Washington State v. Seattle School District No. 1 Brief of Intervenor-Plaintiffs-Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

MARY C. QUARATINO, 

Plaintiff-Appellant,

V.

TIFFANY & CO., MICHAEL EIRING, 
and DAVID WRIGHT,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Southern District of New York

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

E laine R. Jones 
D irector-Co un se l

Th e o d o r e  M. Sh a w  
N o r m a n  J. C eiachkin 
Charles Stephen R alston 
NAACP Le g a l D efense a n d  
Educational Fu n d , In c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae



TABLE OF CONTENTS
INTEREST OF THE AMICUS CURIAE ................................  1

STATEMENT OF THE I S S U E S ....................................... 3

STATEMENT OF THE C A S E .........................................  3

ARGUMENT ......................................................  3

THE PROPORTIONALITY RULE OF THE DISTRICT COURT IS
CONTRARY TO THE CLEAR INTENT OF CONGRESS ...............  3

CONCLUSION .................................................... 7

CERTIFICATE OF SERVICE ....................................... 8

l



Cases : Pages :

American Federation of State, County, and Mun. Employees v.
County of Nassau, 96 F.3d 644 (2d Cir. 1 9 9 6 ) .............2

Blum v. Stenson, 465 U.S. 886 (1984) ..........................2

Bob Jones University v. United States, 461 U.S. 574 (1983) . . 6

Bradley v. School Board of City of Richmond,
416 U.S. 696 (1974) .......................................2

City of Riverside v. Rivera, 477 U.S. 561 (1986) . . . .  2, 4-6

Farrar v. Hobby, 506 U.S. 103 (1992) ..........................4

Hensley v. Eckerhart, 461 U.S. 424 (1983)..................... 2

Hutto v. Finney, 437 U.S. 678 (1978) ..........................2

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

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) . 2

Patsy v. Florida Board of Regents, 457 U.S. 496 (1982) . . . .  6

Rivera v. City of Riverside, 679 F.2d 795 (9th Cir. 1982) . . .  5

Vasquez v. Hilary, 474 U.S. 254 (1986) ........................6

Statutesi .

42 U.S.C. § 1988   5

Legal Fee Equity Act (S.2802, 98th Cong., 2d Sess. (1984)) 5, 6

Title VII of the Civil Rights Act of 1964 ........... 1, 2, 5, 6

Other Authorities: Pages:

"Counsel Fees In Public Interest Litigation," A Report by the 
Committee On Legal Assistance, 39 The Record of the 
Association of the Bar of the City of New York 300 (1984) 3

Municipal Liability Under 42 U.S.C. § 1983: Hearings Before the 
Subcommittee on the Constitution of the Senate Judiciary 
Committee, 97th Cong., 1st Sess. (1981)   4

TABLE OF AUTHORITIES

ii



Pages:

The Legal Fee Equity Act: Hearing Before the Subcommittee on the
Constitution of the Senate Judiciary Committee (98th Cong., 
2d Sess . , 1984) ........................................... 5

iii



No. 97-7096

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

MARY C. QUARATINO,

Plaintiff-Appellant,
v.

TIFFANY & CO., MICHAEL EIRING, and DAVID WRIGHT, 

Defendants-Appellees.

On Appeal from the 
United States District Court 

for the Southern District of New York

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

INTEREST OF THE AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc., ("Legal 

Defense Fund") is a non-profit corporation organized under the laws 

of the State of New York. It was formed to assist African-American 

citizens to secure their rights under the Constitution and laws of 

the United States. For many years, Legal Defense Fund attorneys 

have represented parties in litigation before the Supreme Court of 

the United States and other federal and state courts in cases 

involving a variety of race discrimination and remedial issues, 

including many cases involving Title VII of the Civil Rights Act of



1964. For many years we have had an interest in the award of 

attorneys' fees adequate to ensure an appropriate level of private 

enforcement of the civil rights statutes. Thus, we have appeared 

as counsel1 and as amicus curiae2 in most of the leading civil 

rights attorneys' fees cases, including City of Riverside v. 

