Parker v. Lewis Brief for Appellant
Public Court Documents
January 1, 1981

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Brief Collection, LDF Court Filings. Parker v. Lewis Brief for Appellant, 1981. 5249f17b-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/fc18d60d-2ed2-46b5-bd60-881affa3586b/parker-v-lewis-brief-for-appellant. Accessed July 30, 2025.
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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 0 REFERENCES TO PARTIES AND RULINGS....................1 STATEMENT OF THE CASE................................. 1 ARGUMENT............................................... 3 The District Court abused its discre tion when it denied discovery and award ed $14,200.95 in attorney's fees in a conclusory manner with no basis in the record. A. The District Court's failure to permit discovery and a hering is an abuse of discre tion...................................4 B. The District Court's con clusion that all of the hours claimed by counsel for appellees were rea sonably expended is an abuse of discretion................. 6 C. The District Court abused its discretion when it awarded counsel for appellees compensa tion at the hourly rates that they sought................... 7 CONCLUSION. . ........................................ 12 T 11 TABLE OF CASES Page * Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980)..................................... 3, Passim Crowley v. Haig, No. 74-0494 (D.D. C. 1 9 8 1 ) ................................................9 Detroit v. Grinnel Corp., 495 F . 2d 488 (2d Cir. 1974) .............................. 5 Lindy Brothers Builders, Inc., v. American Radiator & Standard Corp., 487 F . 2d 161 (3rd Cir. 1973)............................ 5 Grumin v. International House of Pancakes, 513 F. 2d 114 (8th Cir. 1975)............. 5 Johnson v. Georgia Highway Express, Inc., 488 F . 2d 714 (5th Cir. 1974)......................7 Naismith v. Professional Golf Association, 85 F.R.D.................................... 4 Stastny v. Southern Bell Telephone and Telegraph Co., 77 R.D. 662 (W.D.N.C . 1978)........ 4 Wolf v. Frank, 555 F. 2d 1213 (5th Cir. 1977)......... 4 TABLE OF AUTHORITIES 42 U.S.C. §2000e-16..................................... 1 Equal Access to Justice Act, Public Law 96-481 §201 et seq........................... 10 asterisks. ISSUES PRESENTED -/ In the opinion of appellant, the following issue is presented Whether the District Court abused its discretion, when it denied discovery and a hearing, when it awarded $14,200.95 in attorneys' fees in a Title VII discrimination case, and when it awarded the fees in a conclusory manner with no basis in the record. */ This case has not previously been before this Court. 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 BRIEF FOR APPELLANT REFERENCES TO PARTIES AND RULINGS Appellant is the Secretary of Transportation. Appellee is Beverly L.B. Parker, an employee at the Department of Transportation. The subject of this appeal is the Order filed by the Honorable Aubrey E. Robinson, Jr. on June 30, 1981, awarding appellee $17,200.95 in attorneys' fees and $140.79 in costs. STATEMENT OF THE CASE Appellee brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, against the Secretary of Transportation requesting a retroactive promotion, 2 back pay and attorney's fees. Specifically, appellee alleged that sex discrimination had caused a denial of a promotion at the GS-9 level to the position of attorney-advisor in the Federal Highway Administration. The case was settled on February 13, 1981, resulting in an agreement to provide a retroactive promotion, the sum of $4,254.76 in back pay and reasonable attorneys fees which would be litigated separately. On April 15, 1981, appellee filed a motion requesting an award of attorneys' fees and costs totaling $24,442.22. The request included a lodestar amount $14,200.95 for retained counsel; $3,000 for appellee's own pro se representation; and $140.79 in costs. Appellant has appealed only the first of the three compo nents of the award. The total "lodestar" fee demanded for appellee's retained counsel was outlined as follows: ATTORNEY CLASS YEAR HOURS HOURLY ]RATE FEES Valerie V. Ambler Partner 1979 5.6 $102.00 $ 571.201980 0.6 123.00 73.801981 1.0 138.00 138.00 Elizabeth L. Newman Partner 1980 31.85 123.00 3 ,917.551981 18.80 138.00 2 ,594.40 Alan M. Sandals Associate 1981 49.35 60.00 2 ,961.00 Paula Carmody Associate 1980 78.90 50.00 3 ,945.00 TOTAL $14 ,200.95 1/ In addition, appellee sought a contingency adjustment to the lodestar of 50% bringing the total amount demanded for retained counsel to $21,301.43. 