source: Caselaw Access Project

author: REGAN, District Judge.

license: Public Domain

text:
    BALLWIN-WASHINGTON, INC., Plaintiff, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 9, and Rebeca M. Jordan, Defendants.
    No. 85-831C(B).
    United States District Court, E.D. Missouri, E.D.
    Aug. 1, 1985.

      Ross Friedman, St. Louis, Mo., and James A. Smith, Atlanta, Ga., for plaintiff.
    Janet Young and Cary Hammond, Clayton, Mo., for defendants.
   MEMORANDUM AND ORDER

REGAN, District Judge.

This matter is before the Court on motions of plaintiff Ballwin-Washington, Inc. (the “Company”) for a protective order and for judgment on the pleadings, and on defendants’ motion to compel discovery and defendants’ cross-motion for judgment on the pleadings.

Plaintiff brought this action for declaratory relief to set aside an Opinion and Award of an arbitrator, dated March 21, 1985, wherein the arbitrator reinstated defendant Jordan to her job with plaintiff Company. Jordan is an employee of plaintiff Company and is in the bargaining unit represented by Defendant International Association of Machinists and Aerospace Workers, District No. 9 (the “Union”). The Company claims that the award of the arbitrator is null, void, and of no effect because it exceeds the authority granted to the arbitrator by the Collective Bargaining Agreement (CBA) between the plaintiff company and defendant union.

The material facts of this lawsuit are not in dispute:

The Company and the Union were parties to a collective bargaining agreement (CBA). (Complaint, Paragraph 6; Answer, Paragraph 1).
2) Jordan is an employee of the Company and is in the bargaining unit represented by the Union. (Complaint, Paragraph 4; Answer, Paragraph 1).
3) On August 6, 1984, Jordan was advised that her employment was terminated by the Company. (Complaint, Paragraph 13; Counterclaim, Paragraph 6).
4) Pursuant to the CBA, Jordan filed a grievance over her termination which was processed to arbitration. (Complaint, Paragraph 14; Answer, Paragraph 1; Counterclaim, Paragraph 7).
5) An arbitration hearing was held by Arbitrator A. Lee Belcher on January 24, 1985. (Complaint, Paragraph 15; Answer, Paragraph 1; Counterclaim, Paragraph 7).
6) On March 21, 1985, the arbitrator issued an Opinion and Award which found that Jordan had violated the three day—no report provisions of the Collective Bargaining Agreement (Complaint, Paragraph 17; Answer, Paragraph 8; Counterclaim, Paragraph 8).
7) This Opinion and Award rescinded Jordan’s discharge and reduced it to a disciplinary suspension with reinstatement of employment and back pay. (Complaint, Paragraph 18, Exhibit A; Answer, Paragraph 8; Counterclaim, Paragraph 8).

The sole question before this Court is the legal question of whether this arbitration award drew its essence from the collective bargaining agreement.

Judicial review of an arbitration award is limited. The Court cannot redetermine the merits of an arbitration award but rather must determine whether the award draws its essence from the collective bargaining agreement. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); W.R. Grace & Co. v. Local Union 759 (Rubber Workers), 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983); Manhattan Coffee Company v. International Brotherhood of Teamsters, 743 F.2d 621 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2323, 85 L.Ed.2d 842 (1985). The authority of an arbitrator is limited.

An arbitrator is confined to interpretation and an application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

United Steelworkers of America v. Enterprise Wheel & Car Corp., supra 363 U.S. at 597, 80 S.Ct. at 1361. If the arbitrator’s award does not draw its essence from the contract, the reviewing court must vacate or modify the award. International Brotherhood of Electrical Workers Local 53 v. Sho-Me Power Corporation, 715 F.2d 1322, 1325 (8th Cir.1983), cert. denied — U.S. —, 104 S.Ct. 1277, 79 L.Ed.2d 682; St. Louis Theatrical Company v. St. Louis Theatrical Brotherhood Local 6, 715 F.2d 405, 407 (8th Cir.1983). The reviewing Court, however, will broadly construe the collective bargaining agreement’s grant of power to the arbitrator, with all doubts being resolved in favor of the arbitrator’s authority. Id. at 1325; Resilient Floor and Decorative Covering Workers, Local Union 1179 v. Welco Manufacturing Co., 542 F.2d 1029, 1032 (8th Cir.1976).

Our starting point, then, is the collective bargaining agreement between the Company and the Union. Article IX, section 1, of the agreement provides that:

Should any difference arise regarding the interpretation and application of this agreement, the following steps will be followed:
(Steps 1-3 outline the grievance procedure. If settlement fails, the step 4 allows an appeal of the grievance to an arbitrator).

Step 4 then states:

The decision of the arbitrator shall be binding and conclusive upon both parties to this agreement. The arbitrator shall have no power to add to or subtract from or modify any of the terms of this agreement or any agreements made supplemental hereto.

Step 4 apparently limits the authority of the arbitrator strictly to interpretation and application of the agreement. Clearly, the arbitrator may not “add to or subtract from or modify any of the terms” of the collective bargaining agreement. The agreement fails to define the parameters by which the arbitrator is bound when interpreting the collective bargaining agreement. Thus, there is an inherent ambiguity in this CBA: at what point does the arbitrator’s “interpretation” of the CBA become “addpng] to, subtracting] from, or modification] of any of the terms” of the agreement?

Our second consideration is the industrial common law,

[t]he labor arbitrator’s source of law is not confined to the express provisions of the contract as the industrial common law—the practices of the industry and the shop—is equally a part of the collective bargaining agreement, although not expressed in it.

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-2, 80 S.Ct. 1347, 1352-3, 4 L.Ed.2d 1409 (I960). The arbitration award did not refer to the industrial common law as an aid in interpreting the collective bargaining agreement. We must, therefore, look to the terms of the CBA to determine whether the arbitration award drew its essence therefrom.

The Supreme Court has never clearly delineated what factors should be considered in determining whether an arbitration award draws its essence from the collective bargaining agreement. The Third Circuit has shed some light on this phrase, holding that an arbitration award draws its essence from the collective bargaining agreement and must be upheld “if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context and any other indicia of the parties intention; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award.” Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3rd Cir. 1969), cited in Super Tire Engineering Co. v. Teamsters Local Union No. 676, 721 F.2d 121 (3rd Cir.1983).

The Eighth Circuit follows a similar standard. The Eighth Circuit looks to the four corners of the agreement between the parties to determine whether the arbitrator has exceeded his authority in making an award. Truck Drivers and Helpers Union Local 784 v. Ulry-Talbert Co., 330 F.2d 562, 563 (8th Cir.1964). The authority to make an arbitration award must be found or legitimately assumed from the terms of the arbitration agreement. Id. at 563. “Because the authority of arbitrators is a subject of collective bargaining, just as is any other contractual provision, the scope of the arbitrator’s authority is itself a question of contract interpretation that the parties have delegated to the arbitrator.” W.R. Grace & Co. v. Local Union 759, supra, 461 U.S. at 765, 103 S.Ct. at 2183.

To determine whether the arbitrator exceeded his authority in rendering a particular award, the Court must first determine what portions of the CBA the arbitrator was asked to interpret and apply. This requires the Court to examine the grievance actually submitted to the arbitrator. Then the Court must examine the arbitrator’s decision to determine which provisions of the CBA the arbitrator did in fact interpret and apply.

The Company framed the issue submitted to the arbitrator as follows: Whether the Grievant’s termination violated the collective bargaining agreement. The Union framed the issue submitted to the arbitrator in this manner: Was the termination of Rebeca Jordan for failure to call in on Saturday, August 4, 1984, for just cause or was it not?

In his Opinion and Award, the arbitrator found certain facts to have been clearly established:

1) Ms. Jordan was absent from work from Monday July 30, 1984 through Saturday August 4, 1984;

2) Jordan had statements from her doctor dated July 31, 1984 and August 3, 1984, which indicated that Jordan was pregnant and that she was suffering from a viral infection;

3) Jordan had telephoned her supervisor, Ray Bryan, on Monday, July 30, 1984 and on Wednesday, August 1, 1984, concerning her illness and absence from work;

4) Ms. Jordan learned during the Wednesday call (8/1/84) “that the plant was scheduled to operate on Saturday ”, (8/4/84).

Finding these facts, the arbitrator also determined that

“it was the negotiated intent of the parties that whenever employees are scheduled to work on Saturdays they are to treat that overtime day the same as a regular work day for purposes of the three day-no report rule which is spelled out in General Rule No. 6 and Article II and clarified in Article V of the Agreement. Accordingly, I find that technically Jordan was in violation of this rule although it is not believed that the grievant knowingly violated the rule, a factor that deserves serious consideration.” (emphasis supplied).

