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Washington v. Philadelphia County Court of Common Pleas

July 9, 1996






On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 92-3637)

Before: NYGAARD, SAROKIN, and ALDISERT, Circuit Judges

SAROKIN, Circuit Judge

Submitted Under Third Circuit LAR 34.1(a)

Monday, March 11, 1996

(Opinion filed July 9, 1996)


Appellant filed various claims against his former employer alleging racial discrimination and retaliatory harassment and discharge as a result of his pursuit of discrimination claims in agency proceedings. He eventually prevailed on the retaliation claim, though not on the claim of pre-retaliation discrimination. At the conclusion of the proceedings, Appellant petitioned for attorneys' fees, and his request was reduced by the district court by more than eighty percent. He now appeals the reduction of the fee award.

I. Facts and procedural posture

On June 22, 1992, Martin Washington filed an action in the United States District Court for the Eastern District of Pennsylvania against his former employer, the Philadelphia County Court of Common Pleas (the "County Court" or the "Court"). Mr. Washington's nine-count complaint alleged racially discriminatory acts with respect to employment under both federal and state statutes; retaliatory harassment and discharge after he filed an administrative claim of racial discrimination with the Equal Employment Opportunity Commission and the Pennsylvania Human Rights Commission, under both federal and state statutes; civil rights violations under federal and state statutes; violation of Pennsylvania's public policy and common law; and breach of contract of employment.

Five of the nine counts were dismissed on summary judgment in June 1993. The case eventually went to trial in November 1993. At the conclusion of the trial, the jury found that the County Court did not discriminate against Mr. Washington on the basis of race. The jury did find, however, that the Court had unlawfully retaliated against Mr. Washington for filing his administrative claims, and awarded him compensatory damages of $25,000. After the jury verdict, the district court granted a post-trial Motion for Judgment as a Matter of Law to the County Court setting aside the jury verdict.

Mr. Washington appealed to this Court. We reversed the district court's order granting the post-trial motion, and reinstated the jury verdict. Washington v. Philadelphia County Court of Common Pleas, 47 F.3d 1163 (3d Cir. 1995) [table]. On remand, judgment was entered for Mr. Washington on the verdict.

At the conclusion of these proceedings, Mr. Washington's lead attorney, Alan B. Epstein, filed a Petition for Attorneys' Fees claiming that Mr. Washington was the "prevailing party" and seeking a total award of $175,987.50 in attorneys' fees for himself and two colleagues at the firm of Jablon, Epstein, Wolf and Drucker. *fn1 Mr. Washington also sought fees of $3060 for Lanier B. Williams, his attorney in the administrative proceedings, as well as $7973.87 in plaintiff costs. Plaintiff's Petition for Attorneys' Fees and Reimbursement of Costs of Litigation, Washington v. Philadelphia County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 3, 1995) [hereinafter Petition] (JA 12). The County Court challenged, inter alia, the sum requested for Mr. Epstein and his colleagues, asserting that both the hourly fees and hours requested were excessive. Objections of Defendant, Court of Common Pleas of Philadelphia County to Plaintiff's Petition for Attorneys' Fees and Reimbursement for Costs of Litigation, Washington v. Philadelphia County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 28, 1995).

On June 30, 1995, the district court entered a memorandum and order on the fee request. Washington v. Philadelphia County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. June 30, 1995) (mem.) [hereinafter Memorandum]. The court decreased the number of hours allowable by one half, finding Mr. Epstein's claim "excessive and unreasonable," id., typescript at 8, and by an additional fifty percent because Mr. Washington "hardly won a decisive victory in this case." Id. The court, however, did not extend the fifty-percent reduction to hours claimed in preparation of the fee petition.

Regarding the hourly rates sought by Mr. Epstein and his colleagues, the district court deemed it "impossible to consider [them] as bona fide hourly rates." Id., typescript at 11. Instead, the court concluded that "a reasonable hourly rate for [Alan B.] Epstein is $175 per hour. A reasonable rate for [Thomas D.] Rapp is $100 per hour. A reasonable rate for [Nancy] Abrams is $85 per hour." Id., typescript at 12.

