Plaintiffs' Motion for Award of Costs and Attorneys' Fees

    IN THE UNITED STATES DISTRICT COURT FOR THE / ¥ 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et zl., § 

Plainriffs, § 
CIVIL ACTION 

NS, § 

NO. 75-297-P 

CITY OF MOBILE, et al,., § 

Defendants. § 

PLAINTIFFS' MOTION FOR AWARD 
OF COSTS AND ATTORNEYS' FEES 

Plaintiffs Wiley L. Bolden, et al. move the Court for 

an award of costs and attorneys' fees as hereafter set out, 

and as grounds for their motion would show as follows: 

1. Plaintiffs are entitled by statute to an award 

of their costs and fees in this action, pursuant to Section 

402 of the Voting Rights Act of 1965, as amended in 1975, 42 

U.S.C. §1973 1(e), and pursuant to the Civil Rights Attorneys’ 

Fees Awards Act of 1976, amending 42 U.S.C. §1988. 42 U.S.C. 

§19731(e) (Supp. 1976) provides: 

(e) 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 than the United States, a reasonable 

attorneys' fee as part of the costs. As 

amended Pub.L. 94-73 Title II, §207, Title 
IV, 8402, Aug. 6, 1975, 89 Scat. 402, 404, 

The Civil Rights Attorneys' Fees Awards Act of 1976 provides: 

In any action or proceeding to enforce a 

provision of sections 1977, 1978, 1979, 
1980, and 1981 of the Revised Statutes 

[42 0D.8.C. §51981, 1982, 1933, 1985 and 

 



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1986], title IX of Public Law 92-318, or in 
any civil action or proceeding, by or on 

behalf of the United States of America, to 

enforce, or charging a violation of, a 

provision of the United States Internal 

Revenue Code, or title VI of the Civil 

Rights Act of 1964, the court, in its 
discretion, may allow the prevailing party, 

other than the United States, a reasonable 

attorney's fee as part of the costs. 

2. The legislative history of Section 402 of the 

Voting Rights Act specifies that the amount of fees to be 

awarded under that Act "be governed by the same standards 

which prevail in other types of equally complex Federal 

litigation, and not be reduced because the rights involved 

may be non-pecuniary in nature." S.Rep.No. 94-295, pp. 41-42, 

94th Cong., lst Sess. (1975). Even more detailed guidance 

is provided the courts by the House and Senate Reports for 

the Civil Rights Attorneys' Fee Awards Act of 1976, S.Rep.No. 

94-1011, 94th Cong., 2nd Sess. (June 18, 1976), and H.Rep. No. 

94-1558, 94th Cong., 2nd Sess. (September 15, 1976), copies 

of which are attached to this motion. > The legislative 

histories of both attorney fee statutes cite with approval 

the guidelines set out in Johnson v. Georgia Highway Express, 
  

Inc., 438 F.24 714 (5th Cir. 1974), and single out as 

decisions wherein these guidelines are properly applied 

Stanford Daily v. Zurcher, 64 P.R.D. 680 (M.D. Calif. 1974); 
  

Davis v. County of Los Angeles, 8 E.P.D. 99444 (C.D. Calif. 
  

1974); and Swann v. Charlotte-Mecklinburg Board of Education, 
  

66 ¥.R.D. 483 (W.D. N.C. 1975). 

3. The time and labor required, as of the date this 
  

motion is filed, are shown by the attached affidavits of 

Edward Still, J. U. Blacksher, Larry Menefee and Gregory B. 

Stein. 

4. The novelty and difficulty of the questions   

presented in this action were exceptional. The decision of 

the case required an application of accepted constitutional 

principles to a hitherto unlitigated set of facts. However, 

 



    

—— tt ean tl A ti 

”~ 

  

federal courts have acknowledged that these established 

constitutional principles in the area of voter dilution present 

inherently novel and difficult questions; each case must be 

considered as 'a blend of history and an intensly local 

appraisal of the design and impact of the multi-member district 

(under scrutiny) in light of the past and present reality, 

political and otherwise." White v. Regester, 412 U.S. 755,   

769-770 (1973). Additionally, there were two controlling legal 

issues in this case for which no established legal precedents 

were provided by established caselaw: the effect of Washington 
  

v. Davis, _ U.S. , 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), on 
  

voting rights litigation and the proper application of 

unconstitutional vote dilution principles to a city commission 

form 6f government. The Court should not overlook in this 

regard the fact that this case has been of great national 

importance and has, as the court put it in Swann, supra, 66   

F.R.D. at 485, "become a political football of nationwide 

attention.” 
> 
o~ 

5. The skill requisite to perform the legal service   

properly must be judged by the Court. 

6. The preclusion of other employment due to 
    

acceptance of this case has not been a significant factor with 

respect to Edward Still and J. U. Blacksher. However, by 

virtue of the fact that at least during the period from 

January thru July 1976 in excess of one half of his time was 

devoted to the preparation of this case, Larry Menefee was 

effectively precluded from other employment available to him. 

7. The customary fee. The novelty of the legal 
  

issues in this litigation makes it impossible to rely entirely 

on the history of customary fees in other cases. Stanford   

Daily, supra, 64 F.R.D. at 682. Generally speaking, hourly   

rates in federal courts run from $30.00 or $35.00 an hour up 

to 2 or 4 times that figure. Swann, supra, 66 F.R.D. ‘at 486.   

Attached to this motion are affidavits of other lawyers 

testifying to the rates that prevail generally with respect 

 



  

  

a Ee oa sere out itt ee ea a a Ca Eo Ar ee 

to litigation in federal court. Immediately relevant to the 

determination of a customary fee with respect to the instant 

litigation are the fees paid to opposing counsel. Swann, 

supra, 66 F.R.D. at 485. Opposing counsel filed answers to 

interrogatories on or about October 13, 1976, stating that 

the City of Mobile had as of that date been billed in excess 

of $85,000.00, representing payment for opposing counsel's 

services on a noncontigent basis at the rate of $50.00 per 

hour. Opposing counsel has further represented that in light 

of the fact they were billing a public client $50.00 an hour 

is below their usual rate for this type of federal litigation. 

Perhaps more indicative of the customary fee isthat which the 

City of Mobile recently announced it has agreed to pay Mr. 

Charles Rhyne, namely, $10,000 retainer plus $100.00 per hour. 

Furthevaore, unlike opposing counsel, plaintiffs’ counsel 

have had considerzble experience with civil rights litigation 

which has allowed them to utilize their time more economically. 

Stanford Daily, supra, 64 F.R.D. at 684-85. 
  

8. Whether the fee is fixed or contigent. Plaintiffs 
  

have not entered into any contract with their attorneys for 

payment of fees. Plaintiffs' counsel have prosecuted this 

action on a completely contigent basis, dependent upon the 

successful outcome of the lawsuit. Where the chances of 

recovering attorneys' fees at the beginning of litigation 

appear slight, the normal amount of attorneys' fees should be 

increased. Stanford Daily, supra, 64 F.R.D. at 682. At the   

time this action was filed, the chances of plaintiffs’ 

recovering attorneys' fees were made even less likely by the 

absence of the subsequently enacted 1975 amendments to the 

Voting Rights Act and the Civil Rights Fees Awards Act of 

1976. Plaintiffs' counsel have been reimbursed costs only 

in the amount of $1,500.00 by the Non Partisan Voters League 

of Mobile County and in the amount of $3,183.68 by the NAACP 

Legal Defense and Educational Fund, Inc., a non-profit legal 

oly 

 



  

  

aid organization which has as its primary purpose the advocacy 

of the rights of black people in the courts. The Legal 

Defense Fund has also, compensated local counsel on a nominal 

basis in the amount of $2,850.00. However, local counsel are 

obligated to reimburse the Legal Defense Fund the amounts 

advanced them in the event they recover costs and attorneys’ 

fees, and these advancements should in no way diminish the 

fees and costs to be awarded by this Court. Swann, supra, 
  

66 F.R.D. at 486. 

9. The amount involved and the results obtained. 
  

As in Swann, supra, 66 F.R.D. at 484, "[t]he results obtained   

were excellent and constituted the total accomplishment of 

the aims of the suit." Although no damages were sought or 

recovered in this action, Congress intended that the amount of 

fees awarded not be reduced because the rights involved may 

be nonpecuniary in nature. S.Rep.No.94-1011, supra, p.6. 
  

The results obtained were of great public importance and 

obtained protection of the voting rights of black citizens 

of Mobile. The Supreme Court has uniformly characterized the 

right of suffrage as one of the most fundamental rights in 

a free and democratic society, preservative of other basic 

civil and political rights. Reynolds v. Sims, 377 U.S. 533,   

12 L.Ed.2d 506 (1964). 

10. The experience, reputation, and ability of the 
  

attorneys. The experience of counsel for plaintiffs are   

set out in the affidavits attached to this motion. Mr. Still 

and Mr. Blacksher are two of the most experienced civil rights 

attorneys in the State of Alabama, and Mr. Still has handled 

more reapportionment and voting rights cases than perhaps 

any other attorney in Alabama. 

11. The "undersirability" of the case. That civil 
  

rights cases such as the instant one are "undersirable'" to 

most attorneys is best evidenced by the relatively few members 

of the Mobile Bar who have brought such cases in this Court. 

 



a nn i a er a. lt At a ER ee SRL rt mt i 0 an, Hm sm EF iene st BR a ee ian 
  

  

12. None of plaintiffs' counsel has had a professional 
  

relationship with these plaintiffs prior to this action. 
  

13. Awards in similar cases. Plaintiffs refer the 
  

Court to the cases cited in the congressional history of the 

two attorneys' fees statutes. They assess attorneys' fees 

computed on the basis of the prevailing rate in the area for 

comparable litigation and then increased the amount by a 

"bonus" to take account of such factors as the contigency of 

the litigation, the skill and experience of counsel, the 

novelty and importance of the issues involved, and the 

excellence of the results achieved. Thus in Stanford Daily, 
  

supra, 64 F.R.D. at 688, the Court multiplied counsel's total 

hours, by an average rate of $50.00 per hour, then added a 

bonus of 26.6% of the computed amount. In Davis v. County of 
  

Los Angeles, supra, (a copy is attached to this motion) the 
  

court computed fees at the average rate of $60.00, $55.00, 

and $35.00 per hour for three different attorneys with varying 

experience, then increased their total award by a bonus factor 

of 17.6%. On the other hand, in Swann, supra, 66 F.R.D. at   

485-86, the Court did not apply a bonus factor, but awarded 

counsel a total of $175,000.00 at an average rate of 

approximately $65.00 per hour. 

WHEREFORE, plaintiffs pray that the Court will award them 

attorneys' fees computed as follows: One half of the hours 

attributable jointly to Bolden and Brown plus all of the hours 

attributable only to Bolden times the hourly rate for each 

attorney plus a bonus equal to 25% of the total 

  

Attorney «3x Joint Bolden Hourly Rate Total 

Edward Still 46.75 + 184.4 x. $75.00 = $17,336.25 
J.U. Blacksher 34.15 + 327.5 = 75.00 = 27,123.75 
Larry T.Menefee 210.0 + 263.7 = 60.00 = 28,422.00 
Gregory Stein -- 34.0 x 60.00 - 2,040.00 

Sub Total : : 
Bonus 18,730.50 

Fees for Services Rendered 

up to the date of this Motion $93,652. 50 

 



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Plaintiffs further pray that the Court award them their 

actual expenses incurred to date in the prosecution of this 

action computed as follows: All of the expenses attributed 

only to Bolden case and one-half of those expenses attributable 

jointly to Bolden and Brown. 

Expenses Bolden 3% Joint Total 

J. U. Blacksher $911.47 $5,045.52 $5,956.99 
Edward Still 224.80 387.83 612.63 

Respectfully submitted this the 8th day of December, 1976. 

CRAWFORD, BLACKSHER, FIGURES & BROWN 
1407 DAVIS AVENUE 

' MOBILE, ALABAMA 36603 

Y TE J 

By: \ JL J ita beltts, 
J« U. BLACKSHER 
L.ARRY MENEFEE 
GREGORY B. STEIN 

  

EDWARD STILL, ESQUIRE 
SUITE 601 - TITLE BUILDING 
2030 THIRD AVENUE, NORTH 
BIRMINGHAM, ALABAMA 35203 

JACK GREENBERG, ESQUIRE 
CHARLES WILLIAMS, III., ESQUIRE 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, N., Y. 10019 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

I do hereby certify that on this the 8th day of December, 

1976, I served a copy of the foregoing PLAINTIFFS' MOTION FOR 

AWARD OF COSTS AND ATTORNEYS' FEES upon counsel of record, 

Charles A. Arendall, Esquire, David Bagwell, Esquire, Post 

Office Box 123, Mobile, AL 36601 and S. R. Sheppard, Esquire, 

City of Mobile, Legal Department, Mobile, AL 36602, by depositing 

same in United States Mail, postage prepaid. 

™N/" // J 7 

AN Jolt sleatr i 
[rraraey for Plaintiffs 

/ 

  

Tw 

 



     
61 7-3-74 3 

       

      
      

      
      
           

  

Center, that the Act prohibits involuntary retirement. 

pursuant to a pension plan before age 65. As noted in text, 

plaintiff did not take this position in the district court. X 

s In his only afTidavit in opposition to defendants’ motion 

for summary judgment on the original complaint, plaintiff 

simply stated a belief that the 1970 resolution was designed 

to discriminate against older workers without indicating 

the source of this belief. : 

» As noted earlier, Judge Tyler dismissed this claim for 

want of subject matter jurisdiction, holding that 

§§302(c)3) and (e) of the Tait-Hartley Act, 29 USC. 

§ §186(c)(5) and (e), did not confer jurisdiction upoa the 

federal courts to entertain a suit alleging mal-adminis- 

tration—as distinguished from structural defects—in 

covered pension plans. Whether this was a proper char- 

           
    
    

                

Cases Cited "8 EPD 1...” : 
‘Davis v. County of Los Angeles - 

5047 

acterization of the law and what constitutes a structural 

defect raise difficult and complicated issues. Com 

Snider v. All State Administrators, Inc, 481 F.2d 387 (5th 

Cir. 1973), cert. denied, 94 S.Ct. 771 (1374), and Bowers v. 

Ulpiano Casal, Inc, 393 F.2d 421 (1st Cir. 1968), with 

Lewis v. Mill Ridge Coals, Inc., 298 F.2d 552, 558 (6th Cir. 

1962) (dictum), Lugo v. Employees Retirement Fund, 366 

F. Supp. 99 (E.D.N.Y. 1973), and Porter v. Teamsters 

Health Funds, 321 F. Supp. 101 (E.D. Pa. 1970). In view of 

the insubstantiality of plaintiil’s case on the merits, we 
express no opinion on these issues. 

10 The principal additional piece of evidence proffered was 

a letter from the president of the union to another retiree 

seeking to return to work. This letter says essentially that 

reinstatement of retirees is not practical given the financial 

structure of the pension plan. : 

  

  

Ed 

[19444] Van Davis 
Defendants. . — 

1974. » is 
N ie 

Attorney’s Fees—Amount of 

2000e-5(f). 

Back reference.—§ 2580. 

Title VII suit were employed 
different procedure for affixing attorney's 

i
n
e
 

Counsel, for Defendants. =. a 

g
e
 

judgment, both entered July 20, 1973 and 
reported at 7 E.P.D. 19088 that defendants 
had engaged in discriminatory employment 
practices based on race and national origin, 

violative of Title VII of the Civil Rights Act 
of 1964, as amended 42 U.S.C. 2000e et seq. 
(“Title VII”). : 

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plaintiffs thereafter filed a motion re- 

i questing an award of reasonable attorneys’ 

z] fees as provided for at 42 U.S.C. 2000e-5(f). 

= 3 Affidavits and briefs relevant to that motion 
were received from both plaintiffs and 

Nt 

Employment Practices 

et al, Plaintiffs v. County of Los Angeles 

* United States District Court, Central District of California. No. 73-63-WPG. June 5; 

: _ .° -. Title VII—Civil Rights Act of 1964 = ~~ = = = = 

Award—Factors to Consider.—An amount in 

addition to the attorney's fees awarded for the number of hours spent on a case which proved 

race and national origin bias in a local fire department was to be awarded based on the- 

difficulty of the issues in the case. the conduct of the case and the results achieved. Hourly 

compensation was to include compersation for time reasonably spent on issues which did not 

ultimately appear in the case or on which the suing party did not prevail. 42 U.S.C. See. 

A. Thomas Hunt, Mary D. Nichols, Center 
California and Stuart P. Herman, Los Angeles, California, for Pla intiffs. 

Gray. DJ: This court found in a finding 
of fact and conclusion of law and in a 

Pursuant to the terms of that judgment, 

et al." 

AER - - 
ae Abad SY org ~~ s LA 

—t NE 

~ oN 

Attorney’s Fees—Parties Entitled Thereto.—The fact that attorneys bringing a 

by a non-profit public interest law firm did not indicate a 

: fees. The public interest reasons for awarding 

te attorney’s fees in Title VII cases required their award regardless of the status of the 

EE § prevailing attorneys. 42 U.S.C. Sec. 2000e-5(f). : 

id Back reference.—% 2580. hay 

Awarding attorneys’ fees in (DC Cal. 1973) 7 EPD 19088. 

For Law In The Public Interest, Los Angeles, 

John H. Larson, Acting County Counsel, and William F. Stewart, Deputy County 

defendants. A brief amicus curiae in support 

of plaintiffs was submitted by the Los 

Angeles County Bar Association. A hearing. 

was held on March 25, 1974, at which expert 

testimony was received. This Court has 

reviewed and considered all affidavits, briefs, 

and evidence received, and makes the follow- 

ing Findings of Fact and Conclusions of 

Law: 

Findings of Fact 
1. Plaintiffs were the prevailing parties in- 

this action. The class represented by plain- 

tiffs has received and is receiving substantial 

and significant benefits as a result of the 

     

  

     
    

      

       
         

        
       

     
     

  

    

  

     

   
    

  

        

 



  

5048 Employment Practices Decisions 61 73-74: 

Davis v. County of Los Angeles 

commencement of this action and the final 
judgment herein, which provides that forty 
percent (40%) of all new firemen hired at 
the County of Los Angeles Fire Department 
shall be black and Mexican-American until 
such time as the percentage of blacks and 
Mexican-Americans in the fire department 
workforce is equal to the percentage of 
blacks and Mexican-Americans in the 
County of Los Angeles. 

2. Plaintiffs’ attorneys have submitted a 
bill for attorneys’ fees and disbursements 
herein, requesting compensation for the 
following number of hours: 
A. Thomas Hunt 
Stuart P. Herman . 99.60 
Mary Nichols 100.50 
The Court accepts as valid the number of 
hours billed by Messrs. Hunt and Herman. 
Because of deficiencies in the timekeeping 
practices of Ms. Nichols, the Court reduces. 
her time to 75 hours. : 

3. A. Thomas Hunt, plaintiffs’ lead attor- 

546.25 

  

ney, is an able and experienced litigator in 

the alfidavits received and the expert testi- 
mony heard, plaintiffs’ counsel will be 
compensated at the following rates per hour: 

i A. Thomas Hunt $69.00 
Stuart P. Herman $55.00 
Mary Nichols $35.00 

4. More than one of plaintiffs’ counsel 
attended the trial and several of the 
depositions. The Court finds that. =. certain 
amount of this constituted unnecessary 
duplication of effort by plaintiffs’ counsel. 
Therefore the award to plaintiffs’ counsel is 
reduced by $1,000.00. 

5. Plaintiffs’ counsel also have submitted 
a bill for $1,757.68 for disbursements, 
including transcripts, and a bill for 
$1,511.00 for expert witness fees. These 
charges were not challenged by defendants 
and are valid. 

6. Plaintiffs’ counsel also have submitted 
a bill for 967 hours of statistical analysis, 
legal research, transcript summarization, 
interviewing, and general assistance carried 
out by a law clerk and a paralegal assistant. 
Plaintiffs’ counsel request $10.00 per hour 
for these services. This Tequest 1s valid and 
appropriate and the plaintiffs’ counsel shall 
receive $9,670.00 for services performed by 
their paralegal and law clerk assistants. 

