The opinion of the court was delivered by: DITTER
This is an action brought by a federal employee under section 717 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 et seq., for alleged employment discrimination that denied him advancement because of his race. By orders dated December 15, 1975, and March 12, 1976, the late Honorable James H. Gorbey found that plaintiff was unlawfully discriminated against and awarded several retroactive promotions with back pay and both pre-judgment and post-judgment interest but declined to impose punitive damages. On appeal, the Third Circuit affirmed that part of the district court's order denying punitive damages and directing retroactive promotion to GS-9 and GS-11 on the prescribed dates, but reversed that part which (1) provided for Richerson's promotion to GS-12 effective November 15, 1974; (2) established back pay provisions in accordance with its original determinations; (3) awarded pre-judgment and post-judgment interest; and (4) awarded counsel fees in the amount of $ 27,500. Richerson v. Jones, 551 F.2d 918, 929 (3d Cir. 1977).
Following remand by the Court of Appeals, this court on reassignment
found that but for the defendant's unlawful discrimination, plaintiff would have been promoted to GS-12 by December 4, 1974, and, thus, modified the original order of March 12, 1976, to reflect the back pay differential commensurate with such promotion. Plaintiff now seeks attorney's fees and costs incurred in the litigation of this issue on appeal and in the subsequent remand of the proceedings. Accordingly, plaintiff's counsel has submitted a detailed affidavit and brief in support of his supplemental petition for attorney's fees and costs. The Government has filed a brief in opposition to the granting of all the counsel fees and costs that plaintiff has requested.
It is well settled that counsel fees may be awarded to a "prevailing party" in employment discrimination cases under 42 U.S.C. § 2000e-5(k). Prandini v. National Tea Co., 557 F.2d 1015, 1017 (3d Cir. 1972) (Prandini I).
In Swietlowich v. County of Bucks, 620 F.2d 33, 34 (3d Cir. 1980), the Third Circuit stated that a "prevailing party" is one who "essentially succeeds in obtaining the relief he seeks in his claims on the merits." See also Bagby v. Beal, 606 F.2d 411, 414-15 (3d Cir. 1979); Hughes v. Repko, 578 F.2d 483, 486-87 (3d Cir. 1978).
The Government argues that none of the time spent on the appeal should be included in the fee award since all the issues raised therein were determined in its favor and against the plaintiff. Although not explicitly stated, the Government, in effect, is arguing that plaintiff was not a "prevailing party" on appeal. In whatever manner it is couched, this view is plainly incorrect since plaintiff "essentially succeeded" on his employment discrimination claim on appeal and remand, and was awarded the relief sought. On appeal, the Government failed in its assertion that the retroactive promotion of plaintiff from GS-11 to GS-12 was not supported by the evidence. Instead, the court held that the district court failed to make the findings necessary to justify its order, and directed the district court on remand to make specific findings of fact "on this record or as it may require supplementation" in order to support retroactive promotion to GS-12. Richerson v. Jones, supra, 551 F.2d at 924. In sum, the Court of Appeals was not able to determine the basis for the district court's decision from the findings of fact or relevant evidence before it, and thus remanded for clarification. The Government, therefore, did not prevail on its claim on appeal that the district court's job classification award was not predicated on a sufficient evidentiary basis.
In this circuit, the calculation of an award of attorney's fees is governed by the dictates of Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I), and 540 F.2d 102 (3d Cir. 1976) (en banc) (Lindy II), and its progeny. Under these standards, the first item to be determined is the "lodestar," which consists of two factors hours of service times hourly rate.
The hours of service requires a determination of the number of hours actually devoted to claims that ultimately prove successful. Credit is given only for hours "reasonably supportive" of such claims. Hughes v. Repko, supra, 578 F.2d at 487. Plaintiff's attorney has submitted detailed exhibits attached to his affidavit in order to substantiate his time spent. The yearly time allotments, including the time spent in drafting the fee petition, are as follows:
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