made objections to some of these entries in a letter dated February 15.
Oral argument was heard on February 16, and decision was reserved.
On March 15, 1994 Plaintiffs sent a letter to the Court stating that the Defendants' response to their Discovery Request was inadequate. Plaintiffs also indicated that they would reduce the number of hours for which compensation was being sought. They reduced their fees by 19.60 hours in response to specific instances of duplication or transcription errors that were pointed out to them and this Court by Defendants. An additional 7.5 hours were deducted for hours attributable to another case. Finally, Plaintiffs reduced by 20% the remaining fees attributable to the trial work done by the lawyers at the firms of Hill Betts & Nash, Summit Solomon & Feldesman, and LeFrak & Holman, P.C. who were associated with Thomas A. Holman ("Holman") one of two principal counsel for the Plaintiffs in this case.
Defendants responded by letter dated March 25 and on April 13 oral argument was heard on discovery issues related to the fee application. At the hearing, Defendants were ordered to supplement their February 11 response by providing Plaintiffs with the number of hours recorded by Defendants' attorneys in connection with this lawsuit. Plaintiffs were given permission to submit additional information in support of the Base Application.
Defendants supplemented their discovery response. Plaintiffs filed a Supplemental Submission on June 29. Defendants submitted a reply on July 29. Plaintiffs' response was filed on August 9. The Base Application was restored to the Calendar as of August 24, 1994. The final application was for $ 474,149.68 in fees and $ 47,889.27 in expenses including interest.
On September 14, 1994 Defendants submitted a brief in lieu of further oral argument in opposition to Plaintiffs' application for attorneys fees. The application for fees was considered fully submitted as of September 28, 1994.
Two issues are before this Court: first, whether the Plaintiffs are entitled to fees for the legal work done prior to the amendment and second, whether they are entitled to fees for work done after the amendment. Both issues are considered in a belated effort to comply with the Supreme Court's admonishment that "[a] request for attorneys' fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).
On a fee application, the claimant has the initial burden of documenting and proving its claims. Id. In light of the papers and hearings on Plaintiffs' fee application, their fee application is granted in part as discussed below:
I. The Mandate Requires Consideration of Both Pre and Post Amendment Fees
Prior to 1988, a district court could award "reasonable" attorneys' fees to a prevailing plaintiff in an FHA action if the plaintiff was "not financially able to assume said attorney's fees." 42 U.S.C. § 3612 (c) (1982). ("Pre-amended Act") The amendments to the Act, effective March 18, 1989, provide that a district court "in its discretion, may allow the prevailing party . . . a reasonable attorney's fee and costs." 42 U.S.C. § 3613 (c) (2) (1988). ("Amended Act"). There is no mention of ability to pay in the amended statute.
The Court of Appeals held that this Court "properly applied the unamended statute to legal services performed prior to the effective date of the amendment." Ragin III, 6 F.3d at 911. It went on to say, however, that in the absence of sufficient proceedings on the issue of Plaintiffs' ability to pay, "a remand is required . . . to determine whether the plaintiffs met the criteria established in the unamended statute for attorneys' fees incurred prior to the effective date." Id.
With regard to legal services provided after the amendment, the Court of Appeals remanded the case to determine "whether plaintiffs were entitled to attorneys' fees for legal work performed after the effective date of the amendment . . ." Id.
Consistent with the Court of Appeals order, determinations regarding reasonable attorneys' fees prior to and after the effective date of the amended act must be made. Pursuant to the statute, the legal fees incurred before the effective date of the amendment will be paid by the defendants only if the plaintiffs' are unable to pay them. Any attorney's fees deemed appropriate for work performed after the effective date will be paid by defendants without regard to the plaintiffs' ability to pay. Ragin III, 6 F.3d at 910-11. See Cabrera v. Jakabovitz, 24 F.3d 372, 392-93 (2d Cir. 1994) (confirming that the Amendment eliminated the financial need requirement).
II. Plaintiffs are Able to Pay Pre-Amendment Fees
Plaintiffs suggest that the amount of attorneys' fees incurred during the pre-amendment period is $ 17,292.00. (Pls.' Amended Br. at 13) and that pre-amendment expenses during this period were at least $ 330.53 (Id.). Plaintiffs suggest that one third of these fees and expenses, or $ 5,764.00 in fees and $ 110.18 are attributable to OHC. The one-third portion, was arrived at by estimates of Plaintiffs' fee counsel regarding the special claims of the institutional plaintiff. (Pls.' Reply at 6 n.3) OHC was one of six original Plaintiffs and one of five Plaintiffs that proceeded to trial. Without further description from counsel segregating the fees attributable to the institutional plaintiff, it is appropriate that one fifth of the fees be paid by OHC.
At the time of trial the four individual Plaintiffs were: Luther Ragin, a lawyer with degrees in law and public policy from Harvard University, who was the Chief Financial Officer of Earl Graves, Ltd.; Deborah Fish Ragin, an employee of Beth Israel Medical Center, who held a masters and a doctoral degree from Harvard University; Renaye Cuyler, a speech pathologist and a lawyer, with a J.D. from Fordham Law School, who was a practicing attorney at her own law firm specializing in personal injury; and Jerome Cuyler, a physician, with an M.D. from Cornell University Medical College, employed as the Associate Director of Brooklyn Jewish Hospital.
