New York State Association for Retarded Children, Inc. v. Carey Brief Amici Curiae
Public Court Documents
June 29, 1983

Cite this item
-
Brief Collection, LDF Court Filings. New York State Association for Retarded Children, Inc. v. Carey Brief Amici Curiae, 1983. e40fdd7c-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8407aade-96dd-44ac-bfc4-db920efcdd74/new-york-state-association-for-retarded-children-inc-v-carey-brief-amici-curiae. Accessed June 13, 2025.
Copied!
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 82-7531 NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al., Plaintiffs-Appellees, v. HUGH L. CAREY, INDIVIDUALLY AND AS GOVERNOR OF THE STATE OF NEW YORK, et al., Defendants-Appellants. BRIEF AMICI CURIAE IN SUPPORT OF PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC, BY THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., THE PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC., AND THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW JACK GREENBERG JAMES M. NABRIT, III CHARLES STEPHEN RALSTON STEVEN L. WINTER 10 Columbus Circle Suite 2030 New York, N.Y. 10019 (212) 586-8397 Attorneys for the NAACP Legal Defense and Educational Fund, Inc. JACK JOHN OLIVERO ROBERT L. BECKER 95 Madison Avenue New York, N.Y. 10157 (212) 532-8470 Attorneys for the Puerto Rican Legal Detense and Education Fund, me. WILLIAM L. ROBINSON NORMAN J. CHACHKIN 733 15th Street, N.W. Suite 520 Washington, D.C. 20005 (202) 628-6700 Attorneys for the Lawyers' Committee for Civil Rights Under Law INDEX Page I. Interest of Amici............................... 1 II. THE PANEL OPINION DOES VIOLENCE TO THE CLEARLY EXPRESSED CONGRESSIONAL INTENT IN PASSING § 1988 THAT FEES TO NON-PROFIT, CIVIL RIGHTS LITIGATING ORGANIZATIONS SHOULD BE AWARDED ON THE SAME BASIS AS FEES TO PRIVATE ATTORNEYS.............. 4 III. THE COST-BASED "BREAK POINT" STANDARD APPLIED BY THE PANEL IS UNWORKABLE AND WOULD RESULT IN GREATLY INCREASED LITIGATION OVER FEES ......... 9 IV. THE PANEL OPINION IS AT ODDS WITH THE DECISION OF THE SUPREME COURT AND EVERY CIRCUIT INCLUDING THIS O N E ....................................... IJ CONCLUSION......................................... 15 Table of Authorities Page Cases: Allen v. Amalgamated Transit Union Local 788, 554 F . 2d 876 (8th Cir. 1977) ................... 13 Beazer v. New York City Transit Authority, 558 F.2d 97 (2d Cir. 1977), rev1d on other grounds, 440 U.S. 568 (1979) ............. 13 Carey v. New York Gaslight Club, Inc., 598 F.2d 1253 (2nd Cir. 1979), aff’d, 447 U.S. 54 ( 1980) .......................................... 14 Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980 ) ...................................... 12,13,15 Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974 ) ................................. 7 , 13 Fontila v. Carter, 571 F.2d 487 (9th Cir. 1978) ..... 13 Gautreaux v. Chicago Housing Authority, 690 F.2d 601 (7th Cir. 1982) ............................. 13 Hariston v. R. & R. Apartments, 510 F.2d 1090 (7th Cir. 1975 ) 13 Hensley v. Eckerhart, U.S. , 51 U.S.L.W. 4552 (May 16, 1983) .................. 9, 12,13,14, 15 Incarcerated Men of Allen Cty. Jail v. Fair, 507 F. 2d 281 (6th Cir. 1974) ................... 13 James v. Stockham Valves & Fittings Co., 559 F. 2d 310 (5th Cir. 1977) ................... 13 Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974 ) passim Johnson v. University College of Univ. of Alabama, No. 81-7860 (SI. op.) (11th Cir., June 10, 1983) 13,15 Oldham v. Ehrlich, 617 F.2d 163 (8th Cir. 1980) ..... 13 Palmigiano v. Garrahy, 616 F.2d 598 (1st Cir. 1980) .. 13 Ramos v. Lamm, Nos. §2-1531, 82-1544 (SI. op.) (10th Cir., June 15 , 1983) ..................... 13 Page Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977) ... 13 Singh v. Mahoning County Bd. of Mental Retardation, 519 F.2d 748 (6th Cir. 1975) ...... 13 Swann v. Charlotte-Mecklenburg Bd. of Ed., 66 F.R.D. 483 (W.D. N.C. 1975 ) ................. 6 Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir. 1975 ) ................................ 13 Tillman v. Wheaton-Haven Recreation Ass'n, 517 F. 2d 1141 (4th Cir. 1975) ........................ 