Tolenoa v Alokoa [1986] FMSC 16; 2 FSM Intrm. 247 (Kos. 1986) (15 October 1986)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as Tolenoa v. Alokoa,Nena,& Kosrae State [1986] FMSC 16; 2 FSM Intrm. 247 (Kos. 1986)

[1986] FMSC 16; [2 FSM Intrm. 247]

MITCHER TOLENOA,
Plaintiff,

vs.

BERNEL ALOKOA, YOSIARU NENA,
and the STATE OF KOSRAE,
Defendants.

CIVIL NO. 1985-2003

OPINION

Before Edward C. King
Chief Justice
October 15, 1986

[2 FSM Intrm. 248]

APPEARANCES:

For the Plaintiff: Fredrick L. Ramp
Attorney-at-Law
Ramp & Michelsen
P.O. Box 1480
Pohnpei, FSM 96941

For the Defendants: Douglas Daley
Attorney General
Kosrae State Government
Kosrae, FSM 96944

* * * *

HEADNOTES

Civil Rights
Actions of a police officer in stripping a prisoner to punish and humiliate him, then beating him and damaging his pickup truck, constituted violation of the prisoner's constitutional rights to be free from cruel an unreal punishments and his due process rights. Tolenoa v. Alokoa, [1986] FMSC 16; 2 FSM Intrm. 247, 250 (Kos. 1986).

Attorney, trial counselor and client
There is no established market for legal services in Kosrae which could be used to determine a reasonable hourly rate for attorneys in civil rights cases. Tolenoa v. Alokoa, [1986] FMSC 16; 2 FSM Intrm. 247, 254 (Kos. 1986).

Attorney, trial counselor and client
Because the social and economic situation in the Federated States of Micronesia is radically different from that of the United States, rates for attorney's fees set by United States courts in connection with civil rights actions there are of little persuasive value for a court seeking to set an appropriate attorney's fee award in civil rights litigation within the Federated States of Micronesia. Tolenoa v. Alokoa, [1986] FMSC 16; 2 FSM Intrm. 247, 255 (Kos. 1986).

Attorney, trial counselor and client
Attorney's fee awards to prevailing parties in civil rights litigation should be sufficiently high at a minimum to avoid discouraging attorneys from taking such cases and should enable an attorney who believes that a civil rights violation has occurred to bring a civil rights case without great financial sacrifice. Tolenoa v. Alokoa, [1986] FMSC 16; 2 FSM Intrm. 247, 255 (Kos. 1986).

Attorney, trial counselor and client
Despite the fact that some of the arguments made by plaintiff in successful civil rights litigation were rejected by the court, time devoted by counsel to these issues may be included in the civil rights legislationattorney's fee award to the plaintiff where all of the plaintiff's claims in the case involved a common core of related legal theories. Tolenoa v. Alokoa, [1986] FMSC 16; 2 FSM Intrm. 247, 259 (Kos. 1986).

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[2 FSM Intrm. 249]

COURT'S OPINION

EDWARD C. KING, Chief Justice:

The Court is faced in this case with the task of determining reasonable attorney's fees for an award under the civil rights provisions of the National Criminal Code, 11 F.S.M.C. 701.

Plaintiff proposes that we employ the method used in the United States for determining a reasonable attorney's fee. For the reasons discussed here, the Court has concluded that there does not yet exist within the Federated States of Micronesia a sufficiently established market for legal services to enable us to employ that approach used in the United States to determine a reasonable attorney's fee. Moreover, because the social and economic circumstances of the Federated States of Micronesia are quite different from those of the United States, it would not be appropriate to award rates for attorney's fees here at the same level as in the United States.

Instead, the goal is to fix a rate so that attorneys otherwise inclined to represent clients in civil rights litigation may do so, without substantial financial loss, and still live comfortably. A rate of $40 per hour is designated as a reasonable attorney's fee for that purpose in this case.

I. Background

When plaintiff Mitcher Tolenoa was approached by six Kosrae police officers seeking to arrest him on July 30, 1983, he was raucous and belligerent. He threatened to throw a pool cue ball at one of the officers, acted as though he would hit the same officer with a pool cue, and swore at him.

