CLS is not sufficient to excuse its failure to not even attempt to secure relief for the plaintiff prior to the commencement of a federal lawsuit. Mr. Donahue did not make a phone call or write a letter to PHA's legal department explaining his client's problems and demanding relief. If PHA received such a letter, it would have had an opportunity to meet the plaintiff's demands, and it would have been aware of the threat of a lawsuit (with a potential award of attorney fees) if it did not fix plaintiff's problems.
Assuming that PHA has an inefficient bureaucracy, its tardiness in addressing tenants' problems does not excuse plaintiff's failure to attempt to work out these problems prior to filing this lawsuit. The Court does not see how the plaintiff would have suffered "irreparable harm" by giving PHA a brief opportunity to resolve an ordinary landlord-tenant problem without a federal lawsuit.
On November 23, 1993, Mr. Donahue met with his client. Six days later, on November 29, 1993, he filed his complaint in this Court. How would Ms. Jackson be harmed, if during the six days her attorney was preparing the complaint, Mr. Donahue communicated with PHA and explained his client's problems? At least, there would be no issue as to whether this lawsuit was superfluous or necessary to vindicate the plaintiff's rights.
While it would have been preferable had Mr. Donahue not filed this lawsuit first, and asked questions later, the Court, nonetheless, finds, that because of the unusual circumstances of this case, the application of CLS for attorney fees should be granted with some reductions. This is because, even after the lawsuit was commenced, PHA did not timely respond to plaintiff's complaints. In January 1994, approximately forty (40) days after the case was filed, PHA agreed to all of the plaintiff's demands and entered into a Stipulation of Settlement which was approved by the Court. This quick settlement does give credence to PHA's contention that this suit was unnecessary. CLS, however, was compelled to reopen the case to enforce the settlement because of PHA's noncompliance. Thus, unlike the facts in the Greenside and Naprstek cases, discussed above, this case was not wholly superfluous and unnecessary to plaintiff's ultimate relief.
The first stipulation of settlement was approved by the Court on January 10, 1994. Under that stipulation, Priscilla Jackson was to have been made "head of household" and the paperwork was to be completed in sufficient time for Priscilla Jackson to receive a monthly rent statement by February 1, 1994. In addition, PHA agreed to make payments to the gas and electric utilities on behalf of Priscilla Jackson. As of February 11, 1994, PHA had not complied with any of these agreements and on March 4, 1994, Mr. Donahue, after notice to PHA counsel, moved to enforce the settlement agreement. (N.T. 6/13/94, 118). As a result of this motion, a final settlement stipulation resolving all of the outstanding issues was approved by the Court on April 26, 1994. The stipulation provided that PHA would make all of the repairs and make the necessary rent and utility adjustments. Thus, PHA's noncompliance with the first settlement agreement fulfilled Mr. Donahue's prophecy that PHA would be dilatory in resolving Priscilla Jackson's complaints.
C. Calculation of Lodestar
1. Reasonable Hours
In evaluating a fee petition, a court should exclude hours that are not reasonably expended. "Hours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
CLS requests compensation for 24.3 hours of work performed on this case. With the exception of 2.4 hours spent by Mr. Donahue reviewing handicap accessibility plans, and incorporating those plans in a settlement agreement,
I find the time expended by CLS on this case to be reasonable.
(i) Handicap Accessibility Plans
My reasons for not compensating the 2.4 hours devoted to the handicap accessibility plans are as follows. Based on the testimony at the evidentiary hearing, I find that the lawsuit was not a material factor in Priscilla Jackson receiving modifications to her home to accommodate her physical disabilities. It is undisputed that the first time anybody at PHA heard that the plaintiff's mother, Priscilla, needed modifications to her home, because of her physical disabilities, was after the lawsuit was commenced. (N.T. 6/13/94, 59). Margaret Fahringer, Accessibility Coordinator at PHA, is responsible for ensuring that PHA comply with Section 504 of the National Rehabilitation Act, 29 U.S.C. § 794, requiring that public housing authorities make accommodations for people with physical disabilities. Mr. Donahue conceded that Ms. Fahringer is "an articulate, capable, and dedicated person." (N.T. 6/13/94, 163). Ms. Fahringer first heard of Ms. Priscilla Jackson's needs when she received a telephone call on December 13, 1993 from Mr. Donahue, who called at the suggestion of PHA's counsel. (N.T. 6/13/94, 56, 164; time sheets of CLS, Appx. "D" to Petition). This was within two weeks after the filing of the lawsuit.
