LOCATION: U.S. District Court for the Western District of Oklahoma
DOCKET NO.: 81-1374
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 465 US 886 (1984)
ARGUED: Jan 11, 1984
DECIDED: Mar 21, 1984
Leon Silverman - on behalf of the Respondents
Melvyn R. Leventhal - on behalf of the Petitioner
Facts of the case
Media for Blum v. Stenson
Audio Transcription for Oral Argument - January 11, 1984 in Blum v. Stenson
Warren E. Burger:
We will hear arguments next in Blum against Stenson.
Mr. Leventhal, you may proceed whenever you are ready.
Melvyn R. Leventhal:
Mr. Chief Justice, and may it please the Court, in this case the state of New York challenges a fee award entered against it under a fee shifting statute.
An award of approximately $150 an hour, consisting of a $100 base rate and a 50 percent multiplier, was granted three young attorneys with an average experience of two years when comparable attorneys working for major Wall Street firms were being billed to commercial clients at the rate of $70 an hour.
The question presented is whether $150 an hour for attorneys without any billing experience and working for non-profit organizations is reasonable, and more specifically, what standards and procedures should control the inquiry, and what standards and procedures were not followed by the District Court in this case.
The critical theme in our argument derives from the fact that we are proceeding under a fee shifting statute.
That is the one aspect of the case that permeates our argument.
The state of New York did not enter the marketplace to hire an attorney.
There was no competition among lawyers for our business.
We didn't negotiate an hourly rate.
We never reviewed their time records before the bill was submitted.
We never monitored their work.
We didn't develop a relationship of trust with plaintiff's counsel.
Two years after the litigation began, plaintiffs moved for an award of attorneys' fees, and the District Court has ordered us to pay every nickel requested by the plaintiffs.
Because we are working under a fee shifting principle, the District Court has a duty to probe deeply into the fee application of plaintiff's counsel, and because we have a fee shifting statute, the standards and procedures that must be developed by this court must recognize that the state of New York is a captive payor.
If the state of New York had had a voice--
William H. Rehnquist:
Mr. Leventhal, that is true of any fee shifting statute, isn't it?
I mean, Section 1988 isn't the first statute that has ever been passed by a legislature saying that the losing party pays the winning party's attorney's fees.
Melvyn R. Leventhal:
The principle applies in every fee shifting statute.
The difficult question presented is how should the hourly rate be calculated for attorneys without relevant billing experience, who don't have a normal billing rate, who work for profit and non-profit law firms.
There have been developed three approaches to this question in our judgment.
The first is a fictional market approach adopted by the District Court in this case.
It is almost a fanciful approach.
Under it, the court asks for information on awards granted in other civil rights cases or in other cases that the court finds comparable.
When it does so, it doesn't ask whether there was any information, any evidence submitted in those case which establish what the market rate is, and in fact the court below, by way of illustration, relied upon Becker versus Blum, a case in which the District Court awarded $75 an hour for lawyers with less than two years' experience and $90 an hour for lawyers with more than two years' experience, without any evidence of what the market rate is.
And in fact, in that case, the only comment of the District Court was that the Legal Services Corporation should have asked for more, but there was no evidence in the case of what is in fact a market rate.
We therefore view it as entirely fictional.
The second approach--
Sandra Day O'Connor:
Mr. Leventhal, did you raise your challenge to the use of market rates in calculating these fees in the lower court?