Salone v. USA Brief for Plaintiff Appellant

    TENTH CIRCUIT 
No. 79-1929

ANTHONY M. SALONE, JR.,
Plaintiff-Appellant, 

v.
UNITED STATES OF AMERICA, 
et al.,

Defendants-Appellees.

IN THE UNITED STATES COURT OF APPEALS FOR THE

On Appeal from The United States District Court 
for The Western District of Oklahoma

BRIEF FOR PLAINTIFF-APPELLANT

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 
(212) 586-8397

CLAUDE V. SUMNER
4444 South Douglas Boulevard 
Oklahoma City, Oklahoma 73150
(405) 733-3851

Attorneys for Plaintiff-Appellant



I N D E X

Questions Presented ............................................. 1
Statement of The Case

A. Course of The Proceedings............................. 2
B. Facts

1. Adequacy of the R e l i e f ........................... 6
2. Attorneys' F e e s .................................. 10

ARGUMENT
I. Plaintiff Was Not Awarded The Full Relief to Which

He Is Entitled under Title V I I .......................12
II. The Amount of Attorneys' Fees Should Have Been

Determined on The Basis of The Time Spent And A 
Reasonable Hourly Rate ..............................  18

Conclusion......................  22
Certificate of Service ........................................  23

Table of Cases
Albemarle Paper Co, v. Moody, 422 U.S, 405 (1975) . . . .  12, 22
Allen v. Amalgamated Transit Union Local 788, 554 F .2d 876

(8th Cir.), cert, denied, 434 U.S. 891 (1977)...........  18
Bachman v. Pertschuk, 19 EPD 1(9044 (D.D.C. 1 9 7 9 ) ...........  2 0
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437

(5th Cir. 1 9 7 4 ) ........................................  13, 14
Booker v. Brown, ____ F.2d ____ (10th Cir., April 7, 1980) . . 21
Brown v. Culpepper, 559 F . 2d 274 C5th Cir, 1 9 7 7 ) ...........  20
Cannon v. University of Chicago, U.S. , 60 L.Ed, 2d

560 (1979).................................................  19

Page

i



Page
Chandler v. Roudebush, 425 U.S. 840 (1976) 3
Copeland v. Secretary of Labor, 414 F. Supp. 647 (D.D.C. 

1976) ................................................... 15

Cross v. Board of Education, 395 F, Supp, 531, CP, Ark,
17

Day v, Mathews, 53Q F,2d 1083 CD.C, Cir, 1976) 14
Evans v. Sheraton Park Hotel, 503 'F.2d 177 (D.D.C, 19741 , , 18
Fountila v. Carter, 571 F.2d 487 C9th Cir, 19781 , , , , , ,  18
Franks v. Bowman Transportation Co,, 424 U,S. 747 (.1976112,14,17
Hairston v, R & R Apartments, 510 F,2d 1Q9Q (7th Cir. 19.751, 18
Harkless v, Sweeny Independent School District, 608 F,2d 594

(4th Cir. 1 9 7 9 ) .................... , , , , , , , , ,  ,20, 21
Hernandez v, Powell, 424 F. Supp, 479 (D, Tex. 19771 , , 15, 17
Johnson v. Georgia Highway Express, Inc,, 488 F,2d 714 C5th

Cir, 1 9 7 4 ) .......................................... , , , 1,18
Johnson v. Goodyear Tire & Rubber Co,, 491 F,2d 1364 C5th

Cir. 1 9 7 4 ) ..............................................  13, 14
King v. Greenblatt, 560 F .2d 1024 (1st Cir. 1977) , , , , , 18
Newman v. Piggie Park Enterprises, 390 U.S, 40Q (1968) . . .  22
Ni.tterright v. Claytor, 454 F, Supp, 13Q (D.D.C, 1978) , , . 15
Northcross v. Board of Education of Memphis City Schools, 611 

F . 2d 624 (6th Cir. 1979.) .............. 18
Parker v, Califano, 561 F,2d 320 (D,C, Cir, 1977), , , 19,20,21
Patterson v. American Tobacco Co,, 535 F,2d 257 (4th Cir,

1 9 7 6 ) ................................................. .. , , 17
Prate v, Freedman, 583 F,2d 42 (2d Cir, 1978) , , , , , , ,  18
Richerson v, Jones, 551 F,2d 918 (3rd Cir, 1977) , , 14,15,16,17
Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir, 1977) , . , , , 18
Selzer v. Berkowitz, 477 F, Supp, 686 (S.D.N.Y, 1979) , , , 2Q
Skelton v, Balzanq, 424 F. Supp, 1231 (D,D,C, 1976) , , , , 17

lx



Page
Stallings v. Container Corp. of America, 75 F.R.D. 511 (D.

