Opinion Remanding Order

     [||f57d2fcc-52d2-4e5a-86c8-5541fbef58e7||] NORWOOD v. HARRISON 

Delores NORWOOD et al., Plaintiffs- 

Appellees, Cross-Appellants, 

Vv. 

D. L. HARRISON, Sr., et al., Defend- 

ants-Appellants, Cross-Appellees. 

No. 78-1600 
Summary Calendar.* 

United States Court of Appeals, 
Fifth Circuit. 

Oct. 5, 1978. 

Plaintiffs, who successfully complet- 
ed action protesting constitutionality of 
state statute allowing loan of textbooks 
to private schools engaged in discrimina- 
tory practices, sought award of attorney 
fees. The United States District Court 
for the Northern District of Mississippi, 
William C. Keady, Chief Judge, awarded 
$23,852 of $31,379 claimed in attorney 

fees, and defendants appealed. The 
Court of Appeals, Alvin B. Rubin, Circuit 
Judge, held that: (1) award of attorney 
fees against state was authorized by 
law; (2) state was not indispensable par- 
ty; (3) district court adequately con- 
sidered relevant factors in considering 
request for attorney fees, and (4) plain- 
tiffs were entitled to compensation for 
any time their attorneys spent on case 
after date of district court’s order. 

Remanded. 

1. Federal Courts ¢=265 
For purposes of suit challenging 

constitutionality of state statute allow- 
ing loan of textbooks to private schools 
engaged in discriminatory practices, 

110 

award of attorney fees against state in 

favor of plaintiffs was not barred by 
Eleventh Amendment. U.S.C.A.Const. 
Amend. 11; Emergency School Aid Act, 
§ 718, 20 U.S.C.A. § 1617; 42 US.C.A. 
§ 1988. 

2. Federal Civil Procedure ¢=219 
For purposes of action challenging 

constitutionality of state statute allow- 
ing loan of textbooks to private schools 
engaged in discriminatory practices, 

state was not indispensable party to ac- 

tion. 

3. Federal Courts &=617 
For purposes of plaintiffs’ request 

for attorney fees in action challenging 
constitutionality of state statute allow- 
ing loan of textbooks to private schools 
engaged in discriminatory practices, time 
to amend claim on ground that hourly 
rates initially requested were inadequate 
was prior to order awarding fees, and 
thus plaintiffs were precluded from con- 
tending on appeal that hourly rates they 
initially requested were inadequate. 
Emergency School Aid Act, § 718, 20 

US.CA. § 1617; 42 US.C.A. § 1988 

4. Federal Civil Procedure ¢=2737 

Federal Courts =830 

Determination of reasonable attor- 

ney fees is left to sound discretion of 
trial judge, and attorney fees award of 
trial court should not be set aside unless 

there has been a clear abuse of his dis- 

cretion. 

5. Federal Civil Procedure ¢=2737 
In exercising his discretion in 

awarding attorney fees, trial judge must 
consider number of factors, including 
time spent, novelty of legal issue, skill 
needed, other work foregone, customary 

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 
431 F.2d 409, Part 1. 

Synopses, Syllabi and Key Number Classification 

COPYRIGHT © 1978, by WEST PUBLISHING CO. 

The Synopses, Syllabi and Key Number Classifi- 

cation constitute no part of the opinion of the court.  



    111 

fee for similar work in the community, 
time limitations, experience of attorney, 
awards in similar cases, and whether fee 
is fixed or contingent; it is always not 
only appropriate but mandatory for 
court, in fixing fees, to consider all of 
these factors. 

6. Federal Courts ¢=2737.5 
In action in which plaintiffs success- 

fully challenged constitutionality of state 
statute allowing loan of textbooks to pri- 
vate schools engaged in discriminatory 
practices, trial court gave adequate at- 
tention to contingency factor in consider- 
ing plaintiffs’ request for attorney fees. 
Emergency School Aid Act, § 718, 20 

US.C.A. § 1617; 42 US.C.A. § 1988. 

7. Federal Courts ¢=2735 
Plaintiffs, who successfully chal- 

lenged constitutionality of state statute 
allowing loan of textbooks to private 
schools engaged in discriminatory prac- 
tices, were entitled to be compensated 
for any time their attorneys spent on 
matter after date on which district court 
entered its order awarding plaintiffs at- 
torney fees. Emergency School Aid Act, 
§ 718, 20 U.S.C.A. § 1617; 42 U.S.C.A. 
§ 1988. 

8. Federal Courts ¢=922 
Although Court of Appeals had pow- 

er to award attorney fees or to adjust 
any award found to be inequitable, 
where record did not disclose amount of 
time counsel devoted to case following 
district court’s order awarding attorney 
fees, case would be remanded so that 

parties could be heard in district court 
on issue concerning additional award of 
attorney fees for time spent by plain- 
tiffs’ counsel following district court’s 
order. 

Appeals from the United States Dis- 
trict Court for the Northern District of 
Mississippi. 

Before THORNBERRY, GODBOLD 
and RUBIN, Circuit Judges. 

