OPINION
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:
*295 5. The defendant, County of Gloucester, agrees to submit for the Court’s de- • termination, the issues of whether or not the plaintiff’s attorney is entitled to a counsel fee from the defendant, County оf Gloucester, and if so, the amount of such fee. To this end, plaintiff’s counsel shall have thirty days from the date of this Order to make the appropriate motion before the Hon. Stanley S. Brotman for such determinations.
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. 1 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 proeedurally inсorrect 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). 2 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 heаr 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
*296
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,
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 ¶ 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,
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,
Regarding the amount of the award, Magistrate Orlofsky followed the reasoning of
Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp.,
IV. Discussion of Legal Issues
A. The plaintiff as a “prevailing party”
The defendant strenuously disputes that plaintiff is a “prevailing party” within the meaning of either Title VII or section 1988.
3
It is urged that a plaintiff must either be successful in court on her claim or must show some other evidence that the lawsuit vindicated her rights.
Goodall v. Mason,
The problem with this case, as is frequently the problem with litigation that settles prior to trial, is that there has been no finding of liability against, or admission of liability by, the defendant. The stipulation of dismissal mentions nothing in this regard except that “each and every defendant has denied liability in connection with the alleged claim. . . . ” Nevertheless, the defendant’s argument respecting the definition of “prevailing party” is too limited, as the legislative history of the 1976 Fees Act indicates:
“The phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following full trial on the merits. It would also include a litigant who succeeds even if the case is concluded prior to a full evidentiary hearing before a judge or jury. If the litigation terminates by consent decree, for example, it would still be proper to award counsel fees, [citations omitted].
“A ‘prevailing party’ should not be penalized for seeking an out-of-court settlement, thus helping to lessen docket congestion. Similarly, after a complaint is filed, a defendant might voluntarily cease the unlawful practice. A court should still award fees even though it might conclude, as a matter of equity, that no formal relief, such as injunctive, is needed.” House Judiciary Committee, Rept.No. 94-1558 (Sept. 15, 1976) at 7; *298 see also Senate Judiciary Committee, Rept.No. 94-1011 (June 29, 1976) at 5, 1976 U.S. Code Cong. & Admin. News, p. 5912.
The Magistrate was correct in focusing his analysis on
Parker, supra,
and
Foster v. Boorstin, supra. See also Regalado v. Johnson,
In this case, having examined the totality of the circumstances of the settlement, the court is drawn to the same conelusion as the Magistrate; the plaintiff must be considered a “prevailing party” within the meaning of the applicable fee statutes. While there has been no finding or admission of liability, it seems clear that the action would have survived a motion to dismiss or for summary judgment since disputed facts existed concerning the reasons for plaintiff’s termination.
See, e. g., Goodman v. Mead Johnson,
B. The Lodestar
This circuit has consistently held that the proper starting point for calculating the amount of counsel fees is the “lodestar” approach of
Lindy II, supra. See Hughes, supra
at 486. The lodestar is simply the hours reasonably necessary to the prosecution of the successful clаim times a reasonable hourly rate.
Lindy I, supra
at 167;
Hughes, supra
at 491 (Garth, J., concurring). The defendant seeks to distinguish this case from the
Lindy
cases on the ground that a “common fund” case has policy considerations different from a civil rights action in which fees are provided by statute. While certain factors may no doubt call for different results respecting
*299
various sub-issues,
see, e. g., Prandini, supra
In determining the lodestar in this case, the Magistrate basically followed the outline of Lindy I and its progeny. This court likewise concludes that the 1103/4 hours claimed by plaintiff’s attornеy in the prosecution of this case is entirely consistent with the complexity of the issues involved. Forty-four hours of discovery, eighteen hours of legal research, twenty hours of court-related activity and ten hours of consultation with the client are entirely reasonable in a litigation that spanned over Ph years and produced several discovery motions plus a summary judgment motion. Moreover, the road to ultimate recovery was a rough one because the plaintiff was faced with allegedly neutral reports which evaluated her as being incompetent in her position аs telephone operator at the Gloucester County Courthouse. Finally, the defendant has voiced no objection to the number of hours claimed by plaintiff’s counsel. The hours are therefore reasonable under all the circumstances.
