Mississippi State Chapter Operation Push v. Fordice Brief for Cross-Appellees and Reply Brief for Appellants

    LAWYERS’ COMMITTEE 
FOR CIYII RIGHTS UNDER LAW 
1400 'EYE' STREET, NORTHWEST 

WASHINGTON, D.C. 20005 
(202) 371-1212

FROM: Frank R. Parker

Date:

(Jackie



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 92-7693

MISSISSIPPI STATE CHAPTER OPERATION PUSH, INC., 
et al.,

Plaintiffs-Appellants, 
Cross-Appellees,

v.
KIRK FORDICE, Governor of Mississippi, et al.,

Defendants-Appellees, 
Cross-Appellants.

On Appeal from the United States District Court 
for the Northern District of Mississippi

BRIEF FOR CROSS-APPELLEES AND 
REPLY BRIEF FOR APPELLANTS

ELAINE R. JONES 
JUDITH REED 
NAACP Legal Qefense & 

Educational Fund, Inc. 
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

BARBARA R. ARNWINE 
FRANK R. PARKER 
JACQUELINE A. BERRIEN 
Lawyers' Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Attorneys for Plaintiffs-Appellants-Cross-Appellees





TABLE 07 CONTENTS

BRIEF FOR CROSS-APPELLEES ON DEFENDANTS' CROSS-APPEAL . 1
Introduction ..................................................  1
I. THE DISTRICT COURT'S ENHANCEMENT OF THE ATTORNEYS' FEES 

AND LITIGATION EXPENSES AWARDED BECAUSE OF THE DELAY IN 
PAYMENT IS CONSISTENT WITH CONTROLLING PRECEDENT AND 
SHOULD BE AFFIRMED......................................... 2
REPLY BRIEF FOR PLAINTIFFS-APPELLANTS.................. 9

I. CONTRARY TO DEFENDANTS' ARGUMENT, THE HOURLY RATES 
AWARDED IN THIS CASE ARE INCONSISTENT WITH COURT 
DECISIONS IN OTHER CASES AND THE RECORD BELOW...........  9

A. The Range of Rates Awarded in This Case 
Is Inconsistent with Hourly Rate Awards 
in Other Mississippi Cases........................12

B. Defendants Should Be Precluded From
Arguing That The Hourly Rates Awarded
Are Supported By Their Affidavits
Because The District Court Did Not Rely
On Them, And They Do Not Support the
Rates Awarded................................... 15

II. DEFENDANTS' ARGUMENTS THAT PLAINTIFFS ARE NOT ENTITLED 
TO FEES FOR DEFENDING THE STATE'S CROSS APPEAL SHOULD
BE REJECTED................................................... 19

A. Plaintiffs Repeatedly Requested 
Attorneys' Fees for the Cross-Appeal in
the District Court................................ 19

B. Defendants' Argument that Plaintiffs 
Achieved No Concrete Success from 
Defending the State's Cross-Appeal
Should Be Rejected................................ 21

III. THE DISTRICT COURT'S REDUCTION OF LITIGATION EXPENSES
CONFLICTS WITH CONTROLLING DECISIONS OF THIS COURT AND 
SHOULD BE REVERSED........................................... 23

IV. PLAINTIFFS' MOTION FOR AN AWARD OF EXPERT WITNESS 
EXPENSES PURSUANT TO FED. R. CIV. P. 37(c) WAS TIMELY 
FILED, AND THE DISTRICT COURT ERRED IN FAILING TO
ADDRESS IT IN THE DECISION BELOW............................ 28

i



A. Plaintiffs' Rule 37(c) Motion Was Timely
Filed, And Defendants' Argument That They Had 
No Prior Notice of the Possible Imposition of
Sanctions Is Also Unavailing.......................29

B. Defendants Have Not Identified Any Reason for 
Their Refusal to Make the Requested 
Admissions......................................... 32

V. THE DISTRICT COURT'S REDUCTION OF THE HOURS CLAIMED BY 
PLAINTIFFS' COUNSEL WAS AN ABUSE OF DISCRETION, AND 
DEFENDANTS HAVE OFFERED NO PERSUASIVE ARGUMENTS TO THE 
CONTRARY...................................................... 34

C O N C L U S I O N ....................................................... 36

ii



TABLE OF AUTHORITIES

Alberti v. Klevenhagen,896 F. 2d 927 (5th Cir. 1990)..........................  29
Assoc. Builders and Contractors v. Orleans Parish

Sch. Bd., 919 F. 2d 374 (5th Cir. 1990)................  26
Beamon v. City of Ridgeland,666 F. Supp. 937 (S.D. Miss. 1987)....................  35
Black Grievance Committee v. Philadelphia Electric

Co., 802 F. 2d 648, 656 (3rd Cir. 1986) ..............  4
Blanchard v. Bergeron,893 F. 2d 87 (5th Cir. 1990) ..................  21, 34, 35
Blum v. Stenson,465 U.S. 886 (1984) ......................  10, 14, 16, 18
Blum v. Witco Chem. Corp.,888 F. 2d 975 (3rd Cir. 1989) ........................  4
Bode v. United States,919 F. 2d 1044 (5th Cir. 1990) ....................  9, 21
Brantley v. Surles,804 F. 2d 321 (5th Cir. 1986)..........................  35
City of Burlington v. Dague,U.S. , 112 S. Ct. 2638, 120 L. Ed. 2d

449 (1992)............................................  10
Copeland v. Marshall,641 F. 2d 880 (D.C. Cir. 1980) ........................  7
Copper Liquor, Inc. v. Adolph Coors Co.,

684 F.2d 1087 (5th Cir. 1982), modified on
other grounds, 7 01 F.2d 542 (5th Cir. 1983) . . . 24, 25, 27

Cordero v. DeJesus-Mendez,
922 F. 2d 11 (1st Cir. 1990) ..........................  8

Davis v. Locke,936 F. 2d 1208 (11th Cir. 1991)........................  7
Formby v. Farmers and Merchants Bank,

904 F. 2d 627 (11th Cir. 1990) .............. _ _ • • • • •  7

Cases: Pages:

iii



Pages:

Graves v. Barnes,700 F.2d 220 (11th Cir. 1983) ......................  6, 7
Hensley v. Eckerhart,461 U.S. 424 (1983) ..............................  11, 23
Islamic Center of Mississippi v. Starkville,

876 F. 2d 465 (5th Cir. 1989)........................ passim

Johnson v. Georgia Highway Express,
488 F. 2d 714 (5th Cir. 1974)..........................  17

Kasuri v. St. Elizabeth Hospital Medical Center,
897 F. 2d 845 (6th Cir. 1990)..........................  30

Knighton v. Watkins,616 F. 2d 795 (5th Cir. 1980)..........................  13
Leroy v. City of Houston,831 F.2d 576 (5th Cir. 1987) cert, denied, 486

U.S. 1008 (1988)......................................  5
Leroy v. City of Houston,906 F. 2d 1068 (5th Cir. 1990) ....................  20, 21
Lindy Bros. Builders, Inc. v. American Radiator and 

Standard Sanitary Corp.,
540 F. 2d 102 (3rd Cir. 1976) ........................  7

Loewen v. Turnipseed,505 F. Supp. 512 (N.D. Miss. 1980)....................  26
Martin v. Mabus,734 F. Supp. 1216 (S.D. Miss. 1990) ..................  14
Matter of U.S. Golf Corp.,639 F. 2d 1197 (5th Cir. 1981) ........................ 11
Mississippi State Chapter Operation PUSH, Inc. v.

