Petition — Garrahy v. Palmigiano

Court, U. &

FILED

JUN 16 1980

AEL RODAK, JR,

In the

Supreme Court of the United States.

no. €9-1979

OcrosBer TERM, 1979.

J. JOSEPH GARRAHY anp

BRADFORD E. SOUTHWORTH er t.,

PETITIONERS,

v.

NICHOLAS PALMIGIANO anp

LEONARD JEFFERSON er At.,

RESPONDENTS.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

DeEnNIs J. Roberts II,

Attorney General,

WiLuiaM G. Bropy,

Assistant Attorney General,

EILEEN G. Cooney,

Special Assistant

Attorney General,

56 Pine Street,

Providence, Rhode Island 02903.

(401) 277-3384

Counsel for Petitioners.

BATEMAN & SLADE, INC, BOSTON , MASSACHUSETTS

Table of Contents.

Opinion below 2

Jurisdiction 2

Question presented 2 ;

Statutory provisions involved 2

Statement of the case 3

Reason for granting the writ 5

1. The decision below is contrary to the intent of

42 U.S.C. § 1988 5

Conclusion 9

Appendix follows page 9

Opinion and judgment of the court of appeals la

Opinion and judgment of the district court in Pal-

migiano v. Garrahy 27a

Opinion and judgment of the district court in Jef-

ferson v. Southworth 29a

Table of Authorities Cited.

CASEs.

Alsager v. District Court of Polk County, 447 F. Supp.

572 (S.D. Iowa, 1977) 7

Beazer v. New York City Transit Authority, 558 F. 2d

97 (2d Cir. 1977) rev'd on other grounds, 440 U.S.

568 (1979) ; 5,7

Johnson v. Georgia Highway Express, Inc., 488 F. 2d

714 (5th Cir. 1974) 6,7

ii TABLE OF AUTHORITIES CITED.

King v. Greenblatt, 560 F. 2d 1024 (1st Cir. 1977) 5,6

Lund v. Affleck, 587 F. 2d 75 (1st Cir. 1978) 5,7

Northcross v. Board of Education, 611 F. 2d 624 (6th

Cir. 1979) 6

Oliver v. Kalamazoo Board of Education, 576 F. 2d 714

(6th Cir. 1978) 7

Planned Parenthood of Minnesota, Inc. v. Citizens for

Community Action, 558 F. 2d 861 (8th Cir. 1977) 7

Preston v. Mandeville, 451 F. Supp. 617 (S.D. Ala.

1978) 7

Rodriguez v. Taylor, 569 F. 2d 1231 (3d Cir. 1977) 5

Sargeant v. Sharp, 579 F. 2d 645 (1st Cir. 1978) 7

Tillman v. Wheaton-Haven Recreation Assn. Inc., 517

F, 2d 1141 (4th Cir. 1975) 5

STATUTES.

42 U.S.C. § 1988 (1976) © 2, 3, 4, 5, 7 et seq.

MISCELLANEOUS.

Senate Report No. 74-1011, 94th Cong. 2d Sess. 1 (1976) 6,8

In the

Supreme Court of the United States.

No.

Ocroser TERM, 1979.

J. JOSEPH GARRAHY anp

BRADFORD E. SOUTHWORTH er At.,

PETITIONERS,

v.

NICHOLAS PALMIGIANO anp

LEONARD JEFFERSON er At.,

RESPONDENTS.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

The petitioners J. Joseph Garrahy, Bradford Southworth,

and others respectfully pray that a writ of certiorari issue to

review the judgment and opinion of the United States Court of

Appeals for the First Circuit entered in this proceeding on

March 3, 1980.

2

Opinion Below.

The opinion of the Court of Appeals, not yet reported, ap-

pears in the Appendix hereto. The opinions of the District

Court for the District of Rhode Island, 466 F. Supp. 732

(D.R.I. 1979), also appear in the Appendix.

Jurisdiction.

The judgment of the Court of Appeals for the First Circuit

was entered on March 3, 1980. Justice Brennan granted an ex-

tension of time until June 16, 1980 in which to file this petition

without prejudice to the Court’s consideration of whether the

petition was timely filed. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

Question Presented.

Whether the trial court should consider counsel’s actual

salary in determining a reasonable fee pursuant to 42 U.S.C.

§ 1988.

Statutory Provision Involved.

United States Code, Title 42, Section 1988, as amended, in

relevant part provides:

“In any action or proceeding to enforce a provision of sec-

tions 1981, 1982, 1983, 1985, and 1986 of this title, title

IX of Public Law 92-318, or in any civil action or pro-

3

ceeding, by or on behalf of the United States of America,

to enforce, or charging a violation of, a provision of the

United States Internal Revenue Code, or title VI of the

Civil Rights Act of 1964, the court, in its discretion, may

allow the prevailing party, other than the United States,

a reasonable attorney’s fee as part of the costs.”

Statement of the Case.

Nicholas Palmigiano and other prisoners and pre-trial de-

tainees confined at the Adult Correctional Institutions brought

this consolidated class action against the Governor of Rhode

Island, J. Joseph Garrahy, and officials and employees of the

Institutions challenging the conditions of their confinement.

Plaintiffs were represented by the National Prison Project of

the American Civil Liberties Foundation. !

After a lengthy trial, the District Court held that the evi-

dence supported the conclusion that “the totality of conditions

of confinement in Maximum and Medium do not provide the

‘tolerable living environment’ [citations omitted], that the

Eighth and Fourteenth Amendments require for state prison

inmates.” Palmigiano v. Garrahy, 443 F. Supp. 956, 979

(D.R.I. 1977). In that opinion, the trial court also ordered the

defendants to pay to plaintiffs’ counsel reasonable attorneys

fees pursuant to 42 U.S.C. § 1988. Id. at 990.

Following submission of memoranda on the fee issue by all

parties the court conducted hearings on counsels’ fee requests

in December, 1978, and January, 1979. At those hearings, de-

fendants indicated that plaintiffs’ counsel were salaried and

argued that the amount of that salary should be considered by

‘Plaintiffs were represented also by other counsel whose fee is not at issue.

4

the court in determining a reasonable fee for services per-

formed on the pending matter. The court rejected defend-

ants’ position stating that nothing in the legislative history of

42 U.S.C. § 1988 or in the case law interpreting that statute

supported the conclusion that salaried employees of a public

interest firm should be treated in a manner different than a

private practitioner. Palmigiano v. Garrahy, 466 F. Supp.

732, 736 (D.R.I. 1979).

Leonard Jefferson and other inmates at the Adult Correc-

tional Institutions in a related action successfully prosecuted a

class action against Bradford Southworth, then Director of the

Department of Corrections, and other persons employed by

the Department of Corrections in which they challenged the

constitutionality of a lock-up instituted by officials at the In-

stitutions. Plaintiffs in this case were also represented by

counsel employed by The National Prison Project.*

Following plaintiffs’ request for counsel fees pursuant to 42

U.S.C. § 1988, memoranda on the request were submitted by

all parties. The litigants agreed that evidence presented at the

December, 1978, and January, 1979, hearings on the fee re-

quest in Palmigiano v. Garrahy, would apply to the petition in

this case. As in the Palmigiano case, the court rejected de-

fendants’ argument that the amount of counsels’ salary should

be considered in determining a reasonable fee for legal services

performed during the pendency of the case.

On March 9, 1979, the District Court entered judgment in

Palmigiano v. Garrahy awarding counsel fees in the amount of

$65,549.40 to plaintiffs. On the same day, the court entered

judgment in Jefferson v. Southworth awarding to plaintiffs

counsel fees in the amount of $13,795.60. The defendants ap-

pealed this judgment to the United States Court of Appeals for

the First Circuit. The Circuit Court upheld the award stating

* Plaintiffs were also represented by other counsel whose fee is not at issue.

5

in short, that counsel salaried by public interest firms are to be

treated for purposes of a fee award in the same manner as the

private practitioner.

Reason for Granting the Writ.

I. THe Decision BELOw 1s CONTRARY TO THE INTENT OF

42 U.S.C. § 1988.

Section 1988 of Title 42 provides that in any action to en-

force a provision of 42 U.S.C. § 1983, the court “may allow the

prevailing party a reasonable attorney’s fee as part of the

costs.” The First Circuit has held that the touchstone of a

reasonable fee is the market value of the services rendered

without regard to the true value of those services as evidenced

by the actual remuneration received by the attorney rendering

service. (See Appendix p. 65a.)

The petitioners’ concede that the view expressed by the First

Circuit in King v. Greenblatt, 560 F. 2d 1024 (1st Cir. 1977)

and Lund v. Affleck, 587 F. 2d 75 (1st Cir. 1978), and re-

affirmed in the instant case, is consonant with the view

adopted by other circuit courts addressing the ssue. See, e.g.,

Beazer v. New York City Transit Authority, 558 F. 2d 97 (2d

Cir. 1977), rev'd on other grounds, 440 U.S. 568 (1979);

Rodriguez v. Taylor, 569 F. 2d 1231 (3rd Cir. 1977); Tillman

v. Wheaton-Haven Recreation Assn., Inc., 517 F. 2d 1141 (4th

Cir. 1975). However, petitioners assert that the legislative

history of 42 U.S.C. § 1988 supports the position urged by peti-

tioners.

Congress in enacting § 1988 clearly enunciated its purpose

to encourage private citizens to vindicate the important con-

gressional policies embodied in civil rights legislation. Section

iii ial

6

1988 was directed towards the average citizen with few if any

financial resources available to enforce his civil rights in a

judicial proceeding. Senate Report No. 94-1011, 94th Con-

gress, 2d Sess. 2 (1976). Congress noted that the fees awarded

must be sufficient to attract competent counsel to assist plain-

tiffs who have suffered constitutional deprivations. Senate

Report at 6. Congress cited with approval the standards relied

on by the Fifth Circuit to establish a reasonable fee in Johnson

v. Georgia Highway Express, Inc., 488 F. 2d 714 (5th Cir.

1974), specifically:

““(1) the time and labor required. . . . (2) the novelty and

difficulty of the question presented. . . . (3) the skill re-

quired to perform the legal services. . . . (4) the preclu-

sion of other employment by the attorney due to accep-

tance of the case. . . . (5) the customary fee in the com-

munity. .. . (6) whether the fee is fixed or contingent. . . .

(7) time limitations imposed by client or circumstances.

. . » (8) the amount involved and the results obtained.

. . . (9) the experience, reputation and ability of the at-

torney.... (10) the undesirability of the case. .. .

(11) the nature and length of the professional relationship

with the client. . . . (12) the awards in similar cases.” Id.

at 717-19.

The Johnson standards have been adopted with few changes

by most circuit courts throughout the country. See e.g., King

v. Greenblatt, 560 F. 2d 1024 (1st Cir. 1977); but see, North-

cross v. Board of Education, 611 F. 2d 624 (6th Cir. 1979).

Petitioners agree that the Johnson standards furnish an ap-

propriate guideline to the court in attorney fee cases. But peti-

tioners assert that in applying those standards in the instant

case the trial court and the First Circuit, by refusing to con-

7

sider the actual salary of plaintiffs counsel as an additional fac-

tor in determining a reasonable counsel fee ignored the caveat

stressed by the Johnson court which stated:

To put these guidelines into perspective and as a caveat

to their application, courts must remember that they do

not have a mandate . . . to make the prevailing counsel

rich. ... The statute was not passed for the benefit of at-

torneys but to enable litigants to obtain competent coun-

sel . . . and to fairly place the economical burden of . . .

litigation. 488 F. 2d at 719.

This caveat makes it clear that the thrust of the Act is reim-

bursement not enrichment, that the intent is to allow citizens

“to recover what it costs them to vindicate .. . rights in

court,” Sargeant v. Sharp, 579 F. 2d 645, 648 (1st Cir. 1978),

not to create a windfall for counsel representing those citizens.

Id. at 648. See also Oliver v. Kalamazoo Board of Education,

576 F. 2d 714 (6th Cir. 1978); Planned Parenthood of Minne-

sota, Inc. v. Citizens For Community Action, 558 F. 2d 861

(8th Cir. 1977); Preston v. Mandeville, 451 F. Supp. 617 (S.D.

Ala. 1978); Alsager v. District Court of Polk County, 447

F. Supp. 572 (S.D. Iowa, 1977).

Petitioners do not assert that an award of fees to salaried

counsel employed by public interest legal organizations in and

of itself creates a windfall. Circuit courts have repeatedly af-

firmed the right of those organizations to an award of fees pur-

suant to § 1988. See e.g., Lund v. Affleck, 587 F. 2d 75 (1st

Cir. 1978); Beazer v. New York City Transit Authority, 558

F. 2d 97 (2d Cir. 1977), rev'd on other grounds, 440 U.S. 568

(1979). However petitioners do assert that in light of the con-

gressional intent the actual cost expended by that organization

in counsel salaries in the pursuit of a favorable judgment should

8

be considered by the trial court as one factor in its assessment

of the reasonableness of any fee request. The issue is not, as

the First Circuit indicated, whether the losing defendant in a

public interest case should gain an advantage by having fees

computed differently for public interest firms (Appendix,

p. 65a), but whether courts should consider the factual cost of

litigation as indicated by the counsel salary expended as one

factor in arriving at a fee award which fairly and reasonably

reimburses a prevailing plaintiff’s counsel for time expended

in prosecuting the cause.

Petitioners assert that consideration of plaintiffs’ counsel’s

actual salary as one factor in assessing a reasonable fee would

not result in a windfall to defendants as the First Circuit in-

dicated (Appendix, p. 69a). Rather it would assist the court to

arrive at a rate of compensation which fairly reflects the real

value of a particular counsel’s services rather than the fair

market value of services rendered by hypothetical counsel of

certain experience and expertise. The value of counsel’s serv-

ices traditionally is reflected in the fees charged by that

counsel or in salary paid to counsel by his employer.

Petitioners argue that the intent of § 1988 is to allow a suc-

cessful civil rights plaintiff to shift the cost of securing his

rights to the defendant (Senate Report at 2). The costs shifted

should bear a relationship to the costs incurred — the counsel

fee which plaintiff himself would have incurred. The actual

fees regularly charged by particular counsel are evidence of

the cost plaintiff would have incurred prior to enactment of

§ 1988. Where no fee is regularly charged, as in this case

where counsel are salaried employees of a public interest or-

ganization, the amount of that salary is reliable evidence of

the cost of the litigation.

