Parker v. Lewis Reply Brief for Appellant

    REPLY BRIEF FOR APPELLANT

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1965

BEVERLY L. B. PARKER, Appellee,
v.

DREW LEWIS, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

CHARLES F. C. RUFF,United States Attorney.
ROYCE C. LAMBERTH,
KENNETH M. RAISLER,
CHERYL M. LONG,Assistant United States Attorneys.

C .A. No. 79-3443



I N D E X
Page

ARGUMENT ................................................  1
I. The District Court's failure to permit discovery 

and a hearing is an abuse of discretion . . . .  1
II. The District Court abused its discretion when 

it awarded counsel for appellee's compensation 
at the high hourly rates that they sought . . .  3

CONCLUSION................................................ 6

TABLE OF CASES AND AUTHORITIES

*Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980)
(en banc) (Copela~n~d III) .............................. passim

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1 9 7 4 ) ......................................... 2

Equal Access to Justice Act, 28 U.S.C. §2412 (1980) . . .  6

*Case chiefly relied upon is marked with an asterisk.



UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1965

BEVERLY L. B. PARKER, 
v.

DREW LEWIS,

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR APPELLANT

ARGUMENT

I. The District Court's Failure To Permit 
Discovery And A Hearing Is An Abuse Of 
Discretion. ___________________

In attempting to argue that the District Court did not abuse 
its discretion in denying discovery and a hearing, counsel for 
appellee asserts that there was no factual dispute between the 
parties because appellant did not contradict facts set out by plain­
tiff in its submissions. Counsel also argues that any discovery 
proposed by appellant would have been unnecessary. Inherent in this

Appellee,

Appellant.



2

and appellee's other arguments is the unwarranted assumption that 
appellant must introduce evidence proving that counsel for appellee 
are not entitled to whatever attorneys' fees they seek from the 
District Court. In reality, it is clear that "plaintiff has the 
burden of proving his entitlement to an award of attorney's fees 
just as he would bear the burden of proving a claim for any other 
money judgment." Johnson v. Georgia Highway Express, Inc., 488 
F.2d 714, 720 (5th Cir. 1974). Accord, Copeland v. Marshall, 641 
F.2d 880, 891, 892 (D.C. Cir. 1980) (en banc) (Copeland III). 
Therefore appellant pointed out to the District Court that counsel 
for appellee had not proved entitlement to the amount sought and 
that the District Court should either deny counsel for appellee's 
request or require them to submit more evidence justifying it. 
Alternatively, appellant sought the opportunity to take discovery 
and to probe appellee's assertions in a hearing.

Discovery and a hearing would have been helpful to appellant 
and the Court because appellant challenged the inadequately 
documented, duplicious hours spent in conferences between counsel 
for appellee. Discovery would also, among other things, have 
helped determine what the market rate is for counsel for appellee 
based in part on what they have been paid in the past by their 
paying clients.

1/ This Court specifically recognized that the Johnson analysis 
"remain[s ] central to any fee award." Copeland III, supra at 889.



3

II. The District Court Abused Its Discretion 
When It Awarded Counsel For Appellee's 
Compensation At The High Hourly Rates 
That They Sought._________________________

Counsel for appellee's initial argument in asserting that 
they are entitled to up to $138 per hour is to attempt to change 
the focus of this appeal from whether they have adequately justified 
that hourly rate to the United States Attorney's settlement 
policy on attorneys' fees. The issue before this Court is not 
U.S. Attorney's office's settlement policy but whether counsel 
for appellee have justified the rate that they seek as the market 
rate. Counsel for appellant did inform the District Court of the 
United States Attorney's then current hourly settlement rates — ^  

because those rates more realistically reflect the "market rates" 
for Title VII actions in this area as well as more closely approxi­
mate awards by the District Courts then those proposed by counsel 
for appellee. (See Appellant's Appendix A to his initial brief).
As previously stated, the issue before this Court is also not whether 
appellant has disproven counsel for appellee's entitlement to a

2/ The United States Attorney's settlement rates are now $75 per 
hour for attorneys with seven or more years experience; $60 per 
hour for those with from five to seven years experience; and $45 
for those with less than five years experience.



