Reply Brief — City of New York v. Eastway Construction Corp.

No. 87-359

, lt ‘

IN THE 0

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE CITY OF NEW YORK, et al.,

Petitioners,

-against-

EASTWAY CONSTRUCTION CORP., et al.,

Respondents.

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETER L. ZIMROTH,

Corporation Counsel of

the City of New York,

Attorney for Petitioners,

100 Church Street,

New York, N.Y. 10007.

(212) 566-4328 or 4338

LEONARD J. KOERNER, *

FRED KOLIKOFF,

of Counsel.

October 2, 1987

*Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........

PRELIMINARY STATEMENT ......

ARGUMENT

CONCLUSION

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Page

12

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TABLE OF AUTHORITIES

Page

Cases

Eastway Construction Corp. v.

City of New York ("Eastway III"),

821 F.2d 121

a passim

Hensley v. Eckerhart, 461

are 8

Munson vy. Friske, 754 F.2d 683

re 6

Murphy v. Kolovitz 635 F.2d 662

CTCL MEE ce ease¢acceeescasess 6

Pennsylvania v. Delaware Valley

Citizens' Council for Clean Air,

U.S. , 106 S. Ct.

a ae weed ko tik 6 a6 4 68 2 8 8-11

Statutes

42 U.S.C. §1$88 (Civil Rights

Attorney's Fees Act of

eee ay ee kk ds 6 Oe we 8 3

-ji-

Page

Other Authorities |

Lawrence M. Greenberg, "The

Rule 11 Debate, Circuit

Court Gives No Guidance

in Eastway", National Law

Journal, September 14,

Bs ee es Os -& nde n ee sec seen 5

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No. 87-359

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE CITY OF NEW YORK, et al.,

Petitioners,

-aguinst-

EASTWAY CONSTRUCTION CORP., et al.,

Respondents.

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

PRELIMINARY STATEMENT

The petitioners, the City of New York,

Nathan Leventhal, Anthony G. Gliedman, and

Charles Reiss, respectfully pray that a Writ

of Certiorari issue to review the decision of

the United States Court of Appeals for the

Second Circuit entered in the above-entitled

proceeding on June 8, 1987. The Petition

for a Writ of Certiorari was docketed in this

Court on August 28, 1987. This Reply Brief

is being submitted in support of the Petition

and in response to the Brief in Opposition to

the Petition, dated September 23, 1987, filed

by Respondents (hereafter "Resp. br.").

ARGUMENT

Respondents’ brief in opposition to the

petition is based on a misrepresentation of

the Second Circuit's decision which is the

subject of this petition, a misrepresentation

of petitioners’ argument to his Court, and a

misrepresentation of the relevant case law in

the area.

1. Respondents. misre-

present the decision

below.

The decision which is the subject of the

petition is Eastway Construction Corp. v.

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Ee a a ee eee

City of New York ("Eastway III"), 821 F.2d

121 (2d Cir. 1987) (reprinted in the

Appendix to the Petition at page Al). In

that decision, the majority held that the

District Court erred in awarding petitioners

$1000 in attorney's fees under 42 U.S.C.

§1988 and Fed. R. Civ. P. 11. The majority

held that the fee award should be $10,000.

However it did not explain why $10,000 was

preferable to $1,000 or to the lodestar figure

of $52,912.50. The majority explicitly

disavowed any reliance on the factors that

the District Court relied on in reducing the

fee to $1000. Thus, the majority said,

"Without necessarily endorsing the pertinence

of each factor [relied on by the District

Court Judge], we agree with his general

conclusion that a fee substantially less than

the lodestar amount is permissible”. (A11)

(emphasis added). The majority did not

indicate which, if any, of the factors relied

on by the District Court formed the basis of

its decision.

The dissent disagreed with the

majority's unexplained award of an arbitrary

figure which had no relationship to the

lodestar. (A17-A27).

In their brief to this Court,

respondents misrepresent the decision in

Eastway III in two ways. First, their brief

makes no reference to the vigorous and well

reasoned dissent. Respondents' brief reads

as if the dissent does not exist. Second,

and more importantly, respondents pretend

that the majority in Eastway III relied on

and adopted the District Court's decision

even though the majority increased the

award by a factor of 10 and disavowed

reliance on any of the District Court's

factors. Respondents quote a passage from

the majority decision at page 34 of their

brief in support of this position. This

SPS USD BIST OS A TA GS ROR PR ee BD ea RE ne eee

quotation is very misleading because _ the

ellipsis masks the following critical phrase:

"Without necessarily endorsing the pertinence

of each factor [relied on by the District

Court] ..." (All).

It should be noted that petitioners are

not alone in believing that the majority

opinion in Eastway III fails to explain the

factors on which the majority relied in fixing

the award at $10,000 and hence is confusing

and provides no guidance to other courts.

One commentator has said, "[T]he 2d Circuit

simply increased the fee from $1,000 to

$10,000 ..., without any discussion or

suggested criteria as to how or why Judge

Weinstein's award was an_— abuse. of

discretion." Lawrence M. Greenberg, "The

Rule 11 Debate, Circuit Gives No Guidance

in Eastway,” National Law Journal,

September 14, 1987, page 19, col. 4, at page

22, col. 1.

