Johnson Jr., v. Georgia Highway Express Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 72-3294

RICHARD JOHNSON, JR., and FRANK HILL, et al.,
Plaintiffs-Appellants

v.
GEORGIA HIGHWAY EXPRESS, INC.,

Defendant-Appellee.

Appeal from the United States District Court 
for the Northern District of Georgia

BRIEF FOR PLAINTIFFS-APPELLANTS

JONATHAN HARKAVY 
Two Wall Street 
New York, New York

Of Counsel

HOWARD MOORE, JR.
ELIZABETH R. RINDSKOPF 75 Piedmont Ave., N.E.Atlanta, Georgia 30303
JACK GREENBERG 
CHARLES STEPHEN RALSTON 
WILLIAM L. ROBINSON 
MORRIS J. BALLER 10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Plaintiffs-Appellants

\



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 72-3294

RICHARD JOHNSON, JR. and FRANK HILL, et al.,

GEORGIA HIGHWAY EXPRESS, INC.,
Defendant-Appellee.

Appeal from the united states District court 
for the Northern District of Georgia

The undersigned counsel for plaintiffs-appellants Johnson 
and Hill, et al., in conformance with Local Rule 13(a), 
certifies that the following listed parties have an interest 
in the outcome of this case. These representations are made 
in order that Judges of this Court may evaluate possible
disqualification or recusal:

1. Richard Johnson, Jr. and Frank Hill, plaintiffs.
2. The class of black employees of defendant Georgia 

Highway Express, Inc., whom plaintiffs represent.

Plaintiffs-Appellants
v.

CERTIFICATE

Georgia Highway Express, Inc., defendant.3.



Page

Table of Authorities...................................ii
Statement of the Issue Presented For Review ..........  v
Statement of the C a s e ...................................1
Statement of Facts.......................................5

A. The Substantive Litigation ..................  5

I n d e x

B . Evidence Pertaining to Plaintiffs'
Request for Attorney's Fees ................  6

ARGUMENT.................................................H
I. THIS COURT HAS THE POWER TO REVIEW THE 

AWARD OF ATTORNEY’S FEES BY THE COURT BELOW IN LIGHT OF PROPER PRINCIPLES GOVERN­
ING SUCH AWARDS AND THE PURPOSE OF
TITLE VII.........................................12

A. This Court Can Review the Adequacy of theDistrict Court's Attorney's Fee Award . . . .  12
B . In Cases Arising Under Title VII. CounselFee Awards Must be Carefully Scrutinized 

So That the Policy of That Act will be 
Furthered.....................................15

1. The Purpose of the Attorney’s Fee Pro­
vision of Title VII Is to Promote the 
Effectiveness of Congressional Policy 
Against Employment Discrimination ..........  15

2. Title VII Attorney's Fee Awards must be Sufficiently Generous to Act as a
Stimulus to Litigation...................... 18

3. To Fulfill the Congressional Policies.
Awards of Counsel Fees in Title VII CasesMust Not be Substantially Below Those
Granted for Other Types of Litigation . . . .  20

l



Page
II. THE AWARD OF COUNSEL FEES MADE IN THIS CASE WAS 

NOT "REASONABLE" WITHIN THE MEANING OF 
TITLE VII ......................................  22

III. THE DISTRICT COURT'S ATTORNEY'S FEE AWARD 
IS INCONSISTENT WITH GENERALLY ACCEPTED 
PROFESSIONAL STANDARDS DEFINING REASONABLE 
COMPENSATION FOR ATTORNEYS .....................  28

CONCLUSION...........................................  35
CERTIFICATE OF SERVICE ...............................  36

TABLE OF CASES:
B-M-G Investment Co. v. Continental/Moss Gordin,

Inc., 437 F.2d 892 (5th Cir. 1971) .................  12
Bing v. Roadway Express, ___ F. Supp. ____

(N.D. Ga. 1972) ....................................  21
Boddie v. Connecticut, 401 U.S. 371 (1971)............  24
Brotherhood of Railway Signalmen of America v.

Southern Railway Co., 380 F.2d 59 (4th Cir. 1967).... 28
Campbell v. Green, 112 F.2d 143 (5th Cir. 1940).... 12, 13
Clark v. American Marine Corp., 320 F. Supp. 709 

(E.D. La• 1970), aff'd 437 F.2d 959
(5th Cir. 1971) ...................... 8, 16, 18, 21, 28

Cooper v. Allen, F.2d , 5  EPD f7952 (5th Cir.
1972) ..............................................  26

Culpepper v. Reynolds Metals Co., 421 F.2d 888
(5th Cir. 1970) --------------------------------  11, 13

Electronics capital Corp. v. Shepherd, 439 F.2d 692
(5th Cir. 1971) ....................................  13

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .........  31
Hoffman v. Aetna Life Ins. Co., 411 F.2d 594

(5th Cir. 1969) ....................................  13
Jenkins v. United Gas Corp., 400 F.2d 28 (5th cir.

1968) ...............................................  16
Jinks v. Mays, F.2d , 4 EPD f7922 (5th Cir.

1972) ...............................................  26
ii



Johnson v. Georgia Highway Express, Inc.,
417 F.2d 1122 (5th Cir. 1969).....................  2, 5

Lea v. Cone Mills Corp., F.2d , 5  EPD 17975
(4th Cir. 1972) ....................................  24

Lee v. Southern Home Sites Co., 444 F.2d 143
(5th Cir. 1971) ................................. 16, 18

Lindy Bros. Builders v. American Radiator &
Standard Corp., 1972 CCH Trade cases f73953
(E.D. Pa. 1972)   20

Miller v. Amusement Enterprises, Inc., 426 F.2d 539(5th Cir. 1970) ......................................18
Mills v. Electric Auto-Lite Co., 396 U.S. 375

(1970) ....... ...................................16, 17
NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972) ....  16
NAACP v. Button, 371 U.S. 415 (1963) .................  19
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 401 
(1968)......................................... 16, 17, 18
Peters v. Missouri-Pacific Company, F. Supp.

3 EPD <1(8274 (E.D. Tex. 1971)......................... 21
Petete v. Consolidated Freightways, 313 F. Supp. 1271

(N.D. Tex. 1970) ...................................  19
Rosenfeld v. Black, 1972 CCH Sec. Law Reports
f93635 (S.D.N.Y. 1972) ...........................  20

Rosenfeld v. Southern Pacific Co., F. Supp. ,4 FEP Cases 72 (C.D. Cal. 1971) ...................... 22
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) .....  19
Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972).......  16
Sullivan & Cromwell v. Hudson & Manhattan Corp.

et al., N.Y.S.2d (Spec. T. Part V 1970)___ 20
Trans World Airlines, Inc. v. Hughes, 312 F. Supp.

