Fontaine DAVIS; Eric H. Washington; Jerilyn North, Jimmie
Braden, Audrey Lee, Early Davis, Brandi Swanson, Susan
Moorehead, Anne Young, Mary M. Carder, Theresa Rodigou,
Kathleen J. Bradshaw, Patricia Murray, International
Association of Black Firefighters-San Francisco Chapter, et
al., Plaintiffs-Appellees,
v.
CITY AND COUNTY of SAN FRANCISCO, Defendant-Appellant.
No. 91-15113.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 16, 1992.
Withdrawn from Submission April 13, 1992.
Resubmitted July 1, 1992.
Decided Oct. 6, 1992.
George A. Riley, Deputy City Atty., San Francisco, Cal., for defendant-appellant.
Richard M. Pearl, San Francisco, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California.
Before GOODWIN, FLETCHER and BRUNETTI, Circuit Judges.
FLETCHER, Circuit Judge:
On May 20, 1988, the City of San Francisco (the City) and a class of female and minority plaintiffs filed a consent decree in settlement of the plaintiffs' claims that the San Francisco Fire Department (SFFD) had long engaged in various acts of employment discrimination. The decree, which received the approval of both the district court and this Court, fully resolved the plaintiffs' challenges to the SFFD's hiring and promotional practices. It left open two questions, however, which form the basis for this appeal.
The decree stated that "[t]he issues of the costs and attorneys' fees due to counsel for the parties to this action shall be heard and resolved by the [district] Court...." The plaintiffs subsequently moved the district court for an award of fees and costs pursuant to 42 U.S.C. § 2000e-5(k) (1982). The City, while not contesting the plaintiffs' entitlement to fees, appeals the amount of fees and costs awarded as unreasonable.
The decree also left unresolved the appropriate rate of interest on an award of backpay to six firefighters whom it provided would be promoted retroactively to the position of lieutenant. The district court subsequently determined that interest was payable by the City at a floating rate equivalent to ninety percent of the prime rate for each calendar quarter in which backpay was owing. The City appeals this rate as excessive.
I. FACTUAL BACKGROUND
The SFFD has long been subject to suits alleging discrimination in its hiring and promotion of firefighters. In 1970, when only four of the Department's eighteen hundred firefighters were black, the National Association for the Advancement of Colored People filed suit in federal district court challenging the validity of the entry-level hiring test used by the Department. After a series of rulings by the district court that the test and its subsequent modifications by the City had an adverse impact on blacks and were not job-related, see Western Addition Community Org. v. Alioto,
In 1980, a group of black firefighters filed a complaint with the California Department of Fair Employment and Housing, alleging that an examination instituted by the SFFD in 1978 to determine promotions to the position of lieutenant discriminated on the basis of race in violation of California's Fair Employment and Housing Act, Cal.Gov't.Code §§ 12900 et seq. (West 1980). The California Fair Employment and Housing Commission determined that the examination had an adverse impact on blacks and was not job-related. The California Court of Appeals upheld this ruling but deferred any relief pending the outcome of a new round of federal litigation. City and County of San Francisco v. Fair Employment and Housing Commission,
The federal litigation focused on a revised hiring test introduced by the SFFD in 1982 and a new promotional test instituted in 1984. The United States and the present appellees brought separate suits in federal district court in 1984 challenging the validity of those tests under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6701 et seq. (repealed 1986). The United States sought relief for black, Asian and Hispanic applicants and firefighters, while the present appellees originally sued on behalf of female and black applicants and firefighters and ultimately came to represent Hispanic and Asian applicants and firefighters as well. While the United States challenged only the validity of the SFFD's hiring and promotional tests, the appellees added claims for racial harassment. Unlike the United States, furthermore, they sought race and gender conscious relief. The two actions were consolidated in 1986.
In October 1986, one week before trial was to commence, the City declared that it would no longer defend the validity of the SFFD's employment tests. The district court then entered summary judgment for the United States and the appellees and issued a permanent injunction prohibiting the SFFD's use of tests with an adverse impact on women or minorities where those tests could not be justified by business necessity. The injunction also required the institution of recruitment and training programs for female and minority firefighters and the development of new employment tests by the SFFD that would conform to the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.1 et seq. (1991) (Uniform Guidelines). Finally, the injunction provided that all members of the SFFD enjoying a rank higher than lieutenant would be held personally responsible for the implementation of the SFFD's anti-harassment policy, and mandated the development of new procedures for hearing claims of harassment. United States v. City and County of San Francisco,
The injunction did not address the present appellees' claim that the SFFD's repeated failure to develop employment tests free of disparate impact warranted race and sex conscious relief. The consent decree entered into between the appellees and the City, and opposed by the United States, resolves this issue. The decree establishes long term goals of forty percent minority and ten percent female representation in the SFFD's ranks (the SFFD did not hire its first female firefighter until August of 1987). In order to attain these goals, the decree provides that of the firefighters hired over its seven year lifespan, at least nineteen percent should be Asian, ten percent should be black, and eleven percent should be Hispanic. Altogether, fifty-five percent of the firefighters hired are to be members of a minority group, and ten percent of the firefighters hired are to be female. The decree envisions that five hundred firefighters will be hired during its lifespan.
