Dillard v. City of Elba Order Granting Motion for Award of Attorney's Fees

    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE 

FILED 

0c 2 0 1993 
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 

7 AREER 
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DEE PIG. OF ALA. 
Wades . y RK BY 

JOHN DILLARD, et al., v CLERK, 

Plaintiffs, 

Vv. CIVIL ACTION NO. 87-T-1201-N 

CITY OF ELBA, 

Defendant. 
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ORDER 

In this lawsuit, a plaintiff class of African-Americans 

challenged the "at large" system used to elect councilmembers for 

defendant City of Elba, as violating § 2 of the Voting Rights Act 

of 1965, as amended, 42 U.S.C.A. § 1973. By order entered on April 

1, 1988, the court approved a consent decree requiring that the 

1988 elections for city council be conducted under a five single- 

member district plan. In 1992, the plaintiffs filed a motion for 

additional relief claiming that the city must reapportion itself 

because the 1988 redistricting pian no longer meets the one-person 

one-vote requirements of the United States Constitution. By order 

entered on July 28, 1993, the court ordered the city to conduct 

elections under a new plan which met the one-person one-vote 

requirements. This ohuss is now before the court on the 

plaintiffs’ motion for attorney’s fees and expenses incurred as a 

result of their request for additional relief. For the reasons 

that follow, the court concludes that the plaintiffs are entitled 

n/a g [55 A 

 



    

to recover $6,670.00 in attorney’s fees and $463.45 in expenses, 

for a total of $7,133.45 from the City of Elba. 

1. 

The plaintiffs seek an award of attorney’s fees under the 

Voting Rights Act. The Act provides that 

"In any action or proceeding to enforce the 
voting guarantees of the fourteenth or 
fifteenth amendment, the court, in its 
discretion, may allow the prevailing party, 
other tnan the United States, a reasonable 
attorney’s fee as part of the cost." 

42 u.S.C.A. § 19731(e). This provision, which is similar in 

substance and purpose to the Attorney’s Fees Act of 1976, serves 

the familiar purpose of encouraging private litigants to act as 

"private attorneys general" to vindicate their rights and the 

rights of the public at large, by guaranteeing to them, if they 

prevail, a reasonable attorney’s fee.’ With this provision, 

Congress sought to create an alternative means to ensure, without 

the expenditure of additional public funds, that the policies 

underlying the Voting Rights Act are implemented and enforced 

successfully. Guaranteed fees were considered to be essential to 

  

1. 42 U.S.C.A. § 1988. Plaintiffs also seek to recover under 

this provision. 

2. Indeed, the similarity between the language and underlying 
purposes of the fee award provisions of the Voting Rights Act, § 
19731(e), the Attorney’s Fees Act of 1976, § 1988, and the Civil 
Rights Act of 1964, 42 U.S.C.A. § 2000e-5(k), has led the Eleventh 
Circuit to conclude that the standards for awarding fees under the 
various provisions should be generally the same. Brooks v. Georgia 
State Board of Elections, 997 F.2d 857, 861 (11th Cir. 1993); 
Maloney v. City of Marietta, 822 F.2d 1023, 1025 n.2 (11th Cir. 

  

  

  

1987) (per curiam). 

 



this end in light of concerns over the financial ability of victims 

of discrimination to bring such actions and the fact that the 

relief sought and obtained is often nonmonetary. Donnell v. United 
  

  

States, 682 F.2d 240, 245-46 (D.C. Cir. 1982), cert. denied, 459 

U.S. 1204, 103 S.Ct. 1190 (1983). 

The City of Elba has not questioned that the plaintiffs are 

the prevailing parties in this litigation and thus entitled to 

reasonable attorney’s fees. Indeed, the city could not do so in 

good faith. This lawsuit Is an offshoot of a voting rights case 

brought in 1985. Dillard v. Crenshaw County, 640 F.Supp. 1347 
  

(M.D. Ala. 1986); 649 F.Supp. 289 (M.D. Ala. 1986, affirmed in part 
  

and remanded in part, 831 F.2d 246 (11th Cir. 1987), reaffirmed on 
    

remand, 679 F.Supp. 1546 (M.D. Ala. 1988). Two years later, in 

1987, the lawsuit was expanded state-wide to include the City of 

  

Elba and 182 other local governing bodies. Dillard v. Baldwin 

County Board of Education, 686 F. Supp. 1459, 1461 (M.D. Ala. 
  

1988) (discussing the history of the Dillard litigation). As 

previously stated, the plaintiffs entered into a consent decree 

with the city requiring that, with the 1988 elections, the city 

elect its council members under a single-member distri plan, and 

the plaintiffs subsequently prevailed in their effort to have the 

city reapportion its districts for the 1993 election to meet the 

one-person one-vote requirements. Therefore, the only issue before 

the court is what the fee should be.  



  

11. 

The starting point in setting any reasonable attorney’s fee is 

determining the "lodestar" figure--that is, the product of the 

number of hours reasonably expended to prosecute the lawsuit and 

the reasonable hourly rate for non-contingent work performed by 

similarly situated attorneys in the community. After calculating 

the lodestar fee, the court should then proceed with an analysis of 

whether any portion of this fee should be adjusted upwards or 

downwards. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 
  

1933, 1939-40 (1983). 