The First Circuit stated in its opinion that counsel fees

awarded to public interest organizations are expected to be

used to finance more civil rights litigation (Appendix at

9

pp. 67a-68a). The petitioners note that the clear intent of

§ 1988 is reimbursement of the expense of litigation and urge

that, by ignoring the reimbursement aspect of § 1988 in the in-

stant case, the First Circuit in effect is requiring defendants in

civil rights cases to finance litigation to which they are not a

party and of which they have no knowledge or interest.

The importance of the reimbursement factor which peti-

tioners raised to the First Circuit cannot be overemphasized.

Petitioners assert that by failing to consider the actual cost of

litigation in an award of fees, courts throughout the country

are granting counsel fees against governmental entities which

do not reflect the true cost of any given litigation and which,

in the case of public interest organizations, is actually used to

support litigation to which the governmental defendant is not

a party.

Conclusion.

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the First Circuit.

Respectfully submitted,

DENNIS J. ROBERTS II,

Attorney General,

WILLIAM G. BRODY,

Assistant Attorney General,

EILEEN G. COONEY,

Special Assistant

Attorney General,

56 Pine Street,

Providence, Rhode Island 02903.

(401) 277-3384

Counsel for Petitioners.

10

la

Appendix.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Civit Action No. 74-0172

NICHOLAS A. PALMIGIANO, er At.

vo.

J. JOSEPH GARRAHY, er at.

Civit Action No. 75-0032

THOMAS R. ROSS, er At.

v~.

J. JOSEPH GARRAHY, er At.

February 22, 1979.

Opinion

Pettine, Chief Judge.

Plaintiffs’ attorneys, employed by the National Prison Proj-

ect of the American Civil Liberties Union, seek an award of

fees in compensation for their successful presentation of a ma-

jor civil rights class action, wherein the Court ordered the

defendants to correct unconstitutional conditions then existing

at the Adult Correctional Institution. The defendants raise

2a

their objections to the granting of any award. One of these —

that the Eleventh Amendment bans a fee award out of the state

treasuries against state officials — can no longer be main-

tained. Hutto v. Finney, 46 U.S.L.W. 4817 (June 23, 1978)

clearly sets aside any such state immunity. The other objec-

tions are that the requested hourly rates are excessive and unrea-

sonable, and that the equities of the case require a reduction of

the amount claimed.

The plaintiffs’ right to recover a fee under the Civil Rights

Attorneys’ Fees Award Act of 1976, 42 U.S.C. § 1988, is so

clearly established that any analysis or extended discussion of

this point would be nothing more than an exercise of reitera-

tion. On the other hand, the ultimate determination of the

amount of the fee to be awarded requires a close filtering fac-

tual analysis of the case through the standards enunciated in

King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977), and the

teachings of Johnson v. Georgia Highway Express, Inc., 488

F.2d 714 (5th Cir. 1974); Lund v. Affleck, 587 F.2d 75 (1st

Cir. 1978); and Souza v. Southworth, 564 F.2d 609 (lst Cir.

1978).

The consolidated cl: ss action giving rise to the present con-

troversy was heard by this Court more than a year ago; after a

lengthy trial an opinion was rendered on August 10, 1977, in

which the Court found, among other things, that the

lack of sanitation, lighting, heating and ventilation, and

the noise, idleness, fear and violence, and the absence or

inadequacy of programs of classification, education, phys-

ical exercise, vocational training or other constructive

activity create a total environment where debilitation is

inevitable, and which is unfit for human habitation and

shocking to the conscience of a reasonably civilized per-

son. Palmigiano v. Garrahy, 443 F.Supp. 956, 979

(D.R.I. 1977).

3a

The case challenged virtually every aspect of prison life and

required more than good legal competency to conduct and

manage the pretrial discovery stage successfully and, in the

courtroom, develop with probative evidentiary clarity the de-

nouement of prison life at the ACI wit". all its inhumane uncon-

stitutional aspects. It demanded advocacy at its best. It can

be safely said the no case in this courtroom has ever generated

more political and public reaction; more than a year later it is

still of prime public concern and comment. The undesirabili-

ty of the case is manifest in the reaction of a great majority of

the people and as a consequence with many legislators.!

This complex legal and emotional setting is the common

denominator for many of the criteria set forth in King, supra,

each of which will be discussed; however, the final conclusion

should be consonant with prior awards by this Court in similar

cases, cited supra, as reviewed by the appellate court, to the

end that an even-handed, logical body of precedents is

established.

The right to a fee is firmly established in statutory law. In

fact, the Court has already ordered, in its August 10, 1977

decision, that counsel for the plaintiffs be awarded reasonable

attorneys’ fees. Therefore, I will now consider the controlling

criteria and the amount of the award.

' This statement is based on the newspaper publication of the comments of

various legislators and certain others of the general public. The long history

of prisoner trials in this Court has given rise to more than a passing reaction

in the past. The coercive nature of the Court's orders is not easily accepted

by the legislative and executive branches of this government. At one point, it

was reported that thirteen state senators joined in a resolution that Judge Pet-

tine be impeached for issuing “unconstitutional” orders concerning the

prison.

4a

The Fee Award

In King v. Greenblatt, supra, the standards for computing a

fee award under 42 U.S.C. § 1988 are:

1) the time and labor required; 2) the novelty and dif-

ficulty of the question presented; 3) the skill required to

perform the legal services; 4) the preclusion of other em-

ployment by the attorney due to acceptance of the case;

5) the customary fee in the community; 6) whether the

fee is fixed or contingent; 7) time limitations imposed by

client or circumstances; 8) the amount involved and the

results obtained; 9) the experience, reputation and ability

of the attorney; 10) the undesirability of the case; 11) the

nature and length of the professional relationship with

the client; 12) awards in similar cases. Id., at 1026-27,

describing Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714, 717-719 (5th Cir. 1974).

All these criteria will be considered though the defendants

did state on the record that they do not question “the compe-

tency of Plaintiffs’ counsel or the quality of their work”, the

number of hours for which compensation is sought.? (Defend-

ant’s memo p. 4.)

*In oral argument the assistant attorney general representing the defend-

ants stated that he did not question the actual hours the plaintiffs said “they

put in on the case” because it “would be futile to go through cross-examina-

tion as to each particular hour. I do question duplicative hours; non-lawyer

hours”.

It was also stipulated that the Court could accept the affidavits, intro-

duced as exhibits, as being the testimony the individuals would have given

had they testified in person.

5a

Time and labor required, novelty and difficulty of the

questions presented; the skill required to perform the

legal services; the experience, reputation and ability of

the attorney.

These factors can best be realized by noting the comprehen-

siveness of the case which encompassed the totality of prison

life in Rhode Island. The unconstitutional conditions attacked

were the filth and deterioration of the maximum security

building, its unsanitary, inadequate and dangerous plumbing

and electric lighting, the intolerable noise level within the sec-

tion, the inadequate heating and ventilating system — guards

and inmates wore heavy coats day and night — the existing

fire hazards, deplorable food service — presenting imminent

danger to public health — health standards in the infirmary,

collapse of the classification process, the rampant fear and vio-

lence throughout the prison, the intolerable idleness of inmates

for lack of programs, the co-mingling of pretrial detainees and

convicted felons, lack of drug abuse programs, deficiencies in

medical services which were a threat to the lives of the in-

mates; in short, the plaintiffs developed their case in all these

areas in an institution which, as stated by one expert, had “all

the egregious deficiencies that could possibly exist” and as

another expert testified was the only prison he ever visited for

which he could find nothing good to say. In the August 10th

Opinion this Court noted the enormous preparation and

presentation required by this case: “ After extensive discovery,

a trial was held which extended over two weeks. The findings

of fact required by Fed.R.Civ.P. 52 are set forth herein and

are based on the testimony received at trial, stipulation by the

parties and extensive exhibits, including depositions of various

officers of the Department of Corrections. The Court’s task

was made easier by the extensive assistance of experts from

various fields of corrections, institutional environmental health

6a

and sanitation and correctional psychology”. Palmigiano,

supra, at 960.

It cannot be disputed the case involved a complex, compli-

cated factual situation which required thorough pretrial dis-

covery and study. Especially important was the familiarization

with several specialized disciplines, so necessary for the proper

presentation of expert testimony. Also required was the corre-

lation and sifting of massive amounts of evidence and the ulti-

mate orderly presentation in the courtroom. The novelty of

the questions raised cannot be questioned; though there may

be a legion of decisions on various aspects of prison conditions,

at the time of this trial the Court could find no other decision

covering the entire range of issues raised in this litigation.

The plaintiffs’ attorneys are from the National Prison Proj-

ect and have acquired a superior skill in this area of the law. It

is uncontradicted they operate on a national scale and thus

have represented prisoners in other states in many important

cases involving complex constitutional issues. The recognition

of their expertise is evidenced by their teaching, publications

and appearances before Congressional Committees, various

State Commissions and conferences on corrections.

Preclusion of other employment.

The defendants’ argument on this issue is substantially the

same as made in Lund. They claim this consideration is not

relevant because the “National Prison Project is an arm of the

privately-funded American Civil Liberties Union [and] its fi-

nancial ability to maintain this type of lawsuit will not be im-

paired by a denial or limitations of fees” (defendants’ brief).

Defendants further contend the Court must take into consider-

ation that the attorneys are salaried employees and thus no

award should be made in excess of their salaries, i.e., their en-

titlement must be nothing more than a percentage of their

7a

salary as related to the time spent on this case. This argument

concludes that “any amount over the cost incurred by the Na-

tional Prison Project, the salaries paid out by the National Pris-

on Project would amount to a windfall” (oral argument on

briefs).

This argument was foreclosed by the First Circuit in Rey-

nolds v. Cooney, 567 F.2d 1166 (1977) wherein it stated:

Attorneys’ fees are, of course, to be awarded to attorneys

employed by a public interest firm or organization on the

same basis as a private practitioner. Id. at 1167.

Accord, Perez v. Rodriguez Bow, 575 F.2d 21, 24 (1st Cir.

1978). In spite of this, the defendants press their position

arguing that the appellate court has not answered the precise

question — limitation of fees to public interest firms by the

amount of their salaries. I fail in understanding their inter-

pretation of the words, “on the same basis as a private practi-

tioner.” They do not argue that the public interest firms

should be paid only the additional difference between their

salaries and what a private practitioner would receive. In-

stead, they flatly state the plantiffs’ attorneys should be limited

by the ceiling of their salaries. In any event, the Court con-

cludes that both positions are untenable. I find nothing in

decisional law or the Congressional history indicating that the

losing defendant in a public interest case should gain an ad-

vantage by having fees computed differently for public inter-

est firms. Such an approach would surely negate the purpose

of “deterring illegal conduct by the losing party and other

possible violators” and is at odds with the “private enforce-

ment pattern [existing] in numerous federal statutes mandat-

8a

ing fee awards”; nor would it “induce behavior which courts

and legislatures find desirable.”*

The attorneys for the National Prison Project were preclud-

ed, because of the time occupied in the prosecution of this con-

troversy, from applying their time on other important civil

rights cases. Certainly the National Prison Project has budget-

ary strictures and the important services it offers have to be

allocated as priorities demand. The award of attorneys’ fees,

all of which goes to the organization, is a means by which

representation can be expanded to more litigants in civil rights

cases.

The very purpose of the statute is to provide fees that are

adequate “to attract competent counsel . . .” to the type of

complex litigation produced by this case. Senate Report No.

94-1011, 94th Cong. 2d Sess. 1976 at 6; U.S. Code Cong. and

Admin. News 1976, p. 5913. Neither the First Circuit nor any

other circuit has ever included a collaterial source doctrine in

setting forth the controlling criteria in assessing a fee. See,

e.g., King v. Greenblatt, supra; Thompson v. Madison Coun-

ty Board of Education, 496 F.2d 682, 689 (5th Cir. 1974);

Moore v. Townsend, 525 F.2d 482-486 (7th Cir. 1975); Brand-

ersburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 1974);

Lea v. Cove Mills Corp., 438 F.2d 86, 88-90 (4th Cir. 1971).

Finally, as the Fifth Circuit has stated,

This Court has indicated on several occasions that al-

lowable fees and expenses may not be reduced because

appellants’ attorneys was employed or funded by a civil

rights organization and/or tax exempt foundation or be-

cause the attorney does not exact a fee... . Whether the

attorney charges a fee or has an agreement that the or-

* See, Awards of Attorneys’ Fees to Legal Aid Offices, 87 Harv.L.Rev. 411

(1973).

9a

ganization that employs him will receive any awarded at-

torneys’ fees are not bases on which to deny or limit attor-

neys’ fees or expenses. Fairly v. Patterson, 493 F.2d 598,

606-7 (1971).

The Contingent Factor.

The only fee available in welfare litigation is pursuant

to 42 U.S.C. § 1988 which, by its very terms, makes such

fee contingent on the success of the litigation. Private at:

torneys have several options: Take the case on a purely

contingency basis as provided in the statute and receive

payment only if successful, arrange for compensation

from the client if unsuccessful, or refuse the case. Only

the first option is open to legal services attorneys. They

are obligated to represent all the poor and reimbursement

is completely contingent on success. Lund v. Affleck,

442 F.Supp. 1109, 1116. (D.R.I. 1977), aff'd 587 F.2d 75

(1st Cir. 1978).

—_

The plaintiffs urge that since the individual plaintiffs were

not obligated to pay any fees, the award should be adjusted

upward as an “incentive” award because of the contingency

factor. In support they cite Parker v. Matthews, 411 F.Supp.

1059, 1068 (D.D.C. 1976); Lockheed Minority Solidarity

Coalition v. Lockheed, 406 F.Supp. 828, 834 (N.D.Cal.

1976); Stanford Daily v. Zurcher, 64 F.R.D. 680, 685-686

(N.D.Cal. 1974); and Arenson v. Board of Trade, 372 F.Supp.

1349, 1358 (N.D. Ill. 1974).

Certainly the contingency factor is cause for a more liberal

application of the consideration guiding a court in awarding a

fee; Congress intended, through the fees award act, to encour-

age civil rights litigation to vindicate important rights guaran-

10a

teed by law. Further, the American Bar Association canon of

ethics permits consideration of the contingent nature of the

case when determining a fee. Therefore, a court should con-

sider the contingent nature of a case if the statutory goal of full

compensation is to be met. However, the contingency factor

should not, as this Court sees it, be analogized to a punitive

award.

