Petition for Writ of Certiorari — James H. Webb, Jr., Secretary of the Navy v. Carmelo Maldonado

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Iu the Supreme Court of the United States

OCTOBER TERM, 1987

JAMES H. WEBB, JR..,

SECRETARY OF THE NAVY, PETITIONER

CARMELO MALDONADO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

PAUL J. LARKIN, JR.

Aasistant to the Solicitor General

WILLIAM KANTER

E. Roy HAWKENS

Attorne ys

De partme nt of Justice

Wash ington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether an attorney’s customary hourly billing

rate provides the presumptively reasonable hourly

billing rate when calculating a “reasonable attorney’s

fee” under Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e-5 (k).

(1)

II

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption,*

E.J. Scheyder, Commander, Mare Island Naval Ship-

yard, was sued in the district court in his official ca-

pacity, but he was dismissed from the case by stipu-

lation before the district court entered judgment.

*In accordance with Supreme Court Rule 40.3, James H.

Webb, Jr., has been substituted for John Lehman, who was

sued in his official capacity as Secretary of the Navy.

TABLE OF CONTENTS

Page

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Statutory provision involved_----- seinen 2

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Reasons for granting the petition .._......._..___-__-_-~- 6

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TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405

I mane 11

Blum v. Stenson, 465 U.S. 886 (1984)___---- .__6, 9, 11, 12

Coulter vy. Tennessee, 805 F.2d 146 (6th Cir. 1986),

cert. denied, No. 86-1660 (June 8, 1987)_._._._._. 9,14

Hanrahan v. Hampton, 446 U.S. 754 (1980) -__-- 9

Hensley v. Eckerhart, 461 U.S. 424 (1983) .______- 9,14

Johnson Vv. Georgia Highway Express, Inc., 488

SS 13

Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.

Cir. 1984), cert. denied, 472 U.S. 1021 (1985) __- 4, 5, 6,

7,8, 10, 11, 12, 13

Lenard vy. Argento, 808 F.2d 1242 (7th Cir. 1987) i)

Marek v. Chesny, 473 U.S. 1 (1985)___________-_~- 9,14

Mayson V. Pierce, 806 F.2d 1556 (11th Cir. 1987)_ 12, 14

Pennsylvania Vv. Delaware Valley Citizens’ Council

for Clean Air, No. 85-5:

a ee 8,9, 13, 14

June 26, 1987.____-_- a 13

(IIT)

IV

Cases—Continued:

Save Our Cumberland Mountains, Inc. v. Hodel,

826 F.2d 43 (D.C. Cir. 1987)

Sierra Club v. "PA, 769 F.2d 796 (D.C. Cir. 1985) -

Statutes:

Civil Rights Act of 1964:

Tit. Il, 42 U.S.C. 2000a et seq

42 U.S.C. 2000a-3 (b)

Tit. VII, 42 U.S.C. 2000e et seq

42 U.S.C. 2000e-5 (k)

42 U.S.C. 2000e-16 (d)

Civil Rights Attorney’s Fees Awards Act of 1976,

42 U.S.C. 1988

Clean Air Act § 304(d), 42 U.S.C. 7604(d)

Miscellaneous:

Berger, Court Awarded Attorney's Fees: What is

“Reasonable?’”’, 126 U. Pa. L. Rev. 281 (1977) __

H.R. Rep. 94-1558, 94th Cong., 2d Sess. (1976) ___

S. Rep. 94-1011, 94th Cong., 2d Sess. (1976)

Page

6, 7,9, 10, 11

6

10

9

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No.

JAMES H. WEBB, JR.,

SECRETARY OF THE NAVY, PETITIONER

Vv.

CARMELO MALDONADO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of James H. Webb,

Jr., Secretary of the Navy, hereby respectfully peti-

tions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-4a) is reported at 811 F.2d 1341. The order of

the district court (App., infra, 5a-7a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on March 6, 1987. A petition for rehearing was de-

nied on June 29, 1987 (App., infra, 9a). On Sep-

(1)

EE

2

tember 17, 1987, Justice O’Connor entered an order

extending the time within which to file a petition for

a writ of certiorari to and including October 27,

1987. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. 2000e-5(k) provides as follows:

In any action or proceeding under this sub-

chapter the court, in its discretion, may allow

the prevailing party, other than the Commission

or the United States, a reasonable attorney’s fee

as part of the costs, and the Commission and the

United States shall be liable for costs the same

as a private person.

