author: DEVINE, Chief Judge.

text:
    Albert BURELLE; Bliss Woodruff v. CITY OF NASHUA; James W. Donchess, individually and officially as Mayor of the City of Nashua; Irving Gallant, individually and as Treasurer for the City of Nashua; Noel Trottier, individually and as Director of Department of Parks and Recreation of the City of Nashua.
    Civ. No. 82-705-D.
    United States District Court, D. New Hampshire.
    Dec. 18, 1984.

      I. Michael Winograd, Concord, N.H., for plaintiffs.
    Steven A. Bolton, Nashua, N.H., for defendants.

      . Originally named as a defendant, Maurice L. Arel was, at the time this litigation commenced, the Mayor of the defendant City. His replacement is James W. Donchess, the recent victor in a special mayoral election. Mr. Donchess is accordingly herewith substituted as a party defendant pursuant to the provisions of Rule 25(d), Fed.R.Civ.P.

   MEMORANDUM OPINION

DEVINE, Chief Judge.

The United States was founded by persons who fled largely from religious persecution. Indeed, when the new states debated the proposed federal constitution, the proponents of that charter of freedom made clear that established religion was to be therein prohibited.

Frightened by what they perceive to be forces of darkness, some Americans in the modern age seek to exorcise their fears by insistence upon religious conformity. In so doing, they disregard the sensitivity of equally loyal citizens whose approach to the most private matter of religious belief differs from their own.

The instant litigation is one of numerous unnecessary controversies arising from the perceived use of publicly-owned property to espouse tenets of an individual religious belief. It concerns the propriety of the erection and maintenance of a privately-owned creche, or Nativity scene, on the grounds of the building which houses the municipal government offices of the City of Nashua, New Hampshire. A litigation of this class has recently been described by a contemporary political columnist, who is a sometime Presidential debate coach, as “unneighborly”, but it nevertheless involves significant constitutional questions.

The relief sought by these plaintiffs is injunctive in nature. In turn, .the Court must therefore consider whether plaintiffs will suffer irreparable injury if the injunction is denied, whether such injury outweighs any harm that injunctive relief would cause the defendants, whether plaintiffs have a likelihood of succeeding on the merits, and whether the public interest would not be harmed by a preliminary injunction. Wald v. Regan, 708 F.2d 794, 801 (1st Cir.1983), rev’d on other grounds, sub nom., Regan v. Wald, — U.S. -, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984); San Francisco Real Estate Investors v. Real Estate, et al., 701 F.2d 1000, 1002 (1st Cir.1983). It is, of course, elemental that loss of First Amendment freedom for even minimal periods of time unquestionably constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (plurality opinion by Brennan, J.).

Briefly stated, the relevant facts are as follows. For a number of years prior to December 1982, defendant City owned, erected, and displayed the créche in question on its City Hall plaza, a piece of ground between the sidewalk proper and the front of the City Hall building. Upon the original filing of this litigation in that month and year, the City conveyed all of its right, title, and interest in and to the créche and its components to Heart of Nashua Foundation, Inc. (“Foundation”), a nonprofit corporation composed of a group of downtown merchants. Deft.Ex.A. At the same time, defendant City granted to Foundation a license to erect and maintain holiday scenes and decorations between November 1 and the following January 31 over various streets and sidewalks in Nashua “together with the plaza in front of the Main Street entrance to City Hall”. Deft. Ex.B. Since December 1982, therefore, Foundation has stored and erected the créche at its own expense. However, the créche has always been placed in a prominent position on the City Hall plaza, unadorned with any secular symbols of the holiday season.

Plaintiff Woodruff, an architect by profession, and a resident, taxpayer of the City of Nashua, professes a religious belief other than that which accepts Christ to be the Son of God. On the morning of the day of hearing, he viewed the créche, which, as it had been observed by him for many years, stood in the same prominent position alone on the plaza of City Hall between the sidewalk and front entrance of the municipal building. No secular symbols accompanied the free-standing créche, nor were there any disclaimer signs announcing to those of the viewing public that the Nativity scene was in fact the property of and erected by Foundation.

Woodruff testified that he felt that such display of a religious symbol caused him to sustain irreparable harm, as it conveyed the message that the Trinitarian form of Christianity was the religion favored by his municipal government and that those who did not follow such beliefs were, of necessity, second-class citizens.

It appears that over the years defendant City has granted to various religious and philanthropic groups free licenses to use the plaza area for fund raising and other such activities. None of such events, however, have apparently lasted more than twenty-four hours or been of permanent placement around-the-clock over a period of time.

Reverend Alden Flanders, an Episcopal priest and teacher of religion at St. Paul’s School in Concord, New Hampshire, testified that the créche is definitely a religious symbol, denoting to those who see it memory of the birth of the Christ Child. While the birth of Christ is a historical fact, the witness testified that the Wise Men, shepherds, and other attendants at the Nativity scene have not so been verified.

Before moving to discussion of the particulars of the legal rules here applicable; the Court first turns to the contention of defendants that the matter cannot proceed without the necessary presence of Foundation. Presumably grounded on Rule 19(a), Fed.R.Civ.P., the thrust of this argument is that without Foundation before it, the Court will be unable to fashion an order which will solve the problems here raised. Guided, as it must be, by the pragmatic considerations which turn on the particular facts of this case, Lopez v. Arraras, 606 F.2d 347, 353 (1st Cir.1979) (and authorities therein cited), the Court determines that in “equity and good conscience”, Rule 19(b), Fed.R.Civ.P., this action can proceed without the presence of Foundation.

The First Amendment to the Constitution of the United States provides in pertinent part that “Congress shall make no law respecting an establishment of religion____” Applicable to the states, Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), the Establishment Clause, when litigated, has presented “especially difficult questions of interpretation and application”. Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 3065, 77 L.Ed.2d 721 (1983).

On its facts, the instant case is strikingly similar to McCreary v. Stone, 575 F.Supp. 1112 (S.D.N.Y.1983), rev’d, 739 F.2d 716 (2d Cir.1984), cert. granted sub nom., Village of Scarsdale Board of Trustees v. McCreary, — U.S. -, 105 S.Ct. 291, 83 L.Ed.2d 227 (1984). In that case, the Village governing body, its board of trustees, denied certain private groups access to a public park for the purpose of displaying a privately-owned créche. Such display had in fact been permitted in prior years, albeit amidst growing acrimony. Attempts to moderate the dispute by removal of the créche to private property were rejected by its sponsors, who claimed constitutional validity for their “tradition” of display of the créche in the public park. The Village trustees having denied access to the park for such purpose, the protagonists of such display brought suit.

In a thorough and scholarly opinion, the trial court found that (1) the placing of a religious symbol — the créche — on public land converted such public land into a bearer of a religious message; and (2) in such instance, members of the public would assume that the religious message thus depicted was supported by the municipal government. McCreary v. Stone, supra, 575 F.Supp. at 1130-31. In so ruling, the court distinguished other past usages of the park, such as church picnics, use of public buildings for religious ceremonies, use of public ways to raise funds for religious philanthropies, or the saying of prayers or giving of benediction at holiday gatherings on public property. This distinction was based on the fact that, in contrast to such public gathering usages, both the supporters of and objectors to display of the créche on public property assumed their respective positions precisely because such usage gave an aura of Village support to the créche. Id. at 1131. The court therefore held that the Village acted properly in accordance with the requirements of the Establishment Clause in denying access to the public park for display of the créche.

Subsequent to the decision of the trial court in McCreary, supra, the Supreme Court handed down its decision in Lynch v. Donnelly, — U.S. -, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In that case, the Court held that a publicly-owned créche which was included in an annual holiday display erected by the City of Pawtucket, Rhode Island, in a private park was not violative of the Establishment Clause. As the créche was but one part of a display which included such secular symbols of the holiday season as “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads ‘SEASONS GREETINGS’ ”, as well as the créche, 104 S.Ct. at 1358, the creation of such display fell within the parameters of a legitimate secular purpose. Id. 104 S.Ct. at 1363.

If the presence of the créche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution.

Lynch v. Donnelly, supra, 104 S.Ct. 1365 (emphasis added).

However, when McCreary v. Stone reached the Second Circuit, a panel of that court read Lynch v. Donnelly, supra, as if it could be divorced from its facts. Seizing on language in Lynch that focus on the créche was based “in the context of the Christmas season”, Lynch v. Donnelly, supra, 104 S.Ct. at 1362, the Second Circuit rejected the factual distinction, transposing secular decorations dispersed throughout the village of Scarsdale, and equating the singing of Christmas carols in the park at issue as if they were continuously present with the créche in said park. McCreary v. Stone, 739 F.2d at 728, 729.

This Court has read and re-read Lynch v. Donnelly, supra. With all due respect to the illustrious scholars who comprised the decisional panel of the Second Circuit, this judge disagrees. In so doing, the Court does not stand alone, for in American Civil Liberties Union v. City of Birmingham, 588 F.Supp. 1337 (E.D.Mich.1984), the challenge posed was contained in a suit brought by a municipal taxpayer who objected to the placement and maintenance of a créche by the City on the lawn of the City Hall. In ruling that Lynch v. Donnelly, supra, should not be read as holding “that a nativity scene standing alone, or that any other single religious symbol or group of such symbols erected on public property with public funds, complies with the requirements of the separation of church and state required by our Constitution”, 588 F.Supp. at 1339, the Court also reviewed the ruling of the Second Circuit in McCreary v. Stone, supra. With regard to such decision, the Court stated, in pertinent part:

■This court cannot discover the clarity in the Lynch decision upon which the McCreary court expounds. The close decision in Lynch included a lengthy discussion which noted specifically the secular details of the display which it found to be constitutionally acceptable.