Legal writers and a number of courts have alluded to the

punitive nature of fee awards in these kinds of cases. Even

conceding for the purpose of discussion that the coercion of a

fee is in the nature of a punishment, the fee award, neverthe-

less, should not be thought of within the same framework as

exemplary or punitive damages.‘ The fee must be measured

by the uncertainty of success and be within the bounds of rea-

sonableness. If the probability of success is a virtual certainty

or great, it follows the contingent factor diminishes in value.

The measure of this value is not subject to a standard formula;

rather, it requires the most delicate application of judicial dis-

cretion, in order that the amount ultimately awarded is fair

and ethical. See Berger, Court Awarded Attorneys’ Fees:

What is “Reasonable”, 126 U.Pa. L. Rev. 281, 326 (1977).

One must remember that no single criterion can be consid-

ered in isolation. The statute contemplates reasonable fees. As

the First Circuit stated, “[i]t is not enough for the court to

multiply a fixed rate by the number of hours claimed. The

court must satisfy itself of the overall fairness and reasonable-

‘This is not to say that awards in the nature of punishment may not be

made in an appropriate case. Punitive and exemplary awards must require

consideration of certain traditional factors such as malicious, wanton or op-

pressive conduct. See, such historic teachings as Hale, Damages §§ 87, 88

n.2 (2d ed. 1912); International Union, United Auto., Aircraft and Agr. Im-

plement Workers v. Russell, 356 U.S. 634 (1958). I suppose a skilled advo-

cate might persuasively argue that it should be no different in a civil rights

case than in a tort action.

However, I take no position today as to the merits of the foregoing.

lla

ness of the fee under all circumstances.” Lund v. Affleck,

supra, at 77. Reasonableness by its nature is an amorphous

standard. Applying such a standard inevitably requires the

application of subjective justice; but the contours of any sub-

jective determination must be shaped by the particular objec-

tive facts of the case. Considerations of a reasonable fee

should not include the bad faith, or obstinacy of the defend-

ant; these elements might be considered separately in a possi-

ble award of punitive damages. However, the standards set

forth in King and Johnson are the ingredients to be weighed in

the quest for what is just, and none of these standards warrant

any punitive considerations.

The contingency factor may justify an upgrading; but this

element must be applied with care and be directly related to

the degree of the uncertainty of success; when added to the

computed fee, the total amount must be reasonable and ethical.

In our desire to vindicate public wrongs, we have not cast

aside ethical considerations that hold adequate compensation

is that amount which enables a lawyer to serve his client effec-

tively and at the same time preserves the integrity and inde-

pendence of the profession; that a lawyer should avoid charges

which either overestimate or under-value his advice and serv-

ice; and that a client’s ability to pay is no reason for an exces-

sive charge, though poverty may well require a lesser charge or

none at all. American Bar Association’s Code of Professional

Responsibility, Ethical Consideration 2-18, Disciplinary Rule

2-106; The Canons of Professional Ethics of the Rhode Island

Bar Association, Canon 12. An over-expansive interpretation

of the fees award act can only do violence to the legal profes-

sion. It is neither romantic or emotional to say that surely part

of the lawyers’ reward must be in his realizations that in a

public interest case he is cast in the role of representing a “great

5 See, n.4 supra.

12a

deal more than his own interest”, National Association of Reg-

ional Medical Programs, Inc. v. Weinberger, 396 F.Supp. 842

(D.D.C. 1975) — he acts in the nature of a private attorney

general vindicating a congressional policy to eradicate a public

evil. Though the contingent nature of the case in only one of

the many considerations, it all too often is overemphasized to

justify an unwarranted request by counsel.

Unfortunately, there does exist a wide discrepancy between

fee awards in private antitrust cases (rates averaging $180 an

hour) as against those in the area of civil rights (rates averaging

$40 an hour) thus making private antitrust cases more attrac-

tive. Berger, supra, 126 U.Pa.L.Rev. at 310. However, this

does not negate the fact that in public interest cases, all too

often, it is the public that pays or an educational institution

struggling against economic burdens that suffers. There is no

question that the“wrongdoer should be made to pay; but, on

the other side of the coin, there is the overall public service

that the defendant renders and this demands greater reserve in

assessing an award. As Johnson teaches, “the customary fee in

the community” must be considered; awarding such a custom-

ary rate, and a reasonable contingency amount when warrant-

ed, does not diminish attractiveness or discourage enforcement.

The benefit of the class is served; a balanced and reasonable

fee is not contrary to their interest and will not lose the attrac-

tion of competent attorneys. It is sophomoric to conclude that

an attorney would not be interested in a $100,000 fee simply

because application of a more liberal standard might pay him

$200,000. In denying a large incentive “bonus” or “multipli-

er,” this Court does not place a lower value on a civil rights fee

award simply because the case serves a broader public purpose;

rather, the Court intends to award full compensation for serv-

ices rendered without designating an excessive fee or “bonus”

that will injure the overall public interest served by the defend-

ants. All these factors must be taken into consideration; the

13s

traditional notion of ethics is still viable. Paying a full and fair

fee does not mean enforcement of these civil rights statutes is

dependent on the charity of competent counsel.

Not in any way minimizing the superior work and accom-

plishment of plaintiffs’ counsel and in no way saying they have

overemphasized the contingency element, the Court must con-

clude that the contingency factor cannot be given great value.

The egregious conditions existing in the Rhode Island correc-

tional system could hardly escape condemnation through a ju-

dicial declaration of unconstitutionality.

Customary fee in the community; amount involved and

results obtained; awards in similar cases.

The plaintiffs’ counsel urge this Court to consider the cus-

tomary fee for similarly complex civil rights litigation done out-

side the State of Rhode Island as well as in Rhode Island. The

defendants object claiming it is “without foundation”, “con-

trary to the ruling in King v. Greenblatt, supra”, that nothing

“in King even hints at the idea that the complexity of the issues

and the ‘unusualness of the subject matter’ . . . should expand

to a national level the scope of the community.”

The First Circuit in King cited with approval and accepted

the criteria set forth in Johnson, where it is specifically stated

that “[t]he reasonableness of a fee may also be considered in

the light of awards made in similar litigation within and with-

out the court’s circuit”, 488 F.2d at 719; it then reviewed cases

from their own and other circuits in determining the appeal

before them. Furthermore, the Johnson court also said that

“[a]n attorney specializing in civil rights cases may enjoy a

higher rate for his expertise than others, providing his ability

corresponds with his experience.” Id.

The customary fee in the Rhode Island community was

established through the affidavits of three practitioners in this

l4a

state reciting their own billing rates for similar complex litiga-

tion. Mr. Ralph Gonnella recites that his billing rate for simi-

lar complex federal litigation is seventy-five ($75.() dollars to

one hundred ($100.00) dollars, “depending upon the complex-

ity of the litigation and the nature of the issues”; Mr. Milton

Stanzler, a member of the bar since 1948, states that in his

opinion, “a reasonable fee for attorneys involved in complex

federal litigation and civil rights litigation having experience

of 25 years or more at the bar, would be the sum of $100. per

hour”; without impugning their affidavits, the Court must in-

terstitially note that both these attorneys have fee cases pend-

ing in this Court. Finally, Mr. Malcolm Farmer III sets forth

that based on the hourly rates charged by attorneys in his firm,

the “following fees are not inconsistent with the standard in

Rhode Island: (I) for an attorney of five years’ experience at

the bar: $60.00 per hour; (II) for an attorney with seven years’

experience at the bar: $70.00 per hour; and for an attorney

with twenty-five years’ experience at the bar: $85.00 per

hour”; he further states that no distinction is made between

the time spent in court as against time spent out of court and

that, “it would not be inappropriate for a somewhat higher

rate to be justified on the basis of the expertise of the attorney”

in the area of litigation.

In other circuits we find the following: Ruiz, et al. v. Estelle,

et al., C.A. No. 5523 (E.D. Texas 1977), a prisoner civil rights

case, awarding $75 an hour using the Johnson criteria; Stan-

ford Daily v. Zurcher, 64 F.R.D. 680, 684-85 (N.D. Cal.

1974), an action involving police misconduct, granting $50.00

an hour — the Court appears to have discounted the higher

billing rates because the attorneys were not in their area of ex-

pertise and it should be noted that this is a 1974 case; Guajardo

v. Estelle, C.A. No. 71-H-570 (S.D. Tex. 1977), a civil rights

prisoner case, awarding lead counsel $115-$125 an hour, sec-

ond counsel $70-&9 an hour and third counsel, $50-60 an hour.

l5a

In the area of antitrust, awards have ranged from a low of

$128.00 an hour to $500.00 per hour. See Arenson v. Board of

Trade, 372 F.Supp. 1349 (N.D. Ill. 1974); TWA v. Hughes,

312 F.Supp. 478 (S.D.N.Y. 1970).

Focusing on prior awards in this Court and on those award-

ed by the First Circuit, we find that $60.00 per hour was

awarded in a prisoner case for services performed in 1974 and

$75.00 per hour thereafter, which included fee petition in the

District Court. These amounts were upheld by the First Cir-

cuit, which reduced to $50.00 an hour the appellate work on

the fee issue. Souza v. Southworth, 564 F.2d 609 (1st Cir.

1977). However, this bare recitation is misleading because the

Court of Appeals did say that the award for the work before

this Court was indeed very high and that had it not been for

the fact that three appeals had been taken in the suit they

would have been tempted to remand the case for reconsidera-

tion — it concluded, “The amounts though high cannot be

considered unconscionable”. In Lund v. Affleck, 587 F.2d 75

(1st Cir. 1978), the Court sustained an award of $55.00 per

hour and $60.00 per hour recognizing the erosion of the dollar

over a five-year period. In Save Our Sound Fisheries v. Calla-

way, C.A. No. 5297 (D.R.I. March 6, 1978, unpublished),

brought under the provisions of the Marine Protection, Re-

search and Sanctuaries Act of 1972 and the Federal Water

Pollution and Control Act of 1972, this Court awarded a fee of

$75.00 per hour to one of the attorneys who had been before

the bar twenty years and usually billed at that rate.

The awards in other circuits, set forth supra, are persuasive

but certainly not controlling. In the last analysis the award in

this case must be reasonably coextensive with awards made by

the First Circuit in other similar cases; such a balancing is nec-

essary for an equitable resolution of the problem at hand. In

Lund, the appellate court approved an award of $60.00 an

hour. It follows that it must be determined whether the case

_—

l6a

at issue is more or less complex, etc. than Lund. In assessing

Lund and its companion cases, decided in one opinion, this

Court said at p. 1116,

I find these cases had both novelty and difficulty re-

quiring a high degree of skill for preparation and presen-

tation which these attorneys satisfied to a very high degree.

In Palmieri, careful legal and factual analysis of United

States Supreme Court precedent was required to evaluate

the State’s position denying factual similarity of the in-

stant case. The complexities involved in these kinds of

cases demand the skill of a highly intelligent lawyer. To

this Court’s knowledge Lund was a case of national first

impression. Lund involved questious of pendent jurisdic-

tion of unconstitutional claims, 28 U.S.C. § 1343; need to

reach constitutional challenge, 28 U.S.C. § 2281; class

certification and interpretation of the Social Security Act;

Inmates of the Boys’ Training School involved enforce-

ment of thirty-six page decree of detailed procedures to be

followed by the defendants on behalf of a class of juveniles.

The same is true of this case; however, here there was a two-

week trial involving a complex, complicated factual situation

involving approximately 700 prisoners in several institutions.

The Court quite agrees with the plaintiffs’ counsel that it was

particularly difficult to identify and prove the constitutional

violations. A comprehensive factual record had to be placed

before the Court which required testimony from seven nation-

ally-known experts from six different disciplines. Here, unlike

Lund, the tactical handling of the case needed more mature

judgment and skilled advocacy. This was one of the first cases

which attacked practically an entire prison operation affecting

all inmates, pretrial and convicted; the end result was the pro-

17a

mulgation of a sweeping order establishing minimum constitu-

tional standards and implementing for the first time in Rhode

Island a special master. The plaintiffs’ attorneys needed the

utmost skill to present, in a coordinated manner, complex

facts. The case had the problems present in Lund and more.

Striving to adhere to the teachings of our own circuit judges in

light of what other circuits have said, I conclude that more

than $60.00 per hour, as awarded in Lund, is justified here.

Exercising my discretion, King, 560 F.2d at 1026, I conclude a

fair award should be computed on the basis of the following

hourly rates:

A) MATTHEW L. MYERS — Mr. Myers acted as lead

counsel with the prime responsibility for the presentation of all

the evidence. He seeks $70.00 an hour. It is true this amount

represents a $10.00 per hour increase over the amount approved

in Lund; it is also true, as already stated by the Court, that this

case was more intricate and, unlike Lund, involved a lengthy

trial requiring intensive preparation and trial presentation.

Moreover, the Court is well aware that the effect of inflation

during the past year and one-half makes a direct comparison

between Lund and the present case illusory. Therefore, jus-

tice appears to dictate an increase over the rate awarded in

Lund.

In the final analysis, the overall compensation awarded to

each attorney must be fair and reasonable. With regard to

Mr. Myers, the Court concludes that a rate of $75.00 for trial

time and $70.00 out of court is entirely appropriate. I reject

the defendants’ argument that it should be less because at the

time of the litigation Mr. Myers had only four years’ experi-

ence. This is not persuasive — the number of years before the

bar is not the touchstone that determines the worth of an at-

torney’s fee. “[L]ongevity per se, should not dictate the

higher fee. If a young attorney demonstrates that skill and

ability, he should not be penalized for only recently being ad-

18a

mitted to the bar”; furthermore, “[a]n attorney specializing in

civil rights cases may enjoy a higher rate for his expertise than

others, providing his ability corresponds with his experience”.

Johnson, supra, at 719. Mr. Myers is indeed an expert whose

expertise and trial experience in many states of this country

cannot be questioned.

Out-of-court time requires a lower fee. The First Circuit

criticized the application of an across-the-board rate without

regard “to the difficulty of the work, the results achieved, and

all the other relevant factors”, King, supra, at 1027-1028. This

is a difficult issue. I agree that in this case the trial work

demands the premium rate which may not be so in other cases,

but how much less Mr. Myers should be paid for preparation,

with all its demands on legal skills, should not be substantial.

However skillfully it was tried, the secret was the intelligence

used in developing and welding together all the facts into a

cohesive pattern. It seems to me that $70.00 per hour for this

work is reasonable and fair.

The Court notes that application of these rates gives rise to a

reasonable increase over the rates awarded in Lund. Referring

to the breakdown of Mr. Myers’ hours which is set forth

below, the average hourly compensation for his services in this

case is $70.39. This 17 percent increase over Lund is account-

ed for by the greater complexity of this case and the 9 percent

inflation rate® which had prevailed in our economy since the

award in Lund was made.