STATEMENT

1. In 1978, respondent Carmelo Maldonado, a

pipefitter at the Mare Island Naval Shipyard in

Vallejo, California, brought suit against the ship-

yard, alleging that he had been denied a promotion

due to discrimination. The suit was settled, and re-

spondent was promoted to foreman in 1980. In April

1982, respondent filed a complaint with the Equal

Employment Opportunity Commission alleging that

he had suffered various forms of reprisal for having

brought his earlier suit. Following a hearing, a hear-

ing examiner issued a recommended decision in which

he found that respondent had been subjected to re-

prisal. The Secretary of the Navy adopted the ex-

aminer’s findings. The Secretary also informed re-

spondent that his attorney, Robert Atkins,’ was en-

1 Atkins received his law degree in 1979. In 1982, Atkins

was a third-year associate with the San Francisco law firm

of Erickson, Beasley & Hewitt. Excerpts of Record (E.R.) 62.

3

titled to present a claim for reasonable attorney’s

fees and costs to the Navy. App., infra, 2a.

Atkins thereafter presented an affidavit of fees

and costs. He declared he had performed 164.1 hours

of work and sought a fee based on a rate of $110

per hour and $398.20 in costs. The Navy agreed to

the number of hours spent by Atkins and the amount

of costs, but the Navy rejected Atkins’ sought-after

rate of $110 per hour on the ground that it was ex-

cessive. Atkins’ customary billing rate was $80 per

hour, and the Navy offered to pay respondent a fee

consistent with that rate, amounting to approxi-

mately $81 per hour. App., infra, 2a-3a.*

2. Dissatisfied with the Navy’s offer, Atkins filed

suit against petitioner in the United States District

Court for the Eastern District of California, seeking

attorney’s fees pursuant to 42 U.S.C. 2000e-5(k)

and 2000e-16(d). Atkins contended that he was en-

titled to an award of fees based on a $110 hourly

rate. To support his claim, Atkins submitted affi-

davits stating that other lawyers in the San Fran-

cisco and Oakland areas commanded similar hourly

rates for their services in comparable cases (App.,

infra, 3a). Petitioner argued that Atkins was not

entitled to a $110 hourly rate because his customary

billing rate for similar cases in 1983 was $80 per

2 The Navy awarded Atkins $95 per hour for his work at

administrative hearings, and $75 per hour for his non-hearing

work. These rates were consistent with Atkins’ customary

hourly rate, and they corresponded to the maximum rates

awarded to attorneys by the Merit Systems Protection Board

for cases arising at the Mare Island Naval Shipyard. E.R.

195-198. We do not ask the Court to award fees in these

amounts, however, and they are irrelevant to the question

presented by this petition.

4

hour and the fee agreement between Atkins and re-

spondent in this case was based on an $80 per hour

rate (E.R. 204, 207, 214, 218). In addition, peti-

tioner pointed out that Atkins had conceded that his

customary billing rate for cases not compensated by

a contingent fee involving “wills, contracts, real es-

tate acquisition, partnership dissolution, and per-

sonal injury defense” ranged from $60 to $80 per

hour (E.R. 219). Because the fee proposed by the

Navy was consistent with Atkins’ customary billing

rate, petitioner maintained that, under Laffey v.

Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir.

1984) (holding that an attorney’s customary billing

rate is the presumptively reasonable rate for calcu-

lating an attorney’s fee award), cert. denied, 472

U.S. 1021 (1985), Atkins’ request for a $110 per

hour fee should be denied.

The district court rejected petitioner’s argument.

At a hearing on respondent’s motion, the district

court stated that respondent was entitled to his

sought-after community hourly rate because his own

customary rate “is somewhat falling behind the

times” (10/21/85 Tr. 14).*° The court thereafter en-

8 After concluding that San Francisco was the relevant legal

community, the district court stated that (10/21/85 Tr. 13-

14):

the next issue is the reasonable rate that can be charged

and which emanates from that relevant community of

San Francisco. Again, with all due respect, I have no

problems in finding the reasonable rate. I take into con-

sideration counsel’s customary rate[,] which is somewhat

below the so-called reasonable rate in [the] community.

However, I also take into consideration the so-called cus-

tomary rate in this case is somewhat falling behind the

times, it’s somewhat below—it’s not the reasonable rate

5

tered an order awarding fees (App., infra, 5a-7a).