478 (S.D.N.Y. 1970), aff'd 449 F.2d 51 (2nd Cir.1971) ..............................................  20

Page

iii



United States v. Gray, 317 F. Supp. 871 (D.R.I. 1970).. 28United States v. Gray, 317 F. Supp. 871 (D.R.I. 1970).. 28
Weeks v. Southern Bell Telephone & Telegraph Co.,

Page

STATUTES:
28 U.S.C. § 1291 ......................................  1
28 U.S.C. § 2106 ......................................  12
28 U.S.C., Federal Rules of Civil Procedure,
Rule 52(a) .......................................... 26

Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. and § 706(k) thereof, 42 U.S.C. § 2000e-5(k).. passim

OTHER AUTHORITIES:
ABA code of Professional Ethics and Disciplinary

Rule 2-106 .................. 28, 29, 30, 31, 32, 33, 34
8 American Law Reports 2nd ............................ 30
EEOC* Legislative History of Titles VII and XI ofthe Civil Rights Act of 1964 ........................ 17
Georgia Bar Reproter, April 1972 .......................31
6 Georgia State Bar Journal, No. 1 (1969) ............. 31
6 Moore, Federal Practice f54.77 ...................... 12
Shepherd's Federal Citations, Nos. 61-2 and 62-3....... 30

IV



STATEMENT OF THE ISSUE 
PRESENTED FOR REVIEW

Whether, in this Title VII action, the district court 
erred in awarding an amount in counsel fees that was inadequate 
as a matter of law?

v



IN  TIIE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 72-3294

RICHARD JOHNSON, JR., 
and FRANK HILL, et al..

Plaintiffs-Appellants,
v.

GEORGIA HIGHWAY EXPRESS, INC.,
De f enda nt-Appe11ee.

Appeal from the united States District Court 
for the Northern District of Georgia

BRIEF FOR PLAINTIFFS-APPELLANTS 

Statement of the case

This is an appeal from an order of the United States 
District Court for the Northern District of Georgia (Atlanta 
Division) awarding plaintiffs, the appellants herein, attorney's 
fees in the amount of $13,500 upon a submission of 659.5 hours 
of billable time spent by plaintiffs' attorneys during more 
than four years of successful litigation of this landmark 
case. This court nas jurisdiction of the appeal pursuant to
28 U.S.C. § 1291.



This "across-the-board" action to remedy employment 
discrimination made unlawful by Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000e et seq.. was filed February 27, 
1968 by plaintiff Richard Johnson, Jr. (A. 8a-13a). On 
June 24, 1968, the district court entered an order holding 
that the action could not be maintained as a class action, 
and upholding defendant's jury demand (A. 2a). plaintiff took 
an interlocutory appeal, resulting in this Court's reversing 
the district court on both issues. 417 F.2d 1122 (1969). 1/

On remand, the case proceeded to trial on the merits. 
After a three-day trial (Jan. 31 - Feb. 3, 1972) the district 
court entered a final order on March 2, 1972, finding a wide 
variety of discriminatory practices by defendant and granting 
broad class relief to plaintiffs (A. 44a-56a). In that order, 
the court provided that "that Court shall entertain an appli­
cation for an award of attorneys' fees and costs pursuant to 
Section 706(k) of Title VII of the Civil Rights Act of 1964." 
(A. 56a.)

Pursuant to this ruling, plaintiffs filed a "Motion 
for Award of Attorneys' Fees" in the district court on May 1, 
1972 (A. 57a-78a), requesting an award of $30,145.50. In

1/ on May 12, 1970, plaintiff Frank Hill filed a separate 
Title VII class action against defendant (A. 24a-27a) which 
was consolidated with the Johnson action (A. 45a). immediately 
prior to the trial of these actions Johnson's individual claim 
was settled with the understanding that no attorney's fees 
would be awarded against defendant for work done solely on 
behalf of Johnson's individual claim (A. 41a-43a).

2



support of their request plaintiffs submitted: (1) a schedule
of fees based on the affidavits of counsel as to their timeexclusive of trial time
spent on this matter, in all 659.5 hours/(A. 58a); (2) six
affidavits from the five attorneys employed by plaintiffs in 
this action (A. 59a-78a); (3) three exhibits showing in
chronological order the daily time spent by three of the 
plaintiffs' attorneys (A. 72a, 75a, 78a); and (4) a memorandum 
of law in support of the motion.

On May 4, 1972 defendant, the appellee herein, filed its 
"Response to Plaintiffs' Motion for Award of Attorneys' Fees" 
("Response" herein). This pleading raised a number of issues, 
including, inter alia, whether the number of hours claimed to 
have been spent on the case was "unreasonable" or "excessive." 
The Response did not specifically enumerate the alleged excess 
hours.

On June 9, 1972 the district court held a hearing on the 
issue of attorney's fees at which five witnesses testified 
(A. 82a-162a) and several documents were received into evidence 
(A. 164a-176a). in argument at the conclusion of this hearing, 
counsel for the defendant conceded that it had . . no 
objection to those [fees] that would be reasonable . . and 
that such reasonable fees would be $50 per hour for Messrs.
Moore and Ralston and $35 per hour for the other attorneys 
(A. 160a). The district court took the entire matter under 
advisement.

3



On August 8, 1972 the district court filed its order in
this matter (A. 184a-187a) and made the following findings of
fact with respect to attorney's fees:

"1. A hearing on the matter of attorneys' 
fees in the primary action in this case was held, 
and evidence presented by both parties, on June 9,1972.

"2. With respect to the question of attorneys' 
fees in the primary action, I find that reasonable attorneys' fees, in the Atlanta, Georgia area, for 
the job performed for the plaintiffs RICHARD JOHNSON,
JR. and FRANK HILL, are Thirteen Thousand Five Hundred 
Dollars ($13,500.00). The above amount in this finding is based, generally, on sixty (60) man days of work 
at Two Hundred Dollars ($200.00) per day, generally 
considered to consist of from six (6) to seven (7) 
productive hours, which amounts to Twelve Thousand 
Dollars ($12,000.00), and three (3) trial days for 
two attorneys at Two Hundred Fifty Dollars ($250.00) per trial day per attorney, or One Thousand Five 
Hundred Dollars ($1,500.00)." (A. 184a.)
The district court made no conclusions of law with respect 

to the attorney's fees issues under § 706(k) of Title VII.
The judgment of the district court on these issues is set forth 
below in full:

"The Defendant GEORGIA HIGHWAY EXPRESS, INC. 
shall pay to the Plaintiffs in the primary action 
in the present case reasonable attorneys' fees in the amount of Thirteen Thousand Five Hundred Dollars 
($13,500.00), based on what this Court has deter­
mined is reasonable in this locality for the job 
performed by legal counsel on behalf of the Plaintiffs. 
Given the experience of counsel for the Plaintiffs 
at the time these services were performed, the award 
of this Court is based on sixty (60) man days at the 
rate of Two Hundred Dollars ($200.00) per day, or 
Twelve Thousand Dollars ($12,000.00), and three (3) 
trial days for two (2) attorneys at the rate of 
Two Hundred Fifty Dollars ($250.00) per day per 
attorney, or One Thousand Five Hundred Dollars 
($1,500.00).

4



"In making this award of reasonable attorneys' 
fees to the Plaintiffs, I further note that I am 
aware of the accomplishments of some of the 
attorneys for the Plaintiffs. At the time when 
some of these services were rendered, however, they 
were rendered by attorneys who had been at the 
bar for only a relatively few years, and there is 
a relatively standard practice within the Atlanta, 
Georgia community with respect to the age and 
experience of attorneys and the compensation 
involved therein." (A. 186a.)
Plaintiffs filed notice of appeal from this judgment on 

September 6, 1972 (A. 188a). Defendant cross-appealed on 
September 13, 1972 (A. 190a).