The reasonable hourly rate was fixed by the Magistrate at $75.00. This rate was predicated primarily on Mr. Fuoco’s background and experience (summarized in a resume annexed to his fee petition) as well as the quality of work which the Magistrate, based on conferences and moving papers submitted in connection with various motiоns, found to be excellent. Additionally, Magistrate Orlofsky considered the fee rates in comparable civil rights cases in Other jurisdictions (presented in plaintiff’s brief before the Magistrate) in reaching his determination.
The defendant attacks the $75.00 hourly rate on the ground that the rates of compensation for federal criminal defense lawyers are considerably lower under 18 U.S.C. § 3006A(d)(l) and that plaintiff’s lawyer cannot justify such a high fee because of his low overhead costs. To begin with, what is appropriate for criminal attorneys appointed pursuant to court order is irrelevant in Title VII or § 1983 actions.
Rodriguez v. Taylor,
C. The “Lindy Amount”
Having determined that the Magistrate correctly calculated the lodestar for plaintiff’s counsel and his law clerk ($8,451.25), the next question is whether that amount should be adjustеd further to reflect either the exceptional quality of the work or the “contingency factor.” This adjusted figure has been labelled the “Lindy amount.” See Hughes, supra at 491 (Garth, J. concurring); Lindy II, supra at 112. The Magistrate, while not making a specific finding to such effect, apparently believed that the hourly rate adequately reflected the quality of the work and that a further upward adjustment was not necessary. The court agrees. *300 Under normal circumstances, a lodestar reflects the expertise, reputation and position of counsel. Baughman, supra at 1218. While the court has already commented upon counsel’s work in this case, it does not fеel that an additional adjustment is necessary or appropriate under the circumstances. Id. at 1219; Hughes, supra at 488.
The “contingency factor” poses another problem. This case was taken by Mr. Fuoco on a contingent fee basis. Despite defendant’s argument to the contrary, the presence of a contingent fee does not eliminate the propriety of court-awarded fees.
Sargeant v. Sharpe,
D. The Post-Lindy Discretionary Adjustment
Having determined that the' lodestar calculated by the Magistrate is correct and that the “Lindy amount” need not be further adjusted to account for the quality of Mr. Fuoco’s work or the contingency of the case, the court must now determine whether other factors are present which weigh in favor of adjustment of the lodestar either upward or downward. See Hughes, supra at 492 (Garth, J., concurring); Baughman, supra at 1220 (Garth, J., concurring).
In this regard, the court is confronted with a most difficult issue. Although defendant’s arguments have been largely misdirected toward whether plaintiff is a “prevailing party” under the various civil rights statutes, it is in the area of the
“post-Lindy
discretionary adjustment” that defendant’s arguments are most telling. While there is no question that plaintiff is a “prevailing party” for purposes of counsel fees, the additional question that must be asked in this case is whether the
degree
to which a plaintiff prevails can be used as a factor in adjusting the
Lindy
amount. While the Third Circuit in
Hughes
disapproved of an automatic reduction of the lodestar based on the percentage of successful counts of the complaint, this circuit and others have indicated that the lodestar may be reduced, in the district court’s discretion, to account for the “limited benefits produced by the litigation,”
Hughes, supra
at 489 (Rosenn, J. concurring), the limited public purpose served by the plaintiff’s award,
Id.
at 488-89 (majority op.), or the limited extent to which a plaintiff prevails in the litigation.