13 Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976) ....... 6,7,13 Watson v. School Bd. of City of Suffolk, 566 F. 2d 1201 (4th Cir. 1977) .................. 13 Statutes 42 U.S.C. § 1988 ................................... passim 122 Cong. Rec. S. 17051 (daily ed. Sept. 29, 1976) ... 12 Other Authorities H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976) ...................................... 4,5,7,8 H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. ( 1980) .......................................... 15 S. Rep. 94-1011, 94th Cong., 2d Sess. ( 1976) 4,5,8 - i i i - UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 82-7531 NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al., Plaintiffs-Appellees, v. HUGH L. CAREY, INDIVIDUALLY AND AS GOVERNOR OF THE STATE OF NEW YORK, et al., Defendants-Appellants. BRIEF AMICI CURIAE IN SUPPORT OF PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC, BY THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., THE PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND. INC., AND THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW I. Interest of Amici —^ Each of the amici is a non-profit charitable organization authorized to receive tax-deductible contri butions under Section 501(c)(3) of the Internal Revenue Code. Amici are public interest law organizations whose purpose is to represent Blacks, Hispanics, and other minori ties in actions seeking to vindicate their equal civil and 1 / Counsel for the parties have consented to the filing of this brief amici curiae. Letters of consent are being transmitted to the Court under separate cover. constitutional rights. They have served as counsel m cases brought in many jurisdictions, including this circuit, in volving equal employment, educational, and housing oppor tunities, prison reform, health care, and many other areas of the law. Amici have a direct and substantial interest in the issues raised by the panel opinion in this case. As discussed in Part II, infra, each of the amici was involved in one or more of the leading cases that established, by unanimous vote of all the circuits prior to this case, that public interest firms should have counsel fees calculated on exactly the same basis as attorneys in private practice. Since the passage of 42 U.S.C. § 1988 in 1976 a large pro portion, although not all, of the litigation conducted by amici has been covered by one or more of the various attorneys' fee statutes. The result has been that in recent years it has been possible to obtain an inceasingly larger proportion of the income of amici from recoveries of fees. For example, amici NAACP Legal Defense and Educa tional Fund ("LDF"), one of the largest and oldest public interest law firms in the country, suffered a series of deficits from the early 1970's until 1980. The result of these deficits was a freeze on bringing additional litiga tion and the beginning of cutbacks in staff in early 1980. Because of a concerted effort to recover adequate counsel fee beginning in 1980 and continuing in 1981 and 1982 LDF was able to reverse this trend. It has balanced its budget 2 and begun to make up for the long series of crippling de ficits which it had suffered. The award of full fees to organizations such as amici and the agencies representing plaintiffs in the present case enables them to bring more litigation. Thus the purpose of Congress in passing the fee statutes, to encourage and facilitate the bringing of such litigation, is futhered. Therefore, awards to public interest organi zations do not result in "windfalls" to them or to any indi viduals in any way whatsoever. Their attorneys are on salary and in no way receive bonuses or other additional income because of recoveries in any particular case they handle. The money recovered is solely used to support other litigation, including litigation that is not itself fee-generating. Finally, although the income of amici from counsel fees has increased, it still represents 20% to 25% at most. Thus, even with recoveries at "market rates," the organiza tions must depend heavily on the philanthropy of private contributors and foundations. If the proportion of income recovered by fees decreases even below its present level, the only result will be to severely cripple the ability of amici and similar organizations to carry out the purpose of Congress, the private enforcement of the civil rights statutes. 