Nowhere in the Opinion and Award did the arbitrator specify what provisions of the CBA he was interpreting and applying. The arbitrator’s Opinion and Award makes no reference to Article I, Section 2 of the CBA which states:

Section 2. The Union hereby recognizes the right of the Company to manage its plants, to select and hire, to lay off, to part-time, to promote to a better position, to discharge, demote or discipline for cause to establish safety, work and quality rules and standards, to change materials, processes, equipment, products and technology and to maintain discipline and efficiency of employees and to determine the schedules of work as the proper responsibility and prerogative of management, to be held and exercised by the Company subject to the provisions of this Agreement. (Emphasis supplied).

In their Memorandum in Support of Defendants’ Cross-Motion for Judgment on the Pleadings, defendants suggest that since this management-function recognition provision is found in the CBA, and since other arbitrators have expressly relied on similar (but not identical) provisions in other cases to mitigate the harshness of mandatory discharge, provisions found in other CBA’s, that somehow we are bound to find that the award below draws its essence from the collective bargaining agreement despite the fact that the arbitrator has nowhere considered this section or any requirement of “cause” for dismissal in his Opinion and Award.

Given the parties’ vague framing of the grievance submitted to the arbitrator and given the vagueness of the CBA itself with respect to termination of employees, it is not surprising that the arbitrator’s Opinion and Award is not a lesson in clarity. The Opinion and Award made no specific finding on either the Company’s or the Union’s view of the grievance submitted. The arbitrator made no finding on the question of whether Jordan’s termination violated the CBA, nor did the arbitrator make any finding on the question of whether or not Jordan’s termination was for just cause.

The arbitrator failed to explicitly find that Jordan was scheduled to work on Saturday, August 4, 1984, although that finding is implicit in his holding that Jordan was technically in violation of the three day—no report rule. The arbitrator did find that the plant was scheduled to operate on Saturday August 4, 1984. The arbitrator failed to explicitly find that Jordan was notified by the Company that she was required to work Saturday overtime on Wednesday, August 1, 1984, although this finding is also implicit in the arbitrator’s holding. There was no express finding that the overtime notification requirement, as set forth in Article V, Section 6 of the CBA, was met by the Company. The CBA does not specify any particular method for notifying employees of the scheduling of overtime work. Article V., Section 6 of the CBA, allows employees to decline scheduled overtime periodically without prejudice. The arbitrator made no explicit finding that Jordan had or had not exercised her contractual right to decline scheduled overtime. The arbitrator did find, however, that “[f]rom that conversation] on Wednesday, August 1, 1984, Bryan had no reason to believe that Jordan would be at work on Saturday or any day earlier.”

The CBA does not specify any method for declining overtime work. Article V, Section 6 of the CBA, is clear in stating that “[e]mployees who are absent during the week may or may not be scheduled for overtime.” Article V, Section 7 provides that “[a]bsence from scheduled overtime work ... shall be treated as absence from work as in any other scheduled workday subject to the same disciplinary procedure.”

General Work Rule No. 61, CBA, Article II (Section 4) and CBA Article V clearly state that termination is the sole disciplinary action available for violation of the three day—no report rule. The CBA clearly states that “the arbitrator shall have no power to add to, subtract from, or modify any of the terms” of the CBA. “The findings of an arbitrator should be explicit enough to give the reviewing court a clear understanding of the basis of the arbitrator’s decision, and to enable it to determine the ground on which the arbitrator reached his decision.” Vulcan-Hart v. Stove, Furnace & Allied Appliance Workers, 516 F.Supp. 394, 396 (fn. 9) (D.C.Mo. 1981), aff’d, 671 F.2d 1182 (8th Cir.1982). Because we are unable to determine the ground on which the arbitrator reached his decision, we must vacate the Opinion and Award. Alternatively, we find that once the arbitrator found that Jordan “technically violated” the three day—no report rule, he “dispense[d] his own brand of industrial justice” by imposing a form of discipline not provided for in the CBA. The arbitrator was not authorized to determine whether the contractually-mandated discharge was an appropriate penalty for violation of the three day—no report rule. Thus, as a matter of law, the arbitrator’s award did not “draw its essence from the collective bargaining agreement.” Riceland Foods, Inc. v. United Broth, of Carpenters and Joiners of America, 737 F.2d 758, 760 (8th Cir.1984). The arbitrator is not free to “dispense his own brand of industrial justice.” Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S.Ct. at 1361. Here, the award of the arbitrator is so unfounded in reason and in fact as to manifest an infidelity to his obligation to frame an award which draws its essence from the collective bargaining agreement. Wagner Division v. Local 1101 583 F.Supp. 239, 248 (D.C.Mo.1984). Accordingly, the arbitration award must be vacated.

Since the material facts are not in dispute, and since plaintiff has shown it is entitled to judgment as a matter of law, judgment on the pleadings is appropriate. Iowa Beef Processors, Inc. v. Amalgamated Meat Cutters and Butcher Workmen of North America, 627 F.2d 853, 855 (8th Cir.1980).

Applying the legal standard discussed above, this Court finds that the arbitrator’s award did not draw its essence from the collective bargaining agreement. Accordingly, the arbitration award must be VACATED. Judgment will be entered for plaintiff and against defendants declaring the March 21, 1985 Opinion and Award of Arbitrator A. Lee Belcher, to be null, void, and of no effect. Judgment will likewise be entered for plaintiffs and against defendants on defendants’ counterclaim which sought enforcement of the arbitration award. Defendants’ motion to compel discovery is hereby OVERRULED AS MOOT.

Plaintiff’s motion for protective order is also hereby OVERRULED AS MOOT.

A judgment will be entered in accordance with this memorandum.

      . The Kewanee Machinery (Kewanee Machinery Division v. Local Union No. 21, 593 F.2d 314 (8th Cir.1979)) case differs from the instant case in several respects.
      1. The Kewanee company’s absenteeism policy was unilaterally established. Discharge for absence was not a disciplinary sanction set forth in the CBA. Here, the absenteeism policy was a bilaterally bargained contractual provision.
      2. The Seniority/Continuous service provision of the Kewanee CBA provided that: Seniority shall be broken and all employment relations terminated when an employee ... is discharged for proper cause. (Emphasis added).
      In the instant case, the seniority/continuous service provision (Article II, Section 4) provides that:
      (t)he continuous service of any employee shall terminate when:
      ... 4. An employee is discharged for proper cause.
      5. An employee has three (3) consecutive working days of unreported absence.
      We note that these subsections are separate and independent grounds for termination.

      . Company’s framing of the issue.

      . Union’s framing of the issue.


author: LATCHUM, Senior District Judge.

text:
    Peter T. CAMPANA, Plaintiff, v. The Honorable Malcolm MUIR, Defendant.
    Civ. A. No. 83-0310.
    United States District Court, M.D. Pennsylvania.
    Aug. 2, 1985.

      Robert C. Fogelnest, Philadelphia, Pa., and Ambrose R. Campana, Williamsport, Pa., for plaintiff.
    Gordon A.D. Zubrod and Sally Lied, Asst. U.S. Attys., Harrisburg, Pa., for defendant.
   OPINION

LATCHUM, Senior District Judge.

Plaintiff, Peter T. Campana (“P. Campana”), an attorney, filed a complaint on April 22, 1983, in this Court, seeking monetary damages against the defendant, the Honorable Malcolm Muir (“Judge Muir”), a United States District Court Judge for the Middle District of Pennsylvania. On July 11, 1983, this Court entered summary judgment in favor of Judge Muir based on the doctrine that a United States District Court Judge is immune from liability for damages on the claims asserted. See 585 F.Supp. 33 (M.D.Pa.1983). (Docket Item [“D.I.”] 24.) Presently before this Court is defendant’s motion for attorneys’ fees in favor of the United States and against P. Campana and his counsel, Ambrose R. Campana (“A. Campana”), pursuant to 28 U.S.C. § 1927 (1980) and Roadway Express Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). (D.I. 36.) Because of defendant’s motion, the Court held an evidentiary hearing on April 26, 1985, to receive evidence concerning attorneys’ fees in order to determine whether P. Campana and A. Campana acted in bad faith when they continued to prosecute the claims in light of the defense of judicial immunity. (D.I. 49.) The parties completed post-hearing briefing on July 19, 1985, and the mátter is now ripe for disposition.