As a result of the call, Ms. Fahringer contacted the plaintiff and her family and on January 3, 1994, a PHA representative and architect visited and evaluated the rental unit. After interviewing Priscilla Jackson, the architect drafted plans to add a ramp, a new bathroom, and a wide door to the unit. The plan was dated February 28, 1994. In March 1994, the plans were approved by the family and an estimate in the amount of $ 30,000 was given to the PHA. (N.T. 6/13/94, 56). There is nothing to suggest that the lawsuit was necessary to get Ms. Fahringer to act on Priscilla Jackson's request. On the contrary, all that was needed was a phone call to her. This could have been easily done prior to a lawsuit.
Given that the record demonstrates that the filing of the lawsuit was not, in any way, a factor in causing PHA to respond to Priscilla Jackson's handicap needs, the Court finds that attorney fees expended for the 2.4 hours spent on this issue are not reasonable and will not be awarded.
(ii) Specific Objections
PHA has objected to the reasonableness of specific hours in the time sheets of CLS. I find these objections to be without merit. First, based on Mr. Donahue's testimony, and my review of the drafted pleadings, I find that 4.5 hours drafting the complaint, the motion for preliminary injunction, discovery request and the motion to proceed in forma pauperis were reasonable.
I further find that the 3.2 hours negotiating and drafting the two stipulation agreements were reasonable, with the exception of .7 hours (12/11/93 and 12/15/93 entries) which were devoted to the wheelchair accessibility plans (N.T. 6/13/94, 126-128 ).
PHA objects to the .6 hours expended to draft and file a motion to reopen the case. The case was inadvertently marked closed by the Clerk of the District Court. (N.T. 6/13/94, 132-33). When Mr. Donahue informed Judge Padova's deputy clerk that there were still outstanding issues not resolved, the clerk informed him to file a motion to reopen the case. Id. at 133. Given that Mr. Donahue was following the instructions of court personnel, I find that the .6 hours expended were reasonable.
PHA objects to the 2.7 hours of time spent drafting and filing a motion to enforce the first settlement agreement, and reviewing PHA's response to the motion. As discussed earlier, it was necessary to file the motion. Although PHA did develop a handicap accessibility plan for Priscilla Jackson before the motion to enforce settlement was filed, PHA had not yet made her head of household, correctly calculated her rent, or made reimbursements for utilities. (N.T. 6/13/94, 134-35). Thus, plaintiff's counsel was compelled to file the motion.
Mr. Donahue did write a letter to PHA counsel on February 7, 1994 advising him that if the terms of the settlement agreement were not executed by March 1, 1994, he would file a motion to enforce the settlement. Thus, PHA had an opportunity to prevent the filing of the motion and the additional attorney's fees. The filing of the motion on March 4, 1994 caused the Court to hold a settlement conference on March 30, 1994 which resulted in the parties agreeing to the final stipulation of settlement filed on April 26, 1994. Thus, I find reasonable the 2.7 hours spent by Mr. Donahue on the motion to enforce settlement.
Finally, PHA objects to 2.6 hours spent by Mr. Donahue in drafting the fee petition in this case, on the grounds that counsel had filed numerous similar motions in the other civil rights cases he filed in this Court. The fee application is extensive. It contains a motion, a memorandum of law, and affidavits of Mr. Donahue, the plaintiff and Lorrie McKinley, a CLS attorney who is chairperson of the attorney's fee committee at CLS. The fee petition also attached numerous opinions from judges of this Court discussing fee awards to CLS in similar housing cases. The fee petition consists of much more than standard boilerplate language. I find that 2.6 hours spent in drafting the fee petition was reasonable.
In summary, I find that a total of 21.9 hours expended by Mr. Donahue on this case are compensable.
2. Hourly Rate
The reasonable hourly rate is calculated according to the prevailing market rates in the relevant community. The Court must "assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Rode v. Dellarciprete, supra at 1183 Attorneys employed by a nonprofit organization are entitled to compensation at the market rate of the legal community at large. Blum v. Stenson, 465 U.S. 886, 895, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984).
Mr. Donahue requests a fee of $ 210 per hour, a figure set by the CLS attorney's fee committee. This amount is based upon Mr. Donahue's status as a supervisory attorney at CLS with approximately 16 years experience in public housing litigation. PHA objects to the award of this hourly rate since it alleges the hours were for tasks that were either unnecessary or could have been performed by a non-supervisory attorney or a paralegal. In support of this position, PHA cites the Honorable James McGirr Kelly's opinion in Clark v. Philadelphia Housing Auth., 1994 U.S. Dist. LEXIS 6870 (E.D.Pa., filed May 25, 1994), appeal docketed, No. 94-1626 (3d Cir. June 17, 1994).