In making the above determinations, the court is guided by the 

12 factors set out in Johnson v. Georgia Highway Express, 488 F.2d 
  

714, 717-19 (5th Cir. 1974). See Blanchard v. Bergeron, 489 U.S. 
  

87, 91-92, 109 S.Ct. 939, 943 (1989); Hensley, 461 U.S. at 434 n. 

9, 103 S.Ct. at 1940 n. 9. These factors are: (1) the time and 

labor required; (2) the novelty and difficulty of the questions; 

(3) the skill required to perform the legal services properly; (4) 

the preclusion of other employment by the attorney due to accep- 

tance of the case; (5) the customary fee in the community; (6) 

whether the fee 1s fixed or contingent; (7) time limitations 

imposed by the client or circumstances; (8) the amount involved and 

the results obtained; (9) the experience, reputation, and ability 

of the attorney; (10) the "undesirability" of the case; (11) the 

nature and length of professional relationship with the client; and 

(12) awards in similar cases. 

 



  

A. Reasonable Hours 

James U. Blacksher and Edward Still represented the plaintiffs 

in this matter. They seek compensation for the following hours: 

Blacksher 18.6 hours; 

Still 4.4 hours; 

The court has considered two Johnson factors--the novelty and 

difficulty of the case, and the amount involved and the result 

obtained--in assessing the reasonableness of the hours claimed. A 

cursory review of such cases as Brown v. Thomson, 462 U.S. 835, 103 
  

S.Ct. 2690 (1983), White v. Regester, 412 U.S. 755, 93 S.Ct. 2332 
  

(1973), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362 (1964), 
  

would indicate that even the simplest one-person one-vote case 

would be formidable to an attorney unfamiliar with the voting 

rights law. Because an attorney with less knowledge and experience 

than plaintiffs’ attorneys would have taken many more hours to 

pursue this litigation, the number of hours claimed could be viewed 

as conservative. The court finds, in light of these circumstances, 

that all the hours expended and claimed were not "excessive, redun- 

dant, or otherwise unnecessary," Hensley v. Eckerhart, 461 U.S. 
  

424, 434, 103 S.Ct. 1933, 1939-40 (1983), but were necessary, and 

directly related, to securing the relief obtained. Blacksher and 

Still are entitled to the full number of hours claimed. 

B. Prevailing Market Rate 

"A reasonable hourly rate is the prevailing market rate in the 

relevant legal community for similar services by lawyers of 

 



  

reasonably comparable skills, experience, and reputation." Norman 

v. Housing Authority of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 
  

1988). To determine the prevailing market rate, the court will 

consider the following Johnson factors: customary fee; skill 

Tequired to perform the legal services properly; the experience, 

reputation and ability of the attorney; time limitations; pre- 

clusion of other employment; contingency; undesirability of the 

case; nature and length of professional relationship with the 

client; and awards in similar cases. 

Customary Fee: The plaintiffs contend that the customary fee 
  

for an attorney of similar experience in the community supports an 

hourly non-contingent fee of $350 for Blacksher and Still. The 

evidence shows that Alabama attorneys practicing in the same and 

similar areas of law with approximately the same experience and 

skill as plaintiffs’ attorneys charge a non-contingent fee of at 

least $290 an hour.’ 

Skill Required to Perform the legal Services Properly: It 
  

cannot be questioned that voting rights litigation requires a 

highly skilled attorney. As explained earlier, even the simplest 

  

3. As originally envisioned by Congress, civil rights 
attorneys were to be paid on a par with commercial lawyers. See S. 
Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976), 1976 U.S. Code Cong. 
& Admin. News 5913 ("It is intended that the amount of fees awarded 
under [§ 1988] be governed by the same standards which prevail in 
other types of equally complex Federal litigation, such as 
antitrust cases[,] and not be reduced because the rights involved 
may be nonpecuniary in nature.") Regrettably, this has not proved 
to be true. Indeed, if upon completion of law school, plaintiffs’ 
attorneys chosen to devote themselves to commercial rather than 
public interest law, they would today, in light of their abilities, 
be able to command a substantially higher hourly rate. 

6 

 



  

voting rights case would be daunting to an attorney who had not 

specialized in voting rights law. 

Experience, Reputation, and Ability of the Attorney: Blacksher 
  

and Still have now rightfully earned the reputation as two of the 

most experienced, knowledgeable, and able voting rights lawyers in 

the State of Alabama, if not the nation. They have to their credit 

such trail-blazing cases as Bolden v. City of Mobile, 423 F.Supp. 
  

384 (S.D. Ala. 1976), aff'd 571 F.2d 238 (5th Cir. 1978), reversed   

and remanded, 446 U.S. 55, 100 S.Ct. 1490 (1980), reaffirmed on 
    

remand, 542 F.Supp. 1050 (S.D. Ala. 1982), and Hunter v. Underwood, 
  

471 U.S. 222, 105 S.Ct. 1916 (1985). Blacksher has also written 

extensively in the area. See, e.g., J. Blacksher and L. Menefee, 
  

"At-Large Election and One Person, One Vote: The Search for the 

Meaning of Racial Vote Dilution," in Minority Vote Dilution (C. 
  