Statement of Facts

The documentary and testimonial evidence adduced on 
the issue of attorney's fees is a memorial to the prodigious, 
yet efficient, labors of five highly-skilled civil rights 
attorneys in the successful litigation of a case which has 
become a benchmark in the jurisprudence of Title VII.

A. The Substantive Litigation
This Court accurately described the original complaint 

as an "across-the-board" attack on the whole range of racially 
discriminatory employment practices of defendant Georgia 
Highway Express, a large interstate trucking firm. 417 F.2d at 
1124. The 1972 ruling of the district court on the merits sets 
forth accurately and in detail the nature of those unlawful 
practices (A. 44a-51a), sustaining plaintiffs' position with 
respect to virtually every issue that was tried. The court below

5



thereupon entered a decree enjoining such practices and 
ordering a variety of remedial measures to assure that they 
would not be resumed or perpetuated (A. 51a-56a). Because of 
the full treatment accorded the substantive issues in the 
lower court's opinion, we find it unnecessary to describe 
the primary litigation further here. Reference to the docket 
sheets in the consolidated cases that were tried and decided 
together will, however, indicate the massive effort necessary 
to bring this matter to trial and successful conclusion (A. 
la-7a, 19a-23a).

B. Evidence Pertaining to Plaintiffs' Request for Attorney's 
Fees
Plaintiffs have requested $30,145.50 for time spent 

(not including trial of the fees issue) vindicating plaintiffs' 
rights and establishing important Title VII precedent as 
follows (A. 58a):

303 hours x $50/hour = $15,150.00Howard Moore, Jr. 
Charles S. Ralston 
Gabrielle K. McDonald 
Elizabeth R. Rindskopf 
Morris J. Bailer

29 hours x $50/hour = 
228 hours x $35/hour = 
38 hours x $35/hour = 

61.5 hours x $35/hour =

Trial Time of 3 days x $700/day
2/
TOTAL

1.450.00
7.980.00
1.330.00
2,135.50

$28,045.50
2.100.00 

$30,145.50

2/ Mr. Ralston at $300/day and Mrs. Rindskopf and Mr. Bailer 
at $200/day.

6



Plaintiffs' attorneys each submitted an affidavit supporting 
the statement of time spent as shown in the foregoing itemi­
zation (A. 59a-78a). These affidavits contained itemized 
lists of time spent on various litigative steps, and in some 
cases dates.

'The record made at the attorney's fee hearing not only 
fully supports plaintiffs' request for attorney’s fees, but 
also demonstrates a total lack of basis in fact for the 
findings of fact of the district court.

Howard Moore, Jr., who has engaged in practice in the 
Atlanta, Georgia community for a decade, testified that he is 
a specialist in civil rights matters dealing with race and 
has published articles on his specialty (A. 84a-86a). Mr.
Moore testified that until July 21, 1971 he spent 25 hours 
on the Hill action and 278 hours on the Johnson class action. 
His work on the latter covered the preparation, review and 
drafting of the complaint and other pleadings, consideration 
of defendant’s demand for a jury trial and motion to dismiss 
the class action, the Interlocutory Appeal and extensive pre­
trial discovery, including three sets of plaintiff's interro­
gatories (with defendant's objections), two sets of defendant's 
interrogatories and no fewer than three depositions (88a-93a). 
On cross-examination the only question raised by defendant 
about Mr. Moore's billable time related to one hour with 
respect to the amended complaint (A. 94a-95a) and 25 hours with 
respect to the drafting of plaintiffs' first interrogatories

7



(95a-97a). Apparently, defendant was content not to contest 
specifically the remaining 252 hours of Mr. Moore's time, for 
which Mr. Moore is requesting only $50 per hour.

Gabrielle Kirk McDonald testified as to her 2h years as
an attorney with the NAACP Legal Defense and Educational Fund 

3/("LDF" herein) in New York City and her extensive private 
practice with her husband in Houston, Texas (A. 100a—103a).
Mrs. McDonald, who has been a member of the Bar for about six 
years, is a specialist in Title VII litigation and maintains 
an active docket of matters similar to the case at bar. During 
the time she was associated with LDF, Mrs. McDonald handled 
approximately 25-30 Title VII cases (A. 102a). Mrs. McDonald's 
affidavit indicates that she spent a total of 228 hours on 
the Johnson case, including 40 hours preparing for and success­
fully arguing the Interlocutory Appeal (A. 67a—68a). Mrs. 
McDonald testified that the Johnson case is ". . . probably 
the most important case that I personally worked on as far as 
precedent setting in the area of Title 7 [sic] . . . .
(A. 106a), and that this case of "tremendous importance" 
presented extremely difficult issues of first impression which 
were ultimately resolved in favor of plaintiffs and against an 
effective nullification of Title VII (A. 107a). Mrs. McDonald

3/ Of course, the fact that much of plaintiffs' legal work 
was performed by LDF staff attorneys can haye no bearing on 
the attorney's fee question. Clark v. American Marine Corp., 
320 F. Supp. 709, 711 (E.D. La. 1970), aff'd per ̂ f x a m,437 f .2d 959 (5th Cir. 1971); Miller v. Amusement Enterprises, 
Inc.. 426 F.2d 534, 538-539 (Sth ciF. 1970).

8



requested the rate of $35 per hour for her time on this 
case although her normal billing rate is $50 per hour and 
the minimum fee in her locality for such work is $40 per 
hour (A. 109a). On cross-examination defendant did not contest 
188 of the hours spent by Mrs. McDonald on the case, but 
only the 40 hours she spent preparing for and arguing the 
appeal to this Court (A. 114a-117a).

David cashdan (spelled "Cashton" throughout the transcript) 
was a lawyer with the EEOC in Washington, D.C. for over five 
years and is now a partner in a Washington, D.C. law firm 
(A. 122a-123a). Mr. cashdan indicated that he had extensive 
and detailed experience in the development of Title VII law 
while with EEOC during the Act's early years (A. 125a-127a).
Mr. Cashdan testified as to the development of Title VII 
jurisprudence and was offered as an expert witness on behalf

iof plaintiffs. He was familiar with Johnson in part because 
the EEOC filed a brief amicus curiae in the interlocutory 
appeal. He characterized the issues on that appeal " . . .  both 
as difficult . . . and very important to the work in Title 7"
(A. 130a), and rightly termed this court's decision therein 
the "focal point" of class action law under Title VII (A. 130a- 
131a). Mr. cashdan testified at length about the nature of 
the issues litigated in this matter and further stated that 
he found the attorney's fee affidavit submitted by plaintiffs 
to be within the "realm of reason" (A. 134a) .

