The opinion of the court was delivered by: ROBRENO
Plaintiff Virginia Tobin seeks an award of attorneys' fees, costs, and prejudgment interest, having prevailed in her claim of age discrimination against defendant Haverford School. The issue before the Court is how to calculate the hourly rate to which a lawyer for a prevailing party in an employment civil rights action is entitled for his services. As a corollary, the Court will consider whether the recent Third Circuit decisions in Griffiths v. CIGNA Corp., 77 F.3d 462 (3d Cir. 1996) (unpublished), and Washington v. Philadelphia County Court of Common Pleas, No. 95-1613, 1996 WL 380594, at *4-5 (3d Cir. July 9, 1996), represent a departure from prior law and now mandate that the hourly rate for determining the lodestar of a lawyer representing a plaintiff in an employment civil rights case must be calculated solely by reference to the rates charged by other lawyers who represent plaintiffs in employment civil rights cases.
Plaintiff sued defendant Haverford School, alleging that defendant had discriminated against her in violation of the laws of the Commonwealth of Pennsylvania and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., when it failed to hire her for a second grade teaching position and a kindergarten teaching position. Plaintiff sought approximately $ 287,000 in past and future earnings losses. A jury returned a verdict in favor of plaintiff only on the failure to hire her for the kindergarten position. The jury awarded plaintiff $ 24,900 for back pay.
After the entry of judgment, plaintiff moved for attorneys' fees in the amount of $ 56,953.50, costs in the amount of $ 2,651.05, and prejudgment interest. At a hearing held on September 19, 1995, the Court reduced the requested hourly rate of plaintiff's counsel from $ 250 per hour to $ 185 per hour and reduced counsel's hours from 189.7 hours to 171 hours. The Court also reduced the hourly rate of counsel's junior associate from $ 115 per hour to $ 95 per hour and the associate's hours from 60.7 hours to 56.6 hours. The Court then applied a 40% reduction in the lodestar and reduced plaintiff's costs by $ 500. See Orders of 9/21/95, doc. nos. 74 & 75; Transcript of 9/19/95 hearing, doc. no. 79, at 34-40. Based on these calculations, the Court awarded plaintiff $ 22,207.20 in attorneys' fees, $ 2,151.05 in costs, and prejudgment interest in the amount of $ 3,744, for a total of $ 24,358.25.1a
Three days after the hearing, plaintiff filed a supplemental motion for attorneys' fees requesting reimbursement for an additional $ 14,897 in attorneys' fees and $ 118.12 in costs, a total of $ 15,015.12, for work performed since the filing of the initial petition. Plaintiff also requested application of prejudgment interest on the attorneys' fees and costs awarded at the September hearing.
In support of her supplemental request, plaintiff submitted the affidavit of Alice W. Ballard, Esquire, a Philadelphia attorney with knowledge of the rates charged by Philadelphia area attorneys who represent plaintiffs in employment rights cases. Ms. Ballard averred that, based on the rates charged by practitioners comparable to plaintiff's counsel, the $ 250 per hour rate requested by plaintiff in this case is "reasonable." Pl.'s Supp. Mot. for Leave to File a Reply Mem., doc. no. 63, at Ex. 2 ("Ballard Aff."), P 8.
Subsequent to the filing of the supplemental motions, plaintiff's counsel requested reconsideration of the Court's earlier ruling on the appropriate hourly rate to which counsel was entitled in the wake of the Third Circuit's decision in Griffiths. On April 9, 1996, the Court held a second hearing on the supplemental motions and counsel's request for reconsideration in light of Griffiths.
The Court concludes that $ 185 per hour, not $ 250 per hour, is the rate that an attorney would command in the open market, who possesses skill, experience, and reputation reasonably comparable to plaintiff's counsel, and who performs services similar to those performed by plaintiff's counsel in a litigation analogous to this case; that the Ballard affidavit is insufficient to satisfy plaintiff's burden of proving that the hourly rate requested is the prevailing community market rate based on the interplay of actual market forces; and that the decisions of the Third Circuit in Griffiths and Washington do not mandate calculation of the community market rate for the performance of similar work solely based on the hourly rates charged by other plaintiffs' attorneys in employment civil rights cases.
A plaintiff who has prevailed on the merits of her ADEA claims is entitled to an award of attorneys' fees pursuant to 29 U.S.C. § 626(b). See Blum v. Witco Chem. Corp., 829 F.2d 367, 377 (3d Cir. 1987). "The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b) (1965 & Supp. 1996) (as incorporated by 29 U.S.C. § 626(b)).
"The ADEA prohibits age discrimination in employment against any person over age forty. Because the prohibition against age discrimination contained in the ADEA is similar in text, tone, and purpose to that contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under ADEA." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995) (citations omitted). The Third Circuit has noted that "since [42 U.S.C.] § 1988 is similar in purpose and design to § 706(k) of Title VII [which provides for recovery of attorneys' fees and costs], cases interpreting § 1988 can be applied to § 706(k) as well." Sullivan v. Commonwealth of Pennsylvania Dep't of Labor and Indus., Bureau of Vocational Rehabilitation, 663 F.2d 443, 447 n.5 (3d Cir. 1981) (citations omitted), cert. denied, 455 U.S. 1020, 102 S. Ct. 1716, 72 L. Ed. 2d 138 (1982).
Because the principles of Title VII jurisprudence would apply in deciding substantive issues in ADEA cases, the same principles should also apply in determining the reasonableness of attorneys' fees and costs. The Court therefore finds that cases interpreting 42 U.S.C. § 1988 can be applied to 29 U.S.C. § 626(b) as well.