When they reached the jail, the officer, Bernel Alokoa, retaliated. First, he forced Tolenoa to strip and then left him nude in a bare cell, where he remained for some twelve hours. Tolenoa was then accosted in his cell by Alokoa and beaten until he managed to flee into the night, still nude. Alokoa, unable to find Tolenoa, then methodically demolished Tolenoa's pickup truck, knocking out the windshield and all windows and bashing in the doors and roof of the truck cab.

Tolenoa brought this action under 11 F.S.M.C. 701(3), claiming violation of his civil rights by Officer Bernel Alokoa, as well as Yosiaru Nena, the officer in charge of the jail who permitted and observed most of the events, and the State of Kosrae.

In an oral decision announced on May 19 by this Court in Kosrae after a three day trial, all three defendants were held liable. Bernel Alokoa was

[2 FSM Intrm. 250]

held liable for compensatory damages of $8,525 and punitive damages of $4,262.50 for total liability of $12,787.50.

Officer Yosiaru Nena came on duty and took charge of the jail a few hours after Tolenoa had been stripped. Nena left Tolenoa naked. Several hours later, he violated normal procedures by allowing Officer Alokoa, who was off duty, to go into Tolenoa's cell, although Nena knew there was a risk that Alokoa intended to harm Tolenoa. Nena then absented himself from the area and did nothing to protect Tolenoa from the beating. He observed the demolition of the truck and took no steps to stop Alokoa. For these violations and failure to carry out his duty, Yosiaru Nena was held liable in the amount of $6,775.

The State of Kosrae, which had a policy of stripping prisoners to punish them for prior misconduct, and whose officer in charge permitted all of these events to occur, was held liable to Tolenoa for damages of $8,525.1

The various actions of Officer Alokoa, permitted and acquiesced in by the officer in charge, constituted cruel and unusual punishment in violation of Tolenoa's rights under article IV, section 8 of the Constitution. This improper punishment also was an encroachment on Tolenoa's liberty and property, done without due process, in violation of article IV, section 3.2

[2 FSM Intrm. 251]

All defendants were held jointly and severally liable. The maximum total amount Tolenoa can receive is $12,787.50.

II. Legal Analysis

The relevant portions of the civil rights provisions of the National Criminal Code, 11 F.S.M.C. 701, are as follows:

(1) Deprivation of rights. A person commits an offense if, whether or not acting under color of law, he deprives another of ... any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia ....

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(3) Civil liability. A person who deprives another of any right or privilege protected under this section shall be civilly liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, without regard to whether a criminal case has been brought or conviction obtained. In an action brought under this section, the court may award costs and reasonable attorney's fees to the prevailing party.

This lawsuit was meritorious and almost certainly could not have been initiated without anticipation by counsel of the possibility of an attorney's fee award. The legal services rendered in this case were of high quality. Concluding that this is precisely the kind of case for which the Congress must have intended that attorney's fees be awarded, I have ruled that a fee and costs will be granted. It therefore is necessary now to determine the proper amount of such an award.

A. United States Method

The legislative history of these civil rights provisions is silent as to the meaning of the phrase, "reasonable attorney's fees." Tolenoa points to civil rights legislation in the United States, 42 U.S.C. §§ 1983,3 1988,4 as

[2 FSM Intrm. 252]

the source of 11 F.S.M.C. 701. He therefore argues that we should use the approach employed in the United States for determining a "reasonable attorney's fee" in the case.

The United States approach assumes a "market" which can furnish a basis for determining a reasonable hourly rate for an attorney. The underlying assumption is that an attorney will be required by market forces to set fees at a level similar to those charged by other attorneys of roughly equal caliber. These market forces, the theory goes, establish something in the nature of a prevailing market rate for particular kinds of legal services in the relevant community.5 A rate determined in this way is presumed reasonable under the analysis approved by the United States Supreme Court.

That reasonable hourly rate can then be multiplied by the number of hours reasonably devoted by counsel to the litigation to obtain a "lodestar" amount, which is normally the reasonable attorney's fee to be awarded by the court. See Blum v. Stenson, [1984] USSC 57; 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984).