9



Michael Doyle testified on plaintiffs’ behalf that 
he is a partner in the firm of Alston, Miller and Gaines in 
Atlanta, Georgia and has practiced for over a decade, principally 
in the area of civil litigation (A, 144a-145a). He testified 
that the rates charged by lawyers in the Atlanta area vary 
"from $35.00 an hour, even lower than that, depending on the 
matter and the lawyer, and to, I am certain, a hundred dollars 
an hour or in excess thereof." (A. 148a.) Mr. Doyle testified 
that a charge of $50 an hour would be reasonable for an 
experienced lawyer handling a case involving federal issues 
and a federal trial with an appeal (A. 149a). on cross- 
examination defendant did not question the conclusions drawn 
by Mr. Doyle. Mr. Doyle further testified on redirect 
examination that the law firm employed by plaintiffs enjoys 
a good reputation in the Atlanta community (A. 152a).

It is important to reiterate that aside from defendant's 
attempt to contest the participation of Legal Defense Fund 
attorneys in this matter (the subject matter of defendant's 
cross-appeal), the only hours actually put into issue by 
defendant's responsive pleadings and testimonial and documentary 
evidence amount to 40 hours of Mrs. McDonald's time with 
respect to the interlocutory appeal and 26 hours of Mr. Moore's 
time with respect to plaintiffs' first interrogatories and 
amended complaint.

10



argument

rhis court, as part of its obligation ". . . to make sure 
that Title VII works . . . "  should ensure that in no way is 
nullified the will of Congress that racial discrimination in 
employment shall be eliminated from the united States. The 
importance of this appeal is that it poses the question of 
whether, taking account of practical realities, that will is 
to be served or undermined. in this case the district court's 
award of attorney's fees fails to meet any measure of 
reasonableness, much less serve the purposes which Congress 
intended such an award to serve. Plaintiffs respectfully 
contend that if this Court sustains this factually unsupported 
award of less than $20 per hour to attorneys of high repute 
and experience in civil rights matters for successful work 
done in this landmark case, its ruling will have a chilling 
effect on the exercise of Title VII rights and will thereby 
tend to foster the erosion, through neglect, of the vigilance 
which Congress intended the private bar to exercise in defense 
of Title VII rights.

and nri ^ 5t h ^ ir.̂ ToTo^5 Metals Company. 421 F.2d 888, 891

11



I
THIS COURT HAS THE POWER TO REVIEW 
THE AWARD OF ATTORNEY'S FEES BY 
THE COURT BELOW IN LIGHT OF PROPER 
PRINCIPLES GOVERNING SUCH AWARDS AND 
THE PURPOSES OF TITLE VII

In this part of our brief we will discuss two propositions: 
that this Court generally has the power to review attorney's 
fee awards, and that there are particular standards to be 
applied in Title VII cases. Part II will demonstrate that the 
award made below does not meet those standards.

A. This Court can Review the Adequacy of the District Court's 
Attorney's Fee Award"
This Court has held generally that the determination of

what is a reasonable attorney's fee is a proper function of
an appellate court. B-M-G investment Co. v. Continental/Moss
Gordin, Inc., 437 F.2d 892, 893 (5th Cir. 1971); Campbell v. -----------
Green, 112 F.2d 143, 144 (5th Cir. 1940). Thus, in B-M-G 
Investment Co., supra, this Court observed that although it 
was cognizant of the role of trial court discretion in the 
matter of awarding attorney's fees:

5/ This rule must, of course, be distinguished from the rule 
that trial courts ordinarily have broad discretion whether or not to award attorney's fees against a party (except in cases 
such as the instant one where the fees are a part of an effective 
remedy or serve the ends of established policy). See generally 
6 Moore, Federal Practice f54.77. The power of this Court to 
determine the reasonableness of such fees and make awards 
derives from its inherent equitable powers and from 28 U.S.C.
§ 2106.

12



"However, appellate courts, as trial courts, 
are themselves experts as to the reasonableness 
of attorneys' fees, and may, in the interest 
of justice, fix the fees of counsel albeit in 
disagreement on the evidence with the views of the trial court." 437 F.2d 892 at 893.(Emphasis added.)

See also, Campbell v. Green, supra at 144. under this "active" 
review standard, this Court therefore can review the adequacy
of a district court's attorney's fee award based on its own
, , 6/knowledge and experience as well as on the facts of record.

In several recent cases, the Court has appealed to prefer 
an "abuse of discretion" standard of review. e .£., Culpepper v. 
Reynolds Metals Co.. 422 F.2d 1078, 1081 (5th Cir. 1970); 
Electronics capital Corp. v. Shepherd. 439 F.2d 692 (5th cir. 
1971); and especially Weeks v. Southern Bell Telephone &
Telegraph Co., ____ F.2d ____, 5 EPD f7956 (5th cir. No. 72-
1075, September 7, 1972). Nevertheless, we do not read Weeks 
or the other cases as contrary to the proposition that this 
Court can and should consider attorney's fee awards with an 
informed and careful review. Despite Weeks' language stressing

6/ Electronics Capital Corp. v. Shepherd, 439 F.2d 692 (5th Cir. 1971) is not contrary to the settled rule allowing review 
despite some inconsistent language in the per curiam opinion.
The Shepherd court apparently examined the record at length and 
independently concurred with the district court. Moreover, the 
court relied on Hoffman v. Aetna Life Ins. Co., 411 F.2d 594 
(5th Cir. 1969) as authority for an "abuse of discretion" rule even though Hoffman stands on its own footing as a bankruptcy 
case involving such special considerations as statutory standards for fees and a limited fund from which fees are granted.

13



the discretion which may be exercised by the district court,
this Court in fact closely examined the bases and reasons for
Judge Bell's award. It noted:

Judge Bell reviewed the many factors 
that are properly taken into consideration 
in determining a reasonable attorney's fee.

* * * *
Judge Bell thoroughly discussed the bases 

for his award of attorney's fees to Mrs.
Roberts. He weighed the result obtained, 
the time expended by Mrs. Roberts . . .
[expert testimony and affidavits]. Additionally, 
Judge Bell considered the decision of Judge 
Rubin in Clark v. American Marine Corporation 
[citation omitted] I . He considered the 
briefs filed in the Fifth Circuit, the record, the difficulty of the appeal, the efforts on 
remand and the contingency of an attorney's fee 
award.

Judge Bell . . .  was fully aware of the 
importance of the Weeks case.

5 EPD f7956 at pp. 6544-6545. Thus, this Court in Weeks
concluded that no abuse of discretion had been shown only
after assuring itself that the proper factors had been fully
considered by the district court and that the court’s opinion
adequately articulated the bases for the award in terms of 

7/those factors.

7/ Plaintiffs believe the dissenting opinion of Judge Wisdom 
Tn Weeks more properly states the law than does the majority 
opinion. However, even accepting the majority's view, our 
point is that Weeks does not preclude careful appellate scrutiny 
here; and that in fact Weeks does not dispose of the issue as 
to the adequacy of the award. See n. 14 infra.

14



The order appealed from here differs dramatically from 
the Weeks award as characterized in this Court's opinion. The 
District Judge here made only the sketchiest findings of fact 
in handing down the award of $13,500 (A. 184a). He entered 
no conclusions of law in this respect (A. 184a-5a). And in justi 
fying the award, he adduced only vague, general reasons (A. 186a) 
There is no indication at all that the court below considered 
most of the factors referred to in the Weeks opinion, or other 
factors, discussed below, that should properly have been 
considered. it is one thing to review cautiously a carefully 
articulated and justified basis for an award as "within 
discretion.” it would be entirely different to rubber-stamp 
an award that is on its face inadequate; that is, as will be 
shown, contrary to both usual standards and public policy, and 
that is so sparsely rationalized that this Court can only guess 
at the trial judge's factual and legal conclusions. This 
appeal presents the latter situation, and calls for careful

V*
scrutiny, particularly in light of the special policy considera­
tions that attach to a Title VII action.