The court acknowledged that Atkins’ customary bill-

ing rate was $80 per hour (id. at 6a), but stated,

without elaboration or explanation, that a $110 per

hour rate was reasonable nevertheless (ibid.). The

court gave no explanation why Atkins should be

compensated at a rate more than one third in excess

of his customary hourly billing rate.*

3. Petitioner appealed, and the court of appeals

affirmed (App., infra, la-4a). Petitioner argued that

the district court applied an erronecus legal standard

in selecting the hourly rate, and invited the court of

appeals to adopt the method approved in Laffey for

determining a lawyer’s reasonable hourly billing

rate. The court rejected petitioner’s argument on the

ground that it was foreclosed by prior Ninth Circuit

ease law (id. at 3a-4a). The court stated that an

attorney’s customary hourly rate is relevant, but it

is not an abuse of discretion for a district court to

rely on “ ‘the reasonable community standard that

was employed here’ ” to calculate a fee award (id. at

4a (citation omitted) ).

that is normally paid to those who somewhat specialize in

the area.

In any event, the reasonable rate emanating from the

community is not so unreasonable as compared with the

customary rate as to make it impossible for this Court

to make such a finding there to. For all of those reasons,

I will find, having found that the Bay Area is, in fact,

the appropriate area, that the reasonable rate to be

charged in the community that will be charged in this

case is $110 per hour.

* In fact, the court denied respondent’s request for a multi-

plier on the ground that “the results in the case were not

exceptional and the risk of nonpayment was not great” (App.,

infra, 6a) .

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6

REASONS FOR GRANTING THE PETITION

This case presents an important, unsettled, and

frequently recurring question concerning the proper

method of calculating a reasonable attorney’s fee un-

der Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e-5(k), and scores of other fee-shifting

statutes. The Court has recognized that attorney’s

fees awards should be sufficient to attract competent

counsel without providing lawyers with windfalls.

To achieve that goal, the Court has required that a

fee award for a salaried attorney employed by a legal

aid organization should be calculated on the basis of

the prevailing community rate for similar services

by attorneys of reasonably comparable skill, exper

ence, and reputation. Blum vy. Stenson, 465 U.S. 886,

895-896 n.11 (1984). The Court has not yet endorsed

a method for determining the reasonable hourly rate

for an attorney with an established billing history.

This case, which creates an express conflict among

the circuits regarding the proper method for deter-

mining the reasonable hourly rate for such attorneys,

offers the Court an opportunity to provide needed

clarification of the law in this area.

1. The Ninth Circuit’s decision in this case

squarely conflicts with the District of Columbia Cir-

cuit’s decision in Laffey v. Northwest Airlines, Inc..,

746 F.2d 4 (1984), cert. denied, 472 U.S. 1021

(1835). See aiso Save Our Cumberland Mountains,

Ine. v. Hodel, 826 F.2d 43 (D.C. Cir. 1987); Sierra

Club v. EPA, 769 F.2d 796, 811-812 (D.C. Cir.

1985). In Laffey, counsel for the prevailing parties

in a Title VII lawsuit sought attorneys’ fees under

12 U.S.C. 2000e-5(k) based upon an hourly rate

that was consistent with a composite prevailing mar-

ket rate, but that exceeded counsel’s own customary

=

‘

billing rate. The court of appeals expressly rejected

that claim, holding that an attorney’s customary bill-

ing rate constitutes the presumptively reasonable rate

to be used in calculating a fee award as long as it is

not aberrationally high or low. An attorney’s fee

award should thus be calculated on the basis of coun-

sel’s customary billing rate even if it differs, perhaps

greatly, from a composite average market hourly

rate. 746 F.2d at 16-25.° As the District of Colum-

bia Cireuit recently put it, “[i]n this circuit, the

rule is * * * [that] if an attorney has a customary

billing rate, that rate constitutes the presumptively

reasonable rate to use in computing a fee award. In

general, only if the attorney himself has no custom-

ary billing rate may the court base its fee award on

a composite average market hourly rate.” Save Our

Cumberland Mountains, Inc. v. Hodel, 826 F.2d at

47-48.

In this case, petitioners relied on the Laffey deci-

sion in arguing that the district court applied an

erroneous legal standard in calculating respondent’s

° The Laffey court explained that an attorney seeking com-

pensation must provide evidence of the rate he customarily

charges in private representation. That rate presumptively

serves as the reasonable market rate for his services. Next,

counsel must provide evidence that enables the court to deter-

mine whether that hourly rate falls within the reasonable

range of hourly rates billed by other lawyers for similar work

in the same community. In calculating the appropriate range

of reasonable hourly rates, a court would disregard abnor-

mally high and low billing rates. As long as an attorney’s

customary rate fell within that range, it serves as the reason-

able hourly rate at which an attorney’s fee would be calcu-

lated. Laffey, 746 F.2d at 24-25.