[Bonus Award] 
7. Plaintiffs’ counsel in this leved 

excellent results for the plaintiffs and the 
represented class. The nature of the case 
made it difficult to litigate. With these 
considerations in mind, as well as the 

  

  

Court’s observations of the conduct of plain- 
tiffs’ attorneys throughout the case, an 
award of fees above the normal hourly rates 
is appropriate; the appropriate amount to be 
awarded above the normal hourly rates is- 
$7,193.32. - 

8. The total amount to be awarded plain- 
tiffs as attorneys’ fees therefore totals 
$60,000.00, as follows: - 
(a) Attorneys’ Time 340,868.00 

Less duplication = 
=. $39,868.00 

1,757.68 
L511.00 

. 9,670.00 

(b) Disbursements 
(c) Expert Witness Fees : 
(d) Paralegal and Law Clerk 
(e) Result Charge 7.0 br 
TOTAL \ $60,000.00 

Conclusions of Law ~ 
1. The award of attorneys’ fees to the 

‘prevailing party in Title VII cases is 
appropriate. Attorneys’ fees are to be 
awarded in order that attorneys will be 
encouraged to act as “private attorneys-gen- 
eral” vindicating the strongly expressed 
Congressional policy against discrimination 
based on race and national origin. Newman 
v. Piggie Park Enterprises, [2 EPD 19834} 
390 U.S. 400, at 402 (1968); Schaeffer v. 
San Diego Yellow Cab, [4 EPD % 7882] 462 
F 2d 1002, at 1008 (9th Cir. 1972); 
Robinson v. Lorillard Corporation, [3 EPD 
18267] 444 F 2d 791, at 804 (4th Cir., 
1971); NAACP v. Allen, [4 EPD £7669] 
340 F Supp. 703 (M.D. Ala. 1972). 

2. The factors to be considered in 
computation of the appropriate amount of 
the award include the time spent by the 
attorneys, the difficulty of the case, the skill 
requisite to perform the legal service 
properly, the fee customarily charged in the 
locality for similar legal services, the results 
achieved, the experience, reputation, and 
ability of the attorneys performing the 
services. Code of Professional 
Responsibility, Disciplinary Rule 2-106; 
Clark v. American Marine Corp., [3 EPD 
18113] 437 F 2d 959 (5th Cir, 1971), 
adopting [2 EPD 710,228] 320 F Supp. 709 
(E.D. LA. 1970); Johnson v. Georgia High- 
way Express, Inc, (7 EPD 19079] 488 F 2d 
714, (5th Cir., 1974). “The amount of the 
award should not be such that it would dis- 
courage others from seeking to attack 
discriminatory practices.” Schaeffer v. San 
Diego Yellow Cab, (4 EPD ¢ 7882] 462 F 24 
1002, at 1008 (9th Cir, 1972). ply 

[Public Interest Firm} ~~ 
3. In determining the amount of the fees 

to be awarded, it is not legally relevant that 

©1974, Commerce Clearing House, Inc. 

1,000.00- 

7,193.32 

 



    

P= 

a 

61 7-3-74 Cases Cited "8 EPD 1...” 5049 
U.S. v. Masonry Contractors Assn. of Memphis, Inc. 

plaintiffs’ counsel other than Mr. Herman. 
are employed by the Center for Law In The 
Public Interest, a privately funded non- 
profit public interest law firm. It is in the 
interest of the public that such law firms be 
awarded reasonable attorneys’ fees to be 

computed in the traditional manner when 
its counsel perform legal services otherwise 
entitling them to the award of attorneys’ 
fees. Clark v. American Marine Corporation, 
[3 EPD 18113] 437 F 2d 959 (5th Cir, 
1971), adopting {2 EPD 110,228] 320 F 
Supp. 709, at 711 (E. D. La. 1870); Miller v. 
Amusement Enterprises, Inc., 426 F 2d 534 
at 538-9 (5th Cir., 1970); La Faza Unida v. 
Volpe, 57 FR.D. 94 at 93, Ft. 6 (ND. Cal, 
1972). ’ 
4. It also is not legally relevant that plain- 
tiifs’ counsel expended a certain limited 
amount of time pursuing certain issues of 
fact and law that ultimateiv did not become 
litigated issues in the case or upon which 
plaintiffs ultimately did not prevail. Since 
plaintiffs prevailed on the merits and 
achieved excellent resuits for the 
represented class, plaintiffs’ counsel are 
entitled to an award of fees for ail time 
reasonably expended in pursuit of the uit- 
mate result achieved in the same manner 
that an attorney traditionally is 
compensated by a fee-paying client for ait 
time reasonably expended on a matter. 

5. The determination of the amount of 
attorneys’ fees to be awarded necessarily in- 
volves a balancing of many factors. Johnson 
v. Georgia Highway Express, Inc, [7 EPD 

%9079] 488 F 2d 714, (5th Cir. 1974). The 
Court’s first hand observations of the 
conduct of the case also is an important 
consideration. United States v. Operating 
Engineers, Local Union 3, 6 EPD 18964, at 
p. 6034 (N.D. Calif., 1973). In this highly 
subjective area, “[t]here is no micrometer of 
reasonableness.” Clark v. American Marine 
Corporation, [2 EPD 110,228} 320 F Supp. 
709, at 712 (E.D. La., 1970), adopted at [3 
EPD 18113] 437 F 2d 959 (5th Cir. 1971). 
In arriving at the $60,000.00 award made in 
this case, the Court has attempted to balance 
the many relevant factors in as fair a way as 
possible. 

Judgment 
The Court in{fs"Judgment herein entered 

July 29, 1973, ruled that plaintiffs are 
entitled to an award of reasonable attorneys’ 
fees. In accordance with the Findings of Fact 
and Conclusions of Law Re Attoneys’ Fees 
made and entered simultaneously herewith, 

It is Hereby Ordered, Adjudged and 
Decreed that: 

1. Plaintiffs’ counsel herein are entitled to 
and shall recover from Dfendant County of 
Los Angeles the sum of $60,000.00 as 
attorneys’ fees, costs, and disbursements in 
this action. 

" 2. The payment to plaintiffs’ counsel shall 
be made within thirty days of the date of 
entry of this judgment. Interest shall not 
begin to accrue if Defendant County of Los 
Angeles makes the said payment within 
thirty days after entry of this Judgment He 
Attorneys’ Fees. 

  

[79445] United States of America, Plaintiff-Appellee v. Masonry Contractors 
Association of Memphis, Inc. et al., Defendants-Appellants. No. 73-1567. 

Same v. John H. Moore and Sons, Inc., Defendant-Appellant. No. 73-1568. 

United States Court of Appeals, Sixth Circuit. June 11, 1974. 

Division. 
On Appeal from United States District Court, Western District of Tennessee, Western 

Title VII—Civil Rights Act of 1964 

Court Action—Racial Discrimination—Construction Industry—Joinder of 
Parties.—In an Attorney General suit for race bias in the construction industry it was not 
necessary to join all the contractors employing bricklayers and tilesetters in the geographical 
area. It was sufficient to sue only the major contractors named in the suit and the federal 
civil procedure rules did not require joinder of any other contractors. 42 U.S.C. Sec. 2000e. 

Back reference.—% 2510. 

Attorney General Suit—Prerequisites.—The only prerequisite for a bias suit by the 

Employment Practices 

        

   

    

    

   

   

   

  

   

      

   
   
   
   
   
    

  

   
   
   

  

   
   

   
    

  

   
   
    

    

   

   

   
   

        

   

      

 



   
   

       

  

    

      

    
   
    

    

     

   
   

    
     

  

   

     

  

® » Se bo ap a 
- 1 % RY i > MoE E rd y Calendar He. 955 PE he 

04TH CONGRESS t SENATE Rivore os ills 

2d Session | No. 94-1011 EX AE san 

CIVIL RIGHTS ATTORNEYS FEES AWARDS ACT [+ ” TP 

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JUNE 29 (legislative day. June 18), 1U76.—Ordered to be printed     
  

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Mr. Tu~NnNEY, from the Committee on the Judiciary, 
submitted the following 

    

  

  

  

   
    

  

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at o'tes Sen: NG 5 Fae 

mie REPORT 2 
P* Zafsie v TAREE Sach 
5 a EE 3 [To accompany S. 2278] 1 . Bel, : 

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I a... The Committee on the Judiciary, to which was referred the bill kf ved. yl 
(S. 2273) to amend Revised Statutes section 722 (42 U.S.C. § 1988) Pr 
to ailow a i in its discretion, to award attorneys’ fees to a pre- 
veiling party In suits brought to enforce certain civil rights acts, having 

: considered the same , reports favorably thereon and recommends that 
the bill do pass. 

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The text of S. 2278 1s as follows: 

S. 2278 

Revised Statutes section 722 (42 U.S.C. Sec. 1983) is 
+ amended by adding the following: “In any action or pro- 

ceeding to enforce a provision of sections 1977 , 1978, 1979, 
& 1980 and 1981 of the Revised Statutes, or Title VI of the Civil 

Rights Act of 1964, the court, in its discr etion, may allow the 
prevailing party, other than the United States, a reasonable 
attorney’s fee as part of the costs.”. 

    
  

    

  
   

  

  

  

    
    

     

   

FERRE Purpose 

fu Ee This amendment to the Civil Rights Act of 1866, Revised Statutes 
1S . - Pa . . . . ’ 2’ 

AE Cea ia Section 722, gives the Federal courts discretion to award attorneys : 2 
bof Swe tote ve id fees to revailing arties in suits brought to enforce the civil rights Phas Xn 
ania oF APR Pp [=] ant 2 

D8 Rm oF | acts which Congress has passed since 1866. The purpose of this amend- SRA 
ab AE o : ment is to remedy anomalous gaps in our civil Tights laws created by 
gata 2 the United States Supreme Court's recent decision in Alyeska Pipeline pa 
Hi ESO a Service Co. v. Wilderness Society, 421 U.S. 240 (19253, and to achieve Eo 
Pg CREEL ery ] consistency in our civil rights laws. . Fe 2 
Rc Bo EX Be rg rh high i est SPA PRET . 

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History oF THE LEGISLATION 

The bill grows out of six days of hearings on legal fees held before 
the Subcommittee on the Representation of Citizen Interests of this 
Committee in 1973. There were more than thirty witnesses, including 
Federal and State public officials, scholars, practicing attorneys from 
many areas of expertise, and private citizens. Those who did not 
appear were given the opportunity to submit material for the record, 
and many did so, including the representatives of the American Bar 
Association and the Bar Associations of 22 States and the District 
of Columbia. The hearings, when published, included not only the 
testimony and exhibits, but numerous statutory provisions, proposed 
legislation, case reports and scholarly articles. 

In 1975, the provisions of S. 2278 were incorporated in a proposed 
amendment to 5 1279, extending the Voting Rights Act of 1965. 

The Subcommittee on Constitutional Rights specifically approved 
the amendment on June 11, 1975, by a vote of 8-2, and the full 
Committee favorably reported it on July 18, 1975, as part of S. 1279. 
Because of time pressure to pass the Voting Rights Amendments, the 
Senate took action on the House-passed version of the legislation. 
S. 1279 was not taken up on the Senate floor; hence, the attorneys’ 
fees amendment was never considered. 

On July 31, 1975, Senator Tunney introduced S. 2278, which is 
identical to the amendment to S. 1279 which was reported favorably 
by this Committce last summer. 

Shortly thereafter, similar legislation was introduced in the House 
of Representatives, including H.R. 9552, which is identical to S. 2278 
except for one minor technical difference. The Subcommittee on 
Courts, Civil Liberties and the Administration of Justice of the 
House Judiciary Committee has conducted three days of hearings at 
which the witnesses have generally confirmed the record presented to 
this Committee in 1973. H.R. 9552, the counterpart of S. 2278, has 
received widespread support by the witnesses appearing before the 
House Subcommittee. 

  

  

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STATEMENT 

The purpose and effect of S. 2278 are simple—it is designed to allow 
courts to provide the familiar remedy of reasonable counsel fees to 
revailing parties in suits to enforce the civil rights acts which Congress 
as passed since 1866. S. 2278 follows the language of Titles II and VII 

of the Civil Rights Act of 1964, 42 U.S.C. §§ 20002-3(b) and 2000e— 
5(k), and section 402 of the Voting Rights Act Amendments of 1975, 
42 U.S.C. §19731(e). All of these civil rights laws depend heavily upon 
private enforcement, and fee awards have proved an essential remedy 
if private citizens are to have a meaningful opportunity to vindicate 
the important Congressional policies which these laws contain. 

In many cases arising under our civil rights laws, the citizen who 
must sue to enforce the Ro has little or no money with which to hire a 
lawyer. If private citizens are to be able to assert their civil rights, and 
if those who violate the Nation’s fundamental laws are not to proceed 
with impunity, then citizens must have the opportunity to recover 
what it costs them to vindicate these rights in court. 

    
   

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- Congress 9... this need when it made gots in for 

such fee shifting in Titles IT and VII of the Civil Rights ACt of 1964: 

When a plaintiff brings an action under [Title II] he cannot 

recover damages. If he obtains an injunction, he does so not 

for himself alone but also as a ‘‘private attorney general,” 

vindicating a policy that Congress considered of the highest 

priority. If successful plaintiffs were routinely forced to bear 

their own attorneys’ fees, few aggrieved parties would be in & 

osition to advance the public interest by invoking the 

Injunctive powers of the Federal courts. Congress therefore 

enacted the provision for counsel fees—* * * to encourage 

individuals injured by racial discrimination to seek judicial 

relief under Title II.” Newman Vv. Piggie Park Lnterprises, 

Inc., 390 U.S. 400, 402 (1968). 

The idea of the ‘‘private attorney general” is not a new one, nor 

are attorneys’ fees a new remedy. Congress has commonly authorized 

attorneys’ fees in laws under which “private attorneys general” play 2 

significant role in enforcing our policies. We have, since 1870, author- 

izad fee shifting under more than 50 laws, including, among others, the 

Securities Exchange Act of 1934, 15 U.S.C. §§ 78i(c) and 78r(a), the 

Servicemen’s Readjustment Act of 1958, 38 U.S.C. § 1822(b), the 

Comrounications Act of 1934, 42 U.S.C. § 206, and the Organized 

Crime Control Act of 1970, 18 U.S.C. § 1964(c). In cases under these 

laws, fees are an integral part of the remedy necessary to achieve 

compliance with our statutory policies. As former Justice Tom Clark 

found, in a union democracy suit under the Labor-Management 

Reporting and Disclosure Act (Lendrum-Griffin), 

Not to award counsel fees in cases such as this would be 

tantamount to repealing the Act itself by frustrating its basic 

= * * * Without counsel fees the grant of Federal 

tion is but an are * * *. Hall v. Cole, 412 
an empty gestur 

1973), quoting 462 F. 2d 777, 780-81 (2d Cir. 1972). 

emedy of attorneys’ fees has always been recognized as par- 
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ticularly appropriate in the civil rights area, and civil rights and 

2 

attorneys’ fees have always been closely interwoven. In the civil rights 

area, Congress has instructed the courts to use the broadest and most 

3 A effective remedies available to achieve the goals of our civil rights 

Eg EE fdws.! The very first attorneys’ fee statute was a civil rights law, the 

AS FIRS XT Soy Enforcement Act of 1870, 16 Stat. 140, which provided for ¢torneys’ 

a fees in three separate provisions protecting voting richts.? 

Modern civil rights legislation reflects a heavy reliance on attorneys’ 

fees as well. In 1064, seeking to assure full compliance with the Civil 

Rights Act of that year, we authorized fee shifting for private suits 

establishing violations of the public accommodations and equal 

employment provisions. 42 U.S.C. §§ 20002-3(b) and 2000e=5(k). 

Since 1064, every major civil rights law passed by the Congress has 

included, or has been amended to include, one or more fee provisions. 

— 

1 For example, the Civil Rights Act of 1866 directed Federal courtsfto ‘use that combination of Federal law, 

common law and State law as will be best adapted to the object of the civil rights laws.” Brown v. City of 

Aferidian, Mississippi, 356 F. a 602, 505 (5th Cis. 1966). Seo 42 U.S.C. § 1988; Lefton v. City of Hattiesburg, 

Mississippi, 333 F. 2d 280 (5th Cir. 1084). 
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3 The causes of action established by these provisions wero eliminated in 1894. 28 Stat. 33. 

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E.g., Title VIII of the Civil Rights Act of 1868, 
the Emergency School Aid Act of 1972, 20 U.S. 
Employment Amendments of 1972, 42 U.S.C. § 
Voting Rights Act Extension of 1975, 42 U.S.C. § 19731(e). 

These fee shifting provisions have 
vigorous enforcement of modern civil rights legislation, while at the 

were Important enough to merit fee shifting under the “private 
attorney general” theory. The Court expressed the view, in dictum, 
that the Reconstruction Acts did not contain the necessary congres- 
sional authorization. This decision and dictum created anomalous gaps 
in our civil rights laws whereby awards of fees are, according to Alyeska, 

   
suit brought under 42 U.S.C. § 1931, which proteéts similar rights but 
involves fewer technical prerequisites to the Sling of an action. Iees are 
allowed in a housing discrimination suit brought under Title VIII of the 
Civil Rights Act of 1968, but not in the same suit brought under 42 
U.S.C. §1982, 2 Reconstruction Act protecting the same rights. Like- 
wise, fees are allowed in a suit under Title IT of the 1964 Civil Rights 
Act challenging discrimination in a private restaurant, but not in suits 
under 42 U.S.C. § 1983 redressing violations of the Federal Constitu- 
tion or laws by officials sworn to uphold the laws. 

This bill, 5. 2278, is an appropriate response to the AZyeske decision. 
t 1s limited to cases arising under our civil rights laws, a category 

of cases in which attorneys fees have heen traditionally regarded as 
appropriate. It remedies gaps in the language of these civil rights 
laws by providing the specific authorization required by the Court in 
Alyeska. and makes our civil rights laws consistent. 

It is intended that the standards for awarding fees be generally the 
same as under the fee provisions of the 1964 Civil Rights Act. A party 
seeking to enforce the rights protected by the statutes covered by 
S. 2278, if successful, “should ordinarily recover an attorney's fee 
unless special circumstances would render such an award uninst.” 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). 

3 These civil rights cases aro too numerous to cite here. Sce, c.g.. Sims v. Amos 340 F. Supp. 691 (M.D. Ala. 1972), af’d, 469 U.S. 942 (1972); Slenford Daily v. Zurcher, 366 F. Supp. 18 (N.D. Cal. 1973); and cases cited in Alreske Pipeline, supre, at 1. 46. Many of the relevant cases are collected in “‘ITearings on the Effect of Legal Fess on the Adequacy of Xepreseutation Before the Subcoin. on Representation of Citizen Interests of the Senate Cornm. on the Judiciary,” 93d Cong., 1st sess., pt. ITT, at pp. 888-1024, and 1060-62. 4 In the large minjorily of cases the party or parties seeking to enforce such rights wiil be the plaintitls and/or plainlifkintervenors. However, in the procedural posturo of sone cases, tho partivs seeking to enforce ple may be the defendants and/or defendant-intervenors. See, ¢.8., Shetley v. Araemer, 234 U.S. 

  

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C. § 1617; the Equal 
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Such “private attorneys general’ should not be deterred from bringing 
good faith actions to vindicate the fundamental rights here involved 
7 the pros of having to pay their opponent’s sel fees should 

they lose. Richardson v. Hotel Corporction a 332 F. Supp. 
519 (E.D. La. 1971), aff'd, 468 F. 2d 951 (5th Cir. 1972). (A fee award 
to a defendant's employer, was held unjustified where a claim of racial 
ciseriniination, though meritless, was made in zood faith.) Such a 

fg . . N . SC ————— party. if nnsuccesstul. could be assessed his opponent's Tee only where 

  

it is shown that his suit was cicarly frivolous, vexatious. or brought for 
  

hargss ses. United States Steel Corp. v. United States, 385 
F. Supp. 346 (W.D. Pa. 1974), afi’d, 9 E.P.D. 9 10,225 (3d Cir. 1975). 
This bill thus deters frivolous suits bv authorizing an award of 
attorneys’ fees against a party shown to have litigated in “bad faith” 
under the guise of attempting to enforce the Federal rights created 
by the statutes listed in S. 2278. Similar standards have been followed 
not only in the Civil Rights Act of 1964, but in other statutes providing 
for attorneys’ fees. E.g., the Water Pollution Control Act, 1972 IIS, 
Code Cong. & Adm. News 3747; the Marine Protection Act, Id. at 
4249-50; and the Clean Air Act, Senate Report No. 91-1196, 91st 
Cong., 2d Sess., p. 483 (1970). See also Hutchinson v. William Barry, 
Irc., 50 F. Supp. 292, 298 (D. Mass. 1943) (Fair Labor Standards 
Act). 