I. APPLICABLE LEGAL PRINCIPLES

A. Roadway Express, Inc. and The Court’s Inherent Power To Assess Attorneys’ Fees

The general rule of law, known as the “American rule,” is that each litigant must pay his own attorneys’ fees. Alyeska Pipe Line Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The rationale for this rule is that “one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967)). However, over the years courts have carved out a number of narrowly defined exceptions. See Alyeska Pipe Line Service, 421 U.S. at 247-57, 95 S.Ct. at 1616-21. In Alyeska, the Supreme Court acknowledged the “inherent power” of courts to

assess attorneys’ fees for the “willful disobedience of a court order ... as part of the fine to be levied on the defendant^] Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-28 [43 S.Ct. 458, 465-66, 67 L.Ed. 719] (1923),” Fleischmann Distilling Corp. v. Maier Brewing Co., supra, [386 U.S.] at 718 [87 S.Ct. at 1407]; or when the losing party has “acted in bad faith, vexatiously, wantonly or for oppressive reasons____” F.D. Rich Co. [v. United States ex rel. Industrial Lumber Co.], 417 U.S. [116], at 129 [94 S.Ct. 2157, at 2165, 40 L.Ed.2d 703] [ (1974) ] (citing Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)).

421 U.S. at 258-59, 95 S.Ct. at 1622.

The bad-faith exception for the award of attorneys’ fees is not restricted to cases where the action is filed in bad faith. “ ‘[B]ad faith’ may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation.” Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36 L.Ed.2d 702 (1973). Moreover, the Supreme Court recently acknowledged the principle that it is within the inherent power of a federal court to assess attorneys’ fees against an attorney who has acted unreasonably, vexatiously or in bad faith in connection with a piece of litigation so as to constitute an abuse of the judicial process. Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980).

B. Section 1927

28 U.S.C. § 1927, which provides for the assessment of sanctions directly against counsel, reads:

Any attorney or other person admitted to conduct cases in any court of the United States of any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

Although the statute enables courts to impose sanctions for attorney misconduct, courts should exercise this power “only in instances of a serious and studied disregard for the orderly process of justice.” Overnite Transportation Co. v. Chicago Industrial Tire Co., 697 F.2d 789, 795 (7th Cir.1983) (quoting Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968), cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969).

Pursuant to section 1927, three substantial requirements must be met before liability may be imposed: (1) a multiplication of proceedings by an attorney; (2) by conduct that can be characterized as unreasonable and vexatious; and (3) a resulting increase in the cost of the proceedings. Baker Industries, Inc. v. Cerberus, Ltd., 764 F.2d 204, 214 (3d Cir.1985) (dissent, Higginbotham, J.). Because the lynchpin of section 1927 liability is “improper conduct,” for purposes of analysis, the requirement of unreasonable and vexatious conduct will be considered first.

1. The Unreasonable and Vexatious Requirement

In order to assess fees against an attorney where the effect of the attorney’s conduct is such that it “unreasonably and vexatiously increases the costs,” the Court of Appeals for the Third Circuit follows the majority rule which holds that before attorneys’ fees and costs may be taxed under section 1927, the district court must make a finding of “willful bad faith on the part of the offending attorney.” Baker Industries, Inc. v. Cerberus, Ltd., 764 F.2d 204, 209, 215 fn. 3 (3d Cir.1985).

In Baker the plaintiff and defendant entered into a stipulation pursuant to a full and complete agreement whereby the district court would appoint a special master to make findings of fact and conclusions of law concerning the issues pending before the district court relating to a contract for the sale of smoke detectors. The stipulation barred review by any court of the referee’s findings of fact and conclusions of law. Despite the bar of the stipulation, counsel for defendant filed objections to the legal conclusions of the special master. In disputing the non-reviewability of the master’s findings and conclusions, defendant’s counsel relied on precedents which were cited for the proposition that parties cannot effectively stipulate to shield from review the legal conclusions of a Fed.R. Civ.P. 53 master. The district court awarded attorneys’ fees pursuant to 28 U.S.C. § 1927. The Court of Appeals for the Third Circuit affirmed, stating that the conduct of defendant’s attorneys constituted “bad faith” when they blatantly violated the stipulation.

The Second Circuit also has stated that an action is brought in bad faith when there is clear evidence that the claim is entirely without color and has been asserted wantonly for purposes of harassment or delay or for other improper purposes. Browning Debenture Holders’ Committee v. DASA Corp., 560 F.2d 1078, 1088 (2d Cir.1977). The bad faith criteria does not require that the legal and factual bases for the action prove totally frivolous. Where a litigant is motivated by vindictiveness, obduracy or mala fides, the assertion of a colorable claim will not bar the assessment of attorneys’ fees. In re National Student Marketing Litigation, 78 F.R.D. 726, 728 (D.D.C.1978), aff’d, 663 F.2d 178 (D.C. Cir.1980).

In Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), the Supreme Court held that a federal court has the inherent power to assess attorney’s fees against an attorney who litigates in bad faith. The Court stated that a finding of “bad faith” concerning either the filing or the prosecution of the litigation would have to precede any sanction against an attorney. 447 U.S. at 767, 100 S.Ct. at 2464. In McCandless v. The Great Atlantic and Pacific Tea Co., Inc., 529 F.Supp. 476 (N.D.Ill.1982), aff’d, 697 F.2d 198 (7th Cir.1983), the court of appeals upheld the district court’s finding that an attorney acted in bad faith when he filed a frivolous lawsuit, misquoted precedent, and failed to respond to defendant’s motion for fees and costs. The court noted that: “The lawsuit could have been avoided had [plaintiff’s] counsel done the minimum amount of research required by a responsible member of the bar. Basic research would have revealed that exhaustion of adequate internal union remedies ... is a prerequisite to suit____” Id. at 478.

A careful review of the evidentiary record (D.I. 49) is necessary to determine whether A. Campana and P. Campana acted in bad faith.

(1) On February 23, 1983, P. Campana commenced an action against Judge Muir by issuing a writ of summons against the defendant in the Court of Common Pleas of Lycoming County. (Civil Action No. 83-00363.) This lawsuit was based upon alleged libelous statements contained in Judge Muir’s opinion dated February 18, 1983. Before any complaint was filed in the Court of Common Pleas, on March 8, 1983, the action was removed to this Court on defendant’s request pursuant to 28 U.S.C. § 1443. (D.I. 1.)

(2) Shortly after the commencement of the state court action against Judge Muir (in late February or early March of 1983), Assistant United States Attorney Gordon A.D. Zubrod (“Zubrod”) contacted plaintiff’s attorney, A. Campana, and informed him that Zubrod would be representing Judge Muir and that Judge Muir intended to raise the defense of judicial immunity. (D.I. 49 at 25.)

(3) On March 7, 1983, Judge Muir was served with a notice of deposition in the case of Peter T. Campana v. Malcolm Muir, Civil Action No. 83-00363 (Court of Common Pleas of Lycoming County). In the notice of deposition the plaintiff stated:

The nature of the cause of action in this case is based upon alleged libelous statements contained in an Opinion written by the Defendant in his capacity as a Judge for the United States District Court for the Middle District of Pennsylvania. The Opinion was filed on February 18, 1983 in a case involving criminal contempt proceedings against the Plaintiff. It is the Plaintiffs contention that the various statements contained in that Opinion are false, were made by the Defendant with the knowledge that they were false, and have a tendency to defame the Plaintiffs character.
The matters to be inquired into at the deposition include the knowledge of the Defendant as to the various statements made concerning the Plaintiffs “manner of practicing law”. Additionally, the Plaintiff wishes to inquire into the manner in which the Defendant’s opinion came into the hands of agents of the Williamsport Sun Gazette, i.e. whether or not the Defendant took steps to see to it that his opinion received the attention of the press and whether the Williamsport Sun Gazette may also be liable to the Plaintiff.

(4) On March 11, 1983, P. Campana filed a praecipe for issuance of a writ of summons and obtained an ex parte order in the Court of Common Pleas for Lycoming County to conduct discovery of Judge Muir as a non-party witness in the case of Peter T. Campana v. Williamsport Sun Gazette and Joseph Musselman, Civil Action No. 83-00533. Pursuant to that order P. Campana served notice on Judge Muir to take his deposition on May 2, 1983 (the same date, time and place as stated in the March 7, 1983 notice of deposition). P. Campana requested, in his notice of deposition, that Judge Muir bring with him to the deposition “any handwritten notes, typewritten notes, handwritten memoranda, typewritten memoranda, or any writings relative to the opinion written by yourself____”

(5) On March 30 the United States filed a motion for a protective order staying discovery of Judge Muir. (D.I. 10.)