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8

fee. The Ninth Circuit expressly rejected the ap-

proach endorsed in Laffey and upheld the district

court’s fee award even though it was based on an

hourly rate that substantially exceeded Atkins’ cus-

tomary hourly fee (App., infra, 3a-4a, 6a). In so

doing, the court of appeals offered no reason why

Atkins should be compensated by the Navy at an

hourly rate more than a third higher than what he

obtained in the market for private representation.

This conflict demands resolution by this Court.

2. The decision below is also incorrect. By ruling

that district courts have discretion to disregard an

attorney’s customary billing rate and to award fees

that are calculated on the basis of a composite mar-

ket hourly rate, the court of appeals approved a fee

award more chan one third in excess of the rate that

respondent’s counsel commands from fee-paying

clients. That outcome is utterly inconsistent with

the rationale underlying fee-shifting statutes and is

unsupported by this Court’s decisions.

Fee-shifting statutes exist to provide plaintiffs

with meritorious claims a fee sufficient to attract

competent attorneys, not to improve the financial con-

dition of lawyers. As this Court recently explained

in Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, No. 85-5 (July 2, 1986) (Delaware

Valley I), slip op. 17-18, “[fee-shifting] statutes

were not designed as a form of economic relief to

improve the financial lot of attorneys, nor were they

intended to replicate exactly the fee an attorney could

earn through a private fee arrangement with his

client. Instead, the aim of such statutes was to en-

able private parties to obtain legal help in seeking

redress for injuries resulting from the actual or

9

threatened violation of specific federal laws.”* A

reasonable attorney’s fee therefore is one that will

induce attorneys to handle meritorious cases without

paying plaintiffs a windfall.’

® See also S. Rep. 94-1011, 94th Cong., 2d Sess. 6 (1976) ;

H.R. Rep. 94-1558, 94th Cong., 2d Sess. 8 (1976); Marek v.

Chesny, 473 U.S. 1, 10 (1985) ; Blum v. Stenson, 465 U.S. 886,

893-894 (1984); Hensley v. Eckerhart, 461 U.S. 424, 429

(1983).

Neither the text nor legislative history of 42 U.S.C. 2000e-

5(k) contains directions for calculating a reasonable attor-

ney’s fee. Delaware Valley I involved Section 304(d) of the

Clean Air Act, 42 U.S.C. 7604(d), but the Court concluded

that it should be interpreted in accordance with the case law

addressing the Civil Rights Attorney’s Fees Awards Act of

1976, 42 U.S.C. 1988. That Act was patterned after the

attorney’s fee provisions of Titles II and VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000a-3(b) and 2000e-5(k).

S. Rep. 94-1011, supra, at 4; Hensley v. Eckerhart, 461 U.S.

at 433 n.7; Hanrahan v. Hampton, 446 U.S. 754, 758 n.4

(1980). The Court has stated that the approach for determin-

ing a reasonable attorney’s fee under 42 U.S.C. 1988 is ap-

plicable to other fee statutes as well. Delaware Valley I, slip

op. 13-21; Hensley v. Eckerhart, 461 U.S. at 433 n.7. The

lodestar approach endorsed in cases such as Delaware Valley |

is therefore applicable to this case.

7 See Save Our Cumberland Mountains, Inc. v. Hodel, 826

F.2d at 49; Lenard v. Argento, 808 F.2d 1242, 1247 (7th Cir.

1987) (“The statute allows only a reasonable fee. This means

a fee large enough to induce competent counsel to handle the

plaintiff’s case, but no larger.”’) ; see also Coulter v. Tennessee,

805 F.2d 146, 148-149 (6th Cir. 1986) (“Congress intended to

provide an economic incentive for the legal profession to try

meritorious cases defining and enforcing statutory policies and

constitutional rights in a variety of fields of legal practice.

Congress did not intend that lawyers, already a relatively

well off professional class, receive excess compensation or

incentives beyond the amount necessary to cause competent

legal work to be performed in these fields.”), cert. denied,

No. 86-1660 (June 8, 1987).

10

The approach followed in Laffey fully serves that

goal. A lawyer’s customary billing rate provides a

precise measure of the value of his time and effort,

even if that rate is less than what is charged by

other attorneys in the legal community. It is unnec-

essary to compensate a lawyer, such as Atkins, more

handsomely in order to attract him to this type of

case. In other words, if a lower hourly dollar award

is sufficient to attract competent attorneys in gen-

eral, and Atkins in particular, to litigation of the

type at issue here, that hourly rate completely satis-

fies the purpose of a fee-shifting statute by ensuring

that like attorneys will take on such cases. Any

greater amount is unnecessary to attract competent

lawyers and constitutes a windfall by definition.