Del. 1 9 7 7 ) ...................................................  17
Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir.

1 9 7 5 ) .....................................................  1 ,18
Walston v. School Bd. of City of Suffolk, 566 F .2d 1201

(4th Cir. 1 9 7 7 ) ............................................. 18

Other Authorities
Civil Rights Attorneys' Fee Act of 1976 ....................  18
5 C.F.R. §713.221(b)(2)   8
29 C.F.R. §1613.221 (b) ( 2 ) ....................................  8
H. Rep. No. 94-1558, 94th Cong. , 2d Sess. p. 8 . . . .  . . . 19
S. Rep. No. 94-1011, 94th Cong. 2d Sess., p . 6 ......... 18, 21
42 U.S.C. §2000e-16 ..........................................  2

iii



IN THE UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT 
NO. 79-1929

ANTHONY M. SALONE, JR.,
Plaintiff-Appellant, 

v.
UNITED STATES OF AMERICA, 
et al.,

Defendants-Appellees.

On Appeal from The United States District Court 
for The Western District of Oklahoma

BRIEF FOR PLAINTIFF-APPELLANT 

Questions Presented
1. Did the District Court grant adequate relief to 

a federal government employee who was successful in his claim 
that he had been discriminatorily denied promotions in 1970 and 
1972 in violation of Title VII of the Civil Rights Act of 1964?

2. Did the District Court err by calculating attor­
neys' fees as a percentage of the back pay recovered instead of 
on the basis of the standards set out in such cases as Johnson 
v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), 
and Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir. 1975)?

1



Statement of The Case

A. Course of The Proceedings
This is the second appeal in an action brought under 

Title VII of the Civil Rights Act of 1964, as amended by the 
Equal Employment Opportunity Act of 1972, 42 U.S.C. §2000e-16. 
Plaintiff-appellant, Anthony M. Salone, Jr., is a black civilian 
employee of the United States Air Force at Tinker Air Force Base 
in Oklahoma City, Oklahoma. This action was commenced in 1973 
after a final decision of the Civil Service Commission affir­
ming the decision of the Department of Air Force denying his 
claim that he had been discriminated against on the basis of race 
with regard to certain employment opportunities and that he had 
suffered reprisal because he had filed an earlier complaint of 
discrimination. During the first administrative processing of 
the complaint a Civil Service Commission Complaints Examiner, 
following a hearing, had recommended that the Department of the 
Air Force find that plaintiff had been discriminated against 
and had suffered reprisal (Defendants' Exhibit 1, p. 27). 
Despite this recommendation, the Air Force found to the contrary, 
requiring the filing of the present action.

The United States filed a motion for summary judgment 
based solely on the administrative record and decision of the 
agency. The District Court granted the motion, holding that the 
plaintiff was not entitled to a trial de novo of his claims of 
discrimination and reprisal. That decision was affirmed by this

2



Court (511 F,2d 902 Cl9 7 5) )_ and a petition for writ of cer­
tiorari was filed in the United States Supreme Court, The 
decision of this Court was vacated and the case remanded 
for reconsideration in light of the Supreme Court's decision 
in Chandler v. Roudebush, 425 U.S. 840 (1976), holding that 
federal employees are entitled to a trial de_ novo of their 
claims of discrimination in actions brought under Title VII, 
426 U.S. 917 (1976) .

On remand to the District Court the case was 
first remanded to the United States Civil Service Commission 
for further consideration (Order of Remand, March 28, 1977) 
(Rec. on Appeal, p. 55) The Civil Service Commission in 
turn sent the case back to the agency for a new decision.
The agency again rejected the complaints examiner's holding 
with little elaboration. Therefore, a second action was 
filed in the District Court and the two actions consolidated 
for trial.

In March, 1979, a five-day trial on the merits of 
the claims was held, based on live testimony and documentary 
evidence, including the full record of the administrative 
processing of the complaint. At the trial the United States 
did not contest the fact that plaintiff had been discriminated 
against because of his race. Indeed, the government's Pro-

3



Thus, theposed Findings of Fact specifically so acknowledged, 
primary issue was the relief to which plaintiff was entitled.

Plaintiff had consistently urged that he should be 
put in a higher GS level on the ground that in the absence of 
the earlier discrimination, he would have advanced similarly to 
comparable white employees who had not been discriminated 
against.