(6) On April 4, 1983, a hearing was held on the United States’ motion to quash P. Campana’s subpoena served on Judge Muir. In responding to the defendant’s motion to quash the subpoena and to obtain a protective order from the Court of Common Pleas, A. Campana stated in his brief:

As to the argument that the subject matter of the lawsuit was doomed to failure at the onset because of the so called absolute immunity, Malcolm Muir errs. Firstly, Mr. Campana did not anticipate Judge Muir would or will run to cover in this matter. Plaintiff anticipated that Malcolm Muir would stand his ground, waive his judicial immunity, and defend the defamation suit on the merits. Secondly, if Malcolm Muir does assert the defense of judicial immunity, whether that defense will be upheld is a matter to be decided in the district court. [Emphasis added]

(7) On April 22,1983, P. Campana filed a two-count complaint in this case (D.I. 15) alleging malicious prosecution and libel and seeking a judgment against Judge Muir for $10,000 on each count.

(8) On April 29, 1983, P. Campana withdrew his subpoena to Judge Muir after both parties were informed by the Chief Judge of the Court of Common Pleas Lycoming County that the Court was going to issue an order quashing the subpoena.

(9) The United States filed on May 11, 1983, a motion to dismiss or in the alternative for summary judgment. (D.I. 16.) In his brief in opposition to the motion, P. Campana stated:

The last part, IV of Defendant’s argument, is to say the least, ludicrous. The Defendant desires this case to be dismissed on the grounds of judicial immunity. Yet, he admonishes all who read it that it is not an admission that his statements weren’t true. The Defendant would have his cake and eat it too. He importunes the reader that his assertions in his eleven page Opinion are true. Why, then, does he not desire to put them to a jury. (D.I. 20.)

(10) On July 11, 1983, this Court granted summary judgment in favor of Judge Muir and against P. Campana. (D.I. 24.) On July 13, 1983, the plaintiff filed a Motion to Alter or Amend the Court’s Judgment, which motion was ultimately denied on August 3, 1983. (D.I. 25, 28.) P. Campana appealed the denial of the motion on August 19,1983, to the United States Court of Appeals for the Third Circuit. (D.I. 29.)

(11) On September 29, 1983, Zubrod, as attorney for appellee, wrote a letter to A. Campana, counsel for appellant, designating additional parts of the record to be included in the Appendix pursuant to Fed. R.App.P. 30. (D.I. 49 at 28-30.) On October 4, 1983, A. Campana wrote a letter to Zubrod refusing to include the Appellee’s designations in the Appendix. A. Campana stated that he did not find the designations made by Zubrod to be “necessary for the determination of the issues presented on appeal.” On October 5, 1983, Zubrod wrote a letter to A. Campana where Zubrod set forth the pertinent parts of Rule 30(b) requiring the appellant to include all of the appellee’s designations. Zubrod demanded that the appellee’s designations be included in the Appendix and warned Mr. A. Campana that failure to comply with the appellee’s designations would result in the appellee seeking “appropriate sanctions.” (Id. at 31-33.)

Appellant, P. Campana, filed the Appendix in the Third Circuit on November 7, 1983, and failed to include any of the appellee’s designations in that Appendix. (Id. at 33.) As a result, the United States was forced to file a petition for permission to file a Supplemental Appendix with the designations which were omitted by the appellant in the original Appendix. (Id. at 34.) Ultimately, the Court of Appeals ruled in favor of the appellee and denied appellant’s motion to alter or amend the judgment. See 738 F.2d 420 (3d Cir.1984).

(12) On July 31, 1984, Zubrod filed a motion to hold P. Campana and A. Campana liable for costs of the proceedings pursuant to 28 U.S.C. § 1927 and the inherent powers of the Court as stated in Roadway Express, Inc. (D.I. 36.) On September 7, 1984, the United States filed a Bill of Costs in support of its motion for attorneys’ fees and on April 26, 1985, this Court held an evidentiary hearing based on the United States’ motion.

a. Colorable Claim

It is accepted that the meritlessness of a claim may be evidence of bad faith, but the claim must lack “even a colorable basis in law to justify an award of fees.” Baker v. Cerberus, Ltd., 764 F.2d at 216 (quoting Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1006 (7th Cir.1984)). A colorable claim for purposes of the bad faith exception has some legal and factual support and a reasonable attorney could have concluded that the facts supporting the claim might be established. Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir.1980). The issue in the present case, therefore, becomes whether P. Campana maintained a “colorable claim” alleging libel and malicious prosecution against Judge Muir after the defense of judicial immunity was raised. The doctrine of judicial immunity, the origin of which can be traced to 1872 (Bradley v. Fisher, 13 Wall 335, 20 L.Ed. 646 (1872)), is clear and unequivocal. Judges are not liable in civil suits for their judicial acts even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. 13 Wall at 351. The doctrine of judicial immunity is absolute in that it covers whatever a judge speaks, writes or does in the performance of their judicial functions, “irrespective of the motives with which those acts are alleged to have been performed,” (Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 1338, 3 L.Ed.2d 1434 (1959)) as long as the statements are “pertinent, relevant and material to any issue” in the proceeding. Read v. Baker, 430 F.Supp. 472, 476 (D.Del.1977) (applying Pennsylvania law).

As this Court has already determined, the doctrine of judicial immunity bars Judge Muir from liability in this case. Once the Campanas were put on notice that Judge Muir intended to raise the defense of judicial immunity with respect to statements made in opinions authored by him, they knew or should have known that P. Campana’s claim had no factual or legal support. In certain cases, where the law is “so clear and well established” the moving party’s position is deemed untenable. Maneikis v. Jordan, 678 F.2d 720 (7th Cir.), cert. denied, 459 U.S. 990, 103 S.Ct. 346, 74 L.Ed.2d 386 (1982). Such is the case here. In addition, because the defense of judicial immunity rendered P. Campana’s claims entirely without color, a reasonable attorney, when put on notice of the defense of judicial immunity, would have advised his client to abandon.his claim. A. Campana gave no such advice. (D.I. 49 at 117.)

b. Plaintiffs Motive

But even assuming arguendo that P. Campana had a colorable claim, the Court must examine the record to determine whether P. Campana and his attorney were motivated by vindictiveness or obduracy in the way that they continued to pursue the claim after having been given notice that Judge Muir was raising the defense of judicial immunity. The record indicates that in late February or early March, 1983, A. Campana was informed by Zubrod in a telephone conversation that Judge Muir intended to raise the defense of judicial immunity. (D.I. 49 at 25, 110.) With full knowledge that Judge Muir intended to raise the defense, P. Campana filed a complaint in this case on April 22, 1983, alleging libel and malicious prosecution. The complaint, however, is totally devoid of any facts which would factually support a cause of action in which judicial immunity is raised as a defense, i.e. “clear absence of all jurisdiction” exception, Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978). Indeed, P. Campana has neither alleged nor proved any facts concerning the lack of jurisdiction.

In reviewing the entire record it is clear that both P. Campana and A. Campana were motivated by vindictiveness in the filing and prosecution of this case. First, the Campanas made two attempts to depose Judge Muir asking to review his handwritten or typewritten notes. Then they attempted to “taunt” Judge Muir into waiving his privilege of judicial immunity and “stand his ground.” Thirdly, they refused to cooperate with opposing counsel with respect to filing appendices with the United States Court of Appeals for the Third Circuit. Finally, when this Court granted Judge Muir’s motion for summary judgment, P. Campana appealed this Court’s decision to deny P. Campana’s Motion to Reconsider because A. Campana believed that the Court had included in its opinion a footnote which was “offending ... pure dictum, uncalled for [and] not necessary to the opinion.” (D.I. 49 at 104.)

However, with respect to the Campanas' motive, this Court need not guess as to what motivated P. Campana and A. Campana to file and prosecute this suit. Pursuant to the mandate of the Supreme Court in Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2464, this Court gave notice and held a hearing on the record. At that hearing on April 26, 1985 (D.I. 49), the Campanas were given an opportunity under oath to explain their reasons for their conduct. The purpose of this hearing was to determine whether or not the Campanas filed and prosecuted the claims in bad faith.

