Appendix — Chambless v. Masters, Mates & Pilots Pension Plan
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89-1568
No. JOSEPH F. SPAMIOL, JR. ff
IN THE
Supreme Court of the United States
OcToBerR TERM, 1989
ARTHUR CHAMBLESS and
MILDRED H. CHAMBLESS,
Petitioners.
— against —
MASTERS, MATES & PILOTS PENSION PLAN, et al..
Respondents
APPENDIX TO A PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ARTHUR M. WISEHART
Counsel of Record
WISEHART & KOCH
Attorneys for Petitioners
25 West 43rd Street
New York, New York 10036
(212) 730-0044
Of Counsel:
Russe__ G. PELTON
TABLE OF CONTENTS FOR APPENDIX >
age
Decision of the United States Court of Appeals for
the Second Circuit dated September 12, 1989 .. A-l
Order of the United States Court of Appeals for
the Second Circuit dated February 8, 1990
(recalling mandate, expunging order issued on
October 25, 1989, and issuing new order
denying appellant's petition for rehearing nunc
pro tunc, and granting appellants 60 days
within which to petition for a writ of
I 5 oy oo ed ee re ee ee A-18
Mandate of the United States Court of Appeals
for the Second Circuit dated January 19, 1990 . A-2]
Decision of the United States Court of Appeals for
the Second Circuit dated October 25, 1989
(denying petition for rehearing).............. A-23
Amended Judgment of the United States District
Court for the Southern District of New York
dated January 11, 1989, entered on the District
Court docket on January 12, 1989 (without
eT > ee ee A-25
Endorsement Order of the United States District
Court for the Southern District of New York
dated October 19, 1988 ..................... A-27
Opinion and Order of the United States District
Court for the Southern District of New York
dated September 16, 1988 ................... A-28
Opinion and Order of the United States District
Court for the Southern District of New York
ee i I 6 chaos coe Be ee aed oh aoe es A-44
Decision of the United States Court of Appeals for
the Second Circuit dated April 6, 1987........ A-76
Page
Upinion and Order of the United States District
Court for the Southern District of New York
Enhancement of Endorsement of the United
States District Court for the Southern District
t New York dated April 22, 1986 (original not
reproducible A-92
Der t the United States Court of Appeals for
the Second Circuit dated August 28. 1985 A-93
mndorsement Order of the United States District
he Southern District of New York
lated November 30. 1984 A-115
t 1OTSE ent Order of the [| nited States District
( rt tor the Southern District of New York
lated October 26, 1984 4-117
Judgment of the United States District Court {
the Southern District of New York dated
{) + eT a 4 l i54 \ l j
De 1OI t the [ nited States Distri t Court tor
Order of the United States Court of Appeals for
. . . :
+ ‘ + 4 + | r 4
ne S¢é I ( iT ¢ ] Ualec Mar “2 Lon
} , r+ y + ‘ ++
l¢ Ya a appilca I ra rne
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"
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-r | a : | a |
e Se Circuit dated May 20. 198
| 1] a ’ ++
rT) r - .
l¢ ing appellants applicati r a €
Page
Affidavit of John W. Whittlesey dated November
13, 1987 (including Exhibit A: Attachments t
affidavit by Edgar Pauk, attorney for plaintiffs,
as contained in the Joint Appendix in Miele 1
New York States Teamsters Conference Pension
& Retirement Fund, No. 81-0084, pp
JA-156-67 (E.D.N.Y.) dated February 11, 198¢
surveying attorney fee lodestar rates A-140
Excerpts from Plaintiffs’ Application for
Attorney's Fees, Costs, And Expenses, dated
August 17, 1987 (without exhibits 4-163
Excerpts from Affidavit of Arthur M. Wisehart
dated November 13, 1987 4-167
Affidavit of Arthur M. Wisehart dated August 3
1988 (including Exhibit A: Affidavit of
Katherine Raymond in Sokolowski v. Aetna
Life <& Casualty Co., No. 84 Civ. 4801 (RWS A-]7-
ye
A-]
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
—>—
Nos. 1071, 1223—August Term, 1988
(Argued May 9, 1989 Decided September 12, 1989)
Docket Nos. 88-7892, 88-7928
a oe
ARTHUR M. CHAMBLESS and MILDRED H. CHAMBLESS,
Plaintiff-Appellants, Cross-Appellees,
—) —
MASTERS, MATES & PILOTS PENSION PLAN, STEPHEN
P. MAHER, Administrator of the Masters, Mates &
Pilots Pension Plan, C.J. BRACCO, RICHARD M. CAS-
SELBERRY, MICHAEL DI! PRISCO, E. GRAS, GEORGE
GROH, JUSTIN GROSS, JAMES R. HAMMER, JAMES J.
HAYES, MARTIN F. HICKEY, CHARLES JESS, FRAN-
CIS E. KYSER, CHARLES LANDRY, ORION A. LAR-
SON, ROBERT J. LOWEN, LLOYD MARTIN, J. ERIC
MAY, DAVID MERRITT, THOMAS E. MURPHY,
HENRI L. NEREAUX, WILLIAM OTT, MARTIN PECIL,
FRANKLIN J. RILEY, JR., WILLIAM I. RISTINE, A.C.
SCOTT, CAPTAIN JOHN SMITH, RUPERT SORIANO,
ERNEST SWANSON, MICHAEL SWAYNE, ALLEN TAY-
LOR, NICHOLAS TELESMANIC, KENNETH P. WEN-
THEN, C.E. WITCOMB, in their fiduciary capacity as
Trustees of the Masters, Mates & Pilots Pension Plan,
Defendants-Appellees, Cross-Appellants.
a
A-2
Before:
KEARSE, CARDAMONE, and PIERCE,
Circuit Judges.
> an
Plaintiff-appellants, cross-appellees, Arthur M.
Chambless and Mildred H. Chambless, appeal the amount
of attorney’s fees their counsel received pursuant to the
September 16, 1988 judgment and October 19, 1988
endorsement order of the United States District Court for
the Southern District of New York (Carter, J.).
Defendants-appellees Master, Mates & Pension Plan, its
administrators and trustees, cross-appeal the district
court’s July 20, 1988 order which awarded plaintiffs
actuarially-adjusted pension benefits. We affirm the
amount of attorney’s fees with the exception of paralegal
fees. We reverse the award of the de facto retroactive pen-
sion benefit and remand for an award of the correct
amount of benefits, and for an award of paralegal fees
consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
a
ARTHUR M. WISEHART, New York, New
York (Russell G. Pelton, Wisehart &
Koch, New York, New York, of counsel),
for appellants.
BETTINA B. PLEVAN, New York, New York
(Joseph Baumgarten, Proskauer Rose
A-3
Goetz & Mendelsohn, New York, New
York, of counsel), for appellees.
>
CARDAMONE, Circuit Judge:
The litigation that brings this appeal before us began
nine years ago in 1980. The case has wended its way into
our Court twice before. On this third visit, two over-
arching issues are presented: Whether the district court’s
award of actuarially-adjusted benefits is the equivalent of
an award of retroactive benefits, inconsistent with our
prior ruling in this case; and, whether the district court
abused its-discretion in calculating the amount of attor-
ney’s fees that plaintiffs’ counsel may recover.
With respect to the first issue, we earlier ruled that
appellant was not entitled to recover retroactive benefits.
On remand, the district court awarded appellant
actuarially-adjusted benefits, which amounts to exactly
the same thing. The attorney’s fees issue, attendant upon
the benefits suit, has like Frankenstein’s monster taken on
a life of its own and threatens to become a second major
litigation, despite the Supreme Court admonishment
against such happening. See Hensley v. Eckerhart, 461
U.S. 424, 437 (1983). This is the sixth opinion to be pub-
lished in this case; we think it should be the last.
I FACTS
In light of the above, we may safely assume familiarity
with the factual background and prior proceedings, and
set forth only those facts necessary to identify the parties,
the dispute and its procedural posture.
SR pee eersane Nes maracarrmernnaman noses nate ee en
RS ee
A-4
The appellant is Arthur M. Chambless, a licensed deck
officer in the United States Merchant Marine. He became
a member of the International Organization of Masters,
Mates & Pilots (union) in 1944. The union negotiated a
multi-employer-funded pension plan (Plan) for deck offi-
cers working for shipping companies that are signatories
to the Plan. The Plan, its administrators, and its trustees
are the remaining defendants.
Chambless complained that the union hastened the early
retirement of its older members by assigning them to low-
paying jobs. He sought early retirement from the union in
April of 1977 and went to work for a ship that was not
owned by a signatory to the Plan. As a result, the union
informed him that he was no longer in good standing. Cit-
ing newly enacted Plan Amendments 46 and 47, the Plan’s
administrator notified Chambless that because he contin-
ued to work for a non-signatory ship, he had not truly
retired, was not entitled to a union pension at that time,
and could not receive his pension under the Plan until 1986
when he would be 65 years old.
The Plan provides monthly wage-related retirement
benefits for employees with service of 30 years or longer
equal to the greater of either $470 or 60 percent of pay.
Pay is defined by looking to the highest-paying five con-
secutive years in the 10 years immediately preceding retire-
ment. The Plan therefore informed Chambless that when
he retired, his monthly benefit would be $470 per month
rather than the approximately $970 per month he would
have received if he had been allowed to retire in 1977,
when his pension would have been calculated using 1967-
77 as base years—the period when his income was at its
zenith.
The tortuous procedural history of this case began in
1980 when Chambless and his wife as plaintiffs brought
suit against defendants, inter alia, the union, the Plan, and
Chambless’ former employers. Essentially, the complaint
alleged that because Chambless had worked for a non-
Plan ship, the Plan had discriminatorily forfeited his pen-
sion, causing him to receive $470 at age 65 rather than
$920 at age 55. Chambless asserted a plethora of claims
including violations of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1001 ef seg. (1982)
(ERISA), antitrust violations, waiver and estoppel, breach
of duty of fair representation, infliction of emotional dis-
tress, and breach of fiduciary duty.
Many of appellant’s claims and several named defen-
dants were dismissed following cross-motions for sum-
mary judgment. See Chambless v. Masters, Mates & Pilots
Pension Plan, 571 F. Supp. 1430, 1459-60 (S.D.N.Y.
1983) (Chambless I). At trial, several more causes of
action were dismissed at the close of plaintiffs’ case, leav-
ing only the issue of whether the Plan trustees, in applying
Amendment 47 of the Plan, had violated ERISA when
they caused Chambless to forfeit his pension until age 65.
Ruling that the postponement and reduction of Chamb-
less’ benefits was arbitrary and capricious, the district
court declared the forfeiture a nullity. It directed the trust-
ees to approve Chambless’ application for retirement—
once he ceased working in the maritime industry—and to
‘‘treat the application as if it had been made in 1977 and
grant him a wage related pension based on his 1967-1977
employment record.’’ 602 F. Supp. 904, 913 (S.D.N.Y.
1984) (Chambless IT). We affirmed and remanded ‘‘for a
determination of the benefits which Chambless would
have received in 1977.’’ 772 F.2d 1032, 1043 (2d Cir.
1985), cert. denied, 475 U.S. 1012 (1986) (Chambless ITT).
$$$
A-6
Chambless’ counsel then moved for attorney’s fees pur-
suant to § 502(g) of ERISA, 29 U.S.C. § 1132(g). The dis-
trict court denied the request on the grounds that
plaintiff's ‘‘vexatious[ ] and wasteful[ ] litigation strat-
egy’’ outweighed his success on the ERISA claim. It also
denied plaintiff’s motions to amend the judgment to state
the amount of his benefits. No. 80 Civ. 4258 (RLC)
(S.D.N.Y. June 23, 1986). We affirmed the district court’s
refusal to amend its judgment before the benefits had
commenced on the grounds that the motion was prema-
ture, but reversed and remanded for the district court to
‘‘determine and award a reasonable fee for the time spent
on Chambless’ vindicated ERISA claim.’’ 815 F.2d 869,
872 (2d Cir. 1987) (Chambless JV). Further, we stated that
since Chambless had, on September 1, 1986, begun to
receive his benefits, any dispute he might have regarding
the amount of his pension was ripe for presentation to the
district court ‘‘to determine whether Chambless is now
receiving benefits in the amount to which he is entitled.’’
Id. at 873.
That brings us to the decisions that we now review. As
the opinion of the district court with which we disagree is
unpublished, we set forth its conclusions in some detail.
See Chambless v. Master, Mates & Pilots Pension Plan,
No. 80 Civ. 4258 (S.D.N.Y. July 20, 1988) (Carter, J.)
(Decision). The district court awarded Chambless an
actuarially-adjusted pension in the amount of $2,689.02
per month. It also awarded plaintiff's counsel $416,191.30
in attorney’s fees for work related to the claim upon which
Chambless had prevailed.
Initially, Chambless had characterized his complaint as
a ‘‘seamless web,’’ see Chambless IV, 815 F.2d at 872, and
had requested fees of approximately $1.5 million for all
A-7
legal work. Plaintiff then reduced this request by 25 per-
cent to eliminate such claims as were clearly unrelated to
the theory upon which he had prevailed. In calculating the
fee, the district court found some of the submitted time
sheets cryptic to the point of uselessness and accordingly
reduced plaintiff’s requested fee by 15 percent to ‘‘ensure
that the fee award excludes inadequately documented
expenditures of time.’’ But Judge Carter concluded that
the fee request was still excessive; Chambless’ voluntary 25
percent reduction did not go far enough to eliminate work
on claims unrelated to the favorable award. The district
judge therefore reduced the fee by an additional 15 per-
cent. As a result, Chambless’ initial fee application was
reduced by a total of 55 percent: 25 percent by Chambless
himself, and court reductions of 15 percent for inadequate
documentation and 15 percent to exclude time spent on
unrelated claims.
To calculate an hourly rate for Chambless’ attorneys
that reflected both inflation and delayed payment because
of the protracted history of the case, the district court
divided the litigation into two time periods subject to dif-
ferent hourly rates, but declined to add interest to the
award on the grounds that its rates for the earlier hours
were generous enough to compensate for the time that
elapsed since the services had been rendered. The hourly
rates for both time spans were what the district court
determined to represent the market rate for small to
medium-sized firms. In addition, the fee calculation reim-
bursed Chambless’ attorneys for the payroll cost of para-
legals and law clerks rather than their customary billable
hourly rate, which plaintiff had sought. This portion of
the award was similarly reduced by 30 percent for inade-
quate documentation and unrelated claims.
A-8
Turning to Chambless’ pension benefits, the court
denied his request for post-1977 cost-of-living adjustments
on the grounds that the Plan allows such increases only to
actual benefit recipients. As a result, plaintiff could not
receive cost-of-living adjustments for years before he
retired when he was not yet a recipient. Significantly, the
district court accepted Chambless’ argument that his bene-
fits should be actuarially adjusted to reflect the fact that
his life expectancy was shorter when he began receiving
benefits in 1986 than when he attempted to retire in 1977.
Such an increase, the district court concluded, was not the
functional equivalent of retroactive benefits. The district
court therefore set Chambless’ benefits at $2,689.02, or
approximately three times the amount he would have
received in 1977.
After plaintiff had accepted the district court’s invita-
tion to make certain other submissions, including a sup-
plemental fee application, the district court, upon
reargument, fine-tuned plaintiff's fee award to
$451,990.50, but rejected all other arguments. 697 F.
Supp. 642, 649-50 (S.D.N.Y. 1988) (Chambless V) (Sep-
tember 16, 1988 judgment). Plaintiff’s second supplemen-
tal fee application was denied in an endorsement order of
October 19, 1988. The judgment was amended on January
11, 1989 to allow plaintiffs to recover their costs, and on
March 15, 1989 the district court denied defendants’
motion to delete plaintiff’s cost award from the amended
judgment. Chambless appeals the amount of attorney’s
fees awarded his counsel. The union cross-appeals the
amount of the Chambless’ actuarially-adjusted pension
benefits. We affirm Judge Carter’s award of attorney’s
fees, except for the amount granted for paraprofessional
services, and reverse the pension benefits award. We dis-
cuss first the pension award and then the attorney’s fees
award.
II DISCUSSION
A. Chambless’ Benefits
This discussion assesses the propriety of the district
court ‘‘actuarially adjusting’’—more than tripling—
Chambless’ monthly benefits from $859.43 to $2,689.02.
It is axiomatic that once a court of appeals decides a
question, the district court must follow that ruling upon
remand. See Doe v. New York City Dept. of Social Servs.,
709 F.2d 782, 788 (2d Cir.), cert. denied, 464 U.S. 864
(1983). Similarly, under the doctrine of law of the case we
too must generally adhere to the earlier panel’s ruling. See
id. at 789 (collecting cases). The clarity of our prior hold-
ing in Chambless III speaks for itself: ‘‘[T]he district court
was correct in not awarding retroactive benefits but
instead requiring the Plan to pay Chambless, upon his
retirement, the monthly amount he would have received
had he retired in 1977.’’ 772 F.2d at 1042 (emphasis
added). Because the district court upon remand bestowed
retroactive benefits or their equivalent, that judgment
must be reversed.
In its July 20 opinion, the district court recognized ‘‘the
undisputed fact’’ that Chambless may not receive retroac-
tive benefits. Nonetheless, it awarded the economic equiv-
alent, labeling it ‘‘actuarial adjustment’’ rather than
“‘retroactive benefit,’’ as if the two were distinct, like
apples and oranges. It attempted to sharpen its distinction
by noting that an actuarial adjustment
would not alter the total amount of pension benefits
to which [Chambless] is entitled over the course of his
A-10
expected lifetime. It would merely recognize that that
amount will now be payable over a shorter period of
time. Thus, viewed from the perspective of his total
projected lifetime benefits, the adjustment plaintiff
seeks would not increase his benefits.
Decision at 37.
We have no quarrel with the observation that a 65-year-
old has a shorter life expectancy than a 55-year-old. But
the fallacy in the July 20 opinion is its underlying assump-
tion that Chambless was entitled to a set sum—evidently
based on life expectancy—regardless of how long he was
on the Plan’s pension rolls. Based on this erroneous prem-
ise, the district court compensated Chambless believing
that because he would be paid for a shorter period of time,
the amount of each payment should be increased. Cham-
bless has not pointed to, nor have we found, a section of
the Plan regulations that specifically or even implicitly
suggests that claimants must receive a given total amount
of benefits. As Chambless is not entitled to a specific total
sum, obviously no adjustment is necessary to make sure
that he receives such an award.
