Webb Jr. v. Maldonado Petition for a Writ of Certiorari

    ERICKSON, BEASLEY & HEWITT
ATTORNEYS AT LAW 

Eighth Floor 
12 Geary Street

John H. Erickson San Francisco, California 94108 Telephone:
Alice M. Beasley (415) 781-3040
Henry S. Hewitt 
Leigh-Ann K. Miyasato

October 15, 1987

Steve Ralston 
NAACP Legal Defense Fund 
99 Hudson Street, 16th Floor 
New York, NY 10013

Re: Maldonado v. Lehman 

Dear Steve:

Enclosed is the government's petition for writ in
Maldonado.

Very\ truly yours,

ir V a
John H. Erickson

JHE/eg



No.

In tfy? ©aurt of tlj? Intteii States
O ctober  T e r m , 1987

J a m e s  H . W e b b , J r ., 
Se c r e ta r y  of t h e  N a v y , p e t it io n e r

v.

Ca r m e l o  M a ld o n a d o

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

Charles Fried 
Solicitor General

R ichard K. W illard
Assistant Attorney General

Donald B. Ayer 
Deputy Solicitor General

Paul J. Larkin , Jr.
Assistant to the Solicitor General

W illiam Kanter 
E. Roy Hawkens 

Attorneys
Department o f Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

Whether an attorney’s customary hourly billing 
rate provides the presumptively reasonable hourly 
billing rate when calculating a “ reasonable attorney’s 
fee”  under Title VII of the Civil Rights Act of 1964, 
42 U.S.C. 2000e-5(k).

(i)



II

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption,* 
E.J. Scheyder, Commander, Mare Island Naval Ship­
yard, was sued in the district court in his official ca­
pacity, but he was dismissed from the case by stipu­
lation before the district court entered judgment.

* In accordance with Supreme Court Rule 40.3, James H. 
Webb, Jr., has been substituted for John Lehman, who was 
sued in his official capacity as Secretary of the Navy.



TABLE OF CONTENTS
Page

Opinions below_______________________________________  1

Jurisdiction__________________________________________  1

Statutory provision involved___________________________ 2

Statement_________________________    2

Reasons for granting the petition______________________ 6

Conclusion____________________________________________ 15

Appendix A _________________________________________ la

Appendix B --------------------------------------------------------------  5a

Appendix C _________________________________________ 8a

Appendix D ________________________________________  9a

TABLE OF AUTHORITIES
Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975 )-------------------------------------------------------------  11

Blum v. Stenson, 465 U.S. 886 (1984)_________ 6, 9,11,12
Coulter V. Tennessee, 805 F.2d 146 (6th Cir. 1986),

cert, denied, No. 86-1660 (June 8, 1987)________  9,14
Hanrahan v. Hampton, 446 U.S. 754 (1 9 80 )______  9
Hensley v. Eckerhart, 461 U.S. 424 (1983 )_______ 9, 14
Johnson v. Georgia Highway Express, Inc., 488

F.2d 714 (5th Cir. 1974)______________________  13
Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.

Cir. 1984), cert, denied, 472 U.S. 1021 (1985)_4, 5, 6,
7, 8,10,11, 12, 13

Lenard v. Argento, 808 F.2d 1242 (7th Cir. 1987) _ 9
Marek v. Chesny, 473 U.S. 1 (1985)______________  9,14
Mayson V. Pierce, 806 F.2d 1556 (11th Cir. 1987) _ 12,14 
Pennsylvania v. Delaware Valley Citizens’ Council 

for Clean Air, No. 85-5:
July 2,1986--------------------------------------------- 8, 9, 13,14
June 26,1987________________________________  13

(ill)



Cases— Continued: Page

Save Our Cumberland Mountains, Inc. v. Model,
826 F.2d 43 (D.C. Cir. 1987)____________ 6, 7, 9,10,11

Sierra Club V. EPA, 769 F.2d 796 (D.C. Cir. 1985) _ 6

Statutes:
Civil Rights Act of 1964:

Tit. II, 42 U.S.C. 2000a et seq________________ 9,14
42 U.S.C. 2000a-3 (b ) ____________________  9

Tit. VII, 42 U.S.C. 2000e et seq______________ 6, 9,14
42 U.S.C. 2000e-5 (k )_______________ 2, 3, 6, 9,12
42 U.S.C. 2000e-16(d)___________________  3

Civil Rights Attorney’s Fees Awards Act of 1976,
42 U.S.C. 1988 _____________ ____________  9,12

Clean Air Act § 304(d ), 42 U.S.C. 7604 ( d ) _______ 9

IV

Miscellaneous:
Berger, Court Awarded Attorney’s Fees: What is 

“ Reasonable?” , 126 U. Pa. L. Rev. 281 (1977)__
H.R. Rep. 94-1558, 94th Cong., 2d Sess. (1976)___
S. Rep. 94-1011, 94th Cong., 2d Sess. (1976 )_____

10
9
9



Sn tty Supreme (Urntrt nf tty luttrii &tt\t?$
October  T e r m , 1987

No.
Ja m e s  H . W e b b , J r ., 

Se c r e ta r y  of t h e  N a v y , pe t it io n e r

v.