Save Our Cumberland Mountains, Inc. v. Hodel, 826

F.2d at 49; see Berger, Court Awarded Attorney's

Fees: What is “Reasonable?”, 126 U. Pa. L. Rev.

281, 321 (1977).*

This case illustrates that principle. An award

based on an $80 per hour rate would have exactly

*As one commentator has observed (Berger, supra, 126

U. Pa. L. Rev. at 321 (quoted in Laffey, 746 F.2d at 18)):

The court must determine a value for the attorney’s time

that will place statutory fee cases on a competitive eco-

nomic basis * * *. For lawyers engaged in customary

private practice, who at least in part charge their clients

on an hourly basis regardless of the outcome, the market-

place has set that value. For these attorneys, the best

evidence of the value of their time is the hourly rate

which they most commonly charge their fee-paying clients

for similar legal services. This rate reflects the training,

background, experience, and previously demonstrated

skill of the individual attorney in relation to other lawyers

in that community.

11

offset the opportunity cost to Atkins from represent-

ing respondent because, by his firm’s own estimation,

that fee accurately reflects his background, experi-

ence, and skill relative to that of other attorneys in

the community. Moreover, the lower courts’ decision

to inflate Atkins’ customary rate by more than one

third resulted in an hourly rate that substantially

exceeded what Atkins historically had charged other

parties, including civil rights claimants, and even

exceeded the rate that Atkins had agreed to charge

respondent.’

The primary argument to the contrary is that this

Court’s decision in Blum v. Stenson, 465 U.S. 886

(1984), requires a composite market hourly rate to

be used to calculate all fee awards. Save Our Cum-

herland Mountains, Inc. v. Hodel, 826 F.2d at 55-60

(Wald, C.J., dissenting); Laffey, 746 F.2d at 32-

33 (Wright, J., dissenting). That argument rests

largely on the statement in Blum that “Congress did

not intend the calculation of fee awards to vary de-

pending on whether plaintiff was represented by pri-

vate counsel or by a nonprofit legal services organiza-

tion.” 465 U.S. at 894. A composite market rate

must be used for all attorneys, the argument goes, to

ensure that fees are calculated in the same way for

both private, for-profit attorneys and lawyers em-

® The lower courts’ reliance on a community standard hourly

rate is clearly in error even under the abuse of discretion

approach followed by the court of appeals. Discretion must

be exercised in a principled fashion. See Albemarle Paper Co.

Vv. Moody, 422 U.S. 405, 416-417 (1975). The court of appeals,

however, gave no explanation why a district court has discre-

tion to augment an attorney’s hourly billing rate simply be-

cause the defendant must foot the bill.

12

ployed by a non-profit legal services corporation.

Properly read, however, the decision in Blum is not

contrary to the approach taken in Laffey.

Blum endorsed a market rate approach, rather than

a cost-based approach, because the legislative history

of 42 U.S.C. 1988 approved that result. Because there

is no market rate for a salaried attorney, Blum re-

quired courts to calculate a fee based on the relevant

composite market rate. When counsel’s own rates are

available, however, Blum does not require a court to

blind itself to those rates. Nothing in Blum or the

legislative history of 42 U.S.C. 2000e-5(k) suggests

that a lawyer who receives fees from clients rather

than a salary from donors is not reasonably compen-

sated under a fee-shifting statute by reference to his

own hourly billing rates. In sum, the statement in

Blum quoted above must be read in the context of

the issue that the Court addressed. That statement

does not foreclose the position we urge here, because

that question was not before the Court in Blum.

3. Basing a fee award on counsel’s customary bill-

ing rate will also produce several other beneficial re-

sults. See generally Laffey, 746 F.2d at 18-22; May-

son v. Pierce, 806 F.2d 1556, 1561 (11th Cir. 1987)

(Clark, J., dissenting). First, that approach will

often eliminate the difficult and sometimes impossible

task of calculating a particular, exact market rate

from the universe of rates billed by attorneys.” Sec-

” Calculating a composite market hourly rate can be an

onerous task if done properly. See Blum v. Stenson, 465 U.S.

at 895-896 n.11 (“We recognize, of course, that determining

an appropriate ‘market rate’ for the services of a lawyer is

inherently difficult.”).

13

ond, the approach followed in Laffey can lessen, if

not sometimes altogether avoid, a second round of

litigation over the fee question by providing a losing

party with an incentive to settle, since a lawyer’s

hourly billing rate can be determined objectively.”