In addition, the district court erred by focusing on how
and when the benefits were paid to Chambless—
apparently defining ‘‘retroactive benefits’ to mean a lump
sum payment for benefits previously withheld. But the
reason we disallowed retroactive payments had nothing to
do with whether or not they were paid at once. We recog-
nized previously that Plan pensioners cannot receive
retirement benefits until they actually retire; Chambless
did not retire from the maritime industry until 1986. See
Chambless IIT. This was the rationale for denying plaintiff
retroactive payments, defined as payments for the years
1977-86. Payments that in any way compensate Chambless
A-11]
for the years 1977-86 are retroactive benefits—regardless
of how they are labeled—and regardless of whether
Chambless receives them in one lump sum in 1986 or, as
the district court directed, in monthly installments after
1986.
Accordingly, the district court should enter judgment
directing the Plan to provide Chambless with a monthly
benefit of $859.43 per month, the amount he would have
received under the husband and wife pension plan option
had he been allowed to retire in 1977. We affirm Judge
Carter’s ruling that now that Chambless has begun to
receive benefits, he is entitled to whatever cost-of-living
adjustments the Plan has awarded other recipients from
the date of his application in October of 1986. Because the
adjustment to Chambless’ benefits was incorrect, the issue
of whether plaintiff should be awarded interest on that
adjustment is moot.
B. The Amount of Attorney’s Fees
We note at the outset that our scope of review on an
award of attorney’s fees is circumscribed. An assessment
of such an award entails a detailed ad hoc inquiry into the
particular case. See Blanchard v. Bergeron, 109 S. Ct 939,
946 (1989) (‘‘It is central to the awarding of attorney’s fees
. . that the district court judge, in his or her good judg-
ment, make the assessment of what is a reasonable fee
under the circumstances of the case.’’). Having tried the
case, the district court has the best vantage point from
which to assess the skill of the attorneys and the amount of
time reasonably needed to litigate a case. Therefore, its
calculation of attorney’s fees will not be disturbed absent
an abuse of discretion. See, e.g., Hensley v. Eckerhart,
461 U.S. at 437; In re ‘‘Agent Orange’’ Prod. Liab. Litig.,
A-12
818 F.2d 226, 237 (2d Cir.), cert. denied, 108 S. Ct. 289
(1987).
With the exception of reimbursement for paraprofes-
sionals necessitated by a recent Supreme Court case to be
discussed below—rendered after Judge Carter’s opinion—
we cannot say there has been an abuse of discretion.
Hence, Judge Carter’s rulings on attorney’s fees and costs
are affirmed in all other respects for substantially the rea-
sons stated in his exhaustive opinions of July 20, 1988 and
September 16, 1988. But we take this opportunity to adda
few comments.
1. Reimbursement for Paralegals and Law Clerks
The district court awarded appellant’s attorneys the
payroll cost—rather than the customary billing rates—for
paralegals and law clerks who worked on this litigation.
This allowed counsel to break even—but without making a
profit—for its use of paraprofessionals. In focusing on
cost rather than the prevailing market rate, the district
court properly followed our holding in City of Detroit v.
Grinnell Corp., 495 F.2d 448, 473 (2d Cir. 1974), that the
prevailing attorneys ‘‘must be reimbursedfor [paralegals’]
wages even though their time cannot be considered as
input in the fee award determination.”’
Chambless argued that Grinnell was no longer good
law, relying on United States Football League v. National
Football League, 704 F. Supp. 474 (S.D.N.Y. 1989).
Appellant’s assertion of Grinnell’s demise initially
appeared premature, but it subsequently proved prescient.
While this appeal was sub judice, the Supreme Court
decided Missouri v. Jenkins, 57 U.S.L.W. 4735 (U.S. June
19, 1989), under the Civil Rights Attorney’s Fees Awards
Act of 1976, 42 U.S.C. § 1988 (1982). Although this is not
a § 1988 case, the Supreme Court instructs us that the
same standards apply to other fee-shifting statutes where
an award is made to the prevailing party. See Hensley, 461
U.S. at 433 n.7.
In Jenkins the High Court ruled that a reasonable attor-
ney’s fee should be calculated to reimburse paralegals at
market rates rather than cost, where that is the custom of
the local legal community. The Supreme Court noted that
‘*separate billing [for paralegals] appears to be the practice
in most communities today.’’ 57 U.S.L.W. at 4739.
Because it was constrained at the time by Grinnell, the dis-
trict court did not make a finding on whether New York
law firms typically bill paralegals at hourly rates. Accord-
ingly, we must remand for a finding on that issue; if that is
the prevailing practice among New York firms, and direct
the district court to award Chambless’ attorneys reim-
bursements for paralegal time in accordance with Missouri
v. Jenkins.
2. Setting Plaintiffs’ Hourly Rate by Reference to
Small to Medium Firms
After determining the number of hours reasonably
needed to litigate the prevailing case, the district court
under the ‘‘lodestar’’ analysis ascertained a reasonable
rate by which to multiply the number of hours. The
Supreme Court has stated that awards of attorney’s fees
must be calculated according to ‘‘the prevailing market
rates inthe relevant community. . . .”’ Blum v. Stenson,
465 U.S. 886, 895 (1984). Chambless argues that the dis-
trict court violated this mandate when it set the hourly
rates for the lodestar calculation by reference to small to
medium-sized firms. We do not think the above-quoted
A-14
language from Blum v. Stenson compels district courts to
assign the same hourly rate to every law firm in the same
city. On the contrary, under the Blum v. Stenson formula-
tion, the district court must ascertain whether ‘‘the
requested rates are in line with those prevailing in the com-
munity for similar services by lawyers of reasonably com-
parable skill, experience and reputation.’’ Id. at 896 n.11
(emphasis added). Thus, as the district court implicitly rec-
ognized, several market rates may prevail in a given area,
particularly one with as large and diverse a legal commu-
nity as New York City.
The burden was on Chambless to establish his hourly
rate with ‘‘satisfactory evidence—in additior to the attor-
ney’s own affidavits . . . .’’ Jd.; see also Hensley, 461
U.S. at 437. The primary evidence that Chambless pro-
vided on this issue—aside from affidavits of his
attorneys—was an article in the Manhattan Lawyer that
listed billing rate increases for 14 large firms in New York
City, including the firm that represented the union, but
not including Chambless’ firm. The district court found
this evidence ‘‘meager,’’ and properly accorded it fittle
weight. See Miele v. New York State Teamsters Conf.
Pension & Retirement Fund, 831 F.2d 407, 409 (2d Cir.
1987) (district judge may rely in part on his or her own
knowledge of hourly rates charged in community and is
not limited to the submitted evidence of prevailing rates).
Moreover, the Manhattan Lawyer article itself supports
the proposition that smaller firms may be subject to their
own prevailing market rate. See Manhattan Lawyer, May
11, 1987, at 31, col. 1 (‘‘Raising rates has been trickier for
mid-sized and smaller firms because blue-chip clients fre-
quently turn to them thinking they’ll get lower bills.’’). In
light of plaintiff’s proffered evidence, it is hardly surpris-
ing that the district court chose to interject its own knowl-
edge.
3. Fee Parity
We are similarly unpersuaded by Chambless’ demand
for ‘‘fee parity’’ with the Plan’s counsel—a ‘‘large’’ firm,
which was paid under an insurance policy. See Sokolowski
v. Aetna Life & Casualty Co., 670 F. Supp. 1199
(S.D.N.Y. 1987). In essence, appellant contends that his
attorneys should be paid as much as the union’s attorneys.
We agree with the district court that the prevailing market
rate test does not mandate equal fees for opposing coun-
sel. See Chambless V, 697 F. Supp. at 646.
Further, in the circumstances of this case, the fees the
Plan paid its counsel are not particularly helpful in setting
a reasonable rate for Chambless’ attorneys. The two par-
ties had entirely different stakes in the litigation. Chamb-
less brought the suit primarily to recover his own
individual Plan benefits, even though he achieved a
broader effect. The Plan, in contrast, is composed of
numerous participants like Chambless, and it had already
been the defendant in a class action suit that raised issues
analogous to those raised in the instant litigation. See
Sokolowski, 670 F. Supp. at 1201-02. Doubtless the Plan
considered the res judicata potential of Chambless’ com-
plaint when it structured its defense. Accordingly, even
though Chambless’ and the Plan’s attorneys were arguing
about two sides of the same coin, the difference in the
precedential vaiue of the case to their respective clients
could vary markedly and could well justify a divergence
between the fees they charged. See Johnson v. University
College of the Univ. of Ala., 706 F.2d 1205, 1208 (11th
Cir.), cert. denied, 464 U.S. 994 (1983); Mirabal v. Gen-
A-16
eral Motors Acceptance Corp., 576 F.2d 729, 731 (7th
Cir.) (per curiam), cert. denied, 439 U.S. 1039 (1978).
There may be instances when district courts will want to
consider—among the myriad of other factors—the fees
charged by opposing counsel. Cf. Taylor v. Scarborough,
66 F.2d 589, 591 (2d Cir. 1933) (in attorney’s suit for lien
for services rendered,opposing counsel’s fees were persua-
sive though not conclusive). But here, what the Plani’s
counsel charged was irrelevant for calculating a reasonable
fee for Chambless’ attorneys, and it was not an abuse of
the district court’s discretion to decline to match appel-
lant’s attorney’s fees to those of his adversaries.
4. Delay in the Payment of Fees
To spare the parties yet a fourth appeal to this Court,
we acknowledge the observation in Missouri v. Jenkins
that ‘‘an appropriate adjustment for delay in payment—
whether by the application of current rather than historic
hourly rates or otherwise’’ is consistent with the goals of
fee-shifting statutes. 57 U.S.L.W. at 4738. The district
court expressly recognized its duty to consider this factor
of delay. Although it denied plaintiff’s request for inter-
est, it employed hourly rates that were ‘‘ ‘sufficiently gen-
erous ... to ensure that plaintiff will be amply
compensated for all delay.’ ’’ Chambless V, 697 F. Supp.
at 645 (quoting July 20 opinion). The above-quoted lan-
guage from Missouri v. Jenkins suggests that district
courts retain latitude in determining how they will com-
pensate prevailing attorneys for delay.
A-17
{11 CONCLUSION
The award of pension benefits is reversed and the case is
remanded for an award of benefits consistent with this
opinion. The case is also remanded for an award of para-
legal fees consistent with Missouri v. Jenkins. The rulings
on attorney’s fees and costs are otherwise affirmed.
Reversed in part, affirmed in part, and remanded.
A-18
United States Court of Appeals
FOR THE SECOND CIRCUIT
CHAMBLESS,
Plaintiff, Appellant, Cross-Appellee
— against —
MASTERS, MATES & PILOTS,
Defendants, Appellees, Cross-Appellants,
88-7892, 88-7928
Docket Number
NOTICE OF MOTION
state type of motion
to Recall the Mandate and Expunge and Re-Enter the Order De-
nying the Petition for Rehear
MOTION BY: (Name, address and tel. no. of law firm and of attorney in charge
of case)
Arthur M. Wisehart
WISEHART & KOCH
25 West 43d Street, Suite 1114
New York, New York (212) 730-0044
10036
Has consent of opposing counsel:
A. been sought? CL) Yes () No
B. been obtained? C) Yes LJ No
Has service been effected? K) Yes CL) No
Is oral argument desired? CL) Yes CJ No
(Substantive motions only)
A-19
Requested return date:
(See Second Circuit Rule 27(b))
Has argument date of appeal been set:
A. by scheduling order? CO Yes Ci No
B. by firm date of argument notice? () Yes () No
C. If Yes, enter date:
Judge or agency whose order is being appealed:
OPPOSING COUNSEL: (Name, address and tel. no. of law firm and of
attorney in charge of case)
Bettina B. Plevan
PROSKAUER, ROSE, GOETZ & MENDELSOHN
300 Park Avenue
New York, New York 10022
(212) 909-7000
EMERGENCY MOTIONS, MOTIONS FOR STAYS &
INJUNCTIONS PENDING APPEAL
Has request for relief been made
below? LC Yes
(See FR.A.P. Rule 8)
Would expedited appeal eliminate
need for this motion?
If No, explain why not:
C)
Z.
°
LJ
Fr
°
Yes
C)
Will the parties agree to maintain
the status quo until the motion
is heard? CL) Yes () No
Brief statement of the relief requested: to Recall the Mandate and
Expunge and Re-Enter the Order Denying the Petition for
Rehearing.
By: Appearing for: Appellant or Petitioner:
(Signature of attorney) (Name of party) & Plaintiff — Defendant
Appellee or Respondent
/s)/ Arthur M. Wisehart Arthur Chambless ©) Plaintiff ( Defendant
Arthur M. Wisehart January 26, 1990
A-20
ORDER
IT IS HEREBY ORDERED that the motion be and it hereby is
granted and this Court’s mandate heretofore issued on October
25, 1989 denying appellant’s petition for rehearing is recalled and
the said order is expunged. A new order is hereby issued as of
this date denying appellant’s petition for rehearing nunc pro tunc,
and granting appellant’s 60 days from the date of this order to
petition for a writ of certiorari. |
/s) Amalya L. Kearse
/s/ Richard J. Cardamone
/s/ Lawrence W. Pierce
Circuit Judge
A-21
United States Court of Appeals
FOR THE
SECOND CIRCUIT
At a stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the twelfth day of September one thou-
sand nine hundred and eighty-nine.
Present: HON. AMALYA L. KEARSE
HON. RICHARD J. CARDAMONE
HON. LAWRENCE W. PIERCE
Circuit judges,
88-7892, -7928
ARTHUR M. CHAMBLESS and MILDRED H. CHAMBLESS,
Plaintiff-Appellants, Cross-Appellees,
| eres
MASTERS, MATES & PILOTS PENSION PLAN, STEPHEN P.
MAHER, Administrator of the Masters, Mates & Pilots Pension
Plan, C.J. BRACCO, RICHARD M. CASSELBERRY,
MICHAEL DI PRISCO, E. GRAS, GEORGE GROH, JUSTIN
GROSS, JAMES R. HAMMER, JAMES J. HAYES, MARTIN F.
HICKEY, CHARLES JESS, FRANCIS E. KYSER, CHARLES
LANDRY, ORION A. LARSON, ROBERT J. LOWEN, LLOYD
MARTIN, J. ERIC MAY, DAVID MERRITT, THOMAS E.
MURPHY, HENRI L. NEREAUX, WILLIAM OTT, MARTIN
PECIL, FRANKLIN J. RILEY, JR., WILLIAM I. RISTINE,
A.C. SCOTT, CAPTAIN JOHN SMITH, RUPERT SORIANO,
ERNEST SWANSON, MICHAEL SWAYNE, ALLEN TAYLOR,
NICHOLAS TELESMANIC, KENNETH P. WENTHEN, C.E.
WITCOMB, in their fiduciary capacity as Trustees of the Masters,
Mates & Pilots Pension Plan,
Defendants-Appellees, Cross-Appellants.
A-22
Appeal from the United States District Court for the Southern
District of New York.
This cause came on to be heard on the transcript of record
from the United States District Court for the Southern District
of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered,
adjudged and decreed that the Order of said District Court be
and it hereby is affirmed in part, reversed in part and remanded
to the said District Court for further proceedings in accordance
with the opinion of this Court.
ELAINE B. GOLDSMITH,
Clerk
/s/ Edward J. Guardaro
By: EDWARD J. GUARDARO,
Deputy Clerk
ISSUED AS MANDATE: JANUARY 19, 1990
A-23
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals, in and
for the Second Circuit, held at the United States Courthouse.
in the City of New York, on the 25th day of October one thou-
sand nine hundred and eighty-nine.
ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS,
Plaintiffs-Appellants, Cross-Appellees,
—against—
MASTERS, MATES & PILOTS PENSION PLAN, STEPHEN P
MAHER, Administrator of the Masters, Mates & Pilots Pension Plan,
CJ. BRACCO, RICHARD M. CASSELBERRY, MICHEAL DI
PRISCO, E. GRAS, GEORGE GROH, JUSTIN GROSS, JAMES
R. HAMMER, JAMES J. HAYES, MARTIN F. HICKEY,
CHARLES JESS, FRANCIS E. KYSER, CHARLES LANDRY,
ORION A. LARSON, ROBERT J. LOWEN, LLOYD MARTIN,
J. ERIC MAY, DAVID MERRITT, THOMAS E. MURPHY, HENRI
L. NEREAUX, WILLIAM OTT, MARTIN PECIL, FRANKLIN
J. RILEY, JR., WILLIAM I. RISTINE, A.C. SCOTT, CAPTAIN
JOHN SMITH, RUPERT SORIANO, ERNEST SWANSON,
MICHAEL SHAYNE, ALLEN TAYLOR, NICHOLAS
TELESMANIC, KENNETH P. WENTHEN, C.E. WITCOMB. in
their fiduciary capacity as Trustees of the Masters, Mates & Pilots
Pension Plan,
Defendants-Appellees, Cross-Appellants.
A petition for rehearing containing suggestion that the action
be reheard in banc having been filed herein by counsel for the
Appellants-Cross-Appellees ARTHUR CHAMBLESS and
MILDRED H. CHAMBLESS
Upon consideration by the panel that heard the appeal, it is
Ordered that said petition for rehearing is DENIED.
A-24
It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular active
service and to any other judge that heard the appeal and that
no such judge has requested that a vote be taken thereon.
/s/ Elaine B. Goldsmith
Elaine B. Goldsmith
Clerk
A-25
AMENDED JUDGMENT, SIGNED BY THE HON.
ROBERT L. CARTER ON JANUARY 1) 1989,
ENTERED ON THE DISTRICT COURT DOCKET
ON JANUARY 12, 1989 (WITHOUT EXHIBITS A
THROUGH C)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARTHUR CHAMBLESS and
MILDRED H. CHAMBLESS,
Plaintiffs,
— against —
MASTERS, MATES & PILOTS
PENSION PLAN, et al.,
Defendants.
80 Civ. 4258 (RLC)
AMENDED JUDGMENT
#89,0075
This action having been tried by the Court, Hon. Robert L.
Carter, District Judge, presiding, on November 16 through
November 23, 1983; and the Court having duly made and filed
findings of fact and conclusions of law pursuant to Rule 52 of
the Federal Rules of Civil Procedure; and a judgment having been
entered herein on October 30, 1984; and the United States Court
of Appeals for the Second Circuit having remanded the case as
reported in 815 F.2d 869; and plaintiffs having moved for an
amendment of the judgment and having applied for an award
of attorney's fees and costs; and the Court having issued its decisions
and orders thereon dated July 20, 1988 (Exhibit A), September
16, 1988 (Exhibit B) and October 19, 1988 (Exhibit C); it is
ORDERED AND ADJUDGED that
(a) the action forfeiting Arthur Chambless’ pension rights until
he attains age 65 is declared a nullity;
A-26
(b) Chambless, having ceased work in the maritime industry
within six months of the Supreme Court’s February 24, 1986
denial of his petition for a writ of certiorari and having certified
to the trustees on or about August 5, 1986 that he had done so,
is entitled to receive a pension in the amount of $2,689.02 per
month from October 1, 1986 through December 31, 1987, and
in the amount of $2,769.69 per month commencing January 1,
1988, together with any future cost-of-living adjustments ap-
plicable to similarly-situated pensioners under the Plan
Regulations;
(c) the defendant Pension Plan shall pay Chambless the sum
of $48,173.16, the difference between the pension benefits actually
paid and the monthly pension amounts specified in paragraph
(b) above, for the period October 1, 1986 through November 30,
1988, in full satisfaction of its obligation to make pension benefit
payments to Chambless for the period October 1, 1986 through
November 30, 1988;
(d) defendants shall pay a total of $451,990.51 as an award
for plaintiffs’ attorney's fees, and plaintiffs are entitled to their
costs.