Ca r m e l o  M ald o n ad o

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of James H. Webb, 
Jr., Secretary of the Navy, hereby respectfully peti­
tions for a writ of certiorari to review the judgment 
of the United States Court of Appeals for the Ninth 
Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 
la-4a) is reported at 811 F.2d 1341. The order of 
the district court (App., infra, 5a-7a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered 
on March 6, 1987. A  petition for rehearing was de­
nied on June 29, 1987 (App., infra, 9a). On Sep-

(1)



2

tember 17, 1987, Justice O’Connor entered an order 
extending the time within which to file a petition for 
a writ of certiorari to and including October 27, 
1987. The jurisdiction of this Court is invoked under 
28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. 2000e-5(k) provides as follows;
In any action or proceeding under this sub- 

chapter the court, in its discretion, may allow 
the prevailing party, other than the Commission 
or the United States, a reasonable attorney’s fee 
as part of the costs, and the Commission and the 
United States shall be liable for costs the same 
as a private person.

STATEMENT

1. In 1978, respondent Carmelo Maldonado, a 
pipefitter at the Mare Island Naval Shipyard in 
Vallejo, California, brought suit against the ship­
yard, alleging that he had been denied a promotion 
due to discrimination. The suit was settled, and re­
spondent was promoted to foreman in 1980. In April 
1982, respondent filed a complaint with the Equal 
Employment Opportunity Commission alleging that 
he had suffered various forms of reprisal for having 
brought his earlier suit. Following a hearing, a hear­
ing examiner issued a recommended decision in which 
he found that respondent had been subjected to re­
prisal. The Secretary of the Navy adopted the ex­
aminer’s findings. The Secretary also informed re­
spondent that his attorney, Robert Atkins,1 was en­

1 Atkins received his law degree in 1979. In 1982, Atkins 
was a third-year associate with the San Francisco law firm 
of Erickson, Beasley & Hewitt. Excerpts of Record (E.R.) 62.



3

titled to present a claim for reasonable attorney’s 
fees and costs to the Navy. App., infra, 2a.

Atkins thereafter presented an affidavit of fees 
and costs. He declared he had performed 164.1 hours 
of work and sought a fee based on a rate of $110 
per hour and $398.20 in costs. The Navy agreed to 
the number of hours spent by Atkins and the amount 
of costs, but the Navy rejected Atkins’ sought-after 
rate of $110 per hour on the ground that it was ex­
cessive. Atkins’ customary billing rate was $80 per 
hour, and the Navy offered to pay respondent a fee 
consistent with that rate, amounting to approxi­
mately $81 per hour. App., infra, 2a-3a.e

2. Dissatisfied with the Navy’s offer, Atkins filed 
suit against petitioner in the United States District 
Court for the Eastern District of California, seeking 
attorney’s fees pursuant to 42 U.S.C. 2000e-5(k) 
and 2000e-16(d). Atkins contended that he was en­
titled to an award of fees based on a $110 hourly 
rate. To support his claim, Atkins submitted affi­
davits stating that other lawyers in the San Fran­
cisco and Oakland areas commanded similar hourly 
rates for their services in comparable cases (App., 
infra, 3a). Petitioner argued that Atkins was not 
entitled to a $110 hourly rate because his customary 
billing rate for similar cases in 1983 was $80 per 2

2 The Navy awarded Atkins $95 per hour for his work at 
administrative hearings, and $75 per hour for his non-hearing 
work. These rates were consistent with Atkins’ customary 
hourly rate, and they corresponded to the maximum rates 
awarded to attorneys by the Merit Systems Protection Board 
for cases arising at the Mare Island Naval Shipyard. E.R. 
195-198. We do not ask the Court to award fees in these 
amounts, however, and they are irrelevant to the question 
presented by this petition.



4

hour and the fee agreement between Atkins and re­
spondent in this case was based on an $80 per hour 
rate (E.R. 204, 207, 214, 218). In addition, peti­
tioner pointed out that Atkins had conceded that his 
customary billing rate for cases not compensated by 
a contingent fee involving “ wills, contracts, real es­
tate acquisition, partnership dissolution, and per­
sonal injury defense” ranged from $60 to $80 per 
hour (E.R. 219). Because the fee proposed by the 
Navy was consistent with Atkins’ customary billing 
rate, petitioner maintained that, under Laffey v. 
Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir. 
1984) (holding that an attorney’s customary billing 
rate is the presumptively reasonable rate for calcu­
lating an attorney’s fee award), cert, denied, 472 
U.S. 1021 (1985), Atkins’ request for a $110 per 
hour fee should be denied.