B) ALVIN BRONSTEIN — Mr. Bronstein is the Executive

Director of the National Prison Project of the American Civil

Liberties Union Foundation. He has been a member of the

bar for approximately 25 years and has vast experience in civil

rights litigation; in addition, he is a teacher, lecturer, and writ-

*Eckstein, O., “The New Reality”, Data Resources Review, January,

1979, Vol. VIII, Number 1, p. 1.1.

19a

er. His credentials are indeed impressive and it may be said he

is one of the foremost national authorities in his field. He

seeks $125.00 an hour for his services, which amount more

than doubles the rates that have been previously approved in

this circuit. Conceding all the qualifications Mr. Bronstein

possesses, such a dramatic increase cannot be justified in the

light of awards in other cases in this circuit and in the interest

of overall fairness and reasonableness. The Court does feel,

however, that Mr. Bronstein is deserving of a higher hourly

rate than Mr. Myers.

Mr. Bronstein’s greatest contribution to this case was in a

supervisory capacity, where he could draw on the depth of his

knowledge and rich experience to give to the preparation of

the case the high gloss which was so evident to the Court in the

presentation of a complex evidentiary record comprised of tes-

timony on the various specialized fields of corrections, and in

the legal arguments articulated so well in pre- and post-trial

memorandum. In these endeavors his rate of compensation

should be significantly higher than that allowed Mr. Myers.

However, Mr. Bronstein’s courtroom skill, though of the high-

est caliber in this Court’s experience, was not integral to the

successful presentation of plaintiffs’ case in light of the com-

mendable effort put forth by Mr. Myers, who acted as lead

trial counsel while under the supervision of Mr. Bronstein.

Therefore, the Court will set a lesser premium on Mr. Bron-

stein’s in-court work as compared to that of Mr. Myers.

Taking the hourly rates allowed for Mr. Myers’ work as a

starting point and accounting for unique capabilities of Mr.

Bronstein, the Court will allow compensation at the rate of

$80.00 per hour in court and $75.00 out of court for Mr. Bron-

stein.

C) EDWARD I. KOREN — Mr. Koren is a staff attorney

with the National Prison Project and seeks $75.00 an hour for

his services. He was admitted to the District of Columbia bar

20a

in 1969 and since that time has had a great breadth of experi-

ence in the civil rights area including litigation, directorships

of various projects involving prisoners’ rights issues, service

with the Commission of Corrections for the State of New York

and as a writer of several publications in this field.

It is difficult to understand why the plaintiffs’ attorneys seek

a higher hourly rate for Mr. Koren than they do for Mr. Myers.

Mr. Myers acted as lead counsel in this case, while Mr. Koren’s

major contribution came from his out-of-court work. Despite

Mr. Koren’s superior experience, his compensation in this cate-

gory should not exceed that of Mr. Myers. While he was pres-

ent in court during the trial of this case, Mr. Koren did not

actively participate in the presentation of plaintiffs’ case. There-

fore, I conclude that $70.00 per hour across the board is a fair

rate for Mr. Koren’s legal work.

However, it is incumbent upon this Court “to distinguish

between legal work, in the strict sense, and investigation, cler-

ical work, compilation of facts and statistics and other work

which can often be accomplished by non-lawyers but which a

lawyer may do because he has no other help available. Such

non-legal work may command a lesser rate. Its dollar vale is

not enhanced just because a lawyer does it.” King, supra, at

1027. In the analysis of the affidavits, infra, this guide is con-

sidered. The task was not easy; the legal practice is not sub-

ject to a mathematical formula that can be scientifically

applied. Mistakes are inevitable; bright line distinctions are

not always possible.

As the Court has set forth below, certain of Mr. Koren’s

hours were spent examining ACI records in search of evidence

of incidents of violence at the prison. While Mr. Koren’s ex-

perience in prison matters may have enhanced his ability to

perform this task, the work was essentially non-legal in nature

and should be compensated at a rate of $30.00 per hour (see

below).

2la

D) ROBERT MANN — Mr. Mann served as local counsel

and graduated law school in 1973. He has worked with the

Rhode Island Legal Services, and since July, 1974 has been in

private practice. He has been active in public interest and

civil rights litigation, having acted as counsel in a number of

cases in Rhode Island. His exposure and experience does not

equal that of the other attorneys and his efforts appear to have

been primarily that of an assistant. As the attorney for the liti-

gants, he participated in the trial as a co-counsel but without

any appreciable trial work as such, i.e., interrogation and

cross-examination of witnesses. This is not to say his court

presence wasn’t required — he did, indeed, represent the

plaintiffs and the Court noted he was active throughout the

trial in conferring with the prisoner plaintiffs who were in

court and in numerous “counsel table” conferences with Mr.

Myers. Here again, the Court feels no distinction can be

drawn between in- and out-of-court time. A $60.00 hourly

rate is fair and reasonable.

However, Mr. Mann also has sought compensation for work

of an investigatory nature, such as checking records at a near-

by fire station. For this work the Court will allow a fee of

$30.00 per hour because it required neither legal skill nor spe-

cialized experience (see below).

In other instances Mr. Mann has sought compensation for

more errand-running, such as picking up people at airports

and obtaining copies of depositions. For these hours the Court

will allow no compensation.

These hourly rates having been established, the Court scru-

tinized the affidavits of recorded hours to determine if there

was a proper utilization of time or a duplication of effort; it

further examined the plaintiffs’ work to see if what was record-

ed was legal work in the strict sense or rather investigative,

clerical, compilation of facts and statistics or other work

which could have been accomplished by non-lawyers. The

22a

Court also took into account the objections set forth by defend-

ants to certain of the entries in plaintiffs’ time sheets. General-

ly, defendants contended that certain hours billed by Messrs.

Koren and Bronstein are duplicative and should be disallowed,

while other hours billed by Mr. Koren involve work of a non-

legal nature and therefore should be disallowed.

After a preliminary analysis of plaintiffs’ affidavits and

defendants’ objections, the Court informed the parties of its

concern over the amount of hours billed by plaintiffs’ attor-

neys in several categories into which their work could be brok-

en down. A supplemental hearing was held on January 26,

1979 to discuss these hours. Based on the record and the argu-

ments presented at that hearing, the Court finds as follows

with regard to these specific issues:

1) Conference Hours.

The plaintiffs’ attorneys logged approximately 208 hours in

conference, including time spent on the telephone and in com-

munication by letter. The Court reviewed many specific en-

tries of this type at its hearing of January 29 and now finds

plaintiffs’ entries to be justified. The attorneys approached

the preparation and trial of this case in a systematic manner

and divided labor among themselves in order to utilize effi-

ciently their resources. In most instances, conferences were

held for the coordination of these efforts or for the purpose of

exchanging information learned by one attorney but impor-

tant to another in his area of primary responsibility. In addi-

tion, conferences were held during the weeks prior to trial for

the purpose of establishing schedules for the presentation of

witnesses and contingency plans in the event that the trial’s

progress indicated that a change in the planned sequence was

appropriate. The Court takes note that plaintiffs’ evidentiary

presentation was coherent and well organized despite its inclu-

sions of expert testimony on every aspect of prison life. This

attests to the value of such pre-trial conferences.

23a

Additionally, conferences were held between Mr. Myers, as

lead counsel, and Mr. Bronstein, as advisor. The Court ac-

cepts Mr. Myers’ argument that such discussions were valuable

to him and to the quality of plaintiffs’ case as a means by

which he could call on the superior experience and expertise of

the Director of the National Prison Project.

For these reasons the Court will allow full compensation for

the conference hours logged by plaintiffs’ attorneys. In the

context of litigation as complex as this, the Court will not pen-

alize plaintiffs’ attorneys for taking great care in the presenta-

tion of a truly commendable trial record, a record which, in

turn, enhanced the accuracy of the Court’s findings and the

efficacy of the injunctive relief it eventually entered.

2) Hours Billed for Tours and Depositions.

In several instances Mr. Mann and another of plaintiffs’ at-

torneys seeks compensation for their presence at a prison tour

or witness deposition. Despite plaintiffs’ argument that each

attorney contributed to the conduct of the tour or deposition

he attended, the Court will allow compensation for only one

attorney on each of these occasions. In the computation of

fees set forth below, the Court has equalized the burden of ex-

clusion of these hours by deducting one-half of the excluded

hours from the total allowed to the attending National Prison

Project attorney and the remaining half from the total allowed

to Mr. Mann.

3) Non-Legal Work.

The Court will allow compensation for hours spent in meet-

ings and interviews with inmates because these hours may be

viewed either as witness preparation or as attorney-client com-

munication. However, the Court will apply a lesser rate to in-

vestigatory tasks such as records-checking, and it will allow no

compensation for work which may be characterized as “errand

running” (see below).

24a

In accordance with the rates and hours allowed as described

above, the Court hereby makes the following awards for each

of plaintiffs’ attorneys:

MATTHEW L. MYERS

Total Hours Requested 479.5

less duplicative hours in tours 16.

and depositions*

Total Hours Allowed 463.5

incourt 37 hrs. @ $75.00/hr. = $ 2,775.00

out of court 426.5 @ $70.00/hr. = 29,855.00

Total Award $32,630.00

EDWARD I. KOREN

Total Hours Requested 228.

less duplicative hours in

tours and depositions® 1.75

Total Hours Allowed 226.25

incourt 29 hrs. @ $70.00/hr. = $ 2,030.00

out of court 157.75 hrs. @ $70.00/hr. = 11,042.50

investigative 39.5 hrs. @ $30.00/hr. = 1,185.00

Total Award $ 14,257.50

4 This figure represents one-half of the time Mr. Myers spent on a tour or

at a deposition with Mr. Mann.

B This figure represents one-half of the time Mr. Koren spent on a tour or

deposition with Mr. Mann.

ALVIN T. BRONSTEIN

Total Hours Requested 142.5

Total Hours Allowed 142.5

incourt 20 hrs. @ $80.00/hr. = $ 1,600.00

out of court 122.5 hrs. @ $75.00/hr. = 9,187.50

Total Award $ 10,787.50

ROBERT MANN

Total Hours Requested 515.5

less duplicative hours in tours

and depositions© 17.25

less hours for non-legal work

for which no compensation

will be allowed 6.75

~ Total Hours Allowed 491.5

incourt 36.5hrs. @ $60.00/hr. = $ 2,190.00

out of court 438 hrs. @ $60.00/hr. = 26,280.00

investigative

and other

non-legal 17 hrs. @ $30.00/hr. = 510.00

Total Award $ 28,980.00

© This figure represents one-half of the time Mr. Mann spent on a tour or

deposition with Mr. Mann or Mr. Koren.

P Hours billed for “errand-running”.

26a

The Court also will allow an award of costs and expenses, as

requested by plaintiffs, in the amount of $352.39 for Mr. Mann

and $7,874.40 for the National Prison Project. Thus, the total

award to plaintiffs’ attorneys may be computed as follows:

ROBERT MANN

fees $ 28,980.00

expenses 352.29

$ 29,332.29

NATIONAL PRISON PROJECT

Mr. Myers’ fees $ 32,630.00

Mr. Koren’s fees 14,257.50

Mr. Bronstein’s fees 10,787.50

costs and expenses 7,874.40

$ 65,549.40

The Court is well aware that this award to the National

Prison Project is more than $11,000 below the total fee request-

ed by the A.C.L.U. attorneys. However, the Court is satisfied

that the present award is just and reasonable in light of deci-

sional law under the Attorney’s Fees Act, the characteristics of

this litigation, and the contributions of each attorney to the

successful prosecution of this case.

An order will be prepared entering judgment for the plain-

tiffs in the amounts set forth above.

Chief Judge

February 22, 1979

27a

UNITED STATES DISTRICT COURT

DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, er At.

v. C.A. No. 74-0172

J. JOSEPH GARRAHY, er at.

THOMAS R. ROSS, er At.

v. C.A. No. 75-0032

J. JOSEPH GARRARY, ex at.

March 13, 1979.

Order.

Pursuant to the findings of fact and conclusions of law set

forth in the Opinion made and entered in this cause regarding

attorneys’ fees, it is the order, judgment, and decree of this

Court that the defendants shall pay to the plaintiffs’ attorneys

the following sums forthwith:

ROBERT MANN

fees $28,980.00

expenses 352.29

$29,332.29

28a

NATIONAL PRISON PROJECT

Mr. Myers’ fees $32,630.00

Mr. Koren’s fees 14,257.50

Mr. Bronstein’s fees 10,787.50

costs and expenses 7,874.40

$65,549.40

Enter: Per Order:

Chief Judge Deputy Clerk

3/9/79

29a

DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF RHODE ISLAND

Civit Action No. 77-554

LEONARD JEFFERSON, er At.

Us

BRADFORD E. SOUTHWORTH, er at.

February 22, 1979.

Opinion

PETTINE, CHIEF JUDGE.

Attorneys for the plaintiffs in this case seek an award of costs

and fees pursuant to the Civil Rights Attorneys’ Fees Awards

Act, 42 U.S.C. § 1988. Defendants have objected to the pro-

priety of any award and, additionally, have raised specific ob-

jections to the rates and certain of the hours for which plaintiffs’

attorneys seek compensation. Before ruling on the propriety

or amount of any award, the Court will review briefly the

history of this litigation.

History of the “Lockup” Case.

On August 10, 1977 this Court issued its Opinion and Order

in Palmigiano v. Garrahy, 442 F ‘Supp. 956. In that Opinion

the Court found that conditions at Rhode Island’s Adult Cor-

rectional Institution were violative of the Eighth Amendment,

and it ordered comprehensive changes in classification, pro-

30a

gramming, health care, and physical facilities at the ACI. On

August 26, 1977, within 16 days of the issuance of the Palmigi-

ano Opinion, the Director of Rhode Island’s Department of

Corrections ordered a general lockup at the ACI’s maximum

security facility.

This brought an abrupt halt to all activities for all of

the inmates, numbering over four hundred, although

only a couple were involved in the incident that the ad-

ministration claimed constituted good cause for the lock-

up. There was a cessation of all vocational, educational

and hobby programs; deprivation of visits and exercise;

restricted access to attorneys who had to visit their clients

at the cell doors and speak to them between bars. All

meals were served in the prisoners’ cells.

Jefferson v. Southworth, 447 F.Supp. 179, 181 (D.R.I.

1978).