(

particular hourly rate. Rather counsel for appellee must prove 
that the rates they seek up to $138 per hour are the market rates 
in this area for similar work.

Arguing that the rates awarded in this case were appropriate, 
appellee seriously misstates several contentions of appellant and 
continues to evade the central issue in this appeal.

On page thirteen of her brief, appellee erroneously states 
that appellant's position in the District Court "was that awards 
in other cases were essentially irrelevant." What we did argue 
was that the District Court should ignore those cases cited by 
appellee which were obviously not Title VII cases or which lacked 
enough descriptive detail to make profitable comparison possible. 
See Brief of Appellant at 11-12. The logic of our position is 
self-evident in light of Copeland Ill's mandate to the District 
Court that market rates reflect prevailing hourly rates in this 
particular legal community for the particular kind of litigation.

On page fifteen of her brief, appellee likewise argues 
erroneously that appellant's "alternative argument," is "that the

4

3/ Contrary to appellee's assertion in footnote 7 of her brief, 
we have not "abandoned" our position that such cases are improperly 
used in calculating the lodestar. We included, in the appendix to 
our brief, a list of a wide range of fee awards only for the purpose 
of showing how far beyond the norm in this area appellee's rates are 
even when compared to more sophisticated litigation, such as antitrust 
cases.



5

'market' is determined solely by what plaintiff's counsel's 
clients pay. . Nowhere has appellant ever espoused the position
that present hourly rates under a Copeland III analysis can or 
should be derived solely by reference to the rates paid to the 
individual plaintiff's attorney. Quite to the contrary, appellant 
clearly set forth in its brief to this Court that the market rate 
should be calculated in light of several factors, including 
evidence presented by the plaintiff of the actual hourly rates 
being paid to her own attorneys by other clients or rates actually 
paid to other local Title VII lawyers for similar services. See 
Brief of Appellant at 8. This Court, in Copeland III, recognized 
that "hourly rates used in the 'lodestar' represent the prevailing 
rate for clients who typically pay their bills promptly." Iji. at 
893. In the clearest language, this Court requires that a proper 
fee analysis include proof of what is actually paid in the local 
Title VII legal marketplace, not merely what is charged or levied 
by a District Court. — ^

On pages sixteen and seventeen of her brief, appellee seems 
to suggest that appellant is urging this Court to regard the 
$75.00 per hour maximum rate prescribed in the Equal Access to

57 Discovery would have revealed the extent to which the rates 
demanded by appellee's counsel had any relationship to rates 
actually paid in this community and whether counsel even attempted 
to account for such payments to fellow members of the bar in formu­
lating their basic fees, irrespective of the supposed inflation boosting factor.



6

Justice Act, 28 U.S.C. §2412 (1980), as the enforceable limit on 
fees in the instant action. We cite that statute in our brief 
for the purpose of illustrating that the Congress of the United 
States had determined that $75.00 per hour is a reasonable rate 
for attorney's in 1981. As a practical matter, many of the cases 
involving fees assessed against the United States will be litigated 
in this jurisdiction. We explicitly state in our brief that the 
Act does not place a limit upon fees in Title VII cases. See 
Brief for Appellant at 10. However, we invited the Court's 
attention to the Act because it is yet another factor showing how 
the unusually high rates awarded in this case compare to what is 
considered reasonable.

CONCLUSION
WHEREFORE, for the reasons stated herein and in our main 

brief, appellant respectfully submits that the judgment of the 
District Court should be reversed and the case remanded to the 
District Court with directions to permit discovery and a hearing 
and to reconsider the fee award using the appropriate Copeland III 
factors.

CHARLES F. C. RUFF, 
United States Attorney.

ROYCE C. LAMBERTH,
KENNETH M. RAISLER,
CHERYL M. LONG,
Assitant United States Attorneys.