The opinion
Cohen v. Brown Univ. et a l . CV-99-485-B 12/05/01
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Amy Cohen, et al.
v. Civil N o . 99-485-B
Opinion N o . 2001 DNH 216
Brown University, et al.
MEMORANDUM AND ORDER
I have before me plaintiffs’ partial objection [document n o .
18] to the August 1 0 , 2001 Report and Recommendation of
Magistrate Judge David L. Martin [document n o . 1 7 ] , which,
pursuant to 28 U.S.C. § 636(b)(1)(B), proposes to dispose of
plaintiff’s renewed motion for costs and attorneys’ fees
[document n o . 1 5 ] . The Report and Recommendation contains an
overview of this litigation, as well as an admirably thorough
analysis of the parties’ dispute over attorney’s fees and costs.
I review the Report and Recommendation de novo. See Fed. R. Civ.
P. 72(b).
Plaintiffs advance two principle objections to the reasoning
underlying the Report and Recommendation. First, while endorsing
the Magistrate Judge’s use of the lodestar method to calculate
their fee award, plaintiffs take issue with his decision to apply
current billing rates rather than using historic rates plus
interest, to compensate them for the delay in payment. Second,
plaintiffs assert that the Magistrate Judge improperly refused
to award them certain litigation expenses recoverable under 42
U.S.C. § 1988. I address each point in turn.
I. Use of Current Rates to Compensate for Delay
I reject plaintiffs’ claim that the proposed fee award is
unreasonable because the use of current billing rates fails to
adequately compensate them for the delay in payment. Ordinarily,
a court may adjust a fee award to account for delay by using
either historic rates plus interest or current rates. See
Missouri v . Jenkins, 491 U.S. 274, 283-84 (1989) (“We agree
therefore that an appropriate adjustment for delay in payment -
whether by application of current rather than historic hourly
rates or otherwise - is within the contemplation of the
statute.”); see also Smith v . Village of Maywood, 17 F.3d 219,
221 (7th Cir. 1994).
In the present case, the Magistrate Judge made an
unchallenged finding that he would have to determine as many as
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27 different historic rates to reliably apply the historic rates
plus interest approach. See Cohen v . Brown Univ., N.H. Civ.
Action N o . 99-485-B, R.I. Civil Action N o . 92-197, at 79 (D.R.I.
Aug. 1 0 , 2001) (“Report and Recommendation”). Determining these
rates and identifying and applying interest rates to them that
would accurately capture the effects of inflation and the lost
time-value of money would be a difficult undertaking that would
require substantial additional evidence.1 In other words, if I
were to recalculate the fee award using the historic rates plus
interest approach suggested by the plaintiffs, I would have to
further complicate this already time-consuming and expensive
litigation in a way that is contrary to the settled principle
that scarce judicial resources should be sparingly employed in
attorney’s-fee disputes. See, e.g., Buckhannon Bd. and Care
Home, Inc. v . West Virginia Dept. of Health & Human Resources,
121 S . C t . 1835, 1843 (2001). Because I agree with the
Magistrate Judge’s ultimate conclusion that the total fee award
1
Plaintiffs claim that the use of an historic rates plus
interest approach would increase the total fee award by 3 0 % .
This is true, however, only if I accept the historic billing
rates and interest rates that plaintiffs used in making their
calculation.
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arrived at through the use of current billing rates is reasonable
and adequately compensates plaintiffs for the effect of delay, I
decline to recalculate the fee award using an historic rates plus
interest approach.2
II. Litigation Expenses
I agree with plaintiffs that the Magistrate Judge erred in
2
Plaintiffs make an alternative argument that, even if I
endorse the Magistrate Judge’s use of current rates to compensate
for payment delay, I should adjust upward the current rates used
in calculating the fees owed Washington, D.C., attorneys Bryant
and Brueckner. While I question the manner in which the
Magistrate Judge determined the current rates of compensation
applicable in Washington, D.C., to attorneys with the experience
and skills of attorneys Bryant and Brueckner, I have even greater
reservations concerning the appropriateness of the Magistrate
Judge’s decision to compensate attorneys Bryant and Brueckner on
the basis of Washington, D.C., billing rates. Attorney Labinger
is a highly skilled Rhode Island civil rights lawyer who was well
qualified to represent the interests of the plaintiffs in this
litigation. Notwithstanding her protestations to the contrary,
it is by no means apparent that she required direction from out-
of-state counsel to prosecute this case.
