Plaintiffs' Motion for Award of Costs and Attorneys' Fees
Public Court Documents
December 3, 1976

85 pages
Cite this item
-
Case Files, Bolden v. Mobile Hardbacks and Appendices. Plaintiffs' Motion for Award of Costs and Attorneys' Fees, 1976. 9fb86f54-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4428406f-c525-40e1-86e7-9a848209e5f3/plaintiffs-motion-for-award-of-costs-and-attorneys-fees. Accessed April 29, 2025.
Copied!
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 ep meses Vow me i SABA IER 50 BA rs AT dr TNR TT SNA ps rr mn Ts Kr AAI EC te am he TT pam ht a do cm en a TL ei m3 we a a A eS Tn mn i 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 y - - -_ - _- SE - _. i, a EE —_— I i bis A at Te se a Xo an NR NS Ev mali oe RR iis me mc sah i. oc. i Ue a te et en mh Ei Tr re Al IAA: Sg ml 5 ep i tn A el er mp a i tt 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”). : e a AE S L Se R A T Sh PT Ten A R I N 0 i w 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 R d : ~ ~ " n g s J £1 50 ge JUNE 29 (legislative day. June 18), 1U76.—Ordered to be printed J Mr. Tu~NnNEY, from the Committee on the Judiciary, submitted the following r PT, te rp 3 Ta 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, : . ¥.. eT 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. rm » 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 . 3 , > BI ah I 25 57-010 ER] Any re Fri * Ea Ris * “24 ¥ FOYT Ll Fy 1 a er STRATE Yo Nga x a = ns Tes ern an AD Kann Nea EAESED EAR CoC i a oR Sod Bon 5 fo) : eA re Roof IF 2 3, CA, . i hen RCE ET Ea Ne a . x x y BE Sa ASN Log AP ey Ae Sa EIT Ft Torti SRSA Sn d e a , . . . » B B RP P A . Se i Foie PAE Ad ® 3 » 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. Ee a a t 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. S.R. 1011 HN, = = es Cant pod - DETFDN RES ar HE eh a Ns Wi ol 3 SpE Les mae CEA ree se ; fo SIR, SEW Mn TN ar A hn, Fr NR oy I Ran Wel (55 LS Tu ert - oo Lad Ena EA A TI SE ERS AE TI RF Sr AA Tra = > A Ta — ay ag HAR d a g bi tL Le I f Fr Pn PENS, Ee Py ET aA AAT LAL ey Sim 3 SEER . -. 3 - 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- . 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). ; 3 The causes of action established by these provisions wero eliminated in 1894. 28 Stat. 33. p r 0 o r PO T S A Y - 4 a yu : > S.R. 1011 : > PINE Roa EL = = SEES. SEs nd NT Ae Sop oS See ETA TOR og Se mt CA en > 2 3 As Tao PIT & DN A fs TA Rey SA Sr S30 pro [SAVER EN mag Sa Ip one rate T ; vd ns A AT : eS Eras a For iE ANS An STN 7 Pardons HAN T Re SNE TR ATR A Ow WOR, ~~ ry rile . ES 3 ” TAN a SEE RR EYE ed ARN 2 2X 2) x SAR Nr 2 ¥ Te p Sas Sr 14 r » rd; = On, aA ARTE Gare FOR . i al J gL EY i. vi WB og pi" fn XT Ne 4 a a : ws, - RTE St 3 Ei SI Fommey ier 4) eR oir Solis Ow | - », . . ~ > Yep * " - bs * 3. Hit . ER TC la te} $e" a : [= Cea ar NL LE : ’ 1 id ’ 4 : a————e .X Re oe yn ” y: J i - A R P : L r . GH H A E r g Ar: or, YX. - a ® ; 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. Ss. Jot 42 U.S.C. § 3612(c); C. § 1617; the Equal 2000e~16(b); and the w— - . T E E Y r se y r g ey re . at £ £ Aw NS . I a’ sv, : RE ETE Re N A 1 vw S35 -, 2a 3 -~ 4 . Fi . Su + - 3 ti . 