B . In Cases Arising Under Title VII, Counsel Fee Awards 
Must be Carefully Scrutinized so that the Policy of that Act will be Furthered
1. The Purpose of the Attorney's Fee Provision of 

Title VII Is to Promote the Effectuation of Congressional Policy-Against Employment 
Discrimination.

The primary consideration in reviewing an award of fees 
pursuant to Title VII is that the award must reflect its status

15



as part of the effective remedy for enforcing the Act. This 
guideline has been adhered to by numerous district courts in 
this circuit and has been affirmed by this Court on several 
occasions. E.^., Clark v. American Marine Corp., supra y see,
Lee v. Southern Home Sites Co., supra, and Sims v. Amos, 340 
F. Supp. 691, 694 (M.D. Ala. 1972). ("Indeed, under such 
circumstances, the award loses much of its discretionary 
character and becomes a part of the effective remedy a court 
shall fashion to encourage public minded suits and to carry 
Congressional policies.") Accord, NAACP v. Allen, 340 F. Supp. 
703, 709 (M.D. Ala. 1972). The guideline has its genesis in 
two Supreme Court decisions, in which it was held that attorney's 
fees can be based on the broad principle of effectuating 
Congressional policy and encouraging public interest suits—  
irrespective of the good or bad faith of defendants (the 
traditional touchstone of such an award in equity). Mills v. 
Electric Auto-Lite Co., 396 U.S. 375 (1970); Newman v. Piggie 
Park Enterprises, Inc., 390 U.S. 400 (1968).

It is clear that Congress intended that attorney's fees 
are to be awarded as part of the effective remedies available 
to the courts as a means of fostering enforcement of Title VII 
by private litigants. Enforcement of rights derived from
Title VII is committed principally to the victims of discrimi-

8/
nation forbidden by the Act. Congress manifested its

8/ 42 U.S.C. §2000e-5(a)- (k). See Jenkins v. United Gas
Corp., 400 F.2d 28, 32 (5th Cir. 196871

16



solicitude for Title VII beneficiaries acting as private 
attorneys general in several ways (see § 706(e), 42 U.S.C.
§ 2000e-5(e)), most importantly by providing in § 706(k),
42 U.S.C, § 2000e—5(k), that plaintiffs should receive an 
award of "reasonable" attorney's fees as part of the costs

9/allowed to them. Congress perceived that the availability 
of truly reasonable awards which encourage vigorous effec­
tuation of Title VII rights by the private sector, on behalf 
of litigants and classes who would not, ordinarily, be able to 
hire an attorney by their own means.

Of all the Title VII cases to date in this Court, the 
present case best illustrates the import of the "private 
attorney general" concept, and plaintiffs' attorneys should be 
compensated with due regard to that principle. The action of 
the individual plaintiffs resulted in the district court's 
broad class ruling which will benefit many persons. Not only 
did plaintiffs perform a private function in vindicating the 
rights of many of their co-workers who were victimized by 
racial discrimination, but more importantly, they performed 
the public function of furthering the Congressional mandate 
embodied in Title VII by procuring relief beneficial to the 
broad public. Thus, they acted within the purposes set forth 
as bases for generous compensation in Mills v. Electric Auto- 
_Litje, supra, and Newman v. Piggie Park Enterprises, Inc.

9/ See generally, EEOC, Legislative History of Titles VII and 
XI of the Civil Rights Act of 1964. ("Legislative History" herein), especially pp. 3004-3007.

17



2• Title y n  Attorney's Fee Awards must be
Sufficiently Generous to Act as a Stimulus to Litigation

As the Supreme court held in interpreting the identical 
attorney's fee provision of Title II of the civil Rights Act 
of 1964, the award must properly effectuate the purpose of the 
Civil Rights Act. Newman v. Piggie Park Enterprises. Inc..
390 U.S. at 401. in particular, the award must "encourage 
individuals injured by racial discrimination to seek judicial 
relief under [Title VII]," id. at 402; accord. Miller v. 
Amusement Enterprises, Inc.. 426 F.2d 539 (5th Cir. 1970).

This Court has already recognized that, in order "to 
ensure that individual litigants are willing to act as private 
attorneys general to effectuate the proper purposes" of

eights laws, it has an obligation to make an award which 
will further foster the enforcement of those laws by plaintiffs. 
Lee v. Southern Home Sites Co., 444 F.2d 143, 148 (1971); 
accord. Clark American Marine Corp.. supra. Stated another way, 
the award must be generous enough so as not to deter the 
vindication of Title VII rights by private attorneys general.

The minimal award allowed below runs head on into these 
principles. Far from encouraging the private vindication of 
personal rights and public policy, it stands as a threatening 
obstacle to such efforts. we ask this Court, as lawyers 
who have practiced at the bar, to consider the likelihood 
that aggrieved victims of discrimination will be able to 
secure effective legal representation on terms of (i) a wholly

18



contingent fee which is (ii) payable only after many years 
of litigation, involving (iii) complex, novel, and technical 
federal questions, and then (iv) at rates substantially below 
those for which attorneys are compensated on a non-contingent 
basis for routine civil matters such as domestic, probate or 
contract practice. If the award below stands, it can only 
signal potential Title VII advocates that they may represent 
plaintiffs with the certain expectation of having to make 
large financial sacrifices, even if they ultimately prevail.
Few members of the private bar may be expected tohearken to 
such a forbidding call.

It cannot be over-emphasized that Title VII cannot work
and its promise will be broken if the private bar is forced
to shun Title VII cases or treat them cavalierly simply because
Title VII work would force its practitioners into bankruptcy.
This court is already well aware of the hardships civil rights

10/lawyers face in their communities. By adding potential 
bankruptcy as a consideration in taking on such work this 
Court would effectively nullify the role congress sought 
for the private Title VII litigant. If the role of the 
private litigant is effectively destroyed then enforcement of 
Title VII rights will, contrary to the mandate of Congress, 
be committed exclusively to the mercy of those who hold the 
purse strings of the EEOC and those who have responsibility 
for Title VII enforcement in the Department of Justice. Such

10/ E.-2.** Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968);
and see NAACP v. Button. 371 U.S. 415, 443 (1963); Petete v. 
Consolidated Freightways, 313 F. Supp. 1271 (N„D. Tex. 1970).

19



a restriction of effective Title VII enforcement to govern­
mental agencies alone would flatly contravene the entire 
scheme of Title VII.

