We have determined that the lodestar should be increased by 65% Because we have found that the litigation significantly furthered the substantive purposes of § 1983 of the Civil Rights Act. To the extent that it may be necessary to make a discrete determination of the percentage we have allowed for bad faith, we note that we have increased the lodestar by 20% As a result of defendants' conduct alone.
D. Factoring Hours Spent on the Fee Question
One final point must be considered. Prandini II, 585 F.2d at 53, makes clear that in statutory fee award (as opposed to common fund) cases counsel may recover for time spent litigating the question of fees; the time thus spent is calculated under the Lindy lodestar analysis. Baughman v. Wilson Freight Forwarding Co., 583 F.2d at 1219 prohibits application of a multiple to such hours for contingency and quality, however, since those hours are "incurred apart from the prosecution of the main case, and it is upon the nature of the main case and the quality of the work done on it that adjustments to the lodestar are based."
In the recent case of Bagby v. Beal, 606 F.2d 411 (3d Cir. 1979) the Third Circuit stated that Baughman is not to be read as precluding an adjustment in the lodestar including hours spent on the fee question under the third factoring consideration articulated in Hughes, i. e., the extent to which the litigation furthered the substantive purposes of the Civil Rights Act. Rather, in considering a fee sought under one of the civil rights attorneys fees statutes, the district court must decide "whether the calculated fee, including the portion that reflects compensation for work performed (on the fee question), is reasonable in light of the legislative history of the fee statute and the substantive purposes of the underlying civil rights statute involved." Id. at 417.
We do not take this language to mean that a court making an upward adjustment in the lodestar for work spent on the substantive issues in the case must increase the lodestar for work spent on the fee question by the same percentage amount. Rather we believe the fee hours may be increased by a different percentage, or not at all, in light of the considerations identified in Bagby, so long as the total fee award is reasonable.
We have considered this case in light of Bagby and believe that the fees as calculated under the Lindy and Hughes analyses are reasonable and that no adjustment should be made in the "fee lodestars" to reflect that underlying purposes of the Civil Rights or Fee Awards Acts. The hours spent on the fee question were substantial, and we find that the Lindy calculations alone amply compensate counsel for their time.
Fed.R.Civ.P. 54(d) provides that " . . . costs shall be allowed as of course to the prevailing party unless the court otherwise directs . . . ." Items that may be taxed as costs are identified in 28 U.S.C. § 1920 as follows: (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 § 1923; (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. Although the authority to award costs is broad and committed to the sound discretion of the district court, Farmer v. Arabian American Oil Co., 379 U.S. 227, 85 S. Ct. 411, 13 L. Ed. 2d 248 (1964), traditionally, expenses not provided for by statute are not reimbursed except in unusual circumstances. Thus, the cost of such items as attorney travel and lodging, telephone, and postage have been borne by the litigants themselves and are not subject to recovery. 10 Wright and Miller, Federal Practice and Procedure, § 2666, 6 Moore's Federal Practice P 54.77.
Some courts have held that since, under the American rule, See n. 1, Supra, attorneys' fees are not generally awarded, once the court finds authority to grant such fees either by virtue of a statute or under one of the exceptions to the American rule All costs are included in the concept of attorneys' fees, and expenses not normally reimbursed may be recovered. See, e. g., Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974)
and Wheeler v. Durham City Board of Education, 585 F.2d 618 (4th Cir. 1978). We see nothing in the history of the Fee Awards Act to require this result. By its terms the Act permits the district court to award "a reasonable attorney's fee as Part of the costs." (emphasis added). It seems logical to conclude that by this language Congress was choosing only to authorize recovery of one discrete type of cost attorney's fees and that other costs are to be awarded under separate authority whether by virtue of a federal statute, "rule of court, or in the custom, practice, and usage applicable in a particular district." 6 Moore, supra. We do not view the Fee Awards Act as rendering 28 U.S.C. § 1920 inoperative, nor does there seem to be reason to assume that the term "attorney's fee" as used in the statute includes the concept of expenses. We decline to adopt such a construction.