(e) all other claims and causes of action asserted on behalf of
plaintiffs are dismissed.
(f) the Court retains jurisdiction of the parties and this cause
of action for the purpose of enforcing the judgment and making
such further orders as are necessary.
Dated: New York, New York
January 11, 1989
/s) Robert L. Carter
U.S.D.]J.
TO: Wisehart & Koch
25 West 43rd Street
New York, New York 10036-7496
Attorneys for Plaintiffs
THIS DOCUMENT WAS ENTERED
ON THE DOCKET ON 1-12-89
A-27
ENDORSEMENT ORDER BY THE HON. ROBERT
L. CARTER REJECTING PLAINTIFFS’ SECOND
SUPPLEMENTAL APPLICATION, DATED OC-
TOBER 19, 1988
ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS —
against — MASTERS, MATES & PILOTS PENSION PLAN, et al.
80 Civ. 4258 (RLC)
ENDORSEMENT
In what I hoped was my final opinion on this matter, I stated
that “[nJo additional time will be allowed for further submis-
sions.” Chambless v. Masters, Mates ¢> Pilots Pension Plan, No.
80 Civ. 4258 (RLC), slip. op. at 8 (S.D.N.Y. September 16, 1988)
(Carter, J.). This could only have been interpreted as meaning
that no further submissions would be ailowed.
Accordingly, plaintiffs’ Second Supplemental Application sub-
mitted with a covering letter dated October 7, 1988, is rejected
and will not be considered.
The filing of the second supplemental application is puzzling
since it was filed on the same day that plaintiffs filed a notice
of appeal from the opinion and order of the court of September
16, 1988. Having filed the notice of appeal, it would normally
be assumed that all matters are before that court. At any rate,
with the September 16, 1988 opinion, the case was closed.
IT IS SO ORDERED.
Dated: New York, New York
October 19, 1988
/s/ Robert L. Carter
ROBERT L. CARTER
US.D J.
A-28
OPINION AND ORDER OF THE HON. ROBERT L. CARTER,
DATED SEPTEMBER 16, 1988
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARTHUR M. CHAMBLESS and
MILDRED H. CHAMBLESS,
Plaintiffs,
— against —
MASTERS, MATES & PILOTS PENSION PLAN, et al.,
Defendants.
sci ia elabaeveedneneenieceieeiebitiaitiiadaiidiasiiatedidieeinadiaiatniiamniiiiate x
OPINION
80 Civ. 4258 (RLC)
APPEARANCES
WISEHART & KOCH
Attorneys for Plaintiffs
25 West 43d Street
Suite 1114
New York, NY 10036
ARTHUR M. WISEHART
JOHN W. WHITTLESEY
Of Counsel
PROSKAUER ROSE GOETZ & MENDELSOHN
Attorneys for Defendants
300 Park Avenue
New York, New York 10022
BETTINA B. PLEVAN
JOSEPH BAUMGARTEN
KATHERINE RAYMOND
Of Counsel
CARTER, District Judge
A-29
Heedless of the admonition that “[a] request for attorney's
fees should not result in a second major litigation,” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983), plaintiffs move to reargue
numerous aspects of the court’s opinion of July 20, 1988. That
opinion, with which familiarity is assumed, awarded plaintiffs
$416,191.30 in attorney’s fees and ensured Arthur Chambless an
actuarially adjusted monthly pension benefit of $2,689.09. See
Chambless v. Masters, Mates ¢> Pilots Pension Plan, No. 80 Civ.
4258 (RLC), slip op. (S.D.N.Y. July 20, 1988) (Carter, J.)
(hereinafter “July 20 opinion”). All other motions and requests
before the court were denied. Plaintiffs were given 20 days to
document their application for costs and expenses and cost-of-
living adjustments.
Plaintiffs now request a host of modifications to that deci-
sion. They also seek findings of fact pursuant to Rule 52(b),
F.R.Civ.P., and a supplemental award of fees totalling over
$90,000. Defendants cross-move for reargument of the acturial
adjustment!
I. Motions to Reargue
“The only proper ground on which a party may move to
reargue an unambiguous order is that the court has overlooked
‘matters or controlling decisions’ which, had they been con-
sidered, might reasonably have altered the result reached by the
court.” Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y.
1988) (Carter, J.) (quoting Bozsi Lid. Partnership v. Lynott, 676
F. Supp. 505, 509 (S.D.N.Y. 1987) (Carter, J.)); see United States
v. Intl Business Machines Corp., 79 F.R.D. 412, 414 (S.D.N.Y.
1978) (Edelstein, J.). A motion to reargue “is not an occasion to
reassert arguments previously raised, but dismissed by the court.”
Morgan Guar. Trust Co. of New York v. Garrett Corp., 625 F.
Supp. 752, 756 (S.D.N.Y. 1986) (Goettel, J.); see Caleb & Co. v.
' Defendants’ request that the July 20 decision be modified to exclude fees
for Paula C. Rowe's services performed before her admission to the Bar is ad-
dressed separately below. See Baumgarten Afft, 4 1.
A-30
E. I. DuPont de Nemours ¢> Co., 624 F. Supp. 747, 748 (S.D.N.Y.
1985) (Sweet, J.). As shown below, neither side is entitled to the
modifications sought.
A. Defendants’ Motion
Defendants seek to reargue the court’s decision to grant
Chambless an actuarially adjusted pension. They maintain that
the court must have overlooked the Pension Plan’s lawful
“retirement-defined” rule, which provides for the suspension of
benefits furing periods of employment in the maritime industry.
Chambless did not comply with the rule until August, 1986. The
actuarial adjustment, defendants argue, therefore conflicts with
that rule and with previous court holdings by according plain-
tiff a pension before he was fully retired.
Defendants’ motion is no more than a recapitulation of the
argument that an actuarial adjustment is tantamount to an
award of retroactive beneifts.? The court squarely addressed that
issue in the July 20 opinion. “The issue presented is whether
an actuarially adjusted pension would be the functional
equivalent of an award of retroactive benefits. The court finds
that it would not be.” Chambless v. Masters, Mates ¢& Pilots Pen-
sion Plan, No. 80 Civ. 4258 (RLC), slip op. at 37 (S.D.N.Y. July
20, 1988). The underpinnings of that conclusion were amply
explained. Defendants have not presented overlooked “matters
or controlling decisions” that might reasonably be expected to
require a different conclusion. Ashley Meadows Farm, Inc. v.
Am. Horse Show Ass’n, 624 F. Supp. 856, 857 (S.D.N.Y. 1985)
(Sweet, J.). Their motion for reargument is denied.
? Defendants write: “Chambless was thus not entitled to pension benefits be-
tween 1977 and 1986 (when he finally did retire). For the same reason, he
is not entitled to a recomputed monthly pension benefit that would give him
the actuarial equivalent of retroactive benefits.” Defendants’ Br. at 2.
Elsewhere, they state that “the ‘actuarially adjusted pension’ that Chambless
seeks is the functional equivalent of an award of retroactive benefits.” Jd. at 5.
A-31
B. Plaintiffs’ Motion
Plaintiffs’ motion to amend, alter, or clarify the court's deci-
sion is a laundry list of grievances. Not content with an award
of over $400,000 in fees, plaintiffs seek the following: (1) interest
on the actuarial adjustment and the attorneys’s fee award from
the date of judgment to the date of payment; (2) reimburse-
ment of Chambless’ litigation-related travel expenses; (3) an ex-
tension of time for the filing of further documentation of costs
and expenses; (4) additional fees; (5) discovery of defendants’
billing sheets; and (6) factual findings concerning defendants’
insurance coverage for attorney's fees and litigation costs.’
Plaintiffs do not explicitly invoke Local Civil Rule 3(j);
nonetheless, their motion is largely one for reargument and will
be treated as such. Local Rule 3(j) provides that “(nJjo affidavits
shall be filed by any party unless directed by the court.” Civil
Rule 3(j), Local Rules of the United States District Courts for
the Southern and Eastern Districts of New York. Plaintiffs have
not been so directed, and their affidavits, to the extent that they
pertain to reargument, will be disregarded.
1. Interest on the Enhanced Benefit
The July 20 opinion addressed the issue of interest on the fee
award, not the issue of interest on the actuarially adjusted pen-
sion. Chambless now claims that he is entitled to interest on
that amount. On the assumption that Chambless argues that
the court overlooked a legal matter, reargument will be per-
mitted. Upon reargument, however, his request is denied.
Chambless claims that interest must be computed from Oc-
tober 29, 1984, the date judgment was entered pursuant to the
court's decision declaring the forfeiture of his pension until age
65 a nullity and ordering the Plan to award him a wage-related
’ The Pension Plan is insured against liability for attorney's fees and litigation
expenses incurred in this and another action. See Sokolowski v. Aetna Life
& Casualty Co., 670 F. Supp. 1199, 1200 (S.D.N.Y. 1987) (Sweet. J.).
A-32
pension based on his 1967-1977 employment record. See
Chambless v. Masters, Mates ¢> Pilots Pension Plan, 602 F. Supp.
904 (S.D.N-Y. 1984) (Carter, J.), affd, 772 F.2d 1032 (2d Cir. 1985),
cert. denied, 475 U.S. 1012 (1986). Defendants concede Chambless’
entitlement to payment of the difference between the amount
due under the July 20 decision and the amount that the Plan
in fact paid him. They refute his claim to interest on that amouni,
and argue that any interest due must run from the date of judg-
ment to be entered pursuant to the July 20 decision.
The court is satisfied that defendants are correct. Under 28
U.S.C. § 1961, “[i]nterest shall be allowed on any money judg-
ment in a civil case recovered in a district court.... Such interest
shall be calculated from the date of the entry of the judg-
ment....” 28 U.S.C.A. § 1961 (West’s Supp. 1988). Prior to the
July 20 decision, Chambless was not deemed entitled to an
enhanced pension benefit. Nor was the amount of any such
enhancement fixed. The relevant date for the calculation of in-
terest therefore appears to be that of judgment to be entered
pursuant to the July 20 decision. See Powers v. New York Cen-
tral Railroad Co., 251 F.2d 813, 818 (2d Cir. 1958) (interest to
be calculated from the date of entry of judgment following in-
crease in money judgment on appeal); Chemical Bank & Trust
Co. v. Prudence-Bonds corp., 213 F.2d 443, 445 (2d Cir.), cert.
denied, 348 U.S. 856 (1954); cf. Bailey v. Chattem, Inc., 838
F.2d 149, 153-155 wae Cir.) (disfavoring this “formalistic” rule
and following that adopted in the First, Third, Fifth, and Ninth
Circuits), cert. denied, ____ US. , 108 S. Ct. 2831 (1988).
Until that time, interest may not accrue.
2. Interest on the Fee Award
Plaintiffs also move to reargue the court's decision to deny
them interest on the fee award. They present no overlooked mat-
ters or decisions that in any conceivable way would entitle them
to reargument. Their motion is therefore denied.
Wells v. Bowen, N.Y.L.J., Aug. 19, 1988, at 17, col. 3 (2d Cir.
Aug. 9, 1988), handed down after the July 20 decision, requires
A-33
that the factor of delay in payment “be considered separately
from the risks of loss and nonpayment” in a contingent-fee ar-
rangement. Jd. at 20, col. 3; see Wisehart Letter to Court, Aug.
19, 1988. If plaintiffs mean to suggest that the court failed to
take delay into account in assessing a reasonable fee, they are
in error. The hourly rates awarded in the July 20 decision were
“sufficiently generous ... to ensure that plaintiff will be am-
ply compensated for all delay.” Chambless v. Masters, Mates &
Pilots Pension Plan, et al., No. 80 Civ. 4258 (RLC), slip op. at
27-28 (S.D.N.Y. July 20, 1988); see Defendants’ Br. at 5-10. If
plaintiffs merely seek greater compensation for that delay, they
are not entitled to reconsideration of that issue. Wells affirms
the district court’s discretion “to decide how much weight to
assign to the risks assumed by an attorney,” Wells, N.Y.L.J., Aug.
19, 1988, at 17, col. 3. If plaintiffs suggest otherwise, they
misconstrue the import of that decision.
3. Reimbursement for Travel Expenses
Plaintiffs ask the court to reconsider its refusal to permit
recovery of costs and expenses. They err in two respects: (1) The
court fully considered 29 U.S.C. § 1132(g)(1) in making its deter-
mination‘, and (2) the request for costs and expenses was denied
not because plaintiffs were deemed unentitled to recover them
but because they had failed to establish their entitlement through
adequate documentation. See Chambless v. Masters, Mates &
Pilots Pension Plan, et al., No. 80 Civ. 4258 (RLC), slip op. at
31 (S.D.N.Y. July 20, 1988). Plaintiffs present no legal or fac-
tual ground for reconsidering that holding, and indeed seem
to misunderstand its basis. The motion to reargue is denied.
4. Adjournment of 20-Day Period
Plaintiffs were given 20 days to prepare and submit fur-
ther documentation of costs and expenses. They now seek an
* That section states that “[i]n any action under this subchapter by a par-
ticipant, beneficiary, or fiduciary, the court in its discretion may allow a rea-
sonable attorney's fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1).
A-34
additional 60 days from the date this decision issues to file the
requisite papers. They state that “more time is needed ... in
view of the effect of the vacation schedule on the small staff
of plaintiffs law firm and its case load. Further, issues raised
by this motion may result in an amendment or adjustment in
what is allowed.” Plaintiffs’ Br. at 13.
The request for an additional 60 days is denied. The 20-day
period was entirely reasonable given that plaintiffs should have
submitted appropriate documentation in conjunction with their
initial fee application — a point overlooked by plaintiffs’ counsel.
Moreover, almost two months have passed since the July 20 opin-
ion issued. Although plaintiffs have made no discernible effort
to comply with the 20-day period, the court will assume that.
during this period, plaintiffs have made diligent efforts to
prepare the appropriate documentation. Plaintiffs have already
obtained a measure of the additional time they sought, and
although the fault does not rest entirely on the litigants (the court
must take some responsibility), this matter has taken far too long
in reaching final determination. No additional time will be
allowed for further submissions.*
5. Fee Parity
Plaintiffs request reargument of the fee awara on the ground
that the court denied them “fee parity.” By this novel term, they
apparently mean that defendants’ counsel were impermissibly
paid and reimbursed at higher rates than were plaintiffs’
counsel.* Defendants’ Br. at 19. Such a disparity, plaintiffs main-
tain, violates 29 U.S.C. § 1132(g), and departs from the man-
datory “prevailing market rates” standard established in Blum
v. Stenson, 465 U.S. 886 (1984), and Miele v. New York State
Teamsters Conf. Pension & Retirement Fund, 831 F.2d 407 (2d
Cir. 1987). See Plaintiffs’ Br. at 8-10.
‘ Pursuant to Local Civil Rule 3(j), the Baumgarten affidavit, to the extent
that it concerned reargument, was ignored.
* Plaintiffs also argue that “fee parity” requires the court to include paraprofes-
sional services in the lodestar calculation. Plaintiffs Br. at 9.
A-35
Nothing in plaintiffs’ motion merits reconsideration of the
award. No “controlling decisions or factual matters” previously
overlooked have been brought to the court’s attention. Ashley
Meadows Farm, 624 F. Supp. at 857. The court took Section
1132(g) into account, and the fee award was consonant with the
“prevailing market rate” standard. That concept means that an
attorney is to receive a fee award based on the rates a similarly
situated attorney would receive under prevailing market rates.
It does not require comparable rates for the attorney receiving
an award and opposing counsel. The standard for the court is
the prevailing market rates. Defendants’ insurance coverage and
the concept of “fee parity,” although not explicitly addressed in
the July 20 decision, have no bearing on the fees to which plain-
tiffs are entitled. See Johnson v. University College of Univer-
sity of Alabama, 706 F.2d 1205, 1208-1209 (llth Cir.), cert.
denied, 464 U.S. 994 (1983); Mirabel v. General Motors Accep-
tance Corp., 576 F.2d 729, 731 (7th Cir.), cert. denied, 439 U.S.
1039 (1978).
As the Court of Appeals for the Eleventh Circuit has stated:
The amount of hours that is needed by one side to
prepare adequately may differ substantially from that
for opposing counsel, since the nature of the work may
vary dramatically. The case may have far greater
precedential value to one side than the other. ... With
respect to the hourly rate, one side may employ far
more experienced counsel. . .. [W]e cannot conclude
that the district court abused its discretion here [by
quashing a subpoena and refusing to admit evidence
of fees charged by defense counsel].
Johnson, 706 F.2d at 1208 (citations omitted). Moreover, fee pari-
ty, as plaintiffs define it, would enable a plaintiff to press “ques-
tionable claims ... [that] could force a defendant to incur
substantial fees which [plaintiff] later [could] use [ } as a basis
for his own fee claim.” Mirabel, 576 F.2d at 731. Even were this
concern groundless here, plaintiffs had “many avenues to ob-
tain evidence to support their fee petition.” Jd. Although their
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submissions ultimately were nearly useless to the court, that fact
did not prevent the court from assessing what it believes to be
a reasonable fee.
The court’s implicit rejection of the concept of “fee parity”
is therefore not subject to reargument on the instant showing.
Moreover, plaintiffs’ requests for discovery of defendants’ bill-
ings and for findings of fact based on defendants’ insurance
coverage are denied.
II. Supplemental Fee Application
Plaintiffs also seek a supplemental fee award of over $90,000
for approximately 500 hours of service rendered from April,
1987, through August, 1988. The preceding fee request covered
work performed only up through April 24, 1987. The instant
fee request includes hours expended on the following: (1) the
motion to amend the judgment in order to specify the amount
of plaintiffs monthly pension; (2) the former fee application
and the instant one; and (3) the motion to strike the Kaplan
affidavit, the motion for sanctions, and the motion for recusal.
In addition, plaintiffs request fees for time expended by four
individuals — Ingrid Marino, Robert C. Reichelscheimer, Scott
M. Yaffe, and Marlaine M. Cragg — whose hours were excluded
from the original fee award because plaintiffs did not make it
clear to the court whether these individuals were attorneys. See
Chambless v. Masters, Mates ¢ Pilots Pension Plan, No. 80 Civ.