The decree provides, furthermore, for specific recruitment efforts to attract females and members of minority groups to the SFFD. It requires that any tests utilized by the SFFD must conform to the Uniform Guidelines. And it states that any failure by the SFFD to meet the female and minority hiring goals it sets forth must be justified to the district court.
The decree also addresses the question of promotions and provides for the retroactive elevation of six named black firefighters to the rank of lieutenant, with backpay awarded from March 9, 1979, the date of their promotion. The decree further declares that the proportion of minority and female firefighters promoted to officers' positions should come to resemble the proportion of qualified women and minorities applying for such positions. In addition to the named black firefighters, it provides for the elevation of eleven black, eight Hispanic and eight Asian firefighters to the rank of lieutenant within sixty days of the filing of the decree, and declares that twelve of an additional forty-eight individuals to be promoted should be members of minority groups. The decree establishes procedures, finally, for adjudicating claims of harassment and discrimination on the job. The district court approved the decree in an exhaustive opinion, United States v. City and County of San Francisco,
As noted above, the decree left open the issue of attorneys' fees. Subsequent to the filing of the decree, the appellees moved the district court for an award of fees pursuant to 42 U.S.C. § 2000e-5(k), which provides that in Title VII actions "the court, in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney's fee...." The City did not contest the appellees' status as prevailing parties, but vigorously challenged the amount of fees they requested. It asserted that the number of hours appellees' counsel claimed to have expended on the litigation was unreasonable, that the hourly rates claimed were excessive, that certain costs claimed by the appellees including expert witness fees were not compensable, and that the appellees were not entitled to an enhancement of their fee award based on the contingent nature of the case and the high degree of success obtained.
In a thorough opinion, the district court scrutinized the fee request. It disallowed some of the hours claimed by the appellees, but largely agreed with their contentions concerning costs and an appropriate billing rate. It enhanced appellees' fee award by a factor of two to account for the contingent nature of the compensation arrangement. The court awarded fees and costs in an amount slightly exceeding three and one half million dollars. United States v. City and County of San Francisco,
The district court also determined the rate of interest to be applied to the backpay awards of the six individuals promoted retroactively to the rank of lieutenant. Adopting the appellees' proposal, it declared that "[i]nterest shall be calculated beginning on March 9, 1979, from the end of each calendar quarter, on the amount then due and owing, at 90% of the average prime rate as obtained from the Federal Reserve Bank for the year in which the calendar quarter occurs." United States v. City and County of San Francisco,
We have jurisdiction over the City's appeals from these determinations pursuant to 28 U.S.C. § 1291 (1988).
II. ATTORNEYS' FEES
We review an award of attorneys' fees for an abuse of discretion. Bernardi v. Yeutter,
The City contests each step in this analysis as performed by the district court, arguing that the court allowed appellees' counsel to claim an excessive number of hours and to bill those hours at an exorbitant rate, and that it then doubled the resulting lodestar amount even though no special factors existed to justify an enhancement of the award. We consider these arguments in turn.
A. Reasonable Hours
(i) Inadequate Documentation
The City first complains that appellees' counsel failed to keep adequate records of the time spent on this litigation. The City contends that many of appellees' counsel's time sheets are vague and summary in nature, and thus did not provide the district court with an appropriate basis for making its award.
The district court, however, properly allowed appellees' counsel to supplement their time sheets with additional documentation of their efforts. "Basing the attorneys' fee award in part on reconstructed records developed by reference to litigation files and other records is not an abuse of discretion." Bonnette v. California Health and Welfare Agency,
The City asserts that even the reconstructed records are conclusory and uninformative, but the very example it points to in support of this contention illustrates that it seeks to impose too high a standard of documentation on fee claimants. In Hensley v. Eckerhart,
(ii) Unrelated Claims
In calculating the lodestar amount, the district court did not include time spent by appellees' counsel on matters unrelated to the SFFD's hiring and promotional practices and the issue of racial harassment which formed the basis for its permanent injunction and the subsequent consent decree. In an apparent oversight, however, the court included time spent by law clerks and legal assistants on such matters. The appellees agree with the City that the sixty-four and a half hours so spent should not have been incorporated into the calculation of the lodestar. On remand, therefore, the district court should deduct these hours in redetermining the lodestar amount.