3 II. THE PANEL OPINION DOES VIOLENCE TO THE CLEARLY EXPRESSED CONGRESSIONAL INTENT IN PASSING § 1988 THAT FEES TO NON-PROFIT, CIVIL RIGHTS LITIGATING ORGANIZATIONS SHOULD BE AWARDED ON THE SAME BASIS AS FEES TO PRIVATE ATTORNEYS The entire structure of the panel's decision im posing different, more parsimonious standards for the calcu lation of fees to non-profit, civil rights litigating organ izations is premised on a misreading of the legislative his tory of § 1988 that both ignores the clearly expressed con gressional intent and stands on its head what Congress ac tually said. Judge Newman's prevailing opinion is based on his reading of the legislative history as not "affording further guidance as to how the fee award should be calcu lated," Slip op. at 4565, but as counselling "caution against fee awards that 'produce windfalls to attorneys.'" Slip op. at 4587 (citing S. Rep. No. 94-1011, 94th Cong., 2d Sess. at 6 (1976) and H.R. Rep. No. 94-1558, 94th Cong., 2d 2/Sess. at 9 (1976)). — It is flatly wrong on both counts. 2 / The prevailing panel opinion is based on a deceptively simple syllogism. It goes like this: Since the legislative history proscribes windfalls, and since the application of a market based fee contains a profit element, the award of a market based fee to a non-profit organization would encom pass a profit and, thus, a windfall. As indicated below, however, the legislative history does not contain a general ized prohibition against windfalls, but rather a specific conclusion that the award of fees like those disapproved by the panel is not a windfall. Indeed, Congress prescribed market based fees in all cases for its prospective motiva tional value "to attract competent counsel" to civil rights cases. S. Rep., supra, at 6; H.R. Rep., supra, at 9. 4 The text of the two congressional reports is clear. The Senate report specified the standards it intended to adopt: The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v. County of Los Angeles, 8 E.P.D. 9444 (C.D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C. 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys. S. Rep., supra, at 6. Similarly, the House report first adopted the Johnson factors, H.R. Rep., supra, at 8, noted that "a prevailing party is entitled to counsel fees even if represented by an organization," id. at n. 16, and concluded that: "The application of these standards will insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys." Id. at 9. Thus, Congress expressly adopted the standards already developed in the pre-Act case law and specifically said that the application of these standards would not pro duce windfalls. Examination of the cases cited by Congress indicates that two of the four cases cited by the Senate and three of the cases cited by the House specifically awarded fees 5 to non-profit, civil rights litigating organizations on the same basis as to private attorneys. Rather than providing an admonition against windfalls that could serve as the basis for reduced fees to non-profit attorneys, the con gressional reports' explicit adoption of these cases makes clear that awards of market rate fees to non-profit attor neys are not windfalls. In Johnson, cited by both the House and Senate reports, the fees at issue were those for attorneys employed by amicus LDF. 488 F.2d at 715, 719. — ̂Thus, the very foundation for the standards applied for market based fee awards, 488 F.2d at 717-19, were first articulated in a case involving non-profit attorneys. Moreover, the Senate report noted that these standards were "correctly applied" in Swann. Swann too involved fees for counsel employed by amicus LDF. Not only did the Swann court not reduce LDF's fees because of its non-profit nature, it specifically noted that the fact that LDF subsidized private counsel with costs and some fees should not operate to reduce their court-awarded fee. 66 F.R.D. at 486. Similarly, the House report cited with approval both this court's ruling in Torres v. Sachs, 538 F .2d 10 (2d Cir. 1976), aff'g 69 F.R.D. 343 (S.D.N.Y. 1975), and the 3/ In fact, Johnson awarded fees for work done by several of the undersigned counsel for amici. See 488 F.2d at 715. 6 Fifth Circuit opinion in Fairley v. Patterson, 493 F .2d 598 (5th Cir. 1974), for the proposition that full fees should be awarded to non-profit, litigating organizations. H.R. Rep., supra, at 8 n. 16. Fairley involved fees to amicus Lawyers' Committee. 493 F.2d at 606-07 and n. 12. The court specifically held that: This Court has indicated on several occasions that allowable fees and expenses may not be reduced because appellants' attorney was employed or funded by a civil rights organization and/or tax exempt foundation or because the attorney does not exact a fee. This Court has, previously, awarded fees to attorneys while em ployed by the Lawyers Committee with out hinting that their employment status was relevant to this issue. Id. (footnote omitted). Moreover, this court awarded fees to amicus Puerto Rican Legal Defense Fund in Torres, speci fically quoting the language from Fairley that fees "may not be reduced" because of the organizational nature of plain tiffs' counsel, 538 F .2d at 13, and noting that the receipt of such [unreduced] fees promotes their continued existence and service to the public in this field. Application of the [fee shiftingj provision to furnish full recompense for the value of services in successful litigation helps assure the continued availabili ty of the services to those most in need of assistance in translating the promise of the Act into actual[ity] ... often grudgingly yielded to minor ities by those reluctant ... to impose on the majority necessary expenses of implementation. Id. Indeed, Torres1s reference to fees pegged at the "full 7 ... value of services" and not their actual cost is an ex plicit repudiation of the prevailing panel opinions adop tion of the modified cost-plus approach. The "full recom- , pense for the value of services" standard applied by Torres is consonant with Congress's stated intent to provide for fees likely to motivate counsel to take civil rights cases — i.e., "adequate to attract competent counsel." S. Rep., supra, at 6; H.R. Rep., supra, at 9. Thus, the legislative history makes clear that Congress was aware of and specifically adopted those cases and those specific standards that require that full market based fees be awarded to non-profit, civil rights litigating organizations. Contrary to the assertion of the prevailing panel opinion, it did specify "how the fee award should be calculated," citing specific examples. Moreover, it ex pressly noted that the application of these standards — which require unreduced fees to non-profit attorneys — would not result in windfalls as Congress viewed that term. The panel opinion is at odds with the most clearly expressed 3a/congressional intent and should be vacated. — 3a/ Similarly, the panel's handling of the multiplier or "bonus" issue is flawed. Both Stanford Daily and Davis, which we approved by the Senate report, applied multipliers to the hourly rates to approximate the market value of contingent, delayed court awarded fees. 8 III. THE COST-BASED "BREAK POINT" STANDARD APPLIED BY THE PANEL IS UNWORKABLE AND WOULD RESULT IN GREATLY INCREASED LITIGATION OVER FEES________ As recognized by the prevailing panel opinion, "litigation over attorney's tees has itself become a signi ficant addition to the legal landscape . . . ” Slip op. at 4583. The Supreme Court recently admonished that: "A request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, ___ U.S. ___, 51 U.S.L.W. 4552, 4555 (May 15, 1983). Yet the effect of using the "break point" calculation devised by the panel will be to turn each attorney's tees request made by a non-profit organization into a massive inquiry into the finances and business practices of the organization and local private attorneys. The panel decreed that district courts must de termine the appropriate hourly rate tor non-profit organi zations by ascertaining the range of billing rates in the community of the applicant