37 > 3 ’ oY, he h dr 2 ta t kf i S A L A w # n o b , a «4 g 2% ~~ ~ a ™ Ap PA pe ie PR AR eg 1. Psy » Ba - ; Ca pt * ts ci da nd Set 3 Ra 72 — i iy ITER aa AEE 4 a. ERR Wo i ls 3 med 3 ot ing tae tt Bid ltd § Dot St KF Reno Be ST a » LV, ~~ - tg Ye hgh 1 cl Fas) E 3 5 --e 2d A] ’ . . : 014, ~ ~ =. is : 4 - pole TR =. BY FF yr. - te pi 2rd Ue wt Ad ; Py or rg v «rb at - Ig [1 ete Ld n A o- no ii rol Ya ee F Ad - < i ard aii Ve, A » ar - %; hE) Ta - Far LJ 3 - Ot 2 : I : - i a ad J is *: sami 2 RIC eo Sa rs) Noid, pF ra . A = ey en AT ARC AS rn vA ey "als ‘ AGT iif 2 2. re 32a Se TE Fei ol SERPENT) we 2 K To ne ag By de “4 Ip? - BAe, et oD ha? hy) P A 4 3 Ta y - - av ORS RA RS Se Ter SSE ey A AN ET ns No rn | . J ed e s w i c e p aie uy A g e , p n d i BL SR 5 ON iz va re SY ew TY ~ ~ NW ov rd At pe pv e W n o m e L X F. ¥ Fp ee —— —, 0 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 Oo e ) 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). S.R. 1911 - : ' xi n- -e” 4 3 ur > z Ra ¥en: d H - °F [J i. vr 2 RE Ponte 500% t J : wipirtle, Foil y : AT > : alle - i LL = 4 ar t y e f Ww e y i 0 B E d a i d E e d d d SL a LE R H R D a h ENA Raat 8) ¢ TNT IR A a TE Vo SY Fim Yon A Ar vn py i, TN NH — Cy aia Rd me re me or an NT nt a A | — A rs Ta nk a go vr a me mean s mw PA so gpg on pt te ta 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. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C. us 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 al : . ‘le courts. If the cost of private enforcement actions becomes too : , . , Rh Citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases. a i : CaaNeEs Iv Exrsrrvg Law Mabe BY tem Bing ARE ITALICIZED 3 i x : . frites i REVISED STATUTES § 722, 42 u:s.c, § 1983 | i 1 : { : i ili ' ; : ‘The jurisdiction in civil and criminal matters conferred on the : t B h 3 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 ANE 1 Py \ ay. red : Br £ Sew = ee wn — vu Rights Act of 1964, the court, in its discretion, may allow the pre- vailing party, other than the United States, a reasonable attorney's fee S.R. 1011 . 3 4 i A TR . { . EE yg > ¢ ow Tt Re oa = 3 RS nO RT . oe on " hyo a SNE Raa ig : I ; = - » Lada Te NS me A i —— A NT ra < EPCRA TOA TL ta = Ee emer: Se a A ae = as Rs Loy PRESET AR = on ~ Re” Pa? TY a Tet fo . - rar 2 Ben Sl pg pate SRA TTA SA [Prine iE hy A gh 3 " uaa ore NR i 3 Er TT Re Ro A a SI Ren 2 a REE pO rm ad eS ET or 3 I aE Te ea, As A Se Cra wom CAPE whe TEEN Sw Aa a. . i 3 Sa SA EA de a Hp > wg — Ae a N on wh Pd ny kd FW SERESATE Lip Soy , @ Cost oF LEGISLATION T] E n n a i PP OT U P O R - 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. “Based on this review, it appears that no additional costs to the i would be incurred as a result of the enactment of this bi hid EER . id ee » Oo LE a Sli, 3 } | eZ 5 E Ji a : 3 5 - » T E P “0 0 . $4 Aoi, En Lal la : tS 2 t * : $ 3 be S g EP “4 4 S.R. 1011 7s oT fr — Hog) TA = Crm Fa = Pe A a pa BE a — vas es ran RE Net EES Ee nn ME oh ee SER a XA TEAS TEV TTT or . So > Tie ? 