Thе plaintiffs, Society of Jesus of New England (Jesuits), bring this petition pursuant to 42 U.S.C. § 1988 (1988), for an award of.appellate attorneys’ fees against the defendant, Boston Landmarks Commission (commission). In the underlying case, Society of Jesus of New England v. Boston Landmarks Comm’n,
We begin by summarizing the following pertinent facts and procedural history. On May 12, 1987, the commission designated the interior of the Immaculate Conception Church as a landmark. Thereafter the Jesuits brought an action challenging that designation on Fеderal and State constitutional grounds. They also filed two other actions challenging subsequent acts of the commission on the same grounds. In all three complaints the Jesuits requested attorneys’ fees under 42 U.S.C. § 1988. The cases were consolidated in the Supеrior Court. On November 2, 1989, a Superior Court judge held that the designation violated the free exercise clause of the First Amendment to the United States Constitution, and, consequently, granted summary judgment in favor of the Jesuits. We granted the commission’s application for direct appellate review, and on December 31, 1990, affirmed the judgment on the ground that the designation violated art. 2 of the Declaration of Rights of the Massachusetts Constitution. Society of Jesus of New England v. Boston Landmarks Comm’n, supra at 39. In their appellate
After the expiration of the time within which the commission could, as of right, file a petition for a writ of certiorari with the United States Supreme Court,
1. Timeliness. Although the Jesuits’ petition seeks fees under a Federal statute, 42 U.S.C. § 1988,
The commission argues that the filing of the fee petition after expiration of the period during which a petition for a writ of certiorari may be filed creates an equitable bar to the fee petition. To support its claim that the fee petition should be filed within the period for filing a petition for a writ of certiorari, the commission relies on Gary v. Spires, supra, and Gibbs v. Gotfredson Chrysler Plymouth,
Neither of these decisions, nor any of which we are aware, would bar a claim for attorneys’ fees in this situation. The decisions relied on by the commission involvе instances where no notice of the defendants’ claims for fees was given until after judgment. That element is lacking here. In this case, in all three complaints the Jesuits requested attorneys’ fees
2. Discretion to award fees. We recently confirmed that under § 1988 “a prevailing party should recover attorneys’ fees absent special circumstances rendеring such an award unjust.” Globe Newspaper Co. v. Commissioner of Revenue,
3. The amount of fees. This court has adopted the guidelines set out in Johnson v. Georgia Highway Express, Inc.,
The Jesuits have the burden of showing that the claimed rate and number of hours are reasonable. See Blum v. Stenson,
As the commission has urged, we have compared the Jesuits’ summary judgment brief and summary judgment reply memorandum with their appellate brief. On careful examination we find that the Jesuits’ appellate brief was largely a duplicated, rearranged, and somewhat expanded version of their summary judgment brief. Undoubtedly, the attorneys spent time rethinking the arguments and editing and reorganizing the summary judgment brief into an appellate brief. But the time spent is unreasonable in relation to the final product.
The appellate brief is seventy pages long. Of the seventy pages, fifty are either verbatim copies or verbatim copies with minor changes of the summary judgment brief. Of the twenty new pages of the appellate brief, four pages are devoted to their successful arguments under art. 2. Yet the time billing summary indicates that one attorney spent approximately one hundred fifty hours drafting and preparing the appellate brief and still anothеr spent three hundred hours researching, drafting, and preparing the same brief. In the framework of a § 1988 fee, we find unreasonable four hundred fifty hours spent producing twenty new pages.
The billed hours also reflect a duplication of effort among the attornеys and time spent that was unessential. See Johnson v. Georgia Highway Express, Inc., supra at 717. For example, the time records show that three attorneys respectively spent fifty-six hours, twenty-four and one quarter hours, and four hours for a total of eighty-four and one quarter hours preparing for the twenty-five minute oral argument before this court. The records also show time billed for the same three attorneys’ attendance at oral argument. We find this time duplicative and unnecessary. Although there may be some benefit to having three lawyers prepare for and attend oral argument, it is difficult to justify what might be regarded by some as overkill when assessing a § 1988 fee against an adversary. Ricci v. Key Bancshares of Me., Inc., 111 F.R.D. 369, 378-379 (D. Me. 1986). See, e.g., Grendel’s
Finally, the Jesuits have requested a $16,000 fee for time spent to recover their appellate fees under the authority of Stratos v. Department of Pub. Welfare,
We conclude that the petition was timely and that the Jesuits are entitled to attorneys’ fees and disbursements in the amount of $63,959.88.
So ordered.
Notes
Rule 13.1 of the Rules of the Supreme Court (1991). The record does not indicate whether the commission petitioned the Supreme Court for an extension of time in which to file a petition for writ of certiorari. Rule 13.2 of the Rules of the Supreme Court (1991).
On May 30, 1991, the Jesuits filed a petition in the Superior Court seeking $126,243.91 in attorneys’ fees incurred at the trial level. We make no determination of the timeliness оf the petition before the Superior Court or of the appropriateness of the fee requested in that petition.
In pertinent part, 42 U.S.C. § 1988 (1988) provides:
“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 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.”
The United States Supreme Court determined that the Federal District Courts were free to adopt local rules establishing timeliness standards for the filing of claims for attorneys’ fees. White v. New Hampshire Dep't of Employment Sec.,
The United States Supreme Court has noted that a court’s discretion under § 1988 “will support a denial of fees in cases in which a postjudgment motion unfairly surprises or prejudices the affected party.” White v. New Hampshire Dep’t of Employment Sec., supra.
The defendants mailed notice of the filing of the motion to the plaintiffs on the last day of the appeal period thus denying them notice during the appeal period. Gibbs v. Gotfredson Chrysler Plymouth,
In fact, by letter dated November 27, 1989, the Jesuits informed the commission that they would file their application for attorneys’ fees under § 1988 at the conclusion of the commission’s appeal, if any, from the Superior Court’s judgment.
The Johnson case lists twelve factors: (1) the time and labor required of the attorney, (2) the novelty and difficulty of the question, (3) the skill required to perform legal services properly, (4) the preclusive effect of the case on the attorney’s ability to accept other work, (5) the attorney’s customary fee, (6) whether the fee is contingent or fixed, (7) time limitations
In regard to reasonable hours, we consider whether that time was reasonable in light of the difficulty of the case and the results achieved. Stratos v. Department of Pub. Welfare, supra at 322-323. In regard to market rates, market value refers to the market for comparаble services. In calculating reasonable rates, we “begin with the average rates in the attorney’s community for similar work by attorneys of the same years’ experience.” Id. at 323.
The Jesuits also have the burden to produce satisfactory evidence that the rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Blum v. Stenson,
We shall not determine which hours should be disallowed as duplicative, repetitive, and unessential. In our discretion, we conclude that the total hours spent researching, drafting, reviewing, proofrеading, and editing the appellate brief are unreasonable on their face in light of a seventy-page final product of which twenty pages are new. We reach the same conclusion for the hours spent preparing for and attending oral argument.