The calculus in determining the amount of attorneys' fees a prevailing party is entitled to receive in a civil rights action is well-settled. "The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation [by] a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S. Ct. 1541, 1544, 79 L. Ed. 2d 891 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983)) [hereinafter Blum ]. This estimate is called the "lodestar." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Procedurally,
the party seeking attorney's fees has the burden to prove that its request for attorney's fees is reasonable. To meet its burden, the fee petitioner must submit evidence supporting the hours worked and rates claimed. In a statutory fee case, the party opposing the fee award then has the burden to challenge by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee. The district court cannot decrease a fee award based on factors not raised at all by the adverse party. Once the adverse party raises objections to the fee request, the district court has a great deal of discretion to adjust the fee award in light of those objections.
Thus, a court makes two reasonableness determinations: the number of hours expended by the attorneys and their hourly rate. Having previously decided the number of hours reasonably expended by plaintiff's counsel, the issue now before the Court is the reasonableness of his hourly rates. See Transcript of 4/9/96 hearing, doc. no. 90, at 6; Transcript of 9/19/95 hearing, doc. no. 79, at 36-38.
The Supreme Court has held that the reasonable hourly rates applicable to the labors of attorneys for a prevailing party should be "the prevailing market rate in the relevant community." Blum, 465 U.S. at 895, 104 S. Ct. at 1547. Yet, the Supreme Court also cautioned that
market prices of commodities and most services are determined by supply and demand. In this traditional sense there is no such thing as a prevailing market rate for the service of lawyers in a particular community. The type of services rendered by lawyers, as well as their experience, skill and reputation, varies extensively -- even within a law firm. Accordingly, the hourly rates of lawyers in private practice also vary widely. The fees charged often are based on the product of hours devoted to the representation multiplied by the lawyer's customary rate. But the fee usually is discussed with the client, may be negotiated, and it is the client who pays whether he wins or loses. The § 1988 fee determination is made by the court in an entirely different setting: 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. Nevertheless, as shown in the text above, the critical inquiry in determining reasonableness is now generally recognized as the appropriate hourly rate. And the rates charged in private representations may afford relevant comparisons.
In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence -- in addition to the attorney's own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to -- for convenience -- as the prevailing market rate.
Blum, 465 U.S. at 895 n.11, 104 S. Ct. at 1547 n.11. Thus, the Supreme Court recognized the "inherent difficulty" in determining a "market rate" for legal services when, in reality, there exists no "market" in the conventional sense of "economic activity in which buyers and sellers come together and the forces of supply and demand affect prices." Webster's Ninth New Collegiate Dictionary 728 (1988). See Paul A. Samuelson, Economics 53 (1980) ("The market price reaches its competitive equilibrium . . . where the forces of demand and supply are just in balance.").
In this circuit, the leading authority for determining the prevailing "market rate" is Student Pub. Interest Research Group of New Jersey, Inc. v. AT & T Bell Labs., 842 F.2d 1436 (3d Cir. 1988) [hereinafter SPIRG ]. In SPIRG the hourly rate charged by a law firm that handled only public interest cases was lower than the rate commanded by "conventional firms performing work of equivalent complexity." Id. at 1438. The Third Circuit held that "the community billing rate charged by attorneys of equivalent skill and experience performing work of similar complexity, rather than the firm's billing rate, is the appropriate hourly rate for computing the lodestar." Id. at 1450. To determine the "community market rate," the Third Circuit directed courts "to assess the experience and skill of the attorneys and compare their rates to those of comparable lawyers in the private business sphere." Id. at 1447 (emphasis added); see also Rode, 892 F.2d at 1183 ("Thus, the court should 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.") (citing Blum, 465 U.S. at 895 n.11, 104 S. Ct. at 1547 n.11; SPIRG, 842 F.2d at 1447).
The prevailing party has the initial burden of demonstrating that the requested rate is the community market rate. Rode, 892 F.2d at 1183; SPIRG, 842 F.2d at 1450. While "the starting point in determining a reasonable hourly rate is the attorneys' usual billing rate," proof of the billing rate is not dispositive. Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995) (citations omitted). The prevailing party's burden may be satisfied by the submission of affidavits of attorneys familiar with the hourly rates in the relevant market. See e.g., Washington, 1996 WL 380594, at *4 (accepting affidavits of attorneys who represent plaintiffs in civil rights cases which stated that the "requested hourly rate of $ 250 was reasonable and within the range of prevailing rates charged by Philadelphia attorneys with [the requesting attorney's] skill and experience") (quoting Griffiths, slip op. at 15-16).
If the prima facie burden has not been satisfied, the Court exercises its discretion in determining a reasonable hourly rate. Washington, 1996 WL 380594, at *5 (quoting Griffiths, slip op. at 16); Rode, 892 F.2d at 1183. In doing so, the Court considers the evidence before it and may draw upon its personal knowledge of the facts and issues in the litigation. See Bell v. United Princeton Properties, Inc., 884 F.2d 713, 720 (3d Cir. 1989) ("The district court . . . may only serve as fact witness when the facts at issue are wholly within its personal knowledge.").
Once the prevailing party has met its burden, however, the opposing party must produce affidavits or other submissions which create an issue as to the reasonableness or accuracy of the fee petition. See id. ("We see no reason to require that parties objecting to the fee request submit affidavits so long as answers or briefs, if sufficiently specific, can serve the same function of putting the applicant on notice that it must defend its fee petition."). If no opposition to the prevailing party's prima facie case has been offered, the requested rate is the community market rate at which the petitioning attorney may be compensated. See id. ("[A] court may not sua sponte reduce the amount of the award when the defendant has not specifically taken issue with the amount of time spent or the billing rate, either by filing affidavits, or, in most cases, by raising arguments with specificity and clarity in briefs (or answering motion papers).") (clarifying Cunningham v. City of McKeesport, 753 F.2d 262, 265-66 (3d Cir. 1985), ...