Covington v. Edwards Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    IN THE
esK

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1351

DOLORES J. COPELAND, et al.,
Plaintiffs- Appellees, 

-  v  -

F. RAY MARSHALL, Secretary of Labor,
Defendant-Appellant,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

MEMORANDUM FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC. AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS- 
APPELLEES' MOTION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 
ERIC SCHNAPPER

10 Columbus Circle 
Suite 2030
New York, N.Y, 10019 
(212) 586-8397

Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc,, Amicus Curiae



IN THE
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1351

DOLORES J. COPELAND, et al.,
Plaintiffs-Appellees, 

- v -
F. RAY MARSHALL, Secretary of Labor,

Defendant-Appellant.

MOTION FOR LEAVE TO FILE MEMORANDUM AMICUS CURIAE 
ON BEHALF OF THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.
AND MEMORANDUM AMICUS CURIAE

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 
ERIC SCHNAPPER

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys for the NAACP 
Legal Defense and Educational 
Fund, Inc. Amicus Curiae



IN THE
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1351

DOLORES J. COPELAND, et al.,
Plaintiffs-Appellees, 
- v -

F. RAY MARSHALL, Secretary of Labor,
Defendant-Appellant.

MOTION FOR LEAVE TO FILE MEMORANDUM AMICUS CURIAE 
ON BEHALF OF THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.

Movant NAACP Legal Defense and Educational Fund, Inc. 
respectfully moves the court, pursuant to Rule 29 F.R.A. Proc. 
for permission to file the attached Memorandum amicus curiae, 
for the following reasons. The reasons assigned also disclose 
the interest of the amicus.

(1) Movant NAACP Legal Defense and Educational 
Fund, Inc., is a non-profit corporation, incorporated 
under the laws of the State of New York in 1939. It 
was formed to assist Blacks to secure their constitu­
tional rights by the prosecution of lawsuits. Its 
charter declares that its purposes includes rendering

i



legal aid gratuitously to Blacks suffering injustice 
by reason of race who are unable, on account of pov­
erty, to employ legal counsel on their own behalf.
The charter was approved by a New York Court, author­
izing the organization to serve as a legal aid society. 
The NAACP Legal Defense and Educational Fund, Inc. (LDF) 
is independent of other organizations and is supported 
by contributions from the public. For many years its 
attorneys have represented parties and has participated 
as amicus curiae in the federal courts in cases involv­
ing many facets of the law.

(2) Attorneys employed by movant have represented 
plaintiffs in many cases arising under Title VII of 
the Civil Rights Act of 1964, e,g., McDonnell Douglas 
Corp. v. Green, 411 U.S. 792 (1973) ; Albemarle Paper 
Co., 424 U.S. 747 (1976). They have appeared before 
this Court in a variety of Title VII cases involving 
agencies of the federal government both as counsel for 
plaintiffs, e.g., Foster v. Boorstin, 561 F.2d 340 (D.C 
Cir. 1977), and as amicus curiae, Hackley v. Roudebush, 
520 F. 2d 108 (D.C. Cir. 1975) .

(3) Amicus has also participated in many of the 
leading cases involving attorneys' fees questions, both

-2-



a counsel, e'.g., Newman v. Piggie Park Enter­
prises , 390 U.S. 400 (1968); Bradley v. School 
Board of the City of Richmond, 416 U.S. 696 (1974);
Hutto v. Finney, ___U.S._____, 57 L.Ed 2d 522 (1978) ;
Johnson v. Georgia Highway Express Co., 488 F.2d 714 
(5th Cir. 1974); Foster v. Boorstin, supra; and as 
amicus curiae, e.g., Christiansburg Garment Co. v.
Equal Employment Opportunity Comm., 434 U.S. 412 
(1978). In addition we have prepared and litigated 
counsel fee applications in numerous other cases 
arising under the various civil rights laws. In 
these cases we have been associated with private 
members of the civil rights bar, most of whom are 
with small firms (up to 10 lawyers) or are single 
practitioners. Therefore, we believe that our views 
on the practical impact of the decision in this case 
on civil rights practitioners will be helpful to the 
Court in determining whether a rehearing or rehearing 
en banc should be granted.