4258 (RLC), slip op. at 43 nll (S.D.N-Y. July 20, 1988). This
request brings new factual matters to the court’s attention and
therefore is not properly treated as a motion for reargument.
The requested fees will be regarded as part of the supplemen-
tal fee application.
A. Fees for the Four Individuals
Having failed to identify clearly the four individuals named
above, plaintiffs now come forward with affidavits that show
the following: Marino was admitted to the Bar in 1982 and billed
———
A-37
129.70 hours; Reichelscheimer was admitted to the Bar in 1983
and billed 3 hours; Yaffe was admitted to the Bar in 1984 and
billed 1.5 hours; and Cragg was admitted to the Bar in 1986
and billed 183.75 hours.’ Rowe Afft, § 4. Based on a requested
hourly rate of $55 for each individual,’ with which the court
will not quarrel, the requested fees total $17,487.25.
Although plaintiffs’ piecemeal approach to obtaining fees is
far from laudable, the court is mindful of its obligation to deter-
mine and award a reasonable fee in this case. Chambless v.
Masters, Mates ¢> Pilots Pension Plan, 815 F.2d 869, 872 (2d Cir.
1987). Therefore, additional fees will not be denied outright,
although, as discussed below, the court finds it appropriate to
reduce the amount requested to reflect the fact that plaintiffs’
fragmented approach has undoubtedly inflated the number of
hours expended on this case.
As defendants point out, a substantial number of the hours
expended by Marino, Reichelscheimer, Yaffe, and Cragg pre-
ceded each individual’s admission to the Bar and thus are not
compensable at hourly rates. Marino’s overall time figures will
accordingly be reduced by 38 hours, Reichelscheimer’s by 14.5
hours, Cragg’s by 165.25 hours, and Yaffe's by 1 hour. See
Baumgarten Aff't, ¢§ 6-7 and Exh. B. The following hours will
be included in the supplemental fee award: 96.7 hours for
Marino; .35 hours for Yaffe; and 23.8 hours for Cragg. For
reasons set forth in the fee decision, these time figures will be
reduced by 30 percent. See Chambless v. Masters. Mates ¢> Pilots
Pension Plan, No. 80 Civ. 4258 (RLC); slip op. at 32-33 (S.D.NY.
” Defendants state the following dates of admission: Marino. 5/12/82;
Reichelscheimer, 6/1/83; Cragg, 10/29/86; and Yaffe. 5/7/84. Baumgarten Afft,
q 5; Exh. C.
* With one exception, this is the same rate requested in the original fee ap-
plication. The rate originally requested for Cragg was $65 per hour. See Fee
Application, 4 27 at 15.
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July 20, 1988). Adopting the proposed rate of $55 per hour, the
court finds plaintiffs entitled to an additional $5,051.20 in fees.°
B. Additional Fees
Plaintiffs also seek $90,195 in fees on the basis of newly sub-
mitted affidavits and time sheets. Defendants object to the sup-
plemental fee request on several grounds: (1) Chambless has
presented no excuse for his failure to incorporate all compen-
sable time into the original fee application; (2) the motions for
sanctions, recusal, and to strike the Kaplan affidavit were
frivolous; and (3) the work performed after April, 1987, for
which Chambless now seeks to recover, was necessary only
because Chambless’s prior fee application and motion to amend
the judgment were unsuccessful. Defendants’ Br. at 12-14. Defen-
dants ask that the fee application be denied outright; alternative-
ly, they seek a chance to respond to the application in detail.
Id. at 13.
The court agrees with defendants that the motions for sanc-
tions, recusal, and to strike the Kaplan affidavit do not merit
a recovery of fees. An award of fees pursuant to 29 U.S.C. §
1132(g)(1) is discretionary. “Section 1132(g) . .. does not award
attorney’s fees to the prevailing party outright; but rather, allows
for attorney’s fees for either party in accordance with the district
court’s discretion.” McKnight v. Southern Life & Health Ins.
Co., 758 F.2d 1566, 1572 (11th Cir. 1985); see Bittner v. Sadoff
¢> Rudoy Industries, 728 F.2d 820, 828-830 (7th Cir. 1984). The
fee applicant is obligated to “make a good-faith effort to exclude
* This figure was calculated as follows:
Recoverable Less
Attorney Hours 30% Rate Total
Marino 96.7 67.69 $55 $3,722.95
Reichelscheimer 0.0 0.0 $55 0.0
Yaffe R. e $55 19.25
Cragg 34.0 23.8 $55 1,309.0
TOTAL: $5,051.2
A-39
from a fee request hours that are excessive, redundant, or other-
wise unnecessary, just as a lawyer in private practice ethically
is obligated to exclude such hours from his fee submission.”
Hensley, 461 U.S. at 434. Should the applicant fail to do so, the
court is obligated to exclude unrecoverable hours on its own
initiative.
Plaintiffs’ motions for recusal, sanctions, and to strike were
baseless. The court cannot in good conscience assess the resulting
fees to defendants. Cf. Bittner, 728 F.2d at 828 (district court
has discretion to deny fees for suit “so completely without hope
of succeeding that the court can infer that the plaintiff brought
it to harass the defendant rather than to obtain a favorable judg-
ment”). As the court stated in Boe v. Colello, 447 F. Supp. 607,
610 (S.D.N.Y. 1978) (Weinfeld, J.):
Any expenditure of time beyond that which is
reasonably required suggests either inexperience and
devotion of more time than warranted to fairly and
properly present claims or, alternatively, that the at-
torneys, however experienced, engaged in dilettantism:
a losing side is not required to pay for such
indulgences.
Plaintiffs’ time figures will therefore be reduced by the 39 hours
expended on these motions.”
Although the court is not bound to award fees for time ex-
pended on a fee application, see Woods v. State of New York,
494 F. Supp. 201, 205 (S.D.N.Y. 1980) (Weinfeld, ].); Boe, 447
F. Supp. at 610 & n.14, in this Circuit “time reasonably spent
by plaintiff's attorneys in establishing their fee [is] compensable.”
Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979), aff'd, 448
U.S. 122 (1980). In general, the court agrees with the rationale
stated in Gagne and elsewhere that a refusal to award fees
The supplemental fee application reveals that plaintiffs’ counsel billed 39
hours in May and June, 1988, in connection with these motions. See Sup-
plemental Fee Application, 4 14 at 5 & Exh. A.
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incurred in connection with the fee application would tend to
dilute the fee award and thus to undermine the very purpose
of awarding fees. Therefore, the recovery of fees incurred on
the fee applications will not be denied outright.
Defendants suggest that plaintiffs’ piecemeal approach to the
fee award renders this general principle inapplicable. Although
they fail to specify in what manner plaintiffs’ approach has been
prejudicial, the court is persuaded that plaintiffs would have
incurred fewer fees and related costs had they submitted a single,
comprehensive fee application. Not only have plaintiffs incurred
additional fees and costs as a result of their protracted approach
to obtaining fees, but plaintiffs have imposed correspondingly
greater fees and costs upon defendants. That fact may constitute
grounds for reducing plaintiffs’ fee request, but it does not per-
mit the court to deny the fee request altogether. As the Court
of Appeals has stated, “[t]o the extent that Chambless’ actions
were ‘vexatious[ ] and wastefull ]”” he is obviously penalized by
not recovering any attorney’s fees for those efforts. This does
not affect his right to a reasonable attorney’s fee for his suc-
cessful claim.” Chambless, 815 F.2d at 872.
Nor is plaintiffs’ supplemental application so untimely as to
be denied on the ground that it “unfairly surprise[d] or pre-
judice[d] the affected party.” White v. New Hampshire Dep't
of Employment Security, 455 U.S. 445 (1982) (holding that a
fee application under 42 U.S.C. § 1988 is not governed by the
10-day limit imposed on motions to amend judgment under Rule
59(e), F.R.Civ.P.). Defendants do not claim to have been caught
off guard by the instant request, and any elements of prejudice,
to the extent that they have involve exposing defendants to
greater liability for fees and costs, are properly redressed by
reducing the requested award, not by denying it altogether.
In sum, the court finds it unreasonable and unfair to subject
defendants to liability that might have been avoided had plain-
tiffs’ fee application been inclusive from the start. Plaintiffs do
not explain their failure to incorporate all compensable time
in a single fee application. The court will reduce plaintiffs’ time
A-4]
figures by 40 percent to ensure that needlessly expended hours,
namely, those imposed upon defendants as a result of plaintiffs’
piecemeal approach to obtaining fees, are excluded from the
fee award. The resulting number of recoverable hours is 277.8.
To arrive at a reasonable lodestar figure, the court will employ
the Phase II hourly rates stated in the July 20 decision: Arthur
M. Wisehart will receive $200 per hour for 66.6 recoverable
hours billed in 1987 and 11.55 billed in 1988"; John W. Whit-
tlesey will receive $150 per hour for 25.8 recoverable hours billed
in 1987 and .3 billed in 1988; Steven L. Lim will receive $100
per hour for 58.05 recoverable hours billed in 1987; and Paula
C. Rowe will receive $65 per hour for 20.7 recoverable hours
billed in 1987 and 6.3 billed in 1988" Plaintiffs’ proposed hourly
rates for Marlaine M. Cragg, Janet S. Sussman, and Russell G.
Pelton are reasonable and will be adopted. Thus, Cragg will
receive $65 per hour for 3 recoverable hours billed in 1987;
Sussman will receive $45 per hour for .6 recoverable hours billed
in 1987; and Pelton will receive $165 per hour for 81] recoverable
hours billed in 1987 and 3.9 billed in 1988. The resulting lodestar
figure is $41,335.50
" Wisehart’s 1988 time figure was reduced by 39 hours to reflect time expended
on the motions for which fees were denied. See Supplemental Fee Applica-
tion, Exh. A at 9.
* Plaintiffs are not entitled to reargue the rate applied to Rowe in the July
20 decision.
" The lodestar calculations follow:
Recoverable Less
Attorney Hours 40 % Rate Total
Wisehart
(87) 111.0 66.6 $200 $13,320.0
(88) 19.25 11.55 $200 $ 2,310.0
Whittlesey
(87) 43.0 25.8 $150 $ 3,870.0
(88) 5 3 $150 = $ 45.0
(Footnote continued)
A-42
C. Erroneously Included Hours
Defendants point out that Paula C. Rowe, whose 350.75 hours
were deemed recoverable at a rate of $55 per hour in the original
fee award, was not admitted to the Bar until March 7, 1984.
It appears that 274 hours worked in 1983, and 1 hour worked
in 1984, preceded her Bar admission and were improperly in-
cluded in the lodestar figure. Baumgarten Afft, § 8. Therefore,
the court will reduce the fee award by $10,587.50."
III. Conclusion
Upon reargument, and for the reasons set forth above, plain-
tiffs are entitled to an adjusted fee award totalling $451,990.50."
Defendants’ request for additional time to respond to the sup-
plemental fee application is denied.* All remaining arguments
Pelton
(87) 135.0 81.0 $165 $13,365.0
(88) 6.5 3.9 $165 $ 643.5
Rowe
(87) 34.5 20.7 $65 $ 1,345.5 f
(88) 10.5 6.3 $65 $ 409.5
Sussman
(87) 1.0 6 $45 $ 27.0 |
Cragg
(87) 5.0 3.0 $65 $ 195.0
Lim
(87) 96.75 58.05 $100 $ 5,805.0
TOTAL: $41,335.5
'* Rowe's 275 erroneously included hours were reduced by 30 percent, and
the resulting total, 192.5 hours, was multiplied by an hourly rate of $55, to
yield a total overpayment of $10,587.50.
's This figure reflects all of the adjustments to the fee awarde specified herein.
'* Defendants provide no explanation or authority for this request, and the
court is unwilling to prolong this litigation further by granting it.
iit etal
A-43
advanced by the parties have been fully considered and are found
to lack merit.
IT IS SO ORDERED.
Dated: New York, New York
September 16, 1988
ROBERT L. CARTER
US.D]J.
A-44
OPINION AND ORDER OF THE HON. ROBERT L. CARTER,
DATED JULY 20, 1988
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARTHUR M. CHAMBLESS and
MILDRED H. CHAMBLESS,
Plaintiffs,
— against —
MASTERS, MATES & PILOTS PENSION PLAN, et al.,
Defendants.
OPINION
80 Civ. 4258 (RLC)
APPEARANCES
WISEHART & KOCH
Attorneys for Plaintiffs
25 West 43d Street
Suite 1114
New York, NY 10036
ARTHUR M. WISEHART
JOHN W. WHITTLESEY
Of Counsel
PROSKAUER ROSE GOETZ & MENDELSOHN
Attorneys for Defendants
300 Park Avenue
New York, New York 10022
BETTINA B. PLEVAN
JOSEPH BAUMGARTEN
Of Counsel
CARTER, District Judge
A-45
This case is before the court upon remand for the resolution
of two issues: (i) the amount of attorney’s fees, costs, and expenses
that plaintiff Arthur Chambless is entitled to receive under Sec-
tion 502(g)(1) of the Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C. § 1132(g)(1), and (ii) the size of the
monthly pension benefit to which he is entitled. Also outstan-
ding are plaintiff's motion to disqualify, motion to strike a recently
submitted affidavit, and motion for sanctions pursuant to Rule
ll, FR.Civ.P., and 28 U.S.C. § 1927.
Background
The facts of this protracted dispute have been exhaustively
stated in four published opinions, two by this court and two by
the Court of Appeals.’ Only the briefest statement of pertinent
events is warranted.
Plaintiff Arthur Chambless, a veteran seaman, and his wife,
Mildred H. Chambless, brought this action against the Interna-
tional Organization of Masters, Mates & Pilots (“the MM & P”),
its Pension Plan (“the Plan”), the Plan’s administrator, the Plan’s
trustees, two employer organizations, and various other defen-
dants. Chambless alleged that defendants violated ERISA by
suspending payment of his vested pension after he went to work
on a non-MM & P vessel and by causing his benefits to be reduced
from approximately $920 per month beginning at age 55 to ap-
proximately $470 per month beginning at age 65. In addition,
plaintiffs asserted a variety of other violations, including antitrust
violations and breach of the duty of fair representation. The court
dismissed many of plaintiffs’ claims and all defendants, except
MM & P, the Plan, the Plan’s administrator, and the Plan’s
trustees. See Chambless v. Masters, Mates ¢> Pilots Pension Plan,
571 F. Supp. 1430 (S.D.N.Y. 1983) (Carter, J.).
The case proceeded to trial, and, at the close of plaintiffs’ case,
the court dismissed al] claims against the union and all claims
involving Mildred Chambless.? The only remaining claim, tried
to the bench, was the legality of the forfeiture of Chambless’ pen-
sion benefits until age 65. The court declared that forfeiture a
nullity and ordered that Chambless’ application for benefits be
A-46
approved if he applied for his pension within six months of the
court's decision and certified that he had ceased working in the
maritime industry. The court also ordered that the Plan’s trustees
treat Chambless’ application as if it had been made in 1977,
thereby assuring him a wage-related pension based on his 1967-77
employment record.’ See Chambless, 602 F. Supp. 904, 913
(S.D.N.Y. 1984) (Carter, J.). The Court of Appeals affirmed in
all respects and remanded for a determination of the benefits
that Chambless would have received in 1977. See Chambless, 772
F.2d 1032 (2d Cir. 1985). The United States Supreme Court denied
plaintiff's petition and defendants’ cross-petition for writs of cer-
tiorari. Chambless, 475 U.S. 1012 (1986).
Thereafter, Chambless moved in the district court for an order
amending the judgment to calculate the pension benefits to which
he was entitled and for an award of attorney’s fees pursuant to
Section 502(g)(1) of ERISA. 29 U.S.C. § 1132(g)(1).* The court
summarily denied the motion to amend the judgment and in a
separate opinion denied the fee request. See Chambless, No 80
Civ. 4258 (RLC), slip op. (S.D.N.Y. June 23, 1986). Plaintiff
appealed.
The Court of Appeals, recognizing that Chambless had mov-
ed to amend the judgment before his benefits had commenced,
considered his motion premature and properly denied. With
respect to plaintiff's motion for fees, the Court reversed and
remanded. The Court rejected this court’s principal rationale for
denying plaintiff's motion for fees: namely, that plaintiff's “vex-
atious[}” and wasteful[]” litigation strategy had increased defen-
dants’ costs and legal fees to such an extent that “[wJhatever plain-
tiffs might have secured in attorney's fees for litigation limited
to a vindication of Chambiess’ pension benefits ha[d] been ex-
ceeded by far in costs and expenses plaintiffs have required defen-
dants to expend in defending against their claims.” Id. at 6-7.
The Court held that Chambless’ litigation strategy, however vex-
atious and wasteful, had no bearing on his entitlement to a
reasonable fee. Chambless, 815 F.2d at 872. Thus, this court was
instructed to award a reasonable fee for time spent on the vin-
dicated ERISA claim. The Court also noted that Chambless was
A-47
then “concededly receiving approximately $920 a month.” This
court was therefore further directed to determine “whether
Chambless is now receiving benefits in the amount to which he
is entitled.” Id. at 873.
In taking up plaintiff's motion upon remand, the court asked
defendants to respond to aspects of one of plaintiffs affidavits.
Defendants complied. Plaintiff now moves to strike defendants’
submission and seeks sanctions against opposing counsel and an
order of disqualification by reason of alleged prejudice and in-
terest. The court will address plaintiff's motions before turning
to the issues upon remand.
Plaintiff's Motions
The court asked defendants in April, 1988, to respond to por-
tions of the affidavit of plaintiff's actuarial expert, Dr. S. Ramanu-
jam. Dr. Ramanujam’s affidavit stated, in relevant part, that
plaintiff's pension benefits should be recalculated to reflect his
life expectancy from the point at which payments began.
Ramanujam Afft, 44 13-17. Defendants submitted the affidavit
of Michael H. Kaplan, the Plan's actuary. Plaintiff promptly mov-
ed to strike the affidavit as untimely and unauthorized. Plain-
tiff also moved for sanctions under Rule 11, F.R.Civ.P., and 28
U.S.C. § 1927 on the ground that the affidavit was filed in viola-
tion of the rules of court and a prior stipulation of counsel that
all answering papers be served by June 8, 1987.°
Plaintiff errs in contending that “n[o] permission from the
Court has been obtained for the filing of such an affidavit [after
the deadline] nor has cause been shown for its submission.”
Wisehart Afft, 4 13. The affidavit was submitted at the court’s
direction. The court’s determination that an additional submis-
sion from defendants was permissible and essential to the just
resolution of the underlying motion necessarily constituted good
cause for the untimely submission. See Rules 6(b) and 59(c),
F.R.Civ.P.; Civil Rule 3(c)(3), Rules for the Southern and Eastern
Districts of New York.®
Even were that not the case, plaintiff's motion would be denied.
