ROSE v. HEINTZ

No. H-82-555 (AHN)

671 F. Supp. 901 (1987) | Cited 0 times | D. Connecticut | September 28, 1987

ORDER

Absent objection and in accordance with an agreement betweenthe parties (see letter to court dated September 4, 1987), theMagistrate's recommended ruling is approved. So ordered.

MAGISTRATE'S OPINION

The court heard oral argument on the matter of attorney feesJune 29, 1987. Counsel for plaintiffs seek compensation forwork they did on the initial litigation in 1982, their 1985petition for fees before the District Court, and their 1986appeal to the Second Circuit of the District Court's denial ofthe petition.1 They ask for $77,922.33; this figureincludes a one-third enhancement of the "lodestar" figure for"exceptional success". Defendant Commissioner of theDepartment of Income Maintenance ("DIM") argues through itsattorney that the fee requested is excessive, for a variety ofreasons. After carefully considering counsels' thoroughbriefs, able oral argument, the documentary evidence, thecourt grants plaintiffs' petition as modified below.

DIM's objections to the fee request fall into severalcategories: (1) the proper calculation of the number of hoursclaimed, with regard to (a) hours arguably spent on their"unsuccessful" claims, (b) failure in 1982 to keepcontemporaneous time records and the purported inadequacy ofsubsequent attempts to reconstruct those records, (c)duplication of effort caused by multi-attorney2representation, and (d) time spent travelling in connectionwith, as opposed to "working" on the lawsuit; (2) theappropriate hourly rate at which counsel ought to becompensated; and (3) the propriety of an "enhanced" awardbased on either (a) the degree of success achieved on themerits or (b) the amount of risk associated with undertakingto represent these particular plaintiffs in this sort of suit.

A plaintiff cannot hope to recover attorney fees pursuant to42 U.S.C. § 1988 unless s/he is a "prevailing party". But thisis not difficult: So long as s/he has"`succeed[ed] on any significant issue in litigation whichachieve[d] some of the benefits [s/he] sought in bringingsuit'", Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.1933, 1939, 76 L.Ed.2d 40 (1983) (citation omitted), s/he isentitled to some monetary award. The District Court begins itsdetermination of h/er reasonable fee by multiplying "the numberof hours reasonably expended on the litigation . . . by areasonable hourly rate". Id. This deceptively simple formula iscomplicated by the relationship between the results obtainedand the award's reasonableness: Where, as here, a plaintiff"succeeds" on a portion but not all of h/er claims, the courtmust ask:

did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?

Id. at 434, 103 S.Ct. at 1940. In the instant case, DIMcontends that, because plaintiffs' challenge to theconstitutionality of the new step-parent rules under the Aid ToFamilies With Dependent Children ("AFDC") program wasunsuccessful, they cannot be compensated for time spent workingon those claims which involved that challenge. Reasons DIM:plaintiffs' First Amended Complaint contained ten separatecounts, three of which challenged application of thestep-parent rule to Medicaid, four of which challenged the AFDCstepparent rule itself, with the remainder involving both AFDCand Medicaid. Likewise, DIM concludes that, because AttorneyRead spent July 20, 1982 and July 21, 1982 on the Medicaidclaims, Attorney O'Brien necessarily spent July 19 and July 20on the AFDC claims:

Thus, at least 50% of the hours . . . devoted . . . to research and drafting of the complaint should be attributed to work on the unsuccessful claim.

DIM's "Response To Plaintiffs' Petition For Attorneys Fees",Filing 59 at 13.

The Supreme Court in Hensley cautioned against just such amechanical, "mathematical approach [which] compar[es] the totalnumber of issues in the case with those actual prevailed upon",noting that "such a ratio provides little aid in determiningwhat is a reasonable fee in light of all the relevant factors."Id. at 435 n. 11, 103 S.Ct. at 1940 n. 11.

Although plaintiffs' First Amended Complaint did contain tencounts, because those counts "involve[d] a common core offacts" and were "based on related legal theories",id. at 435, 103 S.Ct. at 1940, this count finds it impossibleto winnow purportedly unsuccessful chaff from successful grain.In addition for purposes of the preliminary injunction,plaintiffs relied on two claims only: (1) the violation oftheir rights under the federal Medicaid statute, 42 U.S.C. § 1396aet seq. which occurred when DIM terminated Medicaid basedon the cessation of AFDC benefits and (2) DIM's failure tocomply with Connecticut's Uniform Administrative Procedure Act("UAPA") in promulgating policy decisions which implemented thenew AFDC "step-parent income" rules. Had DIM adhered to theUAPA's detailed procedure for putting the public on notice ofthe change in stepparent income rules, it would/could not haveterminated so hastily plaintiffs' Medicaid benefits.

Plainly, the AFDC and Medicaid claims are so inextricablyentwined that the court cannot divide the hours expended on aclaim-by-claim basis." Id. Thus, it is proper for the court to"focus on the significance of the overall relief obtained bythe plaintiff in relation to the hours reasonably expended onthe litigation." Id. The court finds that all hours spent onthe original complaint and memorandum contributed to theoverall relief plaintiffs enjoyed; therefore their attorneysmust be compensated for the hours reasonably expended on allclaims.

That said, the court moves on to DIM's assertion that itmust penalize plaintiffs for their failure in 1982 to maintaincontemporaneous time logs.

Not until June 15, 1983 did the Second Circuit declare"contemporaneous records" which "specify for each attorney,the date, the hours expended, and the nature of the work done"a "prerequisite for attorney's fees." New York Association ForRetarded Children, Inc. v. Carey,711 F.2d 1136, 1147-1148 (2d Cir. 1983). The Carey court tookpains to point out that the effect of its ruling was to beprospective only, noting well how inequitable would be aretroactive application. DIM, by contrast, would have thiscourt do what the Second Circuit would not: punish plaintiffsfor their past failure to pen a concurrent account of timespent on this case in 1982 by reducing their total award by15%.