WHEREFORE, for the foregoing reasons amicus moves that 
the NAACP Legal Defense and Educational Fund, Inc. be given leave to 
file the attached memorandum amicus- curiae.

JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 
ERIC SCHNAPPER

10 Columbus Circle
Suite 2030New York, New York 10019 
(212)586-8397

Attorneys for Amicus Curiae



INDEX

Page

Introduction ...............................................  1
I. THE PANEL DECISION'S STANDARDS FOR CALCULATING 

ATTORNEY'S FEES ARE INCONSISTENT WITH THE ACT'S 
PURPOSE OF ENCOURAGING CIVIL RIGHTS LITIGATION . . 2

II. THE PANEL DECISION CONFLICTS WITH THE DECISION 
IN EVANS V. SHERATON PARK HOTEL AND DECISIONS
OF THE SUPREME COURT AND OTHER CIRCUITS ........  6

Conclusion ....................................... . . . . .  10
Certificate of Service.................. ..................11

CITATIONS
Cases:

Bell v. Brown, 557 F.2d 849 (D.C. Cir. 1977) . . . . .  7
Brown v. General Services Administration, 425 U.S,

820 (1977).............. .................... .. . 7
Chandler v. Roudebush, 425 U.S. 840 (1977)..........  7
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) 7
Copeland v. Usery, 13 E.P.D. 1[ 11,434 (D.D.C. 1976) . . 8
Davis v. County of Los Angeles, 8 E.P.D. 1[ 94 4 4

(C.D. Cal. 1974)...................................9
Day v. Matthews, 530 F.2d 1083 (D.C. Cir. 1976) . . . 7, 8
Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C. Cir,

1974).......................................2, 5, 6, 9
Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977) . . .  7
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir, 1975) . . . .  7
Hackley v. Roudebush, 520 F.2d 108 (D.C, Cir. 1975) . , 7
Johnson v. Georgia Highway Express Co,, 488 F.2d 714

C5th Cir. 1974)........ .. , 3, 5, 9

i



Cases-continued page
Parker v. Califano, 561 F.2d 32Q (JD,C, Cir, 19.771 , ,8, 9
Sperling v. United States, 515 F,2d 465 (3rd Cir,

1975)..................................... .. , , 8
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal.1974)........................................... 9
Swann v. Charlotte-Mecklenburg Board of Education,

66 F.R.D. 483 (W.D.N.C. 1975) ....................  9

Statutes:
42 U.S.C. § 1 * 8 8 ...................   9
42 U.S.C. § 2000e-16(d)   6
42 U.S.C. § 2000e-5 (f) - C k ) .........................   7

Miscellaneous;
94th Cong. 2d Sess. 6 (1976).................... .. , 9
S. Rep. No. 94-1011............................ .. . 9
U.S. Code Cong. & Admin. News, 1976 Vol. 5, p. 5913 . 9

li



IN THE
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1351

DOLORES J. COPELAND, et al.,
Plaintiffs-Appellees, 

v.
F. RAY MARSHALL, Secretary of Labor,

De fendant-Appe1lant.

On Appeal from the United States District Court 
for the District of Columbia

MEMORANDUM FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC. AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS- 
APPELLEES' MOTION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

Introduction
This Memorandum amicus curiae is filed by the NAACP Legal 

Defense and Educational Fund, Inc., in support of the motion of 
plaintiffs—appellees Dolores J. Copeland, et al., for rehearing 
and suggestion for rehearing en banc from the panel opinion of 
October 30, 1978. We urge that the panel opinion establishes 
special "standards and procedures to be followed in awarding 
attorney's fees to a party prevailing in litigation against an 
agency or department of the United States under the employment



discrimination provisions of Title VII of the Civil Rights Act 
of 1964," slip opinion at p. 2, that are inconsistent with the 
governing standards previously established for the award of 
reasonable attorney's fees in this Circuit by Evans v. Sheraton 
Park Hotel. 503 F.2d 177, 186-189 (D.C. Cir. 1974). In Part II 
of this Memorandum we will outline the reasons why we believe 
the panel opinion is erroneous as a matter of law. First, how­
ever, we wish to discuss the practical effects of the decision 
on civil rights practitioners.