The court has examined the Kaplan affidavit and concludes that
~ an
A-48
it adds nothing to defendants’ existing position. The court
therefore took no notice of the affidavit in making its determina-
tion today. Because no prejudice can result from the challenged
submission, there is no basis for granting plaintiffs motion to
strike. Cf. Rawson v. Sears Roebuck & Co., 585 F. Supp. 1393,
1397 (D. Colo. 1984) (it “is fundamental that a motion to strike
will be denied if no prejudice can result from the challenged
allegations”); Budget Dress Corp. v. Intl Ladies’ Garment
Worker’s Union, AFL-CIO, 25 F.R.D. 506, 508 (S.D.N.Y. 1959)
(motions to strike not looked upon with favor and “should not
be granted ... in the absence of a showing that [the averments |
have no relation to the controversy or are clearly prejudicial to
the movant”); 5 Wright & Miller, Fed. Practice and Procedure
§ 1382, at 810-811 (1969).
Plaintiffs motion for sanctions also is baseless. Rule 11,
F.R.Civ.P., rests on an “objective standard of reasonable inquiry
into the factual and legal soundness of ‘[e]very pleading, mo-
tion, and other paper’ signed by the attorney in an action.” Kamen
v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1010 (2d Cir. 1086) (quoting
Eastway Constr. Corp. v. City of New York, 762 F.2d 243,
253-254 (2d Cir. 1985), cert. denied, --- U.S. ---, 108 S. Ct. 269
(1987)). Defendant’s compliance with the court’s request was not
objectively unreasonable. Nor was it performed in bad faith. In
the absence of a clear showing of bad faith, sanctions are inap-
propriate under 28 U.S.C. § 1927. Id. (“[s}ince bad faith is not
claimed to be present here, section 1927 could have no applica-
tion”). Thus, plaintiffs motion for sanctions is denied.
Plaintiff's final motion is for an order of disqualification or
recusal pursuant to 28 U.S.C. §§ 144 and 455. Section 144 pro-
vides for disqualification upon a sufficient showing that the
presiding judge “has a personal bias or prejudice either against
[the moving party] or in favor of any adverse party.” 28 U.S.C.
§ 144. Section 455 requires the presiding judge to disqualify
himself “in any proceeding in which his impartiality might
reasonable be questioned” or when “he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a)
ee
A-49
and (b). Plaintiff has not shown grounds for recusal under either
provision.
Sections 144 and 455 (b)(1), permitting disqualification for
reasons of personal bias or prejudice concerning a party, are
governed by a single standard. In re Int Bus. Machines Corp.,
618 F.2d 923, 928 (2d Cir. 1980). Plaintiff must show that the
alleged prejudice stems from “conduct extrajudicial in nature as
distinguished from conduct within a judicial context.” Id. Plain-
tiffs motion is based solely on the circumstances surrounding the
court’s request for an additional submission from defendants.
Chambless Afft, ۤ 3-4; Wisehart Afft, 44 7-9. Such conduct
was in no sense extrajudicial. Plaintiffs “claim of prejudice is bas-
ed completely on ... conduct and rulings in the case at hand.
These we had repeatedly held form no basis for a finding of ex-
trajudicial bias.” In re IBM Corp., 618 F.2d at 928. Section 455(a),
requiring recusal when the judge's impartiality might reasonably
be questioned, also required that the alleged bias not rest on the
trial court’s rulings. Jd. at 929. Even if plaintiff had satisfied the
foregoing standard, he has not shown that the court’s action was
adverse to him.’ Plaintiff was given adequate opportunity to res-
pond to the Kaplan affidavit and has done so.
Finally, the court is doubtful that plaintiffs motion for recusal
is timely. Section 144 requires that the motion be timely made
not less than “ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown for
failure to file it within such time.” 28 U.S.C. § 144.Although Sec-
tion 455 has no such explicit requirement, our Court of Appeals
has assumed that timeliness also is required under that section.
Plaintiff's motion comes some eight years into this litigation. Cf.
In re IBM Corp., 618 F.2d at 932 (denying motion for recusal
that came after more than seven years of proceedings). Gran-
ting the motion on the trivial showing presented here would en-
tail an unjustifiable “waste of the judicial resources which have
already been invested in the proceeding.” Jd. at 933. Although
a judge has a “duty to refuse to sit when he is disqualified[,] ...
it is equally his duty to sit where there is no valid reason for
recusa[1].” In re Martin-Trigona, 573 F. Supp. 1237, 1243 (D.
A-50
Conn. 1983) (quoting Pessin v. Keeneland Ass'n, 274 F. Supp.
513, 514 (E.D. Ky. 1967). Plaintiffs motion is therefore denied.
Fee Application
Chambless has been instructed to present “an appropriate ac-
counting to the district court of attorney’s time spent only on
the successful [ERISA] claim.” Chambless, 815 F.2d at 873. He
seeks $737,534 in fees for 8,024.8 hours of attorney and non-
attorney time.’ Defendants contend that this lodestar figure is
excessive and undocumented.
“The most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate.” Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983); Blum v. Stenson, 465 U.S.
886, 888 (1984). Chambless has submitted affidavits, time sheets,
and other documentation that reveal the following:
Paul C. Rowe, an associate at the New York law firm of
Wisehart & Koch, plaintiffs attorneys throughout this litigation,
reviewed the firm’s time sheets and work product and classified
the hours expended on this matter into four categories:
(1) Work exclusively on ERISA matters on which plaintiff
prevailed;
(2) Work on a mixture of ERISA and pension matters;
(3) Work clearly involving allegations or claims or legal
points unrelated to the ERISA or pension matters on
which plaintiff prevailed; and,
(4) Work that Rowe could not classify.
Rowe Aff't, § 7 (Fee Application, Exh. B).
Russell G. Pelton, of counsel to Wisehart & Koch, reviewed
Rowe's analysis and concluded that all hours in Category 1 were
properly included in the fee award, all hours in Category 3 were
properly excluded, and some portion of the hours in Categories
A-51
2 and 4 was properly included. To determine which hours in
Categories 2 and 4 were compensable, Pelton established 13 sub-
ject areas roughly corresponding to the claims that plaintiff
asserted at the outset of this litigation.* Time expended in four
areas — the ERISA claims, the arbitrary and capricious nature
of the pension plan’s amendments, the unlawful reduction of
Chambless’ pension benefits, and the failure to provide adequate
notice — was deemed work on the prevailing claim and thus was
included in the fee request. Pelton Reply Afft, { 9. Time expended
on a fifth item, the suspension of Chambless’ benefits, was con-
sidered inextricable from work on the prevailing claim and also
was included. Jd. Work in the eight remaining areas was excluded.
Plaintiff then multiplied the includable hours by the follow-
ing guideline billing rates:
Attorney Hourly Guideline Rates
Arthur M. Wisehart $ 150 (1979-81)
" $ 175 (1982-85)
, $ 210 (1986-87)
Irene M. Opsahl $ 70
John M. Whittlesey $ 150
Edmund S. Purves $ 150
Robert E. Friou $ 150
James D. Hanlon $ 60
Steven Lim $ 55 (1985)
. $ 145 (1986-87)
Fee Application, 44 16-22. The corresponding rates for law clerks
and paralegals were $45-55 per hour and $35 per hour, respec-
tively. Id. at 44 16-23.
Defendants contend that plaintiff has not adequately
documented the hours worked or the rates claimed, and that the
fee application incorporates time not actually spent on the suc-
cessful claims, fails to exclude frivolous or nonproductive expen-
ditures of time, and employs excessive rates.
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A. Adequacy of Plaintiff's Submissions
Plaintiff has submitted almost 200 pages of contemporaneous
time sheets recording the time expended and services rendered
by Wisehart & Koch attorneys and non-attorneys from 1979
through 1983, summary charts of time expended and services per-
formed in 1984, and computerized print-outs of time expended
and services performed from 1985 through 1987. See Fee Applica-
tion, Exh. B. In general, these records comply with the standards
of specificity set forth in New York State Ass’n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983), which re-
quires that a fee application be denied “unless accompanied by
contemporaneous time records indicating, for each attorney, the
date, the hours expended, and the nature of the work done.” Id.
at 1154; see Lewis v. Coughlin, 801 F.2d 570, 577 (2d Cir. 1986).
Nonetheless, dozens of plaintiffs time entries describe counsel's
work as merely “Review”, “Report”, “Further research in library”,
“Work on Interrogatories,” “Letter,” “Conferring with Client,” or
“Indexing.” While such vague entries are the exception, not the
rule, in plaintiffs submissions, many hours are accounted for
under such obscure headings. These entries are so vauge that they
cannot be said to document the hours claimed.
Although a fee applicant’s records need not be extraordinari-
ly detailed, they must identify “the general subject matter of [the
claimed] time expenditures,” Hensley, 461 U.S. at 437 & n.12;
Lyons v. Cunningham, 583 F. Supp. 1147, 1154 (S.D.N.Y. 1983)
(Cannella, J.), and must be sufficiently detailed to enable the
district court to identify distinct claims and to eliminate hours
that were excessive, redundant, or otherwise unnecessarily spent.
“It is impossible to judge the reasonableness of spending two hours
on an outline, or five hours on writing and research if the topic
of the work is not disclosed.” Soler v. G & U, Inc., 658 F. Supp.
1093, 1097 (S.D.N.Y. 1987) (Tenney, J.). Permitting plaintiff to
recover on the basis of such vague entries would reward him for
maintaining time records that complicate the court's task of assess-
ing reasonable attorney's fees and that augment the risk of error
in the amount awarded.
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Plaintiff's submissions are flawed in another respect. Although
they state the total number of includable hours apportioned to
Rowe's Categories 2 and 4, they fail to indicate which of the time-
sheet entries assigned to those categories were included in the
fee request and which were excluded. Plaintiff's counsel had to
make these selections in preparing the fee application. No hint
of their decisions is revealed to the court.
Plaintiff contends that these deficiencies in the time records
are harmless because Rowe and Pelton were able to determine,
on the basis of court papers, correspondence, and memoranda,
which hours to include in the application and which to omit.
E.g., Pelton Reply Afft, 4 4. That argument reveals a fundamen-
tal misunderstanding of plaintiffs burden. Plaintiff must sub-
mit time records and other documentation that enable the court
to determine whether his apportionment is proper. Obviously,
the court should not retrace all of counsel’s steps, but it must
be “convinced that [the] attorneys reconstructed their hours in
a reasonable and [an] accurate manner.” Williamsburg Fair Hous-
ing Comm. v. Ross-Rodney Housing Corp., 599 F. Supp. 509,
517 (S.D.N-Y. 1984) (Tenney, J.). Plaintiff has not enabled the court
to make that determination. Other submissions, such as a chart
describing counsel’s services month by month from December,
1979, through April, 1987, do not cure the documentary defi-
ciencies. These submissions in themselves are sketchily detailed
and do not create a context within which plaintiffs inexplicit
time entries are made reasonably comprehensible. See Fee Ap-
plication, 4 15. As a result, plaintiff has not presented an ade-
quate accounting of time to this court. Chambless, 815 F.2d at
871-871.
Although a line-by-line elimination of inadequately
documented hours might yield the most accurate tally of
recoverable time, the United States Supreme Court has recogniz-
ed, as has our own Court of Appeals, that such an approach may
be unduly burdensome and need not be adopted in every case.
“Where the documentation of hours is inadequate, the district
court may reduce the award accordingly.” Hensley, 461 U.S. at
433. “The district court need not ... scrutiniz[e] each action taken
or the time spent on it.” Aston v. Sec’y of Health and Human
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Services, 808 F.2d 9, 11 (2d Cir. 1986) (citing Carey, 711 F.2d
at 1146). Numerous courts “have endorsed percentage cuts as a
practical means of trimming fat from a fee application.” Carey,
711 F.2d at 1146. See, e.g., Copeland v. Marshall, 641 F.2d 880,
903 & n. 51 (D.C. Cir. 1980) (en banc) (approving substantial
“fixed amount” reduction in lodestar amount for nonproductive
hours). A percentage reduction has been held appropriate in the
face of inadequately documented time figures. See Soler, 658 F.
Supp. at 1098-1099 (5, 15, and 20 percent reductions for inade-
quate records); Ross v. Saltmarsh, 521 F. Supp. 753, 761-762
(S.D.N.Y. 1981) (Lowe, J.) (5 and 10 percent cuts for submission
of reconstructed records), affd mem., 688 F.2d 816 (2d Cir. 1982);
Kane v. Martin Paint Stores, Inc., 439 F. Supp. 1054, 1056
(S.D.N.Y. 1977) (Lasker, J.) (10 percent reduction for imprecise
records), affd mem., 578 F.2d 1368 (2d Cir. 1978). After carefully
examining plaintiffs submissions, the court finds a 15 percent
reduction reasonable to ensure that the fee award excludes in-
adequately documented expenditures of time.
B. Includable Hours
Defendants also maintain that plaintiffs time records incor-
porate hours spent on matters unconnected with the prevailing
claim. To the extent that they argue that plaintiff may recover
fees only for work on that claim, defendants are in error.
Under Hensley v.Eckerhart, 461 U.S. 424 (1983), a prevailing
party is entitled to fees for claims on which he did not prevail
if those claims were so intertwined with the prevailing claim that
counsel’s work on one claim cannot meaningfully be separated
from work on the others. There is no mechanical rule for mak-
ing this determination. The court should consider whether “plain-
tiffs claims for relief ... involve a common core of facts of [are]
based on related legal theories .... [which make] it difficult to
divide the hours expended on a claim-by-claim basis.” Jd. at 435.
Plaintiff concedes that time expended on many of the claims
he originally asserted — antitrust law violations, emotional
distress, the selection of a sham retirement age, estoppel, union
agency, inadequacy of the appeal procedure, failure to provide
requested information, and breach of a duty of fair representa-
tion — is not sufficiently related to the prevailing claim to be
included in the fee award. The court will not award plaintiff
fees that he does not seek. Plaintiff attests that time spent on these
eight claims has been omitted from the fee application. Pelton
Afft, 4 11; Pelton Reply Afft, 44 9-10.
Chambless contends that the remaining five claims are either
one on which he prevailed or are sufficiently interwoven with
such claims by a common core of facts or a shared legal theory
that they are properly included in the fee award. The court agrees.
Defendants’ amendment of the Plan was found arbitrary and
capricious. The amendment was not properly disclosed to plaintiff
and would have impermissibly allowed defendants to confiscate
~ a considerable portion of plaintiff's benefits by suspending them
until age 65. Chambless, 602 F. Supp. 910-913. Consequently,
the court finds plaintiff entitled under Hensley to reasonable fees
for time expended on claims involving the ERISA violations, the
arbitrary and capricious amendment, the reduction in benefits,
inadequate notice, and the suspension of benefits.
Even so, the court finds the fee request excessive. In his initial
fee application, Chambless portrayed his complaint as a “seamless
web” and sought fees for all of the 9,000 hours expended in this
action. Chambless, 815 F.2d at 872. In the instant application,
Chambless wisely abandons that characterization. He has reduced
his total fee request by approximately 25 percent” and claims
that this reduction “more than reflects the time that was devoted
to issues other than the prevailing pension claim.” Wisehart Afft,
¢ 3(k). Given the prolixity of the complaint, the course of this
litigation, and plaintiff's avowal that eight claims out of thir-
teen must be excluded from the fee award, the court disagrees.
Plaintiff offers no argument or analysis in support of the ade-
quacy of his 25-percent reduction, and the court is unpersuaded
that this reduction yields a reasonable fee. As the court observed
two years ago, “[h]ad this case been brought solely to vindicate
Captain Chambless’ claim to appropriate pension benefits, ....
[the] case would not have taken, as this one has, [eight] years
from institution to the present stage. Discovery would have been
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limited to ERISA issues.... and the fees and expenses requested
would have been far short of the more than $1 million [plaintiff
originally] sought.” Chambless, No. 80 Civ. 4258 (RLC), Mem.
Op. at 3 (S.D.N.Y. June 23, 1986) (Carter, J.) (emphasis added).
That conclusion remains essentially sound today.
Accordingly, to arrive at a reasonable fee, the court will reduce
plaintiffs claimed hours by an additional 15 percent before
multiplying those figures by appropriate hourly rates. This reduc-
tion is necessary to ensure that time not properly apportioned
to the prevailing claims or related claims is excluded from the
fee calculations. The court need not “pretend to have arrived at
[this] figure with any degree of scientific precision.” Carey, 711
F.2d at 1153 n.11. It is helpful “to determine the number of claims
upon which plaintiffs succeeded and then to adjust them slight-
ly to account for the relative importance of the claims and their
interrelatedness.” Campaign for a Progressive Bronx, 631 F. Supp.
975, 982 (S.D.N.Y. 1986) (Knapp, J.).
In this case, an overall reduction of 60 percent would, as a
matter of mathematical precision, reflect the fact that plaintiff
no longer seeks recovery for eight claims out of thirteen. Because
it is reasonable to assume that plaintiff's counsel expended pro-
portionately more time on the prevailing claim and related claims
than they did on other matters, a smaller reduction will suffice.
Plaintiff himself has reduced his total fee request by approximately
25 percent. Taking that fact into account, and considering all
of the other circumstances presented here, the court is satisfied
that a 15-percent reduction in plaintiffs time figures for inade-
quate documentation, and a 15-percent reduction for the inclu-
sion of unrecoverable hours, will yield a reasonable time figure
and, in turn, a reasonable fee.
Defendants urge the court to reduce the fee request even fur-
ther. They argue that plaintiff has not made the required “good-
faith effort to exclude from [the] fee request hours that are ex-
cessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S.
at 434. They point to the fact that plaintiffs counsel spent more
than 800 hours fending off defendants’ summary judgment mo-
tions, more than 500 hours in connection with an appeal and
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cross-appeal, 125 hours reviewing union newspapers, 45 hours
preparing for a single deposition, 130 hours reviewing thousands
of pension files, more than 600 hours preparing trial exhibits,
transcripts, post-trial briefs, and proposed findings of fact and
conclusions of law, and more than 165 hours in connection with
the first fee application and the motion to amend the judgment.
Defs. Br. at 23-25. Defendants argue that these time expenditures
are excessive and that plaintiffs counsel overstaffed the case.
The court will not reduce plaintiff's requested hours merely
because multiple counsel were employed. Defendants have not
shown instances in which the involvement of multiple counsel
caused an unnecessary duplication of effort. “[E]mploying multi-
ple counsel is not unreasonable per se.” Soler, 658 F. Supp. at 1099.
“Multiple attorneys may be essential for planning strategy,
eliciting testimony or evaluating facts of law.” Williamsburg Fair
Housing Comm. v. Ross-Rodney Housing Corp., 599 F. Supp.