NORWOOD v. HARRISON 

ALVIN B. RUBIN, Circuit Judge: 

Plaintiffs successfully completed an 
action protesting the constitutionality of 
a state statute allowing the loan of text- 
books to private schools engaged in dis- 
criminatory practices. The district court, 
in a thorough and careful opinion, 
awarded $23,852 of the $31,379 claimed 

in attorneys’ fees, based on services ren- 
dered for the period ending March 2, 
1976, pursuant to Section 718 of the 
Emergency School Aid Act, P.L. 92-318, 

20 U.S.C. § 1617, and, alternatively, the 

Civil Rights Attorneys Fees Awards Act, 
P.L. 94-559, 42 U.S.C. § 1988. 

Defendants appeal from the award, 
claiming that it was barred by the Elev- 
enth Amendment, that the statutory pro- 

visions did not abrogate the state’s im- 
munity to monetary judgment, and that 
the state was an indispensable party to 
the action. Plaintiffs cross-appeal for an 
increase in the amount of fees awarded 
and for additional fees to cover later 

services. 

For the reasons stated, we affirm the 

judgment in the plaintiffs’ favor, and re- 
mand for further allowance on the plain- 

tiffs’ cross-appeal. 

[1,2] During the pendency of the ap- 
peal, the Supreme Court decided the case 
of Hutto v. Finney, 1978, — U.S. ——, 

98 S.Ct. 2565, 57 L.Ed.2d 522. That deci- 
sion makes it clear that the award of 
attorneys’ fees against the state is au- 
thorized by law and that the state is not 
indispensable. The sole remaining issue 
is whether the district court improperly 

failed to allow the additional amount for 
services rendered. 

The district court made an award for 

the period ending March 2, 1976 with 

   



.D 

  

® 
NORWOOD v. HARRISON 112 

careful calculation. See Norwood v. 
Harrison, N.D.Miss.1976, 410 F.Supp. 
133. Plaintiffs had claimed a total of 
$31,379; they were awarded $23,852. 
For proceedings in the district court pri- 
or to the first appeal, the plaintiffs had 
claimed 406.85 hours at $35 per hour. 
The court accepted the claim as to time 
spent, but decided to vary the hourly fee 
based on the type of service performed. 
It awarded $20 per hour for writing let- 
ters, attending conferences, routine mo- 

tions, and preparing exhibits; $30 per 
hour for depositions; $35 per hour for 
drafting the complaint, legal research, 
brief-writing, and courtroom appear- 
ances. For work performed on remand 
designing a certification program for 
Mississippi private schools, the court 
awarded the full claim of 141.5 hours at 
$40 per hour. For time spent on appeal 

to the Supreme Court, the court accept- 
ed the hourly fee of $50, but decided 
that the estimated time spent was exces- 
sive and decreased the hours from 231 to 
150. The award averaged $36.06 per 
hour. 

[3] Plaintiffs appear now to have 
reached the conclusion that the hourly 
rates they initially requested were inade- 
quate. Whether or not this is the case, 

the time to amend their claim was prior 
to the order awarding fees. 

[4,5] It is settled in this circuit that 

“[t]he determination of a reasonable at- 

torney’s fee is left to the sound discre- 
tion of the trial judge.  .. :. . An 
attorney’s fee award of a trial court 
should not be set aside unless there has 
been a clear abuse of his discretion.” 
Weeks v. Southern Bell Telephone and 
Telegraph Co., 5 Cir. 1972, 467 F.2d 95, 

97 (citations omitted). In exercising his 
discretion, the trial judge is directed by 
Johnson v. Georgia Highway Express, 
Inc., 5 Cir. 1974, 488 F.2d 714, to con- 

sider a number of factors, including the 

time spent, the novelty of the legal issue, 
the skill needed, other work foregone, 

the customary fee in the community, 
time limitations, the experience of the 
attorney, and awards in similar cases. 
In this case adequate consideration was 
given to all of these factors. 

[6] It is always not only appropriate 
but mandatory for a court, in fixing 
fees, to consider all of the Johnson fac- 

tors, including the customary fee for 
similar work in the community, and 
whether the fee is fixed or contingent. 
We do not in this opinion endorse an 
average fee of so much per hour in all 
contingent fee cases, nor hold that the 

lawyer who undertakes to handle a diffi- 

cult case for a plaintiff on a contingent 
basis should be held to the hourly fee 
that is expected by attorneys whose re- 
tainers are sure. In the award appealed 
from, however, we think the trial court, 

in considering the request for attorneys’ 
fees, framed as it was, gave adequate 

attention to the contingency factor. 

[7,8] The plaintiffs should, however, 

be compensated for any time their attor- 
neys spent on the matter after March 2, 
1976. Although we have the power to 
award attorneys’ fees, or to adjust any 
award we find inequitable, see Brown v. 
Culpepper, 5 Cir. 1977, 559 F.2d 274; Da- 
vis v. Board of School Commissioners of 
Mobile County, 5 Cir. 1976, 526 F.2d 865, 

the record does not disclose the amount 
of time counsel have devoted to this 
case; we, therefore, think that the par- 
ties should be heard on that issue in the 
trial court. Fain v. Caddo Parish Police 
Jury, 5 Cir. 1977, 564 F.2d 707, 709, n.4. 

For these reasons, the awarded attor- 
neys’ fees to March 2, 1976, is affirmed; 
the case is remanded to the district 
judge for a determination of appropriate 
compensation for work performed since 
its March 2 order. 

REMANDED. 

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn. [||f57d2fcc-52d2-4e5a-86c8-5541fbef58e7||]