In appropriate circumstances, counsel fees under S. 2278 may be 
awarded pendente lite. Sec Bradley v. School Board of the City of 
Ruchmona, £16 U.S. 656 (1974). Such awards are especially appropriate 
where a party has prevailed on an important matter in the course of 

» even when he ultimatelv does not prevail on all issues. litigation. 
See Bradley, supra; Mills v. Electric Auto-Lite Co., 396 U.S. 375 

0). Moreover, for purposes of the award of counsel fees, parties 
7 be considered to have prevailed when they vindicate rights 

2 consent judgment or without formally cbtaining relief. 
Kopet v. Esquire Realty Co., 523 F. 2d 1005 (2d Cir. 1975), and cases 
cited thersin; Parham v. Southwestern Bell T. elephone Co., 433 IF. 2d 

(8th Cir. 1970); Richards v. Griffith Rubber Mills, 300 F. Supp. 
338 (D. Ore. 1969); Thomas v. Honeybrook Mines, Inc, 428 F. 2d 
981 (3d Cir. 1970); Aspira of New York, Inc."v. Board of Education 

    

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smn or not the agency or government is a named party). 
  

        

3 See, e.z., “Hearings on the Eflcct of Legal Tees,” supra. 
$ Fairmont Creamery Co. v. Minnesota, 275 U.S. 163 (1927). 
? Proof that an official had acted in bad faith could also rencler him liable for fees in hisitdividual capacity, 

under the traditional bad ith standard recoznizad by the Supreme Court in Aly-2ka. Sco Class v. Norton, 
S05 F. 2d 123 (2d Cir. 1974); Doe v. Poclker, 515 F. 2d 541 (8th Cir. 1975). 

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governed by the same standards which prevail in other types of equall 
: fom lex Fe 2 otigation, such as £00trust cases and not be reduced 

   

     
   

ecause the rights involvaq may be no lary in nature. The 
appropriate standards, see Johnson Y. Georgia Highway Express, 
488 F. 2d 714 (5th Gir. 1974), Ir 4 ed in such cases as 
Stanford Daily v. Zurcher, 64 T'.R.D. 680 (N.D. Cal T9742 ; Dams v. 
County of Los Angeles, SE.PD. « 9444 (C.D. Cal. 1974); and Swann v. 
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1975). These cases have resulted in fees whic] are adequate to attract. 
ompetent coun but whic not pr ¢ windfalls to attorneys. 
In computing the fee. counsel for prevailing parties should be paid, as 
is traditional wit attorneys compensated by a fee-paying client, “for 
all time reasonably expended on 2 matter.” Dayis, supra; Stanford 
Daily, Supra, at 634. 

: his bill ‘creates no startling new remedy—it only meets the 

  

  

  

Federal courts are to continue the practice of awarding attorneys’ 
fees which had been going on for years prior to the Court's May 
ecision. It does not change the statutory provisions regarding the 

Protection of civil rights except as it provides the fee awards which P" : 
Bre necessary if citizens are to be able to effectively secure compli- fore 
&nce with these existing statutes. There are very few provisions in our ; 

  

OL governmental action and, in some cases, on private action through 
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. ‘le courts. If the cost of private enforcement actions becomes too   
  

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Citizen cannot enforce, we must maintain the traditionally effective 
remedy of fee shifting in these cases.     

  

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REVISED STATUTES § 722, 42 u:s.c, § 1983 | 

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  protection of all persons in the United States in their civil rights, and 

yfor their vindication, shall be exercised and enforced in conformity 
with the laws of the United States, so far as such laws are suitable 
to carry the same into effect; but in al cases where they are not 
adapted to the object, or are deficient in the provisions necessary to 
furnish suitable remedies and punish offenses against law, the common 
law, as modified and changed by the constitution and statutes of the 
tate wherein the court having jurisdiction of such civil or criminal 

cause is held, so far as the same’ is not inconsistent with the Consti- 
tution and laws of the United States, shall be extended to and govern 
the said courts in the trial and disposition of the cause, and, if it is 

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vu Rights Act of 1964, the court, in its discretion, may allow the pre- 
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The Congressional Budget Office, in n letter dated March 1, 1978, has advised the Judiciary Committee that: “Pursuant to Section 403 of the Congressional Budget Act of 1974, the Congressional Budget Office has reviewed S. 2278, 2 bill to award attorneys’ fees to prevailing parties in civil rights suits. 
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  4tx CONGRESS H : i “25 H, R. 15460 + IN. 

  

IN Tid HOUSE OI REPRESIHNTATIVES 

Skrreder 8, 1976 

Mr. DranaN (for himself, Mr. Kasrenareier, Mr. Daxterson, Mr. Babirro, 
Mr. Parrison of New York, Mr. Ramssack, and Mr. Wiceins) introduced 
the following bill; which was referred to the Committee on the Judiciary 

    

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> Pog fre way 
  

A BILL 
. To allow the awarding of attorney’s fees in certain civil 

rights cases. 

3. Be it enacted by the Senate and House of Llepresenta- 

2 tes of the United States of dmerica in Congress assembled, 

3 “That this Act may be cited as “The Civil Rights Attorney’s 

4 Tees Awards Act of 1976”. 

Sec. 2. That the Revised Statutes section 722 (42 dd od     U.S.C. 1988) is amended by adding the following: “In 

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1 title IX of Public Law 92-318, or title VI of the Civil Rights 

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: 941 Coxcress | HOUSE OF REPRESENTATIVES ! _ Report 
2d Session No. 94-1538 
    

THE CIVIL RIGHTS ATT ORNEY'S FEES AWARDS ACT 
"OF 1976 

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SeEpTEMBER 15, 1976.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

  

Mr. DRINAN, from the Committee on the Judiciary, 

. i submitted the following 

: | REPORT 
[Including cost estimate of the Congressional Budget Office] 

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[To accompany LR. 13460] 

The Committee on the Judiciary, to whom was referred the bill 
(H.R. 15460) to allow the awarding of attorney’s fees in certain civil 
rights cases, having considered the same. report favorably thereon 
without amendment and recommend that the bill do pass. 

Purpose oF THE Bin 

H.R. 15460, the Civil Rights Attorney's Fees Avionds Act of 1976, 
authorizes the courts to award reasonable attorney fees to the prevail- 
ing party in suits instituted under certain civil rights acts, Under 
existing law, some civil rights statutes contain counsel fee provisions, 
while others do not. In order to achieve uniformity in the remedies 
provided by Federal laws guaranteeing civil and constitutional rights, 
1t 1s necessary to add an attorney fee authorization to those civil rights 
acts which do not presently contain such a provision. 

4 The effective enforcement of Federal civil rights statutes depends 
? largely on the efforts of private citizens. Although some agencies of 

the United States have civil rights responsibilities, their authority and 
resources are limited. In many 7 instances where these laws are violated, 
it is necessary for the citizen to initiate court action to correct the 
illegality. Unless the judicial remedy is full and complete, it will 
remain a meaningless right. Because a vast majority of the victims 
of civil rights violations cannot afford legal counsel, they are unable 
to present ‘their cases to the courts. In authorizing an award of reason- 
able- attorney’s fees, H.R. 15460 is designed to give such persons 
effective access to the: judicial process where their griev ances can be 
resolved according to law. 

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2 

  

STATEMENT 

A. NEED FOR THE LEGISLATION 

In Alyeska Pipeline Service Corp v. Wilderness Society, 421 U.S. 240 

(1975), the Supreme Court held that federal courts do not have the 

power to award attorney’s fees to a prevailing party unless an Act of 

Congress expressly authorizes it. In the Alyeska case, the plaintifls 

sought to prevent the construction of the Alaskan pipeline because of 

the damage it would cause to the environment. Although the plaintiffs 

succeeded in the early stages of the litigation, Congress later over- 

turned that result by legislation permitting the construction of the 

pipeline. Nonetheless the lower federal courts awarded the plaintiffs 

their attorney's fees because of the service they had performed in the 

public interest. The Supreme Court reversed that award on the basis 

of the “American Rule”: that each litigant, victorious or otherwise, 

must pay for its own attorney. 

Although the Alyeska case involyed only environmental concerns, 

the decision barred attorney fee awards m a wide range of cases, 

including civil rights. In fact the Supreme Court, in footnote 46 of 

the Alyeska opinion, expressly disapproved a number of lower court 

decisions involving civil rights which had awarded fees without 

statutory authorization. Prior to A lyeska, such courts had allowed feces 

on the theory that civil rights plaintifls act as © rivate attorneys 

general” in eliminating discriminatory practices AL den affecting 

all citizens, white and non-white. In 1968, the Supreme Court had 

approved the “private attorney general” theory when it gave a gener- 

ous construction to the attorney fee provision in Title II of the Civil 

Rights Act of 1964. Newman v. I’iggie Park Enterprises, Inc., 390 

U.S. 400 (1968).2 The Court stated: 

If (the plaintiff) obtains an injunction, he does so not 

for himself alone but also as a “private attorney general,” 

vindicating a policy that Congress considered of the highest 

importance. / J at 402. 

ITowever, the Court in Alyeska rejected the a plication of that 

theory to the award of connsel fees in the absence of statutory author. 

ization. It expressly reaflimed, however, its holding in Newnan that, 

in civil rights cases where counsel fees are allowed hy Congress, “the 

award should be made to the successful plaintiff absent exeeplionnl 

circumstances.” Alyeska case, supra al, 262. 
In the hearings conducted by the Subcommittee on Courts, Civil 

Liberties, and the Administration of Justice, the testimony indicated 

that civil rights litigants were suffering very severe hardships because 

of the Alyeska decision. Thousands of dollars in fees were auto- 

matically lost in the immediate wake of the decision. Representatives 

of the Lawyers Committee for Civil Rights Under Law, the Council 

  

1 The Court In Alycia recognized three very narrow exceptions to the rule (1) where n 

“eammon fund” is involved: (2) where the iitigapt’s conduct Is vexatious, hargssing, or 

tn bad faith: and (3) where a court order Is willfully dirobeyed. 

21n Traficante v. Metropalitan Life Insurance Co., 400 U.8. 205 (1972), the Bupreme 

Conrt applied the “private attorney general” theory In according broad standing’ tg pec- 

fons injured by discriminatory housing practices under tlie Federal Fhir Housing Act, 42 

U.S.C. 30601-3619. 

  

  
  

   



  

  
  

3 

for Public Interest Law, the American Bar Association Special Com- 
mittee on Public Interest Practice, and witnesses practicing in the field 
testified to the devastating impact of the case on litigation in the 
civil rights area. Surveys disclosed that such plaintifls were the 
hardest Lit by the decision.? The Committee also received evidence 
that private lawyers were refusing to take certain types of civil rights 
cases because the civi] rights bar, already short of resources, could not 
afford to do so. Because of the compelling need demonstrated by the 
testimony, the Committee decided to report a bill allowing fees to pre- 
vailing parties in certain civil rights cases. 

1t hid be noted that the United States Code presently contains 
oyer fifty provisions for attorney fees in a wide variety of statutes. 
See Appendix A. In the past few years, the Congress has approved 
such allowances in the areas of antitrust, equal credit, freedom of in- 
formation, voting rights, and consumer product safety. Although tho 
recently enacted civil rights statutes contain provisions permitting 
the award of counsel fees, a number of the older statutes do not. It is to 
these provisions that much of the testimony was directed. 

B. HISTORY OI H.R. 15460 

At the time of the Subcomittee hearings on October 6 and 8, and 
Dee. 3, 1975, three bills were pending which dealt expressly with coun- 
sel fees in civil rights cases: IL.R. 7828 (same as ILI. 8220); H.R. 
7969 (same as IL.R. 8742) ; and IR. 9552. ILR. 7828 and IL.R. 9552 
would allow attorney fees to be awarded in cases brought under spe- 
cific provisions of the United States Code, while H.R. 7969 would 
permit such awards in any case involving civil or constitutional 
rights, no matter what the source of the claim. ILR. 7828 was stated 
in mandatory terms; H.R. 9552 and H.R. 7969 allowed discretionary 
awards. The Justice Department, through its representative, Assistant 
Attorney (leneral Rex Lee of the Civil Division, expressed its support 
of ILI. 95562. Hearings held in 1973 by the Senate Judiciary Sub- 
committee on the Representation of Citizen Interests also highlighted 
the need of the public for legal assistance in this and other areas. 

In August, 1976, the Judiciary Subcommittes on (fourts, Civil 
Liberties, and the Administration of Justice concluded that a bill 
to allow counsel fees in certain civil rights cases should he reported 
favorably in view of the pressing need. On August 20, 1976, the Sub- 
committee approved ILR. 9552 with an amendment in the nature of 
a substitute because it was similar to S. 2278, which had cleared tho 
Senate Judjciary Committee and was awaiting action by the full 
Senate. The amendment in the nature of a substitute sought to conform 
H.R. 9552 technically to S. 2278; no substantive changes were made. 
It was then reported unanimously by the Subcommittee. 
On September 2, 1976, the full Committee approved IL.R. 9552, as 

amended, with an amendment offered by Congresswoman Ioltzman 
and accepted by the Committee. That amendment added title IX of 
Public Law 92-318 to the substantive provisions under which success-: 
ful litigants could be awarded counsel fees. The Committee then 

  

Balancing the Scales of Justice: Financing Pustie Interest Law in America (Coun- «il for Public Interest Law, 1970), pp. 238, 304, 1 

 



   4 

ordered that a elean bill be reported to the TTouse. JLR. 15460, the 
clean bill, was introduced on September 8 and approved pro forma 
by the Committee on September 9, 1976.4 

C. SCOPE OF TIIE BILL 

11.R. 15460, the Civil Rights Attorney’s Fees Awards Act of 1976, 
would amend Section 722 (42 U.S.C. 1988) of the Revised Statutes to 

allow the award of fecs in certain civil rights cases.® It would apply to 

actions brought under seven specific sections of the United States 

.Code.® Those provisions are: Section 1981, 1982, 1983, 1985, 1986, and 

2000d ot seq. of Title 42; and Section 1681 et seq. of Title 20. See 
Appendix B for full texts. The affected sections of Title 42 generally 
yrohibit denial of civil and constitutional rights in a variety of areas, 

iil the referenced sections of Title 20 deal with discrimination on 
Fcount of sex, blindness, or visual impairment in certain education 

programs and activities.’ : 
More specifically, Section 1981 is frequently used to challenge em- 

ployment, discrimination based on race or color. Johnson v. Railway 
Express Agency, Inc., 421 U.S. 454 (1975).8 Under that section the 
Supremo Court recently held that whites as well as blacks could bring 
suit alleging racially discriminatory employment practices. McDonald 
v. Santa Fe Trail Transportation Co., ——— U.S. ——, 96 S. Ct. 
2574 (1976). Section 1981 has also been cited to attack exclusionary 
admissions policies at recreational facilities. Z'illman v. Wheaton- 
Haven Recreation Ass'n, Ine., 410 U.S. 431 (1973). Section 1982 is 
regularly used to attack discrimination in property transactions, such 

4 the purchase of a home. Jones v. Alfred IH. Mayer Co., 392 U.S. 409 
(1968).9 

Section 1983 is utilized to challenge official discrimination, such as 
racial segregation imposed by law. Brown v. Board of I'ducation, 347 
U.S. 483 (1954). It is ironic that, in the landmark Brown case chal- 

lenging school segregation, the plaintiffs could not recover their attor- 
0 fees, despite the significance of the ruling to eliminate oflicially 

a 

8 Apart from the addition of Title IX of Public Law 02-318, the only difference holwern 

H.R. 9552 and the clean bill (IL.R. 15460) are technical, not affecting tho substance, mada 

on ndvice of the House Parlinmentarian and staff and legislative counsel, 

5 The bill amends the Revised Statutes rather than the United Htates Code boeanne THe 

42 12 not codified, and thus Is not “the law of the United Staten,” 

8 In accordance with applicable decisions of the Supreme Court, the bill In Intended to 

anply to all eases pending on the date of enactment as well au all future eases, Headley v. 

Richmond School Board, 416 U.S. 096 (1974). 

“770 the extent a plaintiff joins a clalm under one of the atntules enumerated In TLR, 

15460 with 1 elnlin {hat does not allow attorney fees, that plalntifr, if It prevails on the 

hon-fee claim. 1s entitled to a determination on the other elntm for the purpose of awarding 

connsel fees. Morales v. Haines, 486 I. 24 880 (7th Cir. 1073). In some instnnces, however, 

the claim with fees may involve n constitutional question which the courts are reluctant to 

resolve if the non-constittuional claim lis dispositive. Hagans v. Lavine, 415 1.8. 528 

(1074). In such cases, If the elatm for which fees may be awarded meets the ‘“‘substan- 

tinlity” test, see Hagansg v. Lavine, supra; I'nfted Mine Warkers v. Gibbs, 383 U.S, 715 

(1966), attorney's fees may be allowed even though the court declines to enter Judgment for 

The plaintiff on that claim, go long as the plaintiff prevalls on the non-fee clalm arising out 

of a “common nucleus of operative fact” United Mine Workers v. Gibbs, supra at 725. 

SACIth respect to the velntlonship hetween Sectlon 1081 and Title VIT of the Clvil 

Riehts Act of 1064, the Tonse Committee on Wdventlon and Labor has noted that “the 

remedies avallable to the individual under Title VII are co-extensive with the Indlvidunt’s 

rieht to gue under the provisions of {the Civil Rights Act of 1RG6, 42 1.8. § 1081, and 

that the two procedures augment each other and are not mutually exclusive!’ TLR. Rept. 

No. 92-238. p. 19 (92nd Cong. Ist Sess. 1071). That view was adopled by the Supreme 

Court In Johnson v. Railway Express Agency, rupra. 

, "As with Section 1981 aud Title VII, Section 1982 and Title VIIT of the Clvil Rights 

Act of 1968 are complemeniary remediés, swith similarities aud differences in coverage 

and enforcement mechanism. See Jones v. Mayer Co., supra. 

LY 

  

  

  
   



  

  

  

5 

imposed segregation. Section 1983 has also been employed to challenge 
unlawful oflicial action in non-racial matters. For example, in 77 arper 
v. Virginia State Board of Elections, 383 U.S. 663 (1966), indigent. 
plaintiffs successfully challenged as unconstitutional the imposition: 
of a poll tax in state and local elections. In Monroe v. Pape, 365 U.S. 
167 (1961), a private citizen sought damages against local officials for. 
an unconstitutional scarch of a private residence. See also Zlrod v. Burns, U.S. , 96 S. Ct. 2673 (June 28, 1976) (discrimination 
on account of political affiliation in public employment); 0’Connor 
v. Donaldson, 422 U.S. 563 (1975) (terms and conditions of institu- 
tional confinement). 

