# Opposition Brief — Shultz v. Cooper > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0421%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 1014 ## Text 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. II cis sks cis iniagits dapatnigian oininienebniabadinansianids 1 TI Tare ils I aon iiecicvasin ice dnnnstaticosangunniinnstioneaccenantanehbnds 2 (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 li iieeenensiteaanieneant siemens --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0421%3A3. Public record. Not legal advice.