The district court rejected petitioner’s argument. 
At a hearing on respondent’s motion, the district 
court stated that respondent was entitled to his 
sought-after community hourly rate because his own 
customary rate “ is somewhat falling behind the 
times”  (10/21/85 Tr. 14).3 The court thereafter en­

3 After concluding that San Francisco was the relevant legal 
community, the district court stated that (10/21/85 Tr. 13- 
14):

the next issue is the reasonable rate that can be charged 
and which emanates from that relevant community of 
San Francisco. Again, with all due respect, I have no 
problems in finding the reasonable rate. I take into con­
sideration counsel’s customary rate[,] which is somewhat 
below the so-called reasonable rate in [the] community. 
However, I also take into consideration the so-called cus­
tomary rate in this case is somewhat falling behind the 
times, it’s somewhat below—it’s not the reasonable rate



5

tered an order awarding fees (App., infra, 5a-7a). 
The court acknowledged that Atkins’ customary bill­
ing rate was $80 per hour (id. at 6a), but stated, 
without elaboration or explanation, that a $110 per 
hour rate was reasonable nevertheless (ibid.). The 
court gave no explanation why Atkins should be 
compensated at a rate more than one third in excess 
of his customary hourly billing rate.* I * * 4

3. Petitioner appealed, and the court of appeals 
affirmed (App., infra, la-4a). Petitioner argued that 
the district court applied an erroneous legal standard 
in selecting the hourly rate, and invited the court of 
appeals to adopt the method approved in Laffey for 
determining a lawyer’s reasonable hourly billing 
rate. The court rejected petitioner’s argument on the 
ground that it was foreclosed by prior Ninth Circuit 
case law (id. at 3a-4a). The court stated that an 
attorney’s customary hourly rate is relevant, but it 
is not an abuse of discretion for a district court to 
rely on “  The reasonable community standard that 
was employed here’ ” to calculate a fee award (id. at 
4a (citation omitted)).

that is normally paid to those who somewhat specialize in 
the area.

In any event, the reasonable rate emanating from the 
community is not so unreasonable as compared with the 
customary rate as to make it impossible for this Court 
to make such a finding there to. For all of those reasons,
I will find, having found that the Bay Area is, in fact, 
the appropriate area, that the reasonable rate to be
charged in the community that will be charged in this
case is $110 per hour.

4 In fact, the court denied respondent’s request for a multi­
plier on the ground that “ the results in the case were not 
exceptional and the risk of nonpayment was not great” (App., 
infra, 6a) .



6

REASONS FOR GRANTING THE PETITION

This case presents an important, unsettled, and 
frequently recurring question concerning the proper 
method of calculating a reasonable attorney’s fee un­
der Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e-5(k), and scores of other fee-shifting 
statutes. The Court has recognized that attorney’s 
fees awards should be sufficient to attract competent 
counsel without providing lawyers with windfalls. 
To achieve that goal, the Court has required that a 
fee award for a salaried attorney employed by a legal 
aid organization should be calculated on the basis of 
the prevailing community rate for similar services 
by attorneys of reasonably comparable skill, experi­
ence, and reputation. Blum v. Stenson, 465 U.S. 886, 
895-896 n .ll  (1984). The Court has not yet endorsed 
a method for determining the reasonable hourly rate 
for an attorney with an established billing history. 
This case, which creates an express conflict among 
the circuits regarding the proper method for deter­
mining the reasonable hourly rate for such attorneys, 
offers the Court an opportunity to provide needed 
clarification of the law in this area.

1. The Ninth Circuit’s decision in this case 
squarely conflicts with the District of Columbia Cir­
cuit’s decision in Laffey v. Northwest Airlines, Inc., 
746 F.2d 4 (1984), cert, denied, 472 U.S. 1021 
(1985). See also Save Our Cumberland Mountains, 
Inc. v. Hodel, 826 F.2d 43 (D.C. Cir. 1987); Sierra 
Club v. EPA, 769 F.2d 796, 811-812 (D.C. Cir. 
1985). In Laffey, counsel for the prevailing parties 
in a Title VII lawsuit sought attorneys’ fees under 
42 U.S.C. 2000e-5(k) based upon an hourly rate 
that was consistent with a composite prevailing mar­
ket rate, but that exceeded counsel’s own customary



7

billing rate. The court of appeals expressly rejected 
that claim, holding that an attorney’s customary bill­
ing rate constitutes the presumptively reasonable rate 
to be used in calculating a fee award as long as it is 
not aberrationally high or low. An attorney’s fee 
award should thus be calculated on the basis of coun­
sel’s customary billing rate even if it differs, perhaps 
greatly, from a composite average market hourly 
rate. 748 F.2d at 16-25.® As the District of Colum­
bia Circuit recently put it, “ [i]n  this circuit, the 
rule is * * * [that] if an attorney has a customary 
billing rate, that rate constitutes the presumptively 
reasonable rate to use in computing a fee award. In 
general, only if the attorney himself has no custom­
ary billing rate may the court base its fee award on 
a composite average market hourly rate.” Save Our 
Cumberland Mountains, Inc. v. Hodel, 826 F.2d at 
47-48.