The lockup was triggered by an isolated incident involving

only two inmates and a guard, id., yet it continued in various

forms for over five months. On September 2, 1977 plaintiffs

filed their class action complaint in Jefferson v. Southworth,

supra, challenging the constitutionality of the lockup pursuant

to 42 U.S.C. § 1983. A series of hearings was held before the

Court during September, November, and January, and in Jan-

uary the Court asked that the Special Master it had appointed

in Palmigiano to report on the then-current status of the lock-

up. Finally, the Court issued an Opinion on February 3, 1978

in which it found that

[t]he defendants, in the absence of an existing emergency,

have locked the prisoners in their cells for approximately

22 hours a day; and althougn there has been a modifica-

3la

tion of this confinement, over fifty percent are still so con-

fined on the day of this writing. Such isolation has exac-

erbated the uncontradicted, indeed admitted, inhumane

living conditions set forth in Palmigiano v. Garrahy, 443

F.Supp. 956 (D.R.I. 1977) (Palmigiano). Even more

devastating, the isolation has undermined the inmates’

emotional capacity to cope with those inhumane condi-

tions by depriving them of the aid, emotional support and

social context, which they derived from contact with

other inmates, their families and attorneys. This confine-

ment has resulted in increased tensions, depression and a

sense of hopelessness in the inmates. The deleterious ef-

fects, alone and in conjunction with the inhumane condi-

tions existing before the lockup, are of such magnitude as

to constitute a clear violation of the Eighth Amendment’s

proscription against cruel and unusual punishment.

Id. at 181.

The Court recognized the difficulty of providing an ade-

quate remedy in response to these findings because the pro-

gram opportunities called for in the Palmigiano Order' had

not yet been established.?- Those opportunities were essential

for relief of the pervasive idleness imposed on the inmates by

the lockup.

The Court therefore [took] the quite narrow step of order-

ing defendants to submit a plan within five days that

' See paragraph 5 of the August 10, 1977 Order in Palmigiano v. Garrahy,

443 F. Supp. 956, 987-988 (D. R.I.).

*Paragraph 5 of that Order has yet to be implemented completely. See

Palmigiano v. Garrahy, C.A. No. 77-142 [Special Master's] Final Recom-

mendations to the Court on Compliance With Programming Requirements

of August 10, 1977 Order (January 31, 1979).

32a

[would] contain specific timetables and arrangements for

the following:

1. Three meals per day in the dining room;

2. Visiting at the frequency permitted before the lockup

began on August 26, 1977;

3. Consultation with counsellors in a private area other

than the cell block if desired by the inmate;

4. Showers every other day;

5. Recreation for at least one hour per day;

6. School, industries, vocational training and work assign-

ments for all sentenced inmates who wish to participate

and who are not confined to the Behavioral Control Unit,

to the maximum extent currently available and to the

maximum extent these programs become available in the

future.

The schedules for these activities should minimize the

overlap of different activities to maximize the amount of

time an inmate can spend outside his cell.

Jefferson v. Southworth, supra, at 191.

The Court also ordered reinstatement of the Morris Rules,°

which had been suspended during the lockup.‘

*“ Regulations Governing Disciplinary, Classification, and Mail Proced-

ures for all Inmates at the Adult Correctional Institutions, State of Rhode

Island,” known as the Morris Rules, were promulgated in 1972 pursuant to a

consent judgment entered by this Court in Morris v. Travisono, 310 F.Supp.

857 (1970).

*A subsequent injunction directing compliance with the Rules has been

entered once before. Morris v. Travisono, 373 F.Supp. 177 (1974) and af-

firmed on appeal, 509 F.2d 1358 (1st Cir. 1975).

33a

Defendants did not accept willingly the provisions of this

order. They appealed® and simultaneously moved for modifi-

cation and/or suspension of the remedial order during the

pendency of appeal. Defendants did file several plans for

gradually ending the lockup. Plaintiffs sought supplemental

injunctive relief, moving to reopen the case on August 28, 1978

due to the institution of another lockup at the maximum secur-

ity facility which was imposed after another incident there.

After a hearing in October of 1978, the Court again sought the

Special Master’s assistance, this time directing him to work

with attorneys for both sides in an attempt to negotiate a set-

tlement. Ultimately, the issues raised by these supplemental

proceedings were resolved without further court action.®

Plaintiffs’ Motion for an Award

of Costs and Fees

In its Opinion of February 3, 1977 the Court did not rule on

the propriety of a fee award in this case. The state’s threshold

argument in opposition to plaintiff’s request is founded on the

Eleventh Amendment. The invalidity of this position was

firmly established by the United States Supreme Court in its

recent decision in Hutto v. Finney, __. US. , 46

U.S.L.W. 4817 (June 23, 1978) and requires no further discus-

sion here.

Apart from specific objections to the rates and hours for

which plaintiffs’ attorneys seek compensation, defendants sub-

mit that this Court should exercise its discretion under the At-

torneys’ Fees Awards Act and deny or sharply reduce the

*The appeal was later dismissed by stipulation of the parties. Jefferson v.

Southworth, No. 78-1113, Stipulation filed on June 7, 1978 (1st Cir.).

*The Special Master worked with defendants to produce an acceptable un-

locking plan. The Court ordered implementation of this plan from the

bench at a hearing on October 13, 1978.

34a

amount of any award in this case. They argue that a substan-

tial fee award would impair the ability of the state to finance

the physical and administrative changes at the ACI which

were ordered in Palmigiano v. Garrahy. Additionally, they

point to the state’s payment of the salary of the Special Master

appointed in Palmigiano to monitor these changes as a burden

which the Court should offset against a fee award in this case.

Defendants’ position is both invalid and inappropriate. The

costs of these physical improvements, administrative changes

and the Special Master’s monitorship are necessary incidents of

the remedial decree entered in Palmigiano. It is axiomatic

that the Court cannot accept defendants’ lack of funds as an

excuse for noncompliance with that order, Holt v. Sarver, 309

F.Supp. 362, 385 (E.D.Ark. 1970), aff’d, 442 F.2d 304 (8th

Cir. 1972). Nevertheless, defendants now attempt to relate

this case to their compliance in Palmigiano, suggesting that

compliance is contingent upon reduction or denial of an award

here. Moreover, they imply that their willingness to comply

will be diminished by an award in this case. They state that

the “sincere and highly cooperative efforts of the Defendants

to comply with this [ Palmigiano] order will have been dealt a

severe blow” by an award in Jefferson, and that “the spirit of

cooperation between Defendants and this Court will be great-

ly enhanced by a ruling of this Court which denies or judic-

iously limits an award of attorneys’ fees”. Defendants’ Mem-

orandum in Support of Objection to Application for Attorneys’

Fees, at 9.

These statements are disturbing; defendants must surely

realize that the Court cannot and should not consider such fac-

tors in its ruling on the propriety of a fee award in this case.

Their obligations to remedy constitutional violations at the

ACI must remain the same.

This is not to say that the Court is unmindful of the financial

burden an award in this case will impose on the state. How-

35a

ever, defendants forget that an award of fees here is not a

court-fashioned remedy but is directed by Congress. They

confuse the Congressional intent and its mandate as to the

proper manner in which the Court may exercise its discretion

under the Attorneys’ Fees Awards Act. In keeping with such

legislative purpose, the Court will “satisfy itself of the overall

fairness and reasonableness” of any fee it awards here. Lund

v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978). Defendants will be

protected from the burden of an unreasonable award by this

Court’s careful application of the factors set forth in Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th

Cir. 1974) and approved in this circuit by King v. Greenblatt,

560 F.2d 1024 (1977). Those factors focus on the services per-

formed by plaintiffs’ attorneys and the characteristics of the

litigation which gives rise to the fee application. It is not in

keeping with the intent of the Act, which was to encourage en-

forcement of Civil Rights statutes, to reduce the amount of

such an award, properly computed under it and the Johnson

criteria, because defendants complain that their ability and/or

willingness to comply with the Palmigiano order would be

diminished.

Defendants also contend that the Court should consider that

“plaintiffs’ class caused the lockup to begin originally and ex-

acerbated the situation by their actions and reactions within

maximum security during the months of the lockup”. Defend-

ants’ Memorandum at 9. While the conduct of plaintiffs may

be considered, in the exercise of the Court’s discretion, in the

determination of the propriety of a fee, Skehan v. Board of

Trustees, 436 F.Supp. 657 (N.D.Pa. 1977); Castleberry v.

Langford, 428 F.Supp. 676 (N.D.Tex. 1977), defendants’

position is inconsistent with the Court’s factual findings in Jef-

ferson. In its Opinion, the Court concluded that “(t]he

defendants have arbitrarily and unnecessarily confined the

majority of the inmates to their cells alone for between 21 and

36a

22 hours a day under conditions, the totality of which violates

the Eighth Amendment... .” Jd. at 191. Defendants con-

tended that the incident “cannot be viewed in isolation. Prior

thereto, there had been a series of inmate assaults upon each

other, a gun was discovered, and contraband flowed into the

prison. ... [T]his general situation threatened the security of

Maximum and require the total confinement of the prisoners.”

Id. at 181. However, the Court recognized the “inconsistency

of the State’s position,” noting that “[n]Jone of these acts had

received any particular administrative reaction prior to Au-

gust 26. Nor was there evidence that at the time the lockup

was ordered, any of these prior acts were discussed or determi-

native of the ultimate action taken.” Jd. at 181, 182. Finally,

it concluded that, “[c]onceding the inmates’ disobedience,

that fact alone does not justify a continued pattern of grinding

authority, the ceaseless exercise of which will completely

break these men.” Id. at 190.

Thus the Court finds no basis in this case for a reduction or

denial of a fee based on the acts of the plaintiffs. Defendants’

fault was in their overreaction to incidents at the prison. Their

imposition of unconstitutional conditions on the inmates dur-

ing the lockup cannot be justified by reference to the incidents

which triggered their overreaction, nor can a fee be denied to

plaintiffs’ attorneys on that basis.

Finally, defendants claim that an award may be limited or

denied because plaintiffs’ attorneys are employed by a private-

ly funded public interest group. It is well settled that fee

awards for such attorneys are to be computed on the same

basis as awards made to private attorneys. Lund v. Affleck,

587 F.2d 75, 76 (1st Cir. 1978).

Because the plaintiffs were the prevailing parties in this liti-

gation, and because none of defendants’ objections may defeat

the propriety of an award, the Court will award a reasonable

fee pursuant to the Civil Rights Attorneys’ Fees Awards Act.

37a

The Fee Award.

In King v. Greenblatt, supra, the twelve factors set forth in

Johnson v. Georgia Highway Express, Inc., supra, were

adopted for use in determining the proper amount of fee

awards in this circuit under the Attorneys’ Fees Awards Act.

The Court will consider each of these factors’ as well as defend-

ants’ objections as they pertain to the fee award in this case.

The Time and Labor Required.

This case involved several hearings spread out over a five

month period. Plaintiffs proved the non-existence of an emer-

gency at the ACI by presenting testimony from correctional of-

ficers, inmates, and prison officials. They also proved the injury

suffered by the plaintiff class as a result of the lockup, in part

by presentation of expert testimony from a psychologist of na-

tional reputation.®

Plaintiffs’ attorneys have presented time sheets indicating

the number of hours they expended in the prosecution of this

case. Defendants have objected to certain of these hours as

duplicative or non-legal. The Court has taken those objec-

tions into account, mindful of its duty to consider “the possi-

bility of duplication of effort along with proper utilization of

time” and “to distinguish between legal work, in the strict

sense, and investigation, clerical work, compilation of facts

and statistics and other work which can often be accomplished

by non-lawyers.” Id. at 717.

Many of the hours to which defendants object involve con-

ferences among plaintiffs’ attorneys. The Court considered a

’ The Court has discussed the Johnson factors in detail in its attorneys’ fees

opinion in Palmigiano v. Garrahy, C.A. No. 74-172, Slip op. (February 22,

1979). Portions of that opinion are incorporated infra where relevant.

*Dr. Augustus F. Kinzel. Dr. Kinzel’s qualifications are set forth in Jef-

ferson v. Southworth, 447 F.Supp. 179, 183 n.3.

38a

similar situation in its award of fees in Palmigiano v. Garrahy,

C.A. No. 74-172, wherein plaintiffs’ attorneys — the same at-

torneys who now apply for fees in Jefferson — sought compen-

sation for more than 200 hours in conference, representing

approximately 15 percent of their time on the case. The Court

addressed specific questions to plaintiffs’ attorneys on this

point and thereafter concluded:

The attorneys approached the preparation and trial of

this case in a systematic manner and divided labor among

themselves in order to utilize efficiently their resources.

In most instances, conferences were held for the coordi-

nation of these efforts or for the purpose of exchanging in-

formation learned by one attorney but important to an-

other in his area of primary responsibility. . . .

Additionally, conferences were held between Mr. Myers,

as lead counsel, and Mr. Bronstein, as advisor. The Court

accepts Mr. Myers’ argument that such discussions were

valuable to him and to the quality of plaintiffs’ case as a

means by which he could call on the superior experience

and expertise of the Director of the National Prison Proj-

ect.

Id., Slip Op. at 26-27 (February 22, 1979).

The same justification applies in Jefferson. While attorney

Mann served as local counsel, attorney Myers of the National

Prison Project served as lead trial counsel. He and Mr. Bron-

stein contributed their superior experience in prison litigation

to the successful presentation of this case, and coordination of

their efforts with those of Mr. Mann was essential to the quali-

ty of representation afforded to the plaintiff class by these

three attorneys. While the Court has scrutinized the record

and time sheets for duplicative work, it will not penalize plain-

39a

tiffs’ attorneys for the time they took to consult with each

other. Such “strategy sessions” are a necessary element in liti-

gation of this type.

The Court will eliminate as duplicative hours spent by more

than one attorney in attendance at depositions. In the compu-

tation of fees set forth below, the Court has equalized the

burden of exclusion of these hours by deducting one-half of the

excluded hours from the total allowed to the attending Nation-

al Prison Project attorney and the remaining one-half from the

total allowed to Mr. Mann.

The Court will eliminate from compensable hours the time

spent by attorneys in travel. This consideration is applicable

only in Mr. Mann’s case, because Messrs. Myers and Bronstein

have not sought compensation for travel time.® In response to

an inquiry from the Court, Mr. Mann has identified 39.5

hours which may be eliminated from his time sheet as travel

time.'°

The Novelty and Difficulty of the Questions Presented.