509, 518 (S.D.N.Y. 1984) (Tenney, J.). The court discerns no
unreasonable duplication of services here. Nor does the court find
the claimed hours subject to reduction on the ground that they
are patently unreasonable. Only reasonable and necessarily in-
curred fees are recoverable. Nat7 Ass'n of Concerned Veterans,
Inc. v. Secy of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982)
(per curiam). Given the length of this litigation, and the factual
and legal complexity involved, the claimed hours do not appear
unreasonable. “Like any creative artist, the good litigator may
pursue many blind alleys and revise many drafts before produc-
ing the convincing brief or argument. In the end, close scrutiny
of the [hours claimed] may ameliorate but cannot eliminate the
problem of unnecessary work.” In re Agent Orange Product
Liability Litigation, 611 F. Supp. 1296, 1306 (E.D.N-Y. 1985), affd
in relevant part, 818 F.2d 226 (2d Cir. 1987). The reductions
already implemented by plaintiff and by the court will ensure
that all excludable time has been omitted from the fee request.
C. Reasonable Hourly Rates
Defendants maintain that plaintiff's proposed hourly rates are
excessive. They suggest that Arthur M. Wisehart be compensated
at $120 per hour and that his associates and other attorneys be
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compensated at $75 per hour. They also maintain that time ex-
pended by paralegals, law clerks, and law school graduates not
admitted to practice is not compensable on an hourly basis. Defs.
Br. at 30-31, 34.
This Circuit “appears to favor limiting reimbursement for
paralegal time to out-of-pocket expense.” Jn re Agent Orange,
611 F. Supp. at 1322; City of Detroit v. Grinnell Corp., 495 F.2d
448, 473 (2d Cir. 1974); Campaign for a Progressive Bronx, 631
F. Supp. at 983; Desimone v. Industrial Bio-Test Laboratories,
Inc., 83 F.R.D. 615, 621 (S.D.N.Y. 1979) (MacMahon, J.). But see
Cardiology Assocs., P-C., Pension Plan Trust v. Nat Intergroup,
Inc., 85 Civ. 3048 (JMW), slip op. (S.D.N.Y. Feb. 13, 1987)
(Walker, J.) (awarding $40 per hour for paralegals). Law clerks
and law school graduates not admitted to practice are subject
to the same rule of compensation. Cf. CTS Corp. v. Electro
Materials Corp. of America, 476 F. Supp. 144, 145 (S.D.N-Y. 1979)
(Cannella, J.). The effect of this rule is to exclude adjustments
to the lodestar figure, costs of overhead, and profit from the
amount that is recovered for non-attorney services. See In re Agent
Orange, 611 F. Supp. at 1322. Because paraprofessional time is
properly : zimbursed as a cost or an expense, it must be excluded
from the lodestar calculation.
With respect to attorney hours, plaintiff bears the burden of
showing by “satisfactory evidence” that the hourly rates requested
“are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation.” Blum, 465 U.S. at 895 n.11; Hensley, 461 U.S.
at 433; Rosario v. Amalgamated Ladies’ Garment Cutters’ Union,
749 F.2d 1000, 1005 (2d Cir. 1984); Blowers v. Lawyers
Cooperative Publishing Co., Inc., 526 F. Supp. 1324, 1327-1328
(W.D.N.Y. 1981). Judged by this standard, plaintiff's evidence is
meager. He has submitted brief biographical information on the
attorneys involved, see Fee Application, 4 16-23, 26; a May, 1987,
Manhattan Lawyer article stating that the current rates charged
by fourteen Manhattan law firms of varying sizes ranged from
$75 to $125 per hour for associates and from $190 to $350 per
hour for partners, see id., Exh. C; the affidavit of attorney John
A-59
W. Whittlesey stating that, upon review of the fee application
and supporting documents, he is “satisfied that the fees and ex-
penses requested are correct,” Whittlesey Afft, ¢ 20; and exhibits
attached to a February, 1986 affidavit in an unrelated case show-
ing a wide range of hourly billing rates charged by New York
law firms in 1982, 1983, and 1984. See Whittlesey Afft, Exh. A.
Such submissions do not constitute “specific evidence of the
prevailing community rate for the type of work for which [plain-
tiff] seeks an award.” Nat7 Ass'n of Concerned Veterans, Inc.,
675 F.2d at 1325. Ideally, evidence of the prevailing market rate
should include affidavits from attorneys with similar qualifica- °
tions stating the precise fees they have received for comparable
work or stating the affiant’s personal knowledge of specific rates
charged by other lawyers for similar litigation, data about fees
awarded in analogous cases, evidence of the fee applicant’s rates
during the relevant time period, and evidence submitted by other
fee applicants in like cases. Jd. at 1325-1326. Plaintiff has failed
to submit even his own counsel’s affidavits stating the rates
customarily billed by Wisehart & Koch during the pendency of
this litigation. “[T]he actual rate that applicant’s counsel can com-
mand in the market is itself highly relevant proof of the prevail-
ing community rate.” Jd. at 1326. Furthermore, Whittlesey’s af-
fidavit specifies neither his own billing rates nor his personal
knowledge of rates charged by others.
Plaintiff's submissions establish merely an undifferentiated
range of rates billed by large New York firms during most of the
years at issue. Chambless provides no explanation of how those
rates vary according to skill, type of litigation, size of firm, or
services rendered. Moreover, the appropriate comparison for
Wisehart & Koch is not, as plaintiff appears to believe, to a large
firm, “which, because of increased overheard, charges higher
rates,” but to a small or medium-sized firm. Huertas v. East River
Housing Corp., 662 F. Supp. 282, 286 (S.D.N.Y. 1986) (Carter,
J.), vacated on other grounds, 813 F.2d 580 (2d Cir. 1987). Plain-
tiffs submissions are therefore virtually useless to the court. “Con-
sequently, the [c]ourt must interject its knowledge and expertise
in place of evidence that plaintiff ] could have provided.” Soler,
658 F. Supp. at 1101.
A-60
When services have been rendered over many years, “(n]either
historic nor current rates are ideal.” Carey, 711 F.2d at 1152.
Historic rates fail to take into account inflation or opportunity
costs; current rates, on the other hand, can overcompensate
prevailing parties. Jd. Our Court of Appeals has voiced its reluc-
tance “to impose upon district courts an added burden of ascer-
taining precise year-by-year figures in every case.” Id. The com-
promise adopted in this Circuit, therefore, is to “divide the litiga-
tion into just two phases and use one rate for the early phase
and a current rate for the later phase.” Id.; see In re Agent Orange,
611 F. Supp. at 1309 (noting that our Court of Appeals has ap-
proved the use of a single rate for litigation lasting up to seven
years). The definition of the two phases is entrusted to the trial
court’s discretion. In this case, the court finds it reasonable to
award plaintiff one rate for 1979-82 (Phase I) and a current rate
for 1983-87 (Phasé II). Cf. Soler, 658 F. Supp. at 1102.
In setting reasonable rates of recovery, the court is disposed
to treat senior attorneys John W. Whittlesey, Edmund S. Purves,
and Robert E. Friou jointly. Plaintiff proposes a single rate for
these attorneys, and the court finds them, despite plaintiffs in-
adequate documentation of their backgrounds, to be of roughly
comparable skill and expertise. Whittlesey graduated from Har-
vard Law School, was Senior Labor Attorney for Union Carbide
Corporation from 1952 to 1971, and was Chief Labor Counsel
for that corporation from 1971-82; Purves graduated from Har-
vard Law School in 1955 and participated in the trial prepara-
tion of this case, and Friou graduated from Columbia Law School
in 1946 and was a partner at Wisehart & Koch. Fee Applica-
tion, 44 18-20; Whittlesey Afft, 44 4-5. The proposed rate of $150
per hour for these attorneys seems reasonable. That figure com-
pares favorably with rates awarded to attorneys of roughly com-
parable backgrounds and expertise in this district. See Miele v.
New York State Teamsters Conference Pension & Retirement
Fund, 831 F.2d 407, 408 (2d Cir. 1987) (noting in dicta that
claimed rate of $150 per hour for lawyers with range of skills
and experiences was supported by plaintiff's submissions); Bryson
v. Bank of New York, 81 Civ. 3202 (CSH), slip op. (S.D.N.Y. Jan.
7, 1987) (Haight, J.) ($90, $100, and $105 per hour for exper-
ienced solo practitioner for work performed from 1980 to 1984);
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Huertas, 662 F. Supp. at 286 ($125 per hour reasonable in 1978-80
for experienced civil rights attorney from class of 1969).
Friou’s services were rendered exclusively during Phase I of this
litigation. Fee Application at 13. Whittlesey’s and Purves’s ser-
vices were rendered exclusively during Phase II. Jd. at 14-15.
Friou’s rate should be adjusted downward to account for this fact.
Thus, Whittlesey and Purves will be compensated at the pro-
posed rate of $150 per hour. Friou will receive $125 per hour.
Arthur Wisehart, plaintiffs lead counsel throughout this litiga-
tion, graduated from the University of Michigan Law School in
1954, specializes in employee rights, transportation, and labor
law, has authored numerous published articles, and is a foun-
ding member of the firm of Wisehart & Koch. Fee Application,
¢ 16. Given his role in this litigation, Wisehart’s hourly rate should
be somewhat higher than the rates awarded to Whittlesey, Purves,
and Friou. The court finds Wisehart entitled to receive $175 per
hour during Phase I of this litigation and $200 per hour during
Phase II. These rates are in keeping with other rates awarded
to comparably situated attorneys in this community. Cf. Car-
diology Assocs., P-C., Pension Plan Trust v. Nat1 Intergroup, Inc.,
supra ($200 per hour for senior partners, $175 for principal junior
partner, $110 for associates); Huertas, 662 F. Supp. at 286 (for
class of 1969, hourly rate in 1984 was roughly $200 and by 1985
was at least $225); U.S. Trust Co. of New York v. Executive Life
Ins. Co., 607 F. Supp. 504, 507 (S.D.N.Y. 1985) (Edelstein, J.)
(at large firm, $250 per hour for senior partner, $160 per hour
for first-year partner, $72 per hour for first-year associate).
Time expended by three associates also is included in the fee
application. Irene M. Opsahl graduated with honors from the
University of Wisconsin Law School in 1980 and was Wisehart’s
chief assistant from 1980 to 1985, when she apparently left the
firm. Fee Application, 44 17, 22. Steven Lim graduated from the
Georgetown University Law Center in 1983 and was Wisehart’s
primary assistant on the case thereafter. Jd., § 22. Paula C. Rowe
joined the firm in 1983 and worked exclusively on plaintiff's case.
Rowe Afft, 44 2, 3. All others mentioned in the fee application
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were either paralegals, law clerks still in law school, or law school
graduates who presumably had not been admitted to the bar."
Fee Application, § 23. As stated above, the court will exclude
these non-attorney services from the lodestar calculation.
Opsahl, Lim, and Rowe should receive roughly comparable
rates. Opsahl’s rates should be adjusted upward slightly to reflect
her additional years of experience. The court believes that $80
per hour would be a reasonable rate for Opsahl’s Phase I ser-
vices. Cf. Carey, 711 F.2d at 1152 ($50 per hour for associate's
services rendered in 1972-77 and $75 per hour in 1978 and
thereafter); U.S. Trust Co. of New York, 607 F. Supp. at 507 ($72
per hour for first-year associate at large firm). Defendants pro-
pose a rate of $75 per hour. Plaintiff asks only $70 per hour. Plain-
tiff will receive no more than he has sought. Huertas, 662 F. Supp.
at 286. Therefore, Opsahl’s rate for Phases I and II will be $70
per hour.
Lim’s and Rowe’s services were performed exclusively during
Phase II. Plaintiff seeks only $55 per hour for Lim’s services in
1985, $55 per hour for Rowe's services in 1983, 1984, and 1985,
and $65 per hour for Rowe's services in 1986. Fee Application
at 14-15. These rates are below what defendants propose and can-
not be deemed unreasonable. Thus, the court will employ the
foregoing rates. Lim’s billed time in 1986 and 1987 is reasonably
compensated at $100 per hour. Cf. Cardiology Assocs., P-C., Pen-
sion Plan Trust v. Natl Intergroup, Inc., supra.
To recapitulate, Friou will receive $125 per hour. Whittlesey
and Purves will receive $150 per hour. Wisehart will receive $175
per hour for Phase I and $200 per hour for Phase II. Opsahl will
receive $70 per hour for both phases. Lim will receive $55 per
hour for services performed in 1985 and $100 per hour thereafter.
Rowe will receive $55 per hour for services rendered in 1983, 1984,
and 1985, and $65 per hour for services performed in 1986.
D. Interest
Plaintiff seeks to have his fee award enhanced by 11 percent
interest compounded annually. Ramanujam Afft (Fee Applica-
tion, Exh. F). In general, a fee applicant must choose between
A-63
an award based on current rates and one based on historic rates
adjusted to its present value. Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, US. ; , 107 S. Ct.
3078, 3081 (1987); Van Gemert v. Boeing Co., 516 F. Supp. 412,
417 (S.D.N.Y. 1981) (Cooper, J.) (current rate takes into account
inflation and delay in payment). Thus, at most, plaintiff is en-
titled to interest on that portion of the award for which historic
rates were used.
The court finds no enhancement warranted. The decision to
award interest is discretionary. In re Agent Orange, 611 F. Supp.
at 1314. If the court chooses to take delay into account, it is not
required to make “a mechanical calculation of the delay factor
on the basis of interest rates.” In re Fine Paper Antitrust Litiga-
tion, 751 F.2d 562, 601 (3d Cir. 1984) (Becker, J. concurring).
A delay in payment may be taken into account by employing
a multiplier or in setting appropriate hourly rates. In re Agent
Orange, 611 F. Supp. at 1314. In this case, the court adopted suf-
ficiently generous hourly rates for work performed during Phase
I of this litigation to ensure that plaintiff will be amply com-
pensated for all delay.
E. Revised Lodestar Figure
In summary, all time expended by non-attorneys (3,104.55
hours) will be omitted from plaintiffs lodestar calculation
altogether. The remaining hours claimed (4,920.25 hours) will
be apportioned, based on information contained in the fee ap-
plication, to Phase I (2,824.6 hours) and Phase II (2,095.65 hours).
These time figures will be reduced by a total of 30 percent, a
reasonable reduction given plaintiffs inadequate documentation
(15 percent cut) and the inclusion of hours not fairly attributable
to the prevailing or related claims (15 percent cut). The remain-
ing Phase I and Phase II hours will be multiplied by the ap-
propriate hourly rates. The resulting totals ($231,117.95 for Phase
I and $185,073.35 for Phase II), when added, will constitute a
reasonable revised lodestar figure: $416,191.30. These calculations
are set forth in the Appendix to this opinion.
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F. Adjustments to the Lodestar Amount
Once the court has arrived at a reasonable lodestar figure, its
task is not necessarily complete. “There remain other considera-
tions that may lead the district court to adjust the fee upward
or downward, including the important factor of the ‘results ob-
tained.’ ” Hensley, 461 U.S. at 434. In the case of a plaintiff who
has achieved only partial success, “the product of hours reasonably
expended on the litigation as a whole times a reasonable hourly
rate may be an excessive amount. This will be true even where
the plaintiff's claims were interrelated. nonfrivolous, and raised
in good faith.” Id. at 436.
Plaintiffs success in this action must be deemed only partial.
He initially sought payment of his pension benefits retroactive
to May 1, 1977, damages of $100 per day for defendants’ failure
to furnish him with certain pension information, treble antitrust
damages, and a declaration that defendants’ acts were unlawful
and null and void. He also sought punitive damages, costs, and
attorneys’ fees. Chambless, 571 F. Supp. at 1437. Many of these
forms of relief have been denied. “A reduced fee award is ap-
propriate if the relief, however significant, is limited in com-
parison to the scope of the litigation as a whole.” Hensley, 461
US. at 440.
Plaintiff has already reduced his fee request by 25 percent, and
the court has reduced the hours requested in the present applica-
tion by 30 percent. No further reduction is warranted.
G. Costs and Expenses
Plaintiff seeks $74,613.42 in alleged reimbursable costs and ex-
penses.” Fee Application at 15-17. Under Section 502(g)(1) of
ERISA, 29 U.S.C. § 1132(g)(1), plaintiff may receive not only
reasonable attorney’s fees but reasonable costs of action as well.
The decision to award costs is committed to the sound discre-
tion of the district court, whose judgment will not be set aside
absent an abuse of discretion. See 10 Wright, Miller & Kane, Fed.
Pract. & Proc. § 2668 at 197 (2d ed. 1983).
A-65
In general, the prevailing party receives costs as a matter of
course, unless the court or a federal statute or rule directs other-
wise. Rule 54(d), F.R.Civ.P. Recoverable costs are not limited to
those items enumerated in 28 U.S.C. § 1920." That statute is per-
missible, and the fact that most of plaintiff's claimed costs and
disbursements are not explicitly enumerated therein does not
render them unrecoverable. Copper Liquor, Inc. v. Adolph Coors
Co., 684 F.2d 1087, 1099 (5th Cir. 1982). Costs and expenses not
explicitly provided for by statute or rule may be taxed by the
district court, but under such circumstances the court must ex-
ercise its discretion sparingly. Farmer v. Arabian American Oil
Co., 379 U.S. 227, 235 (1964).
“Upon submission of adequate documentation, plaintiff[’s] at-
torneys are entitled to reimbursement of those reasonable and
necessary out-of-pocket expenses incurred in the course of ac-
tivities that benefited [plaintiff].” In re Agent Orange, 61] F. Supp.
at 1314. In this district, costs may be awarded upon submission
of “an affidavit of counsel that the costs claimed are allowable
by law, are correctly stated and were necessarily incurred. Bills
and cancelled checks in payment shall be attached as exhibits.”
Rule 1l(a), Local Civil Rules for the Southern and Eastern
Districts of New York (“Local Rule 11”).
Plaintiff's submissions are wholly inadequate under the terms
of Local Rule 11. Chambless has submitted an eight-page
haphazard assortment of airline, carfare, and hotel receipts, some
of which are illegible, and all of which appear to pertain solely
to plaintiff's costs and expenses, not to counsel's. Thus, $69,898.56
in claimed costs and disbursements is utterly undocumented.
Moreover, plaintiff has not shown, for example, that the requested
witness fees ($12,503.93) were paid to witnesses who actually took
the stand, that the requested expert witness fees ($12,081.38) are
commensurate with fees given to ordinary witnesses, and that
the requested copying expenses ($18,077.64) were not incurred
solely for the convenience of counsel. See Local Rule l1(c)(3) and
(c)(5).
Nor has plaintiff shown that his claimed costs and expenses
were necessarily incurred and were reasonably related to the
A-66
prevailing claim or related claims. See Vulcan Soc y of Westchester
Cty., Inc. v. Fire Department, 533 F. Supp. 1054, 1067 (S.D.N-Y.