Section 1985 and 1986 are used to challenge conspiracies, either 
public or private, to deprive individuals of the equal protection of the 
laws. Sco Griffin v. Breckenridge, 403 U.S. 88 (1971). The bill also 
covers suits brought under Title IX of Public Law 92-318, the Lduca- 
tion Amendments of 1972, 20 U.S.C. 1681-1686. Title IX forbids spe- 
cific kinds of discrimination on account of sex, blindness, or visual 
impairment in certain federally assisted programs and activities re- 
lating to education. IT? inally FLR. 15460 would also apply to actions 
arising under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d-2000d~6.10 ; : : 
_ Title VI prohibits the discriminatory use of I'ederal funds, requir- 
Ing recipients to administer such assistance without regard to race, 
color, or national origin. Lau v. Nichols, 414 U.S. 563 (1974) ; Hills 
Vv. Gautrean, U.S. y 96 S. Ct. 1538 (April 20, 1976) ; Adams 
v. llichardson, 480 I. 2d 1159 (D.C. Cir. 1973) ; Bossier Parish School 
Zoard v. Lemon, 370 TF. 24 847 (5th Cir. y cert. denied, 388 U.S. 911 
(1967) ; Laufman v. Oakley Building and Loan Co., 408 TF. Supp. 489 
(S.D. Ohio 1976). 

      

  

D. DESCRIPTION OI II.R. 154060 

As noted earlier, the United States Code presently contains over fifty 
provisions for the awarding of attorney fees in particular cases. They may be placed generally into four categories: (1) mandatory awards only for a prevailing plaintiff; (2) mandatory awards for any provail- Ing party; (3) discretionary awards for a prevailing plaintifl's and (4) discretionary awards for any prevailing party. Ioxisting statutes allowing fees in certain civil rights cases generally fall into the fourth 
category. Keeping with that pattern, H.R. 15460 tracks the languago 
of the connsel feo provisions of Titles IT and VII of the Civil Rights Act of 1964," and Section 402 of the Voting Rights Act Amendments of 1975.12 The substantive section of ILR. 15460 reads as follows: 

. In.any action or proceeding to enforce a provision of sec- - 
tions 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, 
title IX of Public Law 92-318, or title VI of the Civil Rights 
Act of 1964, the court, in its discretion, may allow tho pre- 
vailing party, other than the United States, a reasonable 
attorney’s fee as part of the costs. 

  

10 7Pitle VI of the Clvil Rights Act of 1064 Is the only substantive title of that Act which does not contain a provision for aflorney fees. AZ TLS.CL 20000-3(h) (Tile 11) : 42 U.S.C 2000e-5 (k) (Title VII). 1242 U.8.C. 1073(e) (Sectlon 402). 

 



6G 

  

"Tha three key features of this attoriiey’s fee pitovision are: (1) that 

awards may be'made to any “previiling party”; (2) that fees are to be 

allowed in the discicetion of tlie courts hd (3) thdt awatds are to be 

Uipeasaitable”. Ddeause other statutes follow this dpproach; the courts 

ate familiar witlt these terms and in fact have reviewdd; examined; 
and ihterpreted them at some length. 

1. Prevailing party 

Under ILE. 15460, cither a prevailing plaintiff or a prevailing 

defendant is eligible to receive an award of fees. Congress has not 

always been that generous. In about two-thirds of the existing statutes, 

such as the Clayton Act and the Packers and Stockyards Act, only 

yrevailing plaintiffs may recover their counsel fees.!* This bill folloivs 

» more modest approach of other civil rights acts. 
1t should be noted that when the Justice Department testified in 

support of IL.IL. 9552, the piccedessor to TT.R. 15460, it suggested an 

amendment to allow recovery only to prevailing plaintiffs. Assistant 

Attorney General Tee thought, the phrase “prevailing party” inight / 

have a “chilling effect” on civil Ls plaintiffs, discouraging them 

from initiating law suits. The Cominittee was very concerned with 
the potential impact such a phrase might have on persons seeking to 
vindicato these important rights under Federal law. In light of existing 

case law under similar provisions, however, the Committee concludec 
that tho application of current standards to this bill will significantly 

reditee the potentially adverse affect on the victims of unlawful conduct 
who seek to assert their federal claims. 

On two occasions, the Supreme Court has addressed the question of 
the proper standard for allowing fees in civil rights cases. In Newman 

v. Piggie Park Enterprises, Ine., 390 U.S. 400, 402 (1968) (per cu- 
rinm), a case involving racial discrimination in a place of public ac- 

commodation, the Court held that a prevailing plaintiff “should ordi- 
narily recover an attorney’s fee unless special circumstances would 
render such an award unjust.” : 

Five years later; the Court applied the saie standard to the attor- 

ney’s fee provision contained in Sectiori 718 of the Kinetgencty Sehool 

Aid Act of 1972,20 U.S.C. 1617: Northeross v. Memphis 1} oard of I'du- 

éntiong 412 U.S. 427 (1973) (per curiam). Tho rationals of the rule 

rests upon the recognition that nearly all plaintiffs in these suils are 
disadvantaged persons who are the victims of unlawful discrimination 

or unconstitutional condict. It would be unfaif to impose itpon them 

the additional Ihirden of counsel fees when They seek to invoke the 

jurisdiction of tho federal courts. “If successful plaintiffs were rou- 
tinely forced to bear their owi attorneys’ fees; few dggrieved parties 
would be in a position to advance the public interest by invoking the 
injunctive powers of the federal courts.” Newman v. Piggie Park En- 
terprises, Inec., supra at 402. : 

Consistent with this rationale, the couits have developed a different 
standard for awarding fees to revailing defendants becaus they do 

“not appear before the court cloaked in a manile of public interest.” 
United States Steel Corp. v. United States, 519 T.2d 359, 364 (3rd 
Cir. 1975). As noted earlier such litigants may, in proper circum- 

  

@15 U.S.C. 15 (Clayton Act) ; 7 U.S.C. 210(f) (Packers and Stockyards Act). 

    

    

  
 



  
  

7 

stances, recover their counsel fees under IT.R. 15460. To avoid the po- 
tential “chilling effect” noted by the Justice Department and to ad- 
vance the public interest articulated by the Supreme Court; however, 
the courts have developed another test for awarding fees to prevailing 
defendants. Under the case law, such an award may be made only if 
the action is yexatious and frivolous, or if the plaintiff has instituted 
it solely “to harass or embarrass” the defendant. United States Steel 
Corp. v. United States, supra at 364. If the plaintiff is “motivated by 
malice and vindictiveness,” then the court may award counsel fees to 
the prevailing defendant. Carrion v. Yeshiva University, 535 Tr.2d 
722 (2d Gir. 1976). Thus if the action is not brought in bad faith, such 
fees should not be allowed. See, Wright v. Stone Container Corp. 524 
F.2d 1058 (8th Cir. 1975) ; see also Richardson v. Ilotel Corp of Amenr- 
ica, 332 TF. Supp, 519 (I.D.La. 1971), aff'd without published oPin- 
ton, 468 11.24 951 (5th Cir. 1972). This standard will not deter plaintifls 
from seeking relief under these statutes, and yet will prevent their 
being used for clearly unwarranted harassment purposes. 

With respect to the awarding of fees to prevailing defendants, it 
should further be noted that governmental officials are f requently 
the defendants in cases brought under the statutes covered by ILR. 
15460. See, e.g., Brown v. Board of I ducation, supra; Gautreauz v. 
1Lills, supra; O’Connor v. Donaldson, supra. Such governmental enti- 
ties and officials have substantial resources available to them through 
funds in the common treasury, including the taxes paid by the plain- 
tiffs themselves. Applying the sanie standard of recovery to such de- 
fendants would further widen the gap between citizens and govern- 
ment officials and would exhcerbate the inequality of litigating 
strength. The gredtér resources available to governments provide an 
ample base rom whieh 160s can be awarded to the prevailing plaintiff 
In_suits against governmental officials or enfifies.’™ The plirase “prevailing party” is not intended To be limited fo the 
victor only after entry of a final judgment following a full trial on 
the merits. It would also include a litigant who succeeds even if the 
case is concluded prior to a full evidentiary hearing before a judee 
or jury. If the litigation terminates by consent. decree, for example, 
it. would be proper to award counsel fees. Incarcerated Men of A oe 
County v. Fair, 507 17.2d 281 (6th Cir. 1974) 3 Parker v. Matthews, 
411 I. Supp. 1059 (D.D.C. 1976) 5 Aspiva of New York, Ine. v. Board 
of Education of the City of New York, 65 I".R.D. 541 (S.D.N.Y. 
1975). A “prevailing” party should not be penalized for secking an 
out-of-court settlement, thus helping to lessen docket congestion, 
Similarly, after a complaint is filed, n defendant might voluntarily 
cease the unlawful practice. A court should still award fees oven 
though it might Ey as a matter of equity, that no formal ole 
such as an injunction, is needed. L.g., Parham v. Southwestern Bell 
Telephone Co., 433 I7.2d 421 (8th Cir. 1970) 5 Brown v. Gaston County 
Dyeing Machine Co., 457 1.24 1377 (4th Cir.), cert denied, 409 U.S. 
982 (1972) : sév also Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 
1971) 5 Kwers vi. Dwyer, 358 U.S. 202 (1938). 

A prevailing defendant may also recover its fees when thé plaintiff seeks and oblaing a voluhtary dismissil of a groundess complaint, 
thor course; the 11th Amendment 13 not a bar to tlie awarding of counsel fees agninst stdfe governments. Fitzpatrick v, Bitzer, ~—~—1.8. +; 06 K.CL. 2666 (June 28, 1976). 

  

  

 



8 

  

Corcoran v. Columbia Broadcasting System, 121 F.2d 575 (9th Cir. 
1941), as long as the other factors, noted earlier, governing awards 
to defendants are met. Finally the courts have also awarded counsel 
fees to a plaintiff who successfully concludes a class action suit even 
though that individual was not granted any relief. Parham v. South- 
western Bell Telephone Co., supra; eed v. Arlington Hotel Co., [nc., 
476 [F.2d 721 (8th Cir. 1973). 

Ifurthermore, the word “prevailing” is not intended to require the 
entry of a final order before fees may be recovered. “A district court 
must have discretion to award fees and costs incident to the final dis- 
osition of interim matters.” Bradley v. Richmond School Board, 416 

U.S69G, 723 (1074) 5 sco also Mills v. Electric Auto-Lite Co., 396 
U.S. 375 (1970). Such awards pendente lite are particularly important 
in_protracted litigation, where it is difficult to predicate with any 
certainty the dafe upon which a final order will be entered. While 
the courts have not yet formulated precise standards as to the appro- 
priate circumstances under which such interim awards should be made, 
the Supreme Court has suggested some guidelines. “(T)he entry of 

any order that. determines substantial rights of the parties may be 
an appropriate occasion upon which to consider the propricty of an 
award of counsel fees. . . .” Bradley v. Richmond School Board, supra 
at 722 n. 28. : 

2. Judicial discretion 
The second key feature of the bill is its mandate that fees are only 

to be allowed in the discretion of the court. Congress has passed many 
statutes requiring that fees be awarded to a prevailing party.’* Again 
the Committeo adopted a more moderate approach here by leaving the 
matter to the discretion of the judge, guided of course by the caso 
law interpreting similar attorney’s fee provisions. This approach was 
supported by the Justice Department on Dec. 31, 1975. The Committeo 
intends that, at a Hi ening Judicd standards, to which ample 

  

  

reference is made in this report, should guide the courfs in construing 
IH. Ix. 15460: aE a 

3. Reasonable fees 
The third principal element of the bill is that the prevailing party 

is entitled to “reasonable” counsel fees. The courts have enumerated a 
number of factors in determining the reasonableness of nwnrds under 
similarly worded attorney’s fee provisions, In Johnson v. Georgia 
Highway Fapress, Ine., 488 11.2d 714 (5th Cir. 19747), Tor exainple, the 
court listed twelve factors to be considered, including the time and 
labor required, the novelty and difliculty of the questions irrvolved, the 
skill needed to present the case, the customary fee for similar work, 
and the amount received in damages, if any. Accord: Evans v. Shera- 
ton Park Hotel, 503 T.24 177 (D.C. Cir. 1974) ; sce also United States 
Steel Corp. v. United States, supra. : 

Of course, it should be noted that the mere recovery of damages 
should not preclude the awarding of counsel fees. Under the anti- 

————— 

  

  

— 

  

B.g.. 7 UKS.C. 409q(b) (Perishable Agricultural Commodities Act) : 15 T.8.C. 1640(n) 
(Truth-in-Tending Act) ; 46 U.S.C. 1277 (Merchant Marine Act of 1036) ; 47 U.S.C. 200 
(Communications Act of 1934). 1 uh 

18 Similarly, a prevailing party Is entitled to counsel fees even if represented by an orga- 
nization or if the party is itself nn organization. Incarcerated Mon of Allen Cotnty v. I'nir, 
supra; Torres v. Sachs, 69 .R.D. 343 (S.D.N.Y, 1076), af'd, ——e—-= N24 =~ (2d Cir., 
June 25, 1070) : Fairley v. Patterson, 493 12d 598 (5th Clr. 1074). 

    
  

  

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9 

trust laws, for example, a plaintiff may recover treble damages and 
“=I the court is required to award attorney fees. The same principle 
should apply here as civil rights plaintiffs-should-not_le. singled _out, 
for different and less favorable treatment. Furthermore, while dam- 
ages are theoretically available under the statutes covered by ILRI. 
15460, it should be observed that, in some eases, immunity doctrines 
and special defenses, available only to public officials, preclude or se- 
verely limit the damage remedy.!? Consequently awarding counsel fees 
to prevailing plaintiifs in such litigation is particularly important and 
necessary if Federal civil and constitutional rights are to be adequate- 
ly protected. To be sure, in a large number of cases brought under the 
provisions covered by ILR. 15460, only injunctive relief 1s sought, and 
prevailing plaintifls should ordinarily recover their counsel fees. 
Newman v. Piggie Park Enterprises, Ine., supra; Northeross v. Mem- 
phis Board of £iducation, supra. : 

The application of these standards will insure that reasonable fees 
are awarded to attract competent counsel in cases involving civil and 
constitutional rights,” while avoiding windfalls to attorneys. The 
effect of FL.R. 15460 will be to promote the enforcement of the Fed- 
eral civil rights acts, as Congress intended, and to achieve uniformity 

  

in those statutes and justice for all citizens. 

- Oversigt 

Oversight of the administration of justice in the federal court 
system is the responsibility of the Committee on the Judiciary. The 
hearings on October 6 and 8 and Dec. 3, 1975, focused on specific 
pending legislation. However, they did have an oversight purpose, as 
well, since the impact of the Supreme Court's Alyeska decision on 
the public and the related issue of equal access to the courts were 
subjects of the hearing. 

Committe Vore 

ILR. 15460 was reported favorably by a voice vote of the Coni- 
mittee on September 9, 1976. Twenty-seven members of the Commit- 
tee were present. 

STATEMENT or THE COMMITTEE ON GOVERNMENT OreraTioNs 

No statement has been received on the legislation from the House 
Committee on Government Operations. 

; [ 

STATEMENT oF TIE CoNarssioNar Buparr Orrren 

Pursuant to clause 7, rule XIII of the Rules of the ITouso of Rep- 
resentatives and section 403 of the Congressional Budget Act of 1974, 
the Committee estimates there will be no cost to the federal government, 

  

17" Wood v. Strickland, 420 U.S. 308 (1975) ; Scheuer v. Rhodes, 416 U.S. 232 (1974) ; Pierson v. Ray, 380 U.8. 547 (1007). 

II. Rept. 94-1558-—7 G2 

 



10 

Conaness or rue Untren STATES, 
Conarrsstonan Bupgrr Orrice, 

Washington, D.C., September 7, 1976. 

  

Hon. Prrer W. Ronixo, 
Chairman, Committee on the Judiciary, U.S. House of Represenatives, Rayburn House Office Building, Washington, D.0. 
Dear Me. Cridiraran : Pursuant to Section 403 of the Congressional Budget Act of 1974, the Congressional Budget Office has reviewed the Civil Rights Attorney’s Fees Award Act of 1976, a bill to award attorney's fees to prevailing parties in civil riehts suits to enforce Sections 1977, 1978, 1979, 1980 and 1981 of the Revised Statutes, Title IX of P.I.. 92-318 or Title VI of the Civil Rights Act of 1964. Based on this review, it appears that no additional cost to the gov- ernment would be incurred as a result of enactment of this bill. Sincerely, 

Avice M.Rivux, 
Director. INFLATIONARY TatPACT STATEMENT 

The legislation will have no foreseeable inflationary impact on prices or costs in the operation of the national economy. : 

SECTION-BY-SECTION A NALYSIS 

Section 1 
Section 1 merely recites the short title of the legislation, “The Civil Rights Attorney’s Ices Awards Act of 197 5”, 

Section 2 
Section 2 amends section 722 (42 U.S.C. 1988) of the Revised Stat- utes by adding at the end of that section the following language: 

In any action or proceeding to enforce a provision of see- tions 1977, 1978, 1979, 1980, 1981 of the Revised Statutes, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the provail- ig party, other than the United States, a reasonable attorney's fee as part of tho costs. 

Cianars IN Existing Law Mabe ny TIE Bir, as Ruvoresn 
In compliance with clause 3 of rule XIIT of the Rules of the House of Representatives, changes in existing Inw made by the bill, as re- ported, are shown as follows (new mattor is printed in italic, existing law in which no change is proposed is shown in roman) : . 

SECTION 722 OF THE REVISED STATUTES 
Src. 722. The jurisdiction in civil and criminal matters conferred on the district and circuit courts by the provisions of this Title, and of Title “CrviL Rranrs,” and of Title “Cranes,” for tho protection of all persons in the United States in their civil rights, and for their vindi- 

  

  

  
    

  

 



  

    

    
! 

11 

cation, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the cont having jurisdiction of such civil or eriminal cause is held, so far as the same 1s not inconsistent, with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the inflic- tion of punishment on the party found guilty. /n any action or pro- ceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may al- low the revailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 

 



  

j
o
 

a
 

   



Arrenpix At 

FEDERAL STATUTES AUTHORIZING THE AWARD OF ATTORNEY FEES 

1. Federal Contested Election Act, 2 U.S.C. 896. | 2. Freedom of Information Act, 5 U.S.C. 562(a) (4) (E). 3. Privacy Act, 5 U.S.C. 552a(g) (3) (BB). 
4. Federal Kmployment Compensation For Work Injuries, 5 U.S.C. 8127. 
5. Packers and Stockyards Act, 7 U.S.C. 210(f). ® 6. Perishable Agrienltural Commodities Act, 7U.8.C. 499g (Db), (c). 7. Agricultural Unfair Trade Practices Act, 7 U.S.C. 2305 (a), (c). 8. Plant Variety Act, 7 U.S.C. 2565. 
9. Bankruptcy Act, 11 U.S.C. 104 (a) (1). 
10. Railroad Reorganization Act of 1935, 11 U.S.C. 205 (¢) (12). 11. Corporate Reorganization Act, 11 U.S.C. 64 L, 642, 643, and 64 L. 12. Federal Credit Union Act, 12 1.8.C. 1786(0). 
13. Bank Iolding Company Act, 12 U.S.C. 1975. 
14. Clayton Act, 15 1U1.S.C. 15. 
15. Unfair Competition Act (ITC), 15 11.8.C. 72. 
LG. Securities Act of 1933, 15 U.S.C. T7k(e). 
17. Trust Indenture Act, 15 U.S.C. Tiwww (a). 
18. Securities Tixchange Act of 1934, 15 [1.S.C. T8i(e), 78r(a). 19. Jewelers Tall-Mark Act, 15 U.S.C. 298 (b), (c) and (d). 20. 'Truth-in-Lending Act (Fair Credit Billing Amendments), 15 U.S.C. 1640(a). 
21. Fair Credit Reporting Act, 15 U.S.C. 1681 (n). 
22. Motor Vehicle Information and Cost Savings Act, 15 U.S.C. 1918(a), 1989 (a) (2). 
23. Consumer Product Safety Act, 15 1.8.C. 2072, 2073, 
24. Tederal Trade Improvements Act (Amendments), 15 U.S.C. 2310(a) (5) (d) (2). 
25. Copyright Act, 17 U.S.C. 1116. 
26. Organized Crime Control Act of 1970, 18 11.S.C. 1964 (¢). 
27. Education Amendments of 1972, 20 11.S.C. 1617. 
28. Mexican American Treaty Act of 1950, 22 U.S.C. 2771-21. 29. International Claim Settlement Act, 22 1.S.C. 1623 (1). 
30. Ifederal Tort Claim Act, 28 U.S.C. 2678. 
31. Norris-LaGuardia Act, 29 U.S.C. 107. 
32. Fair Labor Standards Act, 29 U.S.C. 216(b). 
33. Employees Retirement Income Security Act, 29 U.S.C. 1132(g). 34. Labor Management Reporting and Disclosure Act, 29 11.8.C. 431(c), 501 (bh). 
3h. Longshoremen and arbor Workers Compensation Act, 33 U.S.C. 928. 