I.
THE PANEL DECISION'S STANDARDS FOR CALCULATING 
ATTORNEY'S FEES ARE INCONSISTENT WITH THE ACT^S 

PURPOSE OF ENCOURAGING CIVIL RIGHTS 
__________________ LITIGATION__________________

As set out in the motion for leave to file this memorandum, 
the Legal Defense Fund has been involved in Title VII litigation 
and in cases involving counsel fees under various civil rights 
statutes since 1965. In all of its cases the Fund works with co­
operating attorneys who serve as local and lead counsel. These 
attorneys, both in the District of Columbia and nationwide, are

1/predominantly single practitioners or practitioners in small firms. 
The application of the standards set out in the panel decision to 
organizations such as the Legal Defense Fund and to the attorneys 
on whom it relies will penalize the very persons whose efforts 
Congress meant to encourage when it enacted the attorney's fees 
provision.

_l/ The examples given in this Memorandum are based on our experiences 
with such practitioners.

2



The problem with the formula described in the panel de­
cision is that it would result in fees that would be determined 
by the type of law practice that happened to be carried on by 
plaintiffs' attorneys, and not by the nature, quality, or value 
of the legal work done. Thus, a large firm, with the high over­
head, large salaries, and profit margin typical of such a practice, 
would receive large fees. A solo practitioner whose practice is 
entirely or predominantly civil rights, and who thereby may have 
particular expertise in such cases, on the other hand, would re­
ceive diminished fees for a number of reasons.

First, the formula does not take account of the contingent 
nature of civil rights litigation. Compare, Johnson v. Georgia 
Highway Express, 488 F.2d 714, 718 (5th Cir. 1974). Unlike a 
large firm having a varied commercial practice based substantially 
on retainer agreements and a docket of matters which assures steady 
income based on hourly rates or negotiated fixed fees, the civil 
rights practitioner must in making calculations, include a signi­
ficant contingency factor because of the risk of losing cases.
For example, a civil rights attorney may agree with a client upon 
a fee of $75.00 per hour. But the client actually may be billed 
at $20-$40 per hour, or not billed at all, because the client, 
who is most likely at the GS-7 to GS-11 level, will not be able 
to pay any more. Alternatively, a private civil rights practitioner 
may obtain support, in the form of costs and a nominal fee, from 
a civil rights organization. If the case is won, the attorney 
expects to obtain the balance from a court reward. If the case 
is lost, the attorney will never be paid fully. This fact affects 
the hourly rate sought in cases that are won. Moreover, there is 
usually a two to three-year (or longer) period from initially

3



undertaking the matter to final award of fees. Inflation, loss 
of interest, costs of borrowing must be part of the calculation.

Second, the typical small practitioner operates on low 
overhead. And, lacking long-term clients and retainers, such 
an attorney must operate at a high level of efficiency. For the 
fee to be dependent on overhead, therefore, would penalize economy 
and efficiency. Conversely, if the panel decision were to be the 
law, practitioners would be encouraged to increase overhead and 
to spend more time on cases than they warrant.

Third, the concept of "reasonable" profit in the case of 
a small civil-rights practitioner is inappropriate. There are no 
commercial clients whose fee payments may be compared. On the 
other hand,toalarge firm fees obtained in occasional civil rights 
cases are such a small portion of total income that they will not 
appreciably affect partners' shares or associates' salaries. But 
if an experienced single practitioner grosses $50,000/year based 
on an hourly rate of from $60-$75 per hour, and has expenses of 
$20,000, the net will be $30,000. That amount is that person's 
income —  significantly less than that of an associate with com­
parable experience in a large firm. Whether a "profit margin" 
of 60% ($30,000 net from $50,000 gross) is "reasonable" is, there­
fore, not a meaningful question in such circumstances. Should 
the courts decide that such an attorney should be content with 
$20,000 a year, or less, and discourage lawyers from engaging 
in civil rights practice? What factors is a court to weigh when 
it takes upon itself the task of deciding the appropriate income 
level of an attorney who has dedicated his or her career to socially 
valuable work? And should a court have that power at all?