(iii) Clerical Matters
The City points to entries in the time sheets of William McNeill, one of appellees' attorneys, as constituting clear examples of billing abuse. Many of these entries have to do with time billed for clerical matters such as the filing of pleadings and the travel time associated therewith. Appellees' counsel are not entitled, the City argues, to attorneys' fees for the performance of such tasks.
We agree with the City. In Missouri v. Jenkins,
The City overlooks the fact, however, that the district court took proper account of the clerical time claimed by appellees' counsel in calculating the lodestar amount. The court noted the City's contention that appellees' counsel had billed eighty-three hours for chores such as xeroxing and the serving and filing of papers. While questioning the accuracy of the City's figure, the court observed that appellees' counsel had reduced the total number of hours claimed by five percent to account for billing errors of this sort. This five percent reduction more than compensated for the time challenged by the City as improperly billed, rendering a further reduction in the lodestar amount unnecessary.
(iv) Travel Time
The City not only challenges the hours claimed by appellees' counsel for travelling in connection with the performance of clerical tasks, but also contends that the district court improperly allowed counsel to bill for time spent travelling to co-counsel meetings. This argument lacks merit. The touchstone in determining whether hours have been properly claimed is reasonableness. The assessment of reasonableness is made by reference to standards established in dealings between paying clients and the private bar. "[The] calculation of fees for prevailing civil rights plaintiffs is to be the same as in traditional fee arrangements and ... all reasonable time spent is to be compensated." Suzuki v. Yuen,
The district court allowed appellees' counsel to claim time spent travelling to co-counsel meetings because "counsel have submitted evidence establishing that local attorneys customarily bill their clients for travel time to co-counsel meetings."
(v) Time Spent on Fee Petition
This Court has repeatedly held that time spent by counsel in establishing the right to a fee award is compensable. See, e.g., D'Emanuele v. Montgomery Ward & Co.,
Counsel may certainly solicit the assistance of other lawyers in working on a case, however, and the time spent by all lawyers on a litigation can be billed so long as the hours claimed are not duplicative. Just recently we affirmed a fee award which included compensation for time spent by plaintiffs' regular counsel as well as special fee counsel on a fee petition. "A review of the record indicates that the request for fees and costs for work on the fee petition is reasonable. We therefore award $65,641.50 for fees incurred in litigating the fee petition: $9,370.50 for work performed by class counsel and $56,271.00 for legal services rendered by counsel employed by class counsel." Bernardi v. Yeutter,
(vi) Duplicative Tasks and Overstaffing
The City contends that because a number of attorneys and paralegals billed the City for time spent on the SFFD litigation, the hours they claimed were necessarily duplicative. The district court discussed this question of overstaffing at some length. It noted that those challenging the SFFD's employment practices had been divided into five subclasses of litigants because of potential conflicts of interest. Each subclass necessarily had to be represented by a different attorney. The appellees also hired additional attorneys with special expertise in employment discrimination litigation who helped develop the overall strategy and legal analysis. The court reviewed the time records of each attorney and determined that, for the most part, the hours claimed " 'reflect[ ] the distinct contribution of each lawyer to the case.' "
We review for abuse of discretion. The district court's determination that the bulk of the hours claimed by appellees' counsel were reasonably expended was not an abuse of discretion. We have previously recognized that broad-based class litigation often requires the participation of multiple attorneys. "[I]n an important class action litigation such as this, the participation of more than one attorney does not constitute an unnecessary duplication of effort." Probe v. State Teachers' Retirement System,
The district court scrutinized the hours claimed by appellees' counsel with care. While the City observes that district courts in other multiple representation cases have disallowed hours as redundant, that fact does not cast doubt on the court's finding here that appellees' counsel did not, for the most part, seek compensation for duplicative efforts. The City's generalized assertions that appellees' counsel billed excessive hours for time spent in co-counsel meetings similarly fall short of the mark in light of the district court's finding that appellees' counsel presented "comprehensive and persuasive" evidence, "in the form of agendas, meeting summaries and deposition testimony, of the efficient and essential nature of their co-counsel meetings."
(vii) Press Conferences and Public Relations
The City challenges approximately eleven hours of time billed by appellees' counsel for what it characterizes as talks given to community organizations. The district court rejected this characterization, stating that closer review demonstrated that appellees' counsel spent the eleven hours conferring with their clients and with attorneys involved in similar litigation.
The district court also allowed appellees' counsel compensation for time spent in giving press conferences and performing other public relations work. "Attorney work in the political arena," it stated, "where narrowly focused on fostering the litigation goals of their clients, is compensable."