Plaintiff also points out that United States courts have adjusted the lodestar amount upwards when it is shown that a particular case involved a substantial amount of risk of loss, was particularly unpopular and required sacrifices on the part of the attorney, or where work of exceptionally high quality was performed by the attorney. See Northcross v. Board of Education, [1980] USCA6 61; 611 F.2d 624 (6th Cir. 1979), cert. denied, 100 S. Ct. 2599 (1979); Hensley v. Eckerhart, [1983] USSC 88; 461 U.S. 414, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).6

B. No Market Here

Based upon records indicating that counsel devoted a total of 289.95 hours to this case, and charges an hourly rate of $100 per hour, plaintiff claims a lodestar amount of $28,995. He asks that this amount be adjusted upwards by a factor of 25%. The total attorney's fee award requested is $36,137.25.

To demonstrate that an hourly rate of $100 per hour for legal services is in line with the prevailing market rate here, Fredrick Ramp, plaintiff's

[2 FSM Intrm. 253]

counsel, has submitted an affidavit showing "usual and customary billing rates," ranging from $50 to $125 per hour, charged by various lawyers "for cases similar to this case."

1. Attorneys based elsewhere - Nineteen of the 25 lawyers listed in the Ramp affidavit are based outside of the Federated States of Micronesia, in Guam, Saipan or Palau, although most, if not all of them, have appeared in cases before this Court.

Their rates presumably are based upon economic realities and the standard of living in those areas where those attorneys' primary practices are based, not upon market forces within the Federated States of Micronesia.

Guam and Saipan, as a territory and commonwealth, respectively, of the United States, have a greater influx of funds from, and a closer domestic legal relationship to the United States. I am also not persuaded that the circumstances and aspirations of Palau are the same as here. The Federated States of Micronesia must work out its own approach. What is reasonable in other places, even those close to us in the Pacific, may not be reasonable here.

In absence of any showing that the hourly rates charged by attorneys based in Guam, Saipan or Palau are adjusted to reflect the realities of life here the Court declines to consider those rates in this effort to determine a "reasonable attorney's fee" for a location within the Federated States of Micronesia.

2. Attorneys in Pohnpei - The Court therefore is left with the rates shown for six attorneys based on Pohnpei. Four are fulltime practitioners. Two, counsel for governmental institutions, engage in private practice on a limited basis. The Ramp affidavit shows that three of the fulltime private practitioners are charging $100 per hour. one charges $50 per hour. Of the two engaged in part time private practice, one charges $50 to $75 per hour, depending on the case, and the other is shown as charging $100 per hour. Judicial notice is taken of the fact that none of these private practitioners has been engaged in private practice in the FSM as an attorney for as long as four years.

While these figures concerning lawyers based within the Federated States of Micronesia are of greater import than comparable representations about attorneys based elsewhere, this information remains an insufficient foundation for determining a reasonable attorney's fee in this case.

Plaintiff has not shown how the Pohnpei attorneys fixed their rates. In absence of any showing to the contrary, it appears likely that attorneys in the FSM have been greatly influenced by the fee schedules of attorneys based in Guam, Saipan, Palau and presumably also in the United States. Fees in those other places are of little value for determining a reasonable attorney's fee here.

[2 FSM Intrm.254]

Even if attorneys living here do set their fees based only upon their view of the socioeconomic circumstances of the Federated States of Micronesia, the fees currently charged could only be regarded as experimental.7 The length and breadth of experience here has been inadequate to establish a bona fide market rate within the Federated States of Micronesia.8

3. Kosrae - Even if the information concerning the practice of law in Pohnpei were sufficient to persuade the Court that there is on Pohnpei an established market which could be used to determine a reasonable hourly rate for attorneys in civil rights cases, that would not be enough for this case.

This litigation was initiated in Kosrae by a Kosraean plaintiff against two Kosraean police officers and the state of Kosrae. The "relevant community" for the purpose of fixing fee awards in this case is Kosrae.

While it is doubtful that an established market for legal services exists in Pohnpei, plainly there is no such market in Kosrae. No private attorney has an office in Kosrae nor has any attorney ever based a legal practice in that state. No previous civil rights case has been brought to a decision before this Court in Kosrae.

