the requested rates are the prevailing rates in the community, "the district court must exercise its discretion in fixing a reasonable hourly rate." Washington, 1996 WL 380594, at *5 (quoting Griffiths, slip op. at 16). In the instant case, the Court considered the rate charged by Ms. Ballard and the evidence offered by defendant of the rate charged by an attorney practicing in defense counsel's law firm who possessed skill and experience comparable to that of Mr. Gontram and who had handled cases of similar complexity. The court then applied its personal knowledge of the facts and the issues in the case and of the various tasks performed by petitioning counsel.
A comparison of the skill, experience, and reputation of Ms. Ballard with those of Mr. Gontram is not helpful to plaintiff's case. As Ms. Ballard's affidavit demonstrates, she has more than twenty years of employment discrimination litigation experience. She also teaches employment discrimination at area law schools and frequently participates in presenting educational programs related to employment law. In addition, she is a member of the prestigious American Law Institute.
Mr. Gontram, on the other hand, while having displayed before the Court both skill and determination in an able representation of plaintiff, cannot claim a professional pedigree similar to that of Ms. Ballard. Given Ms. Ballard's claim that she is entitled to an hourly rate of $ 270 per hour, the Court finds that Mr. Gontram's request of $ 250 per hour is unreasonably high.
By contrast, the Court finds that the rate charged by Mary Ellen Krober, an attorney practicing in defendant's law firm best captures the prevailing market rate in this case. Ms. Krober's skill, reputation, and experience are similar to those of Mr. Gontram. She has been in practice since 1975, while Mr. Gontram has practiced since 1972. Ms. Krober also has had public service experience in the City Solicitor's Office, much like Mr. Gontram, who was affiliated with the U.S. Attorney's office. Although Ms. Krober has practiced in the field of employment litigation, she, like Mr. Gontram, does not claim to do so on a full-time basis. Finally, neither she nor Mr. Gontram, unlike Ms. Ballard, claims extensive non-litigating professional or teaching experience in the field of employment law.
Recognizing the similarity between the career profiles of Mr. Gontram and Ms. Krober, the Court accepted Ms. Krober's rate of $ 165 per hour as the best evidence before it of the hourly rate that Mr. Gontram could command in the open market for the services which he performed in this relatively uncomplicated litigation. This rate was then increased by the Court to $ 185 per hour, to reflect its view that, because plaintiff bore the burden of proof, her counsel was entitled to an equitable upward adjustment. See Transcript of 9/19/95 hearing, doc. no. 79, at 35-36.
The remaining issue is the effect, if any, of the recent Third Circuit decision in Griffiths v. CIGNA, 77 F.3d 462 (3d Cir. 1995) (unpublished), which was subsequently quoted with approval in Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1996 WL 380594, at *4-5 (1996).
The Third Circuit in Griffiths found that the plaintiff had satisfied his prima facie burden by submitting the affidavits of three plaintiffs' civil rights attorneys, including that of Ms. Ballard, which stated that the rate requested by plaintiff's counsel "was reasonable and within the range of prevailing rates." Griffiths, slip op. at 15. The court then held that the defendant had failed to rebut plaintiff's submissions "both because [the defendant's] affidavits focused on the market rates of [civil rights] defense attorneys, not civil rights plaintiffs' attorneys, and because [the defendant] did not otherwise effectively challenge the content of plaintiff's affidavits." Id. The Third Circuit concluded that "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." Id.
The Third Circuit subsequently relied on Griffiths in its decision in Washington, 1996 WL 380594, at *4-5.
Washington involved, inter alia, a request by Alan Epstein, Esquire, for an hourly rate ranging from $ 250 to $ 275, depending on the year in which he performed his work as counsel for the prevailing plaintiff in an employment civil rights case. Id. at *3. The district court reduced his request to $ 175, relying on two prior district court rulings, including that of the district court in Griffiths, No. 91-2356, 1994 WL 543501, at *2 (E.D. Pa. Oct. 6, 1994) (VanArtsdalen, J.), vacated, 77 F.3d 462 (3d Cir. 1996), which had reduced Mr. Epstein's hourly rate to $ 175.
The Third Circuit reversed, noting that, since the reduction of hourly rates by the district court in Washington had been based on the decision of the district court in Griffiths, and since the Third Circuit had reversed and remanded the district court's rate reduction in Griffiths, the Third Circuit's reasoning in Griffiths "applies with equal strength in the [Washington ] matter." Washington, 1996 WL 380594, at *4.
At the hearing in the instant case, defendant correctly noted that Griffiths is an unpublished decision that has no precedential value and that does not bind this Court. See Internal Operating Procedures of the United States Court of Appeals for the Third Circuit § 5.3 ("An opinion which appears to have value only to the trial court or the parties is ordinarily not published"). Yet, in deference to the Third Circuit's subsequent reliance on Griffiths in Washington, a published opinion, the Court will not reject plaintiff's contention on that basis. See id. at § 5.2 ("An opinion . . . is published when it has precedential or institutional value.").
Griffiths, however, is distinguishable from the instant case. Moreover, even if the Court were to apply the reasoning of Griffiths to this case, Griffiths does not mandate the result suggested by plaintiff.