At the hearing, A. Campana testified that as a result of the opinion published by Judge Muir concerning P. Campana that A. Campana was infuriated, incensed and angry with Judge Muir. A. Campana stated that he was “mad as hell” because “the statements were untrue” and “he [Judge Muir] locked the door to review of his opinion by dismissing the criminal contempt.” (D.I. 49 at 92-93.) When both A. Campana and P. Campana were asked about the issue of judicial immunity, their response was that they felt that the defense would not be raised. (Id. at 95, 126.) When A. Campana was asked by the Court why he pursued the suit once he was advised in a motion for a protective order that Judge Muir was going to raise the defense of judicial immunity, the following colloquy took place:

BY MR. A. CAMPANA:
If what you are saying, Judge, is that you know better than to sue a judge, a federal judge because he automatically will raise the judicial immunity defense, you are saying more than I can accept, your Honor. I cannot accept that.
THE COURT: All right. You would file one again tomorrow.
MR. CAMPANA: Absolutely.
THE COURT: In the same situation.
MR. CAMPANA: Absolutely, your Honor.
BY MR. FOGELNEST:
Q In light of the fact that this one was dismissed because he raised judicial immunity, and you now know that Judge Muir would proceed in the same fashion, would you file one tomorrow?
A Absolutely.

(D.I. 49 at 101.) A. Campana further qualified that statement, however, by saying: “[I]f I knew he was going to raise judicial immunity before I filed this suit. No, I wouldn’t do it [sue Judge Muir.]” (Id. at 103.) Finally, when A. Campana was asked whether he gave any thought to abandoning the litigation he stated that at no time during the course of this litigation did he think he should discontinue the suit. (Id. at 117.)

With respect to P. Campana, the record indicates that he was motivated by the same attitude and for the same reasons as A. Campana. (D.I. 49 at 124.) P. Campana testified that the reason he filed the lawsuit was because “I felt humiliated ... [and] I had no recourse ... but to sue the man who made the statements.” (Id. at 129.) When asked by the Court whether P. Campana would do the same thing today, P. Campana stated: “Given the circumstances as they existed then, yes.” (Id.)

2. The Multiplication of Proceedings Requirement

The first prong of section 1927 requires the court to assess the impact of an attorney’s improper conduct on the court processes. In Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163 (7th Cir.1968), cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969), the defendant’s attorney deliberately changed an answer in a deposition that he was reading to the jury, examined a witness on an exhibit that had not been offered into evidence and repeatedly made meritless objections. The district court, in response to these actions and a history of well-documented misconduct, levied costs on the attorney pursuant to 28 U.S.C. § 1927. See also Bardin v. Mondon, 298 F.2d 235 (2d Cir.1961) (plaintiff’s counsel held liable under section 1927 when after counsel stated that he was ready to go to trial counsel requested a continuance on the morning of the trial on the grounds that the attorney designated to try the case was unable to proceed due to illness).

In the present case, this Court has been forced to continued to deal with this case because of the persistence and adamant conduct of the Campanas after they were given notice that Judge Muir had raised the defense of judicial immunity thereby rendering P. Campana’s allegations without a legal basis. In addition, the unyielding and inflexible position taken by A. Campana when he refused to include the appellee’s designation of additional parts of the record in the Appendix to the brief filed before the Court of Appeals for the Third Circuit also extended the proceedings in this case. A. Campana’s stubbornness forced the appellee (Judge Muir) to file a petition with the Court of Appeals for permission to file a Supplemental Appendix to include the appellee’s designations that A. Campana refused to include.

3. Increased Costs Requirement

The third element that must be present in order to find liability under 28 U.S.C. § 1927 is an increase in the costs of the proceedings over those which should properly have been incurred. Based upon the record in this case the Court finds that once Judge Muir affirmatively defended his actions based upon the doctrine of judicial immunity, the Campanas knew or should have known that, without factual proof that would support a claim based upon the lack of jurisdiction exception, the action was both factually frivolous and without a legal basis. As a result, all the costs and legal fees incurred by the United States after actual notice of the defense of judicial immunity was given will be assessed against P. Campana, and his counsel, A. Campana.

II. ASSESSMENT OF COUNSEL FEES AND COSTS

Because the Court has determined that legal fees and costs should be assessed, the Court must now determine the amount of the award. The assessment of fees against a non-prevailing party and counsel must be fair and reasonable based upon the particular circumstances of the case. Tedeschi v. Smith Barney, Harris Upham & Co., Inc., 579 F.Supp. 657, 664 (S.D.N.Y.1984), aff’d, 757 F.2d 465 (2d Cir. 1985). The standard to be used to determine the proper award of fees is the “lodestar” method of fee calculation. See Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 108 (3d Cir.1976). A lodestar fee is determined by multiplying a reasonable hourly rate by the number of hours reasonably expended on the suit. (Id.)

The United States has filed a Bill of Costs in support of its motion for attorneys’ fees. (Appendix A attached.) The United States argues that it should be compensated $7,510 based on a reasonable rate of compensation for an attorney with more than ten years of litigation experience ($100 per hour) and the total number of hours expended on this case (75.1 hours). The United States made no request for an adjustment of the lodestar fee of $7,510.

A. Number Of Hours Reasonably Expended In This Litigation

Neither P. Campana nor A. Campana seriously challenge any particular item on the United States’ Bill of Costs. Instead, the Campanas have made a blanket assertion that “the allegations upon which the Defendant would have this Court find that both he [plaintiff] and his counsel acted in ‘bad faith’ would be insufficient factors upon which to base such a finding.” (D.I. 38 at 10.) Although the Campanas have failed to set forth with any clarity reasons to adjust the award suggested by the United States in its Bill of Costs, this Court finds that some adjustment in the amount of the award is necessary. First, in an effort to give the Campanas the benefit of any doubt with respect to the issue of when they were given “notice” of the defense of judicial immunity, the 20 hours of time requested by the United States prior to the filing of its Motion to Dismiss (wherein the defense was actually raised) will be deleted. Secondly, the party seeking an award of fees should submit evidence supporting the hours worked and the rates claimed. Where the documentation of hours is inadequate, the court may reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In the present case, the United States has submitted a Bill of Costs based upon an estimate of the amount of time the Assistant United States Attorney spent on this case. This estimate is based upon a “general record” of the amount of time allocated to the case by the Assistant United States Attorney. (The record does indicate that the estimate of 75.1 hours is a conservative one, not taking into account any time spent on: written correspondence, research and writing of the brief with respect to the motion for attorneys’ fees and the Bill of Costs, telephone conversations between Zubrod and the Department of Justice lawyers concerning judicial immunity or any printing or reproduction costs. (D.I. 49 at 14-23.)) Because the United States failed to contemporaneously document the number of hours spent by the Assistant United States Attorney, this Court finds that the number of hours claimed should be further reduced by 25% to insure that the number of hours expended on this suit is reasonable. Therefore, 41.3 hours should be allowed. (55.1 hours X 75% = 41.3 hours.)

B. Reasonable Hourly Rate

At the evidentiary hearing, the United States presented as an expert witness, Smith B. Gephart, Esquire, an attorney who has been practicing law in the Middle District of Pennsylvania, Dauphin County, for 18 years. Mr. Gephart testified that an attorney with the experience of Mr. Zubrod (a lawyer for 11 years, an Assistant United States Attorney for five years with substantial litigation experience in the defense and prosecution of criminal cases and the defense of civil cases) (D.I. 49 at 10-14) would have a billing rate between $100 and $120 per hour. (Id. at 7.) Because the Campanas have failed to produce any evidence to rebut this claim, the Court finds that $100 per hour is a reasonable hourly rate consistent with charges being made by law firms in the Middle District of Pennsylvania, Dauphin County.

Therefore, for purposes of this motion, the computation of attorneys’ fees is determined as follows: 41.3 hours reasonably expended multiplied by a reasonable hourly rate of $100 equals $4,130 which will be the total fees awarded in this case.

C. Apportionment Of Fees And Expenses Between P. Campana And His Counsel

Pursuant to 28 U.S.C. § 1927 and the Court’s inherent power as stated in Alyes ka Pipe Line Services and Roadway Express, Inc., the Court has authority to hold a party or his counsel or both personally liable for attorneys’ fees. Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1289, 1292 (5th Cir.1983) (upholding award of attorneys’ fees under § 1927 against plaintiff and his attorney jointly and severally), cert. denied, — U.S. —, 104 S.Ct. 975, 79 L.Ed.2d 213 (1984), modified, 722 F.2d 209 (5th Cir.1984) (per curiam) (remanding for trial court to determine whether attorneys’ fees for entire proceeding or just a portion of it should be awarded), cert. denied, — U.S. —, 104 S.Ct. 2690, 81 L.Ed.2d 884 (1984); see also Tedeschi v. Barney, 757 F.2d 465 (2d Cir.1985) and Taylor v. Belger Cartage Service, Inc., 102 F.R.D. 172 (W.D.Mo.1984).