3. To Fulfill the. Congressional Policies, Awards of 
Counsel Fees In Title VII cases Must Not be 
Substantially Below Those Granted for Other Types 
of Litigation

In judging the adequacy of the award made by the district 
court here, this Court should consider the generous awards which 
have been accorded to prevailing parties in other forms of 
civil litigation, and should not let stand a fee which would 
constitute a discrimination against civil rights cases. For 
example, in Lindy Bros. Builders v. American Radiator &
Standard Sanitary Corp., 1972 CCH Trade cases f73953 (E.D.
Pa. 1972), plaintiffs' counsel were awarded $1,374,655 (in 
addition to $802,707 they collected out of the class recovery)
— or $215 per hour of work. See also Trans World Airlines,
Inc, v. Hughes, 312 F.Supp. 478, 485 (S.D.N.Y. 1970), aff1d 
449 F.2d 51, 79 (2nd Cir. 1971) ($7,500,000 plus disburse­
ments, or $128 per hour). Outside the realm of antitrust 
cases, see Sullivan & Cromwell v. Hudson & Manhattan Corp., 
et al., N.Y.S. 2d (Spec. T. Part V 1970) [N.Y.
Law Journal, May 13, 1970, pp. 17-18], awarding $3,750,000 
plus costs in a corporate reorganization case; and Rosenfeld 
v. Black, 1972 CCH Sec. Law Reports J[93635 (S.D.N.Y. 1972), 
allowing counsel fees of $250,000 in a shareholders' derivative 
action, in part in reliance on the fact that "he made the law." 
Apparently, the generosity of civil courts has few limits when 
it comes to ordinary civil litigation not involving human rights. 
It would be anomolous for this Court, or any other court, to

20



accord less significance to the vindication of human rights 
than to the achievement of corporate ends.

The majority of recent considered attorney's fee decisions 
in Title VII actions have indeed adhered to this principle 
and awarded fees based on reasonable rates. For example, in 
Clark v. American Marine Corp.. supra, the leading case on 
attorney's fees in this circuit, the district court awarded, 
and this Court upheld on appeal, the sum of $20,000 for 580 
hours of billable time. The rate of compensation there was
$35 per hour. in Bing v. Roadway Express, Inc.. ____ F. Supp.
_____ (N.D. Ga. 1972), on remand from 444 F.2d 678 (5th Cir.
1971), the district court ultimately made an award of $22,500 
for 650 claimed hours. The rate of compensation in that case 
was, therefore, $35 per hour. In Peters v. Missouri Pacific
Company, ____ F. Supp. _____, 3 EPD 1(8274 (E.D. Tex. 1971),
on appeal No. ________, the district court awarded a lump sum
fee of $44,000 plus six percent interest. As noted in plaintiff's 
post-trial brief, the claimed time was 490 hours and the effec­
tive rate of compensation is, therefore, around $90 per hour.
Even in Weeks v. Southern Bell Telephone & Telegraph Co., which 
was not a class action and did not involve any trial work by 
the compensated attorney, this Court sustained an award of more 
than $25 an hour for time claimed by a single practitioner. 
Moreover, the Weeks court indicated that the work could have 
been done there in substantially less time than claimed; thus, 
the effective rate of pay is substantially in excess of the $25

21



rate. Outside this circuit, plaintiffs would note in particular
Rosenfeld v. Southern Pacific Co., ____ F. Supp. , 4 FEP
Cases 72 (C.D. cal. 1971) (award of $30,000 based on rate of 
about $74 per hour).

II
THE AWARD OF COUNSEL FEES MADE 
IN THIS CASE WAS NOT "REASONABLE"
WITHIN THE MEANING OF TITLE VII

In Part I of this brief we have demonstrated that this 
Court has the power to review the counsel fee award entered 
below. Moreover, in making that review, this Court must 
carefully scrutinize the award to ensure that it complies 
with special standards applicable to Title VII cases, viz., 
does the award further Congressional policy by being suffi­
cient to encourage the vigorous enforcement of Title VII and 
was it arrived at based on rates comparable to those applicable 
in regular commercial litigation?

In order to judge the adequacy of the award it is first 
necessary to analyze it in light of the undisputed record made 
herein. First, it is evident that the district court's findings 
and judgment are simply not supported by the evidence. Both 
parties agreed as to the reasonableness of hourly charges:
$50 and $35 per hour, standard rates prevailing in the Atlanta 
area for federal civil actions. The court's figures demonstrate 
that the rate used was significantly less than that.

22



The court used a figure of 60 hypothetical working days 
for the entire litigation of this case from its inception, 
with the exception of the three days in court. At 6 or 7 
hours per day this amounts to from 360 to 420 hours (the lack 
of basis for reduction of the claimed hours will be discussed 
below). it awarded $12,000 so that the rate charged was 
at the most $33.33 and as little as $28.57 per hour. The 
highest amount was too small even if it were assumed that all 
work was done by the less experienced attorneys and therefore 
billable at $35/hour. Of course, the evidence showed that 
experienced counsel, whose services were admittedly billable 
at $50/hour, did approximately one-half of the work in the 
case.

As we have shown, the purpose of Title VII and the role 
of attorney's fees in achieving its mandate require awards 
based on rates no less than these applicable to normal 
litigation. The district court apparently failed to give 
any consideration to the Congressional intent implicit in 
§ 706(k) when it made so meager an award in this case of so 
widespread import. In the face of such plain policy con­
siderations the district court's award fails to compensate 
adequately the five attorneys who achieved such great success 
in this litigation; therefore, the award must be set aside as 
being contrary to the mandate of Congress. This Court, among 
all the courts in this nation, has always stood for enforcement 
of a plainly apparent Congressional mandate that discrimination

23



must end. What plaintiffs seek here is not merely an award
of money— it is a rule which will give judicial life to

11/that mandate.
Second, the district court's computation of the number of 

hours necessary to litigate this complicated and important case 
has no support in the record and indeed is contradicted by it. 
As noted above, the court allowed a total of no more than 
420 and perhaps as little as 360 hours. No reason is given 
for the disallowance of from 239.5 to 299.5 of the 659.5 hours
claimed. Indeed, opposing counsel disputed only 66 of those

12/
hours.

11/ The district court's award would also, if upheld by this 
Court, contravene more fundamental and less explicit policies. 
First, this inadequate award would be inconsistent with the 
notion that access to the courts for the vindication of human 
rights must not be made to depend on the wealth of the person 
seeking access. Ihe true loser in the case of an inadequate 
award is not the attorney or even the profession— it is the 
potential litigant who will find it increasingly difficult to 
hire attorneys to vindicate his rights. Since a wealthy 
potential litigant would be able to hire an attorney to assure 
his rights, it is clear that the destruction of the incentive 
for private attorneys to take on Title VII cases would result in a discrimination against disadvantaged potential litigants 
who could not afford to hire an attorney. Such a form of discrimination in access to the courts has been condemned in civil as well as criminal cases as unconstitutional and should 
not be sanctioned here. Boddie v. Connecticut, 401 U.S. 371 
(1971).
12/ Forty of these hours were spent by Mrs. McDonald in 
preparation for and arguing successfully the interlocutory appeal, and there is not even a suggestion in the facts that 
Mrs. McDonald padded her time. As for the other 26 hours, there 
is a contention that the identity between the interrogatories in 
this case and another is evidence of excessive use of time.
Aside from the fact that 26 out of 659 hours is de minimis, it 
can hardly be said that defendant has proved that the 26 hours 
were not necessary to the case.