Rivera, 477 U.S. 561 (1986), in which the Legal Defense Fund's

brief amicus curiae brought to the attention of the Supreme Court 
matters that are also set out in this brief.3

In the present case, in addition to the interest of the Legal 

Defense Fund itself, we wish to present to the Court the interests 

and concerns of the private civil rights bar. The Legal Defense 

Fund is dependent, as are other organizations, on the continuing 

collaboration of private attorneys in bringing civil rights cases 

under Title VII and other civil rights statutes. Our nearly 200 

cooperating attorneys are primarily single practitioners and 

attorneys in small firms. Unlike attorneys in large firms, they 

cannot depend on major commercial clients to support their pro bono 

activities. And, unlike lawyers who specialize in personal injury 

litigation, those who practice civil rights law cannot 

realistically depend on a continuing flow of cases in which

•3•> Newman v._Piggie Park Enterprises. Inc.. 390 U.S. 400
(19 6 8) Bradley v._School Board of City of Richmond , 416 U.S. 696
<1974) ; Hutto v. Finney, 437 U.S. 678 (1978); Johnson v, Geora-i a 
Highway Express Co.. 488 F.2d 714 (5th Cir. 1974).

2E^g^, City of Riverside v. Rivera. 477 U.S. 561 (1986); Blum 
v. Stenson, 465 U.S. 886 (1984); Henslev v. Eckerhart, 461 U.S. 424 
(1983>; American Federation of State. Countv. and Mun. Eirnloysss v 
County of Nassau. 96 F.3d 644 (2d Cir. 1996).

3See City of Riverside v. Rivera. 477 U.S. at 581, n. 12, 
referring to the failure of Congress to pass the so-called Legal 
Fee Equity Act discussed below.

2



substantial fees may be taken from the recovery by the plaintiffs 

as an agreed upon percentage. To a very large degree, they depend 

upon the award of fees adequate to compensate them for the time 

actually expended on the cases they win.

It was precisely for these attorneys and their particular type 

of practice that Congress enacted the various fee statutes. If the 

decision o f the district court stands, many attorneys will be

driven out of the practice of civil rights law. The private

enforcement of civil rights cases will be undermined and the

enforcement will be left almost exclusively to the pro bono efforts 

of a few large firms and to a few public interest organizations, 

which employ less than 100 attorneys altogether.4 We submit that 

such a result would be totally contrary to the intent of Congress.

STATEMENT OF THE TSSTTES

Amicus relies on the Statement of the Issues as stated by 
Plaintiff-Appellant.

STATEMENT OF THE CASE

Amicus relies on the Statement of the Case as stated by
Plaintiff-Appellant.

ARGUMENT

THE PROPORTIONALITY RULE OF THE DISTRICT COURT IS 
CONTRARY TO THE CLEAR INTENT OF CONGRESS

The plaintiff-appellant and the other amici have discussed in 

detail the legislative history of the various civil rights fees

4See "Counsel Fees In Public Interest Litigation," A Report by 
the Committee On Legal Assistance, 39 The Record of the Association 
of the Bar of the City of New York 300, 325 (1984) .

3



acts and why the Supreme Court's decision in City of Riverside v. 

Rivera, supra, remains controlling law and has not been overruled 

by Farrar v. Hobby, 506 U.S. 103 (1992).5 Thus, this Court is

bound to follow City of Riverside and should adhere to this Court's 

many decisions that have rejected the argument that fees should be 

proportional to the plaintiff's recovery in computing statutory 

fees in a^civil rights case. In this brief we will discuss yet 

another reason why the fees statutes cannot be interpreted to 

incorporate a proportionality standard: Congress itself has

rejected attempts to amend the statutes to impose such a 
limitation.

At least as far back as 1981, an effort was begun to convince

Congress to amend and limit the fee acts, particularly as they

affected government defendants. See Municipal Liability Under 42

U.S.C. § 1983: Hearings Before the Subcommittee on the Constitution

of the Senate Judiciary Committee, 97th Cong., 1st Sess. (1981),

pp. 147-52 and 288-91 (Statement of National Institute of Municipal

Law Officers); 524-558 (Statement of National Association of

Attorneys General). Indeed, it was specifically recommended that

the amount of fees be "incoprorat[ed] . . . into the amount being
sought in damages." and that:

If the case carves out a new area of civil rights law, or 
if the case will have a widespread impact, the prevailing 
party's attorney would be entitled to a larger fee than 
would be appropriate where the nature of the case is 
similar to a personal injury case, such as an injury 
suffered at the hands of a police officer. In the latter

5Farrar announces no general "proportionality" rule but rather 
addresses only the situation in which a civil rights plaintiff's 
recovery is "nominal." In no way does it purport to overrule City 
of Riverside.

