Kevin West v. John Potter
717 F.3d 1030
D.C. Cir.
2013
Check Treatment
Docket

*1 Again, rehashing without the evidence above, forth the same conclusion fol-

set respect to each of the other

lows violations. The deci-

three Commission’s rested on substantial evidence. We

sion reject evidentiary

therefore Cumberland’s

objection deny and must petition. its other argu-

While Cumberland advances

ments, none warrant further discussion.

CONCLUSION applied

Because the Commission significant stan- substantial

dard, and because substantial evidence each of the

supports significant and sub-

stantial determinations in question, pe-

tition for review is denied. ordered.

So WEST, Appellant

Kevin D. POTTER, General, E.

John Postmaster Service, Appellee.

U.S. Postal

No. 12-5106.

United States Appeals, Court of

District of Columbia Circuit.

Argued 2013.

Decided June *2 delayed payment of at-

compensation for Title VII torney’s fees after his successful against employer, lawsuit his the United Although Postal States Service. compen- had not to discretion applied wrong legal sate for Ac- exercising standard discretion. cordingly, we vacate and remand for determine, cor- court to under the district standards, compensa- legal rect so, and, by delay is if appropriate tion for what means.

I. BACKGROUND USPS, claiming racial dis- West sued crimination, retaliation, and work hostile 14, 2008, jury On a environment. March a on some returned verdict West’s favor and him of the retaliation claims awarded $90,000 plus attorney pre- costs. West’s she took case on sumably knew when his any attor- likely and that she would not receive argued the cause Murray W. Teresa won, eventually appellant. fees unless West ney’s filed the briefs be probably which meant that there would Puth, Seymour, Richard T. Jonathan C. she between the time significant on brief of C. Garon were and Lenore legal and rendered services West Em- Washington Metropolitan amici curiae finally that she received time Association, al. in Lawyers et ployment Compensation received for those services. appellant. support of is less years after are rendered services Fields, Attor- C. Assistant U.S. Rhonda dollar amount re- valuable than the same appellee. With ney, argued cause Marshall, Copeland v. promptly. ceived Ronald Machen her the brief were C. (en banc) (D.C.Cir.1980) 641 F.2d Jr., Craig R. Lawrence Attorney, and U.S. today for services rendered (“[Pjayment Burch, Attorneys. U.S. Alan Assistant and re- past deprives eventual TATEL, Judge, Before: Circuit money use of the of the cipient value SENTELLE, WILLIAMS Senior use, meantime, particularly Judges. Circuit valuable.”). era, com- inflationary To by de- pensate for lost value caused filed Opinion Senior motion for attor- layed payment, West’s Judge Circuit SENTELLE. requested that Concurring opinion filed Senior higher his base his fee award on Judge Circuit WILLIAMS. rates she rates instead were legal at the time services charged SENTELLE, Judge: Senior Circuit rendered. Appellant case before us on This comes attor- referred the The district court appeal D. the district