American Civil Liberties Union v. City of Birmingham, supra, 588 F.Supp. at 1340.

Defendant City here makes much of the fact that on utility poles and lampposts without its sidewalk, and on the second floor of its City Hall, there are many secular symbols, such as trees and lights, erected by Foundation. The nearest of these objects is on the outer side of the sidewalk, at least ten feet away from the créche standing alone within the plaza, and the City Hall decorations are some twenty-five to thirty feet to the rear of and above such créche. There are no signs visible to the passerby advising that the créche is in fact privately owned and that the doctrine which it depicts is neither supported nor disfavored by the municipal government. To reasonable persons so passing, I find and rule, the display of the créche indicates that the municipal government of Nashua believes that the Trinitarian theory of Christianity is a favored religious doctrine.

When the perceived governmental practice is challenged under the Establishment Clause, the applicable criteria are as follows:

First, the practice must have a secular legislative purpose;

Second, its principal or primary effect must be one that neither advances nor inhibits religion; and

Finally, it must not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). On the evidence of record here presented, I find and rule that there is nothing to support a finding of a secular purpose for the display of this Nativity scene, standing alone on the City Hall plaza. The decorations along the public ways and on the City Hall building do not serve to overshadow, balance, or neutralize the symbol of the Trinitarian doctrine of Christianity. See American Civil Liberties Union v. City of Birmingham, supra, 588 F.Supp. at 1339. Additionally, the primary effect of the display of this créche without change from its display in prior years conveys to the public observing its display the implicit government support of the religious doctrine represented by the sacred figures therein. The fact that public monies are not used for such display does not serve to dispel the aura that the municipal government of Nashua has excessively entangled itself with a religious doctrine which is not shared by all of its taxpaying citizens.

Despite the contentions of counsel for the defendant City, the Court finds and rules that by enjoining continuation of the license to maintain a religious display, standing alone, without accompaniment of such secular symbols or disclaimers that would announce to the public the City’s disinterest in the religious features of such display, sufficient relief can be afforded to the parties herein without addition of the licensee or any other parties. In short, the irreparable harm demonstrated to plaintiffs and others of similar feelings with respect to this religious display on municipal property and the probability of success on the merits outweigh any harm that could be expected to befall either the licensor, City of Nashua, or the licensee, Foundation, herein. A separate order of injunction issues herewith this date.

SO ORDERED.

ORDER OF INJUNCTION

The defendants, City of Nashua; James W. Donchess, individually and officially as Mayor of the City of Nashua; Irving Gallant, individually and as Treasurer for the City of Nashua; Noel Trottier, individually and as Director of the Department of Parks and Recreation of the City of Nashua, their agents, servants, employees, and all others acting in cooperation and concert with said defendants are herewith enjoined from this date forward from continuing in effect the terms of a license issued by defendant City of Nashua to Heart of Nashua Foundation, Inc., on December 15, 1982, insofar as said terms concern the use of the “plaza in front of the Main Street entrance to City Hall” or the erection and maintenance of a créche, or Nativity scene, standing alone without signs disclaiming the ownership or support of the municipal government of the City of Nashua for the religious doctrine embodied by the sacred figures of said créche or, alternatively, without secular symbols of the holiday season juxtaposed within the plaza grounds whereon said créche is currently situated. In the event the licensee desires to maintain said créche, any disclaimer signs shall be of size equal to the term “NOEL” printed on the front of the building which houses the municipal offices of the City of Nashua and thus readily visible to passersby.

Defendants shall notify the licensee, Heart of Nashua Foundation, Inc., and all of its employees engaged in the issuance of licenses for the use of City Hall plaza as aforesaid of the terms of this Order of Injunction and of the Opinion this date issued which sets forth the reasons therefor.

SO ORDERED.

      . In the course of the June 1788 debates in Virginia on the proposal to adopt the constitution, James Madison stated, in relevant part:
      The honorable member has introduced the subject of religion. Religion is not guarded; there is no bill of rights declaring that religion should be secure. Is a bill of rights a security for religion? Would the bill of rights, in this state, exempt the people from paying for the support of one particular sect, if such sect were exclusively established by law? If there were a majority of one sect, a bill of rights would be a poor protection for liberty. Happily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects which pervades America, and which is the best and only security of religious liberty in any society; for where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest. Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation. I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom. It is better that this security should be depended upon from the general legislature, than from one particular state. A particular state might concur in one religious project. But the United States abound in such a variety of sects, that it is a strong security against religious persecution; and it is sufficient to authorize a conclusion, that no one sect will ever be able to outnumber or depress the rest.
      Vol. Ill, Elliot’s Debates on the Federal Constitution, p. 330 (J.B. Lippincott Co. 1901).

      . See Will, George F., "First Amendment Fanatics in Season”, p. 108, Newsweek, Dec. 17, 1984.

      . Suit was brought originally solely in the name of Albert Burelle, but when it was discovered that although a Nashua resident he was not a taxpayer, plaintiff Woodruff joined the action as a plaintiff in early December 1982.

      . Plaintiffs belief is Unitarian, i.e., the form of Christianity that denies the doctrine of the Trinity, believing that God exists only in one person. See The New Columbia Encyclopedia, p. 2828 (1975).

      . In relevant part, Rule 19(a), Fed.R.Civ.P., provides:
      A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

      . Rule 19(b), Fed.R.Civ.P., provides in pertinent part:
      If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

      . The second floor of City Hall is apparently garlanded with lights and a large sign reading "NOEL”. Although that term currently connotes merely the Christmas season, its derivation is "birthday", and it therefore has distinct reference to the birth of Christ. See Webster’s Third New International Dictionary at 1533 (G. & C. Merriam Company 1976).

      . Indeed, in remanding to the trial court, the Second Circuit in McCreary v. Stone, supra, directed that proceedings should be conducted and an order entered "concerning the size, visibility, and message of an appropriate disclaimer sign or signs" to be appended to the privately-owned creche to be displayed in the public park at issue. Id., 739 F.2d at 728.


source: Caselaw Access Project

author: McLAUGHLIN, District Judge.

license: Public Domain

text:
    Elba PEPE, as Administratrix of the Estate of Amato Pepe, Plaintiff, v. The UNITED STATES of America, Defendant.
    No. 82 CV 3454.
    United States District Court, E.D. New York.
    Dec. 18, 1984.
    Kelner & Kelner, Martin Rubinstein (of counsel), New York City, for plaintiff.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y., Kevin P. Simmons, Asst. U.S. Atty., Brooklyn, N.Y. (of counsel), for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This action under the Federal Tort Claims Act (28 U.S.C. § 2675) seeks damages for the personal injury and wrongful death of Amato Pepe. Mr. Pepe was treated at the New York Veterans Administration (“V.A.”) Hospital on November 21, 1977; he was sent home where he collapsed that very night. He died on November 22, 1977 without ever regaining consciousness.

Mr. Pepe’s widow brings this action for malpractice, arguing that the V.A. physicians failed to diagnose Pepe’s true condition and failed to admit him for testing and observation. The case was tried before me without a jury. The following constitute the Court’s findings of fact and conclusions of law. Fed.R.Civ.P. 52.

Findings of Fact

The Family Doctors

On November 4, 1977, Amato Pepe went to see his family physician, Dr. Dino Belletti. Dr. Belletti, who did not testify, but whose deposition was admitted, is a specialist in internal medicine with an emphasis in cardiology. Dr. Belletti is an attending physician at Astoria General Hospital, a part-time staff cardiologist at the Bronx V.A. Hospital and a former Director of Cardiology at Physicians Hospital. (Belletti Deposition (“Dep.”) at 9-10).

Pepe told Dr. Belletti that he was seeing “flashing lights” in his left eye. Pepe also told Belletti that he was a heavy smoker. (Belletti Dep. at 12). In fact, Pepe was at that time smoking 2-3 packs of cigarettes daily.

Dr. Belletti examined Pepe and concluded that he was suffering from optic neuritis, secondary to either tobacco, diabetes or drugs. (Belletti Dep. at 13). He prescribed 500 mg. Vitamin C daily, advised Pepe to quit smoking, and referred Pepe to an ophthalmologist and a neurologist. He also told Pepe that he was suffering from nicotine poisoning. (Elba Pepe Nunez Dep. at 37).

Dr. Belletti’s medical chart for that visit contains no record that Pepe complained of chest pain, hallucinations, right shoulder pain or pain in the abdomen. (Belletti Dep. at 17) (Government’s Exhibit (“GX”) B). Dr. Belletti stated that if Pepe had such complaints, he would have noted them on the chart. Dr. Belletti also said that it was his usual practice to examine a patient’s lungs and abdomen. He also stated that if he had found any abnormality he would have recorded it in the patient’s chart. (Belletti Dep. at 18-19).

On November 9, 1977, Pepe was examined by Dr. Clyde R. Locke, an ophthalmologist. Dr. Locke noted that ocular examination was normal except for narrowing of the retinal vessels suggestive of arteriosclerotic changes. (GX A). Dr. Michael Baden, an expert for the defendant, testified that Dr. Locke’s records did not indicate that Pepe voiced any complaints related to a cardiac condition. He also testified that Dr. Locke’s records indicated that his examination of Pepe resulted in no findings of significance.