In Clark, Judge Kelly awarded Mr. Donahue $ 150 an hour because the case was "a routine case involving no difficult or novel issues." Id at *3. Judge Kelly found a less senior attorney could have carried out the tasks performed by Mr. Donahue. The Court noted that the current CLS Fees Schedule provides the following rates: (1) attorneys with 0-2 years experience have billing rates ranging from $ 90 to $ 120 per hour; (2) attorneys with 2-5 years experience have a rate from $ 120 to $ 160 per hour; and (3) attorneys with 6-10 years experience have a range of rates from $ 150 to $ 200 per hour. Based on CLS' schedule, Judge Kelly found $ 150 to be a reasonable rate for the tasks performed by Mr. Donahue.
The Third Circuit has affirmed the award of reduced hourly rates for experienced attorney's services when the work on the case could have been performed by an associate-level attorney. In Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir. 1983) the Court expressed its disapproval of "the wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates." The Court stated that "routine tasks, if performed by senior partners in large firms, should not be billed at their usual rates. A Michelangelo should not charge Sistine Chapel rates for painting a farmer's barn." Id. at 677. Similarly, in In re Fine Paper Antitrust Litigation, 751 F.2d 562 (3d Cir. 1984), the Court found no abuse of discretion when Judge McGlynn awarded reduced rates for partners' services that represented associate-level work. Id. at 591-93, 599. Likewise, in Daggett v. Kimmelman, 811 F.2d 793 (3d Cir. 1987), the Court found the trial court did not abuse its discretion in reducing an attorney's hourly rate from $ 300 to $ 250, even though the attorney established that his historic hourly rate was $ 300. The Court stated that "there . . . comes a point where a lawyer's historic rate, which private clients are willing to pay, cannot be imposed on his or her adversaries." Id. at 799. More recently, in In re: Busy Beaver Building Centers, Inc., 19 F.3d 833 (3d Cir. 1994), a bankruptcy case, the Third Circuit noted that "[a] run-of-the-mill bankruptcy case does not warrant the lofty fees of nationally-renowned law firms. . . . In other words, the reasonable hourly rate has a cap based on the expected and actual complexity of the case." Id. at 855 n.35 (citations omitted).
This Court is persuaded by Judge Kelly's reasoning in Clark which is supported by Third Circuit precedent. Judge Kelly's decision to reduce Mr. Donahue's hourly rate also is in harmony with Circuit Judge Aldrich's ruling that "a civil rights plaintiff is not entitled to recover a fee for a particularly expensive lawyer at his usual rates if plaintiff's suit does not require such special qualifications." Furtado v. Bishop, 84 F.R.D. 671, 676 n. 9 (D.Mass. 1979) (Aldrich, C.J., sitting by designation).
Given the facts of this case, I conclude that Mr. Donahue should only be awarded $ 150 per hour for the time he spent on this case. This was not a factually or legally complex case. It involved no novel legal issues, and no extensive trial work. Indeed, no discovery was taken, with the exception of one set of interrogatories and request for documents. The case initially settled within 40 days of the filing of the Complaint, and concluded shortly after a motion to enforce the settlement was filed. The benefit of the lawsuit to the plaintiff was to cause PHA to hasten to do what it admitted it was required to do. A persistent lawyer was needed to keep PHA's feet to the fire, and Mr. Donahue ably filled that role. Nonetheless, this task did not require the assignment of a supervisory lawyer billing $ 210 per hour. This case was more suitable for a lawyer with two to five years experience. Therefore, based on CLS' fee schedule, the Court will award $ 150.00 per hour, which is reasonable.
Accordingly, I find the lodestar amount to be $ 3,285. The Court has considered, but declines to make either an upward or downward adjustment to the lodestar. See Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Any possible basis for such an adjustment has been reflected in the lodestar. Thus, no adjustment to the lodestar should be made. See Cooper v. Utah, 894 F.2d 1169, 1172 (10th Cir. 1990); Hughes v. Repko, 578 F.2d 483, 487 (3d Cir. 1978).
IV. SUPPLEMENTAL FEE PETITION
Approximately one month after the evidentiary hearing held on June 13, 1994, CLS filed a Supplemental Motion For Attorney Fees, requesting an additional $ 4,791.00 in fees for time expended by Michael Donahue, Esquire and another supervisory attorney, George G. Gould, Esquire, during the hearing to determine counsel fees. The hearing lasted approximately five (5) hours. The amount requested approaches the $ 5,103 in attorney fees requested for litigating the merits of the case. Specifically, Mr. Donahue requests compensation for 14.6 hours at the rate of $ 210.00 per hour. Mr. Gould requests remuneration for 7.5 hours at the rate of $ 230.00 an hour.
