Kemp v. Brown Brief for Plaintiff-Appellant

    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