On November 21, 1977, Pepe suffered some sort of attack at work. He did not look well and was hallucinating. His wife, who worked in the same office, took him back to Dr. Belletti. While waiting in the doctor’s office, Pepe continued to hallucinate, going so far as to carry on a conversation with a picture on the doctor’s wall.

Dr. Belletti’s medical chart for this visit contains no notation that Pepe complained of chest pain, right shoulder pain or epigastric pain (Belletti Dep. at 25-26). Belletti’s chart also contains no record that Pepe had provided him with a history of hypertension. (Belletti Dep. at 27) (GX B).

At this time, however, because Pepe still suffered from loss of vision in his left eye, Dr. Belletti advised Pepe to seek hospitalization. (Belletti Dep. at 20). Accordingly, he gave Pepe a note which stated:

Please admit Mr. Amato Pepe, has visual hallucinations with a past history of headaches. Only medication Vitamin C; 500 mg. TED.

(GX C) (Belletti Dep. at 20).

It is important to note that Dr. Belletti did not have admitting privileges at the New York V.A. Hospital. Thus his note was, at best, a request for admission of Mr. Pepe. The final decision to admit a patient into the hospital had to be made in the sole discretion of the emergency room physicians.

The V.A. Hospital

Pepe and his wife, Elba, went immediately to the emergency room of the New York V.A. Hospital. In an admissions form, Pepe stated that he was seeking treatment for an “eye problem.” (GX D). The nurse at admissions noted that Pepe’s temperature was 99°, his pulse was 100 and his blood pressure was 150/90. (GX E).

Pepe was seen by the hospital medical officer of the day who noted that plaintiff was having visual hallucinations and exhibiting paranoid overt behavior. The medical officer filled out a psychiatric consultation request for Pepe (GX F) (Osofsky Dep. at 7). '

Pepe was examined by Dr. Gerald H. Osofsky, a resident psychiatrist. Dr. Osofsky testified that he interviewed Pepe and his wife. He noted in the chart that Pepe’s chief complaint was: “[hjallucinations visual — sees small flicks of light which ‘pull’ his eyes to the side and he sees his wife working with [patients] who smoke too much.” (GX F). Mrs. Pepe reported to Dr. Osofsky that her husband was acting strangely by locking himself in the bathroom and saying people were going to come into the house. (GX F). (Osofsky Dep. at 9-10).

Dr. Osofsky noted that Pepe had no prior psychiatric history and that Mrs. Pepe advised him that Pepe was fine until “1 week ago.” (GX F). The chart also reflects that Pepe and his wife told Osofsky that Pepe had been advised by Dr. Belletti one week prior to stop smoking because of nicotine poisoning. (Id.)

Dr. Osofsky testified that in view of the fact that Pepe had no prior history of psychiatric illness, he was particularly interested in inquiring into possible physical problems associated with the symptoms. Accordingly, although he could not specifically recall his exact examination of Pepe, his usual examination would consist of questions regarding physical complaints such as shortness of breath and chest pains. He testified that he would not record the absence of such physical complaints in his medical charts. Dr. Osofsky testified that both Pepe and his wife indicated that Pepe did not have any physical problems. (Osofsky Dep. at 11).

Dr. Osofsky performed a. mental status test on Pepe and noted that Pepe was alert and in no acute distress. He also reported that Pepe denied any neurological problems, and had no problems eating or sleeping. (GX F) (Osofsky Dep. at 14). Finally, he noted that there was no evidence of thought disorder or delusional thinking. (Id.).

Based upon his examination, Dr. Osofsky concluded that it was unlikely that Pepe suffered from an acute psychotic attack but that a “metabolic, infectious or other neurological etiology” had to be considered. Accordingly, he suggested that Pepe undergo a neurological consultation. (GX F) (Osofsky Dep. at 14) (Dr. Jacob Oberman, the plaintiff’s expert, has no quarrel with the manner in which Dr. Osofsky acted.).

Pepe was immediately seen by Dr. Mark Friedman, a physician in the neurology service of the V.A. Hospital. Dr. Friedman took a patient history from Pepe and his wife. Friedman recorded that Pepe denied that he had experienced headaches, loss of consciousness, dizziness, diploplia and auditory hallucinations (GX G) (Friedman Dep. at 7). Dr. Friedman then performed a neurological examination of Pepe which included evaluation of Pepe’s mental status, orientation processes and sensory-neurological functions. (Friedman Dep. at 10). The examination was within normal limits with the exception of the mental status. As to mental status, Friedman noted that Pepe had paranoid ideation but was without any amnesia or abnormal thoughts. (Friedman Dep. at 10). Dr. Friedman concluded that there was no evidence of organic or neurological problems (Friedman Dep. at 11). He decided not to admit Pepe to the hospital (Friedman Dep. at 13), and recommended that Pepe should be given an appointment to return to the neurology clinic in order to determine if there was any change in his condition which would warrant further testing. (GX G).

Following the neurological .examination, Pepe was referred back to Dr. Osofsky, who noted that Pepe had been cleared by Neurology. He prescribed and administered orally a 2 mg. tablet of Haldol to Pepe and gave him a prescription for additional tablets that could be filled the following day when the hospital pharmacy was open. Pepe was then discharged from the emergency room. Osofsky testified that Haldol is specifically designed to treat hallucinations or loss of contact with reality.

Mrs. Pepe acknowledges that neither she nor her husband related any symptoms involving chest pain, arm pain or shoulder pain to the physicians at the Y.A. Hospital.

The Collapse

Pepe and his wife then returned home. Mrs. Pepe stated that Pepe “wasn’t that bad, he was happy, talking a little bit, stuff like that.” (Nunez Dep. at 63). After watching television, Pepe stated that he was going to bed because he had a “tough day.” (Nunez Dep. at 63).

At approximately 2:00 A.M. on November 22, 1977, Pepe was found unconscious by his wife on the floor; in addition, his heart had stopped beating. He was transferred by ambulance to Elmhurst General Hospital. The medical chart at Elmhurst noted that Pepe was unconscious even after resuscitation. The chart noted that he had no previous history of heart disease or hypertension (GX I at 3).

A cardiology attending note, dated November 22, 1977, written by Dr. Frank J. Lane, stated that when Pepe was brought into the hospital he had no blood pressure or pulse and that an electrocardiogram revealed a straight line. He also stated that Pepe was given several intercardiac injections of adrenalin, calcium chloride and sodium bicarbonate. Dr. Lane noted that cardiac rhythm was restored as was sinus tachycardia. (GX I at 9). Dr. Lane also noted that an EKG revealed no definite evidence of recent myocardial infarction. (GX I at 9). And Dr. Baden, the defendant’s expert pathologist, could find no evidence in the hospital records that Pepe had suffered a heart attack.

Pepe never regained consciousness, and died on November 22, 1977 at 3:55 p.m. in Elmhurst Hospital. The cause of death was listed as cardiorespiratory arrest, myocardial infarction, and coma from unknown etiology. (GX I at 6).

The Autopsy

On November 23, 1977, an autopsy was performed by the pathology staff at Elmhurst City Hospital. The autopsy report noted that Pepe did not have a history of diabetes, heart disease or alcoholism, although both his heart and liver were severely enlarged. The latter was twice its normal size, which Dr. Baden characterized as “most suggestive of an alcoholic origin.” The report also noted that an EKG showed no definite evidence of an acute myocardial infarction. The report concluded that Pepe had suffered from (1) severe coronary atherosclerosis, with evidence of old. and recent myocardial infarctions; (2) cirrhosis of the liver; (3) chronic pancreatitis; and (4) hyperglycemia (clinical). The report stated that the cause of death was an acute myocardial infarct. (GX J at 6).

Drs. Baden and Tice, two most impressive witnesses, testified that the finding of clinical hyperglycemia did not mean that Pepe had diabetes. Both physicians testified that the high blood sugar level as found by the autopsy was caused by the infusion of a sugar water solution in the Elmhurst Emergency room. Dr. Tice testified that, in his opinion, Pepe did not suffer from diabetes. Dr. Tice further testified that there may be “100 reasons” for a finding of high blood sugar and that Pepe’s cirrhosis and chronic pancreatitis could have contributed to such a finding.

Both doctors testified that the finding of cirrhosis was inconsistent with the medical history given by Pepe and his wife to the physicians at the V.A. The autopsy report concluded that the cirrhosis was compatible with alcoholic etiology. (GX J at 6).

Drs. Baden and Tice testified that Pepe had a maximum life expectancy of 5 years. Dr. Baden testified that Pepe was a “time bomb” and death could have come at any time. Dr. Tice testified that due to extensive cardiac and liver disease, Pepe’s life expectancy could be as short as 6 months and that Pepe could have died “tomorrow.”

Conclusions of Law

Under the Federal Tort Claims Act, the liability of the United States for a negligent act or omission is determined under the law of the State where the alleged negligence occurred, viz., New York. 28 U. S.C. § 1346(b) (1982). Plaintiffs theory of liability is that Amato Pepe died as a result of the malpractice of Doctors Osofsky and Friedman, who were admittedly employees of the V.A. hospital.