Kevin West’s magis- States any ney’s fees issue to United refusing order to award court’s who judge, jurisdiction trate recommended The court retained of the attorney’s fees calculated based on his- post-judgment case to resolve re- recovery toric his should be equitable lated to remedies and attor- partial 75% to reflect West’s limited to ney’s fees. On December *3 objected the merits. to success on West remaining equitable court resolved the judge’s magistrate Report and Recom- parties issues and directed the to confer mendation, pending, but while it was regarding any disputes. pending Order emergency also motion for filed interim parties at 15-16. [# 169] The informed later, attorney’s days fees. Ten the dis- the court that no there were outstand- magistrate adopted judge’s ing to be resolved this case and Report Recommendation. judg- the court entered a supplemental granted court The district West’s emer- 4, January ment on 2011 [Docket No. attorney’s gency motion interim fees in Although appear 176]. there does not part. Although parties disputed still to been any impediment timely to West, of fees the amount due to filing any a notice of appeal related to payment trict court awarded immediate issues, pre-judgment attorney’s fees (later amount—$255,915 undisputed in- Plaintiff moved to vacate the supple- $23,906 creased to a math er- judgment mental pending the filing ror)—noting circumstances, that under the present agreement regarding post- require payment it was to better “the of an judgment attorney’s issues [Docket fees disputed quickly amount that is not as as 177; 20, January No. Filed 2012]. possible rather than to the resolution While this revised supplemental judg- parties’ dispute regarding interim arguably unnecessary, ment is IT IS fees at time.” It added that “there (1) HEREBY ORDERED as follows: opportunity adjudicate will be an to Plaintiffs Motion for Reconsideration when attorneys’ difference a final fee (2) No. [Docket 177] GRANTED. 1, 1, 13, award is made.” Order Jan. Plaintiffs Motion for an Award of Attor- 2010, No. 132. ECF [Docket Fees 66] No. GRANT- 21, 2011, On December the parties filed ED in part and DENIED in as report, provided status which that “there previous directed orders on the dock- outstanding are no issues which need to be Any et. remaining portion the Mo- resolved Court.” The district court pursuant tion is DENIED as moot responded order “GRANT[ING] the parties’ agreement [Docket No. part and in part DEN[YING] as directed 178]----This case shall remain closed. previous orders on the docket” West’s Supplemental 1, Revised J. Feb. motion for an attorney’s award of The fees. ECF appealed. No. West order stated that parties “the have in- formed court that there are no out- II. DISCUSSION standing issues to be resolved this case.” A. 1, Order, No. 176. ECF always, proceeding As before to the reconsideration, West moved re- case, merits of this we must assure our questing that the court allow the jurisdiction selves that we have to consider parties time more a stipulated finalize argues them. The Postmaster agreement. settlement parties After the jurisdiction lack stipulated filed their because the district court agree- settlement ment, yet the district court has not set a final of attorney’s issued revised amount supplemental judgment, Marx, explained: fees to be awarded. See Gilda Inc. Exercise, Inc., B. F.3d v. Wildwood (D.C.Cir.1996) (holding a decision merits, Proceeding ar West renewable attorney’s fees is not awarding required gues that the district court was amount set the the district until attorney’s award him fees calculated at awarded). speci- The district court to be current rates for de attorney’s fees award that its interim fied layed payment. argues The Postmaster non-final, any awarded never was the district court did abuse its Therefore, by refusing the ar- to award the amount of fees. discretion other rates because West failed to meet his bur final amount of gument goes, no request that his in a den show resulted set in the court below. was ever *4 attorney’s fees award. re reasonable We certainly argument is not appellee’s While attorney’s fees for of view awards abuse frivolous, ultimately disagree. discretion, Covington v. District Colum of issuing supplemental its revised Before bia, 1101, (D.C.Cir.1995), 57 1110 but F.3d district court asked both judgment, the in the questions we review of law decided to any issues remained be whether parties novo, process determining of an award de resolved, that none responded and both Obama, 1, v. 654 5 F.3d Almerfedi supplemental In its revised remained. (D.C.Cir.2011). court reentered the judgment, the district reasoning The the supporting district a final attorney’s as interim fees award court’s to use historic rates and to decision It even a sentence of fees. added award delayed compensation pay- for provide no any remaining portion of West’s denying magistrate judge’s ment is found the attorney’s as moot and for fees motion that Report Recommendation and Accordingly, closed. the the case declared accepted entering the before fees final attorney’s award became interim magistrate judge interim award. The fee its the court issued revised after delay not be- refused to for juris- judgment, we have and supplemental an cause current rates to be he believed this case. diction hear compensation means and inappropriate of Instead, the representation only dis- requested. Given West’s the one West delay the nei- that the interim fees award concluded that because was trict “unusually long” for a Title cáse ther VII outstanding pertaining all resolved by “dilatory stalling or con- nor occasioned fees, may well have West defendant, no the part duct” on the of any regarding proper argument waived compensation appropriate. for was rates, at an of fees historic computation 16, 13, Report Recommendation Oct. and arguably open by the interim issue left 2009, concluding, 110. In No. so ECF 1, 13, 1, award. Order fees See magistrate judge applied wrong stan- 2010, “there (noting EOF No. 132 that will evaluating dard for adjudicate opportunity to the differ- be attorney’s fees is delayed payment for of “when fee awards a requested ence” necessary. made”). But attorneys’ fee award is final appeal is instead to challenge prevailing provides that Title VII rather than current the use historic attor may recover a “reasonable parties award, attorney’s fee rates to calculate the 42 part as the costs.” U.S.C. fee 2000e-5(k). district court’s an issue resolved § A fee is one reasonable Report counsel, magistrate judge’s adoption competent of the .to attract “adequate, reopened by and not windfalls produce that does and Recommendation but Stenson, Blum 465 U.S. attorneys.” v. interim award. 1034 1541, 897,