Third, the Laffey approach will limit the trial judge’s

ability arbitrarily to punish or reward counsel for

either party by setting rates.” Fourth, that approach

avoids the unprincipled, but otherwise inevitable, bat-

''The Laffey court predicted that the approach that it

adopted would reduce fee litigation by establishing a predict-

able and objective standard for setting hourly rates. 746 F.2d

at 21-22. That prediction was accurate. The United States

Attorney for the District of Columbia advises us that the

Laffey decision has resulted in less litigation over fees. Be-

fore the Laffey decision, the United States Attorney’s office

devoted a substantial amount of time comparing the skills

and experiences of lawyers to calculate an appropriate mar-

ket rate. Since Laffey, however, litigation over fees has

been greatly reduced because of the relative ease of determin-

iny an attorney’s customary billing rate. The Laffey standard

has promoted settlements and has reduced second major liti-

gations over fees.

12 See Pennsylvania Vv. Delaware Valley Citizens’ Council for

Clean Air, No. 85-5 (June 26, 1987) (Delaware Valley II),

slip op. 2 (O’Connor, J., concurring in part and concurring in

the judgment) (“To be ‘reasonable,’ the method for calculat-

ing a fee award must be not merely justifiable in theory but

also objective and nonarbitrary in practice.) ; cf. Delaware

Valley I, slip op. 15 (noting that the 12-factor test adopted in

Johnson Vv. Georgia Highway Express, Inc., 488 F.2d 714,

717-719 (5th Cir. 1974), has been criticized on the ground

that “it gave very little actual guidance to District Courts.

Setting attorney’s fees by reference to a series of sometimes

subjective factors placed unlimited discretion in trial judges

and produced disparate results.’’).

ae

14

tle of the experts, as well as the disingenuousness

that such a procedure often produces.”

4. The question presented by this case has con-

siderable practical importance. More than 100 stat-

utes authorize an award of “reasonable” attorney’s

fees to a prevailing party,“ and the Court has indi-

cated that the fees awarded under these acts should

be calculated in the same manner. Delaware Valley

I, slip op. 13-21; Hensley v. Eckerhart, 461 U.S. 424,

433 n.7 (1983). The answer to the question pre-

sented by this case not only will govern the award of

attorney’s fees under Titles II and VII of the Civil

Rights Act of 1964, but also will apply to every fee

statute in which Congress has authorized an award

of “reasonable” fees without a defined hourly rate.

The decision below therefore clearly warrants review

by this Court.

18 Judge Clark criticized as “deplorable” the “past practice

of fixing an attorney’s ‘reasonable hourly rate’ by approving

the use of affidavits at the extremities. It has been the custom

for many years for an attorney seeking court approved fees

to submit affidavits from friendly attorneys who state that a

reasonable rate is that which approximates the highest rate

charged in the community. These affidavits are opposed by

those from friends of defense counsel who swear to the rea-

sonableness of the lowest rate which is charged by parts of the

legal community.” Mayson v. Pierce, 806 F.2d at 1561 (Clark,

J., dissenting).

14 Delaware Valley I, slip op. 14 (“There are over 100 sepa-

rate statutes providing for the award of attorney’s fees; and

although these provisions cover a wide variety of contexts and

causes of action, the benchmark for the awards under nearly

all of these statutes is that the attorney’s fee must be ‘reason-

able.’ ”’) ; see also Marek v. Chesny, 473 U.S. at 44-51 (Bren-

nan, J., dissenting) (listing statutes) ; Coulter v. Tennessee,

805 F.2d at 152-155 (same).

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

WILLIAM KANTER

E. Roy HAWKENS

Attorneys

OCTOBER 1987

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 86-1545; 86-1578

D.C. No. CV-S-84-0334-RAR

CARMELO MALDONADO,

PLAINTIFF-APPELLEE-CROSS-APPELLANT

Vv.

JOHN LEHMAN, in his capacity as Secretary of the

Navy; E. J. SCHEYDER, in his capacity as Com-

mander, Mare Island Naval Shipyard, DEFENDANTS-

APPELLANTS-CROSS-APPELLEES

Appeal! from the United States District Court

for the Eastern District of California

Raul A. Ramirez, District Judge, Presiding

Argued and Submitted

December i2, 1986—San Francisco, California

Filed March 6, 1987

Opinion by Judge Hall

Before: Alfred T. Goodwin, Harry Pregerson and

Cynthia Holcomb Hall, Circuit Judges

(la)

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OPINION

HALL, Circuit Judge:

The United States Navy appeals from the dis-

trict court’s award of attorney’s fees to Carmelo

Maldonado (Maldonado) as a prevailing party in his

Title VII, 42 U.S.C. §§ 2000e-16(c), action against

the Navy. Maldonado cross-appeals from the district

court’s refusal to apply a multiplier. This court has

jurisdiction over the appeals pursuant to 28 U.S.C.