In New York law a doctor is liable for malpractice if he either lacks or fails to exercise that degree of knowledge, care and skill expected of the average physician in the same locality and of the same class of physicians to which he belongs, or if he fails to use his best judgment in applying his knowledge and skill. Pike v. Honsinger, 155 N.Y. 201, 209, 49 N.E. 760 (1898); Littlejohn v. New York, 87 A.D.2d 951, 952, 451 N.Y.S.2d 225, 226 (3d Dept. 1982). Thus, the issue in a malpractice action is whether plaintiff has established that what the doctor did or failed to do in his treatment of plaintiff constituted a departure from this standard of care. Spitzer v. Ciprut, 80 A.D.2d 891, 437 N.Y.S.2d 27, 28 (2d Dep’t 1981).

Having heard all the evidence and having reviewed all the exhibits in this case, the conclusion is irresistable that the tragic death of Amato Pepe was not due to malpractice by defendant’s doctors. There is no evidence in the record that the doctors departed from the standard of care expected of physicians in this class.

The key to this case lies in the cause of Pepe’s death. It is clear that he did not die of diabetes, hyperglycemia or any of the other conditions emphasized by plaintiff. He died of severe coronary atherosclerosis complicated by cirrhosis of the liver, the latter most likely caused by alcohol. These disabling, and eventually, fatal conditions could not have been discovered except, after death, by an autopsy.

The hallucinations, eye problems, and other symptoms of which Pepe complained cannot reasonably be found to have alerted the doctors in the emergency room of the V. A. Hospital that they were dealing with a patient who was at death’s door. Retrospect tells us that; but that, of course, is not the test.

I agree with the testimony of Doctors Tice and Baden that Pepe was not a candidate for admission to the V.A. and that the physicians at the V.A. did not depart from accepted standards of medical practice and conduct when they exercised their discretion and decided not to admit Pepe to the hospital.

Accordingly, judgment will be entered for the defendant.

SO ORDERED.

       Mrs. Pepe has remarried since the death of Amato Pepe.


author: MURRAY M. SCHWARTZ, District Judge.

text:
    UNITED STATES of America ex rel. Sheik Abdel Rahim AHMAD (formerly known as Clarence Hooks), Petitioner, v. Walter W. REDMAN and the Attorney General of the State of Delaware, Respondents.
    Civ. A. No. 84-294 MMS.
    United States District Court, D. Delaware.
    Dec. 18, 1984.

      Melvyn I. Monzack, and Francis A. Monaco, Jr., Walsh & Monzack, Wilmington, Del., for petitioner.
    John A. Parkins, Jr., and Loren C. Meyers, Deputy Attys. Gen., Dept, of Justice, Wilmington, Del., for respondents.
   OPINION

MURRAY M. SCHWARTZ, District Judge.

Sheik Abdel Rahim Ahmad (formerly known as Clarence Hooks), has, for the second time, filed a petition for a writ of habeas corpus in this Court. He is presently serving a life sentence after his conviction in 1976 of first degree murder (felony murder), first degree robbery, and conspiracy in the second degree. Hooks’ first habeas petition, filed on June 8, 1980, and consolidated with the petitions of his two codefendants, included numerous claims for relief. The Court dismissed several of those claims on the grounds that petitioners had neither satisfied the exhaustion requirement in state court, nor identified for the federal court any particular federal rights abridged by the alleged trial errors. United States ex rel. Abubake v. Redman, 521 F.Supp. 963, 967 (D.Del.1981), vacated without opinion, 696 F.2d 980 (3d Cir. 1982). The Court did, however, reach the merits of Hooks’ claim that the trial court erred in permitting the introduction into evidence of certain incriminating statements obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On that issue, the Court found that there indeed had been a Miranda violation, but held that the admission of petitioner’s statements at trial was harmless error. 521 F.Supp. at 977. The remaining allegations in Hooks’ first habeas petition were denied and probable cause for appeal was certified only on the Miranda claim.

While Hooks’ appeal was pending, the Supreme Court concluded in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that a federal court should dismiss habeas corpus petitions containing both exhausted and unexhausted claims. A plurality of the Court also noted that a total exhaustion rule would not impair speedy relief since the petitioner could amend his petition to delete nonexhausted claims albeit at the risk of dismissal of subsequent federal petitions. On October 4, 1982, the Court of Appeals for the Third Circuit vacated and remanded the District Court decision with instructions to dismiss the petition to allow petitioner “to either exhaust his unexhausted claims through a state proceeding or delete them.” Abubake v. Redman, 696 F.2d 980 (3d Cir.1982) (order). On October 6, 1982, the District Court dismissed the petition in accordance with the terms ordered by the Court of Appeals.

Hooks subsequently filed a second petition for a writ of habeas corpus, dated May 25,1984, which is the subject of this action. The May 25th petition asserts only the Miranda claim. The parties have elected to rely on their arguments as presented to the Court of Appeals in 1982, supplemented by a hearing before this Court. They have proffered no additional authority to induce the Court to depart from its earlier holding. After review of my decision in Abubake v. Redman, 521 F.Supp. 963 (D.Del.1981), and thorough consideration of the arguments presented by the parties, I remain of the view that Hooks’ petition for habeas corpus must be denied. The facts, reasoning and conclusion set forth in Abubake v. Redman are adopted. As á consequence there will be only a brief discussion on those points which merit further attention.

The State’s argument that North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), as interpreted by the Third Circuit appellate court in United States v. Velasquez, 626 F.2d 314 (3d Cir.1980), compels a finding that petitioner knowingly and intentionally waived his Miranda rights is again rejected. Although those decisions hold that a waiver may be implied, they affirm the well-established view that the particular facts and circumstances must, in each case, be considered. Butler, 441 U.S. at 374-75, 99 S.Ct. at 1757-58; Velasquez, 626 F.2d at 320. As the Supreme Court reiterated in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), a waiver “must not only be voluntary, but [must] constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” Id. at 482, 101 S.Ct. at 1883 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). The question whether Hooks understood his rights and spoke voluntarily is distinct from the question whether he “knowingly and intelligently” waived his Miranda protection. As was noted when this case was first before me, there is ho indication on the record that Hooks in any way appreciated the consequences of relinquishment of his right to remain silent. See Johnson v. New Jersey, 384 U.S. 719, 729-30, 86 S.Ct. 1772, 1778-79, 16 L.Ed.2d 882 (1966). Indeed, the record evinces an affirmative attempt on the part of the interrogating officer to influence Hooks’ judgment in this regard. Although the question remains a close one, it must be remembered that the state had the burden, upon attempting to introduce plaintiff’s statement at trial, of establishing the existence of a waiver. Butler, 441 U.S. at 373, 99 S.Ct. at 1757. The Court adheres to its earlier view that the state failed to meet its burden of proving that Hooks’ decision to make incriminatory statements was the product of a knowing and intelligent waiver.

Hooks’ petition for habeas corpus must nonetheless be denied as I remain unpersuaded that the admission of his statements at trial was more than a harmless error. The weight of authority runs contrary to petitioner’s claim that a rule of “harmful per se” should be applied to Miranda violations. Although the Supreme Court has never ruled definitively on this specific issue, petitioner has provided no compelling reason to treat testimony admitted despite the lack of an adequate waiver of Miranda rights differently from testimony obtained in contravention of other constitutional principles. See, e.g., Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (admission of statements elicited in violation of petitioner’s Sixth Amendment right to counsel; harmless error rule applied); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (harmless error rule applied to prosecutor’s comments and judge’s instruction to jury concerning defendant’s failure to testify). There is ample protection of the rights of the accused, and sufficient symmetry with the goals of the exclusionary rule, under the majority view which upholds a conviction obtained in the face of a Miranda violation only if the remaining evidence is “not only sufficient to support the verdict but so overwhelmingly so as to establish guilt of the accused beyond a reasonable doubt.” United States v. Baldwin, 691 F.2d 718, 723-24 (5th Cir.1982) (citation omitted). See also United States v. Ramirez, 710 F.2d 535 (9th Cir.1983); United States v. Espinosa-Orlando, 710 F.2d 535 (9th Cir.1983); United States v. Moody, 649 F.2d 124 (2d Cir.1981); Collins v. Brierly, 492 F.2d 735, 743 (3d Cir.) (Adams, J., dissenting), cert. denied, 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116 (1974); cf. United States v. Cummiskey, 728 F.2d 200 (3d Cir.1984) (harmless error rule applied to prosecutor’s comments at trial on defendant’s post-arrest silence).

Petitioner submits that his conviction cannot stand, even if the traditional harmless error rule is applied. The record reflects, however, that the jury was presented with overwhelming evidence of petitioner’s guilt. The effect of petitioner’s statements on the jury’s decision, in light of this evidence, must have been negligible.

In his statements to the interrogating officer, Hooks admitted ownership of a blue car. He further confessed that his car had broken down in the Cumberland Dairy parking lot after he had gone to buy milk. According to other evidence, that parking lot was the agreed location for the getaway car. Hooks argues that these inadmissible statements placed him at the scene of the crime and contributed to the guilty verdict. Review of the record reveals, however, that an abundance of evidence from a variety of sources connected Hooks to the conspiracy and dictated a verdict of guilty.