In this case, petitioners relied on the Laffey deci­
sion in arguing that the district court applied an 
erroneous legal standard in calculating respondent’s

6 The Laffey court explained that an attorney seeking com­
pensation must provide evidence of the rate he customarily 
charges in private representation. That rate presumptively 
serves as the reasonable market rate for his services. Next, 
counsel must provide evidence that enables the court to deter­
mine whether that hourly rate falls within the reasonable 
range of hourly rates billed by other lawyers for similar work 
in the same community. In calculating the appropriate range 
of reasonable hourly rates, a court would disregard abnor­
mally high and low billing rates. As long as an attorney’s 
customary rate fell within that range, it serves as the reason­
able hourly rate at which an attorney’s fee would be calcu­
lated. Laffey, 746 F.2d at 24-25.



8

fee. The Ninth Circuit expressly rejected the ap­
proach endorsed in Laffey and upheld the district 
court’s fee award even though it was based on an 
hourly rate that substantially exceeded Atkins’ cus­
tomary hourly fee (App., infra, 3a-4a, 6a). In so 
doing, the court o f appeals offered no reason why 
Atkins should be compensated by the Navy at an 
hourly rate more than a third higher than what he 
obtained in the market for private representation. 
This conflict demands resolution by this Court.

2. The decision below is also incorrect. By ruling 
that district courts have discretion to disregard an 
attorney’s customary billing rate and to award fees 
that are calculated on the basis of a composite mar­
ket hourly rate, the court of appeals approved a fee 
award more than one third in excess of the rate that 
respondent’s counsel commands from fee-paying 
clients. That outcome is utterly inconsistent with 
the rationale underlying fee-shifting statutes and is 
unsupported by this Court’s decisions.

Fee-shifting statutes exist to provide plaintiffs 
with meritorious claims a fee sufficient to attract 
competent attorneys, not to improve the financial con­
dition o f lawyers. As this Court recently explained 
in Pennsylvania v. Delaware Valley Citizens’ Council 
for Clean Air, No. 85-5 (July 2, 1986) (Delaware 
Valley I ) ,  slip op. 17-18, “ [fee-shifting] statutes 
were not designed as a form of economic relief to 
improve the financial lot o f attorneys, nor were they 
intended to replicate exactly the fee an attorney could 
earn through a private fee arrangement with his 
client. Instead, the aim of such statutes was to en­
able private parties to obtain legal help in seeking 
redress for injuries resulting from the actual or



9
threatened violation of specific federal laws.” 6 A 
reasonable attorney’s fee therefore is one that will 
induce attorneys to handle meritorious cases without 
paying plaintiffs a windfall.7

6 See also S. Rep. 94-1011, 94th Cong., 2d Sess. 6 (1976) ; 
H.R. Rep. 94-1558, 94th Cong., 2d Sess. 8 (1976) ; Marek V. 
Chesny, 473 U.S. 1, 10 (1985) ; Blum v. Stenson, 465 U.S. 886, 
893-894 (1984) ; Hensley V. Eckerhart, 461 U.S. 424, 429 
(1983).

Neither the text nor legislative history of 42 U.S.C. 2000e- 
5(k) contains directions for calculating a reasonable attor­
ney’s fee. Delaware Valley I involved Section 304(d) of the 
Clean Air Act, 42 U.S.C. 7604(d), but the Court concluded 
that it should be interpreted in accordance with the case law 
addressing the Civil Rights Attorney’s Fees Awards Act of 
1976, 42 U.S.C. 1988. That Act was patterned after the 
attorney’s fee provisions of Titles II and VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000a-3(b) and 2000e-5(k). 
S. Rep. 94-1011, supra, at 4; Hensley v. Eckerhart, 461 U.S. 
at 433 n.7; Hanrahan V. Hampton, 446 U.S. 754, 758 n.4 
(1980). The Court has stated that the approach for determin­
ing a reasonable attorney’s fee under 42 U.S.C. 1988 is ap­
plicable to other fee statutes as well. Delaware Valley I, slip 
op. 13-21; Hensley V. Eckerhart, 461 U.S. at 433 n.7. The 
lodestar approach endorsed in cases such as Delaware Valley I 
is therefore applicable to this case.

7 See Save Our Cumberland Mountains, Inc. v. Hodel, 826 
F.2d at 49; Lenard V. Argento, 808 F.2d 1242, 1247 (7th Cir. 
1987) ( “The statute allows only a reasonable fee. This means 
a fee large enough to induce competent counsel to handle the 
plaintiff’s case, but no larger.” ) ; see also Coulter V. Tennessee, 
805 F.2d 146, 148-149 (6th Cir. 1986) ( “ Congress intended to 
provide an economic incentive for the legal profession to try 
meritorious cases defining and enforcing statutory policies and 
constitutional rights in a variety of fields of legal practice. 
Congress did not intend that lawyers, already a relatively 
well off professional class, receive excess compensation or 
incentives beyond the amount necessary to cause competent 
legal work to be performed in these fields.” ), cert, denied, 
No. 86-1660 (June 8, 1987).