DIM cites as authority for its position Dubose v. Pierce,579 F. Supp. 937 (D.Conn. 1984) (court makes 10% reduction),reversed and remanded on other grounds, 761 F.2d 913 (2d Cir.1985), and Rosario v. Amalgamated Ladies Garment Cutters'Union, 749 F.2d 1000, 1008 (2d Cir. 1984) (affirming DistrictCourt's 30% reduction for failure to keep contemporaneous timerecords), as well as Orshan v. Macchiarola, 629 F. Supp. 1014,1019 (S.D.N.Y. 1986) (court grants reduction of greater than30%).3 These cases, however, justify rather than mandateimposition of a penalty for perceived deficiencies caused by apetitioner's failure to keep contemporaneous time records. Thatis, they stand for the proposition that a court may in itsdiscretion reduce by a certain percentage the number of hoursclaimed where those hours are unsupported by contemporaneoustime sheets, in an effort to compensate petitioners reasonably.

The 15% reduction of petitioners' total award DIM urges isunwarranted and inappropriate. Dennis O'Brien, plaintiffs'lead counsel, has stated in affidavits, in memoranda, and inoral argument that he carefully and completely reviewed all"memoranda, briefs, pleadings, documents, files, notes, dailycalendar entries and telephone and travel records" in comingto his conservative calculation of the hours he spent on thismatter. ¶ 8 of Dennis O'Brien's affidavit, May 28, 1985, Filing34. Over defendant's objection, the court at oral argumentaccepted into evidence certain of Mr. O'Brien's personalrecords, comprising internal memoranda and calendar/diaryentries for the period in question. Plaintiffs' Exhibit 1. Fromthese documents, and from the pleadings and papers alreadymentioned, petitioners reconstructed their hours. The court hasreviewed the material thoroughly and is convinced that it tendsto support petitioners' claim that they did indeed work thedisputed 1982 hours. See U.S. v. Kirksey, 639 F. Supp. 634, 638(E.D.N.Y. 1986) (diary entries satisfy need for contemporaneoustime records). DIM, in turn, has levelled but vague criticismat petitioners' allegedly "inadequate" timekeeping for workperformed on the merits in 1982, offering no evidencewhatsoever that would tend to show petitioners did not work thedisputed time. Had DIM demonstrated that petitioners' omissioncaused them to spend an "inordinate amount of time . . . on thefee application" and "numerous hours" reconstructing their timelogs, then under Carey the court could choose not to compensatethem for hours worked on the fee petition itself.4 Carey,supra, 711 F.2d at 1148. Because the court finds that timespent reconstructing time records was minimal and hours spenton the fee petition were reasonable, it declines to acceptDIM's argument.

Therefore, the petitioners should be fully compensated forthe hours they worked in 1982. They are also entitled to fullcompensation for work performed in 1985 and 1986 before theDistrict Court and the Second Circuit regarding feeeligibility. However, they are not entitled to compensationfor the 2.5 hours they spent reconstructing their 1982 hours.

Next, DIM complains that plaintiffs' representation byseveral attorneys necessarilyresulted in duplication of effort and with it, excessive andnoncompensable hours. Plaintiffs' attorneys counter, and thecourt agrees, that their team litigation approach was whollyappropriate to the case, and that although there may have beena modicum of unavoidable duplication, there was never anyinstance in which attorneys unreasonably performed the samework. Johnson v. Univ. Col. of Univ. of Ala. in Birmingham,706 F.2d 1205, 1208 (11th Cir. 1983). See also Dubose, supra, 579F.2d at 958 (defendant's duplication claim rejected wherethirteen attorneys represented plaintiffs). In relation toAttorney Eldergill, private counsel for the Muldoon plaintiff,the charge borders on the disingenuous.

The court, mindful of its obligation to award the fourattorneys of record reasonable compensation for all time eachreasonably spent on the case, has studied every time log entryand annotation of this extensive record, from which itconcludes that the hours spent by the attorneys were"appropriate for the scope and complexity of [this] particularlitigation," Carey, supra, 711 F.2d at 1147, and that there wasno unreasonable duplication of attorneys' efforts. Therefore,there shall be no reduction of hours.

DIM would like the court to award petitioners virtuallynothing for only 90.07 of the total travel time they haveclaimed. It suggests that the 76.85 hours travelled inconnection with the underlying litigation are not compensablebecause petitioners spent this time driving. Because theirhands were on the wheel and their eyes on the road, DIM avers,petitioners' minds cannot have been on their work. Therefore,DIM suggests that time should be compensated at 20 cents permile; in the alternative, DIM offers a mere $300 for the claim.According to DIM the 5.8 hours of Attorney O'Brien's traveltime for 1985 should be disallowed for the same reason, asshould all of the time he and Attorney Read spent travelling inconnection with the appeal, with the exception of 3 hours onSeptember 17, 1986 (time accompanied by Mr. O'Brien's notation"Final prep for oral argument [before the Second Circuit] ontrain, taxi") and DIM concedes that these hours are properlycompensated, at 50% of O'Brien's court-awarded hourly rate,because unlike the others they are supported by an annotationthat work was actually performed.

The court does not believe that DIM's approachsatisfactorily compensates petitioners. Like the Court for theEastern District of New York, this court

assumes that [petitioner], as do most lawyers, spend[s] his time traveling preparing for his court appearances. It is said that a lawyer argues three cases: one while traveling to court reflecting on what he or she will do, one while actually in court, and another after leaving court, ruminating on what should have been said and deciding how to repair any errors.

Society for Good Will to Retarded Children, Inc. v. Cuomo,574 F. Supp. 994, 998 (E.D.N.Y. 1983).