The most damaging testimony came from Gregory Payne, a codefendant who testified as part of a plea bargain. Payne outlined every aspect of the crime from its very inception to its culmination. Hooks’ role in the illegal events was depicted in detail. Undoubtedly, it was crucial that the jury believe Payne in order to convict the defendants. Petitioner complains that his statements corroborated Payne’s testimony and bolstered Payne’s credibility. Validation of Payne’s testimony came, however, from several witnesses who overwhelmingly established Payne’s truthfulness and corroborated Hooks’ culpability. First, Hooks’ employer verified that Hooks left work early on the day of the crime. Second, his wife reported that Hooks and his codefendants were at her home on the day in question, changed clothes there, asked for silk stockings, then left in the three cars which Payne alleged were used in the robbery, Hooks’ blue Chevy among them. Third, a state trooper saw black males at the Cumberland Dairy clustered around a car parked with its hood up. When they saw the trooper, the men allegedly fled. Finally, a couple who lived near the scene of the robbery testified that some of the defendants, including Hooks, came to their home on the night of the crime, used their phone and changed their clothes. Hooks allegedly returned to the house the next day to find the booty from the robbery which had been stashed in a car outside.

The jury’s return of a guilty verdict for all of the defendants reflects its acceptance of Payne’s veracity. Given the profusion of testimony corroborating Payne’s statements, there was no room to doubt Payne’s story. Furthermore, the independent evidence unquestionably tied Hooks to the conspiracy, at least with respect to his role in events prior and subsequent to the robbery itself. Once Hooks’ involvement in the conspiracy was established, it was not also necessary to prove his presence at the scene of the crime; Hooks could be found guilty of those offenses committed in furtherance of the conspiracy and within the reasonably foreseeable scope of the conspiratorial agreement. Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 1183-85, 90 L.Ed. 1489 (1946). Thus, Hooks’ own statements were superfluous to the state’s proof of its case and their admission at trial must be viewed as harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly, an order will be entered denying the petition for habeas corpus. Because a novel question of law is presented in petitioner’s request that a per se rule be applied when a defendant's statements are erroneously admitted at trial without proof of an adequate waiver of Miranda, I will grant a certificate of probable cause for appeal.

      . I will hereafter refer to petitioner as Clarence Hooks to prevent confusion between this Opinion and the earlier decisions in this matter.

      . The Supreme Court has recently prohibited the retroactive application of the rule of Edwards which permits the police to resume interrogation of a suspect who has invoked the right to counsel only if the suspect initiates further communication. See Solem v. Stumes, — U.S. -, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). I do not read Stumes to affect this Court’s reference to the Edwards decision. As the parties concede, Edwards has been cited only for its restatement of the existing law in this area, not for its articulation of a new “bright-line rule.” The holding of Stumes is therefore inapposite to the case at bar.


author: CHARLES R. RICHEY, District Judge.

text:
    Dorthy M. THOMPSON, et al., Plaintiffs, v. William J. BARRETT, Jr., Defendant.
    Civ. A. No. 74-1101.
    United States District Court, District of Columbia.
    Dec. 19, 1984.

      Norah A. Bailey of Ivins, Phillips & Barker, David M. Dorsen of Sachs, Greenebaum & Taylor, Roger Warin of Steptoe & Johnson, and Roderic V.O. Boggs of the Washington Lawyers’ Committee For Civil Rights Under Law, Washington, D.C., for plaintiffs.
    Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and Robert C. Seldon, Asst. U.S. Attys., Washington, D.C., for defendant.
   OPINION

CHARLES R. RICHEY, District Judge.

INTRODUCTION

This case is before the Court on Plaintiff's Application for an Award of Attorneys’ Fees and Costs, arising out of plaintiffs’ successful suit brought against the defendant under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. Litigation in this case has gone on for almost twelve years. The case has survived the death of the original trial judge, whose untimely death occurred before decision, and thus required a second trial, and an appeal to the District of Columbia Circuit. Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir.1982). One of the major claims in this action was initially dismissed by the original trial judge, then reinstated for the second trial by this Court. Major precedents were set in several areas of the Civil Rights Laws, which offered the plaintiffs at most an unclear basis for relief at the time this litigation commenced. The litigation resulted in a major breakthrough for women in the government printing field, and in the general area of equal pay for equal work. Major newspaper and magazine articles in such publications as the Washington Post, Ms. Magazine and Good Housekeeping, etc., as well as reports in the national media such as the NBC Nightly News, which are in the record of this fee application, proclaimed the case as a landmark in the protection of womens’ rights in the workplace. They also chronicled the risks involved, as well as the magnitude of the changes in the printing and other industries resulting from this case. The Washington Post, May 21, 1980, at Al, col. 1; N.Y. Times, May 21, 1980, at A20, col. 1; Good Housekeeping, April, 1984, pg. 84. In every respect, this case represents an outstanding example of tenacious advocacy, the making of new law, and doing so in the face of extreme odds and in the finest tradition of legal advocacy at its very best.

HISTORY OF THE CASE

The underlying action commenced on May 25, 1973 when five females filed an administrative complaint on behalf of approximately 325 Journeyman Bindery Workers (“JBWs”) employed in the Bindery Division of the Government Printing Office (“GPO”). The Complaint alleged Title VII and Equal Pay Act violations and Title VII access violations. The complaint sought reclassification of all JBWs as Bookbinders with pay commensurate with that reclassification, and monetary and injunctive relief based on the illegal and discriminatory imposition of impediments to JBWs’ becoming Bookbinders.

After a lengthy administrative investigation, the GPO denied plaintiffs’ claims in their entirety, finding that the JBWs were not victims of sex discrimination. Plaintiffs were denied the opportunity to discuss the findings in the administrative record.

On July 24, 1974, plaintiffs filed a class action in this Court, which was assigned to the late Judge Joseph Waddy. The complaint relied, inter alia, on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16; the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d); and Executive Order 11478, 34 F.R. 12985, as amended. The complaint alleged a broad pattern and practice of discrimination on the part of GPO extending to all class plaintiffs, and sought injunctive, declaratory and monetary relief, both retrospective and prospective.

The case went to trial before Judge Waddy in March, 1978. At the close of plaintiffs’ case, he granted Summary Judgment in favor of the government on the plaintiffs’ Equal Pay Act claims. The trial was then tried to a conclusion without a decision being rendered because Judge Waddy died in the following summer, before making the requisite findings under Title VII of the Civil Rights Act of 1964, as amended. The case was thereupon randomly reassigned to this member of the Court. The Court, after careful consideration, determined that plaintiffs were entitled to a new trial on all issues. Following further discovery and proceedings before the Court, a second trial began on March 7, 1979.

On October 1, 1979, the Court issued a memorandum opinion on the issue of liability. In that opinion, the Court held that Grade 4 JBW plaintiffs who operated Smyth Sewing Machines were entitled to relief under the Equal Pay Act, and that all plaintiffs were entitled to relief under Title VII on the grounds, among others, that the four-year apprenticeship program was unnecessary and itself constituted a violation of Title VII as applied to the plaintiffs, and that the classification of all plaintiffs differently from Bookbinders also was a violation of Title VII.

On May 20, 1980, the Court issued a relief order, together with a supporting memorandum. Among the provisions of the order were that the plaintiffs were entitled to back-pay relief under Equal Pay Act and Title VII prior to the effective date of those statutes and that plaintiffs were entitled to hiring preferences over males until fifty percent (50%) were women, and other prospective relief.

GPO thereupon filed an appeal and plaintiffs cross-appealed. On April 27,1982, the Court of Appeals for the District of Columbia Circuit affirmed this Court’s decision in almost every respect. Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir.1982). The Circuit Court issued a narrow remand confined to refashioning the quotas or goals established by this Court, and for revising the formula for front pay to make it consistent with the formula used for awarding back pay for Title VII access violations. On June 11, 1982, GPO petitioned for an extension of time in which to file a petition for rehearing. This motion was denied by the Court of Appeals. GPO did not seek certiorari review by the Supreme Court.

THE FEE PETITION

Plaintiffs’ attorneys, Nora A. Bailey of Ivins, Phillips & Barker, Roderic V.O. Boggs of the Washington Lawyers Committee for Civil Rights Under Law, and David M. Dorsen of Sachs, Greenebaum & Tayler, have filed the present application for an award of attorney’s fees and costs through June 25, 1982. The original application has been supplemented four times in light of strong opposition by the defendant and changes in the law affecting this matter. Plaintiffs’ attorneys base their application on Section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, 29 C.F.R. § 1613.271(c), and the Equal Pay Act, as amended, 29 U.S.C. § 216(b).

As there can be no question that plaintiffs are the prevailing party in this action, they are entitled to an award of reasonable fees and costs under both of the above-cited statutes. The crucial determination, as in any attorneys’ fees dispute, is the proper amount to which plaintiffs are entitled under the law. 42 U.S.C. § 2000e-16 establishes a procedure whereby federal employees may bring a Title VII suit against the government. 42 U.S.C. § 2000e-16(d) provides that civil actions brought under this statute will be governed by § 2000e-5(f) through (k). Under these provisions, a prevailing party in a Title VII claim, other than the Equal Opportunity Commission or the United States, may, in the discretion of the trial court, be awarded reasonable attorneys’ fees from the government. 42 U.S.C. § 2000e-5(k). Likewise, 29 U.S.C. § 216(b) provides for reasonable attorneys’ fees in a successful Equal Pay Act claim.

As the Supreme Court has recognized, the amount which reflects a “reasonable” attorneys’ fee must be determined on the facts of each case. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). In that case the Supreme Court embraced the “loadstar” formula: the number of hours reasonably expended multiplied by a reasonable hourly rate. Id. 103 S.Ct. at 1940; Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980). As the Court said in Hensley, “[t]his calculation provides an objective basis by which to make an initial estimate of the value of a lawyer’s services.” 103 S.Ct. at 1939. The product of this formula can then be adjusted upward or downward based on other considerations, including the degree to which the plaintiff has prevailed on all the issues raised. Id. 103 S.Ct. at 1940. After such an adjustment has been made, the resulting amount may then be increased by the use of a “multiplier,” or “incentive award,” which increases the total award to reflect an exceptional success obtained, or a substantial risk involved in the litigation. Blum v. Stetson, — U.S. -, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Certainly, there was not only exceptional success, but also a substantial risk involved from the outset of this case to its conclusion.