The District Court issued an opinion holding that 
plaintiff had been discriminated against, that he was entitled 
to be retroactively promoted to a GS-7 as of 1970 and a GS-8 
step 1 as of 1972, and was also therefore entitled to back pay 
to make up the difference between those salaries and the

1/

1/ The government's proposed findings included the following:
4. That the plaintiff has been labeled as a 

troublemaker in his work environment because of his 
filing of discrimination complaints and has been 
reprimanded more than usual for his mistakes in his 
job performance.

5. That there existed at Tinker Air Force 
Base at the times complained of by plaintiff racial 
discrimination in the performance appraisals, pro­
motions and job assignments of blacks in civilian 
employment.

*  * *  *

18. That the plaintiff has been a victim of 
racial discrimination in his employment at Tinker 
Air Force Base during the times complained of by the 
plaintiff.

Defendants' Proposed Findings of Fact, pp. 2-3 (Record on Appeal, 
pp. 79-80).

4



salaries received as a GS-5 employee (Findings of Fact and 
Conclusions of Law, April 25, 1979, p. 4; Rec. on Appeal, 
p. 99 ) • At a hearing on May 3, 1979 , the Court announced that 
any counsel fee recovery would be limited to one-third of the 
back pay recovery (Transcript of Proceedings, pp. 7 90-91 )_• 
Subsequently, the Court entered a judgment granting a total of 
$15,544.32 in back pay and $5,181.44, or one-third, in counsel 
fees (Rec. on Appeal, pp. 106-07),

A motion to alter or amend the judgment was filed 
raising two issues. First, it was urged that plaintiff should 
have been promoted to higher levels subsequent to the GS-8,
Step 1, promotion in 1972, since it had not been shown that he 
would not have normally advanced but for the discrimination. 
Second, it was argued that the amount of attorneys' fees was 
inadequate since it did not accurately reflect the work re­
quired during the two administrative proceedings, two court 
proceedings and an appeal to this Court and the United States 
Supreme Court necessary to obtain relief for the plaintiff. 
Therefore, the calculation of attorneys' fees simply as a per­
centage of the back pay recovery was inappropriate and not in 
compliance with prevailing law governing the calculation of 
attorneys' fees in civil rights cases (Rec. on Appeal, pp. 110 
117). The District Court denied the motion to alter or amend, 
holding that plaintiff-appellant would not have advanced above 
a GS-8 step 1 in the time since 1972 because he was "a trouble­
maker" and his work had been unsatisfactory. With regard to

5



attorneys' fees, the Court held that the amount requested was 
unreasonable, but did not make any findings of fact to support 
this conclusion. (Rec. on Appeal, p. 133). A timely notice of 
appeal was filed (Rec. p. 134) and the case eventually placed on 
this Court's calendar B.

B . Facts
1. Adequacy of the Relief
Plaintiff-appellant was hired at the Tinker Air Force 

Base initially in 1947 as a wage board (or blue collar) employee. 
Following a long period during which he had experienced a number 
of difficulties and during which he received few promotions, he 
filed a complaint of discrimination in 1967. Shortly afterwards 
he was promoted to a GS-5 supply clerk position (Series GS-2005) 
where he remained until 1979 (See, Def. Exhibit 1, p. 144; p. 19). 
After he had received what he regarded to be an unsatisfactory 
and discriminatory performance appraisal he filed the present 
complaint of discrimination and reprisal.

The complaint was accepted and an investigation 
followed which unearthed evidence of general patterns of dis­
crimination against blacks in the job categories in question, of 
a variety of improper employment practices, and of apparent acts 
of reprisal against the plaintiff. Both white and black co-workers 
of plaintiff attested that they believed he had suffered dis­
crimination and reprisal ( See, generally, Def. Exhibit 1, pp. 9- 
10, summarizing the affidavits at pp. 76, etseq.). Further, many

6



stated that various supervisors had branded him as a trouble­
maker because he had filed complaints of discrimination in the 
past. Nevertheless, the local officials at Tinker Air Force 
Base proposed a finding of no discrimination (Def. Exhibit 1, 
pp. 41-43). Plaintiff exercised his right to have a hearing 
before a Civil Service Commission complaints examiner, and 
following that hearing, which consumed two days early in 1973, 
the complaints examiner issued a recommended decision of 23 
pages based on a record of over 700 pages in which he found:

Careful review, study and consideration 
of the total record compiled in this 
case leads me to conclude that 
Mr. Salone has been the victim of 
systematic, continuous discrimination 
within the Material Processing 
Division. The evidence is overwhel­
ming that because of previous dis­
crimination complaints which he pursued 
in 1967 and 1970, Mr. Salone has been 
branded as a "troublemaker11 and has 
in numerous respects been treated 
differently from whites and, in many 
cases differently from other blacks who 
have not filed discrimination complaints.
Id., p . 19.

