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UNITED STATES v. CITY & CTY. OF SAN FRANCISCO

September 25, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. SAN FRANCISCO FIREFIGHTERS LOCAL 798, et al., Defendants, In Intervention. FONTAINE DAVIS, et al., Plaintiffs, In Intervention. v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. SAN FRANCISCO FIREFIGHTERS LOCAL 798, et al., Defendants, In Intervention



The opinion of the court was delivered by: PATEL

 These consolidated actions alleging constitutional and statutory violations arising from racial discrimination and harassment in employment practices were settled pursuant to a Consent Decree filed May 20, 1988. The matter is now before the court on plaintiff-intervenors' motion for an award of attorneys' fees under 42 U.S.C. § 2000e-5(k). Having considered the submissions of the parties, the court awards fees as set forth below.

 BACKGROUND

 These consolidated employment discrimination actions were brought by the United States and various individuals and organizations ("plaintiff-intervenors") against the City and County of San Francisco ("the City") in 1984 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6701 et seq. (repealed 1986). Although this action was first initiated by the United States, private plaintiffs were allowed to intervene and carried the bulk of the work. The United States entered into an agreement disposing of its interest in the litigation well before entry of the final consent decree. *fn1" The provisions of the government's agreement were mainly hortatory. The significant achievements on behalf of class members were accomplished by plaintiff-intervenors.

 As consolidated, the claims in these actions focused on the City's use of invalid hiring and promotional procedures that had an adverse impact on women and minorities. Certain claims also alleged racial harassment of minority firefighters. All claims were settled as between the City and the plaintiff and plaintiff-intervenors pursuant to a consent decree filed May 20, 1988. United States v. City and County of San Francisco, 696 F. Supp. 1287, 1312 (N.D. Cal. 1988)(" Davis III "), aff'd, 890 F.2d 1438 (9th Cir. 1989), petition for cert. filed (Aug. 7, 1990)(No. 90-248). Although the decree settled all disputes on the merits, it did not resolve attorneys' fees. On December 2, 1988, counsel for plaintiff intervenors ("fee applicants") filed a motion seeking an award of attorney's fees against the City and against defendants-in-intervention, San Francisco Firefighters Union, Local No. 798 ("the Union" or "Local 798") under Title VII, section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). *fn2"

 LEGAL STANDARD

 The standards for attorneys' fee awards for prevailing Title VII plaintiffs are the same as those for fee awards under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Accordingly, absent special circumstances, prevailing Title VII plaintiffs should recover attorneys' fees. Id. at 429.

 Ordinarily, plaintiffs will be considered to have prevailed when they have vindicated important rights or when they succeed on any significant issue that achieves some of the benefit the parties sought in bringing suit. Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980); Hensley, 461 U.S. at 433 (citing Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).

 If the court determines that plaintiffs have prevailed, it must calculate a reasonable attorneys' fee. The first step in this process is to arrive at a preliminary estimate of the value of the lawyer's services by multiplying the number of hours reasonably expended by a reasonable hourly rate. Hensley, 461 U.S. at 433. To assist the court in arriving at this "lodestar" figure, the Ninth Circuit has adopted a twelve-factor formula which must be applied in each case. *fn3" Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S. Ct. 1726, 48 L. Ed. 2d 195 (1976). Supporting documentation with respect to the hours claimed and the rate requested must be provided to the court by plaintiffs. The documentation must be "sufficiently detailed that a neutral judge could make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed." Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987)(quoting Hensley, 461 U.S. at 441 (Burger, C.J., concurring)). There is a strong presumption that the resulting lodestar figure constitutes the reasonable fee, although it may be enhanced in rare cases. Jordan, 815 F.2d at 1262.

 DISCUSSION

 Both the City and the Union concede that plaintiff-intervenors are prevailing parties. The current dispute is whether the attorneys' fees requested are reasonable. The issues of both the hours expended and the rates requested have been thoroughly briefed and subjected to extensive discovery. *fn4" The court will take each in turn.