The Court agrees with plaintiffs’ attorneys that difficult fac-

tual questions were presented in this case. They overcame the

contention of state officials that a state of emergency existed at

the prison, a contention that was evaluated by the Court

under a standard of review which gives great deference to the

decisions of prison officials. Jefferson, supra, at 189. How-

ever, this issue is not a novel one. This Court has heard several

suits in which attorneys for plaintiff inmates sought to prove

the non-existence of an alleged emergency at the ACI. Gomes

v. Travisono, 353 F.Supp. 457, aff’d in part, rev'd in part,

490 F.2d 1209 (Ist Cir. 1973), vacated 418 U.S. 909, cert.

* See Plaintiffs’ Application for the Award of Reasonable Attorneys’ Fees

at 5.

'° Letter to the Court of February 5, 1979.

40a

denied, 418 U.S. 910, on remand 510 F.2d 537 (Ist Cir. 1974);

Morris v. Travisono, 373 F.Supp. 177 (1973), aff’d, 509 F.2d

1358 (1st Cir. 1974). In its opinion in Jefferson the Court

compared this case with five others in which similar factual

issues were decided. Jefferson, supra, at 189.

In one sense the issues presented by this case were novel, be-

cause the injury suffered by the plaintiff class was, in part, of a

psychological nature. Plaintiffs’ attorneys proved that such

injury could be an element of an Eighth Amendment violation

upon which the liability of prison officials was based.'! The

remedy granted by the Court, although limited to increased

visitation, exercise periods, and other social activities, was

designed to address the “devastating isolation of inmates that

has continued for over five months” and thereby “at least ad-

dress the specific harms” to which plaintiffs’ psychological ex-

pert testified. Jefferson, supra, at 192.

Although this aspect of the Jefferson case was unusual, the

Court will consider this element of the Johnson analysis, only

'' The lockup has engendered disorders the inmates did not have before;

medically, Dr. Kinzel termed this “iatrogenic illness.” Rehabilitation may

be an illusive and rarely accomplished goal but at a minimum our penal in-

stitutions must not contribute to the grievous deterioration of the men placed

in custody. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976). Dr. Kinzel testified that the lockup caused tension, depression

and hopelessness in the inmates to the point where they suffer hypochondria-

sis, attempt suicide, experience day-night reversal, develop hypersensitivity

to noise because of the environment in which they are confined, withdrawal

of interest, headaches and eye problems. It is, indeed, in this Court's opin-

ion, inhumane treatment in the form of physical and psychological cruelty,

The psychological impact of this oppressive caging of men in a dungeon-like

atmosphere for over five months, in an attempt to subjugate the will of the

inmates to the governance and discipline of the administration, is intolerable.

Such “deliberate indifference to serious medical needs of prisoners” is cruel

and unusual punishment, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285,

291, 50 L.Ed.2d 251 (1976); see Nadeau v. Helgemoe, 561 F.2d at 420.

Jefferson v. Southworth, 447 F.Supp. at 189-190.

4la

in the entire context of the case, as a positive factor in the com-

putation of the fee award here.

The Skill Required to Perform

the Legal Services Properly

Plaintiffs’ attorneys correctly point out that they were forced

to prove many of the facts upon which their complaint was

based — facts pertaining to the existence of an emergency and

the circumstances surrounding the initiation of the lockup —

by examination and cross-examination of adverse witnesses

such as correctional officers and prison officials. This task re-

quired well-developed trial skills. In addition, the prepara-

tion and presentation of their expert psychologist’s testimony

required the same skills. As the Court already has noted,

Messrs. Myers and Bronstein applied their extensive experience

in prison litigation to the accomplishment of these tasks, and

the Court will take this into consideration as a positive factor

in the computation of their fees.

The Experience, Reputation, and Ability

of Plaintiffs’ Attorneys

Messrs. Myers and Bronstein of the National Prison Project

“have acquired a superior skill in this area of the law. It is un-

contradicted they operate on a national scale and thus have

represented prisoners in other states in many important cases

involving complex constitutional issues. The recognition of

their expertise is evidenced by their teaching, publications and

appearances before Congressional Committees, various State

Commissions and conferences on corrections.” Palmigiano,

supra, at 6. Their affidavits attest to the breadth of their ex-

perience, and Mr. Bronstein may be characterized fairly as the

foremost expert in prison litigation in the United States.

42a

Robert Mann, who served as local counsel, graduated from

Yale Law School in 1973. He has worked with Rhode Island

Legal Services, and has been in private practice since 1974. He

is active in public interest and civil rights litigation, having

acted as counsel in a number of these cases in Rhode Island.

However, his exposure and experience does not equal that of

the other attorneys in this case.

The Preclusion of Other Employment.

Defendants claim that the ability of the National Prison Proj-

ect to bring similar cases would not be impaired by a denial or

limitation of fees because they are an arm of the privately-

funded American Civil Liberties Union. The Court does not

consider this argument to be accurate factually. The defend-

ants made this argument before and it was laid to rest in Lund

v. Affleck, 587 F.2d 75 (1st Cir. 1978). The National Prison

Project has paid plaintiffs’ attorneys their salaries and subsi-

dized the cost of this litigation without direct reimbursement

from the plaintiffs. Their ability to carry on their public in-

terest litigation can only be enhanced by an award of fees

here.

Apart from the inaccuracy of defendants’ contention, it is

well settled that awards to public interest organizations should

be made on the same basis as those made to private attorneys.

Reynolds v. Cooney, 567 F.2d 1166 (lst Cir. 1977); Lund,

supra.

Mr. Myers has requested compensation for 158.5 hours be-

tween November of 1977 and March of 1978. This represents

roughly one quarter of his time, on the basis of a 40-hour

week. Mr. Bronstein devoted only 30 hours over two and one-

half months, roughly 8 percent of his time. Mr. Mann spent

350 hours over eight months, which represents about 27 per-

cent of his time on a similar basis. While these proportions are

43a

substantial for Messrs. Myers and Mann, neither attorney has

indicated that the time he spent on this case seriously handi-

capped his ability to prosecute other pending cases or to take

on new cases. The Court will not consider this an important

factor in computing the fee.

The Contingency Factor.

Where an attorney takes the risk of no payment at all be-

cause his clients are not obliged to compensate him for his serv-

ices, an award approved by the Court may be adjusted upward

to compensate for this “contingency factor.” Parker v. Mat-

thews, 411 F.Supp. 1059, 1068 (D.D.C. 1976); Lockheed

Minority Solidarity Coalition v. Lockheed, 406 F Supp. 828,

834 (N.D.Cal. 1976); Stanford Daily v. Zurcher, 64 F.R.D.

680, 685-686 (N.D.Cal. 1974); and Arenson v. Board of Trade,

372 F.Supp. 1349, 1358 (N.D. Ill. 1974).

Certainly the contingency factor is cause for a more liber-

al application of the consideration guiding a court in

awarding a fee; Congress intended, through the fees

award act, to encourage civil rights litigation to vindicate

important rights guaranteed by law. Further, the Amer-

ican Bar Association canon of ethics permits considera-

tion of the contingent nature of the case when determining

a fee. Therefore, a court should consider the contingent

nature of a case if the statutory goal of full compensation

is to be met. However, the contingency factor should

not, as this Court sees it, be analogized to a punitive

award.

Legal writers and a number of courts have alluded to the

punitive nature of fee awards in these kinds of cases.

Even conceding for the purpose of discussion that the

coercion of a fee is in the nature of a punishment, the fee

44a

award, nevertheless, should not be thought of within the

same framework as exemplary or punitive damages. The

fee must be measured by the uncertainty of success and

be within the bounds of reasonableness. If the probabili-

ty of success is a virtual certainty or great, it follows the

contingent factor diminishes in value. The measure of

this value is not subject to a standard formula; rather, it

requires the most delicate application of judicial discre-

tion, in order that the amount ultimately awarded is fair

and ethical. See Berger, Court Awarded Attorneys’ Fees:

What is “ Reasonable”, 126 U.Pa. L. Rev. 281, 326 (1977).

One must remember that no single criterion can be con-

sidered in isolation. The statute contemplates reasonable

fees. As the First Circuit stated, “[i]t is not enough for

the court to multiply a fixed rate by the number of hours

claimed. The court must satisfy itself of the overall fair-

ness and reasonableness of the fee under all circum-

stances.” Lund v. Affleck, supra, at 77. Reasonableness

by its nature is an amorphous standard. Applying such a

standard inevitably requires the application of subjective

justice; but the contours of any subjective determination

must be shaped by the particular objective facts of the

case. Considerations of a reasonable fee should not in-

clude bad faith, or obstinacy of the defendant; these ele-

ments might be considered separately in a possible award

of punitive damages. However, the standards set forth in

King and Johnson are the ingredients to be weighed in the

quest for what is just, and none of these standards war-

rant any punitive considerations.

The contingency factor may justify an upgrading; but

this element must be applied with care and be directly

related to the degree of the uncertainty of success; when

added to the computed fee, the total amount must be rea-

45a

sonable and ethical. In our desire to vindicate public

wrongs, we have not cast aside ethical considerations that

hold adequate compensation is that amount which enables

a lawyer to serve his client effectively and at the same

time preserves the integrity and independence of the pro-

fession; that a lawyer should avoid charges which either

overestimate or under-value his advice and service; and

that a client’s ability to pay is no reason for an excessive

charge, though poverty may well require a lesser charge

or none at all. American Bar Association’s Code of Pro-

fessional Responsibility, Ethical Consideration 2-18, Dis-

ciplinary Rule 2-106; The Canons of Professional Ethics

of the Rhode Island Bar Association, Canon 12. An over-

expansive interpretation of the fees award act can only do

violence to the legal profession. It is neither romantic or

emotional to say that surely part of the lawyers’ reward

must be in his realizations that in a public interest case he

is cast in the role of representing a “great deal more than

his own interest”, National Association of Regional Medi-

cal Programs, Inc. v. Weinberger, 396 F.Supp. 842

(D.D.C. 1975) — he acts in the nature of a private attor-

ney general vindicating a congressional policy to eradi-

cate a public evil. Though the contingent nature of the

case is only one of the many considerations, it all too often

is overemphasized to justify an unwarranted request by

counsel.

Unfortunately, there does exist a wide discrepancy be-

tween fee awards in private antitrust cases (rates averag-

ing $180 an hour) as against those in the area of civil

rights (rates averaging $40 an hour) thus making private

antitrust cases more attractive. Berger, supra, 126 U.Pa.

L.Rev. at 310. However, this does not negate the fact

that in public interest cases, all too often, it is the public

that pays or an educational institution struggling against

46a

economic burdens that suffers. There is no question that

the wrongdoer should be made to pay; but, on the other

side of the coin, there is the overall public service that the

defendant renders and this demands greater reserve in

assessing an award. As Johnson teaches, “the customary

fee in the community” must be considered; awarding

such a customary rate, and a reasonable contingency

amount when warranted, does not diminish attractive-

ness or discourage enforcement. The benefit of the class

is served; a balanced and reasonable fee is not contrary to

their interest and will not lose the attraction of competent

attorneys. It is sophomoric to conclude that an attorney

would not be interested in a $100,000 fee simply because

application of a more liberal standard might pay him

$200,000. In denying a large incentive “bonus” or “mul-

tiplier,” this Court does not place a lower value on a civil

rights fee award simply because the case serves a broader

public purpose; rather, the Court intends to award full

compensation for services rendered without designating

an excessive fee or “bonus” that will injure the overall

public interest served by the defendants. All these factors

must be taken into consideration; the traditional notion

of ethics is still viable. Paying a full and fair fee does not

mean enforcement of these civil rights statutes is depend-

ent on the charity of competent counsel.

Palmigiano, supra, at 10-14 (footnotes omitted).

The Court will not increase plaintiffs’ award on the basis of

this factor. While plaintiffs were required to show that de-

fendants’ determination regarding the existence of an emer-

gency was arbitrary, Jefferson, supra, at 189, the absence of

justification for defendants’ actions was never seriously in

doubt once the suit was before this Court:

47a

In this case there is not even an open question as to

whether an emergency exists. Associate Director Laurie

flatly states there is none. Even if an emergency once ex-

isted sufficient to justify the initial lockup, a conclusion

this Court has not and need not reach, those circum-

stances ceased long ago and cannot justify confinement

extending for over five months. Any deference, properly

accorded an administrative determination that an emer-

gency situation justifies a general lockup, is not appropri-

ate when, by the administration’s own admission, the

emergency no longer exists. See Hoitt v. Vitek, 497 F.2d

598, 600 (Ist Cir. 1974).

Jefferson, supra, at 189 (emphasis added).

The testimony heard by the Court shed considerable light on

the real reasons for the imposition of the lockup:

The attitude that Director Southworth and Associate

Director Laurie displayed in their testimony was that all

signs of overt disobedience and willfulness [on the part of

inmates] must be crushed before they would consider any

letup in the lockup.

The defendants . . . have attempted to solve their prob-

lem of poor administration and poor control over the pris-

on guards and inmates by locking up the inmates. . . .

Mr. Southworth’s administrative solution imposes intol-

erable burdens on the prisoners.

Jefferson, supra, at 182-183.

Given this attitude on the part of the prison officials, the likeli-

hood that plaintiffs would prevail before this Court was sub-

stantial. The Court will not increase the award of fees to

48a

plaintiffs’ attorneys based on this element of the Johnson

analysis.

The Results Obtained.

Application of this Johnson factor to suits in which injunc-

tive relief is obtained to remedy class-wide constitutional vio-

lations has been criticized as an arbitrary exercise.'? However,

Johnson does indicate that “the decision’s effect on the law”

should be taken into account in computation of a fee award.

Id. at 718.

Here the injunctive relief granted to plaintiffs was narrow

in scope, limited to the situation which prevailed at the ACI

and defendants’ ability to achieve an end to the lockup with-

out program opportunities for inmates. Moreover, that in-

junction was not immediately effective; defendants required

several months to produce an acceptable “unlocking” plan,

and within five months a new lockup had been instituted

which did not end until eight months after entry of the initial

injunction. Because prison officials must be afforded wide

discretion in maintaining the security of an institution, Jeffer-

son, supra, at 189, a decree such as the one entered in this case

can never have far reaching or lasting effect. In a subsequent

“crisis” — alleged or real — prison officials will act with the

goal of security in mind, and their decisions can be reviewed

only after the fact.

In Jefferson, the Court specifically refrained from deciding

that an emergency did not exist to justify the lockup. Id. at

189, but held only that continuation of the lockup for more

than five months was an arbitrary act. Id. That decision’s “ef-

fect on the law” is minimal.