In the instant case, plaintiff claims that Ms. Ballard's opinion that Mr. Gontram's rate is "reasonable" satisfies her prima facie burden. She also contends that, under Griffiths, defendant may not challenge Ms. Ballard's conclusion, that the requested rate is in line with the community market rate, by presenting evidence of the hourly rate charged by a lawyer in the private sector who represents defendants in civil rights cases.
Neither Griffiths nor Washington through its reliance on Griffiths is applicable to this case. In Griffiths, the Third Circuit found that the plaintiff had met its prima facie burden of demonstrating the community market rate by his proffer of affidavits from three plaintiffs' civil rights practitioners, including that of Ms. Ballard. However, the Third Circuit neither described nor discussed the extent to which the affiants were familiar with either the issues in the case or the tasks performed by plaintiff's attorneys. Additionally, the Third Circuit did not discuss the evidence upon which the affiants based their opinions that the rates requested were "reasonable."
By contrast, the Court in this case found that plaintiff had not made out her prima facie case because Ms. Ballard lacked the requisite familiarity with the instant facts and issues upon which she could adequately base her opinion. Here, unlike the plaintiff in Griffiths, plaintiff failed to satisfy her prima facie burden.
Even assuming that plaintiff had established a prima facie case, this Court rejects plaintiff's construction of Griffiths as mandating a determination of the community market rate based solely on a comparison of the requested rate with the hourly rates "charged" by other attorneys who represent plaintiffs in employment civil rights cases. As the Supreme Court recognized in Blum, because plaintiffs' civil rights lawyers in reality do not "charge" clients for their services, there is no actual market which will determine a market rate. Blum, 465 U.S. at 895 n.11, 104 S. Ct. at 1547 n.11 ("The § 1988 fee determination is made by the court in an entirely different setting [from the usual determination of market prices by the forces of supply and demand]: there is no negotiation or even discussion with the prevailing client, as the fee -- found to be reasonable by the court -- is paid by the losing party."). Moreover, the Third Circuit has directed that the community market rate should be determined with reference to the rates charged by "comparable lawyers in the private business sphere." SPIRG, 842 F.2d at 1447; see also Fine Paper, 751 F.2d at 587 (noting that, in determining the hourly rate to be awarded plaintiff's counsel, information of the hourly rate charged by defendant's counsel "certainly was relevant and arguably even helpful").
Therefore, plaintiff's interpretation -- that the Third Circuit now mandates that a district court, in determining the hourly rate for plaintiffs' employment rights practitioners, must altogether exclude from its consideration not only the market rates that lawyers charge for similar tasks in the private sector, but also the rates of opposing counsel in the very same case -- is antithetical to the market principles that undergird Supreme Court and Third Circuit jurisprudence in this area. See supra note 2. The Court doubts that such a radical departure from established law, as has been proposed by plaintiff, would have been so casually undertaken by the Third Circuit in an unpublished decision. See Internal Operating Procedures of the United States Court of Appeals for the Third Circuit § 9.1 ("It is the tradition of this court that the holding of a panel in a reported opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a published opinion of a previous panel. Court in banc consideration is required to do so.").
A better reading of Griffiths is that the defendant's proofs in that case were inadequate. In Griffiths, the opposing party merely "submitted affidavits stating that many area attorneys charge a rate far less than [plaintiff's requested rate] for employment discrimination cases such as this one." Griffiths, 1994 WL 543501, at *2 (district court opinion). Therefore, it appears that the defendant failed to raise a factual issue concerning the accuracy of plaintiff's requested rate, such as by challenging the value assigned to the specific tasks performed by plaintiff's counsel. Moreover, the defendant apparently neither argued the relative complexity of the case, nor contested the affiant's knowledge either of the issues in the case or of the relevant legal market. Finally, the defendant failed to submit evidence of the rates charged by attorneys who possessed profiles similar to that of plaintiff's attorney. Thus, the teaching of Griffiths is simply that the opposing party's "contradictory evidence" was wholly lacking.
For the foregoing reasons, the Court affirms its findings at the hearing on September 19, 1995. The lodestar shall be calculated by multiplying the number of hours reasonably spent on the prevailing claims by the $ 185 per hour rate for Mr. Gontram and the $ 95 per hour rate for Mr. Zeelander.
An appropriate order shall be entered.
Ms. Ballard attests as follows:
1. I am Alice W. Ballard. I submit this affidavit in support of the Petition of Joseph Gontram, Esquire for an award of attorney's fees and costs in the captioned matter.
2. I am a 1973 graduate of Harvard Law School. I have been admitted to practice in Pennsylvania since 1975. I was admitted to practice before the U.S. District Court, Eastern District of Pennsylvania, in 1975, and before the U.S. Court of Appeals, Third Circuit, in 1978. In late 1974, I became a staff attorney at the Philadelphia office of the Lawyers' Committee for Civil Rights (which subsequently became the Public Interest Law Center of Philadelphia), where I worked until May of 1976, at which time I formed the law firm of Samuel, Ballard, and Hyman, with two partners. I am still at that firm, which is now called Samuel & Ballard, P.C.
3. From 1975 until the present time, I have focused my professional efforts almost exclusively on the litigation of claims brought by employees against their employers and/or their unions. I have handled hundreds of employment discrimination cases, many of which resulted in federal litigation. I have tried fourteen federal employment discrimination cases, including two class actions, to completion.