Adams v. Reed,
In Hughes Judge Rosenn discussed at length the ability of the district court to adjust the final lodestar figure to reflect the limited benefits produced from .the litigation both to the public and to the plaintiff. Judge Rosenn started with the premise, followed in part IV, A, of this court’s opinion, that a party is entitled to some counsel fees “regardless of whether he prevails slightly or greatly . . .” Hughes, supra at 490. He then discussed the necessity of allowing the district court flexibility in adjusting the lodestar. In Hughes, Judge Rosenn intimated that the small jury verdict and the isolated instance of racial discrimination warranted a reduction of the lodestar. While acknowledging that a minоr damage verdict might justify a large attorney’s fee if the litigation affected substantial government policies, Judge Rosenn concluded that:
. for the ordinary case, once a district court has fixed the “lodestar” it should not be precluded from a downward adjustment of that fee, when, in its discretion, considering the potential damages available, the amount actually recovered, and the minor nature of defendant’s misconduct, the court determines that the litigation has produced minimum benefits. See Lindy II, supra,540 F.2d at 112 , quoting, Merola v. Atlantic Richfield Co.,515 F.2d 165 ,168-69 (3d Cir. 1975) (Merola II) (the court may “reduce the objectively determined fee where the benefit producеd does not warrant awarding the full value of the time expended”). Hughes, supra at 490-91.
Similarly, Judge Garth, also concurring in Hughes, indicated that an adjustment could be made to reflect the degree to which the substantive purposes of the Civil Rights Act were furthered. Id. at 492. He outlined several factors the court might consider in making this determination, including:
[T]he' importance of the constitutional right and congressional policy which has been vindicated; the number of citizens who have been benefited or whose rights have been vindicated (either as class members or through stare decisis); the extent of the constitutional violation which has been remedied (i. e., how widespread or pervasive was the civil rights violation); whether the attorney has successfully advanced a novel theory or interpretation; the extent to which the public interest has been served, [citation omitted]. Id. at 492 n. 5.
In this case, there are several factors which lead the court to conclude that the “Lindy amount” should be reduced to account for the limited benefits produced by the litigation. First and foremost, there has been no finding of racial discrimination on the part of the defendant or its employees either by jury verdict, consent order or stipulation of dismissal. Therefore, it is impossible to conclude that any of the substantive purposes of the Civil Rights Act have been furthered by the litigation. Moreover, this litigation can be anticipated to have very little impact on a wide range of individuals. This is not a class action and, without any finding of racial discrimination, the stare decisis value is nil. Although a novel theory of racial discrimination was advanced by plaintiff’s counsel, it is impossible to conclude that this theory (poor job performance caused by racial discrimination) would have been convincing to a jury or judge. Additionally, while the benefits to the plaintiff are undoubtedly greater than in Hughes, this court cannot conclude that the plaintiff achieved nearly everything she sought in the complaint. As late as August 8, 1977, plaintiff was demanding $33,000.00 in damages together with her reinstatement as a telephone operator. She sought back salary in the amount of $20,800.00, exemplary damages of $12,-000.00 and medical damages of $200.00. Her total cash settlement was $7,800.00. Furthermore, she was not reinstated at her original position as telephone operator but was given the position of court attendant. The preceding analysis is not to belittle the *302 accomplishments of plaintiff and her аttorney. Without Mr. Fuoco, plaintiff would in all probability have received nothing out of this litigation. The personal benefits to her are large and, as her affidavit indicates, she is satisfied with the work of her lawyer. Nevertheless, in terms of the broader policies behind the Civil Rights Act and, equally as important, in terms of plaintiff’s vindication on the racial discrimination claim, the court is constrained to discount the fee award to reflect plaintiff’s limited success. In reducing the lodestar, the court is not unaware of the rather fine line it must draw between a “prevailing party” for any counsel fees and a “prеvailing party” for some, but not all, counsel fees requested-. The court is also mindful of the well-reasoned criticism of such a result-oriented analysis when contrasted with what some perceive as the lawyer’s role in typical civil litigation. See, e. g., Berger, Court Awarded Attorney Fees: What is “Reasonable?”, 126 U.Pa.L.Rev. 281, 317-18 (1977). However, in a situation where a case is settled prior to trial without any explicit adjudication of the liability issue, it is this court’s view that the trial judge must attempt to perform just such an intricate evaluation.
