In Brief – A three-judge panel of U.S. Court of Appeals for the Second Circuit ruled that if a civil rights plaintiff is represented by an attorney from outside the federal court district where the case is located, he can obtain a fee award at the rate usually charged by his attorney only if he can “persuasively establish that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.” The Brennan Center represented 30 public interest organizations, legal services organizations, civil rights law firms and bar associations asking the full Court of Appeals to hear this case because this standard is insurmountable and will deprive victims of civil rights violations of access to attorneys. The Court has since denied to request to rehear the case.
Procedural History – Lochren was originally heard in the U.S. District Court for the Eastern District of New York in June of 2006. Plaintiffs appealed the attorneys’ fee decision of the lower court to the U.S. Court of Appeals for the Second Circuit, where a three-judge panel affirmed the lower court’s decision. The plaintiffs filed for en banc review on September 16, 2009, and the Brennan Center filed its amicus in support the next day. The Second Circuit denied the request for rehearing en banc on October 27, 2009.
Questions Presented – Bearing in mind that Congress’ goal in enacting civil rights fee-shifting statutes is to ensure that victims of civil rights violations can obtain counsel to represent them, what is the standard that federal courts should use to determine the hourly rate to award a plaintiff represented by an attorney from outside the federal court district where the case is located?
In Detail - In Lochren v. County of Suffolk, police officers sued Suffolk County, New York, asserting that by refusing to allow pregnant officers to be placed on limited duty assignments, the County was discriminating on the basis of gender, in violation of Title VII of the Civil Rights Act. After a trial, the plaintiffs were awarded damages. The parties subsequently entered into a consent decree in which the County changed its policy.
The plaintiffs then sought an attorneys’ fee award under Title VII’s fee-shifting provision. The plaintiffs asked to be compensated at their attorneys’ usual hourly rates. The district court judge awarded fees, but at a lower level than the attorneys usually charged. The court noted that the case was venued in the U.S. District Court for the Eastern District of New York, and that the attorneys, who were located in Manhattan, charged hourly rates significantly higher than attorneys in the Eastern District generally charged. The court held that Manhattan rates ”would simply have been too high for a thrifty, hypothetical client – at least in comparison to the rates charged by local attorneys."
The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. The appeals panel held that it was bound by a decision issued by another Second Circuit panel a month earlier. In the earlier case, Simmons v. New York City Transit Authority, the court had held that out of district rates can be awarded only if the plaintiff can “persuasively establish that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.” Applying that standard, the Lochren panel affirmed the lower court’s decision.The plaintiffs filed a petition for en banc review on September 16, 2009. The next day, the Brennan Center filed a petition for en banc review on behalf of 30 public interest organizations, legal services organizations, civil rights law firms and bar associations, all acting as amici curiae (i.e. friends of the court). The amici argue that in deciding what level fees to award, courts must bear in mind both that Congress’ goal in passing civil rights fee-shifting statutes is to ensure that attorneys will take meritorious civil rights cases, and that Congress has determined that fees must be awarded at market rates in order to achieve that goal. Contrary to Congress’ intent, the Lochren/Simmons standard is insurmountable, and will deprive some civil rights plaintiffs of access to expertise that paying clients would insist on. The brief urges the en banc court to instruct the district court on remand to reassess the appropriate hourly rate, taking into account: 1) the fact that Manhattan, where plaintiffs’ attorneys are located, is just a short walk or subway ride away from Brooklyn, where the main Eastern District courthouse is located, 2) the high frequency with which civil rights defendants in the Eastern District retain Manhattan counsel, and 3) Congress’ goal of increasing access to counsel and the greater number of attorneys per capita in Manhattan than in the Suffolk County.
On October 27, 2009, the 2nd Circuit denied the request to rehear the case en banc.
The New York Law Journal reported on a recent fee decision issued by Judge Cogan, of the 2nd Circuit, who has “joined the anti-Simmons chorus.” In Gutman v. Klein, Judge Cogan followed the Lochren/Simmons standard, awarding Eastern District-rate fees to a Manhattan firm, instead of awarding the higher, metropolitan area rate. However, in a lengthy footnote, and with arguments mirroring those of the Brennan Center’s in its Lochren brief, Judge Cogan berated the appellate standard:
Although I am of course bound by Simmons, there remain concerns with requiring litigants to justify their attorney selection by proving that a reasonable client would have selected a Southern District attorney because it would “likely produce a substantially better net result” . . . . A purely geographic lodestar also ignores the practical reality of practicing law in New York, which the docket of this Court reflects. Of lawyers that currently appear before this Court, 307 of the lawyers have offices in the Eastern District, while 727 of the lawyers have offices in the Southern District. This raises the question of exactly what is the bar that practices in this district . . . . This is just part of the reality that law is now practiced in an environment where law firms maintain multiple offices nationwide, attorneys maintain multiple federal bar admissions and have national practices, and modern telecommunications permit court appearances by video and telephone. It may be that the concept of a geographically-based as opposed to case complexity-based lodestar will someday have as much relevance to the selection of an attorney as dinosaurs have to birds.
Amici – Alterman & Boop, Anti-Discrimination Center, Asian American Legal Defense and Education Fund, Beldock Levine & Hoffman, Brennan Center for Justice, Brian L. Bromberg Law Office, Chittur & Associates, Conover Law Offices, Eisenberg & Schnell, Emery Celli Brinckerhoff & Abady, Fair Housing Justice Center, Housing Works, Impact Fund, Janice Goodman Law Offices, Kraus & Zuchlewski, Lambda Legal Defense and Education Fund, Lansner Kubitschek Schaffer & Zuccardy, LatinoJustice PRLDEF, League of Women Voters of New York State, Legal Action Center, Legal Aid Society of New York City, MFY Legal Services, National Consumer Law Center, National Employment Law Project, National Employment Lawyers Association (New York), National Women’s Law Center, Neighborhood Economic Development Advocacy Project, Neufeld Scheck & Brustin, New York Lawyers for the Public Interest, Vladeck, Waldman, Elias & Engelhard