I. THE HOURS WORKED BY PLAINTIFFS’ ATTORNEYS WERE REASONABLE.

The starting point in the “loadstar” analysis is a determination of the number of hours reasonable worked by the attorneys representing the prevailing party. Hours reasonably worked are not always the same as hours actually worked, however. Copeland v. Marshall, supra at 891. Hours spent on unnecessary or duplicative work must be subtracted from the total number of hours claimed. Likewise, hours spent preparing for and litigating an unsuccessful claim which is “truly fractionable” from the successful claims are to be deducted. Id. at 892 n. 18, Citing, Lamphere v. Brown University, 610 F.2d 46, 47 (1st Cir.1979). The defendant in the present case argues that the total number of hours claimed by the plaintiffs’ attorneys must be decreased due to what it sees as substantial blocks of nonproductive time. In addition, the defendant asks that the Court further decrease the total number of hours claimed by the amount of time spent on claims on which the defendant feels it, rather than the plaintiffs, prevailed. For the reasons following, the Court finds the total number of hours claimed to be reasonable in light of the facts of this case. Hensley, supra 103 S.Ct. at 1937.

a) The hours claimed for the appeal are not duplicative, unnecessary or nonproductive.

The plaintiffs’ attorneys have claimed a total of 7649.75 hours spent litigating this case over the course of nearly twelve years. If taken out of context, this number could appear extraordinary. However, within the facts of this case the sheer size of the hours claimed is not by itself enough to justify a reduction. The defendants have termed the hours claimed as extravagant and wasteful, yet they have failed to produce any evidence which supports their position. Specifically, they focus on the time claimed for work done on the appeal to the District of Columbia Circuit, the Court of Appeals remand, and the time spent in preparation for and litigation of the two trials.

The government states that 1600 billable hours were spent solely to write plaintiffs’ briefs and to prepare for and argue their case. This, they contend, is an excessive amount of time. The record in this case, however, fails to support the government’s contentions. Initially, the hours billed from September 3, 1980 through September 29,1981, the time period relevant to the appeal, reflect work done on all matters, not just the appeal. This included work on the government’s request for a stay, and many communications with class-members regarding such issues as training and possible reprisals. In addition, the government miscalculates the total number of hours spent during this period by almost 200 hours.

Even so, the Court sees nothing excessive about 1600 hours spent over more than one year by counsel in this case. As the government itself has pointed out, this was no ordinary appeal. The issues were extremely complex and difficult. The government’s opening and reply briefs were each 52 pages in length, the plaintiffs two briefs totalled 159 pages. Oral argument was set for 45 minutes, rather than the more, customary 15 or 20 minutes. At stake was a judgment valued at more than $20 million. There existed a substantial risk of reversal on appeal demonstrated by the fact that at least one of the major issues had been adversely decided earlier by Judge Waddy. In light of the background of this case, and the risk of reversal on appeal, the Court finds that the hours spent on appeal were reasonable and not excessive or wasteful.

b) The narrow remand does not justify a reduction in the fee.

The government next claims that the plaintiffs should not be compensated for those parts of its appeal which were affected by the Court of Appeals remand. They base this contention on the holding in Copeland that “no compensation should be paid for time spent litigating claims upon which the party seeking the fee did not ultimately prevail.” 641 F.2d at 891-92. The government, however, appears to have mistaken the meaning of this passage on which they rely. As the Court in Copeland explained in a footnote directly following the above quote:

However, it sometimes will be the case that a lawsuit will seek recovery under a variety of legal theories complaining of essentially the same injury. A district judge must take care not to reduce a fee award arbitrarily simply because a plaintiff did not prevail under one or more of these legal theories. No reduction in fee is appropriate where the “issue was all part and parcel of one matter," Lamphere v. Brown Univ., 610 F.2d 46, 47 (1st Cir.1979), but only when the claims asserted are “truly fractionable,’’ Id. (emphasis supplied).

The idea that the Court should deduct only those hours worked on claims unrelated to the prevailing claim is supported by the decision in Hensley v. Eckerhart, supra. There, the Supreme Court held that a court’s rejection of alternative arguments aimed at the same “ultimate result” should not result in a reduction of the fee. As the Court there stated, “[t]he result is what matters.” Id. 103 S.Ct. at 1940. Indeed, that case also notes that it is not necessarily significant that the plaintiff did not receive all the relief requested, so long as the relief that was obtained justified the attorney hours expended. Id. 103 S.Ct. at 1941 n. 11. Here, the hours expended were reasonable.

This is not a case where the plaintiff has failed to prevail on a claim that is “distinct in all respects from his successful claim.” Thompson v. Sawyer, 586 F.Supp. 635, 640 (D.D.C.1984), Citing, Hensley v. Eckerhart, supra. Plaintiffs in this case prevailed on every one of the claims of violations, although not every remedy they sought was awarded. They prevailed on all claims arising out of the same nucleus of operative fact. Thompson v. Sawyer, 586 F.Supp. at 641. As previously indicated, the decision of this Court was affirmed by the Court of Appeals, and remanded only for the narrow purpose of refashioning portions of the relief granted. Thompson v. Sawyer, 586 F.Supp. at 638 n. 2. Therefore, the Court will not reduce the total fee award on the basis of the narrow remand in this case.

c) The time spent preparing for the second trial was reasonable.

The defendant has contended that the time spent preparing for the two trials involved in this case was wasteful. It is argued that since both trials involved the same facts and issues, there was no reason to fully prepare for trial twice and, therefore, either the first effort was inadequate or the second effort was superfluous. If this was in fact the case, then the fee award should be reduced to eliminate such duplicative or inefficient work. Copeland v. Marshall, supra at 891. However, the Court finds such not to be the fact.

The defendant, however, once again fails to see the trees from the forest. Instead of looking at the specific needs of such a complex case as this, and the specific work performed by plaintiffs’ attorneys, which the hours billed represent, the defendant merely points to the aggregate of the hours claimed and says that that is too much. The defendant again misreads the record. The 2051.5 hours claimed prior to the first trial involved much more than mere trial preparation. A cursory review of the time sheets submitted show considerable time spent on administrative proceedings, drafting the complaint, certifying the class, drafting and arguing a summary judgment motion, joining the Equal Pay Act plaintiffs, answering plaintiff inquiries, dealing with harassment and grievances, settlement discussions, voluminous discovery efforts and problems, and finally, trial. It also involved complex expert testimony on the intricacies of the printing industry, bookbinding, the workplace at GPO and many other complex statistical matters. It is patently clear to the Court that with a case this size, the hours spent prior to the first trial were reasonable in light of the facts of the case. Hensley v. Eckerhart, supra, 103 S.Ct. at 1937.

The time spent before the second trial was equally reasonable. Again, this total of some 1474.5 hours reflects many other activities on the part of the plaintiffs’ attorneys beyond mere trial preparation. Mr. Dorsen was brought in to act as lead counsel for the second trial, and for two months prior to the trial worked on all aspects of the case. It is not unreasonable that he would require a large amount of time in order to become familiar with the case and all its complexities. The Court will not reduce the total award solely on the basis of the aggregate total of hours, without a specific showing by the defendant as to why the time spent was wasteful or inefficient.

II. THE REASONABLE HOURLY RATE IS WHAT THE ATTORNEY BILLED FEE-PAYING CLIENTS AT THE TIME THE WORK WAS DONE, OR THE PREVAILING MARKET RATE IF THE ATTORNEY HAS NO BILLING HISTORY.

The second factor in the “loadstar” computation is a reasonable hourly rate. Copeland v. Marshall, supra at 893. This second factor has been the source of considerable confusion as courts have struggled with finding an effective method of determining what a “reasonable” rate should be. The guide throughout has been the intent of Congress when it passed the attorneys’ fees statute. The purpose was to provide for a fee which would be “adequate to attract competent counsel, but ... [that does] not produce windfalls to attorneys.” Blum v. Stetson, supra 104 S.Ct. at 1548. Reasonable hourly rate was, therefore, tied into the court’s determination of the “prevailing market rate.” Id. With this Congressional purpose in mind, the Court of Appeals of this Circuit has several times allowed the prevailing market rate, and therefore the “reasonable” hourly rate, to be based on the hourly rate customarily charged by the attorney to fee-paying clients. Copeland v. Marshall, supra; National Assoc. of Concerned Veterans v. Secty. of Defense, 675 F.2d 1319 (D.C.Cir. 1982) (per curiam); Murray v. Weinberger, 741 F.2d 1423 (D.C.Cir.1984).

The culmination of this trend towards using an attorney’s own billing history as the best measure of the prevailing market rates occurred recently in Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.Cir. 1984). That case clearly holds that the second factor of the loadstar equation should be the hourly rate charged by the attorney to fee-paying clients at the time the work was done. Id. at 41-43. Laffey directs only that the fee charged fall into the “bracket” of rates charged by other firms for similar work in the same community. Id. at 41. If the rate charged to fee-paying clients falls within the bracket, then that fee is presumptively the attorney’s market rate, and, therefore, reasonable within the meaning of the loadstar formula. Id.