1982) (Sofaer, J.). He states, in cryptic terms, that the claimed
costs and expenses were reduced by 8 percent to exclude “those
expenses that might have been avoided but for non-recoverable
items.” Fee Application, { 29. Conceivably, the 8-percent reduc-
tion was intended to exclude costs and expenses incurred in con-
nection with unprevailing claims. If so, the reduction is insuffi-
cient. Even if it were adequate, there is no indication that costs
and expenses incurred by plaintiff and his wife were similarly
reduced.
Plaintiff concedes the insufficiency of his submissions. He states
that “[a]ll of the costs and expenses requested . . . can be substan-
tiated by plaintiff's attorneys if need be,” Reply Br. at 34, and
that he will “produce whatever further documentation the court
believes is necessary.” Jd. at 30. Upon the present showing, his
application for costs and expenses is denied. Plaintiff will be
granted 20 days from the date this opinion issues to submit an
adequate accounting of costs and expenses necessarily and
reasonably incurred in connection with the prevailing and related
claims“ Those submissions must satisfy the requirements of Local
Rule 1l. They must be itemized and adequately documented.
Upon receipt of such submissions, the court will tax the
recoverable costs and expenses. See Lyons, 583 F. Supp. at 1156.
Plaintiff is entitled to recover the out-of-pocket expense of
paraprofessional time spent on the prevailing claim and related
claims. He apportions 3,104.55 hours to such services: 953.75 hours
to paralegals and law clerks and 2,150.8 hours to James D.
Hanlon, a law school graduate who apparently was not a member
of the bar at the time his services were rendered. Because the
court has already determined that a 30-percent reduction in at-
torney hours is necessary to eliminate undocumented and
unrecoverable time from the fee application, plaintiff is advised
that an equivalent reduction in nonattorney hours seems
appropriate.
Plaintiff proposes rates of $35 per hour for paralegals, $45 per
hour for law clerks, and $55 per hour for law school graduates
A-67
not yet admitted to practice. He provides no indication of the
wages actually paid to these non-attorneys. That omission alone
justifies denying him compensation for their services. Campaign
for a Progressive Bronx, 631 F. Supp. at 983. In his revised sub-
missions, therefore, plaintiff is further advised to document the
wages actually paid to nonattorneys whose time is included in
the fee request.
Plaintiff's Pension Benefits
The court must determine whether plaintiff is receiving pen-
sion benefits in the amount to which he is entitled. See
Chambless, 815 F.2d at 873. Chambless claims that his current
monthly benefit of approximately $850, see Ramanujam Afft,
{ 6, impermissibly excludes cost-of-living and actuarial ad-
justments.’ Furthermore, he claims that the effective commence-
ment date of his benefits should have been September 1, 1986,
not October 1, 1986.
A. Cost-of-Living Adjustments
Plaintiff argues that he is entitled, under Article IJ-A, Section
23, of the Plan’s Regulations (“Section 23”), to cost-of-living in-
creases comparable to those given to other 1977 pensioners. In
a November 30, 1984, endorsement, the court wrote:
If 1977 pensioners similarly situated to Captain
Chambless have received cost of living increment?
which increase their monthly benefits beyond the 1977
level, it may well be that Captain Chambless might
be entitled to a monthly stipend with cost of living in-
crements to bring him on par with other 1977
pensioners.
Chambless v. Masters, Mates ¢> Pilots Pension Plan, et al., No.
80 Civ. 4258 (RLC) (S.D.N.Y. Nov. 30, 1984). That view conforms
with the court’s holding that, if Chambless certified that he had
ceased working in the maritime industry and applied for his pen-
sion within six months of the court’s trial opinion, “the trustees
[were] to treat the application as if it had been made in 1977...”
Chambless, 602 F. Supp. at 913.
A-68
Section 23 permits cost-of-living increases for “Pensioners on
the pension rolls as of January 1, 1979,” and thereafter. Ramanu-
jam Afft, Exh. C. The court’s ruling that plaintiff be treated
as though he applied for his pension in 1977 requires that he not
be denied cost-of-living increases merely because he was not ac-
tually on the pension rolls as of the specified date.
Defendants argue that Section 23(b) prohibits such increases
“for any calendar year in the case of a Pensioner who, while
receiving pension benefits in the prior year, has earned in excess
of the maximum then allowable in such prior year under Social
Security without reduction in the Social Security payment.”
DeSimone Afft, § 11, and Exh. F. “[G]iven the fact that he work-
ed steadily as a licensed deck officer from 1977 to August 1986,”
defendants argue, “it seems unlikely that [plaintiff's] earnings were
ever sufficiently low to enable him to qualify for a cost-of-living
adjustment.” Id. Plaintiff responds that Section 23(b) prohibits
cost-of-living increases only to pensioners who received both in-
come in excess of Social Security maximums and a pension benefit
in the previous year. Since Chambless did not begin receiving
his pension benefits until October, 1986, he argues, defendants
have no reason to believe that he must be disqualified under the
terms of Section 23(b).
Plaintiff errs in two respects. First, to the extent that he seeks
cost-of-living adjustments for any year prior to that in which his
benefits actually commenced, plaintiff ignores the undisputed
fact that he is not entitled to retroactive benefits. The Plan's
trustees acted lawfully in requiring Chambless to retire fully
before his pension benefits could commence. Chambless, 602 F.
Supp. at 913. Any cost-of-living adjustments due, therefore, may
be based only on benefits received after plaintiff was fully retired.
Second, plaintiff errs in asking to be exempted from the condi-
tions of Section 23(b). The court did not intend plaintiff to be
accorded privileges unavailable to similarly situated 1977 pen-
sioners, all of whom must satisfy the terms of Section 23(b) before
receiving cost-of-living increases.
Plaintiff has not submitted documentation indicating his en-
titlement to such increases under the Plan’s Regulations.
A-69
Therefore, his request for cost-of-living adjustments must be
denied at this time. Chambless is entitled to have the court deter-
mine whether he is due such adjustments from the date his
benefits began. Therefore, within 20 days of the date this opi-
nion issues, plaintiff may submit documentation to the court that
he believes establishes his entitlement to cost-of-living adjustments
under the Plan’s Regulations, including Section 23(b).
B. Actuarial Adjustment
Plaintiff further contends that his current pension benefit is
not the actuarial equivalent of the amount that would have been
payable in 1977. Wisehart Afft, 4 7. Dr. S. Ramanujam, an ac-
tuary who appeared as an expert witness in this case, attests that
“a further adjustment should be made in the amount of the
benefit to reflect the fact that, as of the time that Captain
Chambless commenced receiving it, his life expectancy was
materially shorter than his life expectancy in May 1977, when
the benefit was initially calculated.” Ramanujam Afft, § 13.
Defendants do not contest the factual claim. They argue that
the requested recalculation amounts to a plea for retroactive
benefits, which this court and the Court of Appeals have une-
quivocally disallowed.
The issue presented is whether an actuarially adjusted pen-
sion would be the functional equivalent of an award of retroac-
tive benefits. The court finds that it would not be. An award of
retroactive benefits, by definition, would increase the total
amount of benefits to which the court has found plaintiff entitl-
ed. The adjustment that plaintiff seeks, however, would not alter
the total amount of pension benefits to which he is entitled over
the course of his expected lifetime. It would merely recognize
that that amount will now be payable over a shorter period of
time. Thus, viewed from the perspective of his total projected
lifetime benefits, the adjustment plaintiff seeks would not increase
his benefits. Nor would it place him at an advantage compared
to similarly situated 1977 pensioners. It would merely enable him
to remain on a par with those pensioners.
The court’s earlier rulings guaranteed plaintiff a wage-related
benefit based on his 1967-77 employment records. That intention
A-70
would be thwarted if defendants were now permitted to diminish
plaintiffs total projected benefits by denying the fact that
payments did not commence until 1986. Previously, the court held
that defendants had “not only suspended Chambless’ rights to
benefits until age 65 but [had] confiscated a considerable part
of those benefits.” Chambless, 602 F. Supp. at 911. It would avail
plaintiff little for the court to have prevented that confiscation
only to permit another confiscation now based on a different
premise.
Defendants’ position is further flawed by internal inconsistency.
Defendants concede that they employed the “more favorable ac-
tuarial factor that was in effect in 1986” to calculate Chambless’
“husband and wife” pension.* See DeSimone Afft, 44 5-8. If
defendants were willing to use a 1986 actuarial factor to calculate
plaintiff's “husband and wife” pension, then they should be willing
to use a 1986 actuarial figure to calculate his gross monthly
benefit.
For the foregoing reasons, the court finds plaintiff entitled to
an actuarial adjustment of his monthly pension benefit. Dr.
Ramanujam states that the adjusted benefit, omitting the re-
quested cost-of-living adjustments and taking into account plain-
tiffs selection of a “husband and wife” pension, should total
$2,689.02 per month. Ramanujam Afft, 4 14. Defendants pro-
pose no alternative figure. Dr. Ramanujam’s figure appears
reasonable and will be adopted by the court.
C. Starting Date of Pension Benefits
Plaintiff claims that his pension benefits should have commenc-
ed on September 1, 1986, not October 1, 1986. Chambless ap-
plied for his pension benefits on August 5, 1986. DeSimone Afft,
Exh. G. Under Article IV, Section 3, of the Plan’s Regulations,
the Plan ordinarily commences payment on the first day of the
month following the expiration of a full calendar month after
submission of a pension application. Jd. The Court discerns no
departure from the Plan’s usual procedure in the treatment of
Chambless’ pension application. That Chambless initially applied
for his pension in 1977 and was admitted to the rolls presumably
A-71
did not relieve defendants of the need to reprocess his applica-
tion. Plaintiff cites no other ground for adjusting the commence-
ment date. Therefore, plaintiff's request is denied.
Conclusion
For reasons set forth above, plaintiffs motions to strike the
Kaplan affidavit, to impose sanctions under Rule ll, F.R.Civ.P.,
and 28 U.S.C. § 1927, and for disqualification or recusal pur-
suant to 28 U.S.C. §§ 144 and 455 are denied.
Plaintiff is entitled to recover $416,191.30 in attorney's fees from
defendants. Plaintiffs application for costs and expenses is denied.
Plaintiff may submit to the court, within 20 days of the date this
opinion issues, an appropriately itemized and documented ac-
counting of recoverable costs and expenses. Defendants’ motion
for costs pursuant to Rule ll, F.R.Civ.P., is denied.”
Plaintiff's request for cost-of-living adjustments also is denied.
Plaintiff may submit to the court, within 20 days of the date this
opinion issues, documentation that he believes establishes his en-
titlkement to such adjustments. Plaintiffs monthly benefit will
be actuarially adjusted to $2,689.02. Plaintiff's request for a
declaration that his pension benefits should have begun on
September 1, 1986, is denied.
The court has carefully considered all other arguments advanc-
ed by the parties and finds them to be without merit.
IT IS SO ORDERED.
Dated: July 20, 1988
New York, New York
/s/ Robert L. Carter
ROBERT L. CARTER
US.DJ.
A-72
APPENDIX
Phase I Calculations (1979-82)
Hours 30 %
Attorney Expended Reduction Rate Total
Wisehart 1253.80 877.66 $175 $153,590.50
Opsahl 1556.30 1089.41 $70 $ 76,258.70
Friou 14.50 10.15 $125 $ 1,268.75
TOTAL: $ 231,117.95
Phase II Calculations (1983-87)
Hours 30 %
Attorney Expended Reduction Rate Total
Wisehart 905.75 634.025 $200 $126,805.00
Opsahl 738.65 517.055 $70 $ 36,193.85
Whittlesey 1.00 .70 $150 $ 105.00
Purves 42.75 29.925 $150 $ 4,488.75
Lim ;
(85) 3.25 2.275 $55 $ 125.125
(86, °87) 53.50 37.450 $100 $ 3,745.00
Rowe,
(83-85) 335.50 234.850 $55 $ 12,916.75
(86) 15.25 10.675 $65 $ 693.875
TOTAL: $ 185,073.35
A-73
Footnotes
' See Chambless v. Masters, Mates & Pilots Pension Plan, 571
F. Supp. 1430 (S.D.N-Y. 1983) (Carter, J.) granting partial sum-
mary judgment to defendants), later proceeding, 602 F. Supp.
904 (S.D.N.Y. 1984) (Carter, J.) (declaring forfeiture of plaintiff's
pension until age 65 a nullity and ordering that pension benefits
be paid upon conditions), affd, 772 F.2d 1032 (2d Cir. 1985)
(remanding for determination of pension benefits), cert. denied,
475 US. 1012 (1986), later proceeding, 15 F.2d 869 (2d Cir. 1987)
(affirming court’s refusal to amend judgment, reversing court’s
denial of attorney's fees, and remanding for determination of a
reasonable fee award).
* Arthur Chambless thus became the sole plaintiff in this action.
* “Since the base years for calculating the wage-related pension
are the ten years immediately prior to retirement ..., the ten
years in question in Chambless’ situation are the years during
which he was employed at a low rate of pay on non-MM & P
vessels... . Consequently, by postponing benefits until age 65,
... and then utilizing the wage-related formula to calculate those
benefits, the amount of Chambless’ pension [would have been]
significantly reduced.” Chambless, 772 F.2d at 1039.
* “In any action under this subchapter ... by a participant,
beneficiary, or fiduciary, the court in its discretion may allow
a reasonable attorney's fee and costs of action to either party.”
29 U.S.C. § 1132(g)(1).
*“Any attorney ... who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 28 U.S.C. § 1927
(Supp. 1988).
* Civil Rule 3(c)(3) permits papers to be submitted after the fil-
ing deadline “upon special permission granted by the court for
good cause shown.” Rule 3(c)(3), Local Rules for the Southern
and Eastern Districts of New York.
A-74
’ Plaintiff seems to be under the mistaken impression that, but
for the Kaplan affidavit, he could not have lost on his motion
for an actuarial adjustment of his pension. It borders on the
ludicrous to claim that the court would be “constrained to rule
in [plaintiff's] favor without something in the nature of the Kaplan
affidavit in opposition.” Chambless Afft, 4 5.
‘ Plaintiff misstated Arthur M. Wisehart’s 1979 fees for the prevail-
ing claim: If Wisehart billed 14.5 hours at $150 per hour, the
correct total is $2,175, not $217.50. See Fee Application, 4 16.
Thus, the total fee award plaintiff seeks is $737,534, not
$735,576.50.
® Pelton’s 13 subject areas are the following: (1) ERISA or pen-
sion claims; (2) the capricious nature of the action to amend the
union pension plan; (3) reduction in pension benefits claim; (4)
failure to provide adequate notice of amendments; (5) suspen-
sion of benefits and the ERISA provisions; (6) selection of age
65 as the retirement age; (7) estoppel of the union in suspending
early retirement; (8) union agency in representing plaintiff; (9)
refusal by the union to comply with plaintiff's request for infor-
mation; (10) adequacy of review of plaintiffs application; (11)
fair representations of plaintiff by the union; (12) emotional
distress of plaintiff; and (3) antitrust violations by shipping com-
panies and the union. Fee Application, Exh. D, § U.
” Plaintiff initially sought $911,536.75 in fees, a 1.5 risk-multiplier,
$69,996.96 in reimbursable costs and expenses, and interest at
1] percent. Plaintiff's Br. at 8-9. The request for a multiplier was
dropped. See Plaintiff's Br., Nov. 13, 1987, at 25. The current
fee request, adjusted to reflect the fact that it covers one year
more than the previous request, is approximately 25 percent lower
than what plaintiff originally sought.
« Plaintiff describes Ingrid Marino, Robert C. Reichelscheimer,
David P. Howe, Scott M. Yaffe, and Marlaine Marie Cragg as
lawyers but requests that they be compensated at law clerk rates.
Because plaintiff has not made it clear to the court whether these
individuals are attorneys, the court will exclude their services from
the lodestar calculation.
A-75
* Counsel's costs and expenses totalled $69,898.56. Fee Applica-
tion, ¥ 29. To that total was added $4,714.86 (plaintiff's figure,
$5,160.86, is miscalculated) incosts and expenses incurred by
Chambless and his wife.
° The items listed are the following: (1) Fees of the clerk and
marshal; (2) Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the case:
(3) Fees and disbursements for printing and witnesses; (4) Fees
for exemplification and copies of papers necessarily obtained for
use in the case; (5) Docket fees under section 1923 of this title.
28 U.S.C. § 1920.
“* The court notes that the Court of Appeals has stated that plain-
tiff is entitled to recover ordinary costs incurred on appeal. Plain-
tiff should submit an appropriate accounting to the court.
‘s Plaintiff states that he currently receives $846.78 per month.
Ramanujam Afft, 4 6. Defendants put the amount at $859.43.
DeSimone Afft, § 7. The discrepancy is small. The court will
adopt plaintiffs figure.
“ The “husband and wife” pension plan option assured Chambless
an adjusted monthly benefit for life and, in the event that his
wife survives him, ensured here a monthly benefit for life equal
to 50 percent of his benefit. See DeSimone Afft, 4 5.
Defendants characterize plaintiff's fee application as patently
improper and his motion to amend the judgment as a baseless
request for retroactive pension benefits already unequivocally
denied by this court and the Court of Appeals; consequently, they
move pursuant to Rule 11, F.R.Civ.P., to recover costs incurred
in responding to these motions. The court finds no basis for an
award of sanctions on either motion.
A-76
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
+
No. 539—August Term, 1986
(Argued: January 5, 1987 Decided: April 6, 1987)
Docket No. 86-7789
>
ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS,
Plaintiffs-Appellants,
—_— Vv. —_
MASTERS, MATES & PILOTS PENSION PLAN, et al.,
Defendants-Appellees.
—
Before:
FEINBERG, Chief Judge, VAN GRAAFEILAND and PIERCE,
Circuit Judges.
+
Appeal by Arthur and Mildred Chambless from orders
of the United States District Court for the Southern Dis-
A-77
trict of New York, Robert L. Carter, J., denying their
request for attorney’s fees and refusing to amend the judg-
ment to specify the amount of an ERISA pension benefit.
Affirmed in part and reversed in part.
>
ARTHUR M. WISEHART, New York, NY (Wise-
hart & Koch, John W. Whittlesey, of
Counsel), for Plaintiffs-Appellants.
BETTINA B. PLEVAN, New York, NY (Prosk-
auer Rose Goetz & Mendelsohn, Joseph
Baumgarten, of Counsel), for Defendants-
Appellees.
+>
FEINBERG, Chief Judge:
This case requires review of the standards for the award
of attorney’s fees under the Employee Retirement Income
Security Act (ERISA) 29 U.S.C. §§ 1001-1461. Plaintiffs
Arthur and Mildred Chambless (Chambless) appeal from
orders of the United States District Court for the South-
ern District of New York, Robert L. Carter, J., denying
their motion for an award of attorney’s fees and their
motion to amend the judgment. For reasons set forth
below, we affirm in part and reverse in part.