24



Thus, unlike the case in Weekst supra, where this Court
was skeptical of 585 hours spent only after trial of an 
individual action, there is no suggestion here of any "padding"

wof time. Furthermore, there is no evidence of substantial
and unnecessary duplication in this case. Cf. Lea v. cone
Mills Corp., ____ F.2d ____, 5 EPD f797 5 (4th Cir. 1972). During
the four years of this litigation only five attorneys worked 
on this matter. Mrs. McDonald worked principally on the legal 
issues raised by the interlocutory appeal. Only when the 
original lead attorney, Howard Moore, Jr., had to drop out 
of the case did the other attorneys take part in the litigation. 
Thus, instead of duplication, plaintiffs' attorneys efficiently 
allocated their resources.

The district court's order makes only one other factual 
point which is easily disposed of. The court says that 
notwithstanding the accomplishments of plaintiffs' attorneys, 
at the time such attorneys rendered their services they were 
inexperienced. This "finding" is simply not true as a matter 
of fact. At the time of trial Mr. Ralston had been a practicing 
attorney for nearly eight years, Mrs. Rindskopf had been a 
practicing attorney for nearly four years, and Mr. Bailer had

13/ we note that, although a greater amount was affirmed 
there for less time spent, that award was For the appeal and 
settlement of an individual claim. Here, plaintiffs won an 
equally difficult appeal, and also a class action trial.

25



been a practicing attorney for over one year. Of plaintiffs' 
other attorneys, Mr. Moore had over six years' experience 
when he commenced this litigation, and Mrs. McDonald had 
been in practice two years as a Title VII specialist when 
she prosecuted the appeal herein. In light of their years 
at the bar and their intensive and extensive experience in 
civil rights actions these attorneys can hardly be characterized 
as fresh out of law school or inexperienced, particularly in 
this field.

In sum, there is no basis in fact for any of the findings 
and judgments of the district court.

Plaintiffs further submit that the findings of the 
district court fail to provide this Court with a sufficient 
basis for a review of the district court's judgment. Plaintiffs 
assert that this Court must, in the absence of detailed 
findings such as in Weeks, supra, set aside the award of the 
district court and either make one of its own on the basis 
of this complete record, or remand with directions to enter 
a more generous award based on articulated and reviewable 
findings and standards. This Court has recently held that 
where the district court's discretion in awarding attorney's 
fees is limited by public policy considerations the district 
court must "articulate specific and justifiable reasons" for 
its determination. Cooper v. Allen, F.2d , 5  EPD
f 7952 (5th Cir„ 1972). Cf. Jinks v. Mays, F„2d
4 EPD f7922 (5th Cir. 1972) (impossibility of review without 
findings); and Rule 52(a), Federal Rules of Civil Procedure.

26



This case is one in which the discretion of the district 
court must be exercised within limits of supervening policy 
as discussed in part I above. Congressional policy, to be 
vindicated, requires that counsel fees in Title VII cases 
be awarded generously. This is particularly so in a case such 
as the present one, where the efforts of counsel for private 
plaintiffs resulted in a seminal decision that has resulted 
in making Title VII a truly effective remedy for the effective 
vindication of rights. Because counsel established, in this 
case, the right to seek broad class relief to the benefit of the 
entire black community, they have acted as "private attorneys- 
general" in the fullest sense of the term. Their efforts, and 
hence those of other attorneys handling other litigation of 
great public importance, must be encouraged.

Because the district court clearly did not exercise 
its discretion in light of these policies, its decision 
must be reversed.

27



Ill.
THE DISTRICT COURT'S ATTORNEY'S FEE AWARD 
IS INCONSISTENT WITH GENERALLY ACCEPTED 
PROFESSIONAL STANDARDS DEFINING REASONABLE COMPENSATION FOR ATTORNEYS.

As shown above, the award of only $13,500 as attorney's 
fees violates the spirit and public policy of Title VII's 
provision for "reasonable" awards to prevailing plaintiffs.
That award also violates standards generally accepted by the 
legal profession as defining the factors relevant to deter­
minations of reasonable counsel fees.

The Title VII attorney's fee provision, 42 U.S.C. §2000e 
-5(x), does not by its terms set out any standards governing 
the award of fees, other than that such an award be "reasonable". 
In this circumstance, other professionally accepted enumerations 
of the standards applicable to civil litigation generally 
should be considered. Indeed, a number of courts in Title VII 
and other public-interest actions have explicitly weighed and 
applied those standards. E.g., Clark v, American Marine Corp., 
supra; Brotherhood of Railway Signalmen of America v. Southern 
Railway Co., 380 F.2d 59,69 (4th Cir. 1967)(Railway Labor Act); 
United States v. Gray, 317 F.Supp. 871 (D.R.I. 1970) (Title II).

These generally accepted and applicable standards are 
set out in the ABA Code of Professional Responsibility, Ethical 
Consideration 2-18 (1961), enforced according to Disciplinary 
Rule 2-106 [hereinafter "DR-2-106"].

14/Application of these various factors to this case clearly
14 / We omit discussion of those factors which are clearly not 
pertinent to this matter. 28



shows that the award below would be substantially less than a 
reasonable fee, even for ordinary civil litigation of like 
nature.

DB-2-106(B)(1). Time and Labor Required.
The time and labor required to win this case amounted to

659.5 hours (p. 6, supra). Defendant's Response questioned the
15/general reasonableness of the time spent (A. 79a-81a). At the

level of particularity, defendant only contested 66 of these
16/hours (pp. 7-9, supra). But defendant presented no evidence

that the same services should reasonably have been performed
in less time. On the contrary, plaintiff's expert witness,
Mr. Cashdan (who had substantial experience in preparing and
presenting many of the same issues (A. 123a-127a)) testified
without rebuttal or impeachment on cross-examination that the
time spent was in his view reasonable (A. 134a). Thus, there
H  Defendant pointed particularly to the fact that its own 
counsel had billed it for only 135 3/4 hours up to December 31,
1971 (A. 80a). That argument ignores several pertinent factors:
(1) Time-consuming final trial preparations for the January 31,
1972 trial and time spent at trial and on post-trial pleadings are 
omitted from defendant's compilation (2) Preparation of a plain­
tiff's case obviously requires more time than a defendant's case
- particularly where the client is not a corporation but an un­
lettered individual and where (as in Title VII) the pertinent facts are for the most part within defendant's exclusive possession (A. 146a-147a). (3) Differences in amount of preparation may be
reflected in the results both on appeal and on remand.
16 / As to these hours, see n.12, supra. Even if they are wholly 
excluded, 593.5 hours remain. The district court did not find 
that these hours had not been spent.