'* See Berger, Court Awarded Attorneys’ Fees: What Is “Reasonable”, 126

U.Pa.L.Rev. 281, 316 (1977).

49a

The Customary Fee Awards in Similar Cases.

In its opinion awarding attorneys’ fees in Palmigiano v.

Garrahy, the Court discussed the customary fee in this com-

munity and awards in similar cases. While Jefferson was not a

comprehensive prison conditions suit, it is similar to the extent

that it involved complex discovery in a prison setting and a

trial which included presentation of experts and other witnes-

ses. Plaintiffs’ attorneys here are the same attorneys who were

compensated in Palmigiano. They have filed affidavits from

the same attorneys with regard to the proper hourly rate, and

the state has put forth similar objections in both cases. There-

fore, the Court’s discussion in Palmigiano is particularly rele-

vant here.

The plaintiffs’ counsel urge this Court to consider the

customary fee for similarly complex civil rights litigation

done outside the State of Rhode Island as well as in Rhode

Island. The defendants object claiming it is “without

foundation”, “contrary to the ruling in King v. Green-

blatt, supra” , that nothing “in King even hints at the idea

that the complexity of the issues and the ‘unusualness of

the subject matter’. . . should expand to a national level

the scope of the community.”

The First Circuit in King cited with approval and accept-

ed the criteria set forth in Johnson, where it is specifically

stated that “[t]he reasonableness of a fee may also be con-

sidered in the light of awards made in similar litigation

within and without the court’s circuit”, 488 F.2d at 719;

it then reviewed cases from their own and other circuits

in determining the appeal before them. Furthermore,

the Johnson court also said that “[a]n attorney specializ-

ing in civil rights cases may enjoy a higher rate for his ex-

pertise than others, providing his ability corresponds with

his experience.” Jd.

50a

The customary fee in the Rhode Island community was

established through the affidavits of three practitioners in

this state reciting their own billing rates for similar com-

plex litigation. Mr. Ralph Gonnella recites that his bill-

ing rate for similar complex federal litigation is seventy-

five ($75.00) dollars to one hundred ($100.00) dollars,

“depending upon the complexity of the litigation and the

nature of the issues”; Mr. Milton Stanzler, a member of

the bar since 1948, states that in his opinion, “a reason-

able fee for attorneys involved in complex federal litiga-

tion and civil rights litigation having experience of 25

years or more at the bar, would be the sum of $100. per

hour”; without impugning their affidavits, the Court

must interstitially note that both these attorneys have fee

cases pending in this Court. Finally, Mr. Malcolm

Farmer III [who did not file an affidavit in Jefferson] sets

forth that based on the hourly rates charged by attorneys

in his firm, the “following fees are not inconsistent with

the standard in Rhode Island: (I) for an attorney of five

years’ experience at the bar: $60.00 per hour; (II) for an

attorney with seven years’ experience at the bar: $70.00

per hour; and for an attorney with twenty-five years’ ex-

perience at the bar: $85.00 per hour”; he further states

that no distinction is made between the time spent in

court as against time spent out of court and that, “it

would not be inappropriate for a somewhat higher rate to

be justified on the basis of the expertise of the attorney” in

the area of litigation.

In other circuits we find the following: Ruiz, et al. v. Es-

telle, et al., C.A. No. 5523 (E.D. Texas 1977), a prisoner

civil rights case, awarding $75 an hour using the Johnson

criteria; Stanford Daily v. Zurcher, 64 F.R.D. 680, 684-

85 (N.D.Cal. 1974), an action involving police miscon-

duct, granting $50.00 an hour — the Court appears to

5la

have discounted the higher billing rates because the attor-

neys were not in their area of expertise and it should be

noted that this is a 1974 case; Guajardo v. Estelle, C.A.

No. 71-H-570 (S.D.Tex. 1977), a civil rights prisoner

case, awarding lead counsel $115-125 an hour, second

counsel $70-80 an hour and third counsel, $50-60 an

hour. In the area of antitrust, awards have ranged from

a low of $128.00 an hour to $500.00 per hour. See Aren-

son v. Board of Trade, 372 F.Supp. 1349 (N.D. Ill. 1974);

TWA v. Hughes, 312 F.Supp. 478 (S.D.N.Y. 1970).

Focusing on prior awards in this Court and on those

awarded by the First Circuit, we find that $60.00 per

hour was awarded in a prisoner case for services performed

in 1974 and $75.00 per hour thereafter, which included

fee petition in the District Court. These amount were

upheld by the First Circuit, which reduced to $50.00 an

hour the appellate work on the fee issue. Souza v. South-

worth, 564 F.2d 609 (1st Cir. 1977). However, this bare

recitation is misleading because the Court of Appeals did

say that the award for the work before this Court was in-

deed very high and that had it not been for the fact that

three appeals had been taken in the suit they would have

been tempted to remand the case for reconsideration — it

concluded, “The amounts though high cannot be consid-

ered unconscionable”. In Lund v. Affleck, 587 F.2d 75

(Ist Cir. 1978), the Court sustained an award of $55.00

per hour and $60.00 per hour recognizing the erosion of

the dollar over a five-year period. In Save Our Sound

Fisheries v. Callaway, C.A. No. 5297 (D.R.I. March 6,

1978 unpublished), brought under the provisions of the

Marine Protection, Research and Sanctuaries Act of 1972

and the Federal Water Pollution and Control Act of

1972, this Court awarded a fee of $75.00 per hour to one

52a

of the attorneys who had been before the bar twenty

years and usually billed at that rate.

The awards in other circuits, set forth supra, are persua-

sive but certainly not controlling. In the last analysis the

award in this case must be reasonably coextensive with

awards made by the First Circuit in other similar cases;

such a balancing is necessary for an equitable resolution

of the problem at hand.

Palmigiano, supra, at 16-18.

In Lund v. Affleck, 442 F.Supp. 1109 (1977), aff’d, 587

F.2d 75 (1st Cir. 1978), this Court awarded $60.00 per hour to

plaintiffs’ attorneys and noted that the case “had both novelty

and difficulty requiring a high degree of skill for preparation

and presentation which [the] attorneys satisfied to a very high

degree.” Id. at 1116. In Palmigiano, the Court felt compelled

to go beyond the rates set in Lund because the former case was

even more complex, involving a two week trial in which the

Court heard testimony “from several nationally known experts

from six different disciplines. Here [in Palmigiano], unlike

Lund, the case needed more mature judgment and skilled ad-

vocacy. ... The case had all the problems present in Lund

and more.” Palmigiano, supra, at 17-18.

The Court does not feel that the Jefferson case rises to the

level of sophistication which was characteristic of Palmigiano.

As the Court has noted, Jefferson did involve the novel and

difficult issue of psychological injury due to prolonged isola-

tion as an actionable Eighth Amendment violation. See 13,

supra. The Court also has recognized that difficult factual

issues were presented here regarding the alleged existence of

an emergency justifying the lockup. Nevertheless, the case

cannot be considered to be as difficult as Palmigiano, where

the totality of conditions at the ACI was held to constitute an

53a

Eighth Amendment violation based upon proof of facts and

expert testimony pertaining to every aspect of prison life.

Moreover, the remedial decree entered in Palmigiano, which

plaintiffs helped to shape in their post-trial memorandum,

was infinitely more comprehensive than that issued in Jeffer-

son. In Jefferson, a major portion of the relief was left for the

defendants’ formulation; they were required to produce their

own plan for ending the lockup within the constraints of a nar-

row Court order requiring increased showers, exercise, and

visits. Id. at 191.

Jefferson must be compared more closely to Lund than to

Palmigiano. While not adhering to the rate set in Lund as an

absolute yardstick, the Court will not include in the hourly

rate allowed here a premium for the complexity of the litiga-

tion such as that awarded in Palmigiano. The only significant

difference, then, between the awards allowed in Lund and

Jefferson can be based on the fact that the present award is

made more than a year after Lund."

With these comparisons in mind, the Court turns to the

rates which will be applied to the services of each attorney:

A. Matthew L. Myers

Mr. Myers acted as lead counsel in Jefferson, with the prime

responsibility for presentation of all evidence in Court at most

of the hearings on the lockup. He seeks compensation at the

rate of $70.00 per hour. This amount represents a $10.00 per

hour increase over that awarded in Lund. However, the ef-

fect of inflation during the past year and one-half makes a

direct comparison with Lund illusory."

The rate of inflation during 1978 was more than 9 percent. See Eck-

stein, O., “The New Reality,” Data Resources Review, January, 1979, Vol.

VIII, Number 1, p.1.1.

See n.13, supra.

54a

In the final analysis, the overall compensation awarded to

each attorney must be fair and reasonable. In light of the fac-

tors discussed above, I conclude that a rate of $65.00 per hour

for trial time and $60.00 per hour out of court is appropriate

and reasonable. The fact that Mr. Myers had only four years

of experience when this litigation was initiated does not war-

rant reduction of this rate, because this factor alone is not

compelling. “[L ]ongevity, per se, should not dictate the high-

er fee. If a young attorney demonstrates . . . skill and ability,

he should not be penalized for only recently being admitted to

the bar.” Moreover, “[a]n attorney specializing in civil rights

cases may enjoy a higher rate for his expertise than others, pro-

vided his ability corresponds with his experience.” Johnson,

supra, at 719. Mr. Myers is, indeed, an expert in prison litiga-

tion whose trial experience in many states is indicated in his af-

fidavit.

As this Court recognized in Palmigiano, out-of-court time

requires a lower fee. The First Circuit criticized the application

of an across-the-board rate without regard “to the difficulty of

the work, the results achieved, and all the other relevan* fac-

tors.” King, supra, at 1027-1028. Nevertheless, it is clear in

litigation of this type that the quality of trial presentation is

entirely contingent on the trial attorney’s ability to conduct ef-

ficient discovery and to prepare witnesses and himself for ex-

amination in Court. Thus the demands on an attorney’s legal

skills out of court are substantial in such a case, and it appears

that a rate of $60.00 per hour for this work is appropriate with

regard to Mr. Myers.

B. Alvin Bronstein

Mr. Bronstein has been an attorney for more than 25 years

and has vast experience in civil rights litigation, lecturing,

teaching and writing. As Director of the National Prison Proj-

55a

ect, it may be said that he is one of the foremost authorities in

his field. Conceding these qualifications, the Court cannot

allow the $125.00 per hour rate Mr. Bronstein seeks for his

services. Such a dramatic increase over the awards previously

approved in this circuit cannot be justified in the interest of

fairness and consistency.

Mr. Bronstein’s greatest contribution here, as in Palmigiano,

was that of supervisor and advisor. In conference with Mr.

Myers, he contributed his superior knowledge and experience

to enhance the preparation and presentation of this case. Mr.

Bronstein’s concededly superb courtroom skill was integral to

plaintiffs’ success in advising Mr. Myers who acted as lead

counsel under Mr. Bronstein’s supervision.

Taking the hourly rates allowed for Mr. Myer’s work as a

point of comparison, the Court will allow compensation for

Mr. Bronstein at the rate of $70.00 per hour both in and out of

Court.

C. Robert Mann

Mr. Mann served as local counsel in this case and in Palmigi-

ano. He participated in most hearings as co-counsel, assisting

Mr. Myers, although he did argue to the Court on a number of

occasions. Here and in Palmigiano his major contribution to

the case was in work with the plaintiff class. While the “attor-

ney-client relationship” often may be strained in class action,

civil rights litigation, Mr. Mann can be credited with preserv-

ing a valuable dialogue between these attorneys and the in-

mate plaintiffs.

The Court will allow a differential in Mr. Mann’s compen-

sation for in-court versus out-of-court time. Therefore, an

award based on $60.00 per hour in court and $55.00 per hour

out of court is fair and reasonable with regard to Mr. Mann’s

services.

56a

In Palmigiano, the Court was able to make a distinction be-

tween Mr. Mann’s legal services and work he performed which

was of an investigatory nature, and merited a lesser hourly

rate. Palmigiano, supra at 24. No such distinction can be

drawn here. Therefore, with the exception of time included

by Mr. Mann in his time sheet representing travel, the Court

will allow full compensation for all out of court hours.

Based on the hourly rates set forth above, the Court will

allow compensation for each of plaintiffs’ attorneys as follows:

MATTHEW L. MYERS

Total Hours Claimed 158.5

less duplicative hours 2.5

in deposition

Total Hours Allowed 156

in court - 27.5 hours at $65.00 per hour = $1,787.50

out of court- 128.5 hours at $60.00 per hour = 7,710.00

Total Fee Allowed $9,497.50

A This figure represents one-half of the time Mr. Myers spent at a deposi-

tion with Mr. Mann.

57a

ROBERT MANN

Total Hours Claimed 352.5

less travel time® 39.5

less duplicative hours© 2.5

at depositions

Total Hours Allowed 310.5

in court - 36.75 hours at $60.00 per hour = $ 1,845.00

out of court - 279.75 hours at $55.00 perhour = 15,386.25

Total Fee Allowed $17,231.25

ALVIN J. BRONSTEIN

Total Hours Claimed 30

Total Hours Allowed 30

in court - 7 hours at $70.00 per hour = $ 490.00

out of court - 23 hours at $70.00 per hour = 1,610.00

Total Fee Allowed $2,100.00

B See discussion at n.10, supra.

© This figure represents one-half of the time Mr. Mann spent at a deposition

with Mr. Myers.

58a

In addition, the Court will allow an award of $126.26 in

costs to Robert Mann; $2,198.10 in costs to the National Prison

Project. These costs are not in dispute.

An order of judgment will be prepared accordingly.

Chief Judge

February 22, 1979

59a

UNITED STATES DISTRICT COURT

DISTRICT OF RHODE ISLAND

C.A. No. 77-554

LEONARD JEFFERSON, er At.

v.

BRADFORD E. SOUTHWORTH, er At.

March 9, 1979.

Order.

Pursuant to the findings of fact and conclusions of law set

forth in the Opinion made and entered in this cause regarding

attorneys’ fees, it is the order, judgment, and decree of this

Court that the defendants shall pay to the plaintiffs’ attorneys

the following sums forthwith:

ROBERT MANN

fees $17,231.25

expenses 126.26

$17,357.51

60a

NATIONAL PRISON PROJECT

Mr. Myers’ fees $ 9,497.50

“Mr. Bronstein’s fees 2,100.00

expenses 2,198.10

$13,795.60

Enter: Per Order:

RAYMOND J. PETTINE Deputy Clerk

Chief Justice

6la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Civit AcTION Fite No. 77-0554

LEONARD JEFFERSON, er At.