[2 FSM Intrm.255]

C. United States Fees Not Proper Guide

The hourly rate sought by counsel in this case is within the range of fees which have been awarded by United States courts in connection with civil rights actions.9 The Court has considered accepting the rates set in those United States cases, as distinguished from the analytic method used for setting those rates, as a guide for determining the proper rate here. Yet those United States rates are of little legitimate persuasive value because the social and economic situation in the Federated States of Micronesia is radically different from that of the United States.

[2 FSM Intrm.256]

Micronesia only in recent years has developed a money economy. Just five years ago, there were no hotels or restaurants on the entire island of Kosrae.10 Two years ago, there was no bank there. The per capita gross domestic product of Kosrae, and indeed the entire Federated States of Micronesia, is far below that of the United States. For example in 1983 the gross domestic product of the FSM was $1,249. FSM First National Development Plan 1985-89, at 29. The comparable figure for the United States in 1984 was approximately $15,483.11 Employees of the FSM national government may be paid as little as $.80 per hour. 52 F.S.M.C. 205. This compares to a minimum hourly wage of $3.35 in the United States. World Almanac and Book of Facts: 1986, at 114. The President of the United States receives $200,000 per year, 3 U.S.C.S. § 102; the President of the Federated States of Micronesia is paid $32,000 per year. 2 F.S.M.C. 209.

These figures translate into practical realities which bear directly upon the reasonableness of attorney's fees. Rates set for and by attorneys are not designed merely to enable attorneys in the United States to pay office overhead expenses or to ward off bankruptcy. The awards and attorney's fees in general reflect assumptions about what an appropriate annual income for an attorney should be.

In the United States, where it is not uncommon for attorneys, other professionals, and businessmen to earn $100,000 or far more per year, an award of $100 per hour seems reasonable.12 Here, where so many people live on a subsistence basis and incomes across the entire strata of society are lower than in the United States, an attorney earning $100,000 per year is at a much higher step on the economic ladder than he or she would be with the same income in the United States.

Plaintiff's brief on this issue implicitly recognizes the desirability of taking economic realities into consideration in determining awards. Plaintiff observes that the amount of damages awarded in this case "was not great by United States standards but did involve a significant recovery by income and cost of living standards of the Federated States of Micronesia and

[2 FSM Intrm.257]

represented a fair result for the plaintiff." Memorandum re Attorney's Fees at 9. If an award of damages for violations of constitutional rights should be set in light of "income and cost of living standards of the Federated States of Micronesia," then surely the same considerations should affect the attorney's fee award in the same case.

To adjust damage awards downward from those of the United States to reflect the different economic circumstances within the Federated States of Micronesia, but in the same cases to fix attorney's fee awards at the higher levels set in the United States would artificially skew the economy in favor of attorneys. This would bring us perilously close to the old Trust Territory double standard whereby Micronesians and Americans were compensated on different pay scales. This has been recognized as unfair and violative of equal protection. See Temengil v. Trust Territory of the Pacific Islands, Civ. 81-0006 (D. N. Mar. I. Feb. 4, 1985).

D. The Rate for this Case

We are at the beginning of an evolutionary process.13 It seems possible that on a case by case basis this Court may eventually develop more concrete guidelines to fix reasonable attorney's fees. As the years go on, it may be that the market will furnish a dependable guide. At this juncture however there are no reliable guidelines to follow in determining a reasonable attorney’s fee to compensate plaintiff's counsel in this case. Nevertheless, the Court is obliged to attempt to determine a reasonable fee here.

In doing so, the Court starts from the proposition that Congress wanted to assure that attorneys will be available to represent citizens in civil rights matters. Thus the award should be sufficiently high at a minimum, to avoid discouraging the attorneys from taking these kinds of cases.