Background
This is the second time this case has come before us. On
the prior appeal and cross-appeal, we affirmed Judge Car-
ter’s holding that a pension plan amendment postponing
and reducing Chambless’ pension nghts was arbitrary and
A-78
capricious and therefore void. Chambless v. Masters,
Mates & Pilots Pension Plan, 772 F.2d 1032 (2d Cir.
1985), cert. denied, 106 S. Ct. 1189 (1986). Although
familiarity with that opinion is assumed, we will recite
those facts necessary to understand the present appeal.
Chambless originally brought suit against the Masters,
Mates & Pilots Pension Plan (the Plan), its trustees, its
administrator and a variety of other parties. The com-
plaint alleged a host of wrongs, including various ERISA
violations, restraint of trade and breach of the duty of fair
representation. Judge Carter granted defendants summary
judgment on many of Chambless’ claims, see Chambless
v. Masters, Mates & Pilots Pension Plan, 571 F. Supp.
1430 (S.D.N.Y. 1983), and dismissed others at the close
of Chambless’ case at trial. What remained was Chamb-
less’ contention that Amendment 47 of the Plan was arbi-
trary and capricious.
Amendment 47 was part of an effort by the Interna-
tional Organization of Masters, Mates & Pilots (the
Union) to pressure older deck officers to retire, thereby
creating openings for younger officers so that the younger
officers would be content with their union affiliation. As
part of this effort, the Union began assigning senior deck
officers to lower grade, and lower paying, assignments,
Chambless v. Masters, Mates & Pilots Pension Plan, 602
F. Supp. 904, 911 (S.D.N.Y. 1984), aff'd, 772 F.2d 1032
(2d Cir. 1985), cert. denied, 106 S. Ct. 1189 (1986). Since
pension benefits under the Plan are wage-related, accept-
ing lower paying jobs reduced the senior officers’ pen-
sions.
An older deck officer who refused to accept the low
grade assignments had the option of either retiring or
entering the employ of a company not affliated with the
?
~!
©
Plan. Amendment 47 decreased the attractiveness of the
latter option, however, by providing that an unretired
Officer, with vested rights under the Plan, who worked for
a company that did not participate in the Plan would not
receive pension benefits until age 65. In contrast, a retired
officer who subsequently worked for a plan participant
had to wait no more than six months after he again retired
for his pension benefits to resume, regardless of his age.
Thus, by delaying their pensions, Amendment 47 effec-
tively punished plan participants for working for
non-participant employers. See 772 F.2d at 1039.
The punitive effect of Amendment 47 on Chambless
was twofold. By accepting work from a company not par-
ticipating in the Plan, Chambless would not only forfeit
rights to his pension for the almost ten years until he
reached age 65, but because of the wage-related provision,
“the forfeiture carried an added penalty of halving the
benefits ... he would receive.” 602 F. Supp. at 910.
Chambless, who had accepted work outside the Plan,
brought suit to contest the validity of Amendment 47.
The district court found that Amendment 47 violated
ERISA, 602 F. Supp. 904, and this court affirmed the
judgment and remanded “for a determination of the bene-
fits which Chambless would have received in 1977,” 772
F.2d at 1043.
After our decision in this case, Chambless moved in the
district court to amend the prior judgment in order to cal-
culate the pension benefit to which he was entitled and for
an award of attorney’s fees. The district court summarily
denied the request to amend the judgment and in a sepa-
rate opinion denied the request for attorney’s fees. We
first address the request for attorney’s fees.
A-80
Attorney's Fees
An application for attorney’s fees in an ERISA case is
governed by 29 U.S.C. § 1132(g)(1).’ Ordinarily, the deci-
sion is based on five factors: (1) the degree of the offend-
ing party’s culpability or bad faith, (2) the ability of the
offending party to satisfy an award of attorney’s fees, (3)
whether an award of fees would deter other persons from
acting similarly under like circumstances, (4) the relative
merits of the parties’ positions, and (5) whether the action
conferred a common benefit on a group of pension plan
participants. See Ford v. New York Central Teamsters
Pension Fund, 506 F. Supp. 180, 183 (W.D.N.Y. 1980),
affd., 642 F. 2d 664 (2d Cir. 1981) (per curiam).
Judge Carter applied the five-factor test to Chambless’
motion for attorney’s fees. Although he concluded that
each of the first four factors “must be decided in plain-
tiffs’ favor” and that Chambless’ suit did confer a com-
mon benefit, he declined to award fees. The decision of
whether to award fees lies within the discretion of the dis-
trict court. See Fase v. Seafarers Welfare and Pension
Plan, 589 F.2d 112, 116 (2d Cir. 1978). However, because
Chambless satisfied each element of the five-factor test,
properly construed, we find it was an abuse of discretion
to refuse to award any attorney’s fees.
In declining to make an award, the district court relied
in part on its finding that Chambless did not satisfy the
fifth factor because his suit was not “brought” to confer a
common benefit. In support of this view the judge cited
129 U.S.C. § 1132(gX1) provides:
(1) In any action under this subchapter (other than an action
described in paragraph (2)) by a participant, beneficiary, or fiduciary,
the court in its discretion may allow a reasonable attorney's fee and
costs of action to either party.
A-81
Chambless’ decision, at the start of this litigation, to opt
out of a class action suit brought in the Eleventh Circuit,
Deak v. Masters, Mates and Pilots Pension Plan, No.
79-190-Civ.-T-H (M.D. Fla. June 4, 1984). In Deak, the
plaintiff class challenged Amendment 46 to the Plan. Both
Amendments 46 and 47 covered officers who worked for
employers not participating in the Plan; Amendment 46
covered officers who came out of retirement, while
Amendment 47 covered officers who had never retired.
Judge Carter found that both provisions “ ‘drew a distinc-
tion between certain types of re-employment in the indus-
try primarily to protect [the Union] by discouraging
members who were eligible for their pension from accept-
ing any job which benefited a competing union.’ ” (citing
Deak, slip op. at 15). The plaintiffs in Deak were success-
ful, and Judge Carter apparently felt that Chambless
could have obtained his relief in that suit. Thus, although
Chambless’ suit did confer a common benefit by neutral-
izing Amendment 47, Judge Carter felt that since Chamb-
less chose to opt out of the Deak class on the basis of
claims that eventually failed, his suit was not “brought” to
confer a common benefit.
In distinguishing between the motivation for the ERISA
claim and the effect of the claim, Judge Carter relied on
language used in Miles v. New York State Teamsters Con-
ference Pension and Retirement Fund Employee Pension
Benefit Plan, 698 F.2d 593, 602 n.9 (2d Cir.), cert denied,
464 U.S. 829 (1983). But Miles in turn relied on the opin-
ions of the district court and this court in Ford v. New
York Central Teamsters Pension Fund, cited above, for
the formulation of the factors to be considered in ruling
on a fee request under ERISA. Those opinions looked not
to plaintiff's motive in bringing suit, but to the effect of
plaintiff's victory. It is the latter that is controlling. In
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short, since the district court found that Chambless’ suit
had the effect of conferring a common benefit, the fifth
factor of the test was satisfied.
Judge Carter’s opinion also makes clear that he
declined to award attorney’s fees, even for time spent on
the vindicated ERISA claim, because “[w]hatever plain-
tiffs might have secured in attorney’s fees for litigation
limited to a vindication of Chambless’ pension benefits
has been exceeded by far in custs and expenses plaintiffs
have required defendants to expend in defending against
their claims.” Defendants, however, have not been blame-
less in this case. The five-part test takes into account the
relative merits of the parties’ positions and also requires
findings about bad faith. With respect to the ERISA claim
on which plaintiff prevailed, the district court resolved
both of these factors in his favor. The district court’s deci-
sion to deny fees completely improperly shifts the issue
from whether Chambless is entitled to attorney’s fees for
his successful claim to whether he should be penalized for
his litigation strategy. To the extent that Chambless’
actions were “vexatious[] and wasteful[},” he is obviously
penalized by not recovering any attorney’s fees for those
efforts. This does not affect his right to a reasonable attor-
ney’s fee for his successful claim.
ERISA’s attorney’s fee provisions must be liberally con-
strued to protect the statutory purpose of vindicating
retirement rights, even when small amounts are involved.
See Smith v. CMTA-IAM Pension Trust, 746 F.2d 587,
589-90 (9th Cir. 1984). In this case, the district court
found plausible the claim of Chambless’ attorneys that
they had spent over 9,000 hours and “almost $1 million
in lawyers’ time” on their clients’ behalf. They did suc-
ceed in doubling his pension, and all the factors of the
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ERISA fees test weighed in Chambless’ favor. The district
court stated, “[h]ad this case been brought solely to vindi-
cate Captain Chambless’ claim to appropriate pension
benefits, I would have no hesitancy in awarding attorney’s
fees, since I am satisfied that he was treated badly to serve
the political purposes of [the Plan].” Chambless’ other
claims do not affect this entitlement. Accordingly, on this
issue we reverse and remand to the district court so that
it can determine and award a reasonable fee for the time
spent on Chambless’ vindicated ERISA claim.
In his original motion for attorney’s fees, Chambless
stated “[iJt would not be partical [sic] or feasible to
separate” the time reasonably spent on his sucessful claim
out of the 9,000 hours his attorneys expended; he argued
instead that his claims constituted “a ‘seamless web.’ ”
Judge Carter’s reluctance to make a fee award in the face
of these assertions is understandable. After his motion for
attorney’s fees was denied, Chambless did retreat some-
what from his position that the time spent on his success-
ful claim could not be identified. On remand, however,
the burden wiil lie with Chambless to present an appropri-
ate accounting to the district court of attorney’s time
spent only on the successful claim.
Pension Benefit
Chambless also claims that the district court ignored
this court’s mandate by refusing to amend the judgment
to specify the amount of the monthly pension he is enti-
tled to receive. In its prior opinion, the district court held
that if Chambless retires and applies for a pension, “the
trustees are to treat the application as if it had been made
in 1977 and grant him a wage related pension based on
his 1967-1977 employment record.” 602 F. Supp. at 913.
That decision was affirmed in all respects by this court,
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see 772 F.2d at 1043. We remanded the case to the dis-
trict court to determine “the benefits which Chambless
would have received in 1977.” Id.
It appears that Chambless did not actually apply for his
pension until August 5, 1986; payments to him com-
menced as of Septemher 1. The district court’s final deci-
sion not to amend the judgment came on August 20, 1986
—before Chambless began receiving benefits. Therefore,
any claim by Chambless that the monthly benefit he
would receive would be inadequate could have been prop-
erly denied as premature. To that extent, we affirm the
refusal of the the district court to amend its judgment.
However, Chambless is now concededly receiving approx-
imately $920 a month. Any claim that this sum fails to
include required cost-of-living adjustments and related
claims that he is not receiving, or has not received, the
monetary benefits to which he is entitled under the Plan
may now be presented to the district court. Upon such
presentation, our prior mandate in this case requires the
district court to determine whether Chambless is now
receiving benefits in the amount to which he is entitled.
Judgment affirmed in part, reversed in part and
remanded.
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OPINION AND ORDER OF THE HON. ROBERT L. CARTER,
DATED JUNE 23, 1986
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Pee Re X
ARTHUR CHAMBLESS and
MILDRED H. CHAMBLESS,
Plaintiffs, OPINION
— against — 80 Civ. 4258
(RLC)
MASTERS, MATES & PILOTS
PENSION PLAN, et al.,
Defendants.
<iscsisianaaia ial ia ae X
APPEARANCES
WISEHART & KOCH
Attorneys for Plaintiffs
25 West 43rd Street
New York, New York 10036
ARTHUR M. WISEHART
Of Counsel
PROSEKAUER ROSE GOETZ & MENDELSOHN
Attorneys for Defendants
300 Park Avenue
New York, New York 10022
BETTINA B. PLEVAN
JOSEPH BAUMGARTEN
KATHERINE RAYMOND
Of Counsel
CARTER, District Judge
A-86
Plaintiffs have moved for an award of attorney’s fees pursuant
to § 502(g) of the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1329(g), and in their application seek
$911,536.75 as the lodestar figure, plus a risk multiplier of 1.5
in attorney’s fees and $69,996.96 in reimbursable costs and ex-
penses, with 11% interest requested on this latter item. The pro-
cedure agreed upon in approaching decision on this issue is to
determine first whether an attorney’s fee award is warranted.
If the court decides that such an award is appropriate, then the
amount of the award will be addressed. While plaintiffs have
briefed both issues, defendants have confined their opposition
to the merits of the claim for attorney's fees, without regard to
the amount.
Although the underlying facts have been thoroughly canvassed
in two opinions of this court reported at 571 F. Supp. 1430
(S.D.N.Y. 1983) and 602 F. Supp. 940 (S.D.N.Y. 1985) and an
opinion of the Court of Appeals, reported at 772 F.2d 1032 (2d
Cir. 1986), with which familiarity is assumed, to aid understan-
ding we will restate some of the basic facts.
This action was initially brought against the Masters, Mates
& Pilots Pension Plan (“Plan”), its trustees and administrator,
the International Organization of Masters, Mates & Pilots
(“MM&P”), two employer bargaining organizations and six ship-
ping companies. The far ranging and diverse allegations em-
braced antitrust violations, breach of MM&P’s duty of fair
representation, intentional infliction of mental anguish and emo-
tional distress and arbitrary and discriminatory acts by the Plan
in violation of Chambless’ rights under ERISA. Determinations
before and during the trial weeded out all allegations except
the claim of infringement of ERISA’s requirements by the Plan,
and dismissed from the lawsuit all defendants except the Plan,
its trustees and administrator.
The litigation was fiercely contested and bitterly contentious
throughout. I do not doubt for one minute that plaintiffs have
expended almost $1 million in lawyers’ time during the six years
this litigation has been on file here; however, as the various
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opinions and evidentiary rulings of the court attest, most of that
time was spent by plaintiffs in the futile attempt to establish
the complaint’s broad but unsupportable allegations.
Captain Chambless’ legitimate and justified claim that he had
been unfairly and discriminatorily treated by the Plan, its
trustees and administrator was inflated into a grandiose
challenge to MM&P and the shipping companies bound to it
by collective bargaining agreement. There were originally seven
lawyers involved as defendants’ counsel. Moreover, the asser-
tions were often unclear, and the legal theories on which they
were based ranged from difficult to impossible to comprehend.
Indeed, the grand scale allegations of Sherman Act infringement
and violations of the duty by MM&P of fair representation and
other alleged violations of plaintiffs’ rights threatened to swallow
and obfuscate plaintiffs’ ERISA contentions, the only viable
allegations plaintiffs could rightfully assert.
Had this case been brought solely to vindicate Captain
Chambless’ claim to appropriate pension benefits, I would have
no hesitancy in awarding attorney’s fees, since I am satisfied
that he was treated badly to serve the political purposes of
MM&P. However, that case would not have taken, as this one
has, six years from institution to the present stage. Discovery
would have been limited to ERISA issues. The only defendants
in that litigation would have been those now remaining in the
case — the Plan, its trustees and administrator — and the fees and
expenses requested would have been far short of the more than
$1 million now being sought.
Moreover, as defendants point out, the contentions concern-
ing pension rights were also asserted in a class action — Deak
v. Masters, Mates ¢& Pilots Pension Plan —in the United States
District Court for the Middle District of Florida, while this case
was pending here. The Florida case was certified as a class ac-
tion including “. . . all members of the Masters, Masters & Pilots
Pension Plan who have qualified for ‘Normal’ or ‘Regular’ retire-
ment, are under 65 years of age and have no retired.”
A-88
After class certification in Deak, defendants moved for a stay
of this action pending a decision in Deak. On June 10, 1981,
the court denied the motion on the grounds that some of the
defendants in this case were not defendants in the Florida case
and substantial identity between the two cases was held to be
missing because of the narrow focus of Deak and more expan-
sive allegations before the court in this case. In addition Deak
was found to be an equity action which would be tried to the
court, while this case was to be tried by a jury, “a central right
in the legal system”, slip op. June 10, 1981 at 5:
On or about September 27, 1982, plaintiffs moved to intervene
in Deak for the purpose of seeking an order declaring Chambless
not to be a member of the class certified in Deak or, in the alter-
native, permitting him to opt out of the class. The court granted
the motion on December 7, 1982: “Arthur Chambless shall not
hereafter be considered to be a member of the class, and any
judgment entered in this action shall not be binding on him.”
See Order of December 7, 1982, Appendix C to Plevan Affidavit.
In Deak, Amendment 46 to the Plan was ultimately held to
be illegal under ERISA in part because the “[t]rustees drew a
distinction between certain types of re-employment in the in-
dustry primarily to protect MM&P by discouraging members
who were eligible for their pension from accepting any job which
benefited a competing union.” See Deak, slip op. at 15. In striking
down Amendment 47, this court adopted the reasoning of Deak.
Amendment 47 was found “not in the interest of the Plan par-
ticipants or their beneficiaries and ... not necessary to main-
tain the financial integrity of the [pension] fund.” 602 F. Supp.
at 913.
Both amendments were adopted on August 24, 1976. Amend-
ment 46 applies to retirees and Amendment 47 applies to those
licensed deck officers not yet retired. In either case, if the retiree
or non-retiree works as a licensed deck officer on a vessel owned
by a company not contributing to the MM&P Plan, he forfeits
the right to receive a pension until age 65. Had Chambless in-
tervened in Deak, that court could have dealt with both Amend-
ments and in any event had the claims in this case been
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realistically tailored to the viable ERISA allegations, it would
have been clear that judicial economy would have been furthered
by staying the action in this case pending a determination in
Deak.
An award of attorney’s fees pursuant to § 502(g) of ERISA,
29 U.S.C. § 1132(g) “is discretionary, not mandatory.” Fase v.
Seafarers Welfare and Pension Plan, 589 F.2d 112, 116 (2d Cir.
1978); Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 829
(7th Cir. 1984) (unlike a racial minority, “pension plan par-
ticipants and beneficiaries [do not] constitute a vulnerable group
whose members need special encouragement to exercise their
legal rights . . ”). See also Iron Workers Local No. 272 v. Bowen,
624 F.2d 1255, 1265 (5th Cir. 1980).
In Miles v. New York State Teamsters Conference Pension &
Retirement Fund, 698 F.2d 593, 600 (2d Cir.), cert. denied, 464
U.S. 829 (1983) five factors relevant to an attorney's fee award
under ERISA were listed: (1) the degree of culpability or bad
faith; (2) ability to satisfy the award; (3) the deterrence factor;(4)
the merits of the parties’ positions; and (5) whether the action’
sought to confer a common benefit. While none of these fac-
tors is necessarily decisive, together they constitute the considera-
tions that a court should have in mind in making an ERISA at-
torney’s fee a
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