The Department of the Air Force handed down its final 
decision of little more than a page on March 9, 1973. Its entire 
discussion of the record and the recommended decision of dis­
crimination was, "The entire record of your complaint has been 
carefully reviewed and it has been determined that the evidence 
therein does not support your allegations of discrimination based 
on race " (Id., p. 6), Despite the requirement of the Civil
Service Commission's regulations no further explanation was given 
as to why the detailed findings of the complaints examiner were

- 7



summarily rejected. As stated abovefthis result precipi­
tated the present action and eventually culminated in a 
five day hearing before the District Court early in 1979.

At the hearing the Court heard many of the same 
witnesses who provided affidavits and who testified at the 
administrative hearing in Mr. Salone's case. These wit­
nesses gave testimony fully consistent with that given during 
the administrative process. His co-workers unanimously testi­
fied that Mr. Salone was a good and conscientious worker.
However, they had heard from various persons, particularly at 
the supervisory levels, that he was "a troublemaker." Most of 
those employees assumed that referred to the fact, well known 
to everyone, that he had complained about racial discrimination. 
None of his co-workers testified either at the trial or during 
the administrative process that they themselves thought that 
Mr. Salone was a troublemaker or that he did not perform his 
duties well. ( See, e.g.; the testimony in the Transcript of 
Trial at pp. 275, 278, 289-291; 318; 334-335; 339-340). The 
only testimony to the contrary was from supervisors relating to the 
period prior to 1972 ( See, e.g., Transcript, pp. 752-53.)

The supervisors charged with discrimination testified 
that they had not committed any discrimination. However, the 
government did not contest that discrimination had indeed taken

2/

2/ See, 5 C.F.R. §713.221(b) (2) , now 29 C.F.R. §1613.221 (b) (2) .

8



place, but rather focused on what relief Mr. Salone was entitled 
to. The only testimony or evidence relating to the period after 
1972 were documents showing that Mr. Salone had performed his 
duties in a highly satisfactory manner, receiving performance 
appraisals in the high nineties on a scale of 100. Indeed, in 
1976 he was recommended for an outstanding performance rating. 
(Defendants' Exhibit 2).

Mr. Salone himself testified that he believed he 
would have advanced to the GS-14 or 15 level if he had been 
provided equal employment opportunities earlier in his career.
He specifically noted that his qualifications were equal to or 
superior to those of whites who had so advanced. Thus, he had 
more than three years of college education as compared to high 
school diplomas held by some of the white supervisors.

The testimony further showed that at Tinker Air 
Force Base it was not necessary to apply for positions as they 
became available. Profiles were developed by a computer of all 
employees who had the eligibility for positions, and those 
eligible were contacted to find out if they were interested in 
the positions (Transcript, p. 235; plaintiff's Exhibit 5, 
pp. 6-7). Mr. Salone had been contacted in the period from 1972 
for some GS-6 positions, but had declined some on the ground 
that they were dead-endand could not lead to further advancement 
(Transcript, pp. 687-88). He had not declined others and 
although he had been considered for a number of GS-6 positions

9



he had never been promoted to one (Defendants' Exhibit 2).
The District Court in its findings of fact and in 

its denial of the motion to alter or amend the judgment found 
that Mr. Salone was in fact a troublemaker and did not perform 
his duties satisfactorily, notwithstanding the absence of any 
testimony to that effect. Indeed, these findings were directly 
contrary to the government's admissions in their proposed 
findings of fact that he had been "labeled as a troublemaker 
. . . because of his filing of discrimination complaints" and 
that "the plaintiff's performance in his job was satisfactory " 
(Rec. pp. 79 and 80).

Subsequent to the Court's decision Mr. Salone was 
put in the position of a Freight Rate Specialist (Series GS- 
2131, 7/12) at the GS-8, step 6 level, retroactive to 1972. 
According to the official position classification standards of 
the United States Civil Service Commission (now the Office for 
Personnel Management) the freight rate specialist position 
ranges from GS-7 to GS-12 depending upon the level of respon­
sibility. Thus, it is a job series through which promotions to 
higher levels may be achieved because of an increased level of 
responsibility and performance without the necessity of com­
petitive bidding (See, Plaintiffs' Exhibit 5, p. 5) ,

2. Attorneys' Fees
As noted above,this action has taken more than seven 

years solely because of the Air Force's continued refusal to 
acknowledge clearly established discrimination until the trial 
in 1979. Because of the initial decision of the District Court

10



to deny relief without a full trial, the case had to be taken 
to this Court and ultimately to the Uni ted States Supreme 
Court. Upon remand there were further administrative pro­
ceedings; because relief was again not provided a five-day trial 
was required.