Davidson ed.) (1984). 

Time Limitations: Where there has been "[p]riority work that 
  

delays the lawyer’s other legal work," this factor requires "some 

premium." Johnson, 488 F.2d at 718. The case was litigated under 

the pressure of an impending election. 

Preclusion of Other Emplovment: This factor "involves the 
  

dual consideration of otherwise available business which is 

foreclosed because of conflicts of interest which occur from the 

representation, and the fact that once the employment is undertaken 

the attorney is not free to use the time spent on the client's 

behalf for other purposes." Johnson, 488 F.2d at 718. There is no 

evidence to support this factor. 

 



Contingency. Plaintiffs have not sought an enhancement based 
  

on contingency. 

Undesirability of the Case: In general, civil rights litiga- 
  

tion is seen "as very undesirable because it stigmatizes an 

‘attorney as a ‘civil rights lawyer’ and thus tends to deter fee- 

paying clients, particularly high-paying commercial clients, from 

seeking assistance from that lawyer." Stokes v. City of Mont- 
  

gomery, 706 F.Supp. 811, 815 (M.D. Ala. 1988), aff'd, 891 F.2d 905 

{11th Cir. 1989) (table).* The results of such litigation tend to 

arouse the emotions of all concerned, and frequently the attorneys 

who bring these cases are the subjects of prolonged and vitriolic 

hostility. 

Nature and Length of Relationship with Client. Blacksher and 
  

Still have represented the plaintiffs in this matter from its 

inception. There is no evidence that they had a prior professional 

relationship with the plaintiffs, except to the extent that they 

have represented the plaintiffs in all these Dillard cases. 

Awards in Similar Cases: Blacksher and Still were awarded 
  

$350 an hour in another voting rights case. Lawrence v. City of 
  

Talladega, civil action no. 91-C-1340-M (N.D. Ala. May 17, 1993). 

The court is of the opinion, based on these criteria, that the 

prevailing market rate for non-contingent work performed by 

attorneys of similar knowledge and experience in similar cases is 

  

4. See also Robinson v. Alabama State Department of Educa- 
tion, 727 F.Supp. 1422 (M.D. Ala. 1989), aff'd 918 F.2d 183 (11th 
Cir. 1990) (table); Hidle v. Geneva County Board of Education, 681 
F.Supp. 752, 756 (M.D. Ala. 1988); York v. Alabama State Board of 
Education, 631 F.Supp. 78, 85 (M.D. Ala. 1986). 

  

  

  

  

8  



  

at least $290 an hour.’ 

C. Lodestar Calculation 

The unadjusted lodestar for an attorney consists, as stated, 

of the product of the attorney’s compensable hours multiplied by 

his prevailing market fee. The lodestars for plaintiffs’ counsel 

are therefore as follows: 

Blacksher 18.5 hours x $290 $ 5,394 

Still 4.4 hours x $290 = 1.276 

Total S$ 6,670 

D. Adjustment 

An adjustment neither upward nor downward is warranted. 

III. 

Plaintiffs’ counsel also seek an award of $463.45 for certain 

expenses. With the exception of routine overhead office normally 

absorbed by the practicing attorney, all reasonable expenses 

incurred in case preparation, during the course of litigation, or 

as an aspect of settlement of the case may be taxed as costs under 

section 1988 and the standard of reasonableness is to be given a 

  

5. By establishing the appropriate market rate on the basis 
of current rates, the court is also compensating plaintiffs’ 
counsel for the delay in payment. See Missouri v. Jenkins, 491 
U.S. 274, 284, 109 S.Ct. 2463, 2469 (1989) ("an appropriate 
adjustment for delay in payment--whether by the application of 
current rather than historic hourly rates or otherwise--is within 
the contemplation of the statute"); Norman, 836 F.2d at 1302 ("[i]n 
this circuit, where there is a delay the court should take into 
account the time value of money and the effects of inflation and 
generally award compensation at current rates rather than at 
historic rates"). 

  

 



  

liberal interpretation. Loranger v. Stierheim, F.3d +1993 
  

WL 330598 (11th Cir. Sept. 28, 1993); NAACP v. City of Evergreen, 
  

812 F.2d 1332, 1337 (11th Cir. 1987). Expenses claimed in this 

matter include costs for a demographer, long distance calls, and 

travel. a1 of these expenses appear to be reasonable and 

necessary. The court therefore determines that plaintiffs’ counsel 

may recover all the expenses requested. 

It is therefore the ORDER, JUDGMENT, and DECREE of the court 

that the plaintiffs’ moticn for award of attorney’s fees, filed 

September 1, 1993, is granted, and that the plaintiffs have and 

recover from defendant City of Elba the sum of $6,670.00 as 

attorney’s fees and $463.45 for expenses, for a total sum of 

$7,133.45. 

DONE, this the 20th day of October, 1993. 

vd Oo 
  

  UNYTED STATE DISTRICT JUDGE