Mabus, 717 F. Supp. 1189 (N.D. Miss. 1989) ........  2, 22

Mississippi State Chapter Operation PUSH, Inc. v.
Mabus, 788 F. Supp. 1406 (N.D. Miss. 1992) ........ passim

Mississippi State Chapter Operation PUSH, Inc. v.
Mabus, 932 F. 2d 400 (5th Cir. 1991) ..................  1

IV



Pages:

Mississippi State Chapter, Operation PUSH v. Allain,
674 F. Supp. 1245 (N.D. Miss. 1987) ..................  22

Missouri v. Jenkins,491 U.S. 274 (1989) ............................  3, 5, 6
Neely v. City of Grenada,624 F. 2d 547 (5th Cir. 1980)..........................  17
Norris v. Hartmarx Specialty Stores, Inc.,

913 F. 2d 253 (5th Cir. 1990)..........................  21
Northcross v. Bd. of Ed. of Memphis City Schools,

611 F.2d 624 (6th Cir. 1979) cert, denied., 447
U.S. 911 (1980) ......................................  26

Pharr v. Housing Authority of City of Prichard,
704 F. 2d 1216 (11th Cir. 1983)........................  17

Romberg v. Nichols,935 F. 2d 1152 (9th Cir. 1992) ........................  8
Sims v. Jefferson Downs Racing Association,

778 F. 2d 1068 (5th Cir. 1985) ........................  15
Von Clark v. Butler,916 F. 2d 255 (5th Cir. 1990)..........................  35
Watkins v. Fordice,807 F. Supp. 406 (S.D. Miss. 1992)....................  16
Statutes: Pages:

28 U.S.C. § 1746  11
28 U.S.C. § 1 8 2 1 ............................................. 28 * * 31
Section 2 of the Voting Rights Act of 1965,

42 U.S.C. 1973 as a m e n d e d .............................. passim

42 U.S.C. § 1988 ......................................  3, 26
Fed. R. Civ. P. 2 6 ........................................... 34
Fed. R. Civ. P. 36 ............................  28, 29, 33, 34
Fed. R. Civ. P. 37 ....................................  32, 34

v



Fed. R. Civ. P. 37(c)  passim

Fed. R. Civ. P. 59(e)  2
Loc. R. 7(d) (N.D. Miss.)......................................20
Loc. R. 8(d) (N.D. Miss.)......................................20
Loc. R. 8(e) (N.D. Miss.)......................................20
Other: Pa8es:

8 Wright & Miller, Federal Practiceand Procedure § 2281 (1992 Supp.) .................... 34

Pages:

vi



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 92-7693

MISSISSIPPI STATE CHAPTER OPERATION PUSH, INC., 
et al. ,

Plaintiffs-Appellants- 
Cross-Appellees,

v.
KIRK FORDICE, Governor of Mississippi, et al.,

Defendants-Appel1ees- 
Cross-Appellants.

BRIEF FOR CROSS-APPELLEES/REPLY BRIEF FOR APPELLANTS

BRIEF FOR CROSS-APPELLEES ON DEFENDANTS' CROSS-APPEAL
Introduction

This case involves two appeals from the district court's 
final judgment awarding attorneys' fees and litigation expenses 
to eight individuals and two organizations (Mississippi State 
Chapter Operation PUSH, Inc. and the Quitman County Voters 
League) who represented Black citizens statewide in a successful 
class action voting rights lawsuit that established that two 
Mississippi voter registration laws had racially discriminatory 
effects, in violation of Section 2 of the Voting Rights Act of 
1965, as amended, 42 U.S.C. 1973.1

1A complete discussion of the underlying action appears in 
this Court's earlier decision, Mississippi State Chapter Operation 
PUSH. Inc. v. Mabus. 932 F.2d 400 (5th Cir. 1991), aff'a 
Mississippi State Chapter Operation PUSH. Inc, v. Allain. 674 
F.Supp. 1245 (N.D. Miss. 1987) (liability) and 717 F.Supp. 1189



The Mississippi State Chapter Operation PUSH, Inc., et al. 
(hereafter "plaintiffs") appealed the district court's final 
judgment awarding attorneys' fees and litigation expenses. 
Defendants-Appellees Governor Kirk Fordice, et al. (hereafter 
"defendants") have cross-appealed the district court's award of 
an enhancement of 5.6 percent of the total fee award as 
compensation for the delay in payment of attorneys' fees and 
litigation expenses to the plaintiffs. This section of the brief 
will address the issues raised by defendants in their cross­
appeal .

I. THE DISTRICT COURT'S ENHANCEMENT OF THE ATTORNEYS'
FEES AND LITIGATION EXPENSES AWARDED BECAUSE OF 
THE DELAY IN PAYMENT IS CONSISTENT WITH 
CONTROLLING PRECEDENT AND SHOULD BE AFFIRMED.

In response to plaintiffs' Fed. R. Civ. P. 59(e), motion 
to alter or amend the judgment,2 the district court modified its 
original judgment awarding plaintiffs $168,877.30 in attorneys' 
fees and expenses by increasing the award to plaintiffs by 5.6 
percent (or a total of $9,457.13) because of the delay in payment 
of the fee award. RE Tab C at 19-20; RE Tab D at 23-25. Citing 
this Court's decision in Islamic Center of Mississippi v.

(N.D. Miss. 1989) (remedy). The district court's opinion on 
attorneys' fees is reported as Mississippi State Chapter Operation 
PUSH, Inc, v. Mabus. 788 F.Supp. 1406 (N.D. Miss. 1992).

2The district court awarded plaintiffs $168,877.30 in 
attorneys' fees and litigation expenses, plus interest, on March 4, 
1992. Record Excerpts ("RE") Tab E at 29. Plaintiffs moved to 
alter or amend the judgment on March 13, 1992. Record ("R.") Vol. 
2, 479-84. The final judgment, increasing the award of attorneys' 
fees and litigation expenses by 5.6 percent to account for the 
delay in payment, but otherwise affirming the earlier decision, was 
entered on September 10, 1992. RE Tab C at 19-20.

2



Starkville. 876 F.2d 465 (5th Cir. 1989), the district court 
correctly determined that an enhancement of the fee award was 
warranted to account for the delay in payment of the attorneys' 
fees and litigation expenses in this case. RE Tab D at 24-25.

In Islamic Center, id.. counsel for a prevailing plaintiff
in a civil rights action unsuccessfully sought an enhancement of
the attorneys' fee lodestar in the district court based upon the
delay in payment of the fee award. This Court reversed the
district court's decision and remanded, holding:

[T]he courts of appeals have repeatedly 
upheld the propriety of delay enhancements. .
. . [T)he district court failed to consider 
whether it should enhance the lodestar based 
on delayed payment. If it did not think any 
delay enhancement was warranted, the district 
court should have stated its reasons. . . .
[Even i]f the lodestar was based on the 
attorneys' current billing rates, the court 
must still address whether a delay 
enhancement is warranted.

Islamic Center. 876 F.2d at 473.
The concept of enhancement of the attorneys' fee lodestar 

amount to compensate for delay in payment is well-recognized 
judicially. As the Supreme Court noted in Missouri v. Jenkins. 
491 U.S. 274 (1989):

[W]hether the 'reasonable attorney's fee' 
provided for in [42 U.S.C.] § 1988 should be 
calculated in such a manner as to include an 
enhancement, where appropriate, for delay in 
payment —  is a straightforward matter of 
statutory interpretation. . . . Clearly 
compensation received several years after the 
services were rendered —  as it frequently is 
in complex civil rights litigation —  is not 
equivalent to the same dollar amount received 
reasonably promptly as the legal services are 
performed, as would normally be the case with

3



private billings. . . . [T]herefore . . .  an 
appropriate adjustment for delay in payment .
. . is within the contemplation of the 
statute.

Missouri v. Jenkins, id.. at 281-82 and 283-84; see also Blum v. 
Witco Chem. Coro.. 888 F.2d 975, 985 (3rd Cir. 1989)("An 
adjustment for delay in receipt of statutory fees . . .  is 
'designed to compensate the attorney for the time gap between the 
actual expenditure of services and the fee award' . . . and 
serves to put the attorney willing to take such cases on par with 
attorneys who get paid before or during the course of their 
representation of clients")(quoting Black Grievance Committee v. 
Philadelphia Electric Co.. 802 F.2d 648, 656 (3rd Cir. 1986)).

Thus, as the court below noted, it was obligated to 
"'address whether a delay enhancement is warranted.' . . . [U]se 
of 'current [rather than historical] billing rates to calculate a 
lodestar does not automatically obviate[] the need for a delay 
enhancement.'" RE Tab D at 24-25, quoting Islamic Center, id.. 
876 F.2d at 473. In support of its award of a delay 
enhancement, the district court noted that more than seven years 
elapsed from the filing of the complaint to the award of 
attorneys' fees and expenses. The court held, therefore, that 
the duration of the proceedings below justified the award of "a 
delay enhancement . . . despite the use of current billing 
[rates]." RE Tab D at 25.

Despite this Court's unequivocal holding in Islamic Center, 
defendants argue on their cross-appeal that "the use of current 
hourly rates compensates for any delay," and that delay

4



enhancement of an attorneys' fee lodestar computed with current 
hourly rates "is a type of . . . 'windfall' that is not permitted 
by the fee-shifting statutes." Brief of Defendants- 
Appellees/Cross-Appellants at 44 (quoting Lerov v. City of 
Houston. 831 F.2d 576, 584 (5th Cir. 1987) cert, denied. 486 D.S. 
1008 (1988)). Defendants' position is plainly inconsistent with 
this Court's Islamic Center decision, and should be rejected.