If plaintiffs intend to press their claim for an upward
adjustment of their Washington, D.C., rates, they shall file a
memorandum on or before December 1 5 , 2001, explaining why I
should allow their out-of-state counsel to be compensated at
prevailing rates in Washington, D.C., rather than in Rhode
Island. If I determine that out-of-state counsel should be
compensated at their Washington, D.C., rates, I will then
determine if the rates proposed by the Magistrate Judge should be
adjusted upwards.
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excluding the litigation-related expenses noted at pages 109-19
of the Report and Recommendation. The Supreme Court has held
that expenses incurred in the creation of attorney work product
and traditionally billed as a part of the fee charged to the
client are recoverable under 42 U.S.C. § 1988. See Jenks, 491
U.S. at 285-89. The Supreme Court did not backtrack from this
position in West Virginia Univ. Hospitals, Inc. v . Casey, 499
U.S. 83 (1991). Rather, in distinguishing Jenkins, the Court
simply held that expert fees cannot properly be characterized as
a recoverable litigation expense because such fees were not
traditionally made a part of the attorney fee charged to the
client. See Casey, 499 U.S. at 99-100. Thus, so long as the
expenses sought were incurred in the creation of attorney work
product and are of a type traditionally made part of the fee
charged to the client (and defendants do not dispute that the
expenses at issue should be so categorized), they are
recoverable, notwithstanding Casey. See, e.g., Brown v . Gray,
227 F.3d 1278, 1297-98 (10th Cir. 2000); LeBlanc-Sternberg v .
Fletcher, 143 F.3d 748, 763 (2d Cir. 1998); Abrams v . Lightolier
Inc., 50 F.3d 1204, 1225-26 (3d Cir. 1995).
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Because the Magistrate Judge regarded the legal issue as
close, he made alternative recommended findings as to the amount
of expenses plaintiffs should be entitled to recover should I
disagree with him. See Report and Recommendation at nn. 5 5 , 5 9 ,
6 0 , 6 1 , & 6 3 . So too did he express an intention that plaintiffs
be awarded interest on these expenses. Id. at n.64.3 Defendants
have not objected to the merits of these alternative findings or
presented me with a developed argument that plaintiffs are not
entitled to interest on the expenses. Nor do I detect error in
the Magistrate Judge’s conclusions. Accordingly, I accept the
Magistrate Judge’s recommended alternative findings as well as
his recommendation that interest (at the prime rate and
compounded annually) be awarded on the expenses at issue.
III. Conclusion
As set forth in footnote 2 , an open issue remains. Should
plaintiffs withdraw their objection to the billing rates the
Magistrate Judge used in calculating the fees owed attorneys
3
The Magistrate Judge did not specify how interest was to
be calculated, but it is fair to infer that he accepted
plaintiffs’ argument that interest should be awarded at the prime
rate and compounded annually.
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Bryant and Brueckner, however, this issue will be moot and this
matter can proceed to final judgment. Thus, in the event
plaintiffs withdraw their objection, I direct counsel to confer
and to submit a jointly-authored proposed final judgment
consistent with the Magistrate Judge’s Report and Recommendation,
as modified by this opinion.4
For the foregoing reasons, I accept Magistrate Judge
Martin’s August 1 0 , 2001 Report and Recommendation [document no.
1 7 ] , as modified in section II of this Memorandum and Order. I
also commend the Magistrate Judge for a job well done.
SO ORDERED.
Paul Barbadoro
Chief Judge
December 5 , 2001
cc: Beverly Ledbetter, Esq.
Julius Michaelson, Esq.
Sandra Duggan, Esq.
Arthur Bryant, Esq.
Lynette Labinger, Esq.
Raymond Marcuccio, Esq.
Amato DeLuca, Esq.
Clerk, USDC-RI
4
In doing s o , counsel can of course reserve their right to
appeal any aspect of this Memorandum and Order with which they
disagree.
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