Based on its various assessments, the court calculated the amount of the award for Mr. Epstein and his colleagues at $30,389.63, roughly seventeen percent of Mr. Epstein's request. Id., typescript at 13. In addition, the court disallowed any fee for Mr. Williams, "who unsuccessfully represented Washington at his PHRC hearing," id., *fn2 and awarded $7973.97 for plaintiff costs. Id.

Mr. Washington is now appealing the district court's order reducing the counsel fees. He argues that:

The district court erred as a matter of law in its reduction of the hourly rate for plaintiff's counsel and in its reduction of the compensable hours reasonably expended by counsel in this litigation. On both issues the district court applied erroneous legal standards; further, on the compensable hours issue, the court made clearly erroneous factual determinations.

Brief of Appellant at 12.

II. Jurisdiction

This action was commenced pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. Section(s) 2000e et seq. The district court had jurisdiction pursuant to 42 U.S.C. Section(s) 2000e-5(f)(3) and 28 U.S.C. Section(s) 1331 and 1343. Plaintiff's various state claims were properly before the district court pursuant to the doctrine of supplemental jurisdiction as codified at 28 U.S.C. Section(s) 1367(a).

The district court issued a final order on Plaintiff's petition for attorneys' fees on June 30, 1995. We have jurisdiction over an appeal from this order pursuant to 28 U.S.C. Section(s) 1291.

III. Analysis

We review the reasonableness of an award of attorney's fees for an abuse of discretion. Rose v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990). The question of what standards to apply in calculating an award of attorneys' fees is a legal question, and therefore we exercise plenary review over this issue. Keenan v. City of Philadelphia, 983 F.2d 459, 472 (3d Cir. 1992). *fn3

The matter of an attorney's marketplace billing rate is a factual question which is subject to a clearly erroneous standard of review. Student Public Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1442 (3d Cir. 1988) (citing Black Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648, 652 (3d Cir. 1986) (citation omitted), vacated on other grounds, 483 U.S. 1015 (1987)). More generally,

the appellate court may not upset a trial court's exercise of discretion on the basis of a visceral disagreement with the lower court's decision. Similarly, the appellate court may not reverse where the trial court employs correct standards and procedures, and makes findings of fact not clearly erroneous. In sum, "[i]f the district court had applied the correct criteria to the facts of the case, then, it is fair to say that we will defer to its exercise of discretion."

Northeast Women's Center v. McMonagle, 889 F.2d 466, 475 (3d Cir. 1989) (quoting Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (in banc) (citation omitted)), cert. denied, 494 U.S. 1068 (1990).

A. The law of the lodestar

The Supreme Court has held that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Rode, 892 F.2d at 1183 (same). The result of this computation is called the lodestar. The lodestar is strongly presumed to yield a reasonable fee. City of Burlington v. Dague, 505 U.S. 557 (1992).

In this instance, the district court rejected Plaintiff's claims with regard to both the billing rates of his attorneys and the numbers of hours reasonably expended on the litigation. We review each element in turn.

B. The billing rates

The general rule is that a reasonable hourly rate is calculated according to the prevailing market rates in the community. Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984); Student Public Interest Research Group, Inc., 842 F.2d at 1448 (adopting the community market rule). The prevailing party bears the burden of establishing by way of satisfactory evidence, "in addition to [the] attorney's own affidavits," Blum, 465 U.S. at 895 n.11, that the requested hourly rates meet this standard.

In the instant matter, counsel Alan Epstein sought hourly fees of $250 and $275 for himself; fees of $140 and $165 per hour for an associate, Thomas D. Rapp; and fees of $140 and $150 per hour for another associate, Nancy Abrams. Petition, typescript at 10. In support of the request, the lawyers submitted numerous documents, including a "Verification" (in effect, an affidavit) from Mr. Epstein for the fees cited, *fn4 affidavits from various Philadelphia lawyers practicing in employment discrimination cases suggesting fees comparable to Mr. Epstein's, and billing statements in the case.