The Second Circuit has not ruled specifically on thecompensability of attorney travel time. It has indicated that"a different rate of compensation may well be set for differenttypes of litigation tasks." Cohen v. West Haven Board of PoliceCommissioners, 638 F.2d 496, 505 (1980). Bearing this in mind,as well as the fact that attorneys might not work quite soefficiently and productively in transit as they do in theoffice or at court, the court finds that the total travel timeclaimed here should be compensated at 50% of each attorney'shourly rate. The court declines to adopt the rule announced inChrapliwy v. Uniroyal, Inc., 509 F. Supp. 442 (N.D. Indiana1981), despite petitioners' able championing. The "clearlyarticulated congressional policy of enabling plaintiffs toobtain legal counsel," id. at 455, does not always demand thattravel hours be fully compensated. Rather, it calls for a fairdetermination of reasonable attorney fees based on carefulevaluation of the facts of the particular case. In this case,the CLS petitioners should receive one-half their hourly ratetimes the hours claimed. However, the court has computed Ms.Eldergill's travel time fee at 100% of her hourlyrate, for the following reason: She requested compensation for20.90 hours at $75 per hour, or $1567.50, plus $7.20 in costs,for a total award of $1574.70 (Filings 23 and 33). Exhibit Aof Filing 23 documents satisfactorily the claimed hours. Thatthe 6/2/82 and 7/6/82 entries do not differentiate between"work" and "travel" time is immaterial. The hours involved(1.5 hours for "Hearing, Travel" and 3.6 hours for"Conference-Travel") are so few, Ms. Eldergill's request somodest, and her representation of the Muldoon plaintiff soable and successful, that it would denigrate the judicialprocess to expend public funds on a further quibble over thisamount to which she is so clearly entitled.

Having determined the number of hours for which counsel forplaintiffs will receive compensation and the travel time rate,the court turns to the question of hourly rate. The traditional"lodestar" formula multiplies the number of billable hours by"the hourly rate normally charged for similar work by attorneysof like skill in the area." City of Detroit v. Grinnell Corp.,560 F.2d 1093, 1098 (2d Cir. 1977). Reasonable attorney feesare calculated according to prevailing market rates in therelevant community. Blum v. Stenson, 465 U.S. 886, 895, 104S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). This holds true"regardless of whether plaintiff is represented by private ornon-profit counsel." Id. Because it is "inherently difficult"to fix an appropriate market rate for lawyers' services, theSupreme Court suggested that the district courts look forguidance to "rates charged in private representations." Id. at896 n. 11, 104 S.Ct. at 1547 n. 11. To that end, it requiredthe petitioning attorney to . . inform and assist the court in the exercise of its discretion . . . [by] produc[ing] satisfactory evidence — in addition to [h/er] own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.

Id. This attorneys for plaintiffs have done. See affidavits ofDavid Shaw, Esq., Beverly J. Hodgson, Esq., Emanuel Margolis,Esq., Edward M. Dale, Esq., Shirley Berget, Esq. (Filing 60).

Attorney O'Brien seeks $125 per hour for work performed in1982 and $150 per hour for work performed from 1985 through1987; Attorney Read requests $75 per hour for work done in1982 and $100 per hour for work done in 1986; AttorneyKostecki seeks $85 per hour for work performed in 1982; andAttorney Eldergill seeks $75 per hour for work done in 1982.Having examined the aforementioned affidavits and takenjudicial notice of current billing rates in the District ofConnecticut, the court concludes that the hourly ratespetitioners request are well within the bounds ofreasonableness.5 The court notes further that, underCarey, it is entirely appropriate in the context of this"multi-year case" to use an "historic" billing rate for timeclaimed for 1982 and a current rate for "services renderedwithin the preceding two or three years" — here, 1985 through1987. Carey, supra, 711 F.2d at 1153.

Usually the factors discussed above will generate a feewhich fairly and adequately compensates counsel for all workreasonably performed. In the rare case, however, the figurearrived at will reflect but inaccurately an attorney'sendeavor and entitlement. At such times the court may in itsdiscretion adjust the award to take into account "moresubjective factors", including the high quality of the work,the inherent complexity of the issues, the lawyer's superiorskill, the risk of the litigation, and "exceptional" success.Hensley, supra, 461 F.2d at 435; Carey, supra, 711 F.2d at1140;Blum, supra, 465 U.S. at 899, 104 S.Ct. at 1549.

CLS counsel for plaintiffs have requested that the courtmake an upward adjustment of their award in recognition oftheir "exceptional" success and the risk associated with thislitigation. They ask that their respective hourly rates beincreased by one-third. DIM demurs, stating that the facts ofthis case warrant no such modification.

The court agrees with petitioners that an "enhanced" award,calculated differently than they propose, is entirelyappropriate here, but only on the first ground they advance.Their success was "exceptional", not only by virtue of thenumber of people benefitted6 but especially in light of the"truly vital nature of the medical insurance benefits"7re-secured for plaintiffs and others like them. See Plaintiffs'Memorandum in Support of Petitions For Attorneys Fees, Filing58 at 8. This fact alone justifies an enhancement. And, aspetitioners note, that success significantly affected the bodyof law which governs attorney fees and furthered § 1983'sremedial purposes. Plaintiff's Reply Memorandum of Law . . .,Filing 60 at 25.

Trickier is the question whether the court may compensateO'Brien, Kostecki, and Read for the contingent nature ofsuccess. In Carey the Second Circuit cautioned that while

a component of a bonus for risk of failure may be appropriate in some cases to entice private firms to undertake difficult cases in which victory is uncertain,

Carey, supra, 711 F.2d at 1154, there is no need to so "induce"non-profit organizations to accept these cases, for they "existto represent groups . . . with constitutional claims at thecutting edge of the law." Id. Thus, an enhancement for riskawarded non-profit counsel would be unreasonable and thereforeimpermissible under § 1988. In reducing the district court's25% bonus for counsels' "exemplary" service to 10%, the courtsaid:

Bonuses awarded to non-profit law offices, when awarded at all, should not exceed a modest percentage of the lodestar amount and should not include any increment for the uncertain risk of achieving success in the litigation.