The district court's award of compensation for the delay in 
payment of attorneys' fees to the plaintiffs is not only 
consistent with this Court's decision in Islamic Center, id.. but 
is also consistent with the decisions of the Supreme Court and 
other federal courts. As defendants themselves concede,
"pursuant to Missouri v. Jenkins . . .  a district court has 
discretion under the fee-shifting statutes to recognize a delay 
in payment factor for a fee award," Brief of Defendants- 
Appellees/Cross-Appellants at 44. The defendants have 
erroneously argued, however, that the Supreme Court's decision in 
Missouri v. Jenkins. 491 U.S. 274 (1989), prohibits enhancement 
for delay of an attorneys' fee lodestar computed on the basis of 
current billing rates.

In Missouri v. Jenkins, id.. the Supreme Court recognized 
that "[i]f no compensation were provided for the delay in payment 
. . . . otherwise willing attorneys [would be deterred] from 
accepting complex civil rights cases that might offer great 
benefit to society at large." 491 U.S. at 283 n.6. Accordingly, 
the Court held that compensation for delay in payment could be

5



achieved "by the application of current rather than historic 
rates fir otherwise." 491 U.S. at 284 (emphasis supplied).
Contrary to defendants' argument, the Supreme Court's decision in 
Missouri v. Jenkins supports, rather than prohibits, the district 
court's award of a delay enhancement here.

Missouri v. Jenkins had already been decided, and this Court
noted the decision when it issued its Islamic Center opinion.
See Islamic Center, id.. at 473 n.34. In its discussion of the
application of delay enhancements to fee awards computed using
current hourly rates, this Court wrote:

Were courts to assume, as we have done and 
others have done, that using current billing 
rates to calculate a lodestar automatically 
obviates the need for a delay enhancement, 
attorneys whose rates have not changed since 
they rendered the legal services may not be 
compensated for lost time-value of the delay 
in payment.

876 F.2d at 473-74. Thus, this Court has concluded that 
enhancement of an attorneys' fee award to compensate for delay in 
payment may, in appropriate cases, be allowed even where current 
billing rates are used to determine the lodestar, and the 
decision in Missouri v. Jenkins does not prohibit such 
enhancement.

Finally, the decisions of other courts support the 
conclusion of the court below that a delay enhancement may be 
awarded where the lodestar has been determined using current 
hourly rates. As the United States Court of Appeals for the 
Eleventh Circuit held in Graves v. Barnes. 700 F.2d 220 (11th 
Cir. 1983): —

6



The court may increase the amount established 
in the computation of the 'lodestar' as a 
reasonable fee on the basis of a careful 
evaluation of . . . [t]he delay in receipt of 
payment for services rendered. . . . The 
concept of compensation for delay in receipt 
of payment is founded on the principle that 
"[p]ayment today for services rendered long 
in the past deprives the eventual recipient 
of the value of the use of the money in the 
meantime, which use, particularly in an 
inflationary era, is valuable."

700 F .2d at 222, quoting Copeland v. Marshall. 641 F.2d 880, 883 
(D.c. cir. 1980) (en banc); cf. Lindv Bros. Builders. Inc, v. 
American Radiator and Standard Sanitary Coro.. 540 F.2d 102, 117 
(3d Cir. 1976) (en banc) (holding that lodestar may be enhanced 
by a "contingency multiplier" based upon, inter alia, a delay in 
payment of the attorneys' fee).

Several cases decided since Missouri v. Jenkins have, like 
this Court's Islamic Center decision, held that use of current 
hourly rates in determining the lodestar does not preclude the 
award of delay enhancements in appropriate cases. See, e.g.. 
Davis v. Locke. 936 F.2d 1208, 1215 (11th Cir. 1991)(affirming 
the enhancement of an attorney lodestar computed using a current 
billing rate of $150 per hour due to "delays in payment of fees," 
among other reasons); Formbv v. Farmers and Merchants Bank. 904 
F.2d 627 (llth Cir. 1990)(rejecting argument, made for the first 
time on appeal, that district court's application of one-third 
multiplier of fee award to compensate for delay in payment 
constituted a double enhancement because current, rather than 
historic hourly rates were used to calculate the lodestar); 
Cordero v. DeJesus-Mendez. 922 F.2d 11, 19 (1st Cir.

7



1990)(directing district court to "determine whether . . .  an 
amount for delay in payment" should be added to fee award on 
remand); Romberg v. Nichols. 935 F.2d 1152, 1154, 1164 (9th Cir. 
1992)(citing Missouri v. Jenkins, the court held that "the law 
undeniably authorizes" delay enhancement in "appropriate" cases, 
and directed the district court to "account for the propriety of 
an interest adjustment to compensate for the delay on recovery on 
remand" even though court used a $175 hourly rate in its 
calculation of the attorney lodestar). Thus, the district 
court's decision that plaintiffs were entitled to a delay 
enhancement is consistent with the controlling decisions of this 
Court and the Supreme Court, and is further supported by the 
decisions of other Circuit Courts.

Finally, defendants' argument that a delay enhancement 
should not have been awarded because plaintiffs appealed the 
district court's remedy decision (Defendants-Appellees' Brief at 
46-47) is untenable. There is no authority —  and defendants 
have cited none —  for the proposition that counsel for a 
prevailing party should suffer the severe consequence of being 
denied enhancement for delay in payment of attorneys' fees which 
a court finds that they are entitled to receive, solely because 
they pursued an appeal on behalf of their clients. The district 
court denied plaintiffs' request for fees for their efforts on 
their appeal. RE Tab F. at 33-37.3 Defendants' suggestion that

3But see Bode v. United States. 919 F.2d 1044, 1052 (5th Cir. 
1990)(holding that while parties did not prevail "on every issue on 
. . . appeal, the[ir] losses are 'not of such magnitude as to

8



plaintiffs should be penalized further by losing the delay 
enhancement which the district court found they were entitled to 
receive places plaintiffs' counsel in a Catch-22 situation: 
according to the defendants' argument, if they protect and 
advance their clients' interests by pursuing an appeal and are 
not completely successful on appeal, they forfeit their 
opportunity to obtain a fee enhancement later because the appeal 
will be deemed a cause of "delay" during the attorneys' fee 
proceedings. Surely this is not what the attorneys' fee award 
statute was intended to accomplish, and this Court should not 
adopt a standard that may potentially create a serious conflict 
of interest between attorneys and their clients and effectively 
penalizes litigants' efforts to obtain full redress for proven 
violations of their civil rights.

For all these reasons, the defendants' cross-appeal of the 
district court's award of a 5.6 percent enhancement for delay in 
payment of attorneys' fees should be rejected, and the decision 
below awarding a delay enhancement should be affirmed.

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

I. CONTRARY TO DEFENDANTS' ARGUMENT, THE HOURLY 
RATES AWARDED IN THIS CASE ARE INCONSISTENT 
WITH COURT DECISIONS IN OTHER CASES AND THE 
RECORD BELOW.

deprive them of prevailing party status.' . . .  On remand, the 
district court should . . . determine how much of the time billed 
. . . for the appellate work was devoted to those issues on which 
[they] prevailed") (emoting Lerov v. City of Houston. 906 F.2d 
1068, 1082 n.24 (5th Cir. 1990).

9



Defendants' contentions that the district court's drastic 
reduction of the requested hourly rates to a range of $80 to $115 
per hour is "fully consistent" with court awards of attorneys' 
fees in other cases (Brief of Defendants-Appellees, 13-14) and 
with the affidavits submitted by defendants, upon which the court 
below did not rely, (Brief of Defendants-Appellees, 15-19) cannot 
be sustained.

More is at stake here than a mere disagreement between the 
parties over the prevailing range of hourly rates. The Supreme 
Court, in decisions from Blum v. Stenson. 465 U.S. 886 (1984), to
City of Burlington v. Dacrue. ___ U.S. ___, 112 S.Ct. 2638, 120
L.Ed.2d 449 (1992), repeatedly has stated that the hourly rate 
should reflect not only the prevailing market rates in the 
community, but also the special skill and experience of counsel 
in dealing with complex and difficult issues. Indeed, this is 
the Court's rationale for refusing to permit contingency 
enhancements to reflect the skill and experience of counsel. 
Dague, 120 L.Ed.2d at 456-57; Blum. 465 U.S. at 898-99.

