Opposition Brief — Shultz v. Cooper

Supreme Court,

FILED

“ NOV 22 1986

,

(.3 JOSEPH F, SPANIOL, WR

No. 26-2842) CLERK )

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

MARGUERITE COOPER, ET AL.,

PETITIONERS

Vv.

GEORGE P. SHULTZ, SECRETARY OF STATE.

ON CROSS-PETITION FOR A WRIT OF CERTIORARI! TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

SN oe

TABLE OF AUTHORITIES

Cases: Page

Laffy v. Northwest Airlines, Inc., 746 F.2d 4, cert.

denied, No. 84-1655 (June 17, 1985) ~................... 3, 4

Library of Congress v. Shaw, No. 85-54 (July 1,

1986) ... PI DFAT L TI AR ye 2,4

Pennsylvania v. Delaware Valley Citizens’ Council

for Clear Air, No. 85-5 (July 2, 1986) ................ 2,4

Statute and rule:

Civil Rights Act of 1964, § 706(k), 42 U.S.C.

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(1)

Iu the Suprenve Court of the United States

OCTOBER TERM, 1986

No. 86-284

MARGUERITE COOPER, ET AL.,

PETITIONERS

Vv.

GEORGE P. SHUL'TZ, SECRETARY OF STATE

ON CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DiSTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE UNITED STATES

_ IN OPPOSITION

The Secretary of State filed a petition for a writ

of certiorari in this case, Shultz v. Cooper, No. 86-86

(filed July 21, 1986), to challenge an award of at-

torneys’ fees against: the federal government under

Section 706(k) of the Civil Rights Act of 1964, 42

U.S.C. 2000e-5(k). The fee award at issue is based

on the attorneys’ current, rather than their historic,

hourly fee rates (to compensate for delay in pay-

ment) and is enhanced by 54.75% for quality of rep-

resentation and by 20% for contingency. In the peti-

(1)

2

tion, the Secretary argues that the current rate lode-

star is contrary to this Court’s decision in Library

of Congress v. Shaw, No. 85-54 (July 1, 1986), and

its order vacating an earlier fee award based on cur-

rent hourly rates at an earlier stage in this case (see

Shultz v. Palmer, No. 85-50 (filed July 7, 1986) ), and

that the quality of representation enhancement ap-

_pears inconsistent with this Court’s decision in Penn-

sylvania v. Delaware Valley Citizens’ Council for

Clean Air, No. 85-5 (July 2, 1986). The Secretary

also notes in the petition that the validity of contin-

gency enhancements was set for reargument in Dela-

ware Valley. The Secretary’s petition requests that

the Court vacate the judgment of the court of appeals

and remand the case for reconsideration in light of

Library of Congress v. Shaw and Delaware Valley. -

Respondents Cooper, et al., opposed that petition

(No. 86-86) and, on August 22, 1986, filed a cross-

petition for a writ of certiorari pursuant to Rule

19.5. Cross-petitioners present the question whether

the district court correctly used the actual billing

rates of their attorneys, who are private practitioners,

to compute the lodestar, rather than a hypothetical

prevailing community rate (see Cross-Pet. i).

1. Cross-petitioners claim (Cross-Pet. 11-17) that

the issues concerning the validity of a particular lode-

star hourly rate and the appropriateness of a quality

enhancement are “inextricably intertwine[d]” and,

consequently, this Court should grant the cross-peti-

tion if the Court grants the Secretary’s petition on

the enhancement issue. This claim fails, however, be-

cause as cross-petitioners acknowledge in a supple-

mental brief recently filed with this Court, there is

currently no bar to the district court’s reconsidera-

tion of both issues should this Court grant only the

3

Secretary’s petition. See Cross-Pet. Supp. Br. 4. The

court of appeals recently filed an order in response to

this Court’s order in Schultz v. Palmer, No. 85-50

(July 7, 1986) that makes it plain that if the Court

grants the Secretary’s petition, the district court may

reconsider both the quality enhancement and hourly

rate issues. See Cross-Pet. Supp. Br. App. 1a-8a.

Consequently, the cross-petition is unnecessary.

2. The cross-petition should also be denied because

the question it purports to present rests on a mis-

characterization of the decisions of the lower courts.

Cross-petitioners are wrong in claiming that the dis-

trict court’s finding that the hourly rate (for deter-

mining the lodestar amount) should be based on their

counsel’s own billing rates is inconsistent with this

Court’s precedent. The district court did not apply

an “irrebutable presumption” (Cross-Pet. 17) that a

law firm’s customary hourly rates establish the ap-

propriate hourly rate for determining the lodestar

amount. Nor did the court of appeals either in this

case or in Laffey v. Northwest Airlines, Inc., 746

F.2d 4 (D.C. Cir.-1984), cert. denied, No. 84-1655

(June 17, 1985) endorse such a view.

As the court of appeals stressed in its most recent

order in this case (see Cross-Pet. Supp. Br. App. 7a-

8a), Laffey did not create an irrebutable presumption

in favor of a firm’s own billing rates, but merely a

presumption that a private attorney’s billing rate is a

reasonable fee in determining an award against the

government. The district court properly applied the

Laffey presumption and ruled that it had not been

overcome in this case (see 86-86 Pet. App. 10a).

The district court rejected cross-petitioners’ claim

that their law firm was not subject to Laffey because

it was “a public interest law firm with no established

4

billing rate’ and found instead that the firm had

an “established billing rate’ (ibid.). The court also

found that, like the private counsel in Laffey, cross-

petitioners’ counsel had ‘chosen ‘to cater’ to a par-

ticular segment of the market by using lower rates,

thereby avoiding competition from the ‘premium’ |

firms whose high rates could not be paid by plain- |

tiffs’ clients” (id. at lla). We do not believe that fur-

ther review of these inherently factual findings is nec-

essary, but the district ccurt will in any event have

an opportunity to revisit ‘ 1e issue if the Court grants

the Secretary’s petition.

3. Finally, cross-petitioners contend (Cross-Pet.

17-21) that this Court should provide plenary review

of the issues raised in this case rather than summar-

ily vacating the judgment, as proposed by the Secre-

tary, because the district court’s decision is incon-

sistent with decisions of this Court. As discussed

above, however, cross-petitioners misstate the district

court’s ruling and factual findings. In all events, as

explained in the Secretary’s petition, plenary review

is not warranted because the lower courts should first

have the opportunity to reconsider certain issues pre-

sented in this case in light of the Court’s recent rul-

ings in Library of Congress v. Shaw and Delaware

Valley.

It is therefore respectfully submitted that the

cross-petition for a writ of certiorari should be

denied.

CHARLES FRIED

Solicitor General

NOVEMBER 1986

W ov. 8. GOVERNMENT PRINTING OFFice, 1986 161483 40093

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