As the district court accurately noted, "[t]he issue of determining the reasonable hourly rate for an attorney, and the specific issue of determining a reasonable rate for Epstein and his associates are not unchartered waters in the district," Memorandum, typescript at 9. On two earlier occasions, the district court had considered similar requests from Mr. Epstein. Griffiths v. Cigna Corp., No. CIV. A. 91-2356 (E.D. Pa. Oct. 6, 1994) (VanArtsdalen, J.) (Memorandum and Order); Oliver v. Bell Atlantic Corp., No. CIV. A. 92-751 (E.D. Pa. June 30, 1994) (Robreno, J.) (Order Memorandum). In both cases, the court rejected Mr. Epstein's claim and lowered his fee from the requested $250 an hour to a "reasonable hourly rate" of $175 per hour. Griffiths, 1994 WL 543501, *2; Oliver, 1994 WL 315815, **4-5. It is worth noting that the court's determination in Oliver was based on Judge VanArtsdalen's analysis in Griffiths.

The court in the instant case rejected Mr. Epstein's request as well and concluded:

I will follow the rulings made by Judge VanArtsdalen in Griffith [sic] and Judge Robreno in Oliver. I find that a reasonable rate for Epstein is $175 per hour. A reasonable rate for Rapp is $100 per hour. A reasonable rate for Abrams is $85 per hour.

Memorandum, typescript at 2.

Those rulings, however, are no longer valid. This Court recently vacated the district court's decision in Griffiths on the very issue of hourly rates. Griffiths v. Cigna Corp., Nos. 94-2090 & 94-2091 (3d Cir. Nov. 30, 1995) (unpublished). In rejecting the district court's determination, we explained:

As the prevailing party, Griffiths had the burden of demonstrating "the community billing rate charged by attorneys of equivalent skill and experience performing work of similar complexity." See PIRG, 842 F.2d at 1450. We find that he did sustain that burden as to Mr. Epstein's requested rate of $250 per hour, by submitting the affidavits of Harold Goodman, Alica Ballard, and Lorrie McKinley, attorneys in the Philadelphia area who represent plaintiffs in civil rights litigation. These affidavits stated that Mr. Epstein's requested hourly rate of $250 was reasonable and within the range of prevailing rates charged by Philadelphia attorneys with Mr. Epstein's skill and experience. The opposition submitted by CIGNA failed to rebut plaintiff's submissions on this point, both because CIGNA's affidavits focused on the market rates of defense attorneys, and because CIGNA did not otherwise effectively challenge the content of plaintiff's affidavits.

Where, as here, the plaintiff has met his prima facie burden under the "community market rate" lodestar test, and the opposing party has not produced contradictory evidence, the district court may not exercise its discretion to adjust the requested rate downward. Accordingly, we will vacate the attorneys' fee award with respect to the hourly rate allowed for Mr. Epstein's services, and direct that his services be compensated at the $250 rate that plaintiff's uncontroverted proofs established.

By contrast, plaintiff did not meet his prima facie burden of proof with respect to the rates of plaintiff's other attorneys, Mr. Rapp and Ms. Adams. Specifically, Griffiths failed to demonstrate that the requested rates were the prevailing rates in the community. In the absence of such a showing, the district court must exercise its discretion in fixing a reasonable hourly rate. This court cannot say that $100 and $85 per hour are unreasonable, and accordingly the district court's award based on these rates will be affirmed. Id., typescript at 14-16.

Our reasoning in Griffiths applies with equal strength in the instant matter. (It is worth noting that the same attorneys filed affidavits in support of Mr. Epstein's claim, and the district court even noted that Ms. Ballard "apparently filed an identical affidavit before Judge VanArtsdalen in the Griffith [sic] case."). See also Black Grievance Committee, 802 F.2d at 652-53 (district court is not free to disregard attorney's affidavit when the other party "filed no affidavit and offered no testimony contesting the accuracy of [the attorney's] statement with respect to charges by comparable practitioners"); Cunningham v. City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985) (no material issue of fact when affidavit is uncontradicted), vacated on other grounds, 478 U.S. 1015 (1986).

Therefore, we vacate and remand to the district court to reconsider the appropriate hourly fee for Mr. Epstein's services in light of Griffiths, and we affirm the district court's ...

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