1 This list 1s compiled from Information submitted to the Subcommittee by the Council for Public Interest Im wand the Attorneys’ I'ee Project of the Lawyers’ Committee for Civil Rights Under Law. 

(13) 

 



  

14 

36. Water Pollution Prevention and Control Act, 33 U.S.C. 
1365(d). 

37. Ocean Dumping Act, 33 U.S.C. 14 15(g) (4). 38. Deepwater Ports Act of 1974, 33 U.S.C. 1515, 39. Patent Infringement Act, 35 U.S.C. 285. 0. Servicemen’s Group Life Insurance Act, 38 U.S.C. 84 (zg). 
41. Servicemen’s Readjustment Act, 38 U.S.C. 1822(b). 42. Veterans Benefit Act, 38 1.8.0. 3404 (c). : 43. Safe Drinking Water Act, 42 U.S.C. 300j-8(d). 44. Social Security Act (Amendinents of 1965), 42 U.S.C. 406(b). 
45. Clean Air Act (Amendments of 1970), 42 U.S.C. 1857h-2, 
46. Civil Rights Act of 1964, Title II, 49 U.S.C. 2000a-3 (b). 47. Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000c-5 (k). 
48. Legal Services Corporation Act, 42 U.S.C. 2096e (f), 49. Traip Housing Act of 1968, 42 U.S.C. 3612(c). 50. Noise Control Act of 1972,49 U.S.C. 4911 (d). pil 51. Railway Labor Act, 45 U.S.C. 153 (p). 52. Merchant Marine Avot of 1936, 46 U.S.C. 1997, 

  

53. Communications Act of 1934, 47 11.S.C. 206. 
oP] 

54. Interstate Commerce Act, 49 U.S.C. 8, 16(2), 908(b), 908(e), 
and 1017 (b) (2). 

 



J.S.C. 

Areenpix B 

STATUTES COVERED OR AMENDED BY H.R. 15460 

1. Revised Statutes § 1977 (42U.S.C. § 1981). 
§1981. Equal rights under the law 

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce con- bracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other, 
R.S. § 1977. 

2. Revised Statutes § 1978 (42 U.S.C. § 1982). 
§1982. Property rights of citizens 

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchasc, lease, sell, hold, and convey real and personal property. R.S. § 1978. 
3. Revised Statutes § 1979 (42U.S.C. § 1983). 

§ 1983. Civil action for deprivation of rights 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to ba subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or Immunities secured by the Constitution and laws, shall bo liable to tho party injured in an action at law, suit in equity, or other proper pro- ceeding for redress, 

R.S. § 1979. 
4 Revised Statutes § 1980 (42 U.S.C. § 1085). 

§ 1985. Conspiracy to interfere with civil rights—Preventing ofli- cer from performing duties 
(1) Tf two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under {he United States, or from discharging any duties thereof; or to induce by like means any oflicer of the United States to leave any State, district, or place, where his duties as an oflicer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the Jawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; ; 

(15) 

 



16 

  

Obstructing justice; intimidating party, witness, or juror 

(2) If two or more persons in any State or Territory conspire to 
deter, by force, intimidation, or threat, any party or witness in any 
court of the United States from attending such court, or from testi- 
fying to any matter pending therein, freely, fully, and trathfully, or 
to injure such party or witness in his person or property on account 
of his having so attended or testified, or to influence the verdict, pre- 
sentment, or indictment of any grand or petit juror in any such court, 
or to injure such juror in his person or property on account of any ver- 
dict, presentment, or indietment lawfully assented to by him, or of 
his being or having been such juror; or if two or more persons con- 
spive for the purpose of impeding, hindering, obstructing, or defeat- 
ing, in any manner, the due course of justice in any State or Territory, 
with intent to deny to any citizen the equal protection of the laws, or 
to injure him or lus property for lawfully enforcing, or attempting to 
enforce, the right of any person, or class of persons, to the equal pro: 
tection of the laws; 

Depriving persons of rights or privileges 

(3) If two of more persons in any State of Territory conspire or 
zo in disguise on the highway or on the premises of another, for the 
purpose of depriving, either directly or indirectly, any person or class 
of persons of the equal protection of the laws, or of equal privileges and 
immunities under the laws; or for the purpose of preventing or hin- 
dering the constituted authorities of any State or Territory from giv- 
ing or securing to all persons within such State or Territory the equal 
protection of the laws; or if two or more persons conspire to prevent 
by force, intimidation, or threat, any citizen who is lawfully entitled 
to vote, from giving his support or advocacy in a legal manner, toward 
or in favor of the A of any lawlully qualified person as an elector 
for President or Vice President, or as a Member of Congress of the 
United States; or to injure any citizen in person or property on account 
of such support or advocacy ; in any case of conspiracy set. forth in this 
section, if one or more persons engaged therein (5 or enuse to he done, 
any act in furtherance of the object of such conspiracy, wherchy 
another is injured in his person or property, or deprived of having anil 
exercising any right or privilege of a citizen of the United States, the 
party so injured or deprived may have an action for the recovery of 
damages, occasioned by such injury or deprivation, ngninst any ono 
of more of the conspirators. 

3.5. § 1980. . 

5. Revised Statutes § 198 (42 11.S.C. § 1986). 

§ 1986. Same; action [er neglect to prevent 
Every person who, having knowledge that any of the wrongs con- 

spired to be done, and mentioned in section 1985 of this title, are 
J to be committed, and having power to prevent. or aid in prevent- 
ing the commission of the same, neglects or refuses sé to do, if such 
wrongful act be committed, shall be liable to the party injured, or 
his legal representatives, for all damages caused by such wrongful 
act, which such person by reasonable or could have prevented; 
and such damages may be recovered in an action on the case; and 

   



17 

“any number of persons guilty of such wrongful neglect or refusal 

may be joined as defendants in the action; and if the death of any 

party be caused by any such wrongful act and neglect, the legal rep- 

resentatives of the deceased shall have such action therefor, and 

may recover not exceeding $5,000 damages therein, for the benefit 

of the widow of tho deceased, if there be one, and if there be no 

widow, then for the benefit of the next of kin of the deceased. But 

no action under the provisions of this section shall be sustained 
which js not commenced within one year after the cause of action has 
accrued. 

R.S. § 1981. 
6. Revised Statutes § 722 (42 U.S.C. § 1988). 

§1988. Proceedings in vindication of civil rights 

The jurisdiction in civil and eriminal matters conferred on the 

district courts by the provisions of this chapter and Title 18, for the 

protection of all persons in the United States in their civil rights, 

and for their vindication, shall be exercised and enforced in con- 

formity with the laws of the United States, so far as such laws are 

suitable to carry the same into effect; but in all cases where they 

are not adapted to the object, or are deficient in the provisions nec- 

essary to furnish suitable remedies and punish offenses against law, 

the common law, as modified and changed by the constitution and 

statutes of the State wherein the court having jurisdiction of such 

civil or criminal cause is held, so far as the same is not inconsistent 
with the Constitution and laws of the United States, shall be ex- 

tended to and govern the said courts in the trial and disposition of 

the cause, and, if it is of a criminal nature, in the infliction of pun- 
ishment on the party found guilty. 

R.S. § 122. 
7. Title IX of Public Law 92-318 (20 U.S.C. § 10681-1686), as 

amended. 

§1681. Sex—DProhibition against discrimination; exceptions 

(a) No person in the United States shall, on the basis of sex, be 

excluded from participation in, be denied the benefits of, or be sub- 

jected to discrimination under any education program or nelivity re- 

ceiving Federal financial assistance, except that: 

Classes of Tiducational Institutions Subject to I’rohibition 

(1) in regard to admissions to educational institutions, this section 

shall apply only to institutions of vocational education, professional 

education, and graduate higher education, and to public institutions 

of undergraduate higher education; 

Educational Tustitutions Commencing Planned Change in Admissions 

(2) in regard to admissions to educational institutions, this section 

shall not apply (A) for one year from June 23, 1972, nor for six years 

after June 23, 1972, in the case of an educational institution which has 

begun the process of changing from being an institution which admits 

only students of one sex to being an institution which admits students 

of both sexes, but only if it is carrying out a plan for such a change 

 



18    
which is approved by the Commissioner of Education or (BB) for seven 
years from the date an educational institution begins the process of 
changing from being an institution which admits only students of only 
ono sex to being an institution which admits students of both sexes, but 
only if it is carrying out a plan for such a change which is approved by 
the Commissioner of Education, whichever is the later; 

Educational institutions of religious organizations with contrary 
religious tenets 

(3) this section shall not apply to an educational institution which 
is controlled by a religious organization if the application of this sub- 
section would not be consistent with the religious tenets of such 
organization; 

Lducational institutions training individuals for military services or 
merchant marine 

(4) this section shall not apply to an educational institution whose 
prunary purpose is the training of individuals for the niilitary services 
of the United States, or the merchant marine; 

Public educational institutions with traditional and continuing 
admissions policy 

(5) in regard to admissions this section shall not apply to any public 
institution of undergraduate higher education wlich is an institution 
that traditionally and continually from its establishment has had a 
policy of admitting only students of one sex; and 

Social fraternities or sororities; voluntary youth service organizations 

(6) This séction shall not apply to inembetship practices— 
(A) of a social fraternity or social sorority which is exempt 

from taxation under séction #501 (a) of Tithe 26, the nctivo mni- 
bership of which consists primarily of students in attendance ab 
an institution of higher education, or : X 

(B) of the Young Men’s Christian Association, Young Wom- 
en’s Christian Association, Girl Scouts, Boy Scouts, Camp Fire 
Girls, and volunfary youth service organizations which are so 
exempt, the membership of which has traditionally been limited 
to persons of one sex and principally to persons of less than nine- 
teen years of age. 

Preferential or disparate treatment becmise of imbalance in partici- 
pation or receipt of Federal benefits; statistical evidence of im- 
balance 

(b) Nothing contained in subsection (a) of this section shall be 
mterpreted to require any educational institution to grant preféren- 
tial or disparate treatment to the members of one sex on account of 
an imbalance which may exist with respect to the total number or 
prsehian of persons: of that stx participating in or receiving the 
encfits of any federally supported program or activity, in comparison 

  

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34 

19 

with the total number or percentage of petsons of that sex in any com- 
munity. State, section, or other area: Provided. That this subsection 

shall not be construed to prevent the consideration in any hearing 

or proceeding under this chapter of statistical evidence tending to 

show that such an imbalance exists with respect to the paiisipstion 

in, or receipt of the benefits of, any such program or activity by the 

members of one sex. : : 

Todueational Institution Defihed 

(¢) For purposes of this ehapess an educational institution means 

any public of private preschool, elementary, ot secondary school, or 
any institution of vocational, professional, or higher education, ex- 

cept that in the case of an educational institution composed of more 

than one school, college, or department which are administratively 

separate units, such terms means each such school; college, or 
department. 

§1682. Federal administrative enforcement; report to congres- 

sional committees 
Each Federal department and agency which is empowered to ex- 

tend Federal financial assistance to any education program or activ- 

ity, by way of grant, loan, or contract other than a contract of 

insurance or guaranty, is authorized and directed to effectuate the pro- 
visions of section 1681 of this title with respect to such program or 
activity by issuing rules, regulations, ot orders of general applic- 
ability which shall be consistent with achievement of the objectives 

of the statute authorizing the financial assistance in connection with 
which the action is taken. No such rule, regulation, or order shall be- 
come effective unless and until approved by the President. Compliance 
with any requirement adopted pursuant to this section may be eof- 
fected (1) by the termination of or refusal to grant or to continue 
assistance under such program or activity to any recipient as to whom 
there has been an express finding on the record; after opportunity 
for hearing, of a failure to comply with such requirement, but suclt 

termination or refusal shall be limited to the particular political en- 
tity, or part thercof, or other recipient as to whom such a finding has 

been made, and shall be limited in its effect to the particular program, 

or part thereof, in which such noncompliance has been so found, or 

(2) by any other means authorized by law: Provided, however, That 
no such action shall be taken until the department or agency concerned 
has advised the appropriate person or persons of the failure to comply 
with the requirement and has determined that compliance cannot be 

secured by voluntary means. In the case of any action terminating, or 
refusing to grant or continue, assistance because of failure to comply 
with a requirement imposed pursuant to this section, the head of the 
Federal department or agency sliall file with the committees of the 

ITouse and Senate having législative jurisdiction over the program or 
activity involved a full written report of the circumstances and the 
grounds for such action. No such action shall become effective until 
thirty days have elapsed after the filing of such report. 

 



  

20 
Public Law 02-318, Title IX, § 902, June 23, 1972, 86 Stat, 374, §1683. Judicial review | | I s Any department op agency action {aken pursuant to section 1682 of 
this title shall be subject to ‘such judicial review as may otherwise be 
provided by law for similar action taken by such depa rtment or agency 
on other grounds, In (he case of action, not otherwise subject to judicial 
review, terminating op refusing to grant or to continue financial assist- 
Anee upon a finding of failure to comply with any requirement im- 
posed pursuant to section 1682 of this title, any person aggrieved 
(including any State or political subdivision thereof and any agency 

of either) may obtain judicial review of such action Im accordance 
with chapter. of Title 5, and suel action shall not be deemed com- 
mitted to unreviewable agency discretion within the meaning of sec- 
tion 701 of that Title, 
Public Law 92-318, Title IX, § 903, June 23,1972, 86 Stat. 374. § 1631, Blindness or visual impairment » prohibition against dis- 

cririnaton 
No person in the United States shall, on the ground of blindness or 

severely impaired vision, be denied admission in any. course of study 
by a reci pient of Federal financial assistance for any education pro- 
Sram or activity, hu, nothing herein shal] be construed to require any 
such institution to Provide any special services to such person because 
of his blindness op visual Impairment, Public Law 92-318, Title IX, § 904, June 23,1972, 86 Stat. 375. § 1685. Authorty undey other laws unaffected | Nothing in this chapter shall add to or detract from any existing 
authority wit], respect to any brogram or activity undep which Fed- 
eral financial assistance is extended by way of a contract of insurance 
or guaranty, 
Public Law 92-318, Title IX, § 905, June 23, 1972, 86 Stat. 375. § 1686. Interpretation wip respect to living facilities Notwithstanding anything to the contrary contained in (is chapter, 
nothing contained herein shall bo consti] lo prohibit, nny edy- 
cational institution receiving funds uney this Act, from maintaining 
Separate living facilities for the different sexes, Public Law 92-318, Title IX, § 907, June 23,1972, 86 Stat. 376. 8. Title VI of the Civil Rights Act of 1964 (Publ. 1, 88-352, as 
amended), (42 U.S.C; 2000d througl d-6). 

SUBCHAPTER Ve—FEDERALLY ASSISTED PROGRAMS § 20004. Prohibition against exclusion from participation in, de- 
mal of benefits of, and discrimination under Federally 
assisted programs on ground of race, color, or national 
origin 

No person in the United States shall, on the ground of race, color, 

» 
. Pr national origin, ho excluded from participation in, be denied the 

enefits of, or ho subjected to discrimination under any program or 
activity receiving Federal financial assistance, (Pub, I. 88-852, title 
VI, § 601, July 2, 1964, 78 Stat. 252.) 

   



  

21 

§ 2000d-1. I'ederal authority and financial assistance to programs 
or activities by way of grant, loan, or contract other 
than contract of insurance or guaranty: rules and 
regulations; approval by President; compliance with 
requirements; reports to congressional committees; 
effective date of administrative action 

Lach Federal department and agency which is empowered to extend 
Federal financial assistance to any program or activity, by way of 
grant, loan, or contract other than a contract of insurance or guaranty, 
1s authorized and directed to effectuate the provisions of section 2000d 
of this title with respect to such program or activity by issuing rules, 
regulations, or orders of general applicability which shall be consist. 
ent with achievement of the objectives of the statute authorizing the 
financial assistance in connection with which the action is taken. No 
such rule, regulation, or order shall become effective unless and until 
approved by the President. Compliance with any requirement adoptg 
pursuant to this section may be effected (1) by the termination of 
refusal to grant or to continue assistance under such program or ac- 
tivity to any recipient as to whom there has been an express finding 
on the record, after opportunity for hearing, of a failure to comply 
with such requirement, Dut such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such non- compliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate per- son or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the Ilouse and Senate having legisla- tivo jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after tl filing of such report. (Pub. I. 88-352, title VI, § 602, July 2, 196. 
78 Stat. 252.) 

§2000d-2. Judicial review; Administrative Procedure Act. 
Any department or agency action taken pursuant to section 2000-1 

of this title shall be subject to such judicial review as may otherwise be 
provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise subject to judi- 
cial review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement im- 
posed pursuant to section 2000d-1 of this title, any person aggricved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with section 1009 of Title 5, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of that section. 
(Pub. 1. 88-352, title VI, § 603, July 2,1964,78 Stat. 253.) . 

i



   22 

§2000d-3. Construction of provisions not to authorize adminis- trative action with respect to employment practices except where primary objective of Federal financial assistance is to provide employment 
Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employment agency or labor organization except where a primary objective of the Federal financial assistance is to provide employment. (Pub. L, 88-352, title VI, § 604, July 2, 1964, 78 Stat, 253.) 

§ 2000d-4. Iederal authority and financial assistance to programs : or activities by way of contract of insurance or guaranty 
Nothing in this subchapter shall add to or detract from any existing @:ority with respect to any program or activity under which Federal financial assistance is extended by way of a contract of insurance or guaranty. (Pub. I. 838-352, title VI, § 605, July 2, 1964, 78 Stat. 253.) § 2000-5. Prohibited deferral of action on applications by local educational agencies seeking federal funds for alleged noncompliance with Civil Rights Act. 
The Commissioner of Education shall not defer action or order ac- tion or'order action deferred on any application by a local educational agency for funds authorized to be appropriated by this Act, by the Elementary and Secondary Education Act of 1965, by the Act of Sep- tember 30, 1950 (Public Law 874, Eighty-first Congress), by the Act of September 23, 1950 (Public Law 815, Eighty-fivst Congress), or by the Cooperative Research Act, on the basis of alleged noncompliance with the provisions of this subchapter for more than sixty days after notice is given to such local agency of such deferral unless such local agency is given the opportunity for a hearing as provided in section 2000d-1 of this title, such hearing to be held within sixty days of such notice, unless the time for such hearing is extended by mutual consent of such local agency and the commissioner, and such doferral shall not, ontinue for more than thirty days after the close of nny such hearing winless there hiis been an express finding on the record of nel) hearing that such local educational agency has failed to comply with the pro- visions of this subchapter: Provided, That, for the purpose of de- termining whether a local educational agency is in complipnee with this ms By compliance by such agency with a final order or judg- ment of a Federal court for the desegregation of the school or school system operated by such agency shall be deemed to be in compliance with this subchapter, insofar as the matters covered inthe order or judgment are concerned, (Pub, I. 80-750, title I, § 182, Nov. 3, 1966, 0 Stat, 1209; Pub, I.. 90-247, title I, § 112, Jan. 2, 1968, 81 Stat. 787). § 2000d-6. Policy of United States as to application of nondis- crimination provisions jn schools of local educational agencies 

(a) Declaration of uniform policy. 
It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 and 

e 

   



§ 
Tw
 

y'
Y 

23 

section 182 of the Ilementary and Secondary Iducation Amendments 
of 1966 dealing with conditions of segregation by race, whether do jure 
or de facto, in the schools of the local educational agencies of any State 
shall be applied uniformly in all regions of the United States what- 
ever the origin or cause of such segregation. 

(b) Nature of uniformity 

Such uniformity refers to one policy applied uniformly to de jure 
segregation wherever found and such other policy as may be provided 
pursuant to law applied uniformly to de facto segregation wherever: 
found. 

