# Save Our Cumberland Mountains, Inc. v. Donald P. Hodel, Secretary of the Interior

> Court of Appeals for the D.C. Circuit · October 14, 1987 · 826 F.2d 43

URL: https://www.frixlaw.com/law-library/cases/9476565

## Case

- **Full name:** SAVE OUR CUMBERLAND MOUNTAINS, INC., Et Al. v. Donald P. HODEL, Secretary of the Interior, Et Al., Appellants
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** October 14, 1987
- **Citations:** 826 F.2d 43; 263 U.S. App. D.C. 409
- **Precedential status:** Published
- **Opinion:** Concurrence by Ginsburg
- **Judges:** Wald, Ginsburg, Bork
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated in part, on other grounds by Save Our Cumberland Mountains, Inc. v. Donald P. Hodel, Secretary of the Interior, 857 F.2d 1516 (1988).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476565

## How later opinions describe it (automated extraction)

- holding that a private attorney’s customary billing rate, employed in 20% to 50% of his cases, is the presumptively reasonable rate for his services
- explaining that D.C. Circuit law is binding “unless and until overturned by the court en banc or by Higher Authority”

## Opinion text

RUTH BADER GINSBURG, Circuit Judge,
concurring:
This court’s “lodestar” determination in Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.Cir.1984), affirming in part and remanding in part 572 F.Supp. 354 (D.D.C.1983), cert. denied, 472 U.S. 1021 , 105 S.Ct. 3488 , 87 L.Ed.2d 622 (1985), Chief Judge Wald points out, is of questionable consistency with Blum v. Stenson, 465 U.S. 886 , 104 S.Ct. 1541 , 79 L.Ed.2d 891 (1984), and bears reexamination. I agree. I do not believe Congress envisioned one fee calculation regime for legal aid attorneys along with “[t]he highest paid law firm in town,” Dissent at 60, and another cut-price one for firms such as Bredhoff & Kaiser, and lawyers situated as are Yablonski and Galloway. Thus, were we deciding initially what fee calculation regime is most compatible with congressional intent, I would vote to treat all fee seekers in the Blum manner.
Laffey, however, is law of the circuit “whether or not [it] is correct,” Court’s Opinion at 49, and binds us unless and until overturned by the court en banc or by Higher Authority. Chief Judge Wald finds a way out for Galloway because Galloway’s “rate ... ranges from $75-$100 per hour.” Galloway Affidavit, Joint Appendix at 180 (emphasis supplied). But owing to Laffey, Chief Judge Wald concedes, a Yablonski or a Bredhoff & Kaiser attorney is locked into an established cut rate of $100 per hour charged to a worthy but not wealthy clientele, even when that established rate is *55 subject to negotiation down, say to $75. * Such distinctions invite manipulation and dispute. I would revisit Laffey, but while it is our precedent, I resist an end run around it.
Far from “arbitrarily" pulling out of a hat “one of [Galloway’s] many different hourly rates,” see Dissent at 58, the court has awarded Galloway the top rate in the sole range Galloway chose to set out in his affidavit, see Court’s Opinion at 48; following today’s decision, the court would be obliged to take the same approach in calculating the fee of every other similarly situated “idealistic lawyer.” See Dissent at 60. The top rate in Galloway’s range is as "easily ascertained” and "predictable” as is Bredhoff & Kaiser’s hourly rate, a rate Bredhoff & Kaiser determined by "the[ ] ability to pay” of "the particular clients the firm ch[ose] to represent.” Laffey, 572 F.Supp. at 372 . But see Dissent at 57-58 (disregarding, in finding uncertainty and unpredictability, that the court has determined the appropriate rate to be the top one Galloway set out in his affidavit).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476565. Public record. Not legal advice.