P. Campana engaged his father, A. Campana, to represent him. P. Campana, also an attorney, should equally share in the responsibility for his counsel’s actions. It is clear from the record that P. Campana as much as A. Campana acted in bad faith in pursuing this case once they had definitive notice by motion that Judge Muir would raise the defense of judicial immunity. There is evidence in the record that both Campanas were involved in the research and preparation in the filing of the case, although it is difficult to determine exactly what part P. Campana played in the prosecution of this case. Nevertheless, P. Campana did testify that “whatever Ambrose Campana did, I approve of it.” (D.I. 49 at 113, 128.) Therefore, the Court finds that the total attorney fee of $4,130.00 should be assessed against P. Campana and his attorney, A. Campana, jointly and severally.

This opinion shall constitute the findings of fact and conclusions of law as required by Rule 52(a), Fed.R.Civ.P.

A judgment will be entered in accordance with this opinion.

APPENDIX A

BILL OF COSTS

Motion For Protective Order and Brief filed 3/30/83 2 hours

Petition For Removal filed 3/30/83 1 hour

Motion To Designate A U.S. District Judge From Outside The Middle District of Pennsylvania filed 3/30/83 2 hours

Motion To Quash Subpoena and Brief filed 4/11/83 and 4/18/83 6 hours

Travel to and from Williamsport, Pennsylvania for hearing on Motion To Quash Subpoena 4/24 to 4/25 4 hours

Hearing on Motion to Quash Subpoena (4/25/83) 1 hour

Motion To Dismiss, Or, In The Alternative, For Summary Judgment and Brief filed 5/11/83 30 hours

Reply Brief filed 6/17/83 2.5 hours

Brief In Opposition To Plaintiff’s Motion To Amend Judgment 10 hours

Third Circuit Appellee’s Brief 8 hours

Motion For Leave To File Supplemental Appendix plus preparation of Supplemental Appendix 2 hours

Telephone Conversations with Judge Muir (12) 3.6 hours

Telephone Conversations with Attorney for Williamsport Sun Gazette and with Clerk of Court personnel regarding affidavits for Motion to Quash Subpoena 3 hours

TOTAL HOURS 75.1

      . Senior Judge of the United States Court for the District of Delaware sitting by designation pursuant to 28 U.S.C. § 292(b).

      . The power of the court to assess attorneys’ fees covers both litigants and their counsel. “If a court may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial process.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980) (emphasis added).

      . Courts in other jurisdictions have also addressed the issue of “bad faith” under section 1927. In Morris v. Adams-Millis Corp., 758 F.2d 1352 (10th Cir.1985), the Court affirmed a district court's finding of bad faith and the award of attorney’s fees and costs under section 1927 against counsel for plaintiff who failed to present any opposition to defendant’s motion for summary judgment or motion to tax attorney’s fees when counsel had been directed to so respond. In Tedeschi v. Barney, 757 F.2d 465 (2d Cir.1985), the Court affirmed the district court’s finding of bad faith and the award of attorney’s fees under section 1927 against plaintiff and his attorney because the plaintiff brought an action against his brokerage firm and its attorney for malicious prosecution, abuse of process, defamation, fraud on the court and emotional distress and there was no factual basis to support the allegations. See also United States v. Blodgett, 709 F.2d 608 (9th Cir.1983); United States v. Ross, 535 F.2d 346 (6th Cir. 1976); and Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163 (7th Cir.1968), cert. de

        nied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969).

      . P. Campana filed a Motion to Reconsider (D.I. 25) whether or not footnote number 4 of the Summary Judgment Opinion, 585 F.Supp. supra at 35, should be excised. That footnote reads, in toto:

      Because the Court is assuming that the allegations of the complaint are true, it should not be understood that this would be this Court’s independent determination if it were necessary to make such a decision. Indeed, based on the underlying criminal contempt record, this Court would have to hold that the statements that plaintiff complained of were neither untrue nor maliciously motivated and that the criticism of plaintiff was entirely justified.
      The court of appeals ultimately denied P. Campana’s motion to alter or amend the district court opinion. See 738 F.2d 420 (1984).

      . The record indicates that P. Campana is an attorney who has been practicing law in the Middle District of Pennsylvania since September 8, 1972. (D.I. 49 at 124.)

      . In his brief in opposition to the award of attorney’s fees pursuant to 28 U.S.C. § 1927, P. Campana argues that in Roadway Express, Inc., 447 U.S. 756, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), the United States Supreme Court held that this statutory provision cannot be read to support the sanction of taxing attorney's fees against counsel because the term "costs" does not include attorney's fees. Therefore, P. Campana claims, 28 U.S.C. § 1927 does not establish a basis for the levying of attorney’s fees upon the opposing party and his counsel. (D.I. 38 at 7.)
      However, it is important to note that while it is true that on June 23, 1980, the Supreme Court in Roadway Express, Inc., held that under section 1927 “costs" did not include attorneys’ fees, on September 12, 1980, Congress amended § 1927. See The Antitrust Procedural Improvements Act of 1980, Pub.L.No. 96-349 § 3, 94 STAT 1154, 1156 (Sept. 12, 1980). Congress amended § 1927 to expressly provide that any attorney who so multiplies proceedings "unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927 (emphasis added). The legislative history makes clear that the September 12, 1980 amendment was intended to “expand[ ] the category of expenses the judge might require an attorney to satisfy personally to include ‘... attorneys’ fees.’ ” Joint Explanatory Statement of the Committee of Conference 96th Cong. 2d Sess. 8, reprinted in 1980 U.S.Code Cong. & Ad.News 2716, 2781, 2782.

      . The fact that the party seeking counsel fees is the United States does not bar an award. Odbert v. United States, 576 F.Supp. 825, 828 (E.D. Cal. 1983). Pursuant to Alyeska Pipe Line Services, 421 U.S. 240, 258, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975), a court may assess attorneys’ fees when the losing party has acted in bad faith and "there is no reason why government officials should be harassed by bad faith litigation at no risk to the plaintiff.” Odbert v. United States, 576 F.Supp. at 828, citing Moon v. Smith, 523 F.Supp. 1332 (E.D.Va.1981).


author: EDWARD C. REED, Jr., District Judge.

text:
    Clarence Edward MORGAN, Robert Gordon Johnstone, Billy Ray Shapley, Plaintiffs, v. NEVADA BOARD OF STATE PRISON COMMISSIONERS, an administrative body; Robert List; Richard Bryan and Swackhammer, members thereof; Nevada Department of Prisons, an administrative agency; Charles L. Wolff, Jr.; William Lattin; George Sumner; John Ignacio; George Deeds; Wayne Curry; Brenda Burns; William Jorgenson; and Stephen Fish, employees thereof, both individually and in their respective capacities, Defendants.
    No. CV-R-82-126-ECR.
    United States District Court, D. Nevada.
    Aug. 2, 1985.

      See also 593 F.Supp. 621.
    Stephen Mark Stephens, Carson City, Nev., for plaintiffs.
    Richard Bryan, Office of the Atty. Gen. by Brian Hutchins, Criminal Div., Carson City, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiffs’ counsel has filed a motion for award of attorney’s fees and paralegal fees as incident to costs pursuant to 42 U.S.C. § 1988. These fees relate to services rendered in connection with plaintiffs’ motion for an injunction to require the authorities at the Nevada State Prison (NSP) to maintain certain reasonable levels of legal supplies at the prison law library for use of inmates in pursuing their court cases. Plaintiffs were successful in obtaining a permanent injunction, although unsuccessful with respect to some aspects of the litigation. 593 F.Supp. 621. There is no doubt (and defendants concede) that plaintiffs are the prevailing parties with respect to the motion for injunctive relief.

The issue now to be decided is the award of appropriate attorney’s fees for attorney Stephen Mark Stephens who represented plaintiffs in the proceedings where injunctive relief was sought and an appropriate fee for the paralegal, Bernard Ybarra, who assisted Mr. Stephens.

The parties have submitted briefs and documentary evidence in affidavit and other form. An evidentiary hearing has also been held before the court.

I. Attorney’s Fee

42 U.S.C. § 1988 provides in pertinent part that “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 court’s discretion is narrowly construed and the award of fees “should be the rule rather than the exception.” Ackerley Communications v. City of Salem, Or., 752 F.2d 1394, 1396 (9th Cir.1985), citing Teitelbaum v. Sorenson, 648 F.2d 1248, 1251 (9th Cir.1981). As the Ninth Circuit points out, the Congressional purpose behind § 1988 was to “eliminate financial barriers to the vindication of constitutional rights and to stimulate voluntary compliance with the law.” (emphasis omitted) Ackerley at 1397.

The parties have stipulated that the award of the attorney’s fees should be on a basis of $100 per hour. It is not necessary, therefore, for the Court further to consider the correct rate at which the attorney’s fee should be calculated. The stipulated rate appears to the Court to be reasonable and fair to the parties on both sides. See e.g. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984).

