Memorandum Opinion and Order

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IN THE T'NIIED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF AI.ABAI"IA

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JUN29fiB4.
NoRTHERN DIVISIoN THOMAS 6€4VER, CLERT

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) crvrt, ACTror{ No. 83-H-579-N

YTAGGIE S. BOZEMAN
Petitioner

vs.

EALOII M. LAI'IBERT; et a1
Respondents

JULIA P. IIIILDER
Petitioner

vs.

EALON M. LAItsERT; et aI
Respondents

)

)

)

) crvrl ACTToN No. 83-H-580-N

)

)

I'{.EMORANDUI'{ OPINION AND ORDER

Petitioners in these cases have moved for appointment

of counsel pursuant to 18 U.S.C. S 3006A(g), and also for

the payrnent of attorneys' fees and expenses. Petitioners

have prevailed on their claims in this Court, and thus the

appointment would be retroactive. Petitioners proceeded in

forma pauperis in this Court. The cases have not been

consolidated, but petitioners have not distinguished between

the two cases in their reguest for fees and exPenses because

the issues in the two cases are nearly identical.

Petitioners move for appointment of t\ro attorneys - One is

C. Lani Guinier, a staff attorney with the NAACP Legal

Defense Fund in New York City, who has acted aS lead counsel

for petitioners. The other is Vanzetta Penn Durant, a

Plontgomery prac-"itioner who has acted as 1oca1 counsel.

According to I,1s . Guinier ' s af f idavit, several other



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attorneys and law students have put a

into researching petitioners' claims,

no compensation for their services.

large number of hours

but petitioners claim

, appointed counsel- receives

not exceeding S30 per hour for time

S2O per hour for time reasonablY

APPOTNTI',IENT

Under 18 U.S.C. S 3006A(g), a district court has

discretion to appoint representation for habeas petitioners

when "the court determines that the interests of justice so

reguire and such person is financially unable to ob-'ain

representation." Section 3005A(g) makes no mention of the

number of attorneys a court may appoint. It also does not

explicitly provide for retroactive appointment, but S

3006A (b) , which governs appointments for criminal

defendants, provS-des that "appointment may be made

retroactive to incLude representation furnished...prior to
-appointment. " Retroactive appointment thus seems proper in

habeas cases.

Appointment of both Ms. Guinier and Ms. Durant is

appropriate. Petitioners are proceeding in forma pauperis,

and thus are clearly unable to pay their attorneys. A1so,

petitioners' claims tvrere complex, and could not have been

litigated properly without counsel. Fina1Iy, it was Proper

for petitioners to have retained loca1 counsel.

ATTORNEYS' FEES

Under S 3005A (d) (1)

compensation "at a rate

expended in court. . .and

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expended out of court....Such attorney shaIl be reimbursed

for expenses reasonably incurred. " The maximum payment in

habeas cases is "$250 for each attorney in each proceeding

in each court." 18 U.S.C. S 3006A(d) (2). Thus, the maximum

total here would be S1,OOO. Payment in excess of the

maximum is proper, however, "for extended or complex

representation whenever the court in which the

representation was rendered...certifies that the amount of

the excess payment is necessary to provide fair compensation

and the payment is approved by the chief judge of the

circuit." 18 U.S.C. S 3006A(d)(3).

These cases merit a waiver of the maximum fees. The

representation was extended in terms of the hours expended:

Ms. Guinier seeks reimbursement for 234.8 hours. The Iega1

issues were very complex. The Court's opinion granting

- 'petitioners' motions for summary judgment was 23 pages 1ong,

and petitioners raised a number of claims on which the Court

never had to rule. Thus, the Court will certify excess

pa),rment to be ProPer.

Most of the time claimed by counsel aPpears reasonable -

Ms. Guinier claims 233.6 out-of-court hours and 1.2 in-court

hours. Ms. Durant claims 37.7 out-of-court hours. !4ost of

Ms. Durant's time was sPent on telephone cal1s and letters,

which would be expected from her role as local counsel

1"1s. Guinier expended most of her time on f actual and lega1

research and drafting documents. The only questionable

items would be for travel to and from Alabama to taik to

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petitioners, witnesses, and attorneys. She claims 35.5

hours as travel time, but all were either before l{s. Durant

came on the cases or for the oral argument on the motion for

sufirmary judgment. Thus, all of the hours claimed by

petitioners are reasonable. This results in fees of $4,708

for Ms. Guinier and $754 for Ms. Durant.

TRAVEL EXPENSES

Ius. Guinier claims S1,773.32 in travel exPenses that

were paid by the Legal Defense Pund. She incurred these

expenses on three trips to Alabama to meet and interview

petitioners, confer with petitioners' prior counsel,

interview witnesses, examine fiIes, and conduct factual

investigations.

The Court does not believe these expenses to be

reasonable. Although I'ls. Guinier's rePresentation in this

mltter was highly effective and comPetent, the Court does

not believe that it was justified for petitioners to go so

far away to find attorneys, at least nct where the

Gorzernment is asked to bear the expense. Thus, the Court

will not approve the travel expenses.

POSTAGE

Both attorneys seek reimbursement for postage. Ms.

