Kemp v. Brown Brief for Plaintiff-Appellant
Public Court Documents
February 26, 1980

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Brief Collection, LDF Court Filings. Kemp v. Brown Brief for Plaintiff-Appellant, 1980. b5931de1-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5045fe9e-d96a-4735-b93f-031b76194472/kemp-v-brown-brief-for-plaintiff-appellant. Accessed July 30, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA No. 79-2487 MARYLAND D. KEMP, Plaintiff-Appellant, - v - HAROLD BROWN, Defendant-Appellee. On Appeal from The United States District Court for The District of Columbia BRIEF FOR PLAINTIFF-APPELLANT FRANCES B. AUBREY 548 7th Street, S.E. Washington, D.C. 20003 Counsel for Plaintiff- Appellant TABLE OF CONTENTS PAGE Certificate ............................................... i Table of Cases, Statutes and Other Authorities........ i ii Question Presented ....................................... 1 Reference to Parties and Ruling ........................... 1 Statute Involved ......................................... 2 Statement of The C a s e .................................... 2 Argument ..................... The District Erred in Not Determining The Amount of Attorneys' Fees on The Basis of The Time Spent And A Reasonable Hourly Rate 4 Conclusion ............................................... 9 Certificate of Service .................................. 10 ii TABLE OF CASES, STATUTES AND OTHER AUTHORITIES Page Brown v. Culpepper, 561 F.2d 1177 (5th Cir. 1977) . . . . 9 Cannon v. University of Chicago, U.S. , 60 L.Ed. 2d 560 (1979)................. T \ . .“7“ ............. 4 Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) ........ 7 Evans v. Sheraton Park Hotel, 503 F.2d 117 (D.D.C, 1974) 1,4,9 Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977) . . . . 8 Harkless v. Sweeny Independent School District, 608 F.2d 594 (5th Cir. 1 9 7 9 ) .................................... 6 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1 9 7 4 ) ......................................... 4 Kemp v. Brown, No. 77-1476, October 23 , 1978 .............1,3 Kulkarni v. Alexander, F.2d , 18 EPD 1[ 8644 (D.C. Cir. 1 9 7 8 ) ..................... 7 Mallard v. Claytor, 19 EPD § 8993 (D.D.C. 1978) ........ 7 NAACP v. Civiletti, 609 F.2d 514 (D.C. Cir. 1979) . . . . 4 Northcross v. Board of Education of Memphis, F.2d (6th Cir. Dec. 1979) ...................... ~ , , 8 Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977) . . 4, 7, 8 Williams v. Boorstin, 20 F.E.P. Cases 1539 (D.D.C. 1979) . 9 Statutes 42 U.S.C. §2000e-5(k) 2 Other Authorities H. Rep. No. 94-1558 (94th Cong, 2nd S ess.).............4, 5 S. Rep. No. 94-1011 (94th Cong. 2nd Sess.) ........ , . 4, 6 iii IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA No. 79-2487 MARYLAND D. KEMP Plaintiff-Appellant, v - HAROLD BROWN Defendant-Appellee. Certificate Required by Rule 8 (c) of The General Rules of The United States Court of Appeals for The District of Columbia Circuit The undersigned, counsel of record for Maryland D. Kemp, certifies that the following listed parties appear below: Maryland D. Kemp, plaintiff Harold Brown, defendant These representations are made in order that Judges of this Court, inter alia, may evaluate possible disqualifications or recusal. Washington, D.C. 20003 202-544-5086 Counsel for Plaintiff-Appellant l IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA No. 79-2487 MARYLAND D. KEMP, Plaintiff-Appellant, - v - HAROLD BROWN, Defendant-Appellee. On Appeal from The United States District Court for The District of Columbia BRIEF FOR PLAINTIFF-APPELLANT Question Presented Did the District Court err in calculating attorney's fees in this Title VII action as a percentage of the recovery, rather than on the factors enumerated in Evans v. Sheraton Park Hotel, 503 F.2d 117 (D.D.C. 1974)? Reference to Parties and Ruling Following remand from an order of this Court in Kemp v. Brown, No. 77-1476, October 23, 1978, Judge Howard F. Corcoran issued a memorandum opinion and order. Kemp v . Brown, (D.D.C. No. 75-557, October 15, 1979), which is reproduced in the Appendix at pp. 38-42, (Hereinafter referred to as "A Statute Involved 42 U.S.C. §2000e-5(k): In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. Pub. L. 88-352, Title VIII, § 706, July 2, 1964, 78 Stat. 259; Pub. L. 92-261, § 4, Mar. 24, 1972, 86 Stat. 104. STATEMENT OF THE CASE This is an action brought pursuant to 42 U.S.C. § 2000e- 16(c)(Title VII of the 1964 Civil Rights Act, as amended by the Equal Employment Opportunity Act of 1972), on behalf of a Black man employed by the Department of the Army, The agency made a finding of discrimination at the administrative level on behalf of the plaintiff, but because the remedies that had been promised had not been effectuated, he filed a complaint in district court. After the complaint had been filed, the United States Civil Service Commission determined that the terms of the administrative settlement had not been fully implemented and ordered that they be carried out. Subsequently, the District Court granted defendant's Motion for Summary Judgment on the ground that the Army had fully implemented the Civil Service Commission's directives. 