of similar experience and qualification in the "public interest bar" may charge somewhat less for their services. However, by accepting the representation of Ms. Levin, these attorneys forewent the representation of other clients who would presumably have been billed at standard rates. Moreover, in the course of this representation, these attorneys obviously availed themselves of the substantial supportive services that a large private law firm provides but which public service law offices unfortunately cannot begin to afford. In light of the high quality of representation, the rates requested are well within reason.
Thus, the lodestar amount here,.$ 12,778.75 is computed as follows:
2. The Court of Appeals has instructed district courts to consider whether the lodestar figure should be adjusted to account for certain exceptional circumstances. In particular, one must determine whether an adjustment should be made on the basis of the contingent nature of the case and the quality of the representation afforded by plaintiff's counsel. Lindy Bros. Builders v. American Radiator and Standard Sanitary Corp., supra; Lindy Bros. Builders v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). In addition, the Court of Appeals has recently emphasized that in civil rights cases the "district court should evaluate the fee to be awarded in light of the important substantive purposes of the Civil Rights Act." Hughes v. Repko, supra, at 489.
Defendants do not seek a diminution of the lodestar under the heading of an adjustment for the quality of plaintiff's representation. They do claim, with the considerable hindsight of the promptly settling litigant, that the fee should be lowered to reflect what defendants now see as the certainty of the victory plaintiff would have gained by adjudication had defendants not acceded fully to her demands.
Defendants' claim that the fee award should be downwardly adjusted to reflect the assurance of ultimate victory is without legal merit. It is by now well established that the contingency adjustment may only be used to increase the lodestar figure, inasmuch as it reflects the risk an attorney takes when he first accepts a case that he might not be successful on the merits and therefore would be denied any fee at all. Hughes v. Repko, supra, at 487-88.
Defendants vigorously assert that the modest amount of money involved in this litigation (the sum of back-pay and pay earned from the date of Ms. Levin's reinstatement to the end of her temporary employment amounted to less than $ 4,000) demands a downward adjustment. Plaintiff responds that particularly in light of the fact that the defendants have, as an apparent but informally realized result of this litigation, ceased using the offending loyalty oath, the small sum in controversy is not a basis for a downward adjustment. More broadly, plaintiff argues that the size of the ad damnum is not part of the framework established by the Court of Appeals in Lindy and may not be considered at all in setting a reasonable fee.
As plaintiff notes, the many cases which have discussed the importance of the relief sought in setting a fee award, have tended to confine discussion of the amount ultimately obtained to the manner in which it might provide some index of the quality of representation. Thus, a Lindy quality adjustment upwards might be premised on a finding that an attorney has obtained maximum benefits in minimal time by efficiently prosecuting his claim. Or, a comparison of the results finally obtained with the sum initially sought might indicate inadequate representation which could be penalized by a downward adjustment. In further support of its position that the small sum involved in this case is irrelevant to my determination, plaintiff notes that the size of the ultimate recovery clearly presents no ceiling on the amount of an appropriate fee. Cf. White v. Beal, supra (granting a substantial award even though the net practical benefit of the lawsuit to the plaintiffs was nil).
I conclude, however, despite plaintiff's reading of Lindy to the contrary, that the use of either a small recovery or a small ad damnum provision in the complaint as a basis for lowering the lodestar under the "quality" rubric does not exhaust the significance, in arriving at a final fee award, of the amount initially sought or finally gained. Most of the lengthy list of factors that the courts have considered in setting appropriate fees, see Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) (listing twelve factors including "the amount involved and the results obtained"), are easily collapsed into the Lindy framework. But even after Lindy, the district court retains the discretion to bring all appropriate considerations to bear in the calculation of a fee. See Hughes v. Repko, supra (refusing to prejudge the factors that the district court on remand might appropriately consider); id. at 489 (Garth concurring) ("post-Lindy discretionary adjustment may be made on the basis of any rational factors articulated by the district judge"); id. at 490 (Rosenn concurring) ("flexibility to consider . . . whether the attorney's time and expense in obtaining a favorable verdict were reasonable, in light of the actual amount recovered.") Cf. Bagby v. Beal, 606 F.2d 411, 3d Cir. 1979 (suggesting that adjustments even to the portion of the award based on time spent preparing the fee petition itself may be made on the basis of the Johnson enumeration of factors). Thus, the amount of money at stake for the plaintiff, in a proper circumstance, and in light of the broader service of the litigation to the purposes of the Civil Rights Act, may be a part of the attorney's fees equation.
But this case does not present a suitable circumstance for lowering the award on the basis of the small sum involved. In short, I would not as a general matter think counsel for civil rights plaintiffs should be given carte blanche to pursue extravagant constitutional claims motivated principally by the anticipation that generous compensation will be forthcoming from the deep pockets of state or local governments. Here, however, it appears that before rushing into litigation, plaintiff offered defendants a more amicable method of resolution. Defendants elected to resist until shown the basic weaknesses of their position by the convincing presentation of plaintiff's counsel. Indeed, plaintiff appeared ready to accept a reasonable compromise as to the award of fees both before and after the considerable additional expenditure of time and effort involved in preparing the fee petition itself. Defendants sturdily and, in my respectful view, unwisely refused to recognize the substantial merit in plaintiff's claim for fees for her attorneys. Thus, I cannot find the efforts I have determined to have been reasonably expended in the course of my lodestar determination to be inappropriate in this case solely on the basis of the small sum involved. Nor can I decide that, in some absolute sense, Ms. Levin's constitutional rights, and the rights of others who may reap incidental benefits from Ms. Levin's insistence on her due in this litigation, were not worth the price her able attorneys would customarily charge to see them vindicated.
Plaintiff has requested compensation of $ 185.30 as costs. Although the defendants have not objected to the itemized disbursements, I note that the plaintiff's submission includes a figure of $ 131.30 for "duplicating." The litigation phase of this case was short-lived and as such generated very little "paper." In this light, this claim apparently refers to copying expenses accumulated in the course of pursuing legal research and of furnishing multiple copies of court papers. It does not appear to refer to fees for "copies of papers necessarily obtained for use in the case" within the meaning of 28 U.S.C. § 1920(4). As essentially a cost of doing business, I will disallow it. In addition, plaintiff's counsel have, in lawyerly fashion, erred in their arithmetic by overstating the total of individual disbursements by one dollar. The final cost figure will thus be fifty-three dollars.
Defendant has asserted that I lack jurisdiction to award counsel fees because plaintiff failed to exhaust her administrative remedies before bringing this litigation to federal court. In the stipulation approved on December 18, 1978, defendant waived all defenses that could have been raised in response to the motion for preliminary injunction. Since that date, the parties have acknowledged that the determination of the proper fee might ultimately devolve upon me. Thus, whatever might have been the merit of this defense to the underlying cause of action, had defendants elected to pursue the principal controversy to adjudication, defendants may not at this late date reassert it to avoid the payment of counsel fees.
For the foregoing reasons, I will enter an order awarding plaintiff counsel fees and costs in the sum which I conclude is a proper modification of the $ 14,952.50 in fees and $ 185.30 in costs claimed by plaintiff to wit,.$ 12,778.75 in counsel fees and $ 53 in costs.