attorneys and . . . without elaborate fact-finding, . . . selectlingj a 'break point' beyond which a billing rate in that community at that time reflects both a significant profit component and overhead costs significantly higher than those of a non-profit office. Fees for non-profit law offices should not be based on hourly rates exceeding that 'break point,' except in the unlikely event that the applicant's non-profit law office can demonstrate that a higher rate is required to enable it to secure reimbursement of its costs. Slip op. at 4592-93. However, the calculation of the "break point" must inevitably entail "elaborate fact finding" into 9 the financial practices of attorneys in the community as well as those of the particular organization requesting fees. Without this fact-finding, the "break point" would be a wholly arbitrary ceiling on attorney's tees awards to non profit organizations. The trial court would first have to ascertain the point at which various billing rates of private attorneys in the community during the relevant time period reflect significant profit and overhead costs. Although the calculation of this point would require discovery of the financial records of private firms, it is highly unlikely that firms will voluntarily release their financial records for these purposes. Third-party testimony about the business practices of various firms in the community might thus be necessary, and expert testimony may be needed to 4/properly analyze the financial records involved. Indeed, because of the panel's endorsement of the use of historical rates, these calculations would have to be repeated tor each year of the often lengthy litigation. 4/ Such discovery is crucial to the extent that the "break point" calculation in part reflects the profit and overhead costs of private firms since, as Judge Friendly acknowledged "No one seems to know to what extent [hourly ratesJ take account of the cost of hours that cannot be billed or must be billed at noncompensatory rates, or include a profit component even before adjustment to reflect the success of the firm's efforts.. . . Very likely different firms have different practices in these respects." Slip op. at 4601 n.2 (Friendly, J., concurring). 10 The organization requesting fees would also have to be allowed to present evidence to the court of its financial structure for the entire period at issue to show its true overhead and costs. Inevitably, expert testimony from accountants would be needed to determine the amount of the organization's overhead which could be attributed to the particular litigation. The court would then have to compare the organization's financial structure with that of private law firms to determine the point at which use of the firms' billing rates would constitute a profit, or "windfall tee," to the organization. The inquiry could not even stop there. The organization would have to be afforded the opportunity to demonstrate that the trial court's award does not reflect the true costs of the litigation. Such a demonstration would entail further analysis of the organization's finances in a second round of hearings and submissions. Moreover, this complex determination of a "reasonable fee" would have to be repeated in each case brought under the more than 12U 5/fee-shifting statutes" since the panel acknowledged that: "We do not expect that even in the same community and at the same time each district judge will necessarily select the same 'break point' as a presumptive maximum rate needed to avoid windfall fees to non-profit law offices." Slip op. at 4593. W Slip op. at 4583, citing Attorney's Fee Award Reporter, Oct. 1982 at 2-3. 11 Such a massive undertaking will only further burden the trial and appellate courts with tee litigation 6despite the oft-repeated plea for simplicity in fee awards.-' Hensley, 51 U.S.L.W. at 4555 (majority opinion) and 4560 (Brennan, J. concurring). Moreover, the prospect of enduring a prolonged battle over fees will deter non-profit organizations from taking on many civil rights cases, since receipt of desperately needed fees will be further delayed and since the already overstretched resources of such organizations will be further burdened each time they apply for fees. Cf. Copeland v. Marshall, 641 F.2d 880, 897 (D.C. Cir. 1980) (en banc). Since time spent on attorney's tees applications is itself compensable, the net result of the time-consuming and complex process will be an overall 7/increase in fee awards. Id. at 896. 