This case achieved the enormously important and singular 
result of striking down statewide discriminatory restrictions on 
the right to register to vote under Section 2 of the Voting 
Rights Act, the first such case to do so. In addition, 
plaintiffs were represented by some of the country's leading 
civil rights and voting rights lawyers (see affidavits contained 
in Plaintiffs' Exhibits in Support of Their Motion for an Award 
of Attorneys' Fees (separately bound Record volume); affidavit of

10



C. Lani Guinier (R. Vol. 1, 7-16); and 28 U.S.C. § 1746 Statement 
of Pamela Karlan (R. Vol. 1, 26-36)). Although the district
court recognized the special skill and experience of plaintiffs' 
counsel, and the novelty and difficulty of the issues, it 
expressly refused to adjust the lodestar to account for these 
factors (RE Tab F at 65-66; 788 F. Supp. at 1422).4 By drasti­
cally reducing the requested hourly rates, the district court 
significantly devalued the quality of the legal services per­
formed. The fundamental principles expressed in both Blum and 
Daoue are violated when the district court both refuses to 
enhance the lodestar fee for the special skills and experience of 
counsel and fails to award fees at an hourly rate that fully 
accounts for those factors. See also Matter of U.S. Golf Corp.. 
639 F .2d 1197, 1206 (5th Cir. 1981)(reversing and remanding 
district court fee award on ground that the court, in determining 
the hourly rate it used to calculate the attorneys' fee award, 
"merely discuss Ted! the Johnson Tv. Georgia Highway Express. Inc.1 
factors . . . [rather than] applyrinal the various factors and 
explain[ing] how his interpretation of the facts led to his 
conclusion")(emphasis in original).

A. The Range of Rates Awarded in This Case Is

4Cf. Hensley v. Eckerhart. 461 U.S. 424, 434-35 and 437 
(1983)(holding that "[t]he product of reasonable hours times a 
reasonable rate does not end the [court's] inquiry [in an 
attorneys' fee proceeding. . . . [A]n enhanced award may be 
justified [on the basis of several factors , including expertise of 
counsel, novelty and complexity of the issues, or excellent 
results, and] the district court should make clear that it has 
considered the relationship between the amount of the fee awarded 
and the result obtained").

11



Inconsistent with Hourly Rate Awards in Other 
Mississippi Cases,.______________________________

The basic problem with defendants' first argument, which 
defendants are totally unable to resolve, is that the district 
court's rates here directly conflict with this Court's ruling in 
Islamic Center of Mississippi v. Starkville, Mississippi. 876 
F.2d 465 (5th Cir. 1989). There, this Court determined that the 
range of customary hourly rates in the Northern District of 
Mississippi was from $65 to $150 per hour, 876 F.2d at 467. 
Similarly, the decision below conflicts with the almost 
simultaneous award of fees in another Northern District case, 
Grissom v. Patterson. Civil No. EC83-340-B-D (N.D. Miss. April 
13, 1992), app. pending No. 92-7244 (filed Apr. 15, 1992) 
(Attachment 1 to Brief for Plaintiffs-Appellants), where the 
court computed the lodestar using rates ranging from $95 to $150 
per hour, based on "the affidavits submitted by all parties and 
the court's own knowledge of the customary legal charges in this 
district and state." Slip op. at 3. The district court's ruling 
in this case is completely inconsistent with both Islamic Center 
and Grissom, and its determination of hourly rates is clearly 
erroneous.

The district court based the hourly rates on "its own 
experience, and observations during the trial, and its past 
awards of attorneys' fees," (RE Tab F at 64; 788 F. Supp. at 
1421), and failed to give any explanation for the conflict 
between its decision and the controlling precedent of Islamic

12



Center.5 This aspect of the decision was clearly erroneous. As 
this Court has noted previously, "[w]e simply must be provided 
reasons for the figures selected to be able to review the award." 
Islamic Center. 876 F.2d at 469 (quoting Simg Vt JeffersQp ppwns 
Racing Association. 778 F.2d 1068, 1085 (5th Cir. 1985)). 
Accordingly, the district courts decision should be reversed.

Defendants make no effort at all to distinguish Grissom v. 
Patterson, and therefore the rates set in that case should be 
considered controlling here. Defendants' effort to distinguish 
Islamic Center on the grounds that (1) the case involved an 
attorney who requested fees at the hourly rate at which he 
actually billed clients, and (2) the defendant failed to submit 
any affidavits rebutting plaintiffs' affidavits, should be 
rejected.

Neither reason makes this Court's Islamic Center decision 
inapplicable to this case. As to the first, whether or not the 
attorney requesting a fee award bills his or her clients is not 
determinative of the proper hourly rate as a matter of law. 
Attorneys cannot be discriminated against, or awarded fees at a 
lower rate, because they work for a nonprofit organization that 
does not bill its clients. Blum v. Stenson. 465 U.S. at 895. As

5Cf. Knighton v. Watkins. 616 F.2d 795, 800 (5th Cir. 
1980) (noting that Johnson v. Georgia Highway Express. Inc.. 488 
F.2d 714 (5th Cir. 1974) "commands attention to customary fees in 
the locality," and criticizing district court for "start[ing] with 
a maximum hourly rate . . . ceiling that it ha[d] imposed in the 
past . . . [and] adjust[ing] fees downward from that amount" rather 
than "taking into account the customary fees private counsel 
usually charge for similar work, as demonstrated by the testimony 
and [the court's] own knowledge of local conditions").

13



to the second, the fact that the Islamic Center defendants did 
not contest plaintiffs7 submission of five affidavits from 
Northern District attorneys attesting to the range of prevailing 
market rates in the district does not mean that they are 
irrelevant and should be disregarded. The most likely 
explanation for the city's failure to contest plaintiffs7 
affidavits in Islamic Center is that they accurately reflected 
prevailing Northern District rates.

The rates set by the district court here not only conflict 
with those established in Islamic Center and Grissom, but as 
defendants themselves show in their brief, they also conflict 
with rates set by the district court in Martin v. Mabus. 734 F. 
Supp. 1216 (S.D. Miss. 1990), a case upon which defendants rely 
(Brief of Defendants-Appellees, p. 13), for three of the same 
attorneys who participated in this case. Two years before the 
district court's decision here, the district court in Martin 
established $95 per hour as the prevailing Mississippi market 
rate for Samuel Issacharoff, now a professor at the University of 
Texas Law School, 734 F. Supp. at 1229. Two years later the 
district court in this case determined that Mr. Issacharoff7s 
work was worth only $90 per hour (RE Tab F at 64; 788 F. Supp. at 
1421) without any explanation for the discrepancy between the 
rate it set for Issacharoff, and the higher rate set two years 
earlier by the Martin v. Mabus court. If, as defendants
argue, the district court based the hourly rates set in this case 
on court awards in Martin and other cases, such an inconsistent

14



result would not have occurred, and it certainly should not have
occurred without explanation by the district court. Accordingly,
the decision below should be reversed.6

B. Defendants Should Be Precluded From Arguing 
That The Hourly Rates Awarded Are Supported 
By Their Affidavits Because The District 
Court Did Not Rely On Them, And They Do Not 
Support the Rates Awarded.______________________

Defendants' alternative argument, that the district court's 
rates are supported by the defendants' affidavits in the record, 
should be rejected as well. The basic fallacy in this argument 
is that the district judge —  as in Islamic Center of Mississippi 
v. City of Starkville —  did not base his determination of rates 
on the affidavits and other evidence presented, but rather relied 
exclusively on his "own experience, and observations during the 
trial, and [the court's] past awards of attorneys' fees" (RE Tab 
F at 64; 788 F. Supp. at 1421). Under these circumstances, 
defendants should be precluded from arguing that the district 
court's determinations are supported by record evidence upon 
which the district court itself did not rely. Cf. Sims v. 
Jefferson Downs Racing Association. 778 F.2d 1068, 1084-85 (5th 
Cir. 1985).

^his reduction cannot be explained by the possibility of 
lower rates in the Northern District of Mississippi than in the 
Southern District. The district court in this case increased the 
hourly rates for two other attorneys who represented prevailing 
plaintiffs in both cases Mississippi State Chapter Operation PUSH. 
Inc, v. Fordice and Martin v. Mabus. The court below increased the 
hourly rate for Pamela Karlan, now a professor at University of 
Virginia Law School, and Patricia Hanrahan, now a project director 
for the American Bar Association, from $75 per hour awarded in 
Martin to $80 per hour in this case.