Following the decision in Laffey, the plaintiffs’ counsel filed a Fourth Supplemental Memorandum which sought a considerable increase in the total award based on counsels’ reading of the decision. Under the plaintiffs’ interpretation of Laffey, ■ a prevailing attorney would be able to multiply the number of hours reasonably worked by the rate which the attorney bills at the present time. Thus, Mrs. Bailey raised her requested fee from $135 pre-Laffey, to $195 an hour, the rate at which she customarily bills her fee-paying clients as of January 1, 1984. Likewise, Mr. Dorsen’s rate jumped from $150 to $160 per hour to reflect a recent rise in his usual hourly rate. Each attorney interpreted Laffey as permitting them to bill all their hours spent on this case at the rate which they now bill other clients.

The Court, however, cannot agree with plaintiffs’ interpretation. The Court of Appeals makes reference to use of the attorney’s “current” hourly rate. Laffey, supra at 25 n. 86, Citing, National Assoc. of Concerned Veterans, supra at 1336.; Murray v. Weinberger, supra at 1428 n. 20. As the Court in Laffey points out, it “makes no sense to require a firm to document its own billing history and then totally ignore that history in setting the hourly rate.” Id. Setting the hourly rate at what the attorney bills at the present time would defeat the Congressional intent as interpreted in Blum, by resulting in a windfall for attorneys who would be able to recover several times the rate they would normally have been able to charge a fee-paying client merely by the passage of time. This is precisely the reasoning used by the Court of Appeals in Murray v. Weinberger, 741 F.2d 1423 (D.C.Cir.1984), when that court stated that upon remand the district court “may consider whether the use of current market rates would produce a reasonable fee ... without generating a windfall for plaintiffs’ attorneys.” Id. at 1433.

As an example of this, the Court notes that Mrs. Bailey’s hourly rate in 1973, when this litigation commenced, was $40 an hour. That $40 an hour reflected what-Mrs. Bailey could command in the marketplace at that time, based on her then current skill, expertise and training. As the years passed, Mrs. Bailey’s ability increased with the additional years of experience and the increase of her skills which such experience provides. Her hourly rate rose accordingly. In 1977 she billed at $90 an hour, in 1980 her rate had climbed to $145, and as of January of 1984, she charged $195 an hour, or nearly five times the rate she charged when this case began.

Each step along this ladder reflects the background, experience and expertise of Mrs. Bailey at that particular point in time. Mr. Dorsen’s fees also escalated in this manner. As the value of their services has increased over time, the rate each of these attorneys can command has risen correspondingly. This is precisely the market theory envisioned in Blum, supra.

It would be a windfall indeed if services performed almost twelve years ago, valued in the marketplace at $40 an hour, could now be reimbursed at nearly five times that amount for work done at that time. Even work done one year ago can only be valued at what the work was worth at the time the services were performed. Otherwise the result would be a great inequity as the non-prevailing party would be forced to pay many times over the actual value of services rendered based solely on the number of years required to bring a matter such as this to a conclusion. Such a result was clearly not foreseen by Congress, and was specifically rejected by the Supreme Court in Blum. Therefore, the Court finds that the reasonable hourly rate for Mrs. Bailey and Mr. Dorsen will be determined by what each charged fee-paying clients at the time each item of work was billed. The Court finds that the fees charged during the relevant periods fall within the “bracket” of rates charged by attorneys with similar backgrounds doing similar work within this community.

As for Mr. Boggs, the Court notes that the Court of Appeals in Laffey left the law regarding attorneys without billing histories unchanged. Id. at 18. For a public-interest attorney such as Mr. Boggs, the reasonable hourly rate is determined by reference to the prevailing community standard for attorneys of like background and experience doing similar work. Blum v. Stetson, supra 104 S.Ct. at 1547; National Assoc, of Concerned Veterans, supra at 1325. For an attorney with 11 to 19 years of experience, the reasonable rate has been found to be $150 an hour. Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C.1983). As Mr. Boggs falls into this category, the Court will adopt this finding for purposes of this case and set Mr. Boggs’ reasonable hourly rate accordingly.

Finally, there are several claims for work done by associates, para-legals and law clerks working in conjunction with the counsel in this case. As the defendant has failed to show why these hours should be seen as unreasonable, the Court will allow all such hours claimed. The rates to be applied are those rates set forth in the original petition which appear to be the rates at which such staff were customarily billed during the period the work was actually performed.

III. THE CIRCUMSTANCES OF THIS CASE JUSTIFY A 50% MULTIPLIER FOR SUBSTANTIAL RISK AND A FURTHER 25% MULTIPLIER FOR EXCEPTIONAL RESULTS OBTAINED.

Plaintiffs’ counsel in this case seek two separate 50% upward adjustments to the loadstar amount. The first adjustment sought is a 50% increase for the exceptional risk involved in handling this case. The second 50% adjustment is sought for the exceptional result counsel were able to obtain. The Court fully agrees that some sort of multiplier is justified in this very exceptional case. However, the Court does not find that the full 100% increase sought by the prevailing counsel is called for. Rather, the Court finds, based on the facts of this case, that the multiplier to be applied should be 50% for risk and a further 25% for results obtained.

Initially, it must be noted that the case law in this area regards the loadstar as the presumptively reasonable fee to which the attorney is entitled. Hensley v. Eckerhart, supra 103 S.Ct. at 1940; Murray v. Weinberger, supra at 1428. In Blum v. Stetson, supra, the Supreme Court reaffirmed this principle, holding that only in exceptional circumstances will the loadstar be inadequate to fully compensate the attorneys under the meaning of the statute. Id. 104 S.Ct. at 1548. The Court there stated that it is “a rare ease in which an upward adjustment to the presumptively reasonable fee of rate times hours is appropriate.” Id. 104 S.Ct. at 1550. Thus there is a “heavy burden” on the prevailing attorneys to justify any upward adjustments. Id. This burden can only be met if the prevailing attorney makes a specific claim based on a particular factor and supported by specific evidence. Murray v. Weinberger, supra at 1429. Accord, National Assoc. of Concerned Veterans, supra at 1323. Concurrent with this burden is the duty of the district court to justify with particularity why an adjustment is needed to fully compensate the attorneys. Blum v. Stetson, supra at 104 S.Ct. 1548-50.

a) A 50% upward adjustment for the substantial risk involved in bringing this suit is appropriate and necessary to fully compensate the prevailing attorneys.

The plaintiffs’ attorneys are seeking a 50% multiplier for the risk they took that they might never be compensated for their labor. They submit, and the Court agrees, that this is truly an “exceptional case,” frought with exceptional risks. As the Court of Appeals held in Laffey, “to the extent unusual circumstances exist, those exceptional circumstances are best taken into account in adjustments to the loadstar.” Id. at 41. Although the Court in Laffey denied the upward adjustments, this case presents many exceptional factors not found in the record before the Court in that case.

First, in Laffey, the fact that the district court found that the initial chance of success was 50% was not “exceptional” enough to warrant any upward adjustment. Laffey, supra at 51. In this case, a cursory review of the statistics prepared by the Office of the United States Attorney for the District of Columbia in its annual report for 1978, the year this case initially went to trial, reveal that for all .Title VII cases brought in the District of Columbia, the plaintiffs prevailed in only 12 out of the 63 cases which went to trial. Thus, a bare statistical analysis would give the plaintiffs only a 19% chance of success even if it were the “typical” Title VII case. As previously noted, this was hardly the “typical” case. Thus the chances of success, statistically speaking, were much lower than even the 19% noted above.

Secondly, Laffey was decided by the district court three years after being brought. The judgment was affirmed in 1976. The remaining eight years were spent litigating the remedy issues. In the present case, it was a full six years after the action was brought until the district court’s decision, largely because of the unfortunate death of Judge Waddy. The Court of Appeals affirmed in 1982, after the case had been pending for nine years. Further, in the first five years of this litigation, the plaintiffs had lost both before the GPO and, at least on one of their major claims, before Judge Waddy. Thus, two different forums had found some of the claims to be merit-less in the first five of the nearly twelve years this case has taken. This case was at risk substantially longer than was the case in Laffey.

Finally, the Court finds that the best reflection of the amount of risk facing plaintiffs at the outset of this litigation is the state of the law as it existed in 1973, when this litigation began. At that time major legal questions were undecided regarding both Title VII and the Equal Pay Act. Examples of some of these decisive but unanswered issues at that time include: 1) whether a federal employee could maintain a class action; 2) whether the class could obtain a trial de novo in the district court; 3) whether the Equal Pay Act would be applicable to the federal government; 4) whether there could be a violation of the Equal Pay Act when males and females operated different machines; 5) whether Title VII and the Equal Pay Act applied retroactively; and 6) whether this circuit, or the Supreme Court, would hold that goals or quotas were appropriate remedies in discrimination eases. Thus, the law in this area was far from clear when the plaintiffs began, and they faced an enor-, mous risk that one or several of these I questions would be decided against them.,

It is clear to this Court that the plaintiffs have met their burden of showing specific factors and specific evidence to support their request for an upward adjustment for the risk involved. Therefore, the Court will award, for the reasons above stated, a 50% upward adjustment based on the substantial risk which these attorneys overcame. Such a 50% increase for risk in a Title VII and Equal Pay Act action such as this finds support in the case law of this and other circuits. Vaughn v. GPO, No. 77-0787 (D.D.C. July 19, 1982) (75% increase for risk); Rajender v. University of Minnesota, 546 F.Supp. 158, 173 (D.Minn. 1982) (100% increase for risk); Dickerson v. Pritchard, 551 F.Supp. 306, 313 (D.C. Ark.1982), aff'd, 706 F.2d 256 (8th Cir.1983) (50% increase); Keith v. Volpe, 86 F.R.D. 565, 577 (C.D.Cal.1980) (250% increase for contingency and quality); Wells v. Hutchinson, 499 F.Supp. 174 (E.D.Tex.1980) (100% increase).

b) The prevailing attorneys have met their burden regarding the award of an upward adjustment for exceptional results obtained, therefore the Court will increase the total award by 25%

Plaintiffs’ second requested adjustment is for exceptional results obtained. The Court fully agrees with plaintiffs’ counsel that this case resulted in an exceptional success with far-reaching consequences not only for the GPO employees, but for the entire printing industry and for women in the workplace throughout the nation. However, the Court finds that a 50% upward adjustment would result in a windfall contrary to the intent of Congress. Therefore, the Court will instead grant the plaintiffs a 25% adjustment based on their exceptional success.