(c) Prohibition of construction for diminution of obligation for: 
enforcement or compliance with nondiscrimination require-. 
ments 

Nothing in this section shall be construed to diminish the obligation 
of responsible officials to enforce or comply with such guidelines and 
criteria in order to eliminate discrimination in federall y assisted pro- 
Sims and activities as required by title VI of the Civil Rights Act 
of 1964. 

(d) Additional funds 

It is the sense of the Congress that the Department of Justice and 
the Dep rien of Health, Education, and Welfare should request 
such additional funds as may be necessary to apply the policy set forth 
in this section throughout the United States. (Pub. L. 91-230, § 2, Apr.. 
13, 1970, 84 Stat. 121.) 

Oo 

 



Ep mE a a waar ram Beanie amma pt gp a te ——     

  

STATE OF ALABAMA) 

JEFFERSON COUNTY) 

Edward Still, being first duly sworn, deposes and says: 

1. My name is Edward Still. I am an attorney and am ad- 

mitted to practice before the Supreme Courts of the United States 

and Alabama, the Fifth Circuit Court of Appeals, and all federal 

district courts in Alabama. 

2. My practice has involved a much larger than usual share 

of complex litigation in the field of civil and constitutional 

rights. Among others, I have been counsel in unreported cases 

attacking the mandatory collection of school fees, Wilder v. McCool; 
  

attacking Alabama's restriction on civil service hiring of aliens, 

Kulkarni v. Personnel Director; and the lack of due process in a 
  

municipal water system's collection procedures, James v. Northport; 
  

to name only a few of the successful cases. In addition I was 

counsel for the Plaintiff in Lynch v. Baxley , 386 F Supp. 378 
  

(MD Ala. 1974) in which Alabama's civil commitment statutes were 

declared unconstitutional and am now couisel for the Plaintiffs 

in Weissinger v. Boswell, 330 F. Supp. 615 (MD Ala. 1971), the 
  

statewide tax reappraisal suit. 

3. During the past four (4) years, I have been on retainer 

to the Alabama Civil Liberties Union with voting rights as a 

major field. My retainer has required me to advise other attorneys 

regarding possible litigation and to monitor submission to the 

Justice Department under Section 5 of the Voting Rights Act. 

I have been counsel in the following cases dealing with reapport- 

ionment or voting rights: 

(a) League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 
  

28 167.(1974); 

(b) Prigmore v. Renfro , 356 F Supp. 427 (ND Ala.), 410 US 
  

919 (1974) - attacking Alabama's limitation of absentee ballots; 

(c}) Brodhead v. Ezell, 348 F Supp. 1244 (SD Ala. 1972) ~-   

reapportionment of the Choctaw County Commission; 

(d) Medders v. Autauga County, (MD Ala. 1974) - reapportion- 
  

ment of the county commission; 

 



  

Fo A AS ARI ea Ee — rr   

Wh 

(e) Sumter County Democratic Executive Committee v. Dearman, 
  

514 F 2d 1168 (5th Cir. 1975) - challenge under Section 5 of the 

1965 Voting Rights Act: 

(f) Nevett v. Sides, 533 F 24 1361 (5th Cir. 1976) ~- reapp-   

ortionment of Fairfield; 

{g) Creel v. Freeman , 531 F 284 286 {5th Cir. 1976) =~   

challenge to method of election. 

(h) Corder v. Kirksey (ND Ala. 1976) - reapportionment of 
  

Pickens County Commission, School Board and Democratic Executive 

Committee (appeal pending); 

(1) Gold v. Baggett (MD Ala. 1976) - attacking restriction   

on election to State Board of Education; 

4. * I have been a consultant to the 1972 McGovern campaign 

and the 1976 Carter campaign on Alabama Election laws. I was 

appointed by the State Democratic Chairman to serve as a member 

of the Electoral Reform Commission which drafted four major bills 

to reform Alabama's election code in 1975. 
~ 
- 

5. Because of my familiarity with the election law of Ala- 

bama and the federal case law on voting and apportionment, I 

believe that I have besn able to operate in this case with an 

economy of effort. 

6. Attached hereto as Exhibit A is a summary of the time 

expended by me in the trial and preparation of this case. The 

Exhibit contains two columns marked "city" and "joint". The time 

under "city" is time expended which is attributable only to the 

Bolden case, while the "joint" time was on both Bolden and Brown 

v. Moore. Where the work that I was doing was attributable to one   

particular case - Brown or Bolden - it was so designated on my   

records. Where the time was for both cases, jointly and severally, 

it was attributed to "joint" time. An example will suffice: both 

sets of Defendants filed virtually identical Interrogatories, so 

Mr. Blacksher and I prepared one set of answers and objections. 

The time would be exactly the same if only the City had filed such 

Interrogatories. These time records are kept for all my cases on 

a daily basis. The details as to the work done on a particular 

 



  

day are taken from my time logs, supplemented by my files in this 

case. 

7. Attached hereto as Exhibit B is my list of out-of-pocket 

expenses as I billed my clients for them. 

EDWARD STILL 
  

Sworn to and subscribed before me this \a—~ day of November, 1976. 

  

U NOTARY PUBLIC 

 



    

EXHIBIT A 

  

TIME SHEETS 

1975 CITY JOINT 

4 March Call from Blacksher re: possibility of suits 3 

31 March «2 

1 April v5 

8 April Drafting proposed complaints 3.7 

9 April 2 

26 May va 

6 June .3 

9 June «3 

10 June Drafting proposed interrogatories 1.0 

11 June ix n 2 ; letter to 
Blacksher 1.3 

30 June 2 

20 Aug. Review of 1965 Act; call from Blacksher : «5 

21 Aug. Drafting brief | 1.9 

25 Aug. Call from Blacksher; letter to Justice Dept. i.1 

26 Aug. Brief drafting; review of inter¥ogatorics 2.4 

28 Aug. Letter to Blacksher * «2 

8 Sept. Call from Justice Dept. re: 1965 Act 6 

10 Sept. Letter from Blacksher .6 

15 Sept. Trip to Mobile for conference w/Blacksher 5.5 

17 Sept. Letter to Blacksher 2 

19 Sept. Drafting answers to interrogatories 1.6 

28 Oct. Call to Blacksher «5 

30 Oct. " i: i «2 

30 Oct. Reading Voyles Thesis 5 

2 Dec. Deposition preparation 3 

3 Dec. Calls from & to Blacksher, to Cotrell; preparation 
for deposition 3.2 

8 Dec. call from Cotrell; deposition preparation .4 

9 Dec. Trip to Mobile for Voyles deposition 10.0 

10 Dec. Call to Cotrell re: deposition of Voyle .7 

11 Dec. Rule 23 Motion eB 

11 Dec. Letters & calls «7 

12 Dec. Letters to Blacksher and Williams AP 

 



eo _- a ry oo. . y: . B ny ~ —. 7 - - To - - -r - — — er CH I PN A A A A RA et AE EA Ltt Hn SpA wrt mann ns < rae ne Ei - em ss - = 

rarer SE so mS a ET LE =7 ——— — 
C I TY JO INT 

Call +o 3 Williams re: housing $i, 

  

report .4 

Letter .4 

Research & letter to Blacksher re: possibility 
of enjoining elections 2.1 

1976 
2 Jan Answers to interrogatories 1.0 

1s Jan .4 

23 Jan. Conference with Menefee 1.5 

26 Jan. Preparation for pretrials «8 

4 Feb. Travel to Mobile for pretrial conferences, 

conferences with Blacksher & Menefee B.5 

5 Feb. Research .4 

7 Feb. Research | A J «7 

24 Feb. LOLEREY to Jack Greenburg re: Wallace v. House we, 

25 Feb. Examining census material «9 

25 Feb. Drafting plan for city council | 1.5 

26 Feb. Call; letter to Coles; research 2.3 

27 Peb. Drafting plan: call to Ed Rutledge 1.8 

1 March » n oricall to Justice Dedirzesentch on Acts 1.2 

5 March Call to Blacksher re: Section 5 question 5 

10 March Checking annexations i Wg 

12 March Call to Menefee; drafting plans 3.5 

13 March Drafting plans 2.0 

15 March Letter to Menefee; drafting plans 2.4 

16 March Letters to Blacksher, Kenneth Clark; drafting plans 2.0 

4 April Flight to Mobile for conferences with Cotrell 8.3 

5 April Additional conferences with Cotrell & McLaurin 6.9 

11 April Travel to Mobile from Montgomery 4.5 

ll April Preparation for deposition 2.0 

12 April Deposition of defense expert 3.5 

13 April Return travel from Mobile 5.5 

11 May call from Menefee & Parker 1.5 

26 May Call to Blacksher re: next day's trip v3 

27 May Trip to Mobile for conference with Cotrell 9.0 

2 June Call to Menefee re: Cotrell deposition «3 

7 June Pretrial brief .-l 

8 June Pretrial brief -6 

9 June Call from Menefee i 

11 June Pretrial brief 2.3 

 



  

DATE 

19 June Drafting plan 

21 June Pretrial brief 

24 June Call from Menefee; letter from Menefee 
re: Def. exhibits 

27 June Pretrial brief 

28 June Drafting plans 

29 June Pretrial briefs 

2 July Call to Menefee 

7 July Call from Blacksher 

9 July Travel to Mobile and trial preparation 

10 July Trial preparation 

11 July : " 

12 July Trial, trial preparation 

13 July " i is 

14 July 

15 July E " 1 

16 July Trial preparation 

18 July n y 

19 July Trial, trial preparation 

20 July " " " ” 

21 July n y : 

22 July Travel back to Birmingham 

23 July Call to Menefee re: post trial brief 

26 July " § i n ? n " 

29 July Letter to Menefee 

3 Aug. Research on pre-referendum ruling; call to Menefee 

11 Aug. Call to Menefee 

11 Aug. Drafting plans 

13 Aug. Drafting plans 

20 Aug. Mailed plans & letter to Menefee 

2 Sept. .Preparing time records 

7 Sept. Plan preparation 

8 Sept Plan preparation 

23 Sept. Telephone from Menefee re: Argument schedule 

27 Sept. Telephone to Menefee; preparation for argument 

29 Sept. Travel to Mobile & preparation for arguments 

29 Sept. Argument & research on city commission 

30 Sept. General discussions & return trip 

CITY 
1.0 

JOINT 

 



  

22 October 

23 October 

25 October 

27 October 

28 October 

29 October 

5 November 

9 November 

10 November 

11 November 

Preparation of the application 

Reading opinion. 

Fee application 

Phone to Blacksher re plans 

Work on plans and population 
statistics 

Work on plans 

Drafting injunction and memo on 
stay pending appeal 

Preparation for appeal 

Preparation for appeal 

Phone call from Blacksher 

Totals 

City 

1.7 

Joint 

    

93.5 

 



: —— A ee tae es. Att al a lr A tr A S00. Nm Pe AGRE AM +t A Anite te 2 em lat eater Aer amet 

  

EXHIBIT B 

Out-of-Pocket Expenses 

    

1975 City JOINT 

June Telephone 5 7.23 
Xerox (at .10 /page) «20 

July Telephone «87 
August Telephone 14.42 

Xerox 4.30 
Sept-Nov. Telephone 17.85 
Sept. Travel to Mobile (570 miles) 57.00 
9 Dec. Southern Airways (Voyles Dep.) 68.73 
December Xerox 3.50 

1976 

January Telephone 26.30 
4 Feb. Southern Airways 68.73 
Feb. Telephone 22.35 

Xerox «50 
26 Feb. Bureau of Census Maps 18.00 
March Telephone 33.14 
26 March Univ. of Ala. - census data printout 178.50 
4 April Plane fare to Mobile 72.00 
11-13 April 350 mile trip to Mobile 35.00 
April Telephone 13.41 
27 May » Southern Airways 72.00 
May-Aug. Telephcne 54.49 20.64 
9-22 July 600 mile trip to & around Mobile 60.00 
29-30 Sept. Southern Airways 74.00 
30 Sept. Parking fe= 3.75 
Sept. Telephone 1.20 30.33 

Xerox 3.50 
oct. Xerox 14.10 

Telephone 10.13 
Nov. Telephone = 14.28 

  

$224.80 $715.65 

 



  

  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., § 

Plaintiffs, § 
CIVIL ACTION 

VS. § 

NO. 75-297-P 
CITY OF MOBILE, et al., § 

Defendants. § 

AFFIDAVIT OF JAMES U. BLACKSHER 

STATE OF ALABAMA ) 
yiiad : 

COUNTY OF MOBILE ) 

James U. Blacksher, being first duly sworn, deposes and 

says as follows: 

1. I am an attorney admitted to the practice of law 

before the Supreme Court of the United States, the Supreme 

Court of the State of Alabama, the United States District 

Courts for the Northern and Southern Districts of Alabama, and 

the United States Court of Appeals for the Fifth Circuit. I 

was first admitted to the practice of law in April, 1971. From 

January to December 1971 I served as a Law Clerk for the 

Honorable Frank H. McFadden, United States District Judge, 

Northern District of Alabama. I have been engaged in a private 

practice of law in Mobile, Alabama, lpes January 1972. 
as 

Throughout this period my practice /consisted almost entirely 

of federal court civil litigation, primarily in the civil rights 

areas. 

 



  

2. Since its inception, I have been one of the 

attorneys representing plaintiffs Wiley L. Bolden, et al. in 

the above styled action. 

3. In addition to the instant action, Brown v. Moore, 
  

Civil Action No. 75-298-P, and other individual and class 

action civil rights cases still pending in this Court, I have 

been lead counsel in the following civil rights cases: 

3 E.P.D, 98560 (5.0. Ala. 1977), 
aff'd, 6 E.P.D. 135687 (5th Cir. 
1973) (employment discrimination) 

  

Dillon v. Bay City Construction Company, 
312 F.2d 301" (5th Cir. 197/53) (fair 
housing) 

  

Gold v. Baggett, Civil Action No. 76- 
120-N (M.D. Ala. 1976) (three judge 
panel) (voting rights) 

  

McLaughlin v. Calloway, 
S5Z. F.SUrp- 909 (S5.D. Ala. 1975), 
appeal pending (federal employment 
discrimination) 

  

Robinson v. Union Carbide Corp., 
380 ¥.Supp. /oL. (5.0. Ala. 1974), 
rev'd in part, 5383 7.24 652 (5th 
Cir. 1976) (employment discrimination) 

  

Stevenson v. International Paper Company, 
352 T.Supp. 230 (5.0. Ala. 1977), 
rev'd, 516 ¥.2d4 103 (5th Cir. 1975) 
(employment discrimination) 

  

Watkins wv. Scott Paper Co., 
o£. P.B. 53917 (8.8, Ala. 1973), 
rev'd. 530'F.24 1159 (5th Cir. 19758) 
cert.denied;, 45 U.S. L.W. 3253 (Oct. 
5, 1976) (employment discrimination) 

  

4. TI have been sole counsel or lead counsel for 

plaintiffs in the following civil rights class actions which 

were resolved favorably for plaintiffs through consent decrees: 

Wolfe v. Teledyne Continental Motors Co. , 
  

Civil Action No. 75-222-P (S.D. Ala. 
1976) (racial discrimination in employment) 

Quaites v. Courtaulds North America, Inc., 
  

Civil Action No./94Z2-73-P (8.D. Ala. 1975) 
(racial discrimination in employment) 

 



  

  

Local 777, American Federation of Teachers 
v. Board of School Commissioners of Mobile 
County, Civil Action No. 7574-73-H 

(S.D. Ala. 1975) (sex discriminatory 
maternity leave policy) 

  

  

Andry v. Alabama Power Company, 
Civil Action No. /947-73-H (S5.D. Ala. 
1974) (racial discrimination in 
employment) : 

  

Bumpers v. National Gypsum Company, 
Civil Action No. /843-/3-P (S. D. 
Ala. 1974) (racial discrimination in 
employment) 

  

Eaton v. Courtaulds North America Inc., 
Civil Action No. 6648-71-P (S. D. Ala. 
1973) (racial discrimination in 
employment) 

  

Green v. Warrior & Gulf Navigation Co., 
Civil Action No. 7919-/3-P (S.D. Ala. 
1975) (racial discrimination in 
employment) 

  

Jones v. City of Saraland, 
Civil Action No. 74 -78-H (S.D. Ala. 
1974) (racial discrimination in 
employment) 

  

Rilev v. Holland, 
Civil Action No. 7975-73-P (S.D. Ala. 
1874) (fair housing) _ 

  

Suggs v. Container Corporation of America, 
Civil Action No. /70533-72-P (S5.D. Ala. 

18974) (racial discrimination in 
employment) 

  

Wolfe v. Catherine Arms Apartments, 
Civil Action Ro. /b-184-H (S.D. Ala. 
1975) (fair housing) 

  

5. I have been sole counsel or lead counsel for 

plaintiffs in the following individual civil rights actions 

which were resolved favorably for plaintiffs through pretrial 

settlements: 

Cannon v. Greyhound, 
  

Civil Action No. 75-363-P (S.D. Ala. 
1976) (racial discrimination by public 
carrier) 

Parker v. Alabama Dry Dock & Shipbuilding Co., 
Civil Action No. 70-306-F (9.0. Ala. 1976) 
(racial discrimination in employment) 

  

Kemp v. Union 0il Company, 
  

Civil Action No. /5-396 ~-P (S.D. Ala. 
1975) (sex discrimination in employment) 

 



  

Ezell v. Frazer, 

Civil Action No.75-379-H (S.D. Ala. 
1975) (race discrimination in public 
accomodations) 

  

Cleveland v. Thomasville City School Board, 
Civil Action No.74-495-H (S§.D. Ala. 1975) 
(denial of equal protection to pregnant 
students) 

  

Williams v. Southern Development Company, 
Civil Action No.73- 72 -H (S.Dh. Ala. 1875) 
(racial discrimination in the terms of 
real estate sales) 

  

Garner v. Texaco, 
Civil Action No. 74- 4-4 (8.D. Ala. 1974) 
(sex discrimination in employment) 

  

Gildersleeve v. Ingalls Shipbuilding Co., 
Civil Action No.73-S-202 (S.D. Miss. 1974) 
(race discrimination in employment) 

  

Gilmore v. Shell 0il Company, 
\ Civil Action No.7874-72(S.D. Ala. 1973) 

(race discrimination in public 
accomodations) 

  

Smith v. South Central Bell, 
Civil Action No.7841-73(S.D. Ala. 1973) 
(race discrimination in employment) 

  

Willizms v. Neco Electrical Products Corp., 
Civil Action No.7442-72 (S5.D. Ala. 1973) 
(race discrimination in employment) 

  

Lott v. Mobile Towing Company, 
Civil Action No. 75-90-H (S.D. Ala. 1975) 
(race discrimination in employment) 

    

Smith v. Murphy, 
Civil Action No. 75-454-P (S.D. Ala. 1976) 
(denial of First Amendment rights to 
college faculty) 

  

6. Also I was lead counsel for the successful 

defendants during the trial and appeal of a major non-civil 

rights labor relations case, Scott Paper Company v. Gulfcoast 
  

  

Pulpwood Association, Inc., Civil Action No. 7820-73-P, aff'd 
  

491 7.24 119 {5th Cir. 1974). 

7. Finally, I have been lead counsel for the 

plaintiffs, primarily engaged in post-desegregation decree 

proceedings, in eight (8) school desegregation actions in 

south Alabama, including Davis v. Board of School Commissioners 
  

of Mobile County, Civil Action No. 3003-63-H.   

 



  

  

8. As a result of my experience in other civil rights 

litigation, I believe that my WoL in this action has been 

conducted with economy of both time and effort, considering the 

nature and extent of the work performed in the case. 

9. Attached hereto as Exhibit A is a summary of the 

time expended by me in the trial and preparation of this case. 

The Exhibit contains two columns marked "City" and "Joint" 

The time under "City" is time expended which is attributable 

only to the Bolden case, while the "Joint" time was on both 

Bolden and Brown v. Moore, Civil Action No. 75-298-P. These 
  

summaries are complied from time logs I have maintained of 

work done in these actions from their inception to the date 

this Affidavit is signed. These logs recorded time spent on 

the case at the time the work was performed. 