2. Respondents

misrepresent

the petitioners’

position.

Throughout their brief, respondents

misrepresent petitioners' position and state

that petitioners are arguing that, whenever

a litigant is to receive a_ reasonable

attorney's fee, the award must always be the

lodestar. That is not petitioner's position.

Petitioner's position is that the lodestar is |

presumptive. ' the measure of a _ reasonable

fee award. This presumption may be

rebutted if evidence is submitted which will

justify a lesser or greater award, but a

court, in awarding a greater or lesser

award, must articulate its reasons for doing

so. See, Munson vy. Friske 754 F.2d 683,

697 (7th Cir. 1985) ("[a] court must offer

some articulation of the reasons supporting

the amount of its award [citation

omitted]."); Murphy v. Kolovitz, 635 F.2d

662, 663-664 (7th Cir. 1981) (since a

prevailing plaintiff in a civil rights suit is

presumptively entitled to an award of

attorney's fees, a district court must

articulate the special circumstances which

warrant a denial of fees when it denies fees

to such a plaintiff).

In Eastway III, the majority did not

explain why it was awarding petitioners less

than 20% of the lodestar. Given the decision

below, petitioners cannot challenge the

majority's reasons for reducing the award

because it did not articulate them. |

Therefore, we argue that the majority below

. If the majority had relied on the District

Court's analysis, petitioners would argue, as

we argued before the Second Circuit, that

this analysis should be rejected because some

factors used by the District Court were

improper, others were given too much

weight, and as to others, no evidence was

taken by the Court to justify its

conclusions.

erred in not giving its reasons for diverging

from the lodestar by 80%.

3. Respondents

misrepresent the

case law in_ this

area.

In our Petition to this Court, we

argued that Hensley v. Eckerhart, 461 U.S.

424 (1983), and its progeny, establish that

the lodestar is presumptively the measure of

a reasonable attorney's fee and a court

should not diverge from the lodestar unless

it can articulate a very good reason for

doing so. (Petition, pp. 32-38).

Respondents contend that these cases hold

that the lodestar is merely an _ "initial

estimate" or "first step" in computing a fee.

(Resp. br., pp. 27-31). The fact that

respondents are quite clearly wrong is

demonstrated by the following passages from

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, U.S. :

106 S. Ct. 3088, 3098, (1986):

We further refined

our views in Blum_y.

Stenson, 465 U.S. 886,

104 S.Ct. 1541, 79

L.Ed.2d 891 (1984).

Blum restated that the

proper first step in

determining a reasonable

attorney's fee is to

multiply "the number of

hours reasonably

expended on the

litigation times a

reasonable hourly rate."

Id., at 888, 104 S.Ct.,

at 1544. We emphasized,

however, that the figure

resulting from this

calculation is more _ than

a mere “rough guess" or

initial approximation of

the final award to be

made. Instead we found

that "[w]hen... the

applicant for a fee has

carried his burden of

showing that the claimed

rate and number . of

hours are_ reasonable,

the resulting product is

presumed to be_ the

reasonabie fee" to which

counsel is entitled. Id.,

at 897, 104 S.Ct., at

1548 (emphasis added).

[Emphasis aaded].

ss Seer ma

Blum also __ limited

the factors which a

district court may

consider in determining

whether to make

adjustments to the

lodestar amount.

Expanding on our earlier

finding in Hensley that

many of the Johnson

factors "are subsumed

within the initial

calculation" of the

lodestar, we specifically

held in Blum that the

"novelty [and]

complexity of the

issues," "the special

skill and experience of

counsel," the "quality of

representation," and the

"results obtained" from

the litigation are

presumably fully

reflected in the lodestar

amount, and thus cannot

serve as_ independent

bases for increasing the

basic fee award. Id., at

898-900, 104 S.Ct., at

1548-1550. Although

upward adjustments of

the lodestar figure are

still permissible, id., at

901, 104 §.Ct., at 1550,

such modifications are

proper only in certain

"rare" and "exceptional"

cases, supported by

both "specific evidence"

on the record and

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—————————————————

detailed findings by the

lower courts. See Id.,

at 898-901, 104 S.Ct., at

1548-1550.

A strong pre-

sumption that the

lodestar figure -_ the

product of reasonable

hours times a reasonabie

rate - represents a

"reasonable" fee is

wholly consistent with

the rationale behind the

usual fee shifting

statute, including’ the

one in the present case.

[Emphasis added].

t t *

The foregoing clearly shows that this

Court has held that the lodestar is more

than just a starting point for the calculation

of a fee. Since this Court has held that

there is a "strong presumption,” id., that

the lodestar is a reasonable fee, the majority

in Eastway III acted contrary to principles

established by this Court in awarding

petitioners only a fraction of the lodestar

without articulating its reasons for so doing.

-ll-

’

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE

GRANTED.

Respectfully submitted,

PETER L. ZIMROTH,

Corporation Counsel of

the City of New York,

Attorney for Petitioners.

LEONARD J. KOERNER, *

FRED KOLIKOFF,

of Counsel.

*Counsel of Record

October 2, 1987

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