3 Appellant filed an opposition to appellee's motion on May 15, 1981, and requested the opportunity to take discovery and have a hearing regarding appellee's request. The District Court issued an Order on June 30, 1981, in which it awarded appellee her requested lodestar amount of $14,200 in attorneys' fees, $3,000 in pro se fees and $140.79 in costs. No separate contingency adjustment was awarded. ARGUMENT The District Court abused its discretion when it denied discovery and awarded $14,200.95 in attorneys' fees in a conclusory manner with no basis in the record.____________ In Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en ( Copeland III ) , this Court established that the determina tion of a fee award is to begin with the fixing of a "lodestar" amount by multiplying the number of hours reasonably expended times the reasonable hourly rate (or rates). Id. at 891. The District Court correctly cited to Copeland III for its analysis and determination of the award amount. However, we submit that the District Court's analysis and its attorneys' fee award repre sents an abuse of discretion in three respects: (1) the Court denied appellant's request for discovery and a hearing; (2) the Court held that all of the hours claimed by counsel for appellees were reasonably expended; and (3) the Court established what it defined as the reasonable hourly rate in the Washington, D.C. area for similar Title VII work without any basis. In each respect in which the District Court abused its discretion, it 4 failed to adequately articulate its reasons or based its decision on improper factors. See Copeland III, supra at 901 n.39. As a result, the District Court's fee award should be reversed and this action should be remanded with instructions to grant appellant's request for discovery and a hearing and thereafter to recalculate the fee award using the appropriate factors. A. The District Court's failure to permit discovery and a hearing is an abuse of discretion. This Circuit in Copeland III recognized the appropriateness of discovery and a hearing in contested attorneys' fees claims. Icl. at 905. We submit that the denial of discovery and a request ed hearing in the context of this case was an abuse of discretion. Discovery is necessary on the issues of the number of hours reasonably expended and the hourly rate counsel for appellees are entitled to receive. Counsel for appellee failed to submit any documentation that specifically addressed the rate "prevailing in the community for similar work." Copeland III at 975. Instead of allowing discovery, or even compelling counsel for appellees -•£•» Stastny v. Southern Bell Telephone and Telegraph Co., ^ F.R.D. 662 (W.D.N.C. 1978) (discovery relevant and production ordered of original time records of counsel along with documenta tion of fees received by same attorneys in other related cases); Naismith v. Professional Golf Association. 85 F.R.D. 552, 562-565 (N.D. Ga. 1979) (discovery relevant and production ordered of a^ ° rneys ' hours, rates and total fees as well as their knowledge of fee awards obtained in community (Atlanta) by same attorneys ’ — also Volf v - Frank, 555 F.2d 1213 (5th Cir.19/7) (after a challenge to attorneys fee supporting affidavits as inadequate, Court permitted deposition of the attorney seeking the fee and others). 5 to produce more evidence of the hourly rates paid by their paying clients or of the hourly rates prevailing in the community for similar work, Judge Robinson simply adopted counsel for appellees' proposed hourly rates. For essentially the same reasons, we submit that the District Court abused its discretion in denying our request for a hearing. This Court in Copeland III recognized the usefulness of con ducting a hearing on the issue of the fee when such a hearing is requested and when the amount of the fee is contested. Id. at 905. Courts of Appeals in other Circuits have recognized that a hearing is required where the amount of the fee is contested and the failure to hold a hearing under such circumstances is an abuse of discretion. See Detroit v. Grinnel Corp.. 495 F.2d 448, 468 (2d Cir. 1974); Lindy Brothers Builders, Inc, v. American Radi- ator & Standard Sanitary Corp.. 487 F.2d 161, 169-170 (3rd Cir. 1973) (Lindy I); Grumin v. International House of Pancakes, 513 F.2d 114, 127 (8th Cir. 1975). As the Third Circuit Court of appeals stated: [0]pposing interests should be afforded a hearing to provide an evidentiary basis for resolution of disputed factual matters and to allow the parties to supplement possibly incomplete statements of opposing parties. Lindy— I, 487 F.2d at 169. In this case both the hours reasonably expended and the reasonable hourly rate were contested; the District Court's refusal to grant discovery and a hearing is reversible error. 