The sole remaining issue to be addressed with respect to the amount of the attorney’s fees is whether they should be adjusted downward because plaintiffs were not completely successful in respect to all aspects of the injunctive relief they sought. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1982). The Court rejected these allegations of plaintiffs:

(a) that plaintiff Robert Gordon John-stone was unlawfully disciplined by defendants for obtaining paper supplies for the law library, in retaliation for bringing the motion for injunction, or for some other unlawful reason; and
(b) that defendants had and would retaliate against plaintiffs for initiating and carrying forward this action.

Injunctive relief was denied with respect to the issues raised in both paragraphs (a) and (b).

Defendants also point out that as a part of the injunction proceedings plaintiffs unsuccessfully sought approval for Mr. Ybarra, the paralegal, to sign documents in behalf of the attorney, Mr. Stephens, to be submitted to the Court during Mr. Stephens’ absence from Nevada.

In addition, during the period of the injunction litigation, plaintiffs sought a court order to require defendants to permit Mr. Ybarra (who is on parole from the Nevada State Prison system) to contact directly and communicate with plaintiffs who were incarcerated prisoners. Such contacts and communications are forbidden by prison regulations. The Court refused to require defendants to accede to this request. It is difficult to detect if the attorney and paralegal fees sought here include work on this contention except as to one time slip which is mentioned below.

Records kept by plaintiffs’ attorney do not segregate specifically time spent on the unsuccessful areas of the litigation. It is therefore incumbent upon the Court to endeavor to determine what percentage of the attorney’s time was spent on this part of the work. Hensley v. Eckerhart, 461 U.S. at 436-37, 103 S.Ct. at 1941. Certainly these areas, where relief was unsuccessfully sought, did not take up the major part of the attorney’s time. But, by the same token, some reduction in the attorney’s fee is called for. Id. at 440, 103 S.Ct. at 1943 (where plaintiff achieves only limited success, the amount of fees awarded should be “reasonable in relation to the results obtained”); Inmates of Allegheny County Jail v. Pierce, 716 F.2d 177 (3rd Cir.1983).

The Court has again reviewed the injunction proceedings, including the court hearing, and the Court finds that 25% of the proceedings at issue here concerned contentions with respect to which plaintiffs were not successful. The attorney’s fee which might otherwise be ordered paid with respect to the injunction proceedings must therefore be reduced by that amount. See e.g. Vaughns v. Bd. of Educ. of Prince George’s County, 598 F.Supp. 1262, 1289 (D.Md.1984) (determination of appropriate percentage reduction is within the court’s discretion).

Defendants allege that time charged for conferences between the attorney and the paralegal may constitute double charging. However, the evidence here is that such conferences were necessary and were to a considerable extent how the work was accomplished. No reduction in the fee is warranted on account of the conferences.

No reduction was made by the Court on account of the minimal period of time Mr. Stephens testified at the evidentiary hearing.

Except as mentioned above, defendants do not challenge the time recorded by plaintiffs’ attorney and alleged herein as devoted to this case with respect to the subject issues.

The attorney’s fees, herewith found to be reasonable, shall therefore be calculated as follows:

Time reported as spent by plaintiffs’ attorney in regard to the injunction proceedings as set forth in the motion for attorney’s and paralegal fees:
34 hours 41 minutes at
$100/hour $3,468.47
Less 25% 867.12 $2,601.35
Time reported by plaintiffs’ attorney for preparation of motion for attorney’s and paralegal fees as set forth in the motion: 8 hours 31 minutes at $100 per hour 851.77
Time spent by plaintiffs’ attorney in presentation of motion for attorney’s and paralegal fees on May 13, 1985, in open court:
4 hours at $100 per hour 400.00
$3,853.12

See Blum v. Stenson, 104 S.Ct. at 1543-44 (reasonable fee is “calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.”); Hensley v. Eckerhart, supra.

II. The Paralegal Fees

It is appropriate for this Court to award as an incident to costs, paralegal fees pursuant to § 1988 for work that is “traditionally performed by attorneys.” Richardson v. Byrd, 709 F.2d 1016, 1023 (5th Cir.1983). See also Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 846 (7th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 780, 83 L.Ed.2d 775 (1985); Ramos v. Lamm, 713 F.2d 546, 588-89 (10th Cir.1983). Because paralegal Mr. Ybarra was on parole at the time of this litigation, operating out of his private office, this is not a case of a “jailhouse lawyer” whose services rightly are not compensable under § 1988. Cf. Peniman v. Cartwright, 550 F.Supp. 1302 (S.D.Iowa 1982) (prisoner with no formal legal training who assisted another prisoner in presenting a pro se civil rights claim was not entitled to attorney’s fees pursuant to § 1988); Davis v. Parratt, 608 F.2d 717 (8th Cir.1979) (prisoner pro se plaintiff, who was a trained paralegal, was not entitled to attorney’s fees under § 1988).

The first issue to be addressed by the Court with respect to the paralegal fees is the appropriate standard , to be applied in determining the reasonableness of these fees. Defendants suggest an analysis similar to that used in regard to attorney’s fees awards. The Court agrees. See Kerr v. Screen Extras Guild Inc., 526 F.2d 67, 70 (9th Cir.1975) (whether the amount awarded as attorney’s fees is reasonable is determined by balancing such factors as the difficulty and attractiveness of the case, the time required, the nature of the attorney-client relationship, the customary fee, whether the fee is fixed or contingent and other relevant factors). There are of course some additional considerations which ought to be taken into account with respect to paralegal fees. These will be considered below.

In this case the independent paralegal, Mr. Ybarra, contracted with Mr. Stephens, the attorney, to do the necessary paralegal work for the case at a rate of $45 per hour,' contingent upon plaintiffs prevailing and the award of such paralegal fees by the Court pursuant to 42 U.S.C. § 1988. Mr. Ybarra’s fees were to be limited to such paralegal fees as were awarded by the Court.

Defendants attack the fees requested by the paralegal in a variety of ways. First, they contend that the rate of $45 per hour is too high and that the hourly rate for the award of the fee should more appropriately fall in the range of $25-$35 per hour. In support of their position, defendants presented evidence from a number of individuals with respect to paralegal type work, such as legal research. Their evidence and testimony reflected the following rates:

(i) Richard Thornley, an attorney, does research work. For about a year he has been charging $40 per hour and now charges most new clients $45 per hour. These rates apply to any work he is requested to do. He has done civil rights type work.
(ii) Robert Peyton, an attorney, employs law student researchers generally at the rate of $15 per hour and sometimes at lesser rates. He bills clients for an amount equivalent to what he pays the researchers.
(iii) Marta Breult, an attorney not licensed in Nevada, has worked as an independent paralegal in Nevada since January 1, 1985. She generally charges $25 an hour, but sometimes less depending on what the attorney is being paid. She does not charge for travel and does not charge for conferences with the attorneys unless that is a major part of the work she is doing. She may adjust her hours charged to reflect time wasted while the work goes forward. Shorter periods of time are charged for in full. Ms. Breult does not maintain a separate office, but does use certain office furniture in her home for her work.
(iv) Vivian Lynch, an attorney not admitted in Nevada, has, with some exceptions been doing paralegal work in Nevada since 1968. She charges at a rate of $50 per hour, with no charge for conferences with attorneys because of the $50 an hour rate she requires to be paid. She reduces hours charged to account for wasted time sometime by lh to lk. She has done paralegal work for many attorneys in the area and has worked extensively in the civil rights field. She appears to have about all the work she can handle and probably more than that. Ms. Lynch reviewed the work done by Mr. Ybarra and it was her view that she could have completed it in a shorter period of time and that to a considerable extent it dealt with facts rather than legal precedent requiring research. Ms. Lynch is obviously a talented and experienced legal researcher.

Plaintiffs presented four witnesses at the evidentiary hearing.