15



But even if these affidavits may be considered, in order to 
sustain their argument defendants must persuade this Court that 
the district court, without saying so, rejected all of the 
affidavits and other proof presented by plaintiffs, see Brief for 
Plaintiffs-Appellants, pp. 19-20); rejected even one of the 
defendants' affidavits, the affidavit of William C. Spencer, an 
experienced Northern District attorney with a Tupelo, Mississip­
pi, law firm, who supported a range of $60 to $125 per hour (see 
Defendants' Response to Plaintiffs' Fee Motion, Ex. E, f 5)? and 
accepted the rest of defendants' affidavits, even though they 
stated hourly rates well below those even awarded by the district 
court.

Defendants' affidavits were factually inadequate to provide 
a basis for reducing the rates requested because, contrary to the 
Supreme Court's ruling in Blum v. Stenson. 465 U.S. at 892-95, 
they did not establish the prevailing commercial market rate for 
complex Federal court litigation in the Northern District of 
Mississippi.
Both the affidavits of John L. Maxey and Hubbard T. Saunders (the 
latter of whom represented defendants in this case until 1990) 
were based on discount rates they charged the state for defending 
state officials in civil rights litigation.7 These rates are

7Cf. Watkins v. Fordice. 807 F.Supp. 406, 415 and n.18 (S.D. 
Miss. 1992), app. pending No. 92-7764 (Notice of Appeal filed Nov. 
25, 1992 and amended Apr. 1, 1993)(in voting rights lawsuit, 
affidavits filed with district court indicated that private 
attorneys employed to represent Mississippi are paid $90 to $95 per 
hour, contrasted with testimony of plaintiffs' affiants that 
prevailing hourly rates in Mississippi for legal work-performed by

16



generally below the prevailing market rates because of the 
continuing relationship these attorneys have with the state. See 
Johnson v. Georgia Highway Express. 488 F.2d 714, 719 (5th Cir. 
1974); gee also Pharr v. Housing Authority of City of Prichard. 
704 F.2d 1216, 1218 (11th Cir. 1983) (allowing higher hourly rate 
for prevailing plaintiff's attorney than defense counsel received 
from his client where defense counsel fully paid regardless of 
the outcome of the litigation). This perhaps explains how 
defendant's affiant Maxey could attest that reasonable hourly 
rates for work performed on behalf of prevailing plaintiffs in a 
federal civil rights action in 1991 ($60 to $100) are the same 
as, or even less than they were when he testified in Neelv v.
City of Grenada. 624 F.2d 547 (5th Cir. 1980) more than a decade 
ago. This Court noted in Neelv v. City of Grenada, that John L. 
Maxey testified by affidavit that "because of the complexity, 
novelty, duration, and contingent nature of an employment 
discrimination litigation . . .  a fee based on a rate of One 
Hundred ($100.00) Dollars per hour is a reasonable fee to be 
awarded to the attorney of a successful plaintiff in an 
employment discrimination case." 624 F.2d at 550 n.3. 
Nevertheless, Maxey's affidavit in the court below maintains that 
since 1987, hourly rates of $60 to $100 have been "reasonable" 
for legal work performed in Mississippi actions. Affidavit of 
John L. Maxey, Exhibits to Defendants' Response in Opposition to

experienced counsel in federal court actions range from $100 to 
$200 per hour).

17



Plaintiffs' Motion for an Award of Attorneys' Fees and Litigation 
Expenses, as amended (Separately Bound Record Volume Ex. D at 
J9). The affidavit of William C. Spencer, upon which
defendants also rely, specifies a range of $60 to $125 per hour 
for the prevailing market rates in the Northern District and thus 
contradicts the Maxey and Saunders affidavits, as well as the 
district court's decision. In addition, the 1989 Mississippi 
Lawyer magazine survey results (Exhibits to Defendants' Response 
in Opposition to Plaintiffs' Motion for an Award of Attorneys' 
Fees and Litigation Expenses, as amended Separately Bound Record 
Volume Ex. F) offer no support for defendants' argument in 
support of affirmance of the decision below and cannot be 
credited because the survey results are no longer current, and 
therefore do not accurately reflect current billing rates; they 
reflect primarily the rates charged by attorneys engaged in 
routine state law practice, such as wills and divorces; they 
report only averages; and they fail to specify the range of 
hourly rates charged by attorneys in Mississippi for complex 
federal litigation based on their experience, skill, and reputa­
tion, as Blum v. Stenson requires. See Blum. 465 U.S. at 393,
395 and n. 11. In any event, nothing in the decision below 
indicates that the district court relied upon the Mississippi 
Lawyer survey in setting hourly rates for plaintiffs' counsel in 
this case.

For these reasons, this Court should vacate the hourly rates 
set by the district court and remand for an upward adjustment of

18



the hourly rates.
II. DEFENDANTS' ARGUMENTS THAT PLAINTIFFS ARE NOT 

ENTITLED TO FEES FOR DEFENDING THE STATE'S 
CROSS APPEAL SHOULD BE REJECTED.

A. Plaintiffs Repeatedly Requested Attorneys'
Fees for the Cross-Appeal in the District 
Court._______________________________________

Defendants incorrectly assert that plaintiffs never 
requested attorneys' fees for defending the state's cross-appeal 
in this case and never specified the number of hours spent in 
defending the cross-appeal. The record in this case simply shows 
otherwise.

Plaintiffs' Supplemental Motion for an Award of Attorneys' 
Fees, Litigation Expenses, and Expert Witness Expenses ("Supp. 
Motion"), filed in the district court on September 11, 1991, 
sought compensation for, inter alia, work "on the appeals of this 
case," id. at 1 (emphasis supplied). Contrary to defendants' 
assertion (Defendants-Appellees, 19-20), the supplemental 
declarations of Frank R. Parker and Judith Reed, filed 
contemporaneously with Plaintiffs' Supplemental Motion, 
separately designated time spent on the cross-appeal (Ex. 1 to 
Supp. Motion at 1 and Ex. 2 to Supp. Motion at 2), and the daily 
time records attached to Parker's and Reed's supplemental 
declarations identify time devoted to the cross-appeal separately 
from time spent on the appeal (Ex. A to Parker Supp. Declaration 
at 1-3; Ex. A to Reed Supp. Declaration at 1-3). Frank R. Parker 
specifically identified 70.5 hours spent on defendants' cross­
appeal, and Judith Reed specifically identified 55.1 hours that

19



she spent on defendants' cross-appeal. Id.
In addition, plaintiffs submitted a memorandum of law in 

support of their Supplemental Motion for Attorneys' Fees in the 
district court which presented both the argument that plaintiffs 
were entitled to attorneys' fees for their own appeal and that 
they were entitled to attorneys' fees for defending against the 
state's cross-appeal (Plaintiffs' Supplemental Memorandum, 4- 
6) .8 Plaintiffs cited the controlling case in this Circuit 
that establishes plaintiffs' right to attorneys' fees for 
defending against the state's cross-appeal, Lerov v. City of 
Houston. 906 F.2d 1068 (5th Cir. 1990) (Plaintiffs' Supplemental 
Memorandum, 4). In addition, in response to the state's argument 
that plaintiffs' attorneys were not entitled to compensation for 
either the appeal or cross-appeal, plaintiffs specifically argued 
in their reply brief that they were entitled to compensation for 
the cross-appeal because "plaintiffs were totally successful in

8The Uniform Local Rules of the United States District Courts 
for the Northern and Southern Districts of Mississippi provide that 
legal memoranda "are not to be filed with the Clerk's office" and 
are, instead, delivered directly to the presiding judge. Local 
Rules 7(d) and 8(d) and (e). As a result, Plaintiffs' Memorandum 
of Law in Support of their Supplemental Motion for an Award of 
Attorneys' Fees, Litigation Expenses, and Expert Witness Expenses 
and Plaintiffs' Supplemental Reply Brief in Support of Motion for 
an Award of Attorneys' Fees and Litigation Expenses were not 
included in the Record transmitted to this Court by the United 
States District Court for the Northern District of Mississippi. 
Plaintiffs are furnishing the Clerk of the United States Court of 
Appeals for the Fifth Circuit with true and correct copies of these 
memoranda in the event that this Court needs to refer to them for 
the disposition of this aspect of the appeal. Counsel for 
defendants and the Clerk of the United States District Court for 
the Northern District of Mississippi have been provided with copies 
of all material forwarded by plaintiffs to the Clerk of this Court.