6 B. The District Court's conclusion that all of the hours claimed by counsel for appellees were reasonably expended is an abuse of discretion. The District Court correctly recognized, citing Copeland III, that the first issue in any fee setting inquiry is to determine the reasonable number of hours spent by the attorneys requesting the fee. However, the District Court then clearly erred in awarding compensation to appellees' attorneys for every hour of time that they requested. It is incumbent upon the party seeking fees to present the Court with sufficient documentation to allow the kind of searching analysis that Copeland III requires. In this case, appellant's challenge to the reasonableness of the hours was severely limited by the District Court's refusal to allow discovery and a hearing. Nonetheless, appellant did identify certain points that required a reduction in the hours which the District Court rejected. For example, counsel for appellee claimed compensation for hours spent by partners and associates talking with each other in their law office. Just as Copeland III, supra at 891, provided that where three attorneys are at a hearing where one would suffice, billing judgment requires that compensation should be denied for the excess time, we believe billing judgment requires that compen sation for more than one counsel should be denied when counsel discuss the case among themselves. It is not uncommon for attorneys in private practice to review each others work or to discuss a case among themselves. However such time is duplicative and 7 should be reduced in the exercise of "billing judgment." This is especially true when partners discuss a case or review each others work. To do otherwise results in the government being billed at the maximum rate of $276 per hour every time counsel choose to discuss this case among themselves. The Distrct Court's wholesale acceptance of counsel for appellee's hours while denying appellant discovery and a hearing was an abuse of discretion. C. The District Court abused its discretion when it awarded counsel for appellees compensation at the hourly rates that they sought. After determing the reasonable hours expended, the remaining element in fixing the lodestar is determining the reasonable hourly rate. We submit that the District Court clearly erred when it accepted wholesale counsel for appellee's statement of the hourly rate they believed that they were entitled to receive. 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 III at 891-892. ^ Counsel for appellee simply have not met their burden of proof in providing that the hourly rates sought are reasonable. Remain specifically recognized that the Johnson analysisremain!s] central to any fee award." Copeland III, supra at 889. ) 8 At this juncture, it is helpful to summarize the method by which counsel for appellee attempted to establish their reasonable hourly rate. Essentially, counsel for appellee's started calcula tion of their hourly rate by using a base figure of $75.00 per hour which one of the counsel had obtained in a 1977 settlement. Next, counsel added $5.00 per hour since 1977 for each succeeding year to account for their alleged "increased expertise in employment discrimination cases." Then, each year's hourly rate was also adjusted, "to compensate for the effects of inflation on that base rate, using the consumer price index as a key to the average annual inflation factor." (App. 14-16). Counsel for appellee cal culation of their hourly rate is totally artificial and gives no clue as to what rates were actually paid to counsel for appellee or what fees were actually paid to other local Title VII lawyers for similar services. Counsel for appellee's method of calcula tion of their present hourly rate is even more artificial than the "cost plus" hourly rate expressly rejected by the Court in Cope land III. Id. at 896-900. In rejecting that artificial approach, the Court stated that it would rely upon the "market mechanism" or law of supply and demand to determine a reasonable hourly rate. The Court in Copeland III envisioned that the pressure of the market would keep attorneys' hourly rates at a reasonable level. Thus while counsel for appellee may hypothesize that they acquired $5.00 per hour more experience per year, the real relevant question under Copeland III is whether clients in the marketplace paid such fees to counsel or to similarly situated Title VII counsel. Moreover, while counsel for appellee may hope that their hourly rate kept pace with inflation, the relevant question again is whether counsel for appellee or similarly situated counsel have been successful in passing on the costs of inflation to their clients. If the market has not allowed counsel to pass on inflation costs to their clients, then counsel in this action should not be allowed to pass such costs on in this action simply because the government