At the same time there is no indication that Congress wanted to make the

[2 FSM Intrm.258]

payment of full awards, at top dollar amounts, a priority. The apparent goal is not to attempt to lure into civil rights cases attorneys who seek only maximum compensation and have little interest in civil rights or in making our system of government work better. The goal surely is to enable an attorney who believes that a civil rights violation has occurred, and who wishes to assist a client to be vindicated and to discourage further violations, to bring a civil rights case without great financial sacrifice to the attorney. An attorney who does so should be compensated sufficiently so that he or she may live comfortably, if not grandly.

Attempting to take these factors into consideration the Court has settled upon $40 per hour as an appropriate rate for the attorney's fee in this case.

III. Computations

A. Attorney's Fees

In support of the request for attorney's fees, plaintiff's counsel has submitted a detailed billing report showing the date, the work done and the amount of time spent, on each service for which a claim for compensation is made. These billings fully support plaintiff's claim that counsel devoted some 289.95 hours to this case.

Defendants do not challenge any particular item on the bill but offer several general arguments to the effect that the amount of time devoted by counsel to this case was excessive.

The first argument is that this was a relatively simple case and did not require the amount of time devoted by counsel. That contention is rejected. This was a case of first impression and there were many potential pitfalls. Plaintiff's counsel did a thorough and commendable job of researching the issues and preparing a position for the various questions which could have arisen. Such thoroughness was not excessive, indeed was essential in this case.

Counsel for the defense also contends that it was clear all along that the defense did not intend seriously to contest the question of liability. Plaintiff responds that in absence of a clear and unequivocal stipulation as to liability, the burden remained on plaintiff to establish his case. The Court concurs. While the defense did finally concede liability in closing arguments, no concession was made prior to that time. Under those circumstances, the plaintiff was required to prepare thoroughly, to present a full case, and to be poised to meet any argument that might be raised against his client's claims.

Finally, the defendants point out that some of the arguments originally made by plaintiff in this case were rejected by the Court. These include plaintiff's contentions that the state was reckless in hiring officer Alokoa as a police officer and that the state tried to cover up the fact that Alokoa

[2 FSM Intrm.259]

had beaten Tolenoa. Defendants argue that the time devoted by counsel for plaintiff to these issues should be subtracted from the amount to be awarded.

The claims in this case involved a common core of related legal theories asserted by plaintiff against the defendants. Plaintiff was successful against the defendants in this litigation. The fact that the Court did not rely upon all of plaintiff's assertions or theories will not be used to reduce the award. See Hensley, 461 U.S. at 435, 103 S. Ct. at 1940, 76 L. Ed. 2d at 52.

Finally, defendants claim that the attorney's fee should be proportionate to the damages award is rejected for the reasons stated in City of Riverside v. Rivera, [1986] USSC 157; 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986).

The time claimed by plaintiff's counsel, 289.95 hours, is fully compensable.

B. Expenses

Plaintiff's counsel also submits billings for expenses in the amount of $2,155.77.14 Travel expenses are supported by receipts, including copies of plane tickets and hotel bills.

Defendants objected to the lack of detail concerning the telephone calls but these are explained adequately in plaintiff's reply memo. In addition, defendants object to the fact that xerox costs are not itemized but the Court finds these costs to be reasonable in light of the circumstances of this case. Therefore plaintiff's request for reimbursement of expenses in the amount of $2,155.70 is allowed.

Conclusion

This litigation addressed the issue of police misconduct, a problem that has arisen too frequently in recent years. Important civil rights have been vindicated and the community has been served.

The legal services in this case were of high quality and should be compensated fully, not at a level providing the highest possible financial rewards, but to enable an attorney inclined toward preservation of civil rights to provide that important service without substantial financial sacrifice.

For these reasons, the three defendants in this case are held jointly and severally liable to plaintiff's counsel for attorney's fees in the amount of $11,598, and for reimbursement of expenses in the amount of $2,155.70.

1. The evidence established that, as a matter of normal practice and policy, Kosrae police officers often stripped prisoners. The practice was traceable to the 1970's when a young man hung himself in the Kosrae jail. The original policy was that police officers should feel free to strip persons who showed suicidal tendencies so that they could not use their clothes to strangle or otherwise injure themselves. Unfortunately, the policy evolved perversely. At the time of the actions giving rise to this law suit, the primary purpose for stripping was to punish and intimidate prisoners who had been difficult or obstreperous.