20



defending against defendants' appeal from this Court's ruling on 
the merits and persuaded the Fifth Circuit to affirm this Court's 
finding of a Section 2 violation." Plaintiffs' Supplemental 
Reply Brief, 8.

Plaintiffs fully addressed the issue of their entitlement to 
fees for defendants' cross-appeal in the court below and specif­
ied the hours spent on the cross-appeal. Therefore, defendants' 
argument that they did not present this issue to the district 
court is specious and directly contradicted by the record.

B. Defendants' Argument that Plaintiffs Achieved 
No Concrete Success from Defending the 
State's Cross-Appeal Should Be Rejected._____

In the face of ample authority establishing that plaintiffs 
are entitled to reimbursement for defending against the state's 
cross-appeal, Norris v. Hartmarx Specialty Stores. Inc.. 913 F.2d 
253, 256 (5th Cir. 1990); Leroy v. City of Houston. 906 F.2d 
1068, 1082-83 (5th Cir. 1990); Blanchard v. Bergeron. 893 F.2d 
87, 91 (5th Cir. 1990), defendants are unable to cite a single 
case in support of their argument that plaintiffs should be 
denied attorneys' fees for preserving their victory in the 
district court by successfully opposing the state's effort to 
overturn it on appeal.8 9

Instead, they attempt to invent a whole new theory that they

8See also Bode v. United States. 919 F.2d 1044, 1052 (5th Cir.
1990) ("attorneys' fees may be awarded for all aspects of 
litigation, including appeal . . . [and] fees for defending an 
appeal 'should be excluded [only] to the extent that the applicant 
ultimately fails to prevail in such litigation'")(quoting 
Commissioner. INS v. Jean. 496 U.S. 154, 163 n.10 (1990)).

21



should not be liable for attorneys' fees because their cross­
appeal from the district court's decision was only "protective in 
nature" and "a hedge to the risk" that this Court might order 
additional remedial relief. Defendants' rationalizations about 
their motives for taking their cross-appeal provide no basis 
whatever for denying plaintiffs their attorneys' fees.

The issue here is very simple. After a trial, plaintiffs 
won from the district court a ruling that the challenged restric­
tions on voter registration violated Section 2 of the Voting 
Rights Act, and the district court specified a remedy. Missis­
sippi State Chapter. Operation PUSH v. Allain. 674 F. Supp. 1245 
(N.D. Miss. 1987). Subsequently, the district court approved the 
new state statute enacted in response to the district court's 
decision. 717 F. Supp. 1189 (N.D. Miss. 1989). Defendants then 
took a cross-appeal contesting the primary factual findings of 
the district court on the merits and its ruling that the 
challenged restrictions violated Section 2. If the defendants 
had prevailed on their cross-appeal, the district court's 
judgment for the plaintiffs on the merits would have been 
reversed, and plaintiffs would have lost everything they won in 
the district court.10

10 Defendants also contend that because the remedy was enacted 
by state statute, nothing this Court could have done would have 
affected the relief obtained (Brief of Defendants-Appellees at 23- 
24). This is erroneous because the state statute was predicated on 
the district court's ruling of a Section 2 violation. If that 
ruling had been reversed, the state legislature would have been 
free to repeal the statute. In addition, if defendants' contention 
were true, the liability issue would have been moot, and this 
Court's opinion on the Section 2 violation issue merely an advisory

22



Defending the state's cross-appeal was a necessary part of 
plaintiffs' prevailing on their claim. Therefore, to deny 
plaintiffs their attorneys' fees for successfully defending 
against the state's cross-appeal is to deny plaintiffs full 
compensation for the claim on which they prevailed, in violation 
of Henslev v. Eckerhart. 461 U.S. 424 (1983), and controlling 
decisions of this Court. Defendants' argument is without legal 
support and should be rejected.

III. THE DISTRICT COURT'S REDUCTION OF LITIGATION EXPENSES 
CONFLICTS WITH CONTROLLING DECISIONS OF THIS COURT AND 
SHOULD BE REVERSED.

In response to plaintiffs' argument that the district court 
erred in awarding plaintiffs only a small fraction of the 
requested amount of litigation expenses, defendants argue that 
the district court did not err because the reduction of 
plaintiffs' litigation expenses was consistent with its reduction 
of the hours claimed by plaintiffs' counsel for work in 
connection with the case. Defendants-Appellees' Brief at 25. 
Secondly, defendants concede that plaintiffs provided thorough 
documentation of their litigation expenses, but nevertheless 
complain that the documentation of expenses "was in no 
chronological format and contained little, if any, explanatory

arguments should be credited

first argument is that it 
decision in Copper Liquor.

notes," id. at 27. Neither of these 
by this Court.

The difficulty with defendants' 
directly conflicts with this Court's

opinion without legal consequence.
23



Inc, v. Adolph Coors Co.. 684 F.2d 1087 (5th Cir. 1982), modified 
on other grounds. 701 F.2d 542 (5th Cir. 1983), which reversed a 
district court's "across-the-board reduction" of the prevailing
party's litigation expenses. Id. at 1101. In Copper Liquor.

0this Court held that there was "no authority for a percentage 
reduction of either costs, properly defined, or expenses, 
recoverable as 'cost of suit,' based on the factors used by the 
district court to reduce attorneys' fees," and directed that 
"[w]hile expenses incurred extravagantly or unnecessarily should 
be disallowed, this should be done on an item-by-item basis."
Id. Clearly the approach of the district court here —  which 
defendants describe as "making a comparable reduction in the . .
. 'expenses' which would be associated with . . . [what the 
district court viewed as] unjustifiable hours" —  is inconsistent 
with this court's Copper Licruor decision and should be reversed. 
Defendants-Appellees' Brief at 25.

In addition, none of the defendants' arguments in response 
to plaintiffs' appeal of the district court's reduction of 
expenses addresses the district court's exclusion of items such 
as deposition costs, service and filing fees, and lay witness 
expenses from the award of litigation expenses. The district 
court, without any explanation, completely excluded $6,116.98 of 
fully documented expenses for depositions, court costs and lay 
witnesses from the award of attorneys' fees and litigation 
expenses. Compare RE Tab F at 46-47 (itemization of plaintiffs' 
expenses claim) with RE Tab F at 68-69 (listing expenses awarded

24



by district court). The district court's failure to make any 
award to plaintiffs for these expenditures is not explained 
either by defendants' argument that the district court excluded 
expenses that were "associated with . . . unjustified hours," or 
that the expenses were inadequately documented. Defendants- 
Appellees' Brief at 25, 27. Cf. Copper Liquor, id. at 1099 and 
n.35 (noting that "all expenditures for" witness and filing fees 
and deposition transcripts "necessarily obtained for use in the 
case" should "be allowed whether or not the original judgment 
provided for costs").

Defendants' arguments also disregard the clear conflict 
between the decision below and this Court's decision in Islamic 
Center of Mississippi v. Starkville. Mississippi. In Islamic 
Center. this Court held that "conclusory statements" are an 
inadequate substitute for the "clear and concise explanation" 
which this Court requires district courts to provide before 
reducing amounts requested by fee applicants. 876 F.2d at 470; 
cf^ Mississippi State Chapter Operation PUSH, Inc, v. Fordice. 
Mem. Op. at 6 (RE Tab D at 26 )(N.D. Miss., Sept. 11,
1992)("After excluding claims for unrecoverable expenses . . . 
the court's judgment affords plaintiffs more than forty percent 
of their remaining request. Considering all the evidence, the 
award of expenses undoubtedly is reasonable and remains as the 
order states").

Moreover, defendants completely failed to address 
plaintiffs' argument that the district court's exclusion of some

25



expenses and excessive reduction of other expenses in determining 
the attorneys' fees and litigation expenses award conflicts 
directly with this Court's decision in Assoc. Builders and 
Contractors v. Orleans Parish Sch. Bd.. 919 F.2d 374 (5th Cir. 
1990), which held that "[a]11 reasonable out-of-pocket expenses . 
. . are plainly recoverable in Section 1988 fee awards because 
they are part of the costs normally charged to a fee-paying 
client." 919 F. 2d at 380. Accord Northcross v. Bd. of Ed. of 
Memphis City Schools. 611 F.2d 624 (6th Cir. 1979) cert, denied. 
447 U.S. 911 (1980). While the district court, citing Loewen v. 
Turnipseed. 505 F.Supp. 512, 517 (N.D. Miss. 1980), noted this 
standard in its opinion, it apparently did not actually apply the 
standard, since it excluded from the award items that were 
unquestionably reasonable expenditures and that certainly would 
have been charged to a fee-paying client. Thus, defendants' 
argument, which suggests that the district court's reasoning for 
excluding certain hours claimed by plaintiffs' counsel applies 
with equal force to the exclusion of litigation expenses, is 
simply unresponsive to plaintiffs' argument that the district 
court's reduction of plaintiffs' claimed expenses conflicts with 
the controlling decisions of this Court and was an abuse of 
discretion.