Initially, the Court notes that this case set precedents in many of the areas which were listed above as being unclear when the litigation began. This case was the first in this circuit to use quotas to remedy discrimination; it was one of the very few cases in the nation to successfully challenge an established apprenticeship program; it was the first ease to hold that Equal Pay Act violations can occur when males and females operate different machines; and it also resolved several important questions regarding the retroactive and prospective effect of Title VII and the Equal Pay Act.

Secondly, the plaintiffs were rewarded for their long struggle with an exceptional victory. The 382 class plaintiffs have received approximately $11.4 million in financial benefits to date and can expect to receive at least another $10 million over the next 7 years. Bailey affidavit at 1-9. Back pay for Title VII access violations alone have totaled over $5 million. Bailey affidavit at 2. Front pay for these access violations exceeded $500,000 in 1983. Id. In addition to these direct monetary benefits,, this case resulted in many other improvements in the plaintiffs’ workplace, including elimination of the four-year apprenticeship requirement for bookbinders and the opening of the door for women and other minorities to achieve supervisory status.

Even beyond this, the impact of this suit has affected the entire printing industry. Sex-segregated unions have merged together. The shock waves of this case have spurred inquiries and investigations into the work environment of all public and private printers. This was certainly an exceptional case, with far-reaching impact on an entire business or profession.

For all the foregoing reasons, the Court finds that the plaintiffs have met their burden of showing with specific facts and evidence that they are entitled to an upward adjustment in the loadstar figure based on the exceptional results in this case. The Court therefore will increase the award an additional 25% to reflect this.

Based on the foregoing discussion, the Court hereby awards plaintiffs the total amount of $1,604,029.55. This figure reflects the reasonable hours spent multiplied by the reasonable hourly rate for Mrs. Bailey and Mr. Dorsen, as charged by each attorney at the time the work was done. The figure also includes work done by various associates, para-legals and law clerks working under Mrs. Bailey and Mr. Dorsen. In addition, the amount includes Mr. Boggs’ hours multiplied by the reasonable rate of $150 an hour. Finally, the amount includes all costs expended in this litigation, to which there were no objection. The breakdown is as follows:

NORAH BAILEY

Year Rate Hours Year Total

1973 $ 40 99.25 $ 3,970.00

1974 50 133.00 6,650.00

1975 60 421.75 25.305.00

1976 70 178.00 12.460.00

1977 90 396.50 35.685.00

1978 100 698.50 69.850.00

1979 120 724.00 86.880.00

1980 145 469.75 68.113.75

1981 145 646.00 93.670.00

1982 175 300.00 52.500.00

1983 185 405.75 75.063.75

1984 195 184.25 35.928.75

TOTAL 4,656.75 $566,076.25

DAVID DORSEN

Period Rate Hours Year Total

2/1/78— 1/31/79 $ 90 34.75 $ 3,127.50

2/1/79— 1/31/80 100 631.25 63.125.00

2/1/80— 1/31/81 110 529.00 58.190.00

2/1/81— 1/31/82 120 544.75 65.370.00

2/1/82— 1/31/83 135 90.75 12,251.25

2/1/83— 1/31/84 150 11.75 1,762.50

2/1/84— present 160 0.50 80.00

TOTAL 1,842.75 $203,906.25

RODERIC V. O. BOGGS

660.75 hours x $150 an hour = $99,112.50

SUBTOTAL _

$869,905.00

Associates at Ivins, Phillips & Barker

37.75 hours X $ 75 an hour = $ 2,831.25

Paralegals at Ivins, Phillips & Barker

118.25 hours x $ 50.00 an hour = $ 5,912.50

Associates at Sachs, Greenebaum & Taylor

Tom Hylden

14.50 hours x $100 an hour = $ 1,450.00

Piper Kent

50.50 hours x $ 60 an hour = $ 3,030.00

P. Scott

39.25 hours X $ 60 an hour = $ 2,355.00

Para-Legals and Law Clerks at Sachs, Greenebaum & Taylor

229.25 hours X $ 46.00 an hour = $ 10,316.25

TOTAL LODESTAR AMOUNT

Norah Bailey $566,076.25

David Dorsen 203,906.25

Roderic V.O. Boggs 99,112.50

Sachs, Greenebaum & Taylor staff 17,151.25

Ivins, Phillips & Barker staff 8,743.75

Total Lodestar $894,990.00

FEE ADJUSTMENTS

Risk Factor: 50% upward adjustment $447,495.00

Exceptional Results: 25% upward adjustment $223,747.50

Subtotal $1,566,232.50

Plus Expenses and Costs (Conceded)

Ivins, Phillips & Barker $ 31,346.87

Sachs, Greenebaum & Taylor 4.352.09

Washington Lawyers Committee 2.098.09

Total costs and expenses 37,797.05

TOTAL FEE AWARD ' $1,604,029.55

CONCLUSION

For the reasons set forth above, it is by the Court this 19th day of December, 1984, hereby

ORDERED that the defendant in this action remit the amount of $1,604,029.55 to the plaintiffs in satisfaction of the plaintiffs’ application for an award of fair and reasonable attorneys’ fees, including costs to which there was no objection.

ORDER

In accordance with the Opinion of this Court filed of even date herewith, it is by the Court this 19th day of December, 1984, hereby

ORDERED that the defendant in this action shall remit to the plaintiffs the sum of $1,604,029.55 in satisfaction of the plaintiffs’ application for an award of fair and reasonable attorneys’ fees, including undisputed expenses and costs of $37,797.05.


author: WANGELIN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. ONE 1976 FORD F-150 PICK-UP VIN F14YUB03797, Defendant.
    No. S82-200C(D).
    United States District Court, E.D. Missouri, Southeastern Division.
    Dec. 19, 1984.
    Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for plaintiff.
    Ronald Kaden, Shaw, Howlett & Schwartz, Clayton, Mo., for defendant.
   MEMORANDUM

WANGELIN, District Judge.

This matter is before the Court for a decision following a trial on the merits. This Court’s jurisdiction is invoked pursuant to Title 28 U.S.C. § 1355 and Title 21 U.S.C. § 881. In accordance with Rule 52 of the Federal Rules of Civil Procedure, this Court hereby makes the following Findings of Fact and Conclusions of Law. Any Finding of Fact equally applicable as a Conclusion of Law is adopted as such and, conversely, any Conclusion of Law equally applicable as a Finding of Fact is adopted as such.

1. The defendant herein is a truck,

The vehicle type is a pick-up,

Alleged by a fed

To be found in a bed

Of marijuana, caught in the muck.

2. On August 16, ’82,

In Perry County, Missouri, who

Should appear

But claimant Hudson with gear

As a one-man pot-tending crew.

3. Claimant drove defendant that day

With tools to care for his

Illegal hay.

He was observed by the fed

Placing metal by a shed

Where other tools of his trade would stay.

4. The claimant’s arrest was then made,

Tis illegal, after all, his trade,

And defendant was seized

With comparative ease

By the government, with which it has stayed.

5. Claimant now wants his truck back

And he bases his legal attack

On the grounds that defendant

Though found in pot fields resplendent

Was not used as an illegal hack.

6. While tis true that not one plant or seed

Could be found on defendant, indeed,

Claimant’s argument is tissue

For the dispositive issue

Is did defendant facilitate the deed?

7. In the US. versus One Cadillac, The Second Circuit addressed this attack,

And those judges renowned

Eventually found,

Claimant’s assertion misread law and fact.

8. They gave “facilitate” a wide definition,

These jurists of great erudition,

They found that seizure was proper,

Now here’s the heart-stopper,

If the truck in any manner facilitates the illegal condition.

9. In Cadillac, as in the case at bar, Defendant just transported men near and far,

But this was sufficient

To make claimant’s trade more efficient

And therefore justified seizing the car.

10. Thus the Cadillac case this Court will follow,

Renders claimant’s contention hard to swallow,

And the Court will now render

Judgment against the defender

Because claimant’s contentions are hollow.

11. Now the moral in this case ’bout the truck,

Is easy, in case you are stuck,

If in an illegal endeavor

A vehicle is used whatsoever,

Then, my friend, you are clear out of luck.

JUDGMENT

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff shall have judgment against defendant on plaintiff’s complaint.

      . United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421 (2nd Cir.1977).