Tolenoa was unruly when he was originally arrested but had quieted down by the time he reached the jail. There is no indication that he was stripped to preserve order, find evidence, or protect Tolenoa, police officers, or other prisoners from harm. Instead, Alokoa's purpose in stripping Tolenoa, and then leaving him nude in a bare cell, was to degrade, humiliate and punish Tolenoa.

2. "While a police officer may employ force to effect an arrest and to protect himself and other citizens, he may not use force or violence simply to punish people he dislikes or those he decides have done wrong. The principal functions of the police officer are to preserve peace and order and to apprehend lawbreakers so that they may be tried by the courts and handled justly."

"Punishment is no part of the police officer's assignment. A policeman who chooses to mete out punishment violates his office and does so at his own peril." Loch v. FSM, [1984] FMSC 14; 1 FSM Intrm. 566, 574-75 (App. 1986).

3. 42 U.S.C.S. § 1983 provides, in pertinent part: "Every person who, under color of any statute ... custom, or usage, of any State or Territory ... subjects any person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."

4. 42 U.S.C.S. § 1988 says, in pertinent part: "In any action or proceeding to enforce ... section 1983..., the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of osts."

5. "To inform and assist the Court in thin the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence ... that the request rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, [1984] USSC 57; 465 U.S. 886, 895 n.11[1984] USSC 57; , 104 S. Ct. 1541, 1547 n.11[1984] USSC 57; , 79 L. Ed. 2d 891, 900 n.11 (1984).

6. But see Pennsylvania v. Delaware Valley Citizens' Council, [1986] USSC 174; 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986), holding that most of the factors relied upon by plaintiff are reflected in the lodestar amount and therefore do not call for additional upward adjustments.

7. The record is ambiguous as to how long the $100 per hour rate has been in effect. The Ramp affidavit states, paragraph 4, that this has been the standard rate for two years. Yet, as defendants' brief points out, a December 17, 1985 letter written by Mr. Ramp to the Kosrae attorney general can be read as suggesting that the firm's rate at that time was approximately $75 per hour. This point was not clarified, or addressed in any way, in plaintiff's reply brief.

8. This is not to say, of course, that continued experience will necessarily reveal the fees shown in plaintiff's affidavit to be inappropriate for Pohnpei. Increased economic activity may be a big factor in supporting a continuing high demand for legal advice. For now, though, the relative novelty of the availability of legal service through private practitioners here may be supporting fees which might otherwise be seen as unrealistically high. For example, because attorneys formerly were not readily available, there may have been an unusual backlog of work when attorneys here initiated private practice. Those relatively few FSM citizens who can afford high legal fees to put their business and personal affairs in order may therefore be seeking more legal assistance now than they will be after those long-standing needs have been met. Moreover, current fees of $100 per hour here on Pohnpei may look better now, against the history of attorneys from elsewhere charging that same amount plus travel expenses to get here, than those rates will appear later. Finally, there still are so few attorneys here that, because of conflicts, there may often be only one attorney who actually can represent a client. Thus a near monopoly still exists in some situations.

9. Plaintiff has cited several United States cases where the fee awarded was higher than the $125 per hour rate sought here. Rivera v. Riverside, [1982] USCA9 991; 679 F.2d 795 (9th Cir. 1982) ($125 per hour); May v. Cooperman, 582 F. Supp. 1458 (D.N.J. 1984) ($125 per hour for an academic constitutional law consultant); Grendel's Den, Inc. v. Larkin, 582 F. Supp. 1220 (D. Mass. 1984) ($275 per hour for Professor Laurence Tribe, a nationally prominent constitutional law expert, and $125 per hour for others).