Id. at 1154-1155.

Petitioners argue that the Second Circuit's mandate againstawarding bonuses to non-profit firms for risk was necessarilyaltered by the later Blum v. Stenson. They point to Lewis v.Coughlin, 801 F.2d 570 (2d Cir. 1986) as evidence that it isnow permissible to award a bonus for risk in this Circuit. InBlum, the Supreme Court rejected an argument that an enhancedaward is never appropriate under § 1988, declining in afootnote "to draw a distinction between profit and non-profitlaw offices" in the context of upward adjustment of the"lodestar." Blum, supra, 465 F.2d at 901 n. 18. In Lewis,decided after Blum, the Second Circuit made known that whilerisk alone might not suffice for a risk-based bonus, itscoupling with a contingent fee arrangement could well entitlean attorney to an upward adjustment. But the fee applicant inLewis, as defendant correctly points out, was aprivate-for-profit law office. It would seem, then, thatrisk-based enhancement to non-profit counsel remains improperin this Circuit, notwithstanding Blum.

For the foregoing reasons the court concludes petitionersare entitled to a bonus of a "modest percentage of thelodestar", here 15% rather than the one-third increase intheir hourly rate they request. However, although there wasconsiderable risk associated in this case where "low-incomestep-children were pitted against the vast resources of boththe state and federal governments" (Filing 58 at 8), thiscourt is powerless to compensate counsel for that risk.

For the foregoing reasons, petitioner's fee request isgranted to the extent indicated by the chart below:

HOURLY HOURS RATE SUBTOTALS ----- ---- -------O'BRIEN 1982 WORK 125 $125 $15,625.00 TRAVEL 31.10 62.50 1,943.75

1985 WORK 51.25 $150 $7,687.50 TRAVEL 1.80 75 135.00

1986 WORK 114.50 $150 $17,122.50 TRAVEL 12.35 75 926.25

1987 WORK 14.65 $150 $2,297.50 TRAVEL 4 75 300.00 --------------------------------------------- $46,037.50

(MINUS (2.5 hours x $150) RECONSTRUCTION OF 1982 HOURS) - 375.00 ---------- $45,662.50 15% ENHANCEMENT $6,849.38 ---------- GRAND TOTAL $52,511.88 ==========READ 1982 WORK 81.25 $75 $6,093.75 TRAVEL 25.25 37.50 946.88

1986 WORK 4.25 $100 $425.00 TRAVEL 1.50 50 75.00 --------------------------------------------- $7,540.63 15% ENHANCEMENT $1,131.09 ---------- GRAND TOTAL $8,671.72 ==========

KOSTECKI 1982 WORK 37.65 $85 $3,200.25 TRAVEL 20.50 42.50 871.25 --------------------------------------------- $4,071.50 15% ENHANCEMENT 610.73 ---------- GRAND TOTAL $4,682.23 ==========

ELDERGILL 20.90 $75 $1,567.50 --------------------------------------------- COSTS 7.20 ------------------------ $1,574.70

Therefore, the total amount in attorney's fees to be awardedagainst DIM is $67,440.53, to be apportioned as set out above.The parties are free to seek timely review by an Article IIIjudge pursuant to statute, 28 U.S.C. § 636, and Local Rules.

1. Plaintiffs' lead counsel represented at oral argumentthat he would not seek compensation for time spent on thatpresentation. The court relied on his representation infashioning its award. For these reasons it denies his claim,filed July 28, 1987, for additional compensation of $3,060.00for hours spent prosecuting the fee amount question. SeePlaintiff's Third Substitute Petition For Attorney's Fees(Filing 62).

2. Connecticut Legal Services ("CLS") attorneys O'Brien(lead), Read, and Kostecki, and private attorney KatherineEldergill worked on the case.

3. DIM also relies on Kennecott Corp. v. E.P.A.,804 F.2d 763 (D.C. Cir. 1986). But that case involved petitioners who"refused to provide the contemporaneous time logs" they hadcompiled, submitting instead stacks of "monthly bills sent . .. to their clients" and "generalized summaries of work,"thereby "greatly hampering" review of their fee request by thecourt, which reduced their ultimate award by 15%. Kennecott,supra, at 767. There has been no such recalcitrance — and noallegation thereof — exhibited by plaintiffs in this case towarrant the reduction.

4. The court notes that Carey authorizes not a percentagereduction of the ultimate award but a reduction in the numberof hours (i.e. those spent on the fee petition) only.

5. The court finds that these rates, when factored into the"lodestar" equation, result in neither "windfall" nor "profit"to the CLS attorneys. Therefore it is not necessary to set thebilling rate "breakpoint" Judge Newman spoke of in New YorkAssociation For Retarded Children, Inc. v. Carey,711 F.2d 1136, 1152 (2d Cir. 1983) (harmonizing discordance betweenCongressional proscription against fee applicants' receiving"windfalls" and Congressional admonishment that, in awardingfees, court should not draw distinctions between non-profit andprofit-making fee applicants, by setting maximum rate fornon-profit counsel).

6. A consideration whose significance the Blum courtquestioned. Blum v. Stenson, 465 U.S. 886, 900, 104 S.Ct. 1541,1549, 79 L.Ed.2d 891 (1983).

7. Cf. Massachusetts Association of Older Americans v.Sharp, 700 F.2d 749, 753 (1st Cir. 1983) (termination ofMedicaid benefits that causes individuals to forgo . . .necessary medical care is clearly irreparable injury).