10

The approach followed in Laffey fully serves that 
goal. A  lawyer’s customary billing rate provides a 
precise measure of the value of his time and effort, 
even if that rate is less than what is charged by 
other attorneys in the legal community. It is unnec­
essary to compensate a lawyer, such as Atkins, more 
handsomely in order to attract him to this type of 
case. In other words, if a lower hourly dollar award 
is sufficient to attract competent attorneys in gen­
eral, and Atkins in particular, to litigation of the 
type at issue here, that hourly rate completely satis­
fies the purpose of a fee-shifting statute by ensuring 
that like attorneys will take on such cases. Any 
greater amount is unnecessary to attract competent 
lawyers and constitutes a windfall by definition. 
Save Our Cumberland Mountains, Inc. v. Hodel, 826 
F.2d at 49; see Berger, Court Awarded Attorney’s 
Fees: What is “Reasonable?” , 126 U. Pa. L. Rev. 
281, 321 (1977).8

This case illustrates that principle. An award 
based on an $80 per hour rate would have exactly

8 As one commentator has observed (Berger, supra, 126 
U. Pa. L. Rev. at 321 ( quoted in Laffey, 746 F.2d at 18)) : 

The court must determine a value for the attorney’s time 
that will place statutory fee cases on a competitive eco­
nomic basis * * *. For lawyers engaged in customary 
private practice, who at least in part charge their clients 
on an hourly basis regardless of the outcome, the market­
place has set that value. For these attorneys, the best 
evidence of the value of their time is the hourly rate 
which they most commonly charge their fee-paying clients 
for similar legal services. This rate reflects the training, 
background, experience, and previously demonstrated 
skill of the individual attorney in relation to other lawyers 
in that community.



11

offset the opportunity cost to Atkins from represent­
ing respondent because, by his firm’s own estimation, 
that fee accurately reflects his background, experi­
ence, and skill relative to that of other attorneys in 
the community. Moreover, the lower courts’ decision 
to inflate Atkins’ customary rate by more than one 
third resulted in an hourly rate that substantially 
exceeded what Atkins historically had charged other 
parties, including civil rights claimants, and even 
exceeded the rate that Atkins had agreed to charge 
respondent.9

The primary argument to the contrary is that this 
Court’s decision in Blum v. Stenson, 465 U.S. 886 
(1984), requires a composite market hourly rate to 
be used to calculate all fee awards. Save Our Cum­
berland Mountains, Inc. v. Hodel, 826 F.2d at 55-60 
(Wald, C.J., dissenting); Laffey, 746 F.2d at 32- 
33 (Wright, J., dissenting). That argument rests 
largely on the statement in Blum that “ Congress did 
not intend the calculation of fee awards to vary de­
pending on whether plaintiff was represented by pri­
vate counsel or by a nonprofit legal services organiza­
tion.” 465 U.S. at 894. A  composite market rate 
must be used for all attorneys, the argument goes, to 
ensure that fees are calculated in the same way for 
both private, for-profit attorneys and lawyers em­

9 The lower courts’ reliance on a community standard hourly 
rate is clearly in error even under the abuse of discretion 
approach followed by the court of appeals. Discretion must 
be exercised in a principled fashion. See Albemarle Paper Co. 
V. Moody, 422 U.S. 405, 416-417 (1975). The court of appeals, 
however, gave no explanation why a district court has discre­
tion to augment an attorney’s hourly billing rate simply be­
cause the defendant must foot the bill.



12

ployed by a non-profit legal services corporation. 
Properly read, however, the decision in Blum is not 
contrary to the approach taken in Laffey.

Blum endorsed a market rate approach, rather than 
a cost-based approach, because the legislative history 
of 42 U.S.C. 1988 approved that result. Because there 
is no market rate for a salaried attorney, Blum re­
quired courts to calculate a fee based on the relevant 
composite market rate. When counsel’s own rates are 
available, however, Blum does not require a court to 
blind itself to those rates. Nothing in Blum or the 
legislative history of 42 U.S.C. 2000e-5(k) suggests 
that a lawyer who receives fees from clients rather 
than a salary from donors is not reasonably compen­
sated under a fee-shifting statute by reference to his 
own hourly billing rates. In sum, the statement in 
Blum quoted above must be read in the context of 
the issue that the Court addressed. That statement 
does not foreclose the position we urge here, because 
that question was not before the Court in Blum.

3. Basing a fee award on counsel’s customary bill­
ing rate will also produce several other beneficial re­
sults. See generally Laffey, 746 F.2d at 18-22; May- 
son v. Pierce, 806 F.2d 1556, 1561 (11th Cir. 1987) 
(Clark, J., dissenting). First, that approach will 
often eliminate the difficult and sometimes impossible 
task of calculating a particular, exact market rate 
from the universe of rates billed by attorneys.10 Sec­

10 Calculating a composite market hourly rate can be an 
onerous task if done properly. See Blum V. Stenson, 465 U.S. 
at 895-896 n .l l  ( “ We recognize, of course, that determining 
an appropriate ‘market rate’ for the services of a lawyer is 
inherently difficult.” ).



