JAMES H. WEBB, JR., SECRETARY OF THE NAVY, PETITIONER V. CARMELO
MALDONADO

   No. 87-607

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Reply Memorandum for the Petitioner

   Respondent devotes the bulk of his brief in opposition (Br. in Opp.
11-21) to a discussion of the merits of the question presented by the
petition.  One point respondent has raised, however, merits a brief
reply.

   Respondent concedes that the Ninth Circuit's decision in this case
squarely conflicts with the District of Columbia Circuit's decision in
Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (1984), cert. denied,
472 U.S. 1021 (1985).  Respondent contends (Br. in Opp. 5-11),
however, that the Court should deny the petition in this case because
the District of Columbia Circuit has granted rehearing en banc in Save
Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43 (1987), in order
to decide whether Laffey should be reconsidered.  Respondent suggests
that the petition in this case should be denied in order to allow the
D.C. Circuit to rehear its decision in the Cumberland Mountains case.
That argument is unpersuasive, for three reasons.

   First, the District of Columbia Circuit has recently decided to
hold the Cumberland Mountains case in abeyance pending this Court's
resolution of this petition.  Br. in Opp. App. 3a-4a (reprinting the
D.C. Circuit's November 5, 1987, order in the Cumberland Mountains
case).  /1/ Thus, the conflict between the Ninth Circuit's decision in
this case and the D.C. Circuit's decision in Laffey is still present
and should be resolved by this Court.  Respondent's invitation to play
Alphonse and Gaston with the D.C. Circuit should be declined.

   Second, the District Columbia Circuit appears to believe that the
question presented in the Cumberland Mountains case differs from the
question presented in this case.  In the order holding the Cumberland
Mountains case in abeyance, that court stated that any further
briefing in that case would be addressed to the question whether an
attorney's customary billing rate should be used to calculate a
reasonable attorney's fee when counsel "customarily charges below the
prevailing community rate in order to serve a particular type of
client" (Br. in Opp. App. 4a).  This case does not involve that claim.
 Here, respondent's counsel had the same customary hourly billing rate
for every type of client and legal work that he performed (Pet. 4-5).
For that reason, a decision by the D.C. Circuit in the Cumberland
Mountains case appears unlikely to resolve the question presented by
this case.  /2/

   Third, any dispute among the panel members in the Cumberland
Mountains case on the question whether the D.C. Circuit's earlier
decision in Laffey is correct hinges on the proper interpretation of
this Court's decision in Blum v. Stenson, 465 U.S. 886 (1984), and the
application of Blum to a case in which counsel has an established
hourly billing rate.  An authoritative construction of Blum's
application to such facts is necessary and can only be provided by
this Court.

   In sum, the District of Columbia Circuit's actions in the
Cumberland Mountains case provide no basis for denying the petition
here.

   For the foregoing reasons and those given in the petition, it is
therefore respectfully submitted that the petition for a writ of
certiorari should be granted.

   CHARLES FRIED

      Solicitor General

   NOVEMBER 1987

   /1/ The District of Columbia Circuit granted rehearing en banc in
the Cumberland Mountains case without asking the government for a
response to the en banc suggestion.  Once the government learned of
the court's order, we broguht to the court's attention the pending
petition in this case, and we asked the court to reconsider its
decision to rehear the case en banc, or to hold that case in abeyance
pending this Court's disposition of the petition in this case.  On
November 5, 1987, the D.C. Circuit entered an order denying our motion
for reconsideration, but holding the Cumberland Mountains case in
abeyance pending this Court's disposition of the petition in this
case.  Br. in Opp. App. 3a-4a.

   /2/ We contemplate addressing in our brief on the merits in this
case, however, the question raised by the District of Columbia Circuit
in the Cumberland Mountains case.