The Institutional plaintiff was OHC. OHC is a not-for-profit corporation headquartered in New York City. OHC provides a wide range of services with respect to housing in the New York Metropolitan area, which include providing outreach, and investigation with respect to discriminatory practices in housing.
Pre-Amendment Fees are Subject to the Same Reductions for Inaccurate Record Keeping, Time Spent on Administrative Hearing and Limited Success
The pre-Amendment statute authorizes the court to award "reasonable attorneys fees . . . , provided, that the plaintiff is not financially able to assume said attorney's fees". 42 U.S.C. § 3612 (c) (1982). The first step, therefore, is to determine what reasonable attorneys' fees would be. The second step will be to determine whether or not the plaintiff can pay those fees.
Reductions to the total amount of fees requested in the "Base Application" should be made consistent with the discussion that follows in the Post-Amendment fees section. This will include reductions for inaccurate record keeping, elimination of fees related to work done in preparation for the administrative proceedings and a reduction for limited success in the trial portion of this action.
The result of these reductions is that the Pre-Amendment fees requested by Plaintiffs are reduced to $ 4,177.
The OHC share of that bill for fees will be $ 835.40. OHC has not demonstrated that it is unable to pay its proportionate share of pre-Amendment fees. in fact, Ms. Spiro's affidavit states that OHC's income exceeded its expenses by $ 8,582 in 1988 and by $ 14,596 in 1989. Spiro Second Aff. PP 2,3. This is more than enough money to pay this fee or the $ 5,706.36 that Plaintiffs originally determined to be OHC's share.
In their original motion, Plaintiffs did not ask for $ 11,585.64 (67%) that they evidently attributed to the individual Plaintiffs and which these Plaintiffs were willing to pay. After making reductions in line with this opinion, the total fees allocated to the individual Plaintiffs are only $ 3,342. Since they conceded their ability to pay the $ 11,585.64 fees, this lower fee is also affordable.
For the reasons described above, all of the pre-Amendment fees will be paid by Plaintiffs.
$ 191,184 of Post Amendment Fees will be Paid by Defendants
Generally, in awarding attorneys' fees under federal civil rights fee-shifting statutes, courts are directed to use the lodestar method. Blanchard v. Bergeron, 489 U.S. 87, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989). The law of this Circuit further specifies that "the starting point of every fee award . . . must be a calculation of the attorney's services in terms of the time he [or she] has expended on the case." City of Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974) ("Grinnell"). In Grinnell, the Court of Appeals established what is known as the lodestar approach whereby a court multiplies the number of hours reasonably expended by a reasonable hourly rate to arrive at a reasonable attorneys' fee award. Grinnell, 495 F.2d at 470-71.
After at least five rounds of briefs and lengthy letters, Plaintiffs requested $ 474,149.68 in attorney fees. This represented a $ 115,566.67 reduction from the original request. The reductions included $ 7,739.75 to account for duplicative billings and items reduced as the result of the 2/16/94 hearing and $ 66,588.35 of across the board reductions offered by Plaintiffs in response criticism of duplicative and error-filled billing records.
At the end of the day, and now evening, there must be further reductions to account for some excess in billing rates, inadequate documentation of fees and limited success at trial and on appeal.
Plaintiffs' Base Application, modified over the course of the proceedings, requested the following fees: n1
Name Grad. Year Rate Hours
Hill Betts & Nash
Thomas A. Holman 1972 $ 275 14.6
Post Amendment time
Thomas A. Holman 1972 $ 275 28.96
Summit Solomon and Feldesman (all Post Amendment time)
Thomas A. Holman 1972 $ 275 14.52
Katherine J. Fritz 1985 $ 195 39.44
Byron O. Brissett Law Clerk $ 75 3.8
Lefrak & Holman (all Post-Amendment time)
Thomas A. Holman 1972 $ 275 434.04
Alla Roytberg 1991 $ 125 463.84
Marsha Beil 1972 $ 275 66.48
Louis Wollin 1981 $ 175 3.20
Christina Williamson Paralegal $ 75 64.00
Thomas A. Holman 1972 $ 275 65.91
Alla Roytberg 1991 $ 125 46.13
Marsha Beil 1972 $ 275 16.10
NAACP Legal Defense Fund
Kerry Scanlon 1977 $ 275 19.15
(Macklowe time) n3
(10% of general time) n4 1977 $ 275 26.09
Kerry Scanlon 1977 $ 275 464.1
(10% of general time) 1977 $ 275 3.19
Collette Matzzie law student $ 75 112.00
Kerry Scanlon 1977 $ 275 105.49
Eric Schnapper 1968 $ 325 108.8
Cornelia Pillard 1987 $ 200 129.5
Marianne Merritt law student $ 75 23.03
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