10. Attached hereto as Exhibit B is a list of expenses 

incurred by my law firm on behalf of the plaintiffs in prosecuting 

this action. 

  

Subscribed and sworn to before me on this the S& day 
/ 

    of 
  

rpm dias, 1976 

   NOTARY PUBLIC 10BTLE TF ALABAMA 
My Comm, Expires March 8, 1972 

a——. 

(SEAL) 

 



  

EXHIBIT A 

TIME OF JAMES U. BLACKSHER 

DATE DESCRIPTION 

CITY JOINT 
1973 | 

March 4 Foncon with Still 3 

June 4 Research and draft Complaint 2.0 

July 7 Draft Interrogatories 1.0 

August 20 Study Interrogatory Answers/ 
foncon with Still 0.5 

August 21 Document Production at Arendall 1.0 

August 25 Foncons with lawyers 0.5 

August 29 Prepare Oral Argument 1.0 

August 29 Oral Argument on motion 83.5 

September 3 Conference with McLaurin 1.0 

September 38 Foncons with Still and LeFlore 0.5 

September 15 Prepare discovery with Still 
and clients 3.0 

September 15 Answer defendants’ Interrogatories 4.0 

September 17 Draft Attorney Fee letter brief 1.0 

September 23 Investigation 1.0 

September 26 Status Report 1.0 

September 30 Conference with Parker 1.0 

October 3 Conference with Parker 1.0 

October 7 Interview clients 1.0 

October 8 Foncons with witnesses 0.5 

October 21 Draft Answers to Interrogatories 2.0 

October 22 Draft Answers to Interrogatories .0 

October 23 Draft Answers to Interrogatories 2.0 

October 24 Study Voyles Thesis/foncon with 
Parker 3.0 

October 27 Foncons with Parker/South 
Alzbama Regional Planning 
Commission 0.3 

October 28 Foncon with Still 0.5 

October 29 Prepare Oral Argument 1.5 

October 29 Oral Argument and conference 
with Judge 1.0 

 



  

DATE 

October 30 

October 31 

November 4 

November 10 

November 17 

November 18 

December 3 

December 4 

December 9 

December’ 9 

December 9 

December 

December 19 

1976 

January 5 

January 6 

January 9 

January 9 

January 10 

January 12 

January 12 

January 14 

January 16 

January 18 

January 19 

January 20 

DESCRIPTION 

Foncons with Parker/Woods/ 
Still : 

Draft Brief 

Foncons with Parker /opposing 
counsel 

Study documents/draft motion 
and request for documents 

Draft motion and notice of 
Voyles deposition 

Oral Argument on Rule 37 motion 

Draft Interrogatory Answers/ 
Foncons/Conference with Parker 

Trial Preparation 

Conference with Still/prepare 
sitions 

erence with Schlichting, 
arker and Still 

repare for deposition 

Voyles Deposition 

Supplement Answers to 
Interrogatories 

1%
 

Conference with Parker/foncon 
with witness 

Trial Preparation 

Prepare Oral Argument 

Oral Argument on class action 
motions 

Trial Preparation 

Foncon with Justice Department/ 
rial Preparation 

Conference with clients and 
document search 

Conference with Menefee 

Prepare for Pretrial Conference 

Conference with Parker, Menefee 

Prepare for Pretrial Conference 

Prepare for Pretrial Conference 

CITY 

f
d
 

R
O
Y
 

e
t
 

IN
D 

E
D
 

0»
 
(B
EE
 

son 
SA
LE
 

0)
 
CE
ES
 

a 
ER

 

JOINT 

0.5 

1.0 

1.0 

1.0 

1.0 

0.5 

2.0 

 



  

DATE 

January 

January 

January 

January 

January 

January 

January 

January 

January 

January 

January 

January 

January 

February 

February 

February 

February 

February 

February 

February 

February 

February 

February 

February 

February 

March 12 

March 22 

March 31 

April 2 

April 4 

DESCRIPTION 

Prepare for Pretrial Conference 

Prepare for Pretrial Conference 

Draft Pretrial Document 

Pretrial Conference with Arendall 

Oral Argument on Rule 37 motion 

Prepare for Pretrial Conference 

Interview witnesses 

Prepare for Pretrial Conference 

Conference with Parker 

Conference at Arendall's 

HJ
 

f repare for Pretrial Conference 

Conference with Parker, 
Schlichting 

Prepare for Pretrial Conference 

repare Joint Pretrial Document 
nd witness list 

Prepare for Pretrial Conference 

Prepares for Pretrial Conference 

Pretrizl Conference 

Conference with co-counsel/ 
review discovery 

Legal Research 

Interview witnesses 

Interview witnesses 

Trial Preparation 

Legal Research 

Legal Research 

Draft Itemization of Specific 
Claims 

Status Report and Conference 
with lawyers 

Conference with Experts 

Conference with Menefee/foncon 
with witness 

Conference with Menefee 

Conference with Experts and 
co-counsel 

W
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1.0 

0.3 

3.0 

1.0 

2.0 

 



  

DESCRIPTION CITY JOINT 

April 5 Deposition at Arendall's 2.0 

April 5 Conference with Experts 6.0. 

April 8 Conference with Friend 0.5 

April 1} Voyles Deposition 2.5 

April 19 Conference with Menefee 0.5 

April 20 Schlichting Deposition 2.5 

April 20 McLaurin Deposition 2.3 

May 11 Conference with Menefee and 
Parker 0.5 

May 24 Conference with Menefee and 
Cotrell 1.0 

May 26 Interview witness/foncon with ‘i 

May 27 Conference with Experts 2.0 

May 28 Cotrell Deposition 3.5 

May 28 Conference with Cotrell 1.0 

June 2 ~~ Prepare Exhibits 1.0 

June 10 Conferzsnce with Menefee 0.5 

June 11 = Legal Research ” 3.0 

June 11 Document Discovery at Arendall's 1.0 

June 14 Prepare Exhibits, Brief 1.3 

June 18 Prepare Exhibits, Brief 1.0 

June 21 Document Exchange 2.0 

June 23 Trial Preparation 1.0 

June 29 Conference with Cotrell 2.0 

June 30 Cotrell Deposition | 2.5 

June 30 Conference with Cotrell 2.0 

July 3 Draft Findings of Fact/Conclusions 
of Law “3.5 

July 4 Draft Findings of Fact/Conclusions 
: of Law 5.3 

July.-5 Draft Findings of Fact/Conclusions 
of Law 11.0 

July 6 Draft Findings of Fact/Conclusions 
of Law 2.5 

July 7 Draft Findings of Fact/Conclusions 
of Law 8.5 

 



  

DATE DESCRIPTION CITY JOINT 

July 8 Research and Draft Pretrial 
Brief 10.0 

July 9 Trial Preparation 8.5 

July 10 Trial Preparation 9.0 

July 11 Trial Preparation 8.0 

July 12 Trial Preparation 5.0 

July 12 Trial 7:5 

July 13 Trial 4.0 

July 13 Trial Preparation 5.5 

July 14 Trial Preparation 4.0 

July 14 Trial 7.0 

July 15 Trial Preparation 1.5 

July 16 Trial Preparation 2.5 

July 17 Trial Preparation 4.0 

July 18 Trial Preparation 2.0 

July 19 Trizl Preparation 2.3 

July*19 Trial 7.0 

July 20 Trial x 7.0 

July 20 Trial Preparation 2.5 

July 21 Trial Preparation 4.5 

July 21 Trial 7.0 

July 22 Tour City with Judge 4.0 

July 26 Interview Client 1.0 

August 30 Draft Post Trial Brief 2.0 

August 31 Draft Post Trial Brief 9.0 

September 1 Draft Post Trial Brief 5.5 

September 8 Draft Post Trial Brief 1.5 

September 9 Draft Post Trial Brief 1.3 

September 28 Study new Court decisions/ 
draft letter 

September 28 Prepare Oral Argument 

September 28 Attend Oral Argument 

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September 28 Conference with Co-counsel 

October 4 Foncons with nominees 

Cctober 6 Foncons with nominees/draft 
letter 1:5 

 



  

DATE 

October 6 

October 6 

October 21 

Octcber 21 

October 25 

October 27 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

December 

22 

1 

DESCRIPTION 

Foncons with Law Clerk, 

Arendall 

Conference with Judge 

Conference with Judge 

Study Opinion/foncons, etc. 

Prepare data/plans 

Prepare data/plans 

Prepare data/plans 

Prepare data/plans 

Study proposed council plan 

Conference with Judge 

Conference with Menefee and 

Research Stay Issue 

Foncon with Client/Conference 

with Menefee 

Research Stay Issue 

Research Stay Issue 

Preparz Attorney Fee Motion 

Draft Proposed Order/Attorney 
Fee Motion 

Foncons with Judge, Law Clerk/ 
Conference with Menefee 

Prepare Attorney Fee Motion 

Research Motion to Intervene 

Research Motion to Intervene 

Conference in Court 

Oral Argument on Motion to 
Intervene 

Draft Attorney Fee Affidavit 

Draft Attorney Fee Affidavit 

Foncons with Schnapper/Still/ 
Plaintiffs | 

TOTAL HOURS 

A dh ds ct Spr 

CITY 

O
N
 

N
W
 

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SR
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JE
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B
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Al
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Yo
 

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A
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SE

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1.0 

  

  

327.30 68.30 

 



  

EXHIBIT B 

COSTS INCURRED 

BOLDEN v. CITY OF MOBILE 

DESCRIPTION CITY JOINT 

Filing Fee $ 15.00 

larshal Fees 26.84 

Depositions 150.75 $1,297.24 

Deposition Attendance Fee 100.00 

Witness Fees 40.00 20.00 

Postage 13.65 16.86 

Travel Expenses /Meals 140.23 9.84 

Xeroxing/Reproductions 425.00 1.582.75 

Expert Fees/Costs 6,738.30 

Long Distance Calls . 426.05 
  

Total Costs $911.47 $10,091.04 

 



  

  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., § 

Plaintiffs, § 
CIVIL ACTION 

VS. § 

; NO. 75-297-P 
CITY OF MOBILE, et al,., § 

Defendants. § 

AFFIDAVIT OF LARRY T. MENEFEE 

STATE OF ALABAMA ) 
ro 88 

COUNTY OF MOBILE ) 

Larry T. Menefee, being first duly sworn, deposes and 

says as follows: 

1. I am admitted to practice in the State of Alabama 

and the United States District Courts for the Northern and 

Southern Districts of Alabama. 

2. I graduated from law school and was admitted to 

practice in 1971. TI worked one year for the University of 

Alabama in Tuscaloosa, one year as law clerk for United States 

District Judge Daniel H. Thomas and two years as a U.S. Peace 

Corps volunteer assisting local governments in Venezuela with 

land use, planning and zoning. I entered private practice in 

January 1976 and began immediately working on this case and 

its companion, Brown v. Moore.   

3. During my year as law clerk to Judge Thomas 

he was a member of the three-judge court in Sims v. Amos. I 
  

became familiar with the case law and many of the demographic 

techniques in that statewide reapportionment case. My work in 

 



  

  

Peace Corps gave familiarity with methods and problems in the 

delivery cof municipal services. I have been a lifelong resident 

of the city and one member of my family has been active in 

politics in the area. These experiences enabled me to achieve 

some economy in time; especially so since the area of the case 

I worked on was so factually oriented. 

4. I devoted most of my time during my first six 

months in practice to this case and to the virtual exclusion 

of all other work or developing clients. 

5. Attached hereto as Exhibit A is a summary of the 

time expended by me in the trial and preparation of this case. 

The Exhibit contains two columns marked "city" .and "joint". 

The time under Meity! is time expended which is attributable 

only to the Bolden case, while the "joint" time was on both 

Bolden and Brown v. Moore. The time designated "joint" would 
  

necessarily have been expended regardless of whether Brown v. 
J 

  

Moore had been filed. The details as to the work done on a 

particular day are taken from my time logs, supplemented by 

my files in this case. 

  

  

  

£ ¢/ / PAZ 
N@TARY PUBLIC, MOBNLE COUNTY, ALABAMA 

My Comm. Expires March 8, 1977 

(SEAL) 

  

 



  

DATE 

1976 

January 

January 

January 1 

January 

January 

January 

January 

January 

January 

January 

January 

January 

January 

January 

January 

February 

February 

February 

February 

February 

February 

February 

February 

27 

28 

29 

30 

3% 

2 

3 

A 

10 

11 

EXHIBIT A 

TIME OF LARRY. T. MENEFEE 

DESCRIPTION 

CITY 

Review Caselaw 

Review Caselaw 

Review Caselaw,Drafts and 
Investigations 

Research, Drafting, Investigation, 
Preliminary Injunction, Rule 37 
Motion, Pretrial Documents 

Same, and meet w/Parker 

Same, meeting w/Arendall, 
Magistrate and Dr. Gilliard 1.0 

Work on Pretrial Documents, 
meet w/Carstarphen 

Research at County Library and 
meet w/Bedsole 1.0 

Meet w/Parker 

Meet w/Parker, meet w/Bedsole 6 

Visit Computer Center, work on 
Pretrial Documents 

Office work and investigations 

In-office work and City Hall 2.0 

In-office conference and 
Pretrial Conference 

Review of L.W.V. material/meet 
/Edington 2.0 i 

Peview of City and County 
Committees, NPVL files 

Review NPVL files 

Meet w/Dan Alexander and 
review NPVL files 

In-office investigations, meet 
w/Lincoln Street 1.0 

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DATE 

  

February 

February 

February 

February 

February 

February 

February 

February 24 

February 25 

February 26 

March 

March 

March 

March 

March 

March 

March 

March 

March 

March 

March 

March 

April 

1 

3 

10 

13 

12 

13 

30 

3i 

12 

DESCRIPTION 

Preparation for Magistrate 
and NAACP Meeting 

Preparation of Amended Rule 37 

NPVL files, Preparation of Rule 
37, meet w/Langan and SARP 

Meeting w/MCDP 

Meet w/Parker and fact 
preparation 

City Planning Office, meet 
w/Gilliard and Bolden 

Meet w/Hope, Gilliard and letter 
to Arendall 

Specifications of Discriminatory 
Acts 

Meet w/CDP, specifications of acts 

Meet w/Parker, in office 
investigations 

Letter to Cotrell 

In-office consultation 

Meet with Arendall a 

Meet with Parker 

Status Report 

In-office investigation 

Meet w/CDP 

Meet w/CDP 

Meet w/CDP and Bedsole 

F.0.I. and in-office 
investigation 

In-office investigation 

In-office investigation and 
preparation of subpoena 

Conference with Still and 
Experts 

Aborted Deposition and Conference 

Investigation and Preparation 
of Computer results 

Meet w/Parker and Francour 

Research, meet w/Parker, meet 
w-Voyles and Bedsole 

Meet w/Still and Parker 

Deposition of Voyles 

0. 

3. 

CITY 

3 

  

JOINT 

4.0 

 



May 

May 

May 

May 

May 

  

12 

13 

14 

17 

18 

19 

30 

21° 

23 

24 

25 

26 

DESCRIPTION 

Review of Voyles' Material 

Meet w/Parker, McLaurin and 
Ambrose; conversation with 
Tew and Bagwell 

Depositions of McLaurin and 
Schlichting 

Meet w/Parker 

Meet w/Parker and CDP 

Meet w/Parker and Francour 

Meet w/Bagwell, Broustien and 
Parker 

Meet w/Parker, CDP, in-office 
investigation 

CITY 

Meet w/Parker and Montgomery; work 
on unpaved streets 

Calls to Hope, Goode, Gill, 
Parker and Bagwell; letter to 
Taylor; work on city streets 

Conversation w/Parker, Nettles 
and Strave 

Review Depositions 

Review Depositions, letter to 
Cotrell 

Conversation w/Parker, Still and 
Bagwell 

Conversation w/Goode, Francour 
and in-office work 

Conversation w/A.Turner and 
Cotrell 

Conversations w/Cooper, Kennedy, 
Parker and Bagwell 

Parker Deposition, conversations 
w/Perloff, Gill and Goode 

Conversation w/Flanagan and Langan; 
material to Bagwell 

Research re covenants 

Alexander, Montgomery, Schlichting, 
Lewis and Cotrell 

Prepare materials for Cotrell 

Interview w/Cotrell 

Interview w/Cotrell 

Interview w/Cotrell 

JOINT 

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SC
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TO
I 

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SE

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0.
 

 



  

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

June 

11 

13 

22 

23 

24 

DESCRIPTION CITY 

Interview w/Cotrell; meeting w/ 
attorneys 

Deposition and meeting of Cotrell 
and Jim Blacksher 

Review Employment Data 

Review Employment Data 

Meet w/Nettles, conversation w/ 
Francour, Bagwell, Cotrell and 
Wood, review maps and other in- 
office investigation 

Employment Data, maps from Bidgood 
and material to Cotrell 

Work on committees and street data, 
review Voyles thesis 3.2 

Work on streets and review Cotrell 
deposition 

Streets, committees and employment 

Voyles dissertation and vote data; 
visit to T. Gordeos 2.9 

Talk to Still, Cotrell, witness 
list, vote data 

Meet w/McLaurin, exhibit preparation 

Meet w/Bedsole 2.2 

In-office work on police, 
neighborhoods and coeffs. 

Conversation w/Cotrell, Dotch, 
Edington and document preparation 

Meet w/Parker/document preparation 

County Law Library, visit Lincoln 
Street, Witness List, T.Gardens, 
County Library 

Exhibit Preparation 

Exhibit Preparation 

Exhibit Preparation 

k to Cotrell, preparation and 
exchange of documents 3.5 

Meet w/Parker, Schlichting, 
Bagwell, pick up photos and 
research 8.5 

Research 

Document Preparation, Research, 
Conversations w/Still & Cotrell 

JOINT 

oe
 
BE
ER
 

wv 
SU
ES
 

+ 
S
l
 

 



  

DATE 

June 

June 

June 

June 

June 

June 

July 

July. 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

July 

25 

26 

27 

28 

29 

30 

August 2 

DESCRIPTION 

“Brief, Research & Writing 

Brief Research & Writing 

Brief Research & Writing 

Brief Research & Writing; meet 
w/Parker 

Brief Research & Writing; meet 
w/Cotrell and Koffler 

Brief Reserach & Writing; 
document organization and 
subpoenas 

Research, writing, deposition 
preparation, conversation with 
Edington 

Kennedy preparation and 
Deposition and Edington 

Research and Writing 

Research and Writing 

Cooper Deposition and trial 
preparation 

Trial Preparation 

Trial Preparation 

Trial Preparation 

Trial Preparation 

Trial Preparation 

Trial and Preparation 

Trial and Preparation 

Trial and Preparation 

Trial and Preparation 

Trial and Preparation 

Trial and Preparation 

Trial and Preparation 

Trial and Preparation 

Trial and Preparation 

Re-organize Files 

Begin preparation of revised 
finding of fact 

Research, letter to Arendall, 
conversation w/Tiffinany and 
Roberts 

CITY 

0.8 

4.2 

5.6 

7.0 

8.2 

8.3 

8.5 

11.0 

11.4 

10.3 

3.3 

4.2 

1.8 

10.2 

9.5 

¥0.5 

2.2 

1.0 

1.2 

JOINT 

 



  

DATE 

August 

August 

August 

August 

August 

August 

August 

August 

August 

August 

August 

August 

August 

August 

August 

August 

25 

27 

238 

29 

3 

September 

September 

September 

September 

September 

September 

September 

October 1 

20 

28 

29 

30 

DESCRIPTION 

Research, conversation w/ 

Edington 

Research, writing revised 
finding of fact 

Same 

Conversation w/Cotrell, Voyles 
and Bagwell 

Conversation w/Voyles and 
Still; office work 

Letter to Still 

Conversation w/Still 

Conversation w/Bagwell, Ambrose 
and Parker; in-office work 

Meet w/Ambrose, prepare exhibits 

Conversation w/Still 

Meet w/Parker and Jim Blacksher; 
review of plans 

Conversation w/Bagwell; 
preparztion of plan 

Prepare Maps 

Prepare Plans 

Bolden Finding of Fact 

Work on Bolden Finding of Fact, 
plans, conversations w/Still and 
Bagwell 

Conversation w/Still and 
Cotrell 

Conversation w/Still and 
draft interrogatories 

Same 

Conversation w/Still, draw maps, 
review interrogatories 

Draw maps, review Arendall 
letter and cases 

Meet w/Still and preparation 
for hearing and hearing 

ing and meet w/Judge and 
ey conference 

Sign and proof interrogatories; 
contact names for committees 
and Cotrell 

CITY JOINT 

1 .0 

 



  

DATE 

October 

October 

October 

October 

October 

October 

October 

October 

October 

October 

October 

October 

October 

October 

Cctober 

October 

11 

13 

22 

25 

27 

28 

29 

November 1 

November 2 

November 3 

November 4 

November 5 

November 8 

November 9 

DESCRIPTION 

Talk w/Still and Arendall; 
review materials 

Talk w/Arendall; 
Judge 

letter to 

Meet w/Still, Blacksher, Judge, 
and Arendall 

Converse w/Still and Blacksher 

Converse w/Cotrell and Blacksher; 
preparation of materials for 
court committee 

Discuss w/Still,Blacksher and 

submissions and review 
e to interrogatories OOTY 

A 

Prepare 
respons 

Discussion w/Blacksher 

Response to request of Court; 
discussions w/Still and Blacksher; 
material for Cotrell 

Response to request of Court 

Confer w/Court and Attorneys; 
conversation w/Blacksher, Still 
and clients > 

Converse w/clients and Blacksher; 
work on remedy 

Review city plans and 
population dtaa 

Discussion w/Still and others 
re: Bolden 

Work w/Still on city plans 

Work w/Still on city plans 

Converse w/Blacksher and review 
of city plans and attorneys’ fee 
question 

Prepare and proof submission of 
city plan 

Proof plan and review w/Blacksher 

Meet with Judge 

Converse w/Still and preparation 
AL 

of Affidavit 

Preparation of Affidavit and 
review materials for attorney 
fees 

Preparation of Affidavit and 
review materials for attorney 
fees with Still 

CITY 

enn eae An, nt A an RP PS i eA et en Pr. 