4



The factors set out by the panel are no less inappropriate 
and unworkable when applied to an organization such as the Legal 
Defense Fund. Again, its overhead is significantly less than 
than of a large law firm. As a charitable organization, the Fund 
would be derelict in its duty to the public that supports it if 
contributions were used for opulent surroundings. For the same 
reason, staff salaries do not match those of large law firms. The 
Fund does not make a profit in any sense of the word, so that there 
is nothing that could be appropriately used for comparison purposes.

Thus, using the factors set out in the panel decision, the 
Legal Defense Fund and similar organizations could receive fees 
significantly below those which a large firm would. The attorneys 
employed by such organizations, however, are expert and experienced 
in Title VII, civil rights law, and federal court litigation.

In sum, the formula devised by the panel would have a 
harmful impact on the portion of the bar with the greatest expertise 
in civil rights litigation —  civil rights organizations and the 
civil rights bar that consists primarily of solo or small-firm 
practitioners. The result would be to penalize and discourage 
attorneys from pursuing a career in civil rights work, thereby under­
mining the purpose of counsel fees legislated. For these reasons, 
we urge that the Court should return to the Johnson-Evans approach 
discussed below, viz, determine an hourly rate based on prevailing 
rates in the community related to experience, expertise, and work 
done in comparable types of litigation. Thus, fee awards would be 
based on the appropriate considerations of quality and value of 
work done and not on irrelevant factor of the type of practice 
—  large-firm, small-firm, or single-practitioner —  the attorney

5



happens to be engaged in

THE PANEL DECISION CONFLICTS WITH THE DECISION IN EVANS 
V. SHERATON PARK HOTEL AND DECISIONS OF THE SUPREME 

_______________COURT AND OTHER CIRCUITS________________

II.

Amicus respectfully submits that the panel opinion erroneously 
burdens private enforcement of Title VII. The holding that "the 
considerations enumerated by this court in Evans v. Sheraton Park 
Hotel for the determination of attorneys' fees in an action against 
a private party are applicable generally to Title VII cases against 
a federal agency, but that special caution must be shown by the trial 
court in scrutinizing the claims of attorneys for fees against a 
federal agency in such litigation" (emphasis added), slip opinion, 
p. 12, in fact, results in an unprecedented rule which, contrary 
to the panel's disavowal, "overburden[s plaintiffs and] the trial 
court with the task of compiling and processing massive amounts of 
billing data [and] set[s] a standard of proof in reporting charges 
that is so high as to discourage attorneys from pursuing litigation 
in the public interest," slip opinion, p. 20. More fundamentally 
the purpose of an award to compensate plaintiffs as the prevailing 
party for litigation expenses is completely frustrated by a rule 
that makes the amount of an award turn not on the quantity and 
quality of the legal representation, but on whether the defendant 
is a federal agency.

First, the lesser right to recover attorney's fees as part
of the costs in federal employee Title VII cases violates express

2/statutory language that private Title VII standards govern and

2/ 42 U.S.C. §2000e-16 (d).

- 6 -



that "the United States shall be liable for costs the same as a
3/

private person" (emphasis added). This Court and the Supreme
Court have rejected claims by the government that federal employees
have lesser rights than private company and state or local govem-4/
ment employees under Title VII on a wide range of issues, and

5/
the rule for counsel fees should be no.different. Last term a 
unanimous Supreme Court, in Christiansburg Garment Co. v. EEOC.
434 U.S. 412 (1978), rejected just an effort to have a different 
fees standard for government and private parties, in the context 
of fees against a Title VII plaintiff party, for the very reason 
asserted by the panel, i ,e., "the Government's greater ability 
to pay adverse fee awards compared to a private litigant." After 
discussing "equitable considerations on both sides of this question, 
the Court ruled that:

3/ 42 U.S.C. §2000e-5(k).
4/ See, e .g.. Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) (re­
mand for administrative proceedings); Hackley v. Roudebush, 520 
F.2d 108(1975)(trial de novo); Day v. Matthews. 530 F.2d 1083 (D.C. 
Cir. 1976)(burden of proof standards); Bell v. Brown. 557 F.2d 849 
(D.C. Cir. 1977)(timely filing of civil action); Foster v. Boorstin, 
561 F .2d 340 (D.C. Cir. 1977)(prevailing party for award of attor­
ney's fees). Chandler v. Roudebush, 425 U.S. 840 (1977).
5/ The Supreme Court has ruled that " [s]ections 706 (f) through 
(k), 42 U.S.C. §2000e-5(f) through 2000e-5(k), which are incor­
porated 'as applicable' by §717(d), govern such issues as . . . 
attorneys' fees," Brown v. General Services Administration, 425 
U.S. 820, 832 (1977); See also, Foster v. Boorstin. supra, 561 F.2d 
at 340, n. 1.