886, dilatory 104 79 891 attributable to the defendant’s or S.Ct. L.Ed.2d (1984). stalling held that Supreme ap- The Court has conduct. While these the fee strong presumption propriate factors consider whether to there is now-ubiquitous adjustment “lodestar” award an yielded neither we method, Supreme fees on prevailing which bases nor have deemed them community, Smoking in the relevant exclusive. Action on market rates See Bd., Kenny v. A. ex rel. v. 724 F.2d reasonable. Perdue Health Civil Aeronautics (D.C.Cir.1988) 1662, 1672, 211, Winn, (compensating 130 S.Ct. 559 U.S. (2010) City delayed payment of (quoting signifi- 176 L.Ed.2d 494 fees where four-year delay Burlington Dague, U.S. cant of the was attrib- (1992)). 120 L.Ed.2d 449 six requests S.Ct. utable “the [defendant’s] one, stays”). like attor appears magistrate But in Title VII cases It that the long neys judge may thought are often not until after paid necessary them rendered, “payment today are rather than sug- services sufficient. We are not factors, they past gesting for services rendered de are inappropriate prives recipient returning but we are question the eventual of the value to the meantime, money of the district court for resolution-of appropri- the use *5 use, adjustment, if any, in ate on particularly inflationary delay which based the era, without the Copeland, apparent assumption that none is valuable.”1 641 F.2d at could be in the of made absence the enu- Accordingly, Supreme the merated factors. delay held that “an enhancement for in is, payment appropriate, where of a compensation We do not hold that for attorney’s fee.” reasonable Missouri delay always necessary is in Title VII Jenkins, 491 U.S. 109 S.Ct. magistrate judge may cases. The have (1989) (internal 105 L.Ed.2d 229 quotation had discretion not to compensate delay for omitted). If compensation delay marks for all. By way at of example, and not ex- fee, necessary provide is a reasonable it haustion, if he that determined may by be made “either basing the award anticipated delayed counsel had pay- adjusting current rates or the fee compensation ment and built for that delay on historical pres based rates reflect its figure, might into lodestar Perdue, (in ent value.” 130 1675 S.Ct. at held no compensation necessary. further omitted). quotation ternal marks For ex Copeland, See F.2d at 893 23. Or a ample, using rates, instead of delay brief in payment might not warrant may delay courts also for any adjustment for the lost value of mon- adding interest to the historic rate so that ey. Rulings such as these would re- paid today approx amount reflects the view for abuse of But mag- discretion. of charged imate value the historical rates judge istrate appears to have treated the at the time services were rendered. 42Cf. two factors discussed as necessary above 2000e-16(d) § U.S.C. (making interest to time delay enhancement when they in litigation). available Title VII were at most relevant factors. above, As magistrate judge noted III. CONCLUSION recited as factors in his provide refusal to delay compensation for in payment Accordingly, we vacate and remand for the delay determine, was neither unusually nor under the recognize language prior 1. We trial court's determination on remand of the referring '‘inflationary decisions era” appropriateness appropriate is or the level of applicable, longer may no delay payment. affect in standards, appears to have been the case in the compen- fact legal in- years from 1987 so, and, if delay appropriate sation lawyers’ roughly remuneration crease means. by what prices generally. the increase See twice ordered. So (last http://metricmash.com/349k visited 29, 2013). case, In May obviously, such a ' WILLIAMS, Judge, Circuit Senior may overcompen- rates of current well use concurring: giving high pay lawyer, sate period (relatively) in a performed work opinion, and fully in the court’s I concur compensation. modest only problems note separately write award cur- that an assumption with the if complication is added the in- Further compen- question means is able in the lawyer rates a suitable rent dividual than period higher to command rates payment later sating counsel for before, growing experience line with fees. lawyer’s work Of course the reputation. are number of variables relevant. A spread years, will often over several illustrate some simple examples will Three command rates over the varying and thus two, In use of current problems. basic cur- periods performed. Compensation at third, undercompensate; period rates for the entire would com- rent may overcompensate. relatively junior attorney at pensate a than have command- more he or she would First, the relevant over suppose period(s). in the earlier ed general price period there has been zero inflation, inflation has been ex- price no certainly although one can Accordingly, *6 has, lawyers’ compensation pected,1 and rates case where use of current construct In average prices, been flat. along with roughly correct yield figure giving would will simply delay, a case current rates is no general such there rates. On these such use. Given principle supporting as the historic the same suitability in complications assessing the facts, not in fact use of current rates will rates, plus improvements using current delay in compensate payment. ability to interest rate data and secure Second, gen- has now there been assume necessary for computations make lawyers’ and that com- price eral inflation interest, I sus- straightforward addition of exactly moved tandem pensation all cases perhaps will in most and pect it current rates the CPI. While use of courts, and more accurate be easier inflation, compensate for it would would they it is suitable believe when delay in payment. simply so compensate for to do substance, results are the In economic rate(s) nominal awarding interest at the case. same as the first period(s) delay. prevailing over Third, of general the existence assume (in infla- expected line with

price inflation

tion) higher rate of considerably and a This lawyers’ compensation.

increase telescoping the inflation. I’m Long-run func- from realized interest are a nominal expected infla- simplicity’s rates and sake. tion of real interest two for expected inflation differ Of course tion.

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