3 2 iit a il : EYL ¢ it . ~~. . A ty ; : es A AT Ad his oo : . CALS Te (ae LR a WA : 4 RO “5 . ; % . . a \ H ' re . ’ . . % ‘ 2 wo tev: ely ; «2 Say ne i . , ; - ant 75 ize 3 . - SE ~ : ta = + . - -~ - . - . a hed 5 py ERRATA Er An A ND Lar a ny 3 Sr mo 2 AA WE eta g Cay ES { Eo Fe Tm IN, Pp Se Rd SA >on NE Cm vO NA x) TAL AST] WC ER 0) nt Po ERY Ere A, — a 5. - - ~ 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 | ES Hid > 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 v o b AV E A C E R S Ar A Te) oy we AT E & A Y xe Ld + BK C ag p RI nil ha s de ad ) 1977,:1978, 1979, 1980, and 1981 of the Revised Statutes, H h ¥ & - 9) 6 7 any action or proceeding to enforce a provision of sections 8 1 title IX of Public Law 92-318, or title VI of the Civil Rights 10 Act of 1964, the cowrt, in its discretion, may allow the 11 prevailing party, other than the United States, a reasonable 12 attorney’s fee as part of the costs.”. 3 HA LO W {e ne re + e g w in p a g i. a. - an S h a r 0 1d [ y a . B I S T i y y 5 o r s m R r y TY a w te: 3 A 5 . 1] A O A Bs I v e ia d . » » ~ ~ 0 g , - n s 0 a t le a i h LR S E T I At CF 0 A t hat in : 941 Coxcress | HOUSE OF REPRESENTATIVES ! _ Report 2d Session No. 94-1538 THE CIVIL RIGHTS ATT ORNEY'S FEES AWARDS ACT "OF 1976 PU RE VI L AP PR C u p P R E B L E S Y 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] F P P R T I E T SO R [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. 57-006 o w . r e » I g o a ra ' i t o af r a l ad mt, ol FIPRL T TO RT PE RR Y (YP o P Pe h b 00 tt m a v e n Et he NE i Sl C n a b n a n » sab ! ie NEN S O Y . PR R W R N | Wd PUT RI A B P R S I SA PP T I E R B R TR A I fn 3. al A TI IE WN WI Sat HT 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). PA fl e ap ha l e d or es 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 witl- murs shal or | show in, C mens cepE thar sepe dep § 1G jn tenc ity, inst visi acti abil of # wha cor wit Toct ECE the for ters tity hee or (2) no : has wit sec’ ref wit Tre Ho act orc thi 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 W = O N N N e d 3 JI NN , LG a SH OE 1) RI E a SR R wi ot e SE RR E, o o ni vu g l JOINT 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 = p p e p e N D on J E R E G U ¥ SH IR ov SE E 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 N W e e O Jo n SR SE E on JE N B R E T BO LE V pR aE © | M E S R UE 7 Al e Yo N o p 1 o C MN O N D + OO C A N A A N . un No Un © + HH Ww W OO B R E E we SE E wn RE we [B OE 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 0 G T TR EE » SH R oo RE C + 5 BA RE 4 4 4 SA BE : vee : EC DL , wn s e ov WU RR se LI BR Sr 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 pt © pt Pe Fl YT Rt 0 O v . O D I N NY i S E Y es SC OR E oe TO I ee SE NS 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 a = a 2 2 . Pg JE 3 Se g ~ - ‘ LB - is gm. 3 ———— at: 2 Baas Pond wo yo = a Set —— Er : . : . : i Sl = 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 ND N um [IY LJ Ww ho H E C pe in ow SR E S r l o DE GR EE + SE ED + CO RR E ©; SE G WR N f t [J ® ’ bs LJ [TY ’ o 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