plaintiff could have achieved this result in or about April
1990, without her attorney or the court having to deal with
the two substantive motions referred to above. Defendant's
counsel has averred without contradiction that on April 4,
1990 and again on April 19, 1990, he offered plaintiff's
counsel the opportunity for a hearing under § 74(d) of New York
State's Retirement and Social Security Law. (Colucci Aff. ¶¶ 4,
5; Exhs. A, B) On April 25, 1990 he followed up that offer in
writing. (Colucci Aff. Exh. C)
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
plaintiff's counsel spent their time pursuing a result that was
already within their grasp, or otherwise spent time that was
not warranted, their adversaries should not be obligated to
underwrite that unnecessary activity any more than their client
As mentioned, marketplace standards apply both to the hourly
rate at which fees may be charged, and to the number of hours
that may be billed. With respect to the rate, "the burden is
on the fee applicant to produce satisfactory evidence — in
addition to the attorney's own affidavits — that the requested
rates are in line with those prevailing in the community for
similar services by lawyers of comparable skill, experience,
and reputation." Stenson, 465 U.S. at 896 fn. 11, 104 S.Ct. at
1547 fn. 11.
The four lawyers who worked on the case for plaintiff, and
the hourly fees they seek, are Jonathan Weiss ($300), Roger
Clisham ($275), Edgar Pauk ($250) and Anthony Feldmesser
($175). The first three, Messrs. Weiss, Clisham and Pauk, were
awarded $250 per hour earlier this year for their time in
Weaver v. New York City Employees' Retirement System, 88 Civ.
2662 (MBM), 1991 WL 24320 (Feb. 20, 1991). Weiss avers that he
now bills his time at the rate of $300 per hour and will
request that rate in other cases, and that he has been informed
that a law firm would bill his time at $400 per hour. Weiss
9/24/91 Aff. ¶¶ 4, 5. Clisham presents only his background as
justification for the
rate he seeks, and offers no explanation for why he should
receive $25 more per hour than he received the last time. Pauk
mentions four cases, including Weaver, where he is litigating
pension issues and has received or expects to receive $250 per
hour. There is no evidence beyond the affidavits themselves,
which are insufficient under Stenson, supra, to justify a rate
beyond what these lawyers received in Weaver. To fill the gaps
in lawyers' submissions, a court may "interject its own
knowledge" to arrive at a correct billing rate. Chambless v.
Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1059 (2d
Cir. 1989). Accordingly, the time of Messrs. Weiss, Clisham and
Pauk will be compensated at the rate determined in Weaver, $250
Feldmesser is a 1988 honors graduate of Cardozo School of
Law whose law school education included two years of clinical
training in the representation of indigent elderly and
disabled persons. Feldmesser 9/12/91 Aff. ¶¶ 3, 6. Based on his
experience he avers a belief that a rate of $175 per hour is
appropriate here. In Merriwether v. Coughlin, 727 F. Supp. 823
(S.D.N.Y. 1989), a 1987 law school graduate received a rate as
high as $130 per hour, although his time was compensated at $85
per hour for work at an earlier stage of the case. Based on the
rate awarded in Merriwether, and considering Feldmesser's
clinical experience, his time will be compensated at a rate of
$125 per hour.
As set forth in section I above, plaintiff could have
obtained in April 1990 all the relief she clearly deserved and
all the relief she has since been granted. Fees for time spent
past that date would not properly be charged to plaintiff;
therefore, no fees will be awarded for time spent past April
1990. Moreover, time spent before that date must be trimmed
substantially, as set forth below.
At the initial stage of the case, Feldmesser spent 5.1 hours
meeting with plaintiff and otherwise investigating the facts.
That reasonable expenditure of time for the most part preceded
a three-hour meeting on January 10, 1990 attended by all four
lawyers, for purposes of discussing the case. Discussion of
the preparation of the complaint in this case, if that was
what went on at the meeting, should not have consumed a
three-hour discussion by four lawyers. A one-hour discussion
by two lawyers would have been more like it. One of those
lawyers would be the junior-most member of the team. The other
presumably would be the most experienced member of the team,
Feldmesser then spent 30.5 hours drafting and redrafting the
complaint, in addition to 4.9 hours spent consulting with his
colleagues before the complaint was filed. Weiss spent 3.5
hours reviewing the complaint; Clisham spent 5.25 hours in
such review. At most, 15 hours of drafting and two hours of
review and consultation with two senior colleagues should have
been all that was necessary to draft this complaint. Another
hour of miscellaneous pre-filing activity by Feldmesser,
engaging a half hour each of the time of two senior
colleagues, also would be reasonable.
That yields 19 hours of Feldmesser's time at $125 per hour,
or $2375, and six hours of the time of senior attorneys at
$250 per hour, or $1500. That computation includes the time
reasonably spent until defendants offered plaintiff the relief
she ultimately won at high and unnecessary cost. Had she
accepted defendants' offer, it is certain that more time would
have to have been expended in reducing an agreement to writing
and terminating the lawsuit. Of course, that did not happen.
There is precedent for awarding to a plaintiff the expenses
incidental to hypothetical employment when the plaintiff is
dismissed from employment in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Proulx v.
Citibank, N.A., 681 F. Supp. 199, 205 (S.D.N.Y.), aff'd without
op., 862 F.2d 304 (2d Cir. 1988); Thomas v. Cooper Industries,
Inc., 627 F. Supp. 655, 668 (W.D.N.C. 1986). There is every
reason to apply the same principle to an award of attorneys'
fees and to permit an award for hypothetical time well spent,
particularly when compensation is being denied for time
actually but badly spent. Accordingly, plaintiff will recover
also the reasonable cost of reducing a settlement to writing
and terminating the lawsuit, which
I find would have been three hours by junior counsel,
including time spent explaining the circumstances to the
client, and two hours by one senior counsel, including time to
review necessary documentation and to consider the propriety
of the settlement itself. Three hours of Feldmesser's time
would add an additional $375, and two hours of the time of
more senior counsel would add $500.
It bears mention that plaintiff requested no disbursements.
The circumstances here do not permit me to do anything but
speculate on what the amount of reasonable disbursements would
have been, but I must assume that plaintiff's failure to apply
for disbursements means that they were negligible.
For the reasons stated above, plaintiff will recover total
fees of $4750.
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