As we have previously noted, prevailing civil rights counsel are entitled to compensation for the same tasks as a private attorney. Where the giving of press conferences and performance of other lobbying and public relations work is directly and intimately related to the successful representation of a client, private attorneys do such work and bill their clients. Prevailing civil rights plaintiffs may do the same.
The district court determined that appellees' counsel's public relations work represented a valid effort to lobby the San Francisco Board of Supervisors, and that "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."
B. Reasonable Hourly Rate and Enhancement of the Lodestar
The City vigorously contests the billing rates used by the district court in arriving at its lodestar figure. Both the Supreme Court and this court have made clear that such rates should be established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity. In Blum v. Stenson,
In determining an appropriate market rate, a district court may make reference to the factors developed by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc.,
In determining appropriate billing rates for the appellees' attorneys, the district court discussed at some length those Johnson- Kerr factors which it thought relevant to this case. It observed that the case involved difficult issues concerning the validity of the SFFD's employment tests that required considerable skill to litigate, particularly given the City's " 'tenacious and uncompromising pretrial litigation in defense of the challenged examinations.' "
The court further noted that appellees' counsel made a "massive level of commitment" to this case which precluded them from engaging in most other work during its pendency.
In addition, counsel obtained "excellent results" for their clients. Id. at 1428. While the SFFD had previously entered into consent decrees with minority groups, none involved the dramatic race and gender conscious relief embodied in the present decree. In 1985, the court noted, "minorities comprised only 14.6% of the city's firefighting force. As of August 8, 1990 minority composition stood at 24%. In a department which hired no women before 1985 there are now 36, comprising 2.6% of the force. One of the women is a lieutenant. Minority men have registered even broader gains in the officer ranks. In a fire department that had no minority members in the ranks of lieutenant or above in 1985, there are presently 54 lieutenants, eight captains, five battalion chiefs, one assistant chief and one assistant deputy chief II." Id. The court also scrutinized the educational background, career history and community standing of each appellee's attorney and concluded that they possessed a "high level of experience, ability and reputation...." Id.
In light of these factors, the court turned to the evidence submitted by the appellees concerning the rates charged by San Francisco attorneys for work comparable to that performed in the SFFD litigation. We recently pronounced that declarations of the "prevailing market rate in the relevant community ... [are] sufficient to establish the appropriate [billing] rate for lodestar purposes." Bouman v. Block,
The City did not controvert this evidence below. The only evidence it presented concerning billing rates was a survey done of the California legal market as a whole which discussed a wide variety of practice areas. As the Supreme Court made clear in Blum, however, the proper reference point in determining an appropriate fee award is the rates charged by private attorneys in the same legal market as prevailing counsel, San Francisco in this instance, for work similar to that performed by such counsel, broad-based complex litigation here. The City's survey was properly dismissed by the district court as shedding no light on this matter.
Before this court, the City discusses several district court decisions which, in its estimation, establish that the rates claimed by appellees' counsel for work performed in the San Francisco market were excessive. In Bernardi v. Yeutter,
The City also points to the district court's decision in Bucci v. Chromalloy, 1989 W.L. 222441 (N.D.Cal.1989), aff'd,
The City levels several other criticisms at the billing rates approved by the district court. It argues that the district court abused its discretion in applying the same hourly rate to each task performed by appellees' counsel. We noted above our agreement with the City's position insofar as it contends that appellees' counsel were not entitled to claim fees for the performance of clerical work. However, we disagree with the City's contention that the district court erred in applying a uniform rate to the legal work performed by each appellee's attorney. Private practitioners do not generally charge varying rates for the different lawyerly tasks they undertake on a given case, and we have squarely held that the district courts can act accordingly in their calculation of fee awards. "[T]he use of a single average rate for each attorney is not necessarily an abuse of discretion." White v. City of Richmond,
The City also contends that the district court should not have applied 1988 billing rates to each hour claimed by appellees' counsel regardless of the year in which the work was actually performed. This argument runs counter to a wealth of precedent. In Missouri v. Jenkins,
The City argues, finally, that the billing rates approved by the district court exceeded the rates charged by several of the appellees' attorneys in their private practices and therefore constituted an abuse of discretion. We rejected this argument in White v. City of Richmond,
One factor utilized by the district court in its rate determination, the contingent nature of the fee arrangement, requires us to remand to the district court for a redetermination of the fee. In keeping with the law of this circuit at the time it rendered its decision, the district court deemed the fact that appellees' counsel undertook this case on a contingent basis, and therefore bore the risk of nonpayment in the event of failure, to constitute a special circumstance warranting the enhancement of the lodestar fee. However, in its recent decision in City of Burlington v. Dague, --- U.S. ----,
The district court referred to the factor of contingency at two points in its fee determination. It relied on contingency to apply a multiplier to the lodestar fee; Dague requires the elimination of that multiplier. The district court also mentioned contingency as a consideration in listing the Johnson- Kerr factors which it thought relevant to establishing appropriate billing rates.