But there are also many United States cases where the fee set is considerably lower. For example, see Wojtkowski v. Cade, [1984] USCA1 40; 725 F.2d 127 (1st Cir. 1984) (district court was entitled to draw upon its own knowledge of attorney's fees in Springfield, Massachusetts area and award counsel $75 per hour rather than the $125 requested for "core legal work" and $40 per hour for other work); Roubidenaux v. Vox, 601 F. Supp. 174 (D.S.D. 1985) ($55 per hour in South Dakota); Carbana v. Cruz, 595 F. Supp. 585 (D.P.R. 1984) ($60 per hour rate in Puerto Rico); Poston v. Fox, 577 F. Supp. 915 (D.N.J. 1984) ($75 per hour in New Jersey, awarded to account for special experience of counsel); Gingrae v. Lloyd, 585 F. Supp. 684 (D. Conn. 1983) ($75 per hour in Connecticut); Strama v. Peterson, [1982] USCA7 725; 689 F. 2d 661 (7th Cir. 1982) ($80 for Chicago attorney); Davis v. City of Abbeville, 633 F.2d 1161 (5th Cir. 1981) (usual rate for private attorneys in civil right cases in Louisiana is $50 an hour); Knightan v. Watkins, [1980] USCA5 946; 616 F.2d 795 (5th Cir. 1980) ($50 per hour is a reasonable amount for civil rights work in Mississippi); Johnson v. Snyder, [1981] USCA6 105; 639 F.2d 316 (6th Cir. 1981) ($50 per hour in Ohio); White v. New Hampshire Dep't of Employment Security, [1982] USCA11 93; 679 F.2d 283 (1st Cir. 1982) (hourly rates ranging from $35 to $50 for attorneys in a New Hampshire case are reasonable); Hubby v. Historic Savannah Foundation, Inc., 623 F. Supp 637 (S.D. Ga. 1985); Kennelly v. Lemoi, 529 F. Supp. 140 (D.R.I. 1981) ($60 an hour for noncourt time and $65 for in-court time in Rhode Island case); Battle v. Anderson, 541 F. Supp. 1061 (E.D. Okla. 1982) ($50 per hour was reasonable award in action challenging conditions of confinement in Oklahoma prison); Alexander v. Hill, 553 F. Supp 1263 (W.D.N.C. 1983) ($50 to $75 per hour, depending upon attorney's experience, awarded in North Carolina case); Ross v. Saltmarsh, 521 F. Supp. 753 (S.D.N.Y. 1981) (attorney in New York civil rights action entitled to prevailing rate ranging from $75 to $90 an hour); Dunten v. Kibler, 518 F. Supp. 1146 (N.D. Ga. 1981) ($50 an hour in Atlanta civil rights cases).

10. Judicial notice of these facts generally known within Kosrae is taken pursuant to FSM Evid. R. 201(b).

11. This figure was obtained by dividing the gross domestic product of the United States for 1984, 3,662.9 billion, by its estimated population in that same year, 236,413,000. These figures are taken from the World Almanac and Book of Facts: 1986 (printed in 1985 by the Newspaper Enterprise Association, Inc. New York, 1985), at 103 and 615 respectively.

12. An attorney billing 30 hours per week for 50 weeks at $100 per hour would have gross billings of $150,000 per year. This could likely produce net income of approximately $100,000 per year.

13. In the United States, there has been considerable evolution as federal courts have struggled to provide guidelines for the trial judge attempting to fix a reasonable attorney's fee. originally, the reasonableness of an award was thought to be almost solely within the discretion of the trial judge. Then the court in Johnson v. Georgia Highway Express, Inc., [1974] USCA5 109; 488 F.2d 714, 717 (5th Cir. 1974) enumerated twelve "guidelines" which lower courts could consider. Since then, these "Johnson factors" have repeatedly been invoked.

Thereafter, the "lodestar" approach. Lindy Bros. Builders Inc. v. American Radiator & Standard Sanitary Corp., [1976] USCA3 541; 540 F.2d 102 (3d Cir. 1976). The lodestar gave more structure to the analysis but still left much discretion with the district court to reduce or increase awards on the basis of less quantifiable factors.

Now, in its most recent attorney's fees decision, the United States Supreme Court has sought to reduce still further the discretion available to a trial judge to depart from the lodestar amount. Pennsylvania v. Delaware Valley Citizens' Council, [1986] USSC 174; 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986).

14. Adjusted downward, by agreement of Plaintiff, from the original claim of $2,470.27. This was in response to defendants' objection to $314.50 requested for travel in January, 1986.

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