ORDER

Absent objection and in accordance with an agreement betweenthe parties (see letter to court dated September 4, 1987), theMagistrate's recommended ruling is approved. So ordered.

MAGISTRATE'S OPINION

The court heard oral argument on the matter of attorney feesJune 29, 1987. Counsel for plaintiffs seek compensation forwork they did on the initial litigation in 1982, their 1985petition for fees before the District Court, and their 1986appeal to the Second Circuit of the District Court's denial ofthe petition.1 They ask for $77,922.33; this figureincludes a one-third enhancement of the "lodestar" figure for"exceptional success". Defendant Commissioner of theDepartment of Income Maintenance ("DIM") argues through itsattorney that the fee requested is excessive, for a variety ofreasons. After carefully considering counsels' thoroughbriefs, able oral argument, the documentary evidence, thecourt grants plaintiffs' petition as modified below.

DIM's objections to the fee request fall into severalcategories: (1) the proper calculation of the number of hoursclaimed, with regard to (a) hours arguably spent on their"unsuccessful" claims, (b) failure in 1982 to keepcontemporaneous time records and the purported inadequacy ofsubsequent attempts to reconstruct those records, (c)duplication of effort caused by multi-attorney2representation, and (d) time spent travelling in connectionwith, as opposed to "working" on the lawsuit; (2) theappropriate hourly rate at which counsel ought to becompensated; and (3) the propriety of an "enhanced" awardbased on either (a) the degree of success achieved on themerits or (b) the amount of risk associated with undertakingto represent these particular plaintiffs in this sort of suit.

A plaintiff cannot hope to recover attorney fees pursuant to42 U.S.C. § 1988 unless s/he is a "prevailing party". But thisis not difficult: So long as s/he has"`succeed[ed] on any significant issue in litigation whichachieve[d] some of the benefits [s/he] sought in bringingsuit'", Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.1933, 1939, 76 L.Ed.2d 40 (1983) (citation omitted), s/he isentitled to some monetary award. The District Court begins itsdetermination of h/er reasonable fee by multiplying "the numberof hours reasonably expended on the litigation . . . by areasonable hourly rate". Id. This deceptively simple formula iscomplicated by the relationship between the results obtainedand the award's reasonableness: Where, as here, a plaintiff"succeeds" on a portion but not all of h/er claims, the courtmust ask:

did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?

Id. at 434, 103 S.Ct. at 1940. In the instant case, DIMcontends that, because plaintiffs' challenge to theconstitutionality of the new step-parent rules under the Aid ToFamilies With Dependent Children ("AFDC") program wasunsuccessful, they cannot be compensated for time spent workingon those claims which involved that challenge. Reasons DIM:plaintiffs' First Amended Complaint contained ten separatecounts, three of which challenged application of thestep-parent rule to Medicaid, four of which challenged the AFDCstepparent rule itself, with the remainder involving both AFDCand Medicaid. Likewise, DIM concludes that, because AttorneyRead spent July 20, 1982 and July 21, 1982 on the Medicaidclaims, Attorney O'Brien necessarily spent July 19 and July 20on the AFDC claims:

Thus, at least 50% of the hours . . . devoted . . . to research and drafting of the complaint should be attributed to work on the unsuccessful claim.

DIM's "Response To Plaintiffs' Petition For Attorneys Fees",Filing 59 at 13.

The Supreme Court in Hensley cautioned against just such amechanical, "mathematical approach [which] compar[es] the totalnumber of issues in the case with those actual prevailed upon",noting that "such a ratio provides little aid in determiningwhat is a reasonable fee in light of all the relevant factors."Id. at 435 n. 11, 103 S.Ct. at 1940 n. 11.

Although plaintiffs' First Amended Complaint did contain tencounts, because those counts "involve[d] a common core offacts" and were "based on related legal theories",id. at 435, 103 S.Ct. at 1940, this count finds it impossibleto winnow purportedly unsuccessful chaff from successful grain.In addition for purposes of the preliminary injunction,plaintiffs relied on two claims only: (1) the violation oftheir rights under the federal Medicaid statute, 42 U.S.C. § 1396aet seq. which occurred when DIM terminated Medicaid basedon the cessation of AFDC benefits and (2) DIM's failure tocomply with Connecticut's Uniform Administrative Procedure Act("UAPA") in promulgating policy decisions which implemented thenew AFDC "step-parent income" rules. Had DIM adhered to theUAPA's detailed procedure for putting the public on notice ofthe change in stepparent income rules, it would/could not haveterminated so hastily plaintiffs' Medicaid benefits.

Plainly, the AFDC and Medicaid claims are so inextricablyentwined that the court cannot divide the hours expended on aclaim-by-claim basis." Id. Thus, it is proper for the court to"focus on the significance of the overall relief obtained bythe plaintiff in relation to the hours reasonably expended onthe litigation." Id. The court finds that all hours spent onthe original complaint and memorandum contributed to theoverall relief plaintiffs enjoyed; therefore their attorneysmust be compensated for the hours reasonably expended on allclaims.

That said, the court moves on to DIM's assertion that itmust penalize plaintiffs for their failure in 1982 to maintaincontemporaneous time logs.

Not until June 15, 1983 did the Second Circuit declare"contemporaneous records" which "specify for each attorney,the date, the hours expended, and the nature of the work done"a "prerequisite for attorney's fees." New York Association ForRetarded Children, Inc. v. Carey,711 F.2d 1136, 1147-1148 (2d Cir. 1983). The Carey court tookpains to point out that the effect of its ruling was to beprospective only, noting well how inequitable would be aretroactive application. DIM, by contrast, would have thiscourt do what the Second Circuit would not: punish plaintiffsfor their past failure to pen a concurrent account of timespent on this case in 1982 by reducing their total award by15%.