13

ond, the approach followed in Laffey can lessen, if 
not sometimes altogether avoid, a second round of 
litigation over the fee question by providing a losing 
party with an incentive to settle, since a lawyer’s 
hourly billing rate can be determined objectively.11 
Third, the Laffey approach will limit the trial judge’s 
ability arbitrarily to punish or reward counsel for 
either party by setting rates.12 Fourth, that approach 
avoids the unprincipled, but otherwise inevitable, bat-

11 The Laffey court predicted that the approach that it 
adopted would reduce fee litigation by establishing a predict­
able and objective standard for setting hourly rates. 746 F.2d 
at 21-22. That prediction was accurate. The United States 
Attorney for the District of Columbia advises us that the 
Laffey decision has resulted in less litigation over fees. Be­
fore the Laffey decision, the United States Attorney’s office 
devoted a substantial amount of time comparing the skills 
and experiences of lawyers to calculate an appropriate mar­
ket rate. Since Laffey, however, litigation over fees has 
been greatly reduced because of the relative ease of determin­
ing an attorney’s customary billing rate. The Laffey standard 
has promoted settlements and has reduced second major liti­
gations over fees.

12 See Pennsylvania V. Delaware Valley Citizens’ Council for 
Clean Air, No. 85-5 (June 26, 1987) (Delaware Valley II),  
slip op. 2 (O’Connor, J., concurring in part and concurring in 
the judgment) ( “ To be ‘reasonable,’ the method for calculat­
ing a fee award must be not merely justifiable in theory but 
also objective and nonarbitrary in practice.” ) ; cf. Delaware 
Valley I, slip op. 15 (noting that the 12-factor test adopted in 
Johnson V. Georgia Highway Express, Inc., 488 F.2d 714, 
717-719 (5th Cir. 1974), has been criticized on the ground 
that “ it gave very little actual guidance to District Courts. 
Setting attorney’s fees by reference to a series of sometimes 
subjective factors placed unlimited discretion in trial judges 
and produced disparate results.” ).



14

tie of the experts, as well as the disingenuousness 
that such a procedure often produces.13

4. The question presented by this case has con­
siderable practical importance. More than 100 stat­
utes authorize an award of “ reasonable” attorney’s 
fees to a prevailing party,14 and the Court has indi­
cated that the fees awarded under these acts should 
be calculated in the same manner. Delaware Valley 
I, slip op. 13-21; Hensley v. Eckerhart, 461 U.S. 424, 
483 n.7 (1983). The answer to the question pre­
sented by this case not only will govern the award of 
attorney’s fees under Titles II and VII of the Civil 
Rights Act of 1964, but also will apply to every fee 
statute in which Congress has authorized an award 
of “ reasonable” fees without a defined hourly rate. 
The decision below therefore clearly warrants review 
by this Court.

13 Judge Clark criticized as “ deplorable”  the “past practice 
of fixing an attorney’s ‘reasonable hourly rate’ by approving 
the use of affidavits at the extremities. It has been the custom 
for many years for an attorney seeking court approved fees 
to submit affidavits from friendly attorneys who state that a 
reasonable rate is that which approximates the highest rate 
charged in the community. These affidavits are opposed by 
those from friends of defense counsel who swear to the rea­
sonableness of the lowest rate which is charged by parts of the 
legal community.”  May son V. Pierce, 806 F. 2d at 1561 (Clark, 
J., dissenting).

14 Delaware Valley I, slip op. 14 ( “ There are over 100 sepa­
rate statutes providing for the award of attorney’s fees; and 
although these provisions cover a wide variety of contexts and 
causes of action, the benchmark for the awards under nearly 
all of these statutes is that the attorney’s fee must be ‘reason­
able.’ ” ) ; see also Marek V. Chesny, 473 U.S. at 44-51 (Bren­
nan, J., dissenting) (listing statutes) ; Coulter V. Tennessee, 
805 F.2d at 152-155 (same).



15

CONCLUSION

The petition for a writ of certiorari should be 
granted.

Respectfully submitted.

October 1987

Charles Fried 
Solicitor General

Richard K. W illard
Assistant Attorney General

Donald B. Ayer
Deputy Solicitor General

Paul J. Larkin , Jr.
Assistant to the Solicitor General

W illiam Kanter 
E. Roy Hawkens 

Attorneys



APPENDIX A

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Nos. 86-1545; 86-1578 

D.C. No. CV-S-84-0334-RAR 

Ca r m e lo  M a ld o n a d o ,
PLAINTIFF-APPELLEE-CROSS-APPELLANT

V,
J o h n  L e h m a n , in his capacity as Secretary of the 

Navy; E. J. Sch eyder , in his capacity as Com­
mander, Mare Island Naval Shipyard, d e f e n d a n t s -
APPELLANTS-CROSS-APPELLEES

Appeal from the United States District Court 
for the Eastern District of California 

Raul A. Ramirez, District Judge, Presiding

Argued and Submitted

December 12, 1986— San Francisco, California 

Filed March 6, 1987

Opinion by Judge Hall

Before: Alfred T. Goodwin, Harry Pregerson and 
Cynthia Holcomb Hall, Circuit Judges

(la)



2a

OPINION

HALL, Circuit Judge:
The United States Navy appeals from the dis­

trict court’s award of attorney’s fees to Carmelo 
Maldonado (Maldonado) as a prevailing party in his 
Title VII, 42 U.S.C. §§ 2000e-16(c), action against 
the Navy. Maldonado cross-appeals from the district 
court’s refusal to apply a multiplier. This court has 
jurisdiction over the appeals pursuant to 28 U.S.C. 
§ 1291. We affirm.

