it bears emphasis that we
are talking here about a difference of $1.01 per month.
On May 31, 1990, before the dismissal motion was decided,
defendant's counsel again sought to resolve the matter along
the lines previously suggested, to no avail (Colucci Aff.
¶ 12, Exh. I), as he did again in June and December 1990, with
the same result. (Colucci Aff. ¶¶ 12-15, Exhs. J-M)
As noted above, the result of the summary judgment motion
was to grant plaintiff what she could have had more than a
year earlier. Moreover, that result was predictable.
Plaintiff's birth date was disputed throughout and there was
no proffer of any evidence to suggest that any defendant acted
with the willfulness that would justify an award of punitive
damages. Plaintiff's current application seeks fees for the
entire duration of the case, and therefore raises the question
of whether defendants should be made to pay for fees incurred
after defendants offered plaintiff what she could reasonably
have expected to get if she prevailed in the litigation.
In order to assure that plaintiffs with worthy but
monetarily small claims arising from denial of civil rights
are not discouraged from seeking legal redress, the Equal
Access to Justice Act provides that in an action to enforce
civil rights statutes, "the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney's fee
as part of the costs." 42 U.S.C. § 1988; Hensley v. Eckerhart,
461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983).
Although the language of the statute seems merely permissive,
there is "a presumption that successful civil rights litigants
should recover reasonable attorney's fees unless special
circumstances render such an award unjust." DeFilippo v.
Morizio, 759 F.2d 231, 234 (2d Cir. 1985).
Ordinarily, the proper measure of fees to the prevailing
party is "the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate,"
Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939, the so-called
lodestar amount, with the caveat that when plaintiff presses
more than one claim, no fee may be awarded for services
rendered in connection with an unsuccessful claim. Id. at 435,
103 S.Ct. at 1940. The Supreme Court cautioned that "where the
plaintiff achieved only limited success, the district court
should award only that amount of fees that is reasonable in
relation to the results obtained." Id. at 440, 103 S.Ct. at
1943. However, the Second Circuit has held "a reduction made on
the grounds of a low award to be error unless the size of the
award is the result of the quality of representation." Morizio,
759 F.2d at 235. See also, Cowan v. Prudential
Ins. Co., 935 F.2d 522 (2d Cir. 1991) (barring strict reliance
on the size of the damage award as a measure of attorneys'
fees). Even an award of nominal damages justifies attorneys'
fees if the nominal damages did not result from inadequate
representation. Fassett v. Haeckel, 936 F.2d 118, 121-22 (2d
Cir. 1991) (per curiam). Therefore, "the appropriate question
is whether the size of the award is commensurate with awards in
[cases of the type under consideration] generally." Morizio,
759 F.2d at 235. The Second Circuit also has recognized,
however, that "[e]fforts put into research, briefing and the
reparation of a case can expand to fill the time available, and
some judgment must be made in the awarding of fees as to
diminishing returns from such further efforts." Morizio, 759
F.2d at 235-36.
The first inquiry must be "whether the substantive claim was
so strong on the merits and so likely to result in a
substantial judgment that private counsel in similar cases
could be easily and readily obtained." Id. at 234. Here,
although there was always a strong substantive claim to
restoration of benefits at least to the level defendants
concede is due regardless of which party is right about
plaintiff's birth date, even that claim was monetarily small.
The claim to enhanced benefits of $1.01 per month is smaller
yet. Therefore, the prospect of a large recovery was not
"sufficiently bright to attract competent private counsel on a
contingent fee basis," Zarcone v. Perry, 581 F.2d 1039, 1044
(2d Cir. 1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59
L.Ed.2d 38 (1979), and an attorneys' fee award is justified
here, assuming other factors are consistent with such an award.
The rates at which plaintiff's counsel should be compensated
does not depend on whether they work for a profit making or a
nonprofit entity. In Blum v. Stenson, 465 U.S. 886, 895, 104
S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court held that,
"[t]he statute and legislative history establish that
`reasonable fees' under § 1988 are to be calculated according
to the prevailing market rates in the relevant community,
regardless of whether plaintiff is represented by private or
nonprofit counsel." However, if the rates for assessing fees
are those of the marketplace, so too are the other relevant
standards those of the marketplace. In particular, "`[h]ours
that are not properly billed to one's client also are not
properly billed to one's adversary pursuant to statutory
authority." Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1940,
quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir.
1980) (en banc) (emphasis in original). Thus, to the extent