§$ 1291. We affirm.

I

In 1978, Maldonado, an employee at the Mare Is-

land Shipyard, sued the Shipyard for employment

discrimination. The suit settled, and Maldonado was

promoted. In 1982, Maldonado filed a complaint with

the Equal Employment Opportunity Commission al-

leging reprisal for his 1978 suit. After a five-day

hearing, the Examiner found that Maldonado had

experienced reprisal. The Secretary of the Navy

adopted the Examiner’s findings. Pursuant to 29

C.F.R. § 1613.271(c), the Secretary also found that

Maldonado was a prevailing party and, therefore,

that his attorney, Robert Atkins (Atkins), was en-

titled to present a claim for reasonable attorney’s

fees and costs to the Navy.

Atkins then presented an affidavit to the Navy.

He claimed that he had spent 164.1 hours working

on Maldonado’s case and asked for a fee of $110 per

hour and a multiplier of two. He also requested

$398.20 in costs. The Navy accepted as reasonable

the amount of costs and the number of hours worked.

However, the Navy rejected Atkins’ requested hourly

rate, and, instead, awarded $95 per hour for Atkins’

work at administrative hearings and $75 per hour

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for his non-hearing work. The Navy claimed that

these rates were consistent with Atkins’ customary

billing rate of $80 per hour. The Navy refused to

apply a multiplier because it felt that additional com-

pensation was not warranted.

Maldonado, dissatisfied with the Navy’s award of

fees, filed a complaint for attorney’s fees in district

court pursuant to 42 U.S.C. § 200e-16(c). In sup-

port of his request for a fee of $110 per hour, Mal-

donado submitted affidavits from attorneys in San

Francisco showing that other similarly situated at-

torneys charged from $90 to $135 per hour. The

district court found that $110 was a reasonable

hourly rate for Atkins’ services and assessed the fee

award accordingly. The court refused to apply a

multiplier. The Navy now appeals the district

court’s award of fees, and Maldonado cross-appeals

the court’s refusal to apply a multiplier.

IT

In a civil action filed under 42 U.S.C. § 2000e-

16(c), the district court reviews the agency’s deci-

sion de novo. Chandler v. Roudebush, 425 U.S. 840

(1976). We review the amount of fees awarded by

the district court for an abuse of discretion. Chal-

mers v. City of Los Angeles, 796 F.2d 1205, 1210

(9th Cir. 1986).

III

The Navy argues that the district court should

have calculated the award of attorney’s fees using

Atkins’ customary billing rate rather than the pre-

vailing market rate in San Francisco. See, e.¢.,

Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.

Cir. 1984), cert. denied, 469 U.S. 1181 (1985). This

Circuit does not follow the legal standard set forth

———————

4a

in Laffey. “While evidence of counsel’s customary

hourly rate may be considered by the District Court,

it is not a abuse of discretion in this type of case to

use the reasonable community standard that was

employed here.” White v. City of Richmond, 713

F.2d 458, 461 (9th Cir. 1983).

IV

Maldonado argues that the district court abused

its discretion by not applying a multiplier in calcu-

lating the award of attorney’s fees. Maldonado has

the burden of proving that an upward adjustment is

necessary to award him a reasonable fee. Blum v.

Stenson. 465 U.S. 886, 898 (1984). While adjust-

ments are possible, they are rare and must be sup-

ported by specific evidence and detailed findings. /d.

at 898-900. Maldonado failed to establish that an

upward adjustment was warranted in this case.

AFFIRMED.

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APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

No. Civ 8-84-0334 RAR

CARMELO MALDONADO, PLAINTIFF

v.

JOHN LEHMAN, in his capacity as Secretary of the

Navy; E. J. SCHEYDER, in his capacity as Com-

mander, Mare Island Naval Shipyard, DEFENDANTS

[Filed Nov. 5, 1985]

ORDER GRANTING ATTORNEYS’ FEES

AND COSTS

Plaintiff's motion for an award of attorneys’ fees

and costs came on for hearing on October 21, 1985

before the Honorable Raul A. Ramirez of the United

States District Court for the Eastern District of

California. Leigh-Ann K. Miyasato appeared on be-

half of plaintiff. Defendant was represented by

Joseph E. Maloney, Assistant United States Attor-

ney.

Plaintiff’s motion was made under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. $§ 2000¢e-5,

2000e-16. It was undisputed that the 165.35 hours

of work performed by plaintiff’s counsel and the

$398.20 in costs expended were reasonable, but de-

fendant challenged plaintiff’s request for an hourly

rate of $110.00 and for a multiplier of 2.0.