I
In 1978, Maldonado, an employee at the Mare Is­

land Shipyard, sued the Shipyard for employment 
discrimination. The suit settled, and Maldonado was 
promoted. In 1982, Maldonado filed a complaint with 
the Equal Employment Opportunity Commission al­
leging reprisal for his 1978 suit. After a five-day 
hearing, the Examiner found that Maldonado had 
experienced reprisal. The Secretary of the Navy 
adopted the Examiner’s findings. Pursuant to 29 
C.F.R. § 1613.271(c), the Secretary also found that 
Maldonado was a prevailing party and, therefore, 
that his attorney, Robert Atkins (Atkins), was en­
titled to present a claim for reasonable attorney’s 
fees and costs to the Navy.

Atkins then presented an affidavit to the Navy. 
He claimed that he had spent 164.1 hours working 
on Maldonado’s case and asked for a fee of $110 per 
hour and a multiplier of two. He also requested 
$398.20 in costs. The Navy accepted as reasonable 
the amount of costs and the number of hours worked. 
However, the Navy rejected Atkins’ requested hourly 
rate, and, instead, awarded $95 per hour for Atkins’ 
work at administrative hearings and $75 per hour



3 a

for his non-hearing work. The Navy claimed that 
these rates were consistent with Atkins’ customary 
billing rate of $80 per hour. The Navy refused to 
apply a multiplier because it felt that additional com­
pensation was not warranted.

Maldonado, dissatisfied with the Navy’s award of 
fees, filed a complaint for attorney’s fees in district 
court pursuant to 42 U.S.C. § 2000e-16(c). In sup­
port of his request for a fee of $110 per hour, Mal­
donado submitted affidavits from attorneys in San 
Francisco showing that other similarly situated at­
torneys charged from $90 to $135 per hour. The 
district court found that $110 was a reasonable 
hourly rate for Atkins’ services and assessed the fee 
award accordingly. The court refused to apply a 
multiplier. The Navy now appeals the district 
court’s award of fees, and Maldonado cross-appeals 
the court’s refusal to apply a multiplier.

II
In a civil action filed under 42 U.S.C. § 2000e- 

16 (c), the district court reviews the agency’s deci­
sion de novo. Chandler v. Roudebush, 425 U.S. 840 
(1976). We review the amount of fees awarded by 
the district court for an abuse of discretion. Chal­
mers v. City of Los Angeles, 796 F.2d 1205, 1210 
(9th Cir. 1986).

III
The Navy argues that the district court should 

have calculated the award of attorney’s fees using 
Atkins’ customary billing rate rather than the pre­
vailing market rate in San Francisco. See, e.g., 
Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C. 
Cir. 1984), cert, denied, 469 U.S. 1181 (1985). This 
Circuit does not follow the legal standard set forth



4a

in Laffey. “ While evidence of counsel’s customary 
hourly rate may be considered by the District Court, 
it is not a abuse of discretion in this type of case to 
use the reasonable community standard that was 
employed here.”  White v. City of Richmond, 713 
F.2d 458, 461 (9th Cir. 1983).

IV
Maldonado argues that the district court abused 

its discretion by not applying a multiplier in calcu­
lating the award of attorney’s fees. Maldonado has 
the burden of proving that an upward adjustment is 
necessary to award him a reasonable fee. Blum v. 
Stenson, 465 U.S. 886, 898 (1984). While adjust­
ments are possible, they are rare and must be sup­
ported by specific evidence and detailed findings. Id. 
at 898-900. Maldonado failed to establish that an 
upward adjustment was warranted in this case.

AFFIRMED.



APPENDIX B

UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF CALIFORNIA

No. Civ S-84-0334 RAR 
Ca r m e l o  M a ld o n a d o , p l a in t if f  

v.

J o h n  L e h m a n , in his capacity as Secretary o f  the 
Navy; E. J. Sc h e y d e r , in his capacity as Com ­
mander, Mare Island Naval Shipyard, d e fe n d a n ts

[Filed Nov. 5, 1985]

ORDER GRANTING ATTORNEYS’ FEES 
AND COSTS

Plaintiff’s motion for an award of attorneys’ fees 
and costs came on for hearing on October 21, 1985 
before the Honorable Raul A. Ramirez of the United 
States District Court for the Eastern District of 
California. Leigh-Ann K. Miyasato appeared on be­
half of plaintiff. Defendant was represented by 
Joseph E. Maloney, Assistant United States Attor­
ney.

Plaintiff’s motion was made under Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. §§ 20Q0e-5, 
2000e-16. It was undisputed that the 165.35 hours 
of work performed by plaintiff’s counsel and the 
$398.20 in costs expended were reasonable, but de­
fendant challenged plaintiff’s request for an hourly 
rate of $110.00 and for a multiplier of 2.0.