DIM cites as authority for its position Dubose v. Pierce,579 F. Supp. 937 (D.Conn. 1984) (court makes 10% reduction),reversed and remanded on other grounds, 761 F.2d 913 (2d Cir.1985), and Rosario v. Amalgamated Ladies Garment Cutters'Union, 749 F.2d 1000, 1008 (2d Cir. 1984) (affirming DistrictCourt's 30% reduction for failure to keep contemporaneous timerecords), as well as Orshan v. Macchiarola, 629 F. Supp. 1014,1019 (S.D.N.Y. 1986) (court grants reduction of greater than30%).3 These cases, however, justify rather than mandateimposition of a penalty for perceived deficiencies caused by apetitioner's failure to keep contemporaneous time records. Thatis, they stand for the proposition that a court may in itsdiscretion reduce by a certain percentage the number of hoursclaimed where those hours are unsupported by contemporaneoustime sheets, in an effort to compensate petitioners reasonably.

The 15% reduction of petitioners' total award DIM urges isunwarranted and inappropriate. Dennis O'Brien, plaintiffs'lead counsel, has stated in affidavits, in memoranda, and inoral argument that he carefully and completely reviewed all"memoranda, briefs, pleadings, documents, files, notes, dailycalendar entries and telephone and travel records" in comingto his conservative calculation of the hours he spent on thismatter. ¶ 8 of Dennis O'Brien's affidavit, May 28, 1985, Filing34. Over defendant's objection, the court at oral argumentaccepted into evidence certain of Mr. O'Brien's personalrecords, comprising internal memoranda and calendar/diaryentries for the period in question. Plaintiffs' Exhibit 1. Fromthese documents, and from the pleadings and papers alreadymentioned, petitioners reconstructed their hours. The court hasreviewed the material thoroughly and is convinced that it tendsto support petitioners' claim that they did indeed work thedisputed 1982 hours. See U.S. v. Kirksey, 639 F. Supp. 634, 638(E.D.N.Y. 1986) (diary entries satisfy need for contemporaneoustime records). DIM, in turn, has levelled but vague criticismat petitioners' allegedly "inadequate" timekeeping for workperformed on the merits in 1982, offering no evidencewhatsoever that would tend to show petitioners did not work thedisputed time. Had DIM demonstrated that petitioners' omissioncaused them to spend an "inordinate amount of time . . . on thefee application" and "numerous hours" reconstructing their timelogs, then under Carey the court could choose not to compensatethem for hours worked on the fee petition itself.4 Carey,supra, 711 F.2d at 1148. Because the court finds that timespent reconstructing time records was minimal and hours spenton the fee petition were reasonable, it declines to acceptDIM's argument.

Therefore, the petitioners should be fully compensated forthe hours they worked in 1982. They are also entitled to fullcompensation for work performed in 1985 and 1986 before theDistrict Court and the Second Circuit regarding feeeligibility. However, they are not entitled to compensationfor the 2.5 hours they spent reconstructing their 1982 hours.

Next, DIM complains that plaintiffs' representation byseveral attorneys necessarilyresulted in duplication of effort and with it, excessive andnoncompensable hours. Plaintiffs' attorneys counter, and thecourt agrees, that their team litigation approach was whollyappropriate to the case, and that although there may have beena modicum of unavoidable duplication, there was never anyinstance in which attorneys unreasonably performed the samework. Johnson v. Univ. Col. of Univ. of Ala. in Birmingham,706 F.2d 1205, 1208 (11th Cir. 1983). See also Dubose, supra, 579F.2d at 958 (defendant's duplication claim rejected wherethirteen attorneys represented plaintiffs). In relation toAttorney Eldergill, private counsel for the Muldoon plaintiff,the charge borders on the disingenuous.

The court, mindful of its obligation to award the fourattorneys of record reasonable compensation for all time eachreasonably spent on the case, has studied every time log entryand annotation of this extensive record, from which itconcludes that the hours spent by the attorneys were"appropriate for the scope and complexity of [this] particularlitigation," Carey, supra, 711 F.2d at 1147, and that there wasno unreasonable duplication of attorneys' efforts. Therefore,there shall be no reduction of hours.

DIM would like the court to award petitioners virtuallynothing for only 90.07 of the total travel time they haveclaimed. It suggests that the 76.85 hours travelled inconnection with the underlying litigation are not compensablebecause petitioners spent this time driving. Because theirhands were on the wheel and their eyes on the road, DIM avers,petitioners' minds cannot have been on their work. Therefore,DIM suggests that time should be compensated at 20 cents permile; in the alternative, DIM offers a mere $300 for the claim.According to DIM the 5.8 hours of Attorney O'Brien's traveltime for 1985 should be disallowed for the same reason, asshould all of the time he and Attorney Read spent travelling inconnection with the appeal, with the exception of 3 hours onSeptember 17, 1986 (time accompanied by Mr. O'Brien's notation"Final prep for oral argument [before the Second Circuit] ontrain, taxi") and DIM concedes that these hours are properlycompensated, at 50% of O'Brien's court-awarded hourly rate,because unlike the others they are supported by an annotationthat work was actually performed.

The court does not believe that DIM's approachsatisfactorily compensates petitioners. Like the Court for theEastern District of New York, this court

assumes that [petitioner], as do most lawyers, spend[s] his time traveling preparing for his court appearances. It is said that a lawyer argues three cases: one while traveling to court reflecting on what he or she will do, one while actually in court, and another after leaving court, ruminating on what should have been said and deciding how to repair any errors.

Society for Good Will to Retarded Children, Inc. v. Cuomo,574 F. Supp. 994, 998 (E.D.N.Y. 1983).

