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STUDENT PUB. INTEREST RESEARCH GROUP OF NEW JERSEY

September 10, 1986

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs,
v.
AT&T BELL LABORATORIES, Defendant



The opinion of the court was delivered by: STERN

 This matter comes before the court on an application for attorney's fees and expenses brought by plaintiffs. On Aug. 13, 1985, this court entered an order granting partial summary judgment in favor of plaintiffs on the issue of liability. The opinion is reported at 617 F. Supp. 1190 (D.N.J. 1985). The parties subsequently settled their disputes except for the issue of attorney's fees and expenses. The underlying factual circumstances and legal claims are discussed in this court's previous opinion.

 Attorney's fees should be awarded in this case. Defendant does not dispute this. The Federal Water Pollution Control Act (FWPCA) contains its own attorney's fees provision, 33 U.S.C. § 1365(d) (1985), which the Supreme Court has interpreted to make a party eligible for an award when that party has achieved "some degree of success on the merits." Ruckelshaus v. Sierra Club, 463 U.S. 680, 694, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983). In the present case, plaintiffs achieved total success on the issue of liability and settled on terms that required defendant to pay $75,000 in civil penalties to the U.S. Treasury. Therefore, the only disputes before the court in the present case have to do with how much the award should be.

 The Lodestar

 The main dispute has to do with calculation of the lodestar, "the number of hours reasonably expended multiplied by a reasonable hourly rate." Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973) (Lindy I); see Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984).

 Plaintiffs' firm, Terris & Sunderland, *fn1" proposes that in calculating the lodestar, this court should use the market rate for attorneys of comparable experience in the same city. Plaintiffs undertook to establish the market rate in Washington, D.C., through affidavits, and plaintiffs also submitted a list of their attorneys broken down by years of experience, corresponding hourly rate and total hours spent on this case.

 Defendant contends we should instead use Terris & Sunderland's normal billing rate to calculate the lodestar. There appears to be no dispute over the fact that Terris & Sunderland's normal billing rates are only approximately one third to one half of the market rates in Washington, D.C. The firm is a for-profit one but engaged exclusively in public interest work. Attorneys who work for Terris & Sunderland are well-credentialed and could doubtless command market rates were it not for the type of case the firm specializes in. Terris & Sunderland takes clients who cannot pay very much.

 Terris & Sunderland charges this "normal billing rate" in Title VII cases but represents to this court that its contracts with Title VII clients contain a provision that the firm may forgo payment by the client in favor of seeking attorney's fees. In the present case, however, and in approximately two dozen similar cases that Terris & Sunderland has brought under the FWPCA, the firm has no fee arrangement with its client, and the entire possibility of recovery depends upon the possibility of an attorney's fee award.

 The attorney's fees provision of the FWPCA, 33 U.S.C. § 1365(d), is a fee-shifting statute but this does not mean that the award available to Terris & Sunderland is restricted to the fee it had agreed upon with its client -- in this case nothing. The Supreme Court has recently made this clear in a general statement about the similar attorney's fees provisions in numerous statutes:

 Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 54 U.S.L.W. 5017, 5022, 478 U.S. 546, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986) (emphasis added). Delaware Valley was a Clean Air Act case. *fn2" The purpose of the FWPCA fee-shifting statute is similarly satisfied where, as in the present case, plaintiffs were able to "engage a lawyer based on the statutory assurance that he will be paid a 'reasonable fee.'"

 This leaves us with the problem of whether the "reasonable fee" is based on normal billing rates or market rates. Defendant relies on the following language.

 
When the costs of litigating attorneys fees are unavoidable, and they may be when firms with no relevant billing histories are involved, they must be tolerated. But when fixed market rates already exist, there is no good reason to tolerate the substantial costs of turning every attorneys fee case into a major ratemaking proceeding. In almost every case, the firms' established billing rates will provide fair compensation. The established rates represent the opportunity cost of what the firm turned away in order to take the litigation; they represent the lawyers' own assessment of the value of their time.

 Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4, 24 (D.C. Cir.1984), cert. denied, 472 U.S. 1021, 105 S. Ct. 3488, 87 L. Ed. 2d 622 (1985) (emphasis in original). With this language, the D.C. Circuit Court of Appeals creates a strong presumption in favor of using normal billing rates. It is nevertheless clear from this same passage that "fixed market rates" are the standard, and normal billing rates are usually reliable evidence of market rates. The D.C. Circuit Court of Appeals does not regard normal billing rates as always reliable evidence of market rates. See id. at 15 n.69 ("an attorney's customary billing rate is presumptively his reasonable hourly rate" (emphasis added)). The Laffey court sees an exception to the reliability of normal billing rates where the lawyers are not "in customary private practice." Id. at 18. See also id. (". . . somewhat different situation is presented when the attorney does not have a customary hourly rate set by the competitive market place.") (quoting Berger, Court Awarded Attorneys' Fees: What is Reasonable ?", 126 U. Pa. L. Rev. 281, 322 (1977)). The Laffey court also required courts awarding attorney's fees to establish that the ...


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