The final issue is how much the fee should be reduced. While it is easy to state with particularity the reasons for reducing or increasing an award, it is considerably more difficult to express an exact figure to implement such reasoning. In this regard the court is mindful of the continuing, admonitions of the Third Circuit to avoid, where possible, an “across-the-board” reduction of fee awards. See, e. g., Prandini, supra at 51-52. Nevertheless, this case allows for no other method of handling the “post -Lindy discretionary adjustment.” The plaintiff has been individually successful but not totally and not to the point of furthering the broad purposes of the Civil Rights Act. Considering all the factors, the court believes that the “Lindy amount” should be reduced by 30%. While it is perhaps small consolation for plaintiff’s attorney, such a result should not come as a surprise:
An attorney, depending solely upon a statutory discretionary fee award, who undertakes litigation in which the potential damages are small, may run the risk that his fee will not be full compensation for his labors.
Hughes, supra at 490 (Rosenn, J. concurring).
The risk plaintiff’s attorney took in this case was especially great since there was no finding of racial discrimination upon which he could hang his attorney’s fee hat.
V. Conclusion
In summary, the recommendation of the Magistrate respecting the lodestar of both counsel and law clerk is adopted by the court (110.75 hours X $75.00 per hour plus 29 hours X $5.00 per hour, for a tоtal lodestar of $8,451.25). The court finds that the “Lindy amount” should be the same as the lodestar. The court also finds that the “post-Lindy discretionary adjustment” should include a downward adjustment to 70% of the lodestar or $5,915.88. The petition for costs is granted in the full amount ($459.02). Finally, the supplemental fee petition for time spent in preparation of the fee petition and motion is granted in the amount of $412.50. See Prandini, supra at 53-54. 7 The appropriate order shall be entered.
Notes
. The Magistrate’s familiarity with the issues in this case is incontrovertible. In fact, at a pretrial/settlement conference held on February 16, 1977, the parties indicated that they would have no objection if Magistrate Orlofsky sat as a fact finder or master.
. 42 U.S.C. § 2000e-5(k) provides as follows:
In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the' United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
42 U.S.C. § 1988 similarly provides in pertinent part as follows:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.
. Since the suit was not litigated to a final judgment, it is impossible to conclude that one statute, as opposed to the other, applies. The language and purpose of each statute is nearly identical so it makes little difference which one is used for purposes of an award. See note 2, supra.
. The Magistratе concluded that the total value of the settlement to the plaintiff was $44,200.00 including an anticipated yearly salary of $5,200.00 for seven years. Of course, any calculation of plaintiffs anticipated future income should have been reduced to its present value which would reduce this $44,200.00 figure somewhat. While the defendant attacks the speculative nature of this award, virtually every future earnings damage award is similarly speculative, yet routinely employed. Moreover, defendant has contradicted its own argument by agreeing that plaintiff was not employed either prior to or after her 1973 term of employment at the Gloucester County Courthouse.
. The $5.00 hourly rate used to compute the law clerk’s lodestar is unchallenged on this appeal. In any event, it is entirely reasonable.
. Both Baughman and Lindy I undoubtedly reflect a judgment by the Third Circuit that counsel fees which approach or exceed a client’s own recovery tend, absent unusual circumstances, to undermine the integrity of the legal profession. Certainly large fee awards lend “support to the sentiments of the Italian proverb that ‘a lawsuit is a fruit tree planted in a lawyer’s garden.’ ” Berger, Court Awarded Attorneys' Fees: What is “Reasonable?”, 126 U.Pa.L.Rev. 281, 292 (1977). In this court’s opinion, the contingency factor is counterbalanced by the public policy against disproportionately large fee awards.
. Defendant’s attorney did not contest the reasonableness of the fee petition claim but rather the propriety of any fees at all for time spent litigating the fee question. Without unduly repeating the lodestar analysis used earlier in this opinion, the court finds that the 5.5 hours expended in preparation of the fee petition and brief to be entirely reasonable in view of the complexity of the issues presented. An analysis of the $75.00‘hourly rate has already been undertaken.