Reading the district court's remarks in context, we do not think it likely that the district court's rate determinations in computing the lodestar took into account at that point the contingent nature of appellee counsel's fee arrangements. Contingency was only one of a host of factors listed by the district court as items to be considered in its setting of billing rates, and was not a factor focused on by the court until it considered whether to apply a multiplier to the lodestar. The court's rate determinations appear to have rested on its assessment of the degree of complexity of the case and the prevailing legal fees in San Francisco for work of a like kind and quality as that performed here, and seem well supported in that regard. Nevertheless, we think it appropriate that on remand the district court consider whether it would arrive at the same lodestar figure in this case without taking the factor of contingency into account.
III. COSTS
A. Expert Fees
The City challenges the district court's grant of $12,200 in expert witness fees and $69,516 in general expenses to the appellees as part of the attorneys' fee award. In contesting the award of expert fees, the City points to the Supreme Court's decision in West Virginia University Hospitals, Inc. v. Casey, --- U.S. ----,
The Supreme Court has, on different occasions, set forth seemingly inconsistent presumptions regarding the applicability of new enactments to pending cases (or to litigation concerning pre-enactment events that is commenced post-enactment). In Bradley v. Richmond School Board,
In Bowen v. Georgetown University Hospital,
A year later, in Kaiser Aluminum & Chemical Corp. v. Bonjorno,
We similarly do not need to choose between the Bradley and Bowen presumptions regarding retroactivity in deciding whether the Civil Rights Act of 1991 applies to pending cases. Reliance on a presumption is unnecessary, because the language of the Act reveals Congress' clear intention that the majority of the Act's provisions be applied to cases pending at the time of its passage.
Section 402(a) of the new law states that "[e]xcept as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." By itself, this language does not determine whether the Act applies to ongoing cases, though it does give at least "some indication that [Congress] believed that application of [the Act's] provisions was urgent." In re Reynolds,
Section 109(c) of the Act states that its extension of Title VII's protections to United States citizens working for American companies overseas "shall not apply with respect to conduct occurring before the date of the enactment of this Act." Section 402(b) declares, furthermore, that "nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983."7
These directives from Congress that in two specific instances the Act not be applied to cases having to do with pre-Act conduct provide strong evidence of Congress' intent that the courts treat other provisions of the Act as relevant to such cases. " '[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.' " Russello v. United States,
Indeed, if we construed the entire Act as applying only to post-passage conduct, we would run afoul of what the Supreme Court has repeatedly declared to be the " 'elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.' " South Carolina v. Catawba Indian Tribe, Inc.,
We would rob Sections 109(c) and 402(b) of all purpose were we to hold that the rest of the Act does not apply to pre-Act conduct. There would have been no need for Congress to provide that the Act does not pertain to the pre-passage activities of the Wards Cove Company, see Section 402(b), or of American businesses operating overseas, see Section 109(c), if it had not viewed the Act as otherwise applying to such conduct. Congress' express declaration that the Act is to operate only with prospective force in two instances thus provides a clear indication of its intent that the rest of the Act, including its expert fees provisions, apply to cases pending at the time of enactment and to prior conduct not barred by the applicable statutes of limitations.8
Additional evidence of Congress' aims is provided by the introductory passages of the Act, in which Congress made no secret of its intent to reverse a number of Supreme Court decisions that it thought construed too narrowly various employment discrimination statutes. In Section 2 of the Act, Congress expressed its "finding" that "the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio,
Given Congress' sense that the Supreme Court had construed the Nation's civil rights laws so as to afford insufficient redress to those who have suffered job discrimination, it appears likely that Congress intended the courts to apply its new legislation, rather than the Court decisions which predated the Act, for the benefit of the victims of discrimination still before them. Indeed, the facts of this case indicate that to construe Congress' intent otherwise would lead to incongruous results. The district court rendered its award of expert fees at a time when it perceived Title VII as providing it with the authority to do so. The Supreme Court subsequently handed down its decision in Casey, the result of which was to render such an award of fees improper. Shortly thereafter, Congress passed, and the President signed into law, a statute which strips Casey of any force in the employment discrimination context by explicitly providing that, in actions brought pursuant to Title VII or 42 U.S.C. § 1981, expert fees may be awarded. We must now decide whether to reverse the district court's grant of such fees. It would appear inconsistent with Congress' intent for us to do so on the grounds of a Supreme Court decision predating the Act, the implications of which Congress has explicitly rejected in the employment discrimination arena.