Finally, defendants' argument that a reduction of litigation 
expenses was warranted by the manner in which plaintiffs 
presented the documentation to support their expense claim 
elevates form over substance and should be rejected by this

26



Court. Defendants do not contend that the expenses disallowed by 
the district court were not verified by receipts provided by the 
plaintiffs, or that documentation was missing for the expenses 
plaintiffs claimed. Rather, defendants complain about the format 
plaintiffs used to present the documentation of their expenses 
and suggest that this was an adequate basis for the district 
court's decision to award less than half of plaintiffs' 
documented litigation expenses. Plaintiffs' presentation of 
litigation expenses complied fully with the requirements set 
forth by this Court in Copper Liquor. Inc, v. Adolph Coors Co..
684 F.2d 1087 (5th Cir. 1982). In Copper Licruor. this Court held 
that "[t]hose who are entitled to recover costs and expenses bear 
the burden of furnishing a reasonable accounting." 684 F.2d at 
1099 (emphasis supplied). Plaintiffs' counsel in this case 
itemized categories of expenses and thoroughly documented the 
claimed expenses with receipts. This presentation was certainly 
sufficient to qualify as a "reasonable accounting" of the claimed . 
expenses. Defendants' attempt to impose greater burdens upon 
prevailing parties to document their litigation expenses should 
therefore be rejected by this Court.

Assuming arguendo that the format used by plaintiffs to 
present documentation verifying their claimed expenses was in any 
way deficient, this was not equivalent to a failure to satisfy 
the requirement of demonstrating the reasonableness of the fees 
and expenses requested, and reduction or disallowance of expenses 
on that basis alone is completely unauthorized. Defendants do

27



not cite a single case to support their contention that such a 
drastic response to a-party's use of a particular format to 
present its litigation expense request is authorized, absent a 
finding that the expenses are falsified or unreasonable. 
Defendants-Appellees' Brief at 27-28.

For these reasons, the district court's denial of 
compensation to plaintiffs for documented litigation expenses 
which defendants did not contest, and its failure to explain its 
rejection or reduction of many documented expenditures was an 
abuse of discretion and should be reversed by this Court.

IV. PLAINTIFFS' MOTION FOR AN AWARD OF EXPERT WITNESS 
EXPENSES PURSUANT TO FED. R. CIV. P. 37(c) WAS 
TIMELY FILED, AND THE DISTRICT COURT ERRED IN 
FAILING TO ADDRESS IT IN THE DECISION BELOW.

Plaintiffs moved pursuant to Rule 37(c) of the Federal Rules 
of Civil Procedure for an award of $20,236.98 for expenses 
incurred in the preparation and testimony of plaintiffs' expert 
witnesses Professor Steven Hahn and Professor Allan Lichtman 
while the appeal of the district court's merits decision was 
pending, and again immediately after this Court's affirmance of 
the district court's merits decision. Plaintiffs' Supp. Motion 
(R. Vol. 3) at 1, 3.11 Rule 37(c), Fed. R. Civ. P., provides 
that the court "shall make the order [requiring payment of the 
expenses incurred in making the proof of matters denied] unless

11Rule 37(c) provides that "[i]f a party fails to admit . . . 
the truth of any matter requested under Rule 36, and if the party 
requesting the admissions thereafter proves . . . the truth of the 
matter, the requesting party may apply to the court for an order 
requiring the other party to pay the reasonable expenses incurred 
in making that proof." Fed. R. Civ. P. 37(c). —

28



it finds that" one of four specific exceptions to the application 
of Rule 37(c) sanctions apply.12 The district court 
completely failed to address plaintiffs' Rule 37(c) motion: it 
did not find that the exceptions to the application of Rule 37(c) 
applied, nor did it "make the order" required by the rule in the 
absence of such findings. This failure by the district court 
justifies a remand for proper consideration and complete findings 
regarding plaintiffs' Rule 37(c) motion. Alberti v. Klevenhacren. 
896 F.2d 927, 939 (5th Cir. 1990)(remand for "appropriate 
findings" required where district court failed to address 
prevailing plaintiffs' argument that expert witness expenses were 
recoverable under exception to usual rule against such an award).

A. Plaintiffs' Rule 37(c) Motion Was Timely Filed, And
Defendants' Argument That They Had No Prior Notice of 
the Possible Imposition of Sanctions Is Also 
Unavailing._____________________________________________

On September 11, 1991 plaintiffs moved, pursuant to Fed. R.
Civ. P. 37(c), for an award of expert witness expenses.
Defendants' assertion that this motion was untimely (Defendants'-
Appellees' Brief at 28-31) is incorrect:

[N]o rule specifies the time during which a 
Rule 37(c) motion must be filed and, as is 
explained in the advisory committee note to 
Rule 37(c), the rule is intended to provide 
post-trial relief. As a practical matter, it

12If the district court finds that any of the following four 
exceptions applies, it may decline to impose Rule 37(c) sanctions: 
"(1) the request was held objectionable pursuant to Rule 36(a), or 
(2) the admission sought was of no substantial importance, or (3) 
the party failing to admit had reasonable ground to believe that 
the party might prevail on the matter, or (4) there was other good 
reason for the failure to admit." Fed R. Civ. P.. 37(c). The 
district court made none of these findings in this case.

29



will often be necessary to complete a 
proceeding before it can be said that a 
requester has 'proved' the truth of the 
matter for which an admission has been 
requested.

Kasuri v. St. Elizabeth Hospital Medical Center. 897 F.2d 845,
856 (6th cir. 1990) (quoting Chemical Engineering Coro, v. Essef 
Industries. Inc.. 795 F.2d 1565, 1574 (Fed. Cir. 1986)).
Although defendants argue that plaintiffs' Rule 37(c) motion was 
untimely, in fact, plaintiffs first argued that Rule: 37(c) 
provided an alternative basis for an award of expert: witness 
expenses in this case while the appeals of the merits decision in 
this case were pending. Defendants are surely aware of this 
since they responded to plaintiffs' original presentation of a 
request for an award of expert witness expenses pursuant to Rule 
37(c) in 1989. See Defendants' Response in Opposition to 
Plaintiffs' Motion for an Award of Attorneys' Fees and Litigation 
Expenses, as Amended at 37-38 (R. Vol. 1 at 142-143) (filed Dec. 
6, 1989) (noting that "[a]s an alternative basis for recouping 
expert expenses, plaintiffs assert that they are properly 
compensable under Fed. R. Civ. P. 37(c)"). Thus, while 
plaintiffs first moved to recover their expert witness expenses 
pursuant to Rule 37(c) after the district court's decision on the 
merits, it was not until the conclusion of the appeals that 
plaintiffs could conclusively argue that Professors Hahn and 
Lichtman, through their expert testimony, establishes! the truth 
of matters regarding racial disparities in voter registration 
rates and Mississippi's history of discrimination against Black

30



voters that were denied by the defendants. See Exhibits 6 and 7 
to Plaintiffs' Supplemental Motion for an Award of Attorneys' 
Fees, Litigation Expenses, and Expert Witness Expenses 
(Plaintiffs' First Request for Admissions and Defendants'
Response to Plaintiffs' First Request for Admissions).

Contrary to defendants' argument, the Rule 37(c) motion was 
presented to the district court in plaintiffs' first post-trial 
fee motions, was promptly augmented after this Court's decision 
on the appeal and cross-appeal of the merits decision, and 
therefore, the motion was timely. In any event, defendants' 
argument that the motion was untimely should be rej€tcted because 
it was not the basis for the district court's disposition of 
plaintiffs' Rule 37(c) motion. As discussed at pages 35-42 of 
our opening brief, the district court did not cite any reason for 
its disposition of the Rule 37(c) motion, and the decision was 
completely silent regarding the motion. The district court made 
only the following findings with regard to the recovery of expert 
witness expenses:

For the services of experts Dr. Allan J.
Lichtman . . . and Dr. William P. O'Hare 
[sic] . . . Plaintiffs request $28,557.21, 
but the amount is largely unrecoverable. . .
. "[T]he . . . Fifth Circuit rule is that, in 
civil rights actions, a losing party may not 
be taxed for an expert witness' services in 
excess of the $40.00 per day rate that is 
authorized by 28 U.S.C. § 1821 for in court 
testimony." . . . Given the above authority, 
the request of $28,557.21 in expert witness 
fees is denied. Instead, the court will 
allow $260.00 for expert costs.