6 / In contrast to its willingness to examine in detail the financial structure of non-profit organizations, the panel endorsed percentage cuts of hours as a "practical means of trimming fat from a fee application," noting that "it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application." Slip op. at 4579-80. Judge Newman's opinion thus introduces the ratchet theory of fee award litigation: A trial judge may make wholesale, arbitrary cuts in fee awards, but a successful civil rights litigant represented by an established civil rights organization must provide elaborate proof of its organizational costs, accounting, and finances to justify every penny of what would be an undisputed market rate for private attorneys. This flies in the face of the explicit congressional purpose behind §1988 — as stated by Senator Kennedy, one of the sponsors of the bill -- that "Congress clearly intends to facilitate and to encourage the bringing of actions to enforce the protections of the civil rights law." 122 Cong. Rec. S. 17051 (daily ed. Sept. 29, 1976). 7/ In Copeland, the Court noted a district court award of $5,000 in additional fees for time spent solely documenting a fee request under the requirements of a cost-plus formula 641 F .2d at 896 n. 30. Those requirements are substantially similar to the evidentiary and procedural requirements necessitated by the panel's "break point" approach. 12 THE PANEL OPINION IS AT ODDS WITH THE DECISIONS OF THE SUPREME COURT AND EVERY CIRCUIT INCLUDING THIS ONE The market-rate approach, in which the number ot hours reasonably expended on the litigation is multiplied by a reasonable hourly rate prevailing in the community for similar work, has been endorsed by the Supreme Court and 8/every court of appeals, including the Second Circuit.- Moreover, every circuit court, including this circuit in previous ruling, has held that fee awards for non-profit organizations should be calculated on the same basis as 9/private attorneys. The unanimous holdings of the courts IV. 8/ Hensley v. Eckerhart, 51 U.S.L.W. at 4554; Beazer v. New York City Transit Authority, 558 F.2d 97 (2d Cir. 1977), rev'd on other grounds, 440 U.S. 568 (1979); Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976); Copeland v, Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en banc) Palmigiano v. Garrahy, 616 F.2d 598, (1st Cir.), cert. denied, 449 U.S. 839 (1980); Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977), cert. denied, 436 U.S. 913 (1978); Waston v. School Bd. of City of Suffolk, 566 F.2d 1201 (4th Cir. 1977); James v. Stockham Valves & Fittings Co., 559 F .2d 310, 359 n. 64 (5th Cir. 197 7 ) , cert. denied, 434 U.S. 1034 (1978); Singer v. Mahoning County Board of Mental Retardation, 519 F.2d 748 (6th Cir. 1975); Hariston v. R & R Apartments, 510 F.2d 1090, 1093 n. 3 (7th Cir. 1975); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S. 891 (1977); Fontila v. Carter, 571 F .2d 487, 496 (9th Cir. 1978); Taylor v. Safeway Stores, Inc., 524 F.2d 263, 268 & n. 2 (10th Cir. 1975). 9/ Torres v. Sachs, 538 F.2d at 12-13; Copeland v. Marshall, 641 F.2d at 899-900; Palmigiano v, Garrahy, 616 F .2d at 601; Rodriguez v. Taylor, 569 F.2d 1231, 1250 (3rd Cir. 1977); Tillman v. Wheaton-Haven Recreation Ass'n, 517 F.2d 1141, 1148 (4th Cir. 1975); Fairley v. Patterson, 493 F .2d 598, 606 (5th Cir. 1974); Incarcerated Men of Allen Cty Jail v. Fair, 507 F .2d 281, 286 (6th Cir. 1974); Gautreaux v. Chicago Housing Authority, 690 F .2d 601, 613 (7th Cir. 1982); Oldham v. Ehrlich, 617 F.2d 163, 168-69 (8th Cir. 1980); Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir. 1980); Ramos v, Lamm, Nos. 82-1531, 82-1544 (Slip op.) (10th Cir. June 15, 1983); Johnson v. University College of Univ. of Alabama, No. 81- 7860 (Slip op. p.3360) (11th Cir. June 10, 1983). 