7



Yet §706 (k) explicitly provides that "the 
Commission and the United States shall be liable 
for costs the same as a private person." Hence, 
although a district court may consider distinc­
tions between the Commission and private plaintiffs 
in determining the reasonableness of the Commission's 
litigation efforts, we find no grounds for applying 
a different general standard whenever the Commission 
is the losing plaintiff."

434 U.S. at 423, n. 20 (emphasis added). This Court has also 
noted that the application of a lesser standard in counsel fee 
cases where a federal agency is the defendant is particularly 
inappropriate since private litigation is the only means of en­
forcing Title VII against the government. Parker v. Califano,
561 F.2d 320, 321 (D.C. Cir. 1977). Finally, the Attorney general
himself has disclaimed any argument that different standards should

' 6/
be applied to it in deciding an amount of attorney's fees*

6/ See, Memorandum For United States Attorneys and Agency General 
Counsels, Re: Title VI Litigation. Aug. 31, 1977, p. 2;

In a similar vein, the Department will not urge 
arguments that rely upon the unique role of the 
Federal Government. For example, the Department 
recognizes that the same kinds of relief should 
be available against the Federal Government as 
courts have found appropriate in private sector 
cases, including imposition of affirmative action 
plans, back pay and attorney's fees. See Copeland 
v. Userv. 13 EPD 511,434 (D.D.C. 1976); Day v.
Mathews, 530 F.2d 1083 (D.C. Cir. 1976); Sperling 
v. United States, 515 F.2d 465 (3d Cir. 1975). Thus, 
while the Department might oppose particular remedies 
in a given case, it will not urge that different 
standards be applied in cases against the Federal 
Government than are applied in other cases.

8



Second, the restrictive standards are specifically 
contrary to the standards developed by this Court in Evans v. 
Sheraton Park Hotel, supra, and by other courts in order to------------------- 7/
promote private enforcement of Title VII in a line of cases 
which Congress subsequently embraced in the Civil Rights 
Attorney's Fees Awards Act of 1976, 42 U.SC,§1988, see, Parker 
v. Califano, 561 F.2d at 338. Thus, the Senate Report states 
that:

It is intended that the amount of fees 
awarded under [the Act] be governed by the 
same standards which prevail in other types 
of equally complex Federal litigation, such 
as antitrust cases and not be reduced 
because the rights involved may be nonpe- 
cuniary in nature. The appropriate standards, 
see Johnson v. Georgia Highway Express, 488 

• f .2d 714 (5th Cir. 1974), are correctly 
applied in such cases as Stanford Daily v. 
Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis 
y. County of Los Angeles, 8 E.P.D. 1[ 9444 
(C.D. Cal. 1974); and Swann v. Charlotte- 
Mecklenburg Board of Education, 66 F.R.D, 483 
(W.D.N.C. 1975)" These cases have resulted in 
fees which are adequate to attract competent 
counsel, but which do not produce windfalls to 
attorneys. In computing the fee, counsel for 
prevailing parties should be paid, as is tra­
ditional with attorneys compensated by a fee­
paying client, "for all time reasonably ex­
pended on a matter." Davis, supra; Stanford 
Daily, supra, at 684.

S. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 (1976), U.S. Code 
Cong. & Admin. News, 1976, Vol. 5, p. 5913.

7/ e .g., Johnson v. Georgia Highway Express, Inc., 488 F .2d
714 (5th Cir. 1974).

9



CONCLUSION

For the foregoing reasons, the panel decision should be 
vacated and the decision of the district court affirmed.

Respectfully submitted

VCK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 
ERIC SCHNAPPER 
Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for the NAACP LEGAL 
DEFENSE and EDUCATIONAL FUND, 
As Amicus Curiae INC .

10



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