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David v. City of Scranton
decided: October 29, 1980.
JAMES B. DAVID, APPELLANT
THE CITY OF SCRANTON; SAYERS, ROBERT H., INDIVIDUALLY AND IN HIS CAPACITY AS HEARING OFFICER OF THE CITY OF SCRANTON, AND THEIR AGENTS, EMPLOYEES, SUCCESSORS IN OFFICE AND ALL PERSONS ACTING IN CONCERT OR COOPERATION WITH THEM OR AT THEIR DIRECTION OR UNDER THEIR CONTROL (D.C. CIVIL NO. 79-0444)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before Gibbons and Rosenn, Circuit Judges, and Weber,*fn* District Judge.
James B. David is a plaintiff in a civil rights action against the City of Scranton and certain city officials which was resolved in his favor by stipulation. He appeals from an order denying in part his application for the award of attorneys fees. The district court made an award of $740 for services for conducting the underlying litigation, but declined to make an award for the 7.5 hours expended in prosecuting the fee application. The defendants opposed the award of counsel fees on the ground that such an award to a publicly funded legal service organization was improper. The district court properly held that this contention is foreclosed by our decision in Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), and the defendants have not appealed from the order making the $740.00 award. However, after having made that award for the litigation, the district court refused to make an award for time spent in litigating the opposed fee application. That refusal is inconsistent with our decisions in Prandini v. National Tea Company (Prandini II ), 585 F.2d 47 (3d Cir. 1978) and Bagby v. Beal, 606 F.2d 411 (3d Cir. 1979). Having made an award of $740 for the underlying litigation, the court should have determined the reasonableness of the additional request and made an additional award.*fn1 Thus a reversal and remand is required.
The plaintiff also contends that the court erred in reducing the $60 hourly rate requested for O. Randolph Bragg, the more experienced of the two attorneys who worked on the case, to $40 an hour. Plaintiff points out that the evidence establishing the reasonableness of the $60 rate is completely unimpeached. Had the $60 figure been used for the lodestar calculation the award for the litigation would total $795. We do not consider this contention insofar as it might increase the $740 award for litigation services, for the notice of appeal puts in issue only denial of an award for time expended in the fee application. But since the question of Mr. Bragg's hourly rate may arise on remand in the latter connection, we observe that on the present record there does not appear to be any justification for reducing the requested hourly rate by one third.
The order appealed from will be reversed and the case remanded for a determination of the amount which should be awarded as attorneys ...
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