The courts of appeals that have construed the entire Act to apply only to post-Act conduct have either ignored Sections 109(c) and 402(b) or the elementary canon of construction that we should avoid an interpretation of the Act which renders those sections superfluous. In Vogel v. City of Cincinnati,
In another opinion, the Seventh Circuit did acknowledge the existence of Sections 402(b) and 109(c), but rather than according those sections meaning simply treated them as redundant. Mozee v. American Commercial Marine Serv. Co.,
The Eighth Circuit, in Fray v. Omaha World Herald Co.,
The Act lacks much in the way of a traditional legislative history. No committee or conference reports accompanied its passage. The only commentary on the Act's provisions is contained in the floor statements of various members of Congress and the interpretive memoranda which they inserted into the Congressional Record. Nothing suggests that these statements and memoranda represent the views of anyone other than the members who made or signed onto them. Thus, we agree with Senator Danforth, a principal cosponsor of the Senate Bill that was enacted into law,10 as to the limited value of these legislative materials:
It is very common for Members of the Senate to try to affect the way in which a court will interpret a statute by putting things into the Congressional Record. Sometimes statements are made on the floor of the Senate ... Another way to do it is to put interpretive memoranda in the Congressional Record. These memoranda typically are not read on the floor of the Senate. They are just stuck into the Record ... Last Friday, Senator Kennedy made a speech on the floor of the Senate. He stated his views of what the bill does. Senator Hatch has just made a very extensive speech on the floor. He stated his views of what the bill does. My guess, Mr. President, is that if Senator Kennedy would give us his analysis of Senator Hatch's position, he would disagree with it. If Senator Hatch would give us his analysis of Senator Kennedy's position, Senator Hatch would disagree with Senator Kennedy. I might disagree with both of them. I anticipate that I am going to have an interpretive memorandum which will be put into the Record signed by the other original six Republican cosponsors for the legislation. That will be our interpretation of various provisions, but it may not be the interpretation of Senator Hatch or Senator Kennedy or anyone else ... [W]hatever is said on the floor or the Senate about a bill is the view of a Senator who is saying it ... [A] court would be well advised to take with a large grain of salt floor debate and statements placed into the Congressional Record which purport to create an interpretation for the legislation that is before us.
137 Cong.Rec. S15325 (daily ed. Oct. 29, 1991) (statement of Sen. Danforth).
Even if we were to treat the floor statements and interpretive memoranda as providing evidence of the intent of Congress as a whole, we would be able to derive little guidance from them on the subject of retroactivity. A number of members of Congress expressed the view that the Act was not meant to apply retroactively. See, e.g., 137 Cong.Rec. S15472, S15478 (daily ed. Oct. 30, 1991) (interpretive memorandum submitted by Sen. Dole); 137 Cong.Rec. S15483-15485 (daily ed. Oct. 30, 1991) (statement and interpretive memorandum of Sen. Danforth); 137 Cong.Rec. 15493 (daily ed. Oct. 30, 1991) (statement of Sen. Murkowski); 137 Cong.Rec. S15953 (daily ed. Nov. 5, 1991) (interpretive memorandum submitted by Sen. Dole); 137 Cong.Rec. S15966 (daily ed. Nov. 5, 1991) (statements of Sens. Gorton, Durenberger, and Simpson). Other members expressed exactly the contrary view. See, e.g., 137 Cong.Rec. S15485 (daily ed. Oct. 30, 1991) (statement of Sen. Kennedy);11 137 Cong.Rec. S 15963 (statement of Sen. Kennedy); 137 Cong.Rec. H9530-31 (daily ed. Nov. 7, 1991) (interpretive memorandum submitted by Rep. Edwards); 137 Cong.Rec. H9549 (daily ed. Nov. 7, 1991) (statement of Rep. Fish). Taken as a whole, the floor debates do not convey a strong sense of Congress' intent on the subject of retroactivity, and certainly do little to call into question the strong presumption that each section of the Act should be given meaning in the context of the Act read in its entirety.