(a) Merrilyn Marsh, a paralegal who has been employed by the law firm of Belding and Harris for approximately two years. She receives a regular monthly salary from the firm at a rate of $10 per hour, and her work is billed to clients at the rate of $45 per hour (bankruptcy cases are billed at $40 per hour which is the limit fixed by Judge Jones for such work in the bankruptcy court). All the time she spends in reference to a client’s work is billed, except that sometimes adjustments are made to what the attorneys who employ her deem fair.
(b) Patrick Mullen, an experienced attorney, has engaged the services of Mr. Ybarra at a rate of $45 per hour, but does not anticipate paying at that rate for travel or time spent photocopying. Mr. Mullen’s fee arrangement with Mr. Ybarra is not on a contingent basis, but he is not obligated to pay Mr. Ybarra until he is paid. Mr. Mullen testified he had thought that paralegals were worth $20-$25 per hour, which is what attorneys have charged him for such services, but that Mr. Ybarra is more efficient. Mr. Mullen testified that the going rate which law firms charge their clients for paralegal services is $35 per hour.
(c) Mr. Stephens testified that Mr. Ybarra is “worth $35-$45 an hour,” but that he has hired Mr. Ybarra on other occasions for a lesser amount, depending on what the traffic will bear.
(d) Mr. Ybarra testified as to his experience as a paralegal in various assignments and with respect to legal research. Mr. Ybarra has had lengthy experience as a paralegal in the civil rights field. Because of his experience in civil rights, such work is easier for him than other types of paralegal work. He is employed by a number of attorneys as a paralegal. The rates he charges them vary from $15-$45 an hour depending on the type of case involved and the ability to pay. Mr. Ybarra operates from an office he rents and devotes solely to his paralegal business. His billings include charges for the work of his associates in the office. Without Mr. Ybarra’s offer to assist Mr. Stephens it is unlikely he would have undertaken the case and plaintiffs would likely have been without counsel in such event.

In endeavoring to apply the Kerr factors to the claim for paralegal fees the most important standard would seem to be: what is the customary fee paralegals charge in this area. Mr Mullen’s testimony provides the best evidence of the customary or market fee. He pegs that fee at $35 per hour as the going rate, but he indicates he would anticipate a lesser rate for travel, Xeroxing and the like. Defendants in their papers opposing the award of paralegal fees at the requested rate of $45 per hour conclude that a range of $25-$35 per hour is appropriate. At the hearing on this matter, plaintiffs’ counsel conceded he and Mr. Ybarra would be happy with a $35 per hour figure.

The witnesses presented by defendants with respect to the proper rate to be awarded to the paralegal here present a variety of different situations and billing rates. The rates they charge vary from $50 per hour (Vivian Lynch) and $45 per hour (Attorney Thornley) (plaintiffs’ witness, Merrilyn Marsh testified her law firm bills her work at $45 per hour) down to $25 per hour (Marta Breult) and $15 per hour (Attorney Peyton’s charge to his clients for the work of his law student paralegal). Both Ms. Lynch and Ms. Breult make adjustment in the billings for time wasted.

The charges of and for the work of these individual paralegals provides some insight into a customary or market fee in this area and would suggest that the customary fee is somewhere around $30-$35 an hour. This bears out Mr. Mullen’s testimony as to a $35 per hour market fee. In the view of the Court, the upper limit of the $30-$35 range is justified since the fee for Mr. Ybarra was collectible only on a contingency basis. With some exceptions, the other paralegal charges with regard to which testimony was offered were not contingent in nature. The fee ought to be higher if it is contingent. The preponderance of the evidence is that $35 per hour is a customary fee in this area for paralegals doing the type of work Mr. Ybarra did in this case, and the Court so finds.

However, the evidence indicates the $35 per hour figure ought to be reduced so far as time spent for such things as travel, Xeroxing, trips to the courthouse, and the like. Mr. Ybarra is entitled to be compensated for that work but at a lesser rate because the customary fee would be at a lesser rate. The Court fixes $15 per hour as generally a reasonable charge for such work in this case. See e.g. Thomas v. Bd. of Trus. of Regional Comm. Colleges, 599 F.Supp. 331, 335 (D.Conn.1984) (it is within the Court’s discretion to differentiate between categories of work involved and to award lower fees for clerical and out of court activities). It did not appear to the Court that all such charges attributable to travel, Xeroxing and the like should necessarily be required to be paid for at the reduced rate.

While some of the paralegals testified their hours or fees are adjusted in some manner or other, no basis to adjust such fees in respect to the work of Mr. Ybarra has been presented to the Court for consideration and no adjustment will be ordered.

The paralegal fees should be subject to adjustment on the same basis as the attorney’s fee with respect to the work done in areas where plaintiffs were unsuccessful. See Hensley v. Eckerhart, supra. This will be done by the Court in reviewing Mr. Ybarra’s time slips and deducting time identifiable with the unsuccessful areas of the litigation and also by reducing the overall fee charged by 25% to account for work done on issues which were not successfully litigated and which cannot be identified in the time slips. Mr. Ybarra’s charges will also be reduced with respect to work done on matters other than those relating to the injunction.

Mr. Ybarra is also entitled to his out-of-pocket expenses incurred in pursuing the work in this case, as reflected in his time slips. 28 U.S.C. § 1920.

The Court has considered the remaining Kerr factors which should be applied to the paralegal’s work, and they bear out the findings set forth above as proper.

(a) The fee will be based on the time and labor required.
(b) The questions involved did not concern matters of particular novelty or difficulty.
(c) Reasonable skill (which was possessed by Mr. Ybarra) was required to perform the services properly.
(d) Mr. Ybarra was precluded from accepting other work during the period up to the hearing on the injunction.
(e) Time limitations were imposed by the Court-ordered hearings.
(f) Mr. Ybarra does have considerable reputation and ability as a paralegal in the civil rights field and is entitled to the market fee mentioned above.
(g) The case would not be considered to be a desirable one.
(h) The nature and length of the professional relationship between Mr. Ybarra and Mr. Stephens justifies the fee.
(i) There was no reliable evidence presented of awards in similar cases.

The following calculation of Mr. Ybarra’s paralegal fees is found to be proper, correct, and reasonable:

Total hours of work found by the Court to have been performed in connection with motion for injunction (from Ex #3 attached to Motion for Attorney’s fees) (does not include .8 of an hour recorded with respect to the motion for the paralegal to be able to sign papers in behalf of Mr. Stephens) 64.4
Less: Travel-time-type hours to be deducted 9.7
Less: Hours spent on other matters .8
Less: Time on witness stand testifying 45 11.0
Net hours 53.4
53.4 hours @ $35 per hour $1,869.00
5.3 hours travel @ $15 per hour 79.50
$1,948.50
Less 25% for time spent on issues where plaintiffs did not prevail 487.13
$1,461.37
Cash outlays ' 36.15
Net due paralegal in connection with motion for injunction $1,497.52
Total hours of work found by the Court to have been performed in connection with motion for attorneys and paralegal fees (from Ex #4 attached to motion for attorney’s fees) 15.7
Total hours of work found by the Court to have been performed in connection with motion for attorney’s and paralegal fees (from Ex #1 in evidence at the hearing on motion for attorney’s fees) 24.5
Less: Travel-time-type hours to be deducted 3.3 21.2
Time spent by paralegal in assisting in presentation of motion for attorney’s fees and paralegal fees on May 13, 1985, in open court, less Va hour for time spent by paralegal as a witness 3.5 3.5
Total 40.4
40.4 hours ® $35 per hour $1,414.00
Travel 3.3 hours @ $15 per hour 49.50
Net due paralegal in connection with motion for attorney’s fees and paralegal fees $1,463.50
SUMMARY
Due to paralegal on motion for injunction $1,497.52
Due to paralegal on motion for attorney’s and paralegal fees 1,463.50
Cash outlays by paralegal (from Ex #1) 24.84
Total due paralegal $2,985.86

In calculating the hours for Mr. Ybarra, the Court has allowed some travel time and disallowed some of this time. Some of the travel time appeared necessary to accomplish the goals sought in the litigation (e.g., in some cases travel to obtain service of subpoenas on witnesses required at the last minute) and was part and parcel of the litigation and therefore allowed at the $35 rate. Other travel could have been avoided by use of mail or telephone. Waiting time was also, in some cases, discounted.

On some of the time slips, work on other projects was reflected and the Court allocated the time as between those to be dealt with here and the other related work reflected in the slips.

Although plaintiffs were not entirely successful in prosecuting the motion for attorney’s and paralegal fees and the final award was less than that claimed, no reduction in fees sought for prosecuting the motion for fees is warranted because plaintiffs prevailed on the issue.

The foregoing shall constitute findings of fact and conclusions of law.

IT IS, THEREFORE, HEREBY ORDERED that the Clerk of the Court shall enter judgment in favor of plaintiffs and against defendants, as an item of costs pursuant to 42 U.S.C. § 1988, attorney’s fees as follows:

(a) the sum of $3,853.12 to be paid to plaintiffs’ attorney Stephen Mark Stephens as a reasonable attorney’s fee;. and
(b) the sum of $2,985.86 to be paid to plaintiffs’ attorney Stephen Mark Stephens for the paralegal work and expenses of Bernard Ybarra.