Following the District Court's announcement that the
fee award would be limited to a percentage of the back pay
award and an entry of an order to that affect, a motion to alter
or amend was filed with affidavits showing the number of hours
necessitated by the multiplicitous proceedings. Total fees in

3/
the amount of $20,045 were requested. It is uncontradicted that 
Mr. Salone had paid out of pocket to the attorneys who first 
handled his action through the initial appeal to this Court fees 
of $4,515.00 (Affidavit of Anthony M, Salone, Jr.). Thus, vir­
tually the entire amount awarded would be used up to compensate 
for the work done before the remand and the further proceedings 
that eventually lead to success in the lawsuit, with either the 
plaintiff or his trial counsel having to absorb a loss of $6,000. 
The Government at no point contested the reasonableness of the 
hours spent nor the hourly rates requested. The Court simply 
made the conclusory statement that the amount requested was un­
reasonable without any findings of fact to support that 
conclusion.

3/ See, Motion to Alter or Amend the Judgment, p. 6 (Record, 
p. 215), for the hours claimed and the hourly rates, together 
with the supporting affidavits (Record 216-230).

11



ARGUMENT
I.

Plaintiff Was Not Awarded The Full Relief 
to Which He is Entitled under Title VII
The Supreme Court in Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) held that:
It is also the purpose of Title VII 
to make persons whole for injuries 
suffered on account of unlawful un­
employment discrimination . . . .
Where racial discrimination is con­
cerned, "the [district] court has 
not merely the power but the duty 
to render a decree which will so 
far as possible eliminate the dis­
criminatory effects of the past . . . "

422 U.S. at 418. Specifically, where the injury is of an
economic character, the Court held that -

. . . The injured party is to be
placed, as near as may be, in the 
situation he would have occupied 
if the wrong had not been committed.
Wicker v. Hoppock, 6 Wall 94, 99 
(1867) .

422 U.S. at 418-19. See also, Franks v. Bowman Transportation 
Co., 424 U.S. 747 (1976).

Thus, the courts have adopted the principle that once 
it has been found that a person has been discriminated against, 
then relief should be fashioned to place him in his "rightful 
place." That is, to the extent possible he should be put in the 
situation he would have been in if there had been no discrimination. 
Further, the presumption is that the victim of discrimination would 
have advanced and been promoted in the usual fashion, The employer 
has the burden of demonstrating by clear and convincing evidence

12



that the employee:
would have never been advanced because 
of that individual's particular lack 
of qualifications for a more difficult 
position or for other good and 
sufficient reasons such employee would 
never have been promoted. It is 
apparent that whether any particular 
individual would have been advanced 
under a color-blind system cannot now 
be determined with 100% certainty.
The court . . . will have to deal with 
probabilities. Any substantial doubts 
created by this task must be resolved 
in favor of the discriminatee . . . .
The discriminatee is the innocent 
party in these circumstances.

Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 445
(5th Cir. 1974).

Thus, the discriminated against employee does not
have the burden of showing that he would have achieved a
certain level. Rather:

It is the employer who created the dis­
criminatory situation which prevented 
free choice in the first instance. It 
is, therefore appropriate to require 
the employer to show that its invidious 
limitations on free mobility were not 
the cause of the discriminatee's current 
position in the economic ladder.

Johnson v. Goodyear Tire & Rubber Co., 491 F .2d 1364, 1380 (5th 
Cir. 1974). Similarly, any doubts as to whether the dis­
criminatee would have performed well enough to be advanced must 
be resolved in his favor. As the Supreme Court has held:

It is true, of course, that obtaining 
. . . evidence . . . [of] what the 
individual discriminatee's job per­
formance would have been but for the 
discrimination— presents great diffi­
culty. No reason appears, however,

13



why the victim rather than perpetrator 
of the illegal act should bear the 
burden of proof on this issue.

Franks v. Bowman Transportation Co., 424 U.S. 747, 772, n. 32 
(1976) .

These principles "apply with full force to the 
Government as employer." Day v. Mathews, 530 F.2d 1083, 1085- 
86 (D.C. Cir. 1976), citing with approval Baxter v. Savannah
Sugar Refining Corp., supra, and Johnson v, Goodyear Tire & 
Rubber Co., supra. In the case of an individual federal 
employee who has established discrimination, it is "'impossible 
. . . to recreate the post with exactitude' . . . precisely
because of the employer's unlawful action," and, therefore,
"it is only equitable that any resulting uncertainty be resolved 
against the party whose action gave rise to the problem." Day 
v. Mathews, 530 F.2d at 1086. See also, Richerson v. Jones,
551 F .2d 918 (3rd Cir. 1977).