In Fray, the Eighth Circuit placed much reliance on the fact that the 1990 version of the Civil Rights Act, which President Bush vetoed, contained express provisions for its retroactive application, while the 1991 legislation does not. "When a bill mandating retroactivity fails to pass, and a law omitting that mandate is then enacted, the legislative intent was surely that the new law be prospective only; any other conclusion simply ignores the realities of the legislative process." Fray,
The Administration bill, which was introduced in the House of Representatives by House Minority Leader Michel, declared that "[t]his Act and the amendments made by this Act shall take effect upon enactment. The amendments made by this Act shall not apply to any claim arising before the effective date of this Act."13 The bill was soundly defeated in the House, though the language providing that the Act would take effect upon enactment survived and became Section 402(a). The Administration's declaration that the Act would apply only prospectively is nowhere to be found in the statute as enacted. According to the Eighth Circuit's own reasoning, then, the omission of this language creates a strong inference that Congress intended the Act to apply retroactively, one sufficient to rebut the opposite inference drawn by the Eighth Circuit from the difference in language between the 1990 and 1991 bills. See Mozee,
In sum, little of value can be discerned from the legislative history of the Act. The floor debates and events leading to the passage of the Act provide conflicting signals as to whether Congress envisioned that the Act would apply to pre-passage conduct. We do not find in the legislative history evidence sufficient to overcome the weighty presumption that the Act's language, indicating as it does that Congress intended the Act to apply retroactively, is an accurate reflection of the legislative design.
Nor does the fact that the Equal Employment Opportunity Commission (EEOC) has interpreted the Act's damages provisions to apply only to claims arising after the effective date of the Act call into question the clear import of the statutory language. The EEOC's view is expressed in a policy guidance issued soon after the Act was passed. "Policy Guidance on Application of Damages Provisions of the Civil Rights Act of 1991 to Pending Charges and Pre-Act Conduct," EEOC Notice 915.002, reprinted in EEOC Compl.Man. p 2096 (CCH) (Dec. 27, 1991) [Guidance].14 In the guidance, the EEOC argues that neither the language nor the legislative history of the Act provide a clear sense of Congress' intent on the subject of retroactivity. The EEOC then discusses the Bradley and Bowen presumptions in favor of and against the retroactive application of statutes, and concludes by applying the Bowen presumption against retroactivity to the Act on the grounds that Bowen was decided subsequent to Bradley.
In EEOC v. Arabian American Oil Co., --- U.S. ----,
In General Electric Co. v. Gilbert,
ARAMCO, --- U.S. at ----,
Here, it is doubtful whether the EEOC guidance is entitled to even this limited deference. The EEOC's interpretations of Title VII are properly considered by the courts because the EEOC bears responsibility for enforcing that statute. However, the damages provisions of the new Act, which form the subject matter of the policy guidance, do not represent amendments to Title VII, but rather add a new section to the Reconstruction-era civil rights statutes, to be codified at 42 U.S.C. § 1981A. The EEOC is not responsible for administering those statutes. Thus the guidance does not represent the interpretation of a statutory provision with respect to which the EEOC has enforcement responsibilities, and its significance is questionable in light of that fact.
In any event, we find that the guidance lacks the "power to persuade," ARAMCO, --- U.S. at ----
B. Other Expenses
The Casey decision did not affect the authority of courts to compensate for expenses other than expert fees as part of an attorneys' fee award. The holding and reasoning of Casey were very carefully limited to the question of expert expenses. As noted above, the Casey Court determined that because Congress has frequently enacted laws authorizing the award of both attorneys' fees and expert witness fees, a statute authorizing only the former indicates Congress' intent that expert costs not be shifted. This reasoning does not apply to other sorts of costs that Congress is not in the habit of providing specific authorization for and which the courts have long held can be awarded as part of a reasonable attorneys' fee since they are typically charged to paying clients by private attorneys. Thus, in the wake of Casey, we have continued to hold that attorneys' fees awards can include reimbursement for out-of-pocket expenses including the travel, courier and copying costs that appellees' attorneys incurred here. In Davis v. Mason County,
IV. INTEREST ON THE BACKPAY AWARD
The consent decree provided that six black firefighters should be retroactively promoted to the position of lieutenant, with their date of appointment set at March 9, 1979, and awarded "backpay from that date, taking into account the applicable base rates of pay for fire lieutenant and their actual regular earnings (not including overtime) plus interest since that date." United States v. City & County of San Francisco,
The City challenges this determination on three grounds. It first argues that the district court should have utilized the rate of interest relied upon by the California Fair Employment and Housing Commission in 1982 when it held that the SFFD's promotion examination was invalid and retroactively appointed the six black firefighters in question here to the position of lieutenant. As discussed above, the California Court of Appeals subsequently vacated this relief pending resolution of the current round of federal litigation. City and County of San Francisco v. FEHC,
However, the consent decree which provides for the present award of backpay and interest constitutes the settlement of a federal action. The litigation which led to the decree was brought pursuant to two federal statutes, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6701 et seq. (repealed 1986). No state law claims were presented. The district court was thus well within its bounds in applying federal law to interpret the provisions of the consent decree.