 I. Hours Reasonably Expended

 In arriving at a figure for hours reasonably expended in litigation, the court employs the first of the twelve Kerr factors -- the time and labor required. The fee applicants must prove by a preponderance of the evidence that the hours expended on the litigation were reasonable. They must submit detailed time records. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh'g denied, opinion amended, 808 F.2d 1373 (9th Cir. 1987). The court may reduce the allowable hours on the grounds of inadequate documentation, overstaffing, duplicative hours, or excessive or otherwise unnecessary hours. Id. The City and, to a lesser extent, the Union challenge the reported hours on all of these bases.

 A. Inadequate Documentation

 The City argues that plaintiff-intervenors' hours must be reduced due to overly vague descriptions of counsels' activities. *fn5" According to the City, time sheets only describing "co-counsel meeting," "client meeting" or "legal research" are too general to aid the court in determining whether the hours chronicled were reasonably expended. The City compares these inadequacies to those found in Daly v. Hill, 790 F.2d 1071, 1079-80 (4th Cir. 1986)(deducting virtually all hours described only as "conference with client"); Grogg v. General Motors Corp., 612 F. Supp. 1375, 1382 (S.D.N.Y. 1985))(50% reduction in total hours where records too vague to determine whether hours were reasonably expended); and Kraszewski v. State Farm Insurance, 36 Fair Empl. Prac. Cas. (BNA) 1371, 1378 (N.D. Cal. 1984)(deducting hours described only as "conference with [name]").

 In response, the plaintiff-intervenors argue that the court may properly refer to the relevant context of the litigation history and to summaries prepared from plaintiff's notes and files to resolve any vague time records. This court agrees.

 "Basing the attorneys' fee award in part on reconstructed records developed by reference to litigation files and other records" is an established practice in this circuit. Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1473 (9th Cir. 1983), aff'g 525 F. Supp. 128 (N.D. Cal. 1981). Accord, Beta Sys., Inc. v. United States, 866 F.2d 1404, 1406 (Fed. Cir. 1989)(documentation held sufficiently detailed where supplemented by "typical billing records, showing time and charges, a description of the work done, and by whom"); Berberena v. Coler, 753 F.2d 629, 634 (7th Cir. 1985)(otherwise vague entries on time sheets deemed permissible when viewed in the context of sufficiently detailed surrounding documentation); City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1103 (2d Cir. 1977)(allowing reconstruction of undocumented time records by reference to pleading files, time records of other attorneys and other contemporaneous documents).

 In response to court instructions, the City submitted a detailed summary of challenged records. Plaintiff-intervenors have submitted extensive reconstructed time records covering each of the challenged time entries. The reconstructed records were based upon (1) agendas and summaries of meetings; (2) notes and time records of co-counsel; and (3) the temporal and factual context of the challenged events.

 The court has examined these records and determines that no reduction is necessary, particularly in light of plaintiff-intervenors' 5% reduction for billing judgment. The challenged hours were reasonably spent.

 B. Overstaffing

 The City and the Union both assert that the plaintiff-intervenors' litigation team of seven attorneys constitutes gross overstaffing. The City argues that there were no real conflicts among the five subclasses of litigants, that no conflicting legal positions were ever asserted in briefs, that much of the Consent Decree does not differentiate between groups, that to the extent that the Consent Decree encompasses distinct goals for subclasses, those goals were reached either without dispute or based upon the City's initiative. According to the City, although the potential for conflict existed, it never appeared.

 Plaintiff-intervenors counter that, in fact, conflicts among subclasses did exist, but that through coordination and meetings, which apparently were rancorous at times, Paterson Reply Decl. para. 10, various counsel were able to present a united front in the litigation. They argue that the fact that no conflicts surfaced in briefs or before the court is testament to their cooperative skills, skills for which they should not be penalized.

 In fact, this court has already visited this issue in its Supplemental Fee Order of August 31, 1988. At that time, in response to the City's charge that too many attorneys were being used, the court stated:

 
As often happens in complex litigation of this kind, the interests of all the subclasses are not precisely aligned on all issues. This requires that on every motion before the court, all counsel prepare and confer. The City should always be aware that when its actions spawn litigation it will be responsible for all reasonable attorneys' fees for all parties adversely affected by its actions.