Applying these principles to the present case, it is 
clear that plaintiff is entitled to additional relief. It must 
be presumed that if he had been promoted to GS-8, step 1, 
position on June 28, 1972, then he would have advanced in the 
seven years since that time. Under the authorities cited above, 
the burden was on the defendant to establish by "clear and 
convincing evidence," that Mr. Salone never would have advanced 
at all to a higher GS level as was normal for similarly situated 
employees.

This burden was not met. As we have shown in the 
statement of the facts, the District Court's conclusion that

14



Mr. Salone was in fact a troublemaker and did not perform his 
job satisfactorily since 1972 is clearly not only unsupported 
by the evidence, but is directly contrary to it. Documentary 
evidence introduced by the government establishes that he re­
ceived performance appraisals near the maximum possible; its 
own proposed findings of fact admitted that he performed his 
job satisfactorily. Further, the same proposed finding 
acknowledge that he had been labelled a troublemaker by super­
visors because he had filed discrimination complaints. The 
evidence fully supported this conclusion. His peers— both 
black and white co-workers— testified in 1972 and 1973 during 
the administrative proceedings and again at trial in 1979 that 
he was a good worker who did his job in a non-disruptive fashion, 
but that he had been branded as a "troublemaker" because he 
asserted his rights.

Under facts similar to those in the present case, 
one court has held that where a woman had been discriminated 
against, she was entitled to retroactive promotions which took 
into consideration additional upgrading she would have received 
in the absence of the original discrimination. Nitterright v. 
Claytor, 454 F. Supp. 130 (D.D.C. 1978) (retroactive promotion 
to GS-6 on July 28, 1971, GS-7 on July 28, 1972, and GS-8 on 
July 2, 1976, with appropriate back pay). See also, Hernandez 
v. Powell, 424 F. Supp. 479 (D. Tex. 1977); Copeland v. Secre­
tary of Labor, 414 F. Supp. 647 (D.D.C. 1976). The Third 
Circuit approved the principle of such relief in Richerson v.

15



Jones, 551 F.2d 918 (3rd Cir. 1977), although it reversed the
district court and remanded for further findings to support its 
conclusion that the plaintiff had the specific qualifications to 
advance to a GS-12 higher level supervisory position. Still, it 
made it clear that the government bore the burden of showing 
that even absent discrimination the plaintiff's qualifications 
were such that he would not have been selected for the GS-12 
position.

It is clear from the evidence here that Mr. Salone, as
an employee performing at a high level of competence, could have
advanced beyond a GS-8 position in the seven (now eight) years
since 1972 if he had not been discriminatorily denied a promotion
to that level then. First, at Tinker Air Force Base competitive
promotions were given without the necessity of employees applying
for jobs. All employees with the necessary qualifications were
automatically considered. Under federal law and Civil Service
Regulations, plaintiff would have been eligible for promotion to
a GS-9 or GS-10 position after one year in grade at GS-8, or as
of June 28, 1973. He would then have been eligible for a GS-11
after one more year as a GS-9 or 10, for a GS-12 after one more

5/
year, and so on. Although, as the Court held in Richerson, it

5/ Above the GS-11 level, an employee can advance only one 
grade at a time. Below that, a jump of two grades after one 
year in grade is possible. For this reason, there are compara­
tively few persons in the GS-8 and GS-10 grades throughout the 
federal service.

16



cannot be assumed that an employee will advance automatically 
indefinitely, certainly it is more than likely that he would 
have advanced above a GS-8. Certainly, in view of the reasons 
given by the court below for holding otherwise, a remand as was 
done in Richerson is appropriate.

Second, the particular job series into which plain­
tiff was placed in 1979, retroactive back to 1972, is one that 
allows a progression without competition to higher GS levels as 
duties and responsibilities increase. He was placed in series
GS-2131, 7/12, (Freight Rate Technician) with grades from GS-7

6/
to GS-12. By a natural progression, therefore, he would almost 
certainly have moved to a higher grade level.

To summarize, if any positions became open during the 
period June 28, 1972, to the present at a higher GS-level for 
which he would have been qualified, plaintiff is entitled to 
retroactive promotions to them. If the positions are encumbered, 
then Mr. Salone is entitled to the next available position, see 
Stallings v. Container Corp. of America, 75 F.R.D. 511 (D. Del. 
1977), Hernandez v. Powell, infra, Skelton v. Balzano, 424 F.
Supp. 1231 (D.D.C. 1976), with back and front pay until he assumes 
it. See, Patterson v. American Tobacco Co., 535 F.2d 257, 269 
(4th Cir. 1976), Cross v. Board of Education, 395 F. Supp. 531 (D. 
Ark. 1975) and the opinion of Chief Justice Burger, in Franks v. 
Bowman Transportation Co., 424 U.S. 747, 781 (1976).