The Second Circuit has not ruled specifically on thecompensability of attorney travel time. It has indicated that"a different rate of compensation may well be set for differenttypes of litigation tasks." Cohen v. West Haven Board of PoliceCommissioners, 638 F.2d 496, 505 (1980). Bearing this in mind,as well as the fact that attorneys might not work quite soefficiently and productively in transit as they do in theoffice or at court, the court finds that the total travel timeclaimed here should be compensated at 50% of each attorney'shourly rate. The court declines to adopt the rule announced inChrapliwy v. Uniroyal, Inc., 509 F. Supp. 442 (N.D. Indiana1981), despite petitioners' able championing. The "clearlyarticulated congressional policy of enabling plaintiffs toobtain legal counsel," id. at 455, does not always demand thattravel hours be fully compensated. Rather, it calls for a fairdetermination of reasonable attorney fees based on carefulevaluation of the facts of the particular case. In this case,the CLS petitioners should receive one-half their hourly ratetimes the hours claimed. However, the court has computed Ms.Eldergill's travel time fee at 100% of her hourlyrate, for the following reason: She requested compensation for20.90 hours at $75 per hour, or $1567.50, plus $7.20 in costs,for a total award of $1574.70 (Filings 23 and 33). Exhibit Aof Filing 23 documents satisfactorily the claimed hours. Thatthe 6/2/82 and 7/6/82 entries do not differentiate between"work" and "travel" time is immaterial. The hours involved(1.5 hours for "Hearing, Travel" and 3.6 hours for"Conference-Travel") are so few, Ms. Eldergill's request somodest, and her representation of the Muldoon plaintiff soable and successful, that it would denigrate the judicialprocess to expend public funds on a further quibble over thisamount to which she is so clearly entitled.

Having determined the number of hours for which counsel forplaintiffs will receive compensation and the travel time rate,the court turns to the question of hourly rate. The traditional"lodestar" formula multiplies the number of billable hours by"the hourly rate normally charged for similar work by attorneysof like skill in the area." City of Detroit v. Grinnell Corp.,560 F.2d 1093, 1098 (2d Cir. 1977). Reasonable attorney feesare calculated according to prevailing market rates in therelevant community. Blum v. Stenson, 465 U.S. 886, 895, 104S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). This holds true"regardless of whether plaintiff is represented by private ornon-profit counsel." Id. Because it is "inherently difficult"to fix an appropriate market rate for lawyers' services, theSupreme Court suggested that the district courts look forguidance to "rates charged in private representations." Id. at896 n. 11, 104 S.Ct. at 1547 n. 11. To that end, it requiredthe petitioning attorney to . . inform and assist the court in the exercise of its discretion . . . [by] produc[ing] satisfactory evidence — in addition to [h/er] own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.

Id. This attorneys for plaintiffs have done. See affidavits ofDavid Shaw, Esq., Beverly J. Hodgson, Esq., Emanuel Margolis,Esq., Edward M. Dale, Esq., Shirley Berget, Esq. (Filing 60).

Attorney O'Brien seeks $125 per hour for work performed in1982 and $150 per hour for work performed from 1985 through1987; Attorney Read requests $75 per hour for work done in1982 and $100 per hour for work done in 1986; AttorneyKostecki seeks $85 per hour for work performed in 1982; andAttorney Eldergill seeks $75 per hour for work done in 1982.Having examined the aforementioned affidavits and takenjudicial notice of current billing rates in the District ofConnecticut, the court concludes that the hourly ratespetitioners request are well within the bounds ofreasonableness.5 The court notes further that, underCarey, it is entirely appropriate in the context of this"multi-year case" to use an "historic" billing rate for timeclaimed for 1982 and a current rate for "services renderedwithin the preceding two or three years" — here, 1985 through1987. Carey, supra, 711 F.2d at 1153.

Usually the factors discussed above will generate a feewhich fairly and adequately compensates counsel for all workreasonably performed. In the rare case, however, the figurearrived at will reflect but inaccurately an attorney'sendeavor and entitlement. At such times the court may in itsdiscretion adjust the award to take into account "moresubjective factors", including the high quality of the work,the inherent complexity of the issues, the lawyer's superiorskill, the risk of the litigation, and "exceptional" success.Hensley, supra, 461 F.2d at 435; Carey, supra, 711 F.2d at1140;Blum, supra, 465 U.S. at 899, 104 S.Ct. at 1549.

CLS counsel for plaintiffs have requested that the courtmake an upward adjustment of their award in recognition oftheir "exceptional" success and the risk associated with thislitigation. They ask that their respective hourly rates beincreased by one-third. DIM demurs, stating that the facts ofthis case warrant no such modification.

The court agrees with petitioners that an "enhanced" award,calculated differently than they propose, is entirelyappropriate here, but only on the first ground they advance.Their success was "exceptional", not only by virtue of thenumber of people benefitted6 but especially in light of the"truly vital nature of the medical insurance benefits"7re-secured for plaintiffs and others like them. See Plaintiffs'Memorandum in Support of Petitions For Attorneys Fees, Filing58 at 8. This fact alone justifies an enhancement. And, aspetitioners note, that success significantly affected the bodyof law which governs attorney fees and furthered § 1983'sremedial purposes. Plaintiff's Reply Memorandum of Law . . .,Filing 60 at 25.

Trickier is the question whether the court may compensateO'Brien, Kostecki, and Read for the contingent nature ofsuccess. In Carey the Second Circuit cautioned that while

a component of a bonus for risk of failure may be appropriate in some cases to entice private firms to undertake difficult cases in which victory is uncertain,

Carey, supra, 711 F.2d at 1154, there is no need to so "induce"non-profit organizations to accept these cases, for they "existto represent groups . . . with constitutional claims at thecutting edge of the law." Id. Thus, an enhancement for riskawarded non-profit counsel would be unreasonable and thereforeimpermissible under § 1988. In reducing the district court's25% bonus for counsels' "exemplary" service to 10%, the courtsaid:

Bonuses awarded to non-profit law offices, when awarded at all, should not exceed a modest percentage of the lodestar amount and should not include any increment for the uncertain risk of achieving success in the litigation.