Durant seeks $44.18, which aPPears reasonable because she

undoubtedll' had to correspond freguently with Ms. Guinier

and petitioners. Ms. Guinier seeks S162.05, all of which

constitutes Federal Express charges. Over half is for mail

sent to Siegfried Knopf, a law clerk whc did much of the

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Iegal research for petitioners. The rest is for mail sent

to petitioners, l{s. Durant, and the Court.

The Court will reduie Lhe postage claimed by Ms.

Guinier. She gives no reason why Federal- Express vr,as

necessary, and with mail sent to petitioners and I4r. Knopf

the Court can think of none. The Court thus will reduce by

half the postage for Federal Express to petitioners and 1,1r.

Knopf. This would leave a total of $105.33 for Ms. Guinier.

PHOTOCOPYING

Both attorneys seek reimbursement for photocopying.

Ms. Durant seeks $141.75. She does not specify the

rnaterials copied, but does state that she paid S0.25 per

page. I,Is. Guinier seeks $547.50, and paid S0.15 per page.

Ms. Guinier has specified the materials copied.

The Court finds petitioners' photocopying claims to be

unreasonabLe. For instance, Its. Guinier seeks $5'10 for

copying a one-page court order. She also seeks $76.50 for

copying petitioners' motions for Surrur,ar1z judgment, which

totalled twelve pages. Petitioners apPear to have made a

ver), large number of copies of some of the documents thel'

copiefl. Possibly they did this primarily because they hac a

large number of people working on or review5-ng these cases,

including the director of the Legal Defense Func, a law

professor, a history professor, and one or more 1aw clerks.

This cannot be justified when petitioners already have two

appointed attorneys to whom the Government is requested to

pay fees. The court will a1low petitioners one-fifth of

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their claimed photocopying costs. This totals $28.35 for

Ms. Durant and $109. 50 f or 1"1s. Guinier.

TELEPHONE

Ms. Durant seeks to recover S55.09 in long distance

charges, and Ms. Guinier seeks 5180.17. None is itemized,

except that $50.00 represents a phone conference with Mr.

Knopf on the day before the oral argument. I"ls. Guinier's

location obviousl-y necessitated considerable exPense in

phone calls. There is no indication in the appendix listing

the phone expenses why }"ls. Guinier had to confer with ltr-

Knopf by telephone. It aPpears from 1"1s. Guinier's

affidavit that he was not employed by the Legal Defense Fund

at that time, and thus he may have been at another location

or in school. The Court finds petitioners' phone exPenses

to be reasonable.

}lISCELLANEOUS EXPENSES

I,1s. Guinier claims $2268. 39 in miscellaneous exPenses.

of this, $1,555.87 went to a history professor and a

graduate student for historical research, and $350.00 to an

expert for petitioners' pre-filing factual investigation.

I'1rs. Guini-er also seeks $I2.98 for the purchase of 1egaI

research materi-a1s, S54.90 for loca1 taxis, $119.64 in

travel and exPenses for petitioners to attenc the oral-

argument, and $75.00 in unspecified miscellaneous exPenses.

Petitioners cannot recover more than $150.00 for their

investigatory expert and their historical research. Under

]E U.S.C. S 3OO5A(e) (1), counsel may obtain payment for

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servj-ces other than counsel, but S 3005A(e) (2) limits such

payment to $150.00 unless counsel obtains prior

authorizati-on. Counsel here obtained none. Ms. Guiner

should receive $150.00, because some factual research was

reasonable. In particular, b"".u=" petitioners claimed to

have been prosecuted discriminatorily, some research into
the history of the voter fraud statute was necessary.

1"1s. Guinier should not recover petitioners ' travel

expenses or any unspecified miscellaneous expenses. The

former were not reasonable because petitioners' attendance

at oral argument was unnecessary. They did not testify, nor

could they have given any testimony pertinent to the issues

under consideration at t,he time. t"1s. Guinier should not

recover unspecif,ied expenses because the Court must be able

to determine whether expenses are reasonable.
u ' The expenses for legal research materials and local

taxis are reasonable. This leaves Ms, Guinier's recoverable

miscellaneous expenses at S217.88. Accoroingly, it is

ORDERED that petitioners' motion for appointment of

counsel is granted. Contemporaneousll, with the entry of

this memorandum opinion and order, this Court has appointed

Hon. C. Lani Guinier and Hon. Vanzetta Penn Durant to

represent petitioners in these actions, by the filing of

"Appointment of and Authoritl, to Pay Court Appointed

Counsel" (CJA Form 20).

In accordance with the Court's opinion, and uPon

submission by counsel of their completed cfaims for services

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or expenses, this Court will

the Eleventh Circuit Court of

As to l'1s. Guinier:

In-court services

Out-of-court services

Postage

Photocopying

Telephone

Legal Research materials

Taxi fares

certify to the Chief Judge

Appeals the following:

$ 36.00

4,672.00

$4 ,'7 08.00

10s.33

109.50

180.17

12.9E

54.90

of

Maximum allowed for expert, etc 150.00

612.88

$5,320.88

As to l"ts. Durant:

Out-of-court

Postage

Photocopying

Telephone

754.00

881.62

DONE this 29Lh day of Jurre , 19 8 4

I,INITED STATES DISTRICT

servaces

44.18

28.35

55.09

JIIDGE

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