6/ Position descriptions and qualifications, and grade levels 
and the standards by which increases in grades are determined are 
set out in two publications of the Office of Personnel Management 
(formerly the Civil Service Commission), Handbook X-118, Quali­
fication Standards for Positions Under the General Schedule, and 
the Position Classification Standards for Positions Under the 
General Schedule. 17



II.
The Amount of Attorneys1 Fees Should Have Been 
Determined, on The Basis of The Time Spent And 
A Reasonable Hourly Rate
In an action brought under Title VII, and the various 

other civil rights statutes, a prevailing plaintiff is entitled 
to an award of counsel fees based on a number of factors which 
focus on the time spent and the quality of the work done. These 
factors are set out in detail in Johnson v. Georgia Highway 
Express, Inc., 488 F.2d 714 (5th Cir. 1974) and Evans v. Sheraton 
Park Hotel, 503 F.2d 177 (D.C. Cir. 1974), and were endorsed by 
this Court in Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th 
Cir. 1975) . Indeed, the courts of appeals have been unanimous 
in holding that counsel fees in civil rights cases should be 
governed by the Johnson standards. See, King v. Greenblatt, 560 
F.2d 1024, 1026 (1st Cir. 1977); Prate v. Freedman, 583 F.2d 42 
(2d Cir., 1978); Rodriguez v, Taylor, 569 F.2d 1231 (3rd Cir. 
1977); Walston v. School Bd. of,City of Suffolk, 566 F .2d 1201 
(4th Cir. 1977); Hairston v. R & R Apartments, 510 F.2d 1090,
1093 n. 3 (7th Cir. 1975); Allen v. Amalgamated Transit Union 
Local 788, 554 F.2d 876, 884 (8th Cir.), cert, denied, 434 U.S.
891 (1977); Fountila v. Carter, 571 F.2d 487, 496 (9th Cir. 1978); 
Northcross v. Board of Education of Memphis City Schools, 611 F .
2d 624 (6th Cir. 1979).

The Johnson standards were specifically endorsed by 
Congress when it enacted the Civil Rights Attorneys1 Fee Act of 
1976. See, S. Rep. No. 94-1011, 94th Cong. 2d Sess., p. 6, and

See,

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H. Rep. No. 94-1558, 94th Cong. 2d Sess., p. 8.— Of crucial
importance is the principle that the amount of fees should not
be geared to the monetary recovery of the plaintiff. Otherwise,
as here, the plaintiff will suffer an out-of-pocket loss as a
condition of vindicating his civil rights. See, H. Rep.
No. 94-1558, supra, at p. 9.

When various of the factors set out in Johnson and
are applied here, we urge that the amounts requested are

£/clearly reasonable. The affidavits and supporting documentation

1_ /  . Although the legislative history of the 1976 Act does not
directly control interpretation of the counsel fee provision in 
the 1972 Act, it is entitled to careful consideration as "'a 
secondarily authoritative expression of expert opinion.'" Parker 
v. Califano, 561 F.2d 320, 339 (D.C. Cir. 1977). In Cannon v.
University of Chicago, ___U.S. ___, 60 L.Ed. 2d 560, 569, n. 7,
the Supreme Court relied on the legislative history of the 1976 
Act in interpreting an earlier civil rights act, stating:

Although we cannot accord these remarks 
the weight of contemporary legislative his­
tory, we would be remiss if we ignored these 
authoritative expressions concerning the 
scope and purpose of Title IX and its place 
within "the civil rights enforcement scheme" 
that successive Congresses have created over 
the past 110 years.

8/ The factors, which are those listed in the ABA Code of Pro­
fessional Responsibility, are: (1) the time and labor required;
(.2) the novelty and difficulty of the questions; (3) the skill 
required to perform the legal services properly; (4) preclusion 
of other employment; (.5) the customary fee; (6) whether the fee is 
fixed or contingent; (7). time limitations imposed by the client 
or circumstances; (_8)_ the amount involved and the results obtained; 
(9) the experience,reputation, and ability of attorneys; (10) the 
undesirability of the case; (11) the nature and length of the 
professional relationship with the client; (12) awards in similar 
cases.