0.

BRADFORD E. SOUTHWORTH, er at.

March 6, 1979.

Judgment

This action came on for trial (hearing) before the Court,

Honorable Raymond J. Pettine, United States District Judge,

presiding, and the issues having been duly tried (heard) and a

decision having been duly rendered.

It is Ordered and Adjudged that Judgment shall enter in ac-

cordance with the Opinion dated February 22, 1979.

__ Dated at Providence, Rhode Island, this 6th day of March,

1979.

Clerk of Court

62a

United States Court of Appeals

For the First Circuit

No. 79-1183.

NICHOLAS PALMIGIANO, ET AL.,

PLAINTIFFS, APPELLEES,

v.

J. JOSEPH GARRAHY, ET AL.,

DEFENDANTS, APPELLANTS.

No. 79-1185.

LEONARD JEFFERSON, ET AL.,

PLAINTIFFS, APPELLEES,

v.

BRADFORD E. SOUTHWORTH, ET AL.,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymonp J. Perrine, U.S. District Judge]

Before Corrin, Chief Judge,

CAMPBELL AND Bowness, Circuit Judges.

Dennis J. Roberts II, Attorney General, and Eileen G. Cooney, Special

Assistant Attorney General, un brief for appellants.

Matthew L. Myers, Alvin J. Bronstein, and Robert Mann on brief for ap-

pellees.

63a

March 3, 1980

Bownes, Circuit Judge. This is another round in the litiga-

tion about conditions at the Adult Correctional Institutions in

Rhode Island. See Palmigiano v. Garrahy, 599 F.2d 17 (1st

Cir. 1979). In this appeal the state defendants contest an

award of attorney’s fees totalling $115,483.75 made to the

plaintiff prisoners under the Civil Rights Attorney’s Fees

Award Act of 1976 (the Fees Act), Pub. L. No. 94-559, 90 Stat.

2641 (amending 42 U.S.C. § 1988).! The prisoners were rep-

resented by four lawyers: three were employed by the Nation-

al Prison Project of the privately funded American Civil Liber-

ties Union and the fourth, Robert Mann, was in private prac-

tice. The defendants accept the fee award as it relates to Mr.

Mann’s services. In addition, they concede that fees may be

awarded for the services of attorneys employed by a public in-

terest organization such as the National Prison Project, and

that the district judge weighed each of the twelve factors we

have said must be considered in making a fee award under the

Fees Act. See King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st

Cir. 1977), cert. denied, 438 U.S. 916 (1978). Nevertheless,

the defendants contend that the district court erred in failing

to consider the salaries of the National Prison Project lawyers

in computing a reasonable fee.

The district court understood the defendants to be arguing

that the award for these lawyers’ services must be limited to

"Two cases have been consolidated for appeal purposes. Palmigiano v.

Garrahy was a successful class action challenging the overall conditions at

the Rhode Island prisons as violative of the eighth amendment. 443 F.Supp.

956 (D.R.I. 1977). In that case the district judge awarded $86,655.00 in at-

torney’s fees. 466 F. Supp. 732 (D.R.I. 1979). Jefferson v. Southworth was a

successful challenge to a prolonged “lock-up” at the state’s maximum security

facility. 447 F. Supp. 179 (D.R.I. 1978). In that case attorney’s fees of

$28,828.75 were awarded. C.A. No. 77-544 (D.R.1., unpublished opinion

filed February 22, 1979, and order entered March 9, 1979).

64a

the actual cost to the National Prison Project in litigating the

plaintiffs’ lawsuits, as represented by the salaries paid counsel

for the time spent on the cases.* In rejecting this argument,

the district court considered itself bound by decisions of this

court, particularly Lund v. Affleck, 587 F.2d 75 (lst Cir.

1978) and Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978),

to compensate counsel on the same basis as private practition-

ers. Palmigiano v. Garrahy, 466 F. Supp. 732, 736 (D.R.I.

1979); Jefferson v. Southworth, C.A. No. 77-544, slip op. at 18

(D.R.I. February 22, 1979). In addition, it found no support

in other case law or the legislative history of the Fees Act for

computing fees differently for a public interest organization

and thought that lesser compensation would undermine cer-

tain purposes of fee awards: to deter illegal conduct, to en-

courage private enforcement of civil rights laws, and to attract

competent counsel. Palmigiano v. Garrahy, supra, 466 F.

Supp. at 736. The court also noted that the National Prison

Project was prevented by its work in the present cases from ap-

plying its resources to other civil rights litigation; it added that

the fee award in these cases would help to finance other such

lawsuits. Id.

Because the district court relied substantially on first circuit

cases in refusing to give weight to counsels’ salaries, we begin

by reviewing our own precedent. In King v. Greenblatt,

supra, 560 F.2d at 1026-28, we announced that we woud re-

* At a hearing about attorney's fees in Palmigiano v. Garrahy, the state

defendants argued to the district court that “it would be improper . . . to

award these attorneys [the salaried employees of the National Prison Project]

an amount in excess of their salary as computed and reflected in percentage

of time spent on this case[.]” On appeal, the state defendants’ position is

somewhat unclear, but appears to be that the actual cost of the litigation, as

indicated by counsels’ salaries, is one factor that should have been considered

by the district court. Ordinarily a party may not shift his position on appeal;

if there has been a shift in this case, it is immaterial to the outcome of the ap-

peal.

65a

quire courts awarding fees under the Fees Act to consider the

twelve factors listed in Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)° and affirmed a fee

award to private counsel that seemed reasonable under the

Johnson criteria. A lawyer's salary was not among the twelve

criteria cited. To the contrary, the Johnson test focussed

largely on the reasonable market value of the services ren-

dered.

In Reynolds v. Coomey, supra, we were faced with an ap-

peal from the denial of attorney’s fees for the services of NAACP

Legal Defense Fund staff attorneys. Reversing, we stated:

“Attorney’s fees are, of course, to be awarded to attorneys

employed by a public interest firm or organization on the same

basis as to a private practitioner.” 567 F.2d at 1167. We in-

structed the district court to determine reasonable attorney's

fees in the light of King v. Greenblatt. Id. Likewise, in Perez

v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir. 1978), we remand-

ed for an award of attorney’s fees for representation by the

publicly funded Puerto Rico Legal Services, Inc., citing the

above quoted language from Reynolds v. Coomey. See also

Perez v. University of Puerto Rico, 600 F.2d 1, 2 (Ist Cir.

1979), remanding the case a second time for a fee award con-

sistent with King v. Greenblatt.

* The twelve factors are: (1) the time and labor required; (2) the novelty

and difficulty of the question presented; (3) the skill required to perform the

legal services; (4) the preclusion of other employment by the attorney due to

acceptance of the case; (5) the customary fee in the community; (6) whether

the fee is fixed or contingent; (7) time limitations imposed by client or cir-

cumstances; (8) the amount involved and the results obtained; (9) the experi-

ence, reputation and ability of the attorney; (10) the undesirability of the

case; (11) the nature and length of the professional relationship with the

client; (12) awards in similar cases.

‘Although Reynolds was a Title VII case, we treated the fee request the

same as we would a request under the Fees Act.

66a

The next case involving a fee award to a legal services organ-

ization was Lund v. Affleck, supra. In that case, unlike Rey-

nolds and Perez, the district court had awarded fees, which as

here were assessed against Rhode Island officials. Although it

is not altogether clear from our opinion, the Rhode Island

defendants argued on appeal both that legal services organiza-

tions may not recover attorney’s fees and, in the alternative,

that recovery should be limited to their costs. 587 F.2d at 76;

Brief for Defendants at 20-21, 25. We consider the first argu-

ment foreclosed by our recent decision in Perez, and upheld

awards that had been made in accordance with King v. Green-

blatt, with reference to billing rates of $55 and $60/ hour. Id.

at 76-78.

A review of these cases demonstrates that we have previous-

ly held that public interest organizations (whether privately or

publicly funded) be awarded attorney’s fees under the Fees

Act on the same basis as private practitioners. In Lund, espe-

cially, we were not impressed with the argument that attor-

ney’s fees to a legal services organization should be limited to

the organization’s costs. In this case the defendants would

have us take a new approach. We decline to do so, and take

this opportunity to explain why we adhere to our previously

stated views.

First and foremost, we think that compensating public in-

terest lawyers the same way as private practitioners is consist-

ent with the legislative history of the Fees Act. The Senate

Judiciary Committee Report, which states that fees are to be

awarded according to the standards in Johnson v. Georgia

Highway Express, Inc., draws no distinction between employ-

ees of public interest organizations and members of the private

bar. S. Rep. No. 1011, 94th Cong., 2d Sess. 6, reprinted in

[1976] U.S. Code Cong. & Ad. News 5908, 5913. Indeed, the

Senate Report cites with approval Davis v. County of Los

Angeles, 8 EPD { 9444 (C.D. Cal. 1974), a Title VII case in

67a

which the court said, in determining the amount of attorney’s

fees to award:

[I]t is not legally relevant that plaintiffs’ counsel . . . are

employed by the Center for Law in the Public Interest, a

privately funded non-profit public interest law firm. It is

in the interest of the public that such law firms be award-

ed reasonable attorneys’ fees to be computed in the tradi-

tional manner .. .

Id. at {| 9444-45. The court made its award by calculating

reasonable hourly rates and referring to the factors mentioned

in Johnson v. Georgia Highway Express, Inc. Id. See also

Swann v. Charlotte-Mecklenburg Board of Education, 66

F.R.D. 483, 486 (W.D.N.C. 1975), also cited in the Senate

Report. Likewise, the House Judiciary Committee Report,

H.R. No. 1558, 94th Cong., 2d Sess. 8 n.16 (1976), cites civil

rights cases squarely holding that fee awards may not be re-

duced because the prevailing party’s attorney is employed by a

civil rights or tax exempt organization. Torres v. Sachs, 538

F.2d 10, 13 (2d Cir. 1976) (award for services of Puerto Rico

Legal Defense and Education Fund upheld); Fairley v. Patter-

son, 493 F.2d 598, 606-07 (5th Cir. 1974) (award to Lawyers

Committee for Civil Rights Under Law reversed as too small).

Furthermore, we think that allowing full compensation for

the services of public interest lawyers serves the clearly ex-

pressed legislative purpose of encouraging private enforcement

of civil rights laws. S. Rep. No. 1011, supra, at 5; H.R. Rep.

No. 1558, supra, at 2. As the district court pointed out, the

National Prison Project, like other such organizations, has

68a

finite resources, and a full fee award will enable it to under-

take further civil rights litigation.5

Second, we note that other courts have recently and con-

vincingly rejected the notion that fee awards under the Fees

Act (42 U.S.C. § 1988) or comparable statutes should be

reduced or keyed to an attorney’s salary when a prevailing

party has been represented by a public interest organization.

In Rodriguez v. Taylor, 569 F.2d 1231, 1247-48 (3rd Cir.

1977), cert denied, 436 U.S. 913 (1978), an ADEA case, the

third circuit discussed this issue at length and concluded that

the district court had abused its discretion in considering the

salaries of legal services lawyers in setting fees. Other cases

refusing to set fees in accordance with salaries are Lackey v.

Bowling, 476 F. Supp. 1111, 1116-17 (N.D. Ill. 1979) (award

to legal services organization under § 1988) and Gunther v.

Iowa State Men’s Reformatory, 466 F. Supp. 367, 368-69

(N.D. Iowa 1979) (award to Iowa Civil Liberties Union in Ti-

tle VII case). See also Beazer v. New York City Transit Au-

thority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grds.,

440 U.S. 568 (1979) (award under § 1988 should be calculated

* The district court so observed in the course of addressing the fourth King

v. Greenblatt factor: preclusion of other employment. Palmigiano v. Gar-

rahy, 466 F. Supp. 732, 736 (D.R.I. 1979). We cannot tell whether the

district court merely refused to reduce the fees in part because they would

help finance more litigation or whether the district court actually enhanced

the award because the instant case precluded the National Prison Project

from doing other work. We think it would have been inappropriate to apply

the “preclusion” factor to enhance the award in a case like this, where coun-

sel were not working for profit. See Lamphere v. Brown University, 610

F.2d 46, 47 (1st Cir. 1979) (the “preclusion” factor only applies when counsel

had to forego more profitable opportunities). But, because we cannot be

sure this was done and the defendants have made nothing of this issue on ap-

peal, we see no need to disturb the award on this account.

69a

without regard to non-profit or public interest nature of the

work).®

Third, we are not convinced by the defendants’ suggestion

that setting fees in this case without regard to the salaries paid

by the National Prison Project results in an impermissible

windfall to the organization. Of course, concern is expressed

in the legislative history and in the case law that counsel not be

unjustly enriched. E.g., S. Rep. No. 1011, supra, at 6; Sar-

geant v. Sharp, 579 F.2d 645, 648 (1st Cir. 1978). We do not

think, however, that compensating a public interest organiza-

tion like the National Prison Project on the same basis as a

private practitioner results in such a windfall, particularly

when fees are expected to be used to finance more civil rights

litigation. Indeed, we are concerned that compensation at a

lesser rate would result in a windfall to the defendants. See

id. at 649.

Finally, the panel decision in Copeland v. Marshall, 594

F.2d 244 (D.C. Cir. 1978), does not persuade us to revamp our

entire approach to attorney’s fees. In that case, the court ad-

vocated a cost plus reasonable profit approach to calculating

attorney's fees in a Title VII case where the federal govern-

ment was the defendant. We are not at this point convinced

that this approach would yield a fairer calculation of

attorney’s fees in a case like Copeland, and, for reasons stated

above, we do not think a cost or salary related approach to

computing attorney’s fees in a case like this would be legiti-

mate. We note, in any event, that the panel decision in Cope-

*The only cases we have found that hold to the contrary are Page v. Preis-

ser, 468 F. Supp. 399 (S.D. Iowa 1979) and Alsager v. District Court of Polk

County, Iowa, 447 F. Supp. 572 (S.D. Iowa 1977), decided by the same

judge. These cases stand for the proposition that § 1988 awards to organiza-

tions whose employees are salaried should generally be limited to salaries

plus other costs (such as overhead), at least where the result would not be to

undermine the deterrent or inducement to settle effects of fee awards, or to

undervalue the services rendered.

70a

land has been vacated, that the case has been reheard en banc,

and that a decision is still forthcoming. See 48 U.S.L.W.

2017-18 (D.C. Cir. July 10, 1979).

Judgment affirmed.