An attorney who is successful in obtaining an attorney fee award is entitled to compensation for the time he spent preparing a fee petition and litigating the same, "to the extent such time is reasonably necessary to obtaining a reasonable fee award." Shadis v. Beal, 703 F.2d 71, 73 (3d Cir. 1983); Bagby v. Beal, 606 F.2d 411, 416 (3d Cir. 1979). However, a court should not award fees if the need for the fee litigation could have been avoided. Action on Smoking and Health v. Civil Aeronautics Bd., 233 U.S. App. D.C. 79, 724 F.2d 211, 224 (D.C. Cir. 1984).
The evidentiary hearing was devoted almost entirely to the issue of whether CLS should be denied fees because of its failure to exhaust administrative remedies and to communicate its client's problems to PHA management before filing the lawsuit. This Court has ruled that, while the plaintiff was not required to exhaust her administrative remedies, CLS should have made some pre-litigation effort to allow PHA the opportunity to satisfy the plaintiff's complaints. Thus, as a result of the hearing PHA's position was partially vindicated. Although the Court has awarded fees to CLS' attorneys, this was only because the Court found that unusual circumstances existed in this case.
It is clear to the Court that the evidentiary hearing could have been avoided, if CLS did what it should have done in the first place -- attempt to solve its client's problems without litigation. In enacting the Civil Rights Attorney's Fee Awards Act of 1976, Congress gave broad discretion to the district court "to allow it to take into account equitable considerations." Durett v. Cohen, 790 F.2d 360, 363 (3d Cir. 1986). This Court concludes that it would be unjust to award CLS fees for all of the 22.1 hours it claims it devoted to the evidentiary hearing because the hearing could have been easily avoided.
However, not all of the issues at the evidentiary hearing centered on CLS' efforts to resolve this case prior to filing suit. Some of the fee litigation concerned the reasonableness of certain hours spent by Mr. Donahue on this case. CLS was not entirely successful on all these issues. For example, Mr. Donahue did not receive compensation for work on the wheelchair accessibility plans and was not awarded the requested hourly rate of $ 210.00. Fees should not be awarded for unsuccessfully defending this time and hourly rate. See Prandini v. National Tea Co., 585 F.2d 47, 53, 54 n.8 (3d Cir. 1978) (to be entitled to fees for litigating fee petition, fee petitioner must be successful in fee litigation). On the other hand, after considering Mr. Donahue's testimony, I found his other hours to be compensable, see pp. 21-24 supra. Thus, CLS should be awarded fees for some of the time spent at the fee hearing.
In view of the mixed success CLS had as a result of the evidentiary hearing, and the fact that much of the hearing could have been avoided, the Court will award fees to CLS for only fifty percent (50%) of its claimed 22.1 hours; that is, a total of eleven (11) hours. This is an equitable adjustment since the Court awarded reduced fees for the work on the merits of the case. See Durett v. Cohen, supra at 363 (fees for work on fee petition should be reduced to reflect reduction of the fees for work on the merits) ; Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 925 (3d Cir. 1985) (affirming 12.5% reduction in award for work on fee request because only partial success was achieved); Action on Smoking and Health v. Civil Aeronautics Bd., supra at 224 (affirming 50% reduction in hours claimed for work on fee request to adjust for unnecessary expenditure of time). Furthermore, eleven (11) hours for fee litigation is more in proportion to hours spent on the main case. See Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986) cert. denied, 482 U.S. 914, 96 L. Ed. 2d 674, 107 S. Ct. 3186 (1987) (hours allowed for litigating an attorney fee case should not exceed three percent (3%) of the hours in the main case)
The Court will only award an hourly rate of $ 150 to Messrs. Donahue and Gould for time spent litigating the fee petition. This is the rate the Court awarded for time spent on the merits of the case. Work justifying the fee petition does not require any greater legal skills. See Richerson v. Jones, 506 F. Supp. 1259, 1265 (E.D.Pa. 1981). The Court also does not see any reason why it should award a higher hourly rate to Mr. Gould than awarded to Mr. Donahue since, based on the affidavits submitted, both are of comparable skill and experience. Mr. Gould's primary duty was to present Mr. Donahue as a witness at the hearing. This task does not justify a higher hourly rate than awarded to Mr. Donahue. For all the above reasons, the Court awards fees of $ 1650.00 to CLS for hours expended litigating the fee petition.
For all the above reasons, the Court awards the Community Legal Services attorney fees in the amount of $ 4,935.00 ($ 3,285.00 plus $ 1,650.00). An appropriate order follows.
AND NOW, this 18th day of July, 1994, for the reasons stated in the accompanying Memorandum of Decision, it is hereby
that counsel for the plaintiff, Community Legal Services, Inc., is awarded $ 4,935.00 in fees pursuant to 42 U.S.C. § 1988. Defendant shall satisfy this award within forty-five (45) days of the date of this Order.
BY THE COURT
THOMAS J. RUETER
United States Magistrate Judge