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BERNARDI v. YEUTTER

December 28, 1989

GENE C. BERNARDI, et al., Plaintiffs,
v.
CLAYTON YEUTTER, Secretary of Agriculture, Defendant



The opinion of the court was delivered by: CONTI

 SAMUEL CONTI, UNITED STATES DISTRICT JUDGE

 The plaintiffs' attorneys' present petition for attorney fees involves a single motion for contempt. The petition represents a classic case of over-lawyering and unnecessary piling on of hours, attorneys and assistants. ONE SINGLE competent attorney could have handled the underlying motion in a minimum of hours.

 An attorney owes a duty to his client to do competent work; but that does not include an unreasonable, unnecessary and duplicative amount of effort in order to sustain billable hours.

 This court will award reasonable attorney fees when the facts and circumstances warrant; however, this court has reviewed the documentation in the case and is quite concerned with the appropriateness of the billing procedure utilized by the plaintiffs' attorneys. The length of time in rendering this present Order is indicative of the court's concern re the attorneys' fees and costs submitted.

 I. BACKGROUND

 This litigation results from charges of sex discrimination in the hiring and promotion policies of the Forest Service. In order to remedy any such discriminatory practices both parties in the litigation stipulated to a Consent Decree which instituted a complex plan whereby the defendant would follow agreed upon hiring and promotion directives. This court approved the Consent Decree and established a Decree Monitor who would be responsible for overseeing the Forest Service's compliance with the Decree.

 The Consent Decree required the Monitor to file a series of multi-volume reports evaluating, on a semi-annual basis, the progress being made in extending equal employment and training opportunities to women, and accomplishing the goals of the Decree. Consent Decree, Art. V.F.1. In addition, the Monitor was authorized to file a further report summarizing defendant's activities throughout the first five years of the Decree and was provided complete access to Forest Service records. Decree, Art. V.F.2. The Decree required defendant to pay the Monitor for these services which has resulted in payments of over $ 370,000.

 In 1986 the plaintiffs filed a contempt motion in which they sought to establish the defendant's failure to comply with the Consent Decree. At that time the Monitor was preparing a report which would reach precisely that conclusion. From filing to judgment the motion took a year to litigate and, consistent with the Monitor's findings, the Magistrate found that the defendant had indeed failed to comply with the Decree.

 As the prevailing party in the action the plaintiffs were entitled to attorneys' fees for their work. A fee petition asking for attorneys' fees in the amount of $ 549,197, plus costs in the amount of $ 6,591.02. was then submitted and approved by the presiding Magistrate. The Magistrate also approved fees and costs for work on the fee petition itself totaling $ 65,641.50.

 In order to reach this supposedly reasonable figure the Magistrate characterized the motion as complex litigation and accepted all of the plaintiff's claimed hours and multiplied them by the plaintiff's counsels' claimed billing rate. No downward adjustment was made despite evidence that the claimed hours and rates were high for this type of work. Instead the Magistrate doubled the figure reached. Defendant has objected to the recommended fees and costs as being excessive and the matter is now before the court on defendant's appeal of the Magistrate's findings.

 The court, having reviewed the matter de novo, and being fully aware of the Magistrate's recommendations, finds that the plaintiffs' counsels' hourly rate and number of hours billed to this matter were unreasonably if not unconscionably high. Furthermore, the court finds that plaintiff's counsels' billing records are inadequate and border on the highly questionable. Moreover this court finds that the Magistrate inappropriately doubled the plaintiff's already bloated fee request to a figure far higher than that needed to attract competent counsel to the case. Finally the court finds that the award of attorneys' fees to special counsel who did nothing but overlitigate an already outlandish fee petition was completely improper and would, if awarded, amount to a flagrant abuse of the court's power to award reasonable fees.

 II. DISCUSSION

 1. Nature of Plaintiffs' ...


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