788 F.Supp. at 1423 (RE Tab F at 68) (citations omitted). Thus,

31



*

nothing in the opinion reflects that the court considered 
plaintiffs' Rule 37(c) motion for an award of expert witness 
expenses at all.

Defendants' arguments are all unresponsive to the central 
error of the district court's decision. The district court did 
not indicate that the Rule 37(c) motion was untimely, nor did it 
suggest that defendants had inadequate notice that Rule 37 
sanctions might be imposed as a result of their responses to 
plaintiffs' discovery requests, nor did it find that defendants' 
conduct fell within one of the four specified exceptions to the 
application of Rule 37(c) sanctions and decline to award 
plaintiffs' expert witness expenses on that basis. To the 
contrary, the district court did not offer any reasoning at all 
for declining to award the expert witness expenses that 
plaintiffs sought pursuant to Rule 37, so the "reasons" suggested 
by defendants are completely speculative.

B. Defendants Have Not Identified Any Reason for Their 
Refusal to Make the Requested Admissions.___________

On this appeal, as in the court below, the only 
justifications that defendants offer for their refusal to make 
the requested admissions are that they "had good reason to refuse 
to admit the quote and . . . reasonable grounds to believe they 
might prevail on the matter," Brief for Defendants-Appellees at 
35; see also Defendants' Response to Plaintiffs' Supplemental 
Motion for An Award of Attorneys' Fees, Litigation Expenses and 
Expert Witness Expenses at 26-27 (R. Vol. 2 at 196) ; Defendants' 
Response in Opposition to Plaintiffs' Motion for Attorneys' Fees

32



and Litigation Expenses, as Amended, at 37 (R. Vol. 1 at 142) 
("defendants had reasonable ground to believe that they might 
prevail in the matters and there were other good reasons for the 
failure to admit, i.e.. that the requests included information 
which was not readily obtainable or which in fact required an 
expert opinion").

Nothing in the record —  other than defendants' bare 
assertion —  indicates that there was "good reason" for the 
failure to admit the matters denied by defendants in response to 
Plaintiffs' First Request for Admissions. Even on this appeal, 
defendants seek to avoid Rule 37(c) sanctions by citing the 
exceptions to Rule 37(c), yet persist in their refusal to 
identify a single "reason" or "ground[]" for their denial of the 
requested facts regarding racial disparities in voter 
registration in Mississippi.

If defendants' meager explanation is all that is required to 
avoid the imposition of Rule 37(c) sanctions, then the deterrent 
objective of the Rule will be completely eviscerated. Rule 36 
requests for admission are a discovery device intended to reduce 
the cost and duration of litigation by allowing parties to 
readily identify contested factual issues and to avoid the 
expense of proving uncontested factual issues. The sanctions 
available under Rule 37(c) of the Federal Rules are intended to 
deter unreasonable failures to admit or respond to matters that 
are the subject of discovery requests. See generally Advisory 
Committee Notes to Fed. R. Civ. P. 36 and 37(c). As two esteemed

33



commentators have noted, "Rule 37 . . . establishes the 
mechanisms by which Rules 26 to 36 [the discovery rules] can be 
made effective. Without adequate sanctions the procedure for 
discovery would be ineffectual." 8 Wright & Miller, Fed♦ Prac. 
and Proc.. § 2281 at 336 (1992 Supp.). If litigants can avoid 
Rule 37 sanctions merely by asserting that they have "good 
reasons" for refusing to make requested admissions and, even on 
appeal, they fail to identify a single one of those "reasons," 
the objectives of Rule 37 will be completely undermined.

For these reasons, this matter must be remanded with 
instructions to the district court to "elucidate . . . [the 
reasons for its disposition of the Rule 37(c) motion] on remand." 
Blanchard v. Bergeron. 893 F.2d 87, 90 (5th Cir. 1990).

V. THE DISTRICT COURT'S REDUCTION OF THE HOURS CLAIMED BY 
PLAINTIFFS' COUNSEL WAS AN ABUSE OF DISCRETION, AND 
DEFENDANTS HAVE OFFERED NO PERSUASIVE ARGUMENTS TO THE 
CONTRARY.

In responding to plaintiffs' showing that the district court 
abused its discretion by making large percentage deductions to 
the hours claimed by attorneys Reed, Hanrahan, Bixler, and 
Issacharoff without explanation, defendants do little more than 
repeat from the district court opinion. Plaintiffs-Appellants' 
Brief at 42-47 discusses why this Court should reverse and remand 
to the district court with directions to make only those 
deductions for which there are substantial reasons. The cases 
cited by defendants (Defendants'-Appellees Brief at 39-41) 
support this approach, since in each of those cases the district 
court had been specific about why it made each particular

34



deduction.
For example, in Brantley v. Surles. 804 F.2d 321 (5th Cir. 

1986), the Court notes that the district court "carefully 
discussed each reduction." Id. at 326. In Blanchard v.
Bergeron. 893 F.2d 87, 89-90 (5th Cir. 1990), the district court 
established the reasonableness of its deductions by noting that 
the trial had "consumed less than three days and [the case] was 
not factually or legally difficult." In Blanchard, this Court 
went further to note that, contrary to the instant case, there 
were only two defendants and trial was limited to very few 
issues. In contrast, this case was a statewide class action with 
extensive pretrial discovery involving novel and complex legal 
issues, tried over six days. See generally. RE Tabs G and H. In 
Von Clark v. Butler. 916 F.2d 255 (5th Cir. 1990), the problem 
lay in the sufficiency of the documentation to enable the court 
to distinguish between prevailing and non-prevailing issues. As 
this Court noted, the fee applicant "failed to carry his burden 
of proving the hours that he submitted reasonably reflected hours 
expended solely on" the claims upon which he prevailed. 916 F.2d 
at 261. Similarly, in Beamon v. City of Ridgeland. 666 F. Supp. 
937, 942-43 (S.D. Miss. 1987), the district court provided 
considerable detail on why it was disallowing certain time. 
Finally, defendants cite no case where the district court has 
engaged in the sort of double-deduction that occurred here.

The district court's approach to the elimination of hours, 
like its across-the-board approach to plaintiffs' litigation

35



expenses, is severely flawed and for similar reasons, including 
the court's failure to make necessary findings to support the 
reductions. Because the district court abused its discretion, 
the decision below should be reversed and the matter remanded 
with appropriate instructions as set forth in Plaintiffs' main 
brief (at pages 47-48).

CONCLUSION
For the above-stated reasons, and based on the authorities 

cited, the district court's March 4, 1992 decision and order 
should be reversed and remanded to the district court with 
instructions to award plaintiffs additional attorneys' fees and 
litigation expenses as required by controlling decisions of this 
Court and the Supreme Court, and to identify specifically any 
item(s) for which plaintiffs seek compensation that the court 
concludes should be excluded from the award. On remand, the 
district court should be directed to fully explain why any 
expenses or hours reduced in, or omitted from, the award have 
been disallowed partially or entirely. Furthermore, this Court 
should direct the district court to address plaintiffs' Rule

36



37(c) motion on remand. Finally, the district court's September 
10, 1992 final judgment and order awarding plaintiffs an 
enhancement of 5.6 percent on the total fee award to compensate 
for the delay in payment should be affirmed.

Respectfully submitted,

JACQUELINE A. BERRIEN 
Lawyers' Committee for Civil 

Rights Under Law 
1400 Eye Street N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212
ELAINE R. JONES 
JUDITH REED
NAACP Legal Defense and

Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900
Attorneys for
Plaintiffs-Appellants-
Cross-Appellees

37



CERTIFICATE OF SERVICE
I hereby certify that I have this day served by United 

States mail, postage prepaid, copies of the Brief for Cross- 
Appellees/Reply Brief for Appellants to the following attorneys 
for the Defendants-Appellees-Cross-Appellants:

Mike Moore, Esq.
Attorney General 
T» Hunt Cole, Jr., Esq.
Special Assistant Attorney General 
P.0. Box 220 
Jackson, MS 39205
Michael T. Lewis, Esq. 
Lewis & Lewis, P.A.
519 First Street 
P.0. Drawer 1600 
Clarksdale, MS 38614

This day of May, 1993.