is paying the attorneys' fees. Counsel for appellee's determination of the hourly rate chargable by associates, $50 and $60 per hour, is no more realistic. Both associates only graduated from law school in 1980. There was absolutely no evidence that either had experience in Title VII law or that paying clients paid the firm at the high rates sought from the government. Additionally, there was no evidence that paying clients paid other recent law school graduates at those high rates for similar work. Review of counsel for appellee's affidavits describing their experience does not justify the hourly rate of $138 per hour. Both lead partners were only admitted to the Bar in 1973. Neither appears to have tried a case at the time compensation was paid. It appears that the firm of Ambler and Newman was only established in 1980. None of these factors would seem to justify what was at the thime the highest hourly rate awarded against the government by a Court in this Circuit. Counsel for appellee did not 4/ We are only aware of one case, which was decided subsequent to the decision at bar with an hourly rate above the $138 rate awarded in this case. Crowley v. Haig No 74-0494 (D.D.C. 1981) (FOOTNOTE CONTINUED ON NEXT PAGE) 9 10 provide supporting facts about rates actually being paid to themselves or to attorneys of similar skill performing similar work. There was no such evidence presented to the District Court in this action, except for a conclusory claim that there have been instances of clients paying $150.00 per hour to counsel for appellee (App. 32). Without explanatory detail and discovery, even this assertion seems to be an aberation that is clearly insufficient to support the Court's award. The Equal Access to Justice Act, Public Law 96-481 § 201 et seq., October 1, 1980, which became effective for actions pending or commenced on or after October 1, 1981, authorizes the payment of attorney's fees to a prevailing private person in administra tive or judicial proceedings against the United States unless it is determined that the position of the United States was substan tially justified or special circumstances make an award unjust. The Act provides that attorneys' fees which are to be based on prevailing market rates shall not be awarded in excess of $75 per hour unless the Court determines that an increase in the cost of living or a special factor, such as limited availability of qualified attorneys available for the proceedings involved, justifies a higher fee. Although this Act's hourly rate specifi cally does not apply to actions brought under Title VII, the $75 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) ($148.28). That case, which was also decided by Judge Robinson, xs pending appeal. No. 81-2213. All other attorneys' fees awards against the government in this Circuit by Judges other than Judge Robinson are at levels considerably lower than $138 per hour. See Appendix A to our brief. 11 per hour is the amount that Congress has determined generally is the outside limit on market rates in 1981 when attorney's fees are to be paid by the government. The outside limit of $75 per hour by definition includes any adjustments which may be sought such as for a delay contingency adjustment, and incentive adjustment. Presumably the rates would have lower for work performed prior to 1981. As reflected in Appendix A to this brief, the rates awarded in this case, at the time of decision, included the highest hourly rates ever awarded against the government by any court in this District. Thus, the government is seriously concerned that these rates may set the new "floor" for rates "prevailing in this community," within the meaning of Copeland III. Id. at 892. Since these rates are so out of line with other recent awards, and since the district court committed several errors in setting them, we submit that a reversal is required. Appellee submitted as an exhibit to her motion for fees a list of twelve cases that purport to show a wide range of attorney's fees awarded since 1972. This submission certainly could not form a basis for determining that $138.00 per hour is a reasonable, prevailing rate for a case such as this one. Seven of the cases cited are labelled as being antitrust or securities-related cases. Five others are broadly labelled Title VII, Title VI or desegregation cases. There is nothing stated or argued about how this second group of cases compare in difficulty or range of issues to the instant action. Moreover, any pre-Copeland III 12 case is subject to further scrutiny to determine how, if at all, the particular court confronted the same analysis of factors to establish an award. CONCLUSION WHEREFORE, appellant respectfully submits that the judgment of the District Court be reversed and the case be 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, Assistant United States Attorneys. 