 The City also argues that, even if one concedes the need to represent each subclass, only five attorneys were necessary. The City contends that Ms. Paterson and Mr. McNeill had needlessly overlapping responsibilities during the litigation, and that Mr. Galloway spent over 390 hours on general litigation activity when his supposed role was that of a testing expert. Additionally, the City and Local 798 argue that counsel for both subclasses of women, and counsel for Asians and for Hispanics went beyond representing the interests of their subclasses when they took part in general work including discovery, settlement activities and briefing. The City views all of these activities as indicative of unnecessary overstaffing in light of the expertise and experience of counsel.

 The need for multiple counsel in complex class action litigation is well recognized. The Eleventh Circuit noted that "the retaining of multiple attorneys in a significant, lengthy employment discrimination case . . . [is] not a ground for reducing the hours claimed. . . . [A] reduction is warranted only if the attorneys are unreasonably doing the same work." Johnson v. University College of Univ. of Ala., 706 F.2d 1205, 1208 (11th Cir.)(emphasis added), cert. denied, 464 U.S. 994, 78 L. Ed. 2d 684, 104 S. Ct. 489 (1983). Accord, Probe v. State Teachers' Retirement Sys., 780 F.2d 776, 785 (9th Cir.), cert. denied, 476 U.S. 1170, 90 L. Ed. 2d 978, 106 S. Ct. 2891 (1986).

 In reviewing the time records, the court is awarding fees for most of the claimed hours, since they "reflect [] the distinct contribution of each lawyer to the case." Johnson, 706 F.2d at 1208. However, the lodestar amount is reduced as follows due to certain multiple appearances by counsel and law students at depositions and hearings: Attorney Blanco -- 14 hours; Attorney Galloway -- 5.2 hours; Attorney McNeill -- 11 hours from his time with the firm of Pearl, McNeill & Gillespie; law student Edwards -- 6 hours.

 C. Duplicative Work

 The City and the Union also maintain that much of the work billed in this case was duplicative. The City cites the following examples of duplication: (1) approximately 3500 hours spent either in co-counsel or client conferences; (2) 608 hours spent on file review; (3) excessive time spent drafting and researching. The City seeks a 50% reduction in the first two instances and "a substantial reduction" in the third.

 If any of the enumerated charges are duplications they must be deducted. Clark v. Marsh, 609 F. Supp. 1028, 1034-35 (D.D.C. 1985)(50% of client conference time deducted); Jennings v. Lenox Hill Hosp., 42 Fair Empl. Prac. Cas. (BNA) 555, 558 (S.D. N.Y. 1986) (reduction where use of multiple attorneys resulted in unnecessary time spent familiarizing each with case); Farris v. Cox, 508 F. Supp. 222, 226 (N.D. Cal. 1981)(reduction of time where multiple attorneys attended depositions and hearings).

 The plaintiff-intervenors lodge several replies. First, they point out that the presence of several attorneys at strategy sessions for complex civil rights class action cases may be crucial to the case. Berberena, 753 F.2d at 633; McKenzie v. Kennickell, 645 F. Supp. 437, 41 Fair Empl. Prac. Cas. (BNA) 1301, 1311 (D.D.C. 1986) (awarding attorneys' fees for co-counsel conferences); Williamsburg Fair Hous. Comm. v. Ross-Rodney Hous. Corp., 599 F. Supp. 509, 518 (S.D.N.Y. 1984) ("Multiple attorneys may be essential for planning strategy, eliciting testimony or evaluating facts or law."). Plaintiff-intervenors present evidence, in the form of agendas, meeting summaries and deposition testimony, of the efficient and essential nature of their co-counsel meetings. See, e.g., Paterson Reply Decl. para. 11. Their evidence is comprehensive and persuasive. Plaintiff-intervenor counsel have met their burden of proving that attendance at co-counsel meetings was not duplicative.

 Third, plaintiff-intervenors assert that the time spent drafting (and presumably researching) the pleadings in this case was reasonable. They insist that the 2,700 hours that the City alleges they spent on briefing seven motions, three state appellate briefs, and two trial briefs compares favorably to other cases where fees were awarded. See, e.g., Thompson v. Barrett, 599 F. Supp. 806, 811 (D.D.C. 1984)(1,600 hours spent on one appeal). The court agrees. Moreover, a certain amount of drafting time is included in the 5% reduction for billing judgment.

 D. Non-Legal Work

 The City and the Union contend that the plaintiff-intervenors seek compensation for activities that are not billable legal work. The challenged hours include time spent on travel, clerical matters, press conferences, Title VII presentations to organizations and incorporation of the Black Firefighters Association.

 1. Travel Time.

 The City argues that much of the travel time in this case was spent by attorneys McNeill and Galloway essentially commuting to the office of co-counsel and is thus either compensable at a reduced rate, assuming work was done in transit, or not compensable at all.

 Plaintiff-intervenors counter that the City has improperly characterized as "commuting" travel by the two attorneys from their respective offices to the office of co-counsel. Plaintiff-intervenors describe Mr. Galloway's residence as both his home and his office. Furthermore, according to plaintiff-intervenors, both men generally worked on the case while traveling to co-counsel meetings via public transit. Moreover, plaintiff-intervenors' counsel have submitted evidence establishing that local attorneys customarily bill their clients for travel time to co-counsel meetings. Schulz Depo. at 41:3-42:8; Barg Depo. at 16-23-18:11.

 Reasonable attorneys' fees include reasonable travel time compensated at the full hourly rate. Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 396 (8th Cir. 1987) (travel to and from depositions compensable)(citing Craik v. Minnesota State Univ. Bd., 738 F.2d 348, 350 (8th Cir. 1984) (travel to oral argument)); Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984)(traveling time in statutory fee cases compensable just as for fee-paying clients); *fn6" Danny Kresky Enter. v. Magid, 716 F.2d 215, 217-18 (3rd Cir. 1983). The court finds that the travel time claimed herein is reasonable.

 2. Clerical Matters.

 The City contends that the plaintiff-intervenors' counsel spent some 83 hours on clerical chores such as xeroxing or serving and filing papers. Plaintiff-intervenors counter that the City's figure for total clerical hours is suspect, citing certain incorrect consolidations of clerical and non-clerical chores.

 Courts have deducted time spent by attorneys in xeroxing, Rajender v. Univ. of Minn., 546 F. Supp. 158, 165-166 (D. Minn. 1982), and time spent filing court papers, Cook v. Block, 609 F. Supp. 1036, 1042 (D.D.C. 1985). But here, counsel spent less time involved in these or other clerical matters than the City contends. Once again, the City's computer summaries are in error. The court's comparison of those summaries versus the actual time records of the attorneys revealed inaccurate portrayals by the City in addition to those errors alleged by plaintiff-intervenors' counsel. For example, the City's summary lists 3.3 hours spent by Mr. McNeill on August 19, 1986 as "clerical." However, Mr. McNeill's time records for that day show that the hours the city must be referring to were spent finalizing an amicus brief (the only other hours billed that day being 1.65 in various phone conferences and .75 on a letter to the Special Master).

 Moreover, the plaintiff-intervenors' counsel already deducted 5% of their hours in the exercise of billing judgment. That deduction will take care of any hours spent by attorneys xeroxing or filing papers with the court. In light of the deduction, and keeping in mind the suspect characterization of "clerical" hours by the City, no additional reduction is warranted.

 3. Press Conferences.

 The City and Local 798 also urge deletion of the time spent by counsel in press conferences and at a demonstration staged to foster political support among the City Board of Supervisors. Plaintiff-intervenors contend that such time is compensable because it furthered their goals of engendering necessary political support among the City's Board of Supervisors and of keeping class members apprised of the case.

 Whether viewed as an effort to lobby the Board of Supervisors on behalf of their clients, or as a method of keeping class members apprised of events, press conference time may be compensable. Attorney work in the political arena, where narrowly focused on fostering the litigation goals of their clients, is compensable. Jenkins v. Missouri, 862 F.2d 677, 678 (8th Cir. 1988)(time spent campaigning for passage of tax levy funding court-ordered desegregation plan held compensable), aff'd, 491 U.S. 274, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989). Moreover, this court has previously found compensable the use of the media to publicize an action to class members. Pollar v. Judson Steel Corp., 49 Fair Empl. Prac. Cas. (BNA) 224, 225 (N.D. Cal. 1985).

 In this case, obtaining the support of the Board of Supervisors, whose members are elected by the citizens of the City and County of San Francisco, was as vital to the consent decree as were the negotiations with the City's administrative officials. Therefore, the time is compensable.

 4. Presentations to Organizations.

 The City maintains that Mr. McNeill has billed for some 20 hours spent giving talks to various community organizations. First, the court notes that Mr. McNeill's time records indicate that he did not bill for nine of the contested hours. McNeill Decl., Ex. A(1) at 58. Moreover, closer review of these hours, as well as similar hours by Ms. Marshall, shows that both attorneys spent the time conferring with their clients and with attorneys and firefighters involved in similar litigation. McNeill Reply Decl. para. 12; Marshall Depo. at 15:24-16:13. The contested activities were compensable legal work; the hours, save the nine deducted ones, will be included in the lodestar figure.

 5. Incorporation of the Black Firefighters Association.

 The City and the Union challenge the plaintiff-intervenor counsels' billing for 8.5 hours spent incorporating this organization. Plaintiff-intervenors concede that this time is not compensable and assert that it has already been deducted from their total hours. After a review of plaintiff-intervenor counsels' submissions, the court finds that in deed the disputed hours were deducted. McNeill Decl. para. 11(a).

 E. Unsuccessful Claims

 The City and the Union urge the deduction of hours spent on the unsuccessful challenges to the Fire Department's drug testing program and to the dismissal of two female applicants from the Fire College. They also seek deduction of the hours spent on the allegedly unrelated work instituting state court writ proceedings to overturn Civil Service Commission decisions and representing individual Black firefighters at disciplinary proceedings.

 The Supreme Court has held that no fee should be awarded in attorneys' fee cases for unsuccessful claims which are based on different facts and different legal theories than the successful claims. Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, , 109 S. Ct. 1486, 1492, 103 L. Ed. 2d 866 (1989). However, plaintiff-intervenors' counsel argue that since they have achieved excellent results, they deserve a fully compensatory fee even though they did not prevail on every issue. Hensley, 461 U.S. at 435. Furthermore, they maintain that their fee should include most of the contested hours because the claims are closely related to those on which plaintiff-intervenors prevailed. Keeping these legal principles and the arguments of counsel in mind, the court addresses each claim in turn.

 1. Challenge to Drug Testing Program.

 The City argues that plaintiff-intervenors' challenge to the Fire Department's substance abuse screening program was unrelated to the race and sex discrimination claims which were central to this case. The fee applicants counter that they challenged the drug testing program because they believed it would be used pretextually to discriminate against women and minority job applicants. However, a review of this court's August 27, 1987 order denying plaintiff-intervenors' motion for a preliminary injunction demonstrates that they objected to the proposed testing solely on fourth amendment and analogous state law grounds. Consequently, the fee applicants cannot receive compensation for time spent presenting those constitutional objections.

 Nevertheless, some of the time spent litigating the substance abuse screening program is compensable. Prior to the issuance of a temporary restraining order on July 24, 1987, the City intended to move forward with its drug screening program despite this court's February 1986 order placing any such program under the supervision of the court and the monitor. United States v. City and County of San Francisco, 656 F. Supp. 276, 292-93 (N.D. Cal. 1987)(" Davis I ")(monitor to supervise interim hiring; City to submit proposal regarding conduct of medical investigations), aff'd as modified, 890 F.2d 1438 (9th Cir. 1989), petition for cert. filed (August 7, 1990)(No. 90-248). Consequently, plaintiff-intervenors were forced to expend resources in order to seek a stay and in order to litigate the threshold issue of this court's jurisdiction over the dispute. Since they prevailed in both instances, the fee applicants are entitled to a compensatory award. One third of the total hours spent on challenging the substance abuse screening program are thus compensable. Accordingly, two-thirds of the hours challenged by the City shall be deducted as follows: Ms. Hulett -- 13.5 hours; Mr. Lee -- 1 hour; Ms. Paterson -- 5 hours; Mr. McNeill -- 24 hours from his time with the Culver Law Firm; Ms. Marshall -- 11 hours. *fn7"

 2. Challenged Dismissal of Female Trainees.

 The City also argues that the unsuccessful attempt to reverse the dismissal of two women from the Fire College was unrelated to the prevailing claims. The court disagrees. Counsels' work to reverse those dismissals was part of the larger goal of increasing the hiring and retention rates for all female applicants, on which they prevailed. Furthermore, no one has contested plaintiff-intervenors' counsel's assertion that the City has since adopted the very standards (regarding the length and focus of training for female ...


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