The Court finds that the relevant community for 
purposes of determining the hourly rate for plain­
tiff’s counsel is the San Francisco Bay Area. Al­
though the administrative proceedings in the case 
were held at Mare Island Naval Shipyard in Vallejo, 
California, the Court finds that the rates for plain­
tiff’s counsel, Robert Atkins, should be based on the 
prevailing market rates in the San Francisco Bay 
Area because it was reasonable for plaintiff to re­
tain counsel from San Francisco. The case involved 
the specialized fields of federal administrative law 
and federal employment discrimination law. Only a 
small number of attorneys are available in Vallejo 
to handle such cases. Vallejo is only a short distance 
from San Francisco. Finally, plaintiff had previ­
ously been represented by an attorney from Mr. 
Atkins’ firm in an employment discrimination matter 
and had developed a relationship of trust and con­
fidence with the firm.

Taking into account Mr. Atkins’ customary bill­
ing rate of $80.00 per hour, but considering that the 
declarations of San Francisco Bay Area counsel in­
dicate a higher prevailing market rate for similar 
services, the Court finds that a reasonable rate for 
Mr. Atkins is $110.00 per hour.

The Court denies plaintiff’s request for a multi­
plier on the grounds that the results in the case were 
not exceptional and the risk of nonpayment was not 
great.

Having found that it was reasonable for plaintiff 
to request payment at the hourly rate of $110.00 for 
all time expended, rather than to accept the hourly 
rates paid by defendant ($75.00 for nonhearing 
time and $95.00 for hearing time), the court further 
finds that plaintiff’s motion for an award of attor­
neys’ fees and costs was reasonable and that plaintiff 
is entitled to payment for work performed on the



7a
motion. The hours and rates claimed for work per­
formed on the motion were reasonable.

Accordingly, the court awards reasonable attor­
neys’ fees and costs in the amount of $11,143.08, cal­
culated as follows:

For the work of Robert Atkins, 165.35 hours at 
$110.00 per hour, for a total of $18,188.50.

For costs expended in handling the merits of the 
case, $398.20.

For the work of John H. Erickson on the motion 
for attorneys’ fees and costs, 3.5 hours at $170.00 
per hour, for a total of $595.00.

For the work of Leigh-Ann K. Miyasato on the 
motion for attorneys’ fees and costs, 45.33 hours at 
$110.00 per hour, for a total of $4,986.30.

For costs expended in handling the motion for 
attorneys’ fees and costs, $474.51.

Credit for amounts previously paid by defendant, 
$13,499.43.

IT IS ORDERED that plaintiff recover $11,143.08 
as reasonable attorneys’ fees and costs.
D ATED :

/ s /  Raul A. Ramirez 
R a u l  A . R a m ir e z  
United States District Judge

APPROVED AS TO FORM:
Dated: October 23, 1985

/ s /  Leigh-Ann K. Miyasato 
L e ig h -A n n  K . M iya sa to  
Attorney for Plaintiff 
Dated: Oct. 24, 1985

/ s /  Joseph E. Maloney 
J oseph  E. M a l o n e y  
Attorney for Defendant



8a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF CALIFORNIA

APPENDIX C

Case Number: CIV-S-84-0334-RAR 
M aldo nado

v.

L e h m a n

[Filed Nov. 12, 1985]

JUDGMENT IN A CIVIL CASE
□  Jury Verdict. This action came before the Court 

for a trial by jury. The issues have been tried 
and the jury has rendered its verdict.

[x] Decision by Court. This action came to trial or 
hearing before the Court. The issues have been 
tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED
THAT JUDGMENT BE AND HEREBY IS EN­
TERED IN FAVOR OF PLAINTIFF.
NOVEMBER 12, 1985
Date

J a m e s  R. Gr in d sta ff  
Clerk

/ s /  Sharon Sinander 
S. S in a n d e r  
(By) Deputy Clerk



9a

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Nos. 86-1545 & 86-1578 
DC No. CV-S-84-0334-RAR

Ca r m e l o  M a ld o n a d o , 
p l a in t if f / a p p e l l e e / cross-a p p e l l a n t

APPENDIX D

V.

J o h n  L e h m a n , in his capacity as Secretary of the 
Navy; E. J. Sc h e y d e r , in his capacity as Com­
mander, Mare Island Naval Shipyard, d e f e n d a n t s /
APPELLANTS/CROSS-APPELLEES

[Filed Jun. 29, 1987]

ORDER
Before: GOODWIN, PREGERSON, and HALL,
Circuit Judges.

The panel has voted to deny the petition for re­
hearing and to reject the suggestion for rehearing 
en banc.

The full court has been advised of the suggestion 
for rehearing en banc and no active judge has re­
quested a vote on whether to rehear the matter en 
banc. (Fed. R. App. P. 35.)

The petition for rehearing is denied and the sug­
gestion for rehearing en banc is rejected.

&  U . S .  GOVERNMENT PRINTING OFFICE; 1 9 8 7 1 8 1 4 8 3  6 0 0 4 5