Id. at 1154-1155.

Petitioners argue that the Second Circuit's mandate againstawarding bonuses to non-profit firms for risk was necessarilyaltered by the later Blum v. Stenson. They point to Lewis v.Coughlin, 801 F.2d 570 (2d Cir. 1986) as evidence that it isnow permissible to award a bonus for risk in this Circuit. InBlum, the Supreme Court rejected an argument that an enhancedaward is never appropriate under § 1988, declining in afootnote "to draw a distinction between profit and non-profitlaw offices" in the context of upward adjustment of the"lodestar." Blum, supra, 465 F.2d at 901 n. 18. In Lewis,decided after Blum, the Second Circuit made known that whilerisk alone might not suffice for a risk-based bonus, itscoupling with a contingent fee arrangement could well entitlean attorney to an upward adjustment. But the fee applicant inLewis, as defendant correctly points out, was aprivate-for-profit law office. It would seem, then, thatrisk-based enhancement to non-profit counsel remains improperin this Circuit, notwithstanding Blum.

For the foregoing reasons the court concludes petitionersare entitled to a bonus of a "modest percentage of thelodestar", here 15% rather than the one-third increase intheir hourly rate they request. However, although there wasconsiderable risk associated in this case where "low-incomestep-children were pitted against the vast resources of boththe state and federal governments" (Filing 58 at 8), thiscourt is powerless to compensate counsel for that risk.

For the foregoing reasons, petitioner's fee request isgranted to the extent indicated by the chart below:

HOURLY HOURS RATE SUBTOTALS ----- ---- -------O'BRIEN 1982 WORK 125 $125 $15,625.00 TRAVEL 31.10 62.50 1,943.75

1985 WORK 51.25 $150 $7,687.50 TRAVEL 1.80 75 135.00

1986 WORK 114.50 $150 $17,122.50 TRAVEL 12.35 75 926.25

1987 WORK 14.65 $150 $2,297.50 TRAVEL 4 75 300.00 --------------------------------------------- $46,037.50

(MINUS (2.5 hours x $150) RECONSTRUCTION OF 1982 HOURS) - 375.00 ---------- $45,662.50 15% ENHANCEMENT $6,849.38 ---------- GRAND TOTAL $52,511.88 ==========READ 1982 WORK 81.25 $75 $6,093.75 TRAVEL 25.25 37.50 946.88

1986 WORK 4.25 $100 $425.00 TRAVEL 1.50 50 75.00 --------------------------------------------- $7,540.63 15% ENHANCEMENT $1,131.09 ---------- GRAND TOTAL $8,671.72 ==========

KOSTECKI 1982 WORK 37.65 $85 $3,200.25 TRAVEL 20.50 42.50 871.25 --------------------------------------------- $4,071.50 15% ENHANCEMENT 610.73 ---------- GRAND TOTAL $4,682.23 ==========

ELDERGILL 20.90 $75 $1,567.50 --------------------------------------------- COSTS 7.20 ------------------------ $1,574.70

Therefore, the total amount in attorney's fees to be awardedagainst DIM is $67,440.53, to be apportioned as set out above.The parties are free to seek timely review by an Article IIIjudge pursuant to statute, 28 U.S.C. § 636, and Local Rules.

1. Plaintiffs' lead counsel represented at oral argumentthat he would not seek compensation for time spent on thatpresentation. The court relied on his representation infashioning its award. For these reasons it denies his claim,filed July 28, 1987, for additional compensation of $3,060.00for hours spent prosecuting the fee amount question. SeePlaintiff's Third Substitute Petition For Attorney's Fees(Filing 62).

2. Connecticut Legal Services ("CLS") attorneys O'Brien(lead), Read, and Kostecki, and private attorney KatherineEldergill worked on the case.

3. DIM also relies on Kennecott Corp. v. E.P.A.,804 F.2d 763 (D.C. Cir. 1986). But that case involved petitioners who"refused to provide the contemporaneous time logs" they hadcompiled, submitting instead stacks of "monthly bills sent . .. to their clients" and "generalized summaries of work,"thereby "greatly hampering" review of their fee request by thecourt, which reduced their ultimate award by 15%. Kennecott,supra, at 767. There has been no such recalcitrance — and noallegation thereof — exhibited by plaintiffs in this case towarrant the reduction.

4. The court notes that Carey authorizes not a percentagereduction of the ultimate award but a reduction in the numberof hours (i.e. those spent on the fee petition) only.

5. The court finds that these rates, when factored into the"lodestar" equation, result in neither "windfall" nor "profit"to the CLS attorneys. Therefore it is not necessary to set thebilling rate "breakpoint" Judge Newman spoke of in New YorkAssociation For Retarded Children, Inc. v. Carey,711 F.2d 1136, 1152 (2d Cir. 1983) (harmonizing discordance betweenCongressional proscription against fee applicants' receiving"windfalls" and Congressional admonishment that, in awardingfees, court should not draw distinctions between non-profit andprofit-making fee applicants, by setting maximum rate fornon-profit counsel).

6. A consideration whose significance the Blum courtquestioned. Blum v. Stenson, 465 U.S. 886, 900, 104 S.Ct. 1541,1549, 79 L.Ed.2d 891 (1983).

7. Cf. Massachusetts Association of Older Americans v.Sharp, 700 F.2d 749, 753 (1st Cir. 1983) (termination ofMedicaid benefits that causes individuals to forgo . . .necessary medical care is clearly irreparable injury).

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