29



is no evidence anywhere in the record to support the district 
court's characterization of the number of hours that was 
"reasonable". On these facts, this Court should not uphold the 
district court award based on only 60 man-days of six to seven

17/hours each (A. 186a).
DR-2-106(B)(1). Novelty and Difficulty of Issues.
Johnson v. Georgia Highway Express is a landmark case with 

respect to two vitally important issues under Title VII. The 
interlocutory appeal alone has been cited in at least 36 reported 
decisions and is covered by a recent American Law Reports article. 
See Shepherd's Federal Citations, Nos. 61-2 and 62-3; 8 ALR 2nd. 
461. At the same time when most of this case was prepared the 
the jurisprudence of Title VII was hardly existent, much less 
developed. Johnson, however, established two important ground 
rules for Title VII actions;(i) there is no right to a jury trial 
and (ii) a plaintiff can mount an across-the-board attach on an 
employer's employment practices without first proving he is en­
titled to relief. The establishment of these principles was 
most difficult due to meager legislative history, a tabula rasa 
jurisprudence, and the inherent difficulty in assessing the 
practical implications of and policy consideration in the questions

17/ The fact that much of the plaintiffs' time was spent liti­
gating novel procedural issues designed to avoid adjudication 
raised by defendant, and found by this Court to be meritless, 
should obviously not work to defendant's advantage here.

30



°f right to jury trial and scope of the class action. Plaintiffs' 
witnesses testified without contradiction as to the difficulty 
and importance of the issues decided by the interlocutory appeal.
(A. 106a-107a, 131a-132a).

Like Griggs v. Duke Power Co.. 401 U.S. 424 (1971), which 
took only a day and a half to try but has had a profound effect 
on Title VII jurisprudence, the importance of Johnson far trans­
cends the confines of the case itself and the time spent winning 
it. The district court took no cognizance of this important 
factor. Cf. Weeks v. Southern Bell Telephone Co., supra, 5 EPD 
at p. 6545 (majority opinion) and pp. 6545-6546 (dissenting 
opinion).

DR-2-106(B)(2). Preclusion from Other Employment
Mr. Moore, Mrs. McDonald and Mrs. Rindskopf, the private 

Pra°Litioners whospent the bulk of the time on this case, were' 
obviously precluded from other employment by the demands of this 
lengthy and sometimes intense litigation. They are each civil 
rights lawyers of wide repute, whose time is in demand.

DR-2-106 (B) (3) . Prevailing Local Fees.
There does not appear to be a schedule of rates and charges 

specifically applicable to civil rights cases in Atlanta. Never­
theless, the record shows that $50 per hour is considered reason­
able and by no means a maximum charge for an experienced attorney 
handling federal litigation (A.149a), with somewhat lesser rates

13'appropriate for inexperienced attorneys (Id.) Defendant's counsel
ill7 The most recent minimum fee schedules in the Atlanta area were withdrawn several months ago because they did not accurately reflect the inflation in hourly rates. Cf. Georgia Bar Reporter.

1972. Even the old schedule was $35 for experienced prac­
titioners and $25 for less experienced lawyers. 6 Georgia State Bar Journal. No. 1, p. 13 (1969). -------------



apparently agreed (A. 160a).
DR-2-106(B)(4). Amount involved and Result Obtained
The case cannot be fairly characterized in terms of 

the amount involved and the monetary results. Plaintiffs 
asked for and ultimately received broad class relief from 
racial discrimination (which injunctive relief will greatly 
increase income opportunities for class members). The 
victory for plaintiffs was a clear-cut and virtually total one 
both in the nationally important interlocutory appeal and 
after full trial. More importantly, plaintiffs vindicated 
their rights in such a way as to blaze the trail for other 
victims of racial discrimination. These factors were also 
omitted from the district court’s determination of the fee 
award.

DR-2-106 (B) (6). Nature and Length of Professional
Relationship

Unlike the defendant in this case which has a retainer 
arrangement with its lawyers (A. 80a), plaintiffs simply 
turned to attorneys of wide repute in civil rights matters 
with no thought or need for an on-going professional relation­
ship. Thus, the total compensation to plaintiffs' attorneys 
for this matter must come from an award by the courts under 
§ 706(k) and not from a retainer or a promise of future legal 
business.

32



The testimony reflects the good reputation enjoyed by 
plaintiffs' principal counsel, the firm of Moore, Alexander 
& Rindskopf (A. 152a). Beyond that undisputed evidence, 
however, this Court can and should take judicial notice of 
the myriad of successful and important civil rights cases 
in this circuit in which counsel have appeared. The conduct 
and results of this case, and others in which plaintiffs' 
counsel have appeared before this court, attest to the fact 
that their abilities were equal to the rigorous demands of 
this litigation.

As to the experience of counsel, all plaintiffs' attorneys 
have spent most of their careers in civil rights litigation, 
much of it under Title VII. indeed, the district court noted 
these "accomplishments," but counter-balanced them against the 
fact that at the time these services were rendered counsel 
had relatively short experience (A. 186a). This finding of 
the district court that plaintiffs' attorneys were not entitled 
to full rates because of their inexperience must be evaluated 
in light of the evident expertise of even plaintiffs' younger 
attorneys in the rather specialized Title VII field. Experience 
with the statute weighs heavily here. plaintiffs retained able 
and experienced Title VII practitioners and the court below 
erred in failing to consider that fact when determining which 
end of the Atlanta fee scale to apply the efforts of these 
lawyers.

DR-2-106 (B)(7). Experience, Reputation, and Ability
of Counsel

33



Plaintiffs have a contingent fee arrangement with their 
attorneys (A. 62a, 65a) . -phis is typically the pattern in 
civil rights cases in which impecunious victims of racial or 
other discrimination are seeking to vindicate their rights. 
Moreover, because of the nature of class action litigation 
under Title VII, the contingency is one that may be realized 
only after years (here almost five) of litigation and sub­
stantial outlay of litigation costs. The court below failed 
to consider this factor in any way. in light of the results 
obtained and the broad import of this case, the amount requested 
by plaintiffs— $30,145.50— is a bargain price for 659.5 hours 
spent on a contingent basis by experienced and busy attorneys.

In sum, the award below did not even meet accepted 
standards of the legal profession as to adequacy of compen­
sation. In proper light of professionally accepted factors, 
the award was unreasonably low— even apart from the special 
public interest vindicated by this proceeding.

DR-2-106(B)(8). Contingency of the Fee

>

34



CONCLUSION

For the reasons set forth above, this Court should 
reverse the judgment of the court below and should direct 
that court to award plaintiffs attorney's fees in the 
amount of $30,145.50, as plaintiffs requested below.
In the alternative, this Court should reverse and remand 
for an award of more adequate attorney's fees based on 
consideration of the appropriate policies and standards
as set forth above.

Respectfully submitted,

t , L -
j  T  ^  U - C C  V -  - C J -

HOWARD MOORE, JR. 
ELIZABETH R. RINDSKOPF 

75 Piedmont Ave., N.E. Atlanta, Georgia 30303
JACK GREENBERG 
CHARLES STEPHEN RALSTON 
WILLIAM L. ROBINSON 
MORRIS J. BALLER10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Plaintiffs- 
Appellants

JONATHAN HARKAVY Two Wall Street 
New York, N.Y.

Of Counsel

3 5



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of 
Appellants Brief in this matter by depositing the same 
in the United States mail, air mail, postage prepaid, 
addressed to counsel for appellees:

John W. Wilcox, Jr., Esq. Thomas M. Kuna, Esq.Suite 2620 
Equitable Building 
100 Peachtree St., N.W. Atlanta, Georgia 30303.

Done this 30th day of November, 1972.

Attorney

36