The courts in this district that have considered in detail the question of what costs may be allowed have taken a similar view. Thus, Judge Huyett in Wehr v. Burroughs Corp., 477 F. Supp. 1012 (E.D.Pa.1979), concluded that under the Age Discrimination in Employment Act, which requires the court to award a reasonable attorney's fee and costs of the action, the term "costs" was limited to statutory costs and did not include out-of-pocket expenses such as Lexis fees, telephone charges, travel, and the cost of meals and exhibits. In Shannon v. United States Department of Housing and Urban Development, 433 F. Supp. 249 (E.D.Pa.1977), Chief Judge Lord held that since the only reference to costs in the Attorney's Fees Awards Act was to an allowance of fees as costs, recovery of other costs and expenses was confined by the boundaries of § 1920. In Meisel v. Kremens, 80 F.R.D. at 427, Judge Higginbotham awarded costs he found to be recoverable under § 1920. In Herrington v. Abington School District, 20 Fair Empl. Prac. Cas. (BNA) 249, Civ. No. 77-1473 (E.D.Pa. May 30, 1979), Judge Fullam refused to permit recovery for telephone calls and postage, which he held were subsumed within the overhead allowance included in the fee award. Judge Fullam did permit recovery of the cost of obtaining deposition transcripts and accident reports, costs that are sometimes viewed as falling within the list of taxable items in § 1920, See Action Alliance for Senior Citizens of Greater Philadelphia, Inc. v. Shapp, 74 F.R.D. 617 (E.D.Pa.1977), and sometimes seen as awarded by virtue of the court's equitable power to reimburse the cost of items whose expense appeared to have been reasonably necessary at the time it was incurred. 10 Wright and Miller, Supra, §§ 2676 and 2677; 6 Moore, supra, P 54.77(4) and (6).
In reviewing the particular expenses sought to be recovered here, we have kept in mind the admonition of the Supreme Court in Farmer, 379 U.S. at 235, 85 S. Ct. at 416, that "the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute." We are also not unaware that an eleventh amendment immunity question might exist were we to tax costs absent congressional authorization. Keyes v. School District No. 1, Denver, Colorado, 439 F. Supp. 393, 417 (D.Colo.1977); See Shannon, 433 F. Supp. at 252; Alyeska, 421 U.S. at 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 ; Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565 at 2577, n. 27, 57 L. Ed. 2d 522. We therefore decline to reimburse counsel for their expenses except as statutorily authorized.
We have determined that the following costs may be recovered:
CLS seeks reimbursement of $ 3,242.06 in costs and expenses. We will allow recovery of $ 2,427.58. This figure includes witness fees and travel (specifically authorized by statute, 28 U.S.C. §§ 1821 and 1920), and the cost of deposition transcripts, (See Action Alliance, supra ), and photocopies,
all expenses which we find to have been reasonably incurred in connection with the case. We have disallowed the cost of postage, telephone, expert fees, and attorney travel, lodging and meals.
Mr. Ferleger seeks to recover costs and expenses amounting to $ 1,218.83. We will permit recovery of $ 329.00 consisting of the cost of photoreproduction. We have disallowed the balance of claimed costs, which comprise in the main Mr. Ferleger's travel, lodging and telephone expenses. Nor will we permit recovery of $ 225.00 in expenses claimed in Mr. Ferleger's final itemization submitted in May, 1979. This figure is, in counsel's own words, merely an estimate and includes telephone and travel costs. We find this unsubstantiated estimate insufficient to support an award of costs, particularly since it includes items that we have determined to be noncompensable.
Mr. Newberg seeks to recover $ 221.50 in expenses. We will allow $ 155.50 in reproduction costs but will not permit reimbursement of the balance of $ 66.00 in telephone costs.
Except with respect to Mr. Newberg, See n. 15 Supra, we have determined that the lodestar figures for the case in chief, which appear Supra at 793, should be increased by 100%, or a factor of 2, to account for the delay in recovery of the fee, the quality of counsel's work, and the extent to which the litigation furthered the substantive purposes of the statute under which it was brought. We have also determined that no increase in the lodestars for time spent on the issue of the attorneys' fees is warranted. For the reasons outlined at such length above, we believe the total fees thus arrived at are reasonable.
The final tabulations are as follows: