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FOSTER v. GLOUCESTER CTY. BD. OF CHOSEN FREEHOLDER

November 21, 1978

Frances X. FOSTER, Plaintiff,
v.
GLOUCESTER COUNTY BOARD OF CHOSEN FREEHOLDERS, et al., Defendants



The opinion of the court was delivered by: BROTMAN

I. Procedural History

Plaintiff Frances Foster, a black female, brought this action pursuant to 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., alleging that her dismissal from her position as telephone operator at the Gloucester County Courthouse was motivated by racial prejudice. After extensive pretrial proceedings, the case was settled in October 1977. In a stipulation of dismissal filed November 16, 1977, the parties agreed as follows:

 The settlement decree also provided that the defendant County of Gloucester (hereinafter defendant) would pay Ms. Foster the sum of $ 7800.00 and appoint her to the position of court attendant. No admission of liability was contained in this stipulation.

 On the return date of the motion for counsel fees, the court referred the matter to the Honorable Stephen M. Orlofsky, United States Magistrate, because of his familiarity with the issues in the case. *fn1" Following the hearing, the Magistrate entered factual findings from the bench together with a discussion of the legal issues raised in the motion. By order entered February 24, 1978, plaintiff's petition for legal fees was granted in the amount of $ 8451.25. Her petition for out-of-pocket expenses was granted in the amount of $ 459.02. The defendant filed a timely appeal from this order and oral argument was heard on April 7, 1978.

 The defendant has launched a variety of attacks against the Magistrate's award. It is urged that the award is procedurally incorrect because Magistrate Orlofsky rather than I decided the motion for counsel fees and because the Magistrate exceeded his statutory jurisdiction in entering a final order respecting counsel fees. Substantively, the defendant argues that the plaintiff is not a "prevailing party" within the meaning of either the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1977 Supp.), or the attorneys' fees provision in Title VII, 42 U.S.C. § 2000e-5(k). *fn2" Additionally, the defendant attacks the hourly rate used in the calculation of the plaintiff's fee petition.

 The plaintiff responds by claiming that the Magistrate did indeed have statutory jurisdiction to hear and finally decide the attorneys' fees question. Plaintiff contends that factual review by this court is limited to whether the findings of the Magistrate are clearly erroneous. Plaintiff, of course, argues that the findings are correct. Two conditional arguments are also raised in favor of increasing the fee award if the court decides to make a De novo determination of the motion: (1) the Magistrate failed to account for the so-called contingency factor; and (2) the Magistrate failed to include the time spent in preparing and litigating the fee petition issue in arriving at the final figure.

 II. The Power of the Magistrate to Hear Fee Petition Applications

 Defendant initially argues that the stipulation of dismissal was conditioned upon my determination of the counsel fees question. There are several answers to this argument. First, the wording of the stipulation of dismissal conditions resolution of the counsel fees question only upon a determination by "the Court." When the two sentences of paragraph 5 of the stipulation are read together, it strains credulity to argue that this issue was for my determination only. Second, the judges of this district are but part of one "Court" and, just as a defendant has no right to an appearance before a particular judge, neither does a civil litigant have a vested right to a particular judge's determination of any motion. See generally, 28 U.S.C. § 137; United States v. Stone, 411 F.2d 597 (5th Cir. 1969); United States v. Keane, 375 F. Supp. 1201, 1203-05 (N.D.Ill.1974), Aff'd, 522 F.2d 534 (7th Cir. 1975). Third, the parties to a litigation have no power to interfere with a district judge's statutory authority to delegate various responsibilities to Magistrates as long as the delegation is within the confines of the October 1976 Magistrate Act amendments, 28 U.S.C. § 636(b) (1976 Supp.). A quick reference to these amendments indicates that the Magistrate's jurisdiction has been expanded rather dramatically in recent years. See, e.g., Health Corp. of America v. N.J. Dental Ass'n, 77 F.R.D. 488 (D.N.J.1978); See also General Rule 40 of the Rules Governing the United States District Court for the District of New Jersey (amended June 30, 1978). Attempts to further expand their power are currently before the Congress. See, e.g., S. 1613 currently under consideration by the House and Senate Judiciary Committees.

 Defendant's argument that the Magistrate's power to enter final orders is strictly limited to pre-trial proceedings under § 636(b)(1)(A) misses the overall import of the 1976 Magistrate Act amendments and new Local Rule 40. The pre-trial matters referred to in (b)(1)(A) were not intended to circumscribe the outer limits of the Magistrate's authority. Section 636(b)(2) provides that the Magistrate may serve as a special master in certain civil actions. See Local Rule 40(A)(1). Section 636(b)(3) empowers a Magistrate to hear any matter not otherwise inconsistent with federal laws or the Constitution. This subsection's legislative history indicates that the district courts are not confined by the specifics of § 636(b)(1) and that Magistrates may be employed in a wide variety of situations not inconsistent with the Constitution. House Judiciary Committee, H.R. No. 94-1609 at 12, 1976 U.S. Code Cong. & Admin. News, p. 6172. Without belaboring the matter, it seems apparent to this court that the Magistrate could sit as a special master and make findings of fact which would be reviewable only under the "clearly erroneous" standard. See Local Rule 40(A)(1) and (26); see generally 5A J. Moore, Federal Practice P 53.12(4) at 3008 (1977). If no special circumstances existed, the court would be inclined to review the Magistrate's opinion and order under the "clearly erroneous" standard of § 636(b)(2) and Fed.R.Civ.P. 53(e)(2).

 However, the propriety of attorneys' fees following a settlement such as the present is a complicated and novel question which has recently been affected by several pertinent cases in this circuit. See, e.g., Hughes v. Repko, 578 F.2d 483 (3rd Cir. 1978); Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208 (3rd Cir. 1978); Prandini v. National Tea Co., 585 F.2d 47 (3rd Cir. 1978). Accordingly, the court shall treat the Magistrate's findings as a Report and Recommendation and shall exercise its ultimate prerogative to conduct a De novo review of the propriety of attorneys' fees. See 28 U.S.C. § 636(b)(1)(A); Local Rule 40(A)(10)(a); Richardson v. Civil Service Comm., 449 F. Supp. 10 (S.D.N.Y.1978).

 III. The Magistrate's Findings

 In a bench opinion rendered February 17, 1978, the Magistrate found that plaintiff was a "prevailing party" within the meaning of 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988 (1976 Supp.). He relied primarily on Parker v. Matthews, 411 F. Supp. 1059 (D.D.C.1976), Aff'd sub nom. Parker v. Califano, 182 U.S.App.D.C. 322, 561 F.2d 320 (1977); Foster v. Boorstin, 182 U.S.App.D.C. 342, 561 F.2d 340 (1977); and the legislative history of the Civil Rights Attorney's Fees Awards Act of 1976. The Magistrate found that the plaintiff had received a settlement value of $ 44,200.00 including the $ 7,800.00 cash settlement plus an anticipated yearly salary of $ 5,200.00 for a period of five years (until her retirement).

 Regarding the amount of the award, Magistrate Orlofsky followed the reasoning of Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir. 1973) (Lindy I); Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3rd Cir. 1976) (Lindy II); and Merola v. Atlantic Richfield Co., 493 F.2d 292 (3rd Cir. 1974) (Merola I). He concluded that the hours claimed to have been spent on the case by plaintiff's attorney (1103/4) and his law clerk (20) were entirely reasonable. He noted that these hourly computations were uncontested by the defendant. Respecting an hourly billing rate, the Magistrate found that Mr. Fuoco's expertise and experience in civil rights litigation together with the quality of the work performed warranted a rate of $ 75.00. Believing the law clerk hourly rate to be too high, the Magistrate reduced it from $ 10.00 to $ 5.00. Although the Magistrate ...


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