4



instance the judgment will be of little impact or 
interest beyond the parties directly involved and the 
fees awarded should be so limited.

IcL at 291. However, the proposed fee statute failed to be
reported out of committee.

Efforts to have 42 U.S.C. § 1988, in particular, amended

subsequently escalated after the issuances of "Civil Rights

Attorney's, Fees Awards Act of 1976: A Report to Congress," by the

National Association of Attorneys General. See, The Legal Fee

Equity Act:__Hearing Before the Subcommittee on the Constitution of

the Senate Judiciary Committee (98th Cong., 2d Sess., 1984), pp.

237-305. The report urged that the Fees Act be amended

specifically to prevent fees that were allegedly disproportionate

to monetary awards. Given as an example of a case in which "the

amount of fees awarded was grossly disproportionate to the degree

of success on the merits" was, in fact, Rivera v. City of

Riverside, 679 F.2d 795 (9th Cir. 1982) (later affirmed on this

point by the Supreme Court). The Legal Fee Equity Act: Hearing

Before the Subcommittee on the Constitution of the Senate Judiciary

Committee, at 272-74. Therefore, the report recommended that:

The Congress should amend the Fees Act to require that 
courts apportion the amount of fee awards to the degree 
of success actually attained by the prevailing party.

Id. at 274.

This recommendation was incorporated into the proposed Legal 

Fee Equity Act (S.2802, 98th Cong., 2d Sess. (1984)). Section 

6(b)(5) of the Act, which would have amended not only § 1988, but 

Title VII and every other federal fees statute as it applies to 

federal, state, and local governments, provided that fees will be

5



reduced:

[T]he amount of attorneys' fees otherwise authorized to 
be awarded unreasonably exceeds the monetary result or 
injunctive relief achieved in the proceeding.

Id. at 24-25. The section-by-section analysis stated that the

section was intended to deal with, for example, "cases where

$100,000 is awarded in attorneys' fees for a $30,000 judgment."
Id. at 124.-25.

Again, this effort to amend the fees acts was unsuccessful and 

the bill died in subcommittee. The proposed Legal Fee Equity Act 

was introduced again in the next session of Congress, which 

declined to amend the fees acts to provide for a proportionality 

rule. This failure was noted by the Supreme Court in city of 
Riverside v. Rivera, at p. 581, n. 12.

Thus, Congress refused, virtually contemporaneously with the 

Supreme Court's decision in City of Riverside and despite 

persistent attempts by a consortium representing officials at all 

levels of government, to amend the fees statutes to incorporate a 

proportionality rule such as was adopted by the district court.

The Supreme Court has often noted that the courts should be 

loath to interpret a statute to accomplish what has been repeatedly 

sought but not obtained in Congress. See, Vasauez v. Hilary. 474 

U.S. 254, 265 (1986),- Bob Jones University v. United States. 461

U.S. 574, 599-602 (1983); see also. Patsv v. Florida Board of

Regents, 457 U.S. 496, 508-12 (1982). In light of the totality of 

its legislative history, neither Title VII nor any of the other 

fees acts can reasonably be read to mean that fees are to 

calculated as some proportion of a monetary award in civil rights

6



cases. Rather, as the panel here correctly held, they are to be 

calculated based on a determination of the number of hours 

reasonably spent times the prevailing market rate for the attorney 
involved.

CONCLUSION

For the foregoing reasons, the decision of the court below 
should be ̂ reversed.

Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae

7



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing BRIEF AMICUS 

CURIAE OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

have been served by depositing same in the United States mail, 

first class postage prepaid, on this 12th of March, 1998, 
addressed to the following:

Anne Golden, Esq.
1740 Broadway, 25th Floor 
New York, NY 10019

Daniel A. Rizzi, Esq.
Dixon, Hargrave, Devans & Doyle 
437 Madison Avenue 
New York, NY 10022