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December 18, 1996


The opinion of the court was delivered by: MARTIN

 JOHN S. MARTIN, Jr., District Judge:

 Presently before the Court is plaintiff's application for attorney's fees and costs in the amount of $ 139,022.68. While the defendant objects to the alleged lack of detail in the time records and to certain specific charges, those objections are without merit, except that the Court will disallow 63.9 hours spent on plaintiff's unsuccessful motion for a new trial on the claim of employment discrimination which the jury rejected. The Court also finds that the rate of $ 225 per hour is reasonable for an attorney of Ms. Golden's skill and experience.

 The principal issue the Court must decide is whether the amount of the time charges should be significantly reduced to reflect the fact that plaintiff was successful on only one of her two claims. The Court agrees with the plaintiff that the two claims were sufficiently related so that the amount of time expended on the successful claim would not have been substantially less if that claim was the only one alleged. Thus counsel's total time charges less the adjustment noted above constitute a fair lodestar for starting an analysis of a reasonable attorney's fee in this case.

 The most significant question is what proportion of the lodestar of $ 124,645.18 should be awarded given that the total judgment recovered by plaintiff was only $ 158,145. The resolution of this question raises fundamental issues of public policy which have been debated in both the Supreme Court and the Second Circuit. It is far from clear, however, how either of those courts would answer these questions today.

 The basic question centers on the extent to which there should be a proportional relation between the amount of the fee and the amount of the plaintiff's recovery. This issue was squarely presented to the Supreme Court in City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986) in which the Court sustained a fee award of $ 245,456.25, even though the plaintiffs had received a total award of only $ 33,350 in compensatory and punitive damages. In that case the Court rejected the argument of the petitioners, and the United States as amicus curiae, that attorneys' fees in civil rights cases should be analogized to fees in tort cases and should be proportionate to the amount of recovery.

 Unfortunately for those seeking guidance from the Supreme Court there was no majority opinion in Rivera. The plurality opinion, authored by Justice Brennan, who was joined by Justices Marshall, Blackmun and Stevens, rejected applying the concept of proportionality on the ground that civil rights litigation seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. In a strong dissent, Justice Rehnquist, joined by Chief Justice Burger and Justices White and O'Connor, argued that, in determining whether the time for which the prevailing attorney seeks compensation was reasonably spent, the district court should ask whether a competent attorney would reasonably have spent that amount of billable time on a matter that was likely to result in such a small recovery. Although Justice Rehnquist's dissent suggested that the "billing judgment" approach should control in most cases, it did recognize that there could be exceptions where the defendant's bad-faith conduct significantly increased the cost of litigation, or where the litigation produced substantial benefits for persons other than the plaintiff.

 The deciding vote in Rivera was cast by Justice Powell, who joined only in the Court's judgment and stated that in his view the plurality had read too narrowly the Court's prior decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) in which the Court said that in determining the amount of the attorney's fees "the most critical factor is the degree of success obtained." Hensley, 461 U.S. at 436, 103 S. Ct. at 1941. Justice Powell did, however, reject the rule of proportionality on the ground that "the facts and circumstances of litigation are infinitely variable." Rivera, 477 U.S. at 585, 106 S. Ct. at 2700.

 In determining not to set aside the factual finding of the district court that the attorney's expenditure of time was reasonable, Justice Powell stated:

Where recovery of private damages is the purpose of a civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought. In some civil rights cases, however, the court may consider the vindication of constitutional rights in addition to the amount of damages recovered. In this case, for example, the District Court made an explicit finding that the "public interest" had been served by the jury's verdict that the warrantless entry was lawless and unconstitutional. Although the finding of a Fourth Amendment violation hardly can be considered a new constitutional ruling, in the special circumstances of this case, the vindication of the asserted Fourth Amendment right may well have served a public interest, supporting the amount of the fees awarded. As the District Court put it, there were allegations that the police misconduct was 'motivated by a general hostility to the Chicano community in the area . . . .' The record also contained evidence of racial slurs by some of the police. Rivera, 477 U.S. at 585-86, 106 S. Ct. at 2700 (citations omitted).

 Any continuing authority of the plurality opinion in Rivera was cast in serious doubt by the Supreme Court's subsequent opinion in Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). In that case the plaintiff had recovered only nominal damages but the district court awarded $ 280,000 in attorneys' fees. The Circuit Court reversed on the ground that a party who received only nominal damages should not be considered the prevailing party. The Supreme Court five person majority, in an opinion written by Justice Thomas, disagreed with the Circuit and held that the plaintiff was the prevailing party, but found that the award of nominal damages was such a limited success that it was reasonable to deny the plaintiff attorneys' fees altogether. Justice Thomas stated:

Once civil rights litigation materially alters the legal relationship between the parties, "the degree of the plaintiff's overall success goes to the reasonableness" of a fee award under Hensley v. Eckerhart. Indeed, "the most critical factor" in determining the reasonableness of a fee award "is the degree of success obtained." Farrar, 113 S. Ct. at 574 (citing Hensley, 461 U.S. at 436, 103 S. Ct. at 1941).

 Justice Thomas concluded:

Whatever the constitutional basis for substantive liability, damages awarded in a § 1983 action "must always be designed 'to compensate injuries caused by the [constitutional] deprivation'" Memphis Community School Dist. v. Stachura, 477 U.S. 299, 309, 106 S. Ct. 2537, 2544, 91 L. Ed. 2d 249) (quoting Carey v. Piphus, 435 U.S. 247, 265, 98 S. Ct. 1042, 1053, 55 L. Ed. 2d 252 (1978))(emphasis and brackets in original). When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, see Carey, supra, at 256-257, 264, 98 S. Ct. at 1048-49, 1052, the only reasonable fee is usually no fee at all. In an apparent failure to heed our admonition that fee awards under § 1988 were never intended to "'produce windfalls to attorneys,'" Riverside v. Rivera, [citation ...

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