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demonstrate that counsel for plaintiffs are experienced in liti­
gation and in federal EEO matters. This case required appeals 
all the way to the Supreme Court on novel and important public 
issues in order to vindicate the rights of the plaintiff. It 
was also necessary to go through administrative proceedings and 
two proceedings in the district court, largely because of the 
government's adamant refusal to acknowledge the discrimination 
suffered by the plaintiff until the twelfth hour. The total 
time spent on these various tasks was reasonable, and the hourly 
rates are appropriate for attorneys of similar experience and ex­
pertise in their localities. See, Brown v. Culpepper, 559 F.2d 
274 (5th Cir. 1977)($65 and $75 per hour); Harkless v. Sweeny 
Independent School District, 608 F.2d 594 (4th Cir. 1979) ($75 per 
hour); Bachman v. Pertschuk, 19 EPD 1[9044 (D.D.C. 1979) ($35 to 
$85 per hour). Even in civil rights cases that are not class 
actions, the courts have regularly awarded fees based on pre­
vailing hourly rates. See, e .g ., Selzer v. Berkowitz, 477 F. Supp. 
686 (S.D.N.Y. 1979) (rates up to $125 per hour); Parker v. Califano, 
443 F. Supp. 789 (D.D.C. 1978)($72 per hour).

The district court failed to apply these well established 
principles when it simply calculated attorneys' fees as a percentage 
of the back pay award, without any consideration of the amount of 
time and expertise it took to achieve the results in this case. To 
begin with, pegging the counsel fees solely to the amount of back 
pay fails to consider the substantial future benefits that plaintiff 
will receive by virtue of his promotion. Moreover, the intangible

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benefits of the vindication of one's civil rights are completely 
discounted. Harkless v. Sweeny Independent School District, 608 
F.2d at 598. Thus, such a method of calculation is particularly 
inappropriate in a Title VII action. Beyond that, the award 
bears no relationship to the work actually done. For example, the 
small amount in no way can compensate adequately for the effort 
expended in the administrative process or on the appeal to this 
Court and the Supreme Court, work that must be included in the
award. Booker v. Brown, ____F.2d ____(10th Cir., April 7, 1980),

The policy considerations behind the various counsel 
fee provisions also militate against awarding a fee based on a 
percentage of the recovery. The basic purpose of the fee statutes 
is to encourage attorneys to take on the often arduous job of 
enforcing the civil rights statutes. Thus, Congress' intent is 
that fees be comparable to those recovered in comparable federal 
litigation such as antitrust cases. S. Rep. 94-1011 (94th Cong.,
2d Sess.), p. 6. Encouraging the participation of the private 
bar is particularly important in Title VII cases where the federal 
government is the defendant, since enforcement of the Act is left 
solely to individual employees acting as "private attorneys 
general." Parker v. Califano, 561 F.2d 320, 331 (D.C. Cir. 1977). 
Awards of back pay in individual employment discrimination cases 
are generally small. See, e .g ., Harkless v. Sweeny Independent 
School District, 608 F.2d at 594. If fees are based on a percentagge, 
they will tend to be so small as to be a disincentive to counsel 
to take such cases since they will, as here, bear no relationship

21



to the work required to achieve the result.
Finally, the result in this case, as it will be in

virtually all other individual Title VII cases, is to render
either the plaintiff or his counsel out-of-pocket for fees, a
result directly contrary to the rationale of the fees provisions
as articulated by the Supreme Court:

If successful plaintiffs were routinely 
forced to bear their own attorneys' 
fees, few aggrieved parties would be 
in a position to advance the public 
interest by invoking the injunctive 
powers of the federal courts. Con­
gress therefore enacted the provision 
for counsel fees— not simply to penalize 
litigants who deliberately advance argu­
ments they know to be untenable but, 
more broadly, to encourage individuals 
injured by racial discrimination to seek 
judicial relief . . . .

Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968). This 
outcome is therefore inconsistent with the underlying purpose of 
the Act as a whole, which is to "make persons whole for injuries 
suffered on account of unlawful unemployment discrimination." 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).

CONCLUSION
For the foregoing reasons, the decision of the court 

below should be reversed.

CHARLES STEPHEN RALSTON
10 Columbus Circle, Suite 2030 
New York, N.Y. 10019 
212-586-8397

CLAUDE V. SUMNER 
. 4444 South Douglas Boulevard

Oklahoma City, Oklahoma 73150 
405-733-3851

Attorneys for Plaintiff-Appellant
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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the 
attached Brief of Plaintiff-Appellant by mailing the same to 
Larry D. Patton, Esq,, United States Attorney and John E.
Green, Esq., First Assistant United States Attorney, 4434 United 
States Courthouse, Oklahoma City, ^Oklahoma 731Q2.

0
1

Dated: May , 1980, CHARLES STEPHEN "RALSTON
Counsel for Plaintiff- 

Appellant

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