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The Court finds that the relevant community for

purposes of determining the hourly rate for plain-

tiff’s counsel is the San Francisco Bay Area. Al-

though the administrative proceedings in the case

were held at Mare Island Naval Shipyard in Vallejo,

California, the Court finds that the rates for plain-

tiff’s counsel, Robert Atkins, should be based on the

prevailing market rates in the San Francisco Bay

Area because it was reasonable for plaintiff to re-

tain counsel from San Francisco. The case involved

the specialized fields of federal administrative law

and federal employment discrimination law. Only a

smali number of attorneys are available in Vallejo

to handle such cases. Vallejo is only a short distance

from San Francisco. Finally, plaintiff had previ-

ously been represented by an attorney from Mr.

Atkins’ firm in an employment discrimination matter

and had developed a relationship of trust and con-

fidence with the firm.

Taking into account Mr. Atkins’ customary bill-

ing rate of $80.00 per hour, but considering that the

declarations of San Francisco Bay Area counsel in-

dicate a higher prevailing market rate for similar

services, the Court finds that a reasonable rate for

Mr. Atkins is $110.00 per hour.

The Court denies plaintiff's request for a multi-

plier on the grounds that the results in the case were

not exceptional and the risk of nonpayment was not

great.

Having found that it was reasonable for plaintiff

to request payment at the hourly rate of $110.00 for

all time expended, rather than to accept the hourly

rates paid by defendant ($75.00 for nonhearing

time and $95.00 for hearing time), the court further

finds that plaintiff's motion for an award of attor-

neys’ fees and costs was reasonable and that plaintiff

is entitled to payment for work performed on the

Ta

motion. The hours and rates claimed for work per-

formed on the motion were reasonable.

Accordingly, the court awards reasonable attor-

neys’ fees and costs in the amount of $11,143.08, cal-

culated as follows:

For the work of Robert Atkins, 165.35 hours at

$110.00 per hour, for a total of $18,188.50.

For costs expended in handling the merits of the

case, $398.20.

For the work of John H. Erickson on the motion

for attorneys’ fees and costs, 3.5 hours at $170.00

per hour, for a total of $595.00.

For the work of Leigh-Ann K. Miyasato on the

motion for attorneys’ fees and costs, 45.33 hours at

$110.00 per hour, for a total of $4,986.30.

For costs expended in handling the motion for

attorneys’ fees and costs, $474.51.

Credit for amounts previously paid by defendant,

$13,499.43.

IT IS ORDERED that plaintiff recover $11,143.08

as reasonable attorneys’ fees and costs.

DATED:

s/ Raul A. Ramirez

RAUL A. RAMIREZ

United States District Judge

APPROVED AS TO FORM:

Dated: October 23, 1985

s’ Leigh-Ann K. Miyasato

LEIGH-ANN K. MIYASATO

Attorney for Plaintiff

Dated: Oct. 24, 1985

s/ Joseph E. Maloney

JOSEPH E. MALONEY

Attorney for Defendant

ew

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APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

Case Number: CIV-S-84-0334-RAR

MALDONADO

v.

LEHMAN

[Filed Nov. 12, 1985]

JUDGMENT IN A CIVIL CASE

[ ] Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried

and the jury has rendered its verdict.

<<] Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT BE AND HEREBY IS EN-

TERED IN FAVOR OF PLAINTIFF.

NOVEMBER 12, 1985

Date

JAMES R. GRINDSTAFF

Clerk

s/ Sharon Sinander

S. SINANDER

(By) Deputy Clerk

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 86-1545 & 86-1578

DC No. CV-S-84-0334-RAR

CARMELO MALDONADO,

PLAINTIFF / APPELLEE/ CROSS-APPELLANT

v.

JOHN LEHMAN, in his capacity as Secretary of the

Navy; E. J. SCHEYDER, in his capacity as Com-

mander, Mare Island Naval Shipyard, DEFENDANTS

APPELLANTS / CROSS-APPELLEES

| Filed Jun. 29, 1987]

ORDER

Before: GOODWIN, PREGERSON, and HALL,

Circuit Judges.

The panel has voted to deny the petition for re-

hearing and to reject the suggestion for rehearing

en banc.

The full court has been advised of the suggestion

for rehearing en banc and no active judge has re-

quested a vote on whether to rehear the matter en

bane. (Fed. R. App. P. 35.)

The petition for rehearing is denied and the sug-

gestion for rehearing en banc is rejected.

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