JOINT 

¥.2 

0.3 

1.2 

 



  

DATE 

November 

November 

November 

November 

November 

November 

November 

November 

November 

November 

December 

11 

12 

24 

1 

DESCRIPTION 

Discuss Johnson v. Georgia 
Highway and hearing on the 
19th of November 

Talk to attorneys re Affidavits 
and review Johnson 

Letters re Affidavits 

Converse w/Still and proof 
letter to Silver 

Converse w/affiant 

Motion for Intervention and 
converse w/Cotrell and Turner 

Hearing on Plan and on 
intervention, converse w/Still 

Review letter re Rhyne 

Converse w/Blacksher & Still 

Converse w/Segall 

Converse w/Blacksher and Still 

TOTAL HOURS 

CITY 

  

263.70 

JOINT 

  

6 

3 

7 

0 420. 

 



  

pe Ak ne eA OA 5 AA Al A let 0 ee 7 ARS EMI WH ae dh at et - ee Tn bate a arp me a 

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., 5 

Plaintiffs, 8 
CIVIL ACTION 

VS. 8 

CITY OF MOBILE, et al., 5 NO 7502972 

Defendants. 8 

AFFIDAVIT OF GREGORY B. STEIN 

STATE OF ALABAMA 
SS 

Ne
w”
 

GO
 

COUNTY OF MOBILE 

Gregory B. Stein, being first duly sworn, deposes and 

says as follows: 

1. I am an attorney admitted to the practice of law 

before the courts of the State of Alabama, the United States 

District Court for the Southern District of Alabama, and the 

United States Court of Appeals for the Fifth Circuit. I was 

first admitted to the practice of law in September, 1975. 

Prior to that time, I served as a law clerk for the law firm 

with which I am now associated. Both during the time of my 

clerkship and since I have been engaged in the practice of 

law, I have dealt mostly with federal court civil litigation, 

primarily in the civil rights areas. 

2. In addition to the instant action and Brown v. 
  

Moore, Civil Action No. 75-298-P, I am or have been co-counsel 

in the following federal court civil actions: 

Dillon v. Bay City Construction Company, 
on remand after 512 F.2d 801 (5th 
Cir. 1975){fair housing) 

  

Stevenson v. International Paper Company 
  

on remand after 516 F.24 103 (5th 
Cir. 1975) (employment discrimination) 

 



  

  

wolfe v. Teledyne Continental Motors Co., 
Civil Action No. 75-222-P (S.D. Ala. 

1976) (racial discrimination in employment) 

  

Ezell v. Mobile Housing Board, 
Civil Action No. 76-154-H (S.D. Ala. 
1976) (racial discrimination in employment) 

  

Amonett v. International Paper Company, 

Civil Action No. 76-422-P (S.D. Ala. 
1976) (sex discrimination in employment) 

  

McCall v. Home Construction Company, 
Civil Action No. 76-152-H (S. D. Ala. 
1976) (truth-in-lending) 

  

Smith v. Murphy, 

Civil Action No. 75-454-P (S.D. Ala. 
1976) (violation of First and Fourteenth 

Amendment rights) 

  

United States v. Gaskins, 

Civil Action No. 75-440-H (S.D. Ala. 
1876) (civil enforcement of Controlled 

Substances Act) 

  

3. As an attorney working with other lawyers in 

this firm or as a law clerk, I have also been involved in the 

following federal court civil actions: 

McLaughlin v. Calloway, L 
382 F.Supp. 885 {(3.D. Ala. 1975), 
appeal pending (federal employment 

discrimination) 

  

Robinson v. Union Carbide Corp., 
380 F.Supp. /31 (S.D. Ala, 1974), 
rev'd in part, 538 F.24 652 (5th 
Cir, 1976) (employment discrimination) 

  

watkins v. Scott Paper Co., 
6 2.P.D. para, 8912 (S.D. Ala. 1973) 
rev'd, 530 F.24 1159. (5th Cir. 1976), 
cert.denied,” 45 U.5.L.W. 3253 (Oct. 
5, 1976) (employment discrimination) 

  

Quaites v. Courtaulds North America, Inc., 

Civil Action No. 7842-73-P (S.D. Ala. 1975) 
(racial discrimination in employment) 

  

Local 777, American Federation of Teachers 
v. Board of School Commissioners of Mobile 
County, Civil Action No. 7574-73-H 

(S.D. Ala. 1975) (sex discriminatory 
maternity leave policy) 

  

  

Andry v. Alabama Power Company, 
  

Civil Action No. 7947-73-H (S.D. Ala. 
1974) (racial discrimination in 

employment) 

 



ea ee Ptr hn Sh AAA ea mA tt RB A lg Ap A. A i AM A lB BP AA ett Si ee i eR A i a meen Nm pe A A LE SALI Pr a 

  

Green v. Warrior & Gulf Navigation Co., 

Civil Action No. 7919-73-P (S.D. Ala. 
1975) (racial discrimination in 
employment) 

  

Jones v, City of Saraland, 

Civil Action No, 74-78-H (S.D. Ala. 
1974) (racial discrimination in 
employment) 

  

Riley v. Holland, 

Civil Action No. 7975-73-P (S.D. Ala. 
1974) (fair housing) 

  

Cannon v. Grevhound, 
Civil Action No. 75363-P (S.D. Ala. 
1976) (racial discrimination by public 
carrier) 

  

Parker v. Alabama Dry Dock & Shipbuilding Co., 
Civil Action No. 75-306-H (S.D. Ala. 1976) 
(racial discrimination in employment) 

  

Kemp v. Union Oil Company, 

Civil Action No. 75-393-P (S.D. Ala. 
1975) (sex discrimination in employment) 

  

Ezell v. Frazer, 

Civil Action No. 75-379-H (S.D. Ala. 
1975) (race discrimination in public 
accomodations) 

  

Williams wv. Southern Development Company, 
Civil Action No. 73-72-H (S.D. Ala. 1975) 
(racial discrimination in the terms of 
real estate sales) : 

  

Garner v. Texaco, 

Civil Action No. 74-4-H (S.D. Ala. 1974) 
(sex discrimination in employment) 

  

Lott v. Mobile Towing Company, 

(Civil Action No. 75-90-H (S.D. Ala. 1975) 
(race discrimination in employment) 

  

Davis v. Board of School Commissioners of 
Mobile County, Civil Action No. 3003-63-H 

(S.D. Ala.) (school desegregation) 

  

  

Martin v. University of South Alabama, 
Civil Action No, 75-475-P (5.D. Ala.) 
(sex discrimination in employment) 

  

4, Attached hereto as Exhibit A is a summary of 

the time expended by me in the preparation of this case. These 

summaries are compiled from time logs I have maintained of work 

done in these actions to the date of this affidavit. These 

 



  

  

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. 

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= a Rr TR BA orb in: 

i — ~ see Sa ai——— 

  

logs recorded time spent on the case at the time the work was 

GREGORY 7 [Fm 

SubsgZibed and sworn to before me on this the ZZ day 

of Cltiandi , 1974. 

Gt Fc AnD 
“NOTARY PUBLIC MOBILE COUNTY; ALABAMA 

rerformed. 

  

  

  

  

My Comm. Expires March 8, 197Z' (SEAL) 
i —— 

 



DATE 

i975 

September 

September 

September 

September 

September 

September 

September 

October 27 

October 29 

November 2 

  

8 

10 

14 

15 

16 

37 

3 

November 24 

November 2 

December 1 

1976 

January 2 

January 

G2
 
R
S
 

January 

~
 January 

January 7 

January 10 

January 11 

January 12 

January 19 

January 20 

5 

TIME 

EXHIBIT A 

OF GREGORY B. STEIN 

DESCRIPTION 

Interviews with named plaintiffs 
Re defendant's interrogatories 

Interviews with named plaintiffs 
Re defendant's interrogatories 

terviews with named plaintiffs Int 

Re defendant's interrogatories 

Answer 

Answer 

Interrogatories 

Interrogatories 

Interrogatories 

Interrogatories 

Interrogatories 

Interrogatories 

Interrogatories 
a 
”e 

Interrogatories 

Interrogatories 

Interrogatories 

Interrogatories 

Interrogatories 

Draft Interrogatories 

Interview with named plaintiffs 
Re defendant's interrogatories 

Draft Motion to Dismiss 

Interview with named plaintiffs 
Re defendant's interrogatories 

Draft Interrogatories Answers 

Draft Interrogatories Answers 

Interview with named plaintiffs 

Draft, 

answers 

file interrogatories 

CITY 

2.5 

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SR
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DATE 

January 21 

January 24 

January 260 

January 27 

January 29 

May 23 

DESCRIPTION 

Draft Interrogatories Answers 

Interview with named plaintiffs, 
draft interrogatories answers 

Hearing before Magistrate 

Draft Interrogatories Answers 

Draft Interrogatories Answers 

and file 

Interviews with plaintiffs' expert 
witness 

TOTAL HOURS 

"! 
~ 

CITY 

 



  

  

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DISTRICT 

WILEY L. BOLDEN, et al, 

Plaintiffs, : 

Civil ACTION 
v. 

NO. 75-297-P 
THE CITY OF MOBILE, et al, 

Defendants. : 

AFFIDAVIT OF JAMES L. SHORES, JR. 

l. My name is James L. Shores, Jr. I was admitted 

to the practice of law by the Supreme Court of Alabama in 

1956. Since then I have engaged in an extensive trial and 

appellate practice, in both state and federal courts, as well 

as regulatory agencies. Each year since the Fall of 1966 I 

have been of counsel in one or more class actions, including 

two multi-district cases. 

2 am zcquainted with James U. Blacksher, Larry 

T. Menefee and Edward Still. * 

3. I have examined Mr. Still's office files relat- 

ing to the action styled Bolden v. Mobile, which files consists 

of approximately 100 pleading documents entered on the Clerk's: 

docket, legal memoranda pertaining to voting cases, materials 

obtained by way of discovery proceedings in the action, and 

other documents relating to the prosecution of the action. 

4. I am aware of the complexity of the action and 

its unpopularity as well as the contingent fee basis on which 

its prosecution has been handled by the plaintiffs' lawyers. 

From televisicn news broadcasts over Mobile television stations 

I am aware of the amount of money that the City of Mobile has 

paid to special counsel for the defense of the action and the 

fee quoted to it by a Washington law firm for the prosecution 

of an appeal. 

 



  

5. Based upon the above and my experience as a 

member of the Birmingham Bar Association, the Alabama State 

Bar, and the American Bar Association, it is my opinion that 

the sum of not less than $100 per hour would constitute a 

reasonable minimum fee to be awarded the lawyers for the 

plaintiffs for the services performed by them in prosecuting 

the action. 

This 2nd day of December, 1976. 

  

Sworn to and subscribed before 

me this 2nd day of December, 

1976, 

ME AAT 
  

Notary Public 

 



  

  

My name is JAMES A. HARRIS, JR. I am a member of 

the law firm of Sirote, Permutt, Friend, Friedman, Held & 

Apolinsky, P.A. , 2222 Arlington Avenue South, Birmingham, 

Alabama. For the past several years I have been involved 

exclusively in handling litigation in Federal and State 

Courts. This affidavit is prepared at the request of 

Counsel for Plaintiffs in the case of Bolden v. Mobile, 
  

pending in the United States District Court for the South- 

ern District of Alabama. I am familiar with the attorneys 

representing plaintiffs, having known them more than six 

veATY. They enjoy a good reputation generally in the Bar 

of the State of Alabama and have handled numerous "Civil 

Rights" cases. 

I am generally familiar with complex litigation be- 

cause my work regularly involves anti-trust cases, securi- 

ties cases, class actions and derivative actions. 

I am generally familiar with the complexity and 

scope of the case of Bolden v. Mobile. I understand that 
  

the trial of case took six days during which there were intro- 

duced into evidence over 100 exhibits. This type of case 

would be considered undesirable by most attorneys because of 

its complexity and because of the risks involved with respect 

to compensation. 

If the three attorneys representing plaintiffs had 

been employed at the outset of the litigation to handle the 

case on a fixed hourly rate, a reasonable fee would have been 

$75.00 per hour for Jim Blacksher and Edward Still, and $50.00 

per hour for Larry Menefee. Considering the fact that the 

case was taken without any guarantee of any fee whatsoever, or 

any reimbursement for costs, and considering the tremendous 

amount of time and commitment involved by Counsel for Plaintiffs, 

  

sm ne et st ee Pe te A ry ot me AN ER BA Sr ot tn an — esrb tend tems AE ps



i i wo CN an nt TRE. i gi a ae aa a et a a 

  

to the exclusion of other clients, it is my opinion that a 

reasonable fee would be $100.00 per hour for Jim Blacksher 

and Edward Still, and $65.00 an hour for Larry Menefee. 
/ 

/ James A. Harris, Jr. ( 
{ } 

Before me, the undersigned notary, appeared James A. 

  

Harris, Jr., who being made known to me, stated that he has 

read the foregoing Affidavit and that the contents of same 

are true and correct. 

Sworn to and subscribed before me this the = 4 
  

day of December, 1976. 

  

Notary Public 

 



  

  

N
o
”
 

STATE OF ALABAMA 

MONTGOMERY COUNTY ) 

AFFIDAVIT 
— — — w— om— om— — m— — 

Before me, the undersigned authority, a Notary Public 

in and for said State and County, personally appeared Robert D. 

Segall, being first duly sworn on oath, deposes and says as 

follows: | 

"My name is Robert D. Segall and I am over the age of 

twenty-one years. I am an attorney with the firm of Hobbs, 

Copeland, Franco & Screws, P.A., and have practiced with that 

firm for more than three years. Prior to that time, I served 

as Law elerk to the Honorable Frank M. Johnson, Jr., United 

States District Judge for the Middle District of Alabama. My 

current practice regularly involves civil litigation in both 

State and Federal Courts. I also have participated as an attorney 

in a number of complex and difficult civil rights cases. 

"Based on my experience, I am generally familiar with 

the complexity and difficulty of civil litigation such as Bolden 

v. Moblle and Brown v. Hoore. Additionally, I am familiar with 
  

many particulars of these individual cases and of the considerable, 

time, effort, skill, experience and expertise possessed by the 

attorneys who litigated the cases for the plaintiffs. In my 

judgment, the cases could not have been litigated properly with- 

out lawyers oi the caliber oi plaintiffs' attorneys. 

"Based on my knowledge of the particular cases and of 

the expertise and experience of the attorneys involved, it is 

my opinion that a reasonable fee for Mr. HMenelee i3 $60.00 per 

hour. In my opinion, a reasonable fee for Mr. 5till and Mr. 

“ny pet 
ROBERT D. SEGALL 

Blacksher is $75 per hour. 

  

SWOKN TO AND SUBSCRIBED before me on this 99% day 

Jil, 5 Mh 
of November, 1976. 

  

NOTARY PUBLIC 

 



AFFIDAVIT 
  

My name is Edward M. Friend, III, and I am a member 

of the law firm of Sirote, Permutt, Friend, Friedman, Held 

and Apolinsky. I have been a member of the Alabama and 

Birmingham Bar Associations since 1971, and my practice 

involves general business and corporate law, as well as con- 

siderable exposure to trial practice. I have tried in excess 

of 100 cases. Our law firm is regularly involved in complex 

litigation, including securities, anti-trust, construction 

law, civil rights, and general corporate and contractual dis- 

putes. I am basically familiar with the steps necessary to 

prepare and try a complex case. James Blacksher, Ed Still, 

and Larry Menefee are former classmates of the undersigned, 

and we all graduated from the University of Alabama School of 

Law in May, 1971. I am generally familiar with the type of 

practice in which each of these individuals engage. I am 

generally familiar with the caliber of their work, the type 

of clientele they serve, and their reputation in the legal 

community. 

I am familiar with the case of Bolden, et al, vs. City 
  

of Mobile, in which Mr. Blacksher, Mr. Menefee, and Mr. Still 
  

represented the plaintiff. Prior to the trial of this case, 

I had various discussions with Mr. Menefee and Mr. Blacksher 

regarding the issues involved in this litigation. This six 

day trial was widely covered by the press, and I kept apprised  



of the developments in this case, both through the newspaper 

and through personal discussion with the counsel for the plain- 

tiffs. Plaintiff's counsel has informed this writer of the 

number of pleadings involved, the expert testimony which was 

produced, and the amount of hours expended in the trial and 

preparation of this lawsuit. 

I recognize that the issues involved in this case were 

extremely complex and the prospect of recovery for the plain- 

tiffs was quite speculative. I also am aware of the publicity 

which surrounded this lawsuit. I was in Mobile immediately 

after Judge Pittman rendered his decree, and I read the various 

editorials in the Mobile Press Register and sensed the response 

of the community to the Court's order. From my discussions 

with plaintiff's counsel and my general observations during a 

brief stay in Mobile, I've concluded that this case has exposed 

the plaintiff's counsel to adverse publicity among a large 

segment of the Mobile community. 

My regular hourly rate for handling complex litigation 

i3.875.00 per hour. In the one occasion in which this writer 

was involved in a civil rights action, the client was charged 

$75.00 per hour. The hourly rate was not contingent upon the 

results of litigation. Because of the extremely speculative 

nature of the Mobile litigation, it is the opinion of this 

writer that compensation at the rate of $90.00 per hour is  



  

% : M 

reasonable for Mr. Blacksher and Mr. Still, and compensation 

at the rate of $80.00 per hour is reasonable payment for Mr. 

Edward M. Friend, III 

Menefee's services. 

  

State of Alabama ) 

Jefferson Coutny ) 

I, the undersigned, a Notary Public in and for said 

County, in said State, do hereby certify Lake Edward M. Friend, 

ITI, whose name is signed to the foregoing Affidavit, and who 

is known to me, acknowledged before fe. 8h this day, that being 

informed of the contents of said Affidavit, he executed the 

same voluntarily on the day the same bears date. 

Given under my hand and official seal of office this 

(I day of lr , 1976. 
  

A tar SB DBFBpeese 
  

Notary Public