9 A P P E N D I X A ATTORNEYS' FEE AWARDS DISTRICT OF COLUMBIA ► CASE TITLE HOURLY RATE CASE TYPE Vaughn v. Rosen, No. 73-1039 (D.C. Cir. 1973) $85 FOIA Smith v. Kleindiest, 8 FEP 753 (D.D.C. 1974) $40-$75 Title VII Communist Party of the United States v. Department ot Justice, No. 75-1770 (D.D.C. 19/b; “ ,$45 FOIA Parker v. Matthews, 411 F. Supp. 1059 (1976J~ $30-$60 Title VII Pealo v. Farmers Home Adm., 412 F. Supp. 561 (D.D.C. 1976) $50-60 Housing Rucker v. Matthews, No. 75-0531 (TTD.C. 1976) “ $58.05 (average) Title VII Weahkee v. Perry, 16 FEP 755 ^(D.D.'C. 1976)~ Walden v. Boorstin, 16 FEP 1739 (D.D.C. 1976)“ $60 Title VII $50 Title VII Williams v. Saxbe, 17 FEP 1657 (D.D.C. 1976) $30-$65 Title VII Zeldin v. Hoffman, No. 75-1913 (D.D.C. 1976)“ $40 FOIA Anderson v. Treasury, et al., — No. "76-1404 (D.D.C. 19/ T) Not based on hourly rate (awarded $2,000) Privacy Act Founding Church of Scientology of Washington, D.U., Inc. v. Marshall, 439 F. Supp. 1267 (D.D.C. ”1977) $60 FOIA Copeland v. Usery, 14 FEP 1677 (D.D.C. 1977) $57.17 (average) Title VII Pace v. Califano, No. 76-99 t d .d .c . T<nrr $52-$54 Title VII R p Amnicillin Antitrust Litigation, MDL. No. 3U, Rise. No~45-70 (D.D.C. 1978) $40-$200 Antitrust (non government) .) 13 CASE TITLE HOURLY RATE CASE TYPE Cayce v. Adams, 18 FEP 465 (D.D.C." 1978) Tpeland v. Marshall, No. 77-1351 t (D.D.C. 19781 Kinsey v. Legg Mason Wood Walker, * No. 71-1338 (D.D.C. 1978) Parker v. Califano, 443 F. Su d d . 789 (D.D.C. 1978) Postow v. Oriental Bldg. Ass'n, 455 F. Supp. 781 (D.D.C. 1978) American Broadcasting Companies Inc., et al. v. Department of Labor, et al.. No. 78-1711 TTT.C.c. 1979) Crooker v. Department of Justice, No. 78-1820 (D.D.C. 1979) iB»es. v. United States Secret ^service, et al., No. 78-0891 "(D.D.C. 1979) Marimont v. Califano, No. 1992-73 “ (D.D.C. 19791 Public Citizen Health Research Group v. Department of Labor, No. 76-88/ (D.D.C. 1979) Sonnenberg v. Adams, 18 Emp. Prac. Dec. IT 8875 (D.D.C. 1979) Ward v. Postal Rate Commission, No. 77-0145 (D.D.C. 1979) Williams v. Boorstin, No. 78-2408 (D.D.C. 19791 Wolfson v. Dept, of Justice, No. 75-1714 (D.D.C. 1979) Jones v. Trailways Corporation, No. 78-TT27- (D.D.C. 19S01--- $40-$75 $51.65 $20-$65 $35-$72 $60-$75 $55-$75 $5 (Pro se Prisoner) $10 (Pro se Prisoner) $50-85 $55 $50 $50-75 $75 $60-$75 $75 Title VII Title VII Title VII (non government) Title VII Truth-in Lending (non government) FOIA FOIA FOIA Title VII FOIA Title VII FOIA PA Title VII FOIA Title VII (non government) CASE TITLE A HOURLY RATE ^ CASE TYPE V7illiams v. Civiletti, No. 74-0186 (D.D.C7 1980) $30-$85 Title VII ffchman v. Pertschuk, i No. 76-0079TD.D.C. 1981) $70-$100 Title VII Blake v. Hoston, 513 F. Supp. * 6^3 (D.D.C. 1981) $40-$75 Title VII Caton v. Barry, No. 80-1584 [D. D. C . _T913l) $50-100 Housing (non government) Donnell v. United States of America, No. 78-0392 (D.D.C. 1981) $40-60 Voting Rights Fells v. Brooks, No. 80-2981 T dTD.C. 1981) $75 Vocational Rehabili tation Act (non government) G a m e s v. Brown, No. 76-0974 (D.D.C. 1981) $60-$100 Title VII Green v. Department of Commerce, ^ N o . 77-0363 (D.D.C. 19FT) Indian Lav; Resource Center v. U.S. Department of the Interior, No. 79-0540 (D.D.C. 1981) $45-95 FOIA $70 (average) FOIA In Re Swine Flu Immunization Products Liability Litigation, MDL No. 330, Misc. No. /8-Ou40 (D.D.C. 1981) $40-$75 and $100 (lawyer- physician) Swine Flu Kemp v. Williams, No. 77-2014 “ID.D.C. 1981) $45-$60 Title VII Lawrence v. Franklin Investment Co., Inc., et al., No. 78-0919 TDTD.C. 1981) $75 Truth-in Lending (non government) Mangiapane v. Secretary of Transportation, No. 75-1239 (D.D.C. 193IT~ $70 Title VII 1 National Ass'n. of Concerned $85 FOIA Veterans v. Secretary of Defense, No. 79-0212 (D.D .C .TTOTT- 15 CASE TITLE HOURLY RATE CASE TYPE North Slope Borough v. Andrus, ̂ 515 F.Supp. 961 (D.D.C. 1981) Metropolitan Washington * Coalition for Clean Air, et al. v. District of Columbia, NosT- 73-1424, 73-F844 (D.D.C.- ^981) Parker v. Lewis, No. 79-3443 (D7D.C. 1981) Quinto v. Legal Times of Washington, Inc., 511 F. Supp. 579 (D.D.C. 1981) Smith v. Schweiker, No. 76-2311 (D.D.C. 1981) Sneed v. Harris, No. 77-2191 (D.D.C. 1981) Veterans Education Project v. Secretary of the Air Force, et al., No. 79-210 (D.D.C. 1981) Whelchel v. Lewis, No. 78-0514 --(D.D.C. 198T) Crowley v. Hai£, No. 74-0494 (D.D.C. 1981) Breen v. Tucker, No. 78-2222 (DTD.C. 1981) $45-$125 ESA/OCSLA $40-$175 Clean Air $50-$138 Title VII $5 - law student (Pro se) Copyright (non government) $55-$65 Title VII $80 Title VII $35-$110 FOIA $65-$85 Title VII/ Equal Pay Act $40-$l48.28 Personnel Action - Back Pay Ac $90 Title VII (non government) I 16 p