2 - Plaintiff appealed from the judgment of the District Court and raised therein his right to attorney's fees and costs on the ground that he had prevailed in the administrative process. This Court, in an unpublished order, affirmed the judgment of the District Court granting summary judgment for the defendant on the merits, but remanded the case with directions to award fees for legal services rendered at the administrative and trial court levels (Kemp v. Brown, No. 77- 1476, October 23, 1978). On remand the District Court awarded plaintiff attor ney's fees for the work done on the merits of the case in the amount of $3,838.00 together with costs in the amount of $8.28. The adequacy of that award is not at issue in the present appeal. Plaintiff's counsel also requested an award of counsel fees for the work done in the appeal to this Court. A sub mission was made claiming that 99.43 hours were spent on the fee issue in the appeal and that therefore a reasonable fee would be $9,445.85. (A. 12 - 32 ). The defendant admitted plaintiff's entitlement to an award, but objected to the amount on the ground that it was excessive. (A. 33 - 37 ) . After negotiations between the parties had proved fruitless, the issue was submitted to the District Court. The District Court held that counsel for the plaintiff was entitled to a reasonable fee for services performed in the Court of Appeals in connection with the fee issue. However, it decided that since reimbursement for the fees was dependent upon the amount 3 plaintiff ultimately recovered, the appropriate measure was a percentage of the counsel fees award for litigating the merits of the case. The District Court held that in the District Court of Columbia a customary contingent fee percentage was 30% and therefore the fee should be in the amount of $1,151.40, viz., 30% of $3,838.00, the amount awarded for the work done on merits. (A.41_42), a timely notice of appeal was filed from the judgment. ARGUMENT The District Court Erred in Not Determining The Amount of Attorneys' Fees 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 Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C. Cir. 1974) and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), cases that were noted with approval by Congress when it enacted the Civil Rights Attorneys Fee Act of 1976, see, S. Rep. No. 94-1011, 94th Cong. 2d Sess., p. 6, and H. 1/ Rep. No, 94-1558, 94th Cong. 2d Sess., p. 8. Of crucial impor- 17 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 se condarily authoritative expression of expert opinion.'" Parker v. Califano, 561 F.2d 320, 339 (D.C. Cir. 1977); Cannon v. University of Chicago. ___ U.S. ___, 60 L.Ed. 2d 560, 568, n. 6 (1979). Thus, the fact that the 1976 Act does not itself apply to the federal government (NAACP v. Civiletti, 609 F.2d 514 (D.C, Cir. 1979)) has no effect on the relevance of Congress' views as to the standards governing in civil rights cases generally where fees are awarded. 4 tance is the principle that the amount of fees should not be geared to the monetary recovery of the plaintiff. Otherwise, the plaintiff may suffer an out-of-pocket loss as a condition of vindicating his civil rights. See, H. Rep, No. 94-1558, supra, at p. 9 The Evans-Johnson factors are: (1) time and labor required; (2) novelty and difficulty of the questions; (3) skill required to perform the legal services properly; (4) preclusion of other employment; (.5) customary fee; (6) whether the fee is fixed or contingent; (7) time limitation imposed by the clients or the circumstances; (8) the amount involved and the result obtained; (9) experience, reputation and ability of the attorney; (10) undesirability of the case; (11) nature and length of the professional relationship with the clients; and (12) awards in similar cases. As this Court made clear in Evans, the district court must apply these standards with care so that its exercise of discretion in awarding fees will be both informed and reviewable. Although the district court in the present case re ferred to Evans, and listed the criteria set out therein, it is clear that its award was based on none of them. Rather, it looked to the contingency percentage customary in an entirely different type of litigation, i.e., 30% in personal injury litigation, and used that as the sole basis for the fee awarded. Plaintiff-appellant urges that the calculation of fees in a Title VII or other civil rights action on the basis of a straight percentage of the plaintiff's monetary recovery is in consistent with the purpose of the civil rights counsel fee pro- 5 visions and with the Johnson-Evans standards. In 1976 Congress specifically noted that the rights guaranteed by the various civil rights statutes were often non- pecuniary in nature. Therefore, fees should not be dependent on whether or not damages (or other monetary relief) have been obtained, nor by their amount. See, S. Rep. No. 94-1011, p. 6 (94th Cong., 2d Sess., 1972); H. Rep. No. 94-1558, pp. 8-9 (94th Cong. 2d Sess., 1972). Thus, the Fifth Circuit has, in a recent decision,squarely rejected the argument that fees should be based on the amount recovered. In Harkless v. Sweeny Independent School District, 608 F.2d 594, 598 (5th Cir. 1979), the court held: The School District also suggests that the award of attorneys' fees is excessive because it exceeds a modest proportion of the total monetary recovery of the plain tiffs........ [T]he statute provides that a "prevailing party" should receive attor ney's fees when the trial court deems it appropriate, and does not limit those fees to the amount recovered by the plaintiff. The purpose of the Attorney's Fees Award Act—-to encourage private enforcement of the civil rights laws— would be thwarted by a limitation such as that proposed by the appellants, and no such restriction is suggested by the legislative history of the Act. In a Title VII case the calculation of fees as a per centage of a recovery is particularly inappropriate. After pro tracted and difficult litigation the rights of a plaintiff may be fully vindicated, and he may obtain injunctive relief that will result in future benefits to himself and others that are not easily measurable in dollar amounts. Moreover, the plaintiff, 6 acting as private attorney-general, will have performed an in valuable public service by helping to enforce the important Congressional policy of ending discrimination in employment. See,Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977). Never theless, because of the circumstances of the particular case, the actual monetary recovery in the form of back pay may be 2/ relatively small or non-existent. In such a case, the amount of the recovery is wholly irrelevant to determining the proper amount of fees to be awarded; rather, the only appropriate basis of calculation is that required by Evans— a determination of the number of hours required to achieve the result and a reasonable hourly rate for the attorney involved. In the present case the inappropriateness of a straight contingencypercentage is also evident. Quite simply, the appro priate fee for the work done on the merits bore no necessary re lationship to the amount of time and effort required to establish the right to that fee. At the time the first appeal was taken in 2/ For example, a plaintiff could obtain a finding of dis crimination and injunctive relief ending illegal practices that would benefit him and others in the future, but not obtain a re troactive promotion and back pay because the employer was able to meet its burden of showing that he would not have received the particular job in question for reasons other than discrimination. Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976). In such a case it would be manifestly unjust to award no fees by the application of a contingency factor as the sole basis for calculating fees. See, Kulkarn i v. Alexander, F.2d , 18 EPD II 8644 (D.C. Cir, 1978); Mallard v, Claytor, 19 EPD 1[ 8993 (D.D.C. 1978). 7 this case, Parker v, Califano, supra, and Foster v. Boorstin, 561 F .2d 340 (D.C. Cir. 1977) had not been decided. Moreover, neither case had fully resolved the precise issue raised by this case— viz., whether a court could award fees in a case where full relief was obtained in the administrative process alone. See, Parker v. Califano, 561 F. 2d at 329, n. 24, Indeed, the government argued in the first appeal in this case that Parker did not require the award of fees, necessitating a reply brief from plaintiff. (See, Brief for Appellee in No, 77-1476 , pp, 18-22; Reply Brief of Plaintiff-Appellant in No, 77-1476, pp. 7-12), Finally, the reliance of the district court in Evans for the use of a contingency percentage was misplaced. The Johnson- Evans contingency criterion is to be used in the calculation of an appropriate hourly rate by taking into account the fact that coun sel handling civil rights cases must receive a higher fee in cases they win in order to make up for those cases they lose. Thus, a contingency factor is used to increase the basic hourly rate, not to determine the amount of fees itself as a percentage of a re covery. See, Northcross v. Board of Education of Memphis, F,2d 37 ____(6th Cir. Dec. 1979), slip op. at pp. 22-23, In sum, the effect of the district court's formula would be to discourage the bringing of Title VII and other civil rights litigation by resulting in fees bearing no relationship to the work necessary to prosecute such actions. In view of the difficulty in 3/ "An attorney's regular hourly billing is based upon an expec tation of payment, win, lose, or draw. If he or she will only be paid in the event of victory, those rates will be adjusted upward to compensate for the risk the attorney is accepting of not being paid at all." 8 obtaining counsel willing to take on such cases (see, Williams v. Boorstin, 20 F.E.P. Cases 1539 (D.D.C. 1979); Parker v. Califano, 561 F .2d at 333), such a result would be directly contrary to Congress' purpose in providing for such fees and to this Court's decision in Evans v. Sheraton Park Hotel, supra. CONCLUSION For the foregoing reasons, this Court should either reverse the district court and remand for a proper determination of fees based on the Evans standards, or determine the appro priate amount itself. See, Brown v. Culpepper, 561 F .2d 1177 (5th Cir. 1977). Respectfully submitted, Frances B. Aubrey 548 7th Street, S.E. Washington, D.C. 20003 Counsel for Plaintiff-Appellant 9 CERTIFICATE OF SERVICE I hereby certify that I have served copies of Plain tiff-Appellant's Brief and Appendix on counsel for Defendant- Appellee by depositing the same in the United States mail addressed to John Oliver Brich, Esq., Assistant United States Attorney, United States Courthouse, John Marshall Place and Constitution Avenue, Washington, D.C. 20001 on this 26th day of February, 1980. FRANCES B. AUBREY 10