13 of appeals were explicitly endorsed by the Supreme Court when it affirmed this court's decision in Carey v. New York Gaslight Club Inc., 598 F.2d 1253, 1255 n.l (2nd Cir. 1979), at 447 U.S. 54, 70 n.9 (1980). Moreover, it implicitly held that the "market value" method of calculation was properly applied to a legal service organization in Hensley v. Eckerhart, 51 U.S.L.W. at 4555. Therefore, the overwhelming weight of precedent has rejected the panel's reasoning. The concerns of the panel over the award given by the district court here could have been easily addressed within the confines of the market-rate method. The primary concern of the panel was with the "perplexing" use of hourly rates based on the fee schedule of a Wall Street firm. Slip op. at 4585. Assuming, arguendo, that those rates are too 11/high, the panel could have remanded to the district court to reconsider in light of rates charged by other, less expensive firms in the community. This would have modified the fee award -- if that were appropriate -- without requiring the massive inquiry that the panel now seeks to 12/impose on all such awards in this circuit. 11/ The district court found as a fact that the use of this fee schedule was reasonable given "the court's acquaintance with fees currently charged by local firms, both large and small, and ... its reading of the affidavits of John Hupper of Cravath, Swain & Moore and Melvyn Weiss of Milberg, Weiss, Bershad & Specthrie. . ." 544 F. Supp. at 337. 12/ The prevailing panel opinion determined that the "break point" in this case was $75 per hour. However, there is no indication of how this "break point" figure was arrived at. Indeed, Judge Wyzanski deemed the $75 figure "a mere ad hoc device for disposing of the case at bar. The $75 figure apparently comes from the Equal Access to Justice Act . . .it has no relation to appropriate compensation for attorneys in Civil Rights Act Cases." The House Report on the Equal 14 Finally, the panel decision is in conflict with decision of other courts of appeals and the Supreme Court in refusing 13/to apply a multiplier for contingency or other factors and in not requiring the adjustment of historical rates to 14/compensate for delay m payment. CONCLUSION For the foregoing reasons, amici urge that the petition for rehearing be granted and that the case be heard en banc. Amici further respectfully suggests that further briefing by the parties and amici would be appropriate and of assistance to the Court. Re JACK JAMES M. NABRIT, III STEVEN L. WINTER 10 Columbus Circle Suite 2030 New York, New York 10019 (212) 586-8397 Attorneys tor the NAACP Legal Defense and Educational Fund, Inc. 12/ Continued Access to Justice Act specifically states that the $75 rate "is not intended to affect or limit the computation of reasonable attorney fees under any other provision of law authorizing an award of fees for litigation under a particular statute, such as the Civil Rights Acts, designed to promote private enforcement of that Act." H.R. Rep. No. 96-1418, 96th Cong., 2d Ses., reprinted in 1980 U.S. Code Cong. & Ad. News 4984, 4994 . 13/ See, Hensley v. Eckerhart, 51 U.S.L.W. at 4555; Copeland v. Marshall, 641 F.2d at 892-93; Johnson v. University College of University of Alabama, No. 81-7860 (Slip. op. p.3363) (11th Cir. June 10, 1983). 14/ See, e.g., Copeland v. Marshall, 641 F .2d at 893; Johnson v. University College of University of Alabama, No. 81-7860, (Slip. op. p.3363-64) (11th Cir. June 10, 1983). 15 JACK JOHN OLIVERO ROBERT L. BECKER 95 Madison Avenue New York, New York 10157 (212) 532-8470 Attorneys tor the Puerto Rican Legal Detense and Education Fund, Inc. WILLIAM L. ROBINSON NORMAN J. CHACHKIN 733 15th Street, N.W. Suite 520 Washington, D.C. 20005 (202) 628-6700 Attorneys tor the Lawyers' Committee for Civil Rights Under Law CERTIFICATE OF SERVICE I hereby certify that I have served copies of the foregoing brief amici curiae on counsel for the parties by depositing the same in the United States mail, first class, postate prepaid, on Frederick K. Mehlman, Asst. Atty. General, New York, New York, and John E. Kirklin, Legal Aid Society, New York, New York. Dated:June 29, 1983. Attorney for Amici