The City next argues that if federal law principles are to govern the calculation of interest in this case, the rate should be set by reference to 28 U.S.C. § 1961 (1982). That statute provides that "[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court ... Such [post-judgment] interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of judgment." While section 1961 speaks to the appropriate rate for post-judgment interest, we have held that "the same rate should be applied to pre-judgment interest 'unless the trial judge finds, on substantial evidence, that the equities of a particular case require a different rate.' " Ford v. Alfaro,
In Richardson, which was decided in 1981, the district court deemed the adoption of a floating prime rate standard justified "in light ... of the continued increases in the rate of inflation and rapid fluctuation of the prime rate in recent years...."
The City argues, finally, that it should pay interest only on an amount equivalent to the lieutenants' backpay award as reduced by their federal income tax liability. This argument is foreclosed by the terms of the consent decree. The decree provided that the City would pay the lieutenants interest on their backpay award, not on some portion of it. The City may not use this litigation as a vehicle for modifying what it has previously agreed to do.
CONCLUSION
We remand to the district court to redetermine its attorneys' fees award in light of the following: sixty-four and a half hours of law clerk time attributable to unrelated matters should be deducted from the lodestar; fees for public relations work should be stricken unless each item can be documented as something only a lawyer appropriately should do; billing rates previously set should be reexamined to make sure the fact of contingent representation was not a factor in setting the rate; enhancement of the lodestar fee for contingency should be eliminated. We affirm the court's award of expert witness fees in light of our conclusion that the Civil Rights Act of 1991 applies to pending cases, but the court should reexamine the costs bill to make sure the items allowed would be of a type and in an amount that a paying client would be expected to reimburse. The court's award of interest on back pay is affirmed. In all other respects we affirm.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Notes
Both the Supreme Court and this court have held that the standards for determining a reasonable attorney's fee in a Title VII action pursuant to 42 U.S.C. § 2000e-5(k) are identical to those utilized in determining an attorney's fee award pursuant to 42 U.S.C. § 1988, which allows for the award of a reasonable attorney's fee to the prevailing party in actions brought under 42 U.S.C. §§ 1981-1986 and Titles VI and IX of the Civil Rights Act of 1964. See Hensley v. Eckerhart,
Related to the City's attack on appellees' counsel's recordkeeping is its contention that appellees' counsel claimed, and were awarded, hours exceeding those that can be accounted for by totalling their time sheets. The City has not pointed to any instances where the district court erred in its computation of the hours spent by appellees' counsel on this litigation. The district court provided a detailed attorney-by-attorney breakdown of those hours as an appendix to its opinion. See United States v. City and County of San Francisco,
All together, appellees' counsel billed approximately nine thousand hours. The five percent billing judgment reduction thus amounted to about four hundred and fifty hours. The district court's reasoning would have been suspect if it had continually relied upon the five percent reduction to forgive errors in appellees' counsel's billing practices. This it did not do
One other Johnson- Kerr factor, the time and labor required to litigate a case, pertains to the reasonableness of the hours claimed by prevailing counsel. Blum v. Stenson,
The statute at issue in Casey was 42 U.S.C. § 1988
Section 113(a) of the Act amends 42 U.S.C. § 1988 to authorize the award of expert fees in actions brought pursuant to 42 U.S.C. §§ 1981 and 1981A
This latter provision is generally referred to as the Wards Cove amendment because its sole effect is to preclude the application of the Act's requirements to pending litigation involving the prevailing party in Wards Cove Packing Co. v. Atonio,
Because the statutes of limitations governing most employment discrimination claims are generally short, see e.g., 42 U.S.C. § 2000e-5(e) (providing that unfair employment practice charges under Title VII must, with certain exceptions related to the processing of charges by State fair employment agencies, be filed within 180 days of the alleged occurrence), this latter category of cases is likely to be quite small
The Eighth Circuit is the only court of appeals to have found guidance in the Act's legislative history. See Johnson,
S. 1745, 102d Cong., 1st Sess. (1991) (enacted)
Along with Senator Danforth, Senator Kennedy was the principal cosponsor of the Act in the Senate. Representative Edwards was a principal cosponsor of the Act in the House
The Fifth Circuit, while appearing not to find guidance in the Act's legislative history, also made mention of this difference between the language of the 1990 bill and the 1991 Act in its Johnson decision.
H.R. 1375, 102nd Cong., 1st Sess. § 15 (1991)
The guidance deals only with the compensatory and damages provisions of the Act, but since its reasoning applies to the Act in general we address it here
Concurring in ARAMCO, Justice Scalia questioned the majority's assertion that the EEOC's views are not entitled to the deference typically accorded administrative agencies. Pointing to the Court's decision in EEOC v. Commercial Office Products Co.,