Salone v USA Reply Brief for Plaintiff Appellant

    TENTH CIRCUIT 

No. 79-1929

ANTHONY M, SALONE, JR.,
Plaintiff-Appellant, 

v,

UNITED STATES OF AMERICA, 
et al.,

Defendants-Appellees.

IN THE UNITED STATES COURT OF APPEALS FOR THE

On Appeal from The United States District Court 
for The Western District of Oklahoma

REPLY BRIEF FOR PLAINTIFF-APPELLANT

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

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

CLAUDE V. SUMNER
4444 South Douglas Boulevard 
Oklahoma City, Oklahoma 73150 
(405) 733-3851

Attorneys for Plaintiff-Appellant



Page
Berio v. EEOC, 19 F.E.P. Cases 168 (D.D.C, 1979) ............. 3
Brown v. Culpepper, 559 F.2a 274 (5th Cir. 1 9 7 7 )..........  6,12

561 F . 2d 1177 (5th Cir. 1 9 7 7 ) ........... 6,12
Causey v. Ford Motor Co., 516 F.2d 416 (5th Cir. 1975) . . . .  3

Davis v. County of Los Angeles, 8 E.P.D. 1(9444 (D.C. Cal,
1 9 7 4 ) ....................................................... ...

Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1 9 7 6 ) ...............2

Foster v. Simon, 19 F.E.P. Cases 1648 (W.D.N.C. 1979) . . . .  3

Guilday v. Dept, of Justice, 22 F.E.P. Cases 376 (D. Del.1980). 3

Harkless v. Sweeny Independent School District, 608 F.2d 594
(5th Cir. 1 9 7 9 ) ........................................  9,11,12

International Soc. for Krishna Consciousness, Inc. v,
Andersen, 569 F.2d 1027 (8th Cir. 1 9 7 8 ) ...................  11

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir. 1974)........................... .. 5,6,8,9

New York Gaslight Club, Inc. v. Carey, U.S. , 48 U.S.L,
W. 4645 (June 9, 1 9 8 0 ) .................................... 8

Northcross v. Board of Education of Memphis City Schools,
611 F . 2d 624 (6th Cir. 19 7 9 ).......................  6,7,10,12

Occidental Petroleum Corp. v. Walker, 289 F.2d 1 (10th
Cir. 19 6 1 )........ ................ /...................... 6

Palmer v. Rogers, 10 E.P.D. 1(10,499 (D.D.C. 1 9 7 5 ) ........  11,12
Perez v. University of Puerto Rico, 600 F,2d 1 (1st Cir.1979), 11
Prebble v. Brodrick, 535 F.2d 605 (10th Cir. 1 9 7 6 ).......... 6
Premier Corporation v. Serrano, 578 F.2d 566 (5th Cir, 1978) . 9

Rock v. Norfolk and Western Railway Company, 473 F,2d 1344
(4th Cir. 1 9 7 3 ) ............................................... 9

Smith v. Kleindeinst, 8 F.E.P. Cases 753 (D.D.C. 1974), aff'd
sub nom, Smith v. Levy, 527 F.2d 853 (D.C. Cir. 1975) . . .  12

Souza v. Southworth, 564 F.2d 609 (1st Cir. 1 9 7 7 ) ..........  9
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974) , , 8
Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D,

483 (W.D.N.C. 1975) ........................................  8

Walston v. School Board of The City of Suffolk, 566 F.2d 1201
(4th Cir. 1 9 7 7 ) ............................................... 9

Weeks v. Southern Bell Telephone and Telegraph Company, 467 F.2d
95 (5th Cir. 1 9 7 2 ) ........................................  9

Whiting v. Jackson State University, 616 F.2d 116 (5th Cir.
1 9 8 0 ) .............................   9

Other Authorities
S. Rep. No. y4-iuil (94th Cong.,2d Sess., § 1976)   8
122 Cong. Rec. S. 16658 (daily ed., Sept. 21, 1976) . , . , , 11

TABLE OF CASES



TENTH CIRCUIT 

No. 79-1929

ANTHONY M. SALONE, JR.,

Plaintiff-Appellant, 
v.

UNITED STATES OF AMERICA, 
et al.,

Defendants-Appellees,

IN THE UNITED STATES COURT OF APPEALS FOR THE

On Appeal from The United States District Court 
for The Western District of Oklahoma

REPLY BRIEF FOR PLAINTIFF-APPELLANT

Plaintiff-appellant wishes to reply briefly to some of 
the arguments of the defendants.

I.

Adequacy of Relief

With regard to the issue of the adequacy of the relief 
received, the Government primarily relies on the clearly erron­
eous standard to argue that the decision of the District Court 

should not be disturbed. Its argument is incorrect for a number 
of reasons.

First, even under the clearly erroneous standard, the 

decision must be reversed because the District Court's conclusions 
that plaintiff would not have been promoted after 1972 because he



was a troublemaker and because his work was unsatisfactory are 

totally unsupported by anything in the record. With regard to 

the troublemaker charge, the evidence is clear that plaintiff 

had the reputation of a troublemaker because of his filing 

discrimination complaints in the period prior to 1972. "There is 

no evidence, and the Government has pointed to none in its 

brief, that plaintiff was regarded as a troublemaker or inter­

fered with the performance of others' duties in the period from 

1972 to 1979.
With regard to his job performance, the district court's 

conclusion is contrary to the evidence. As we have noted in our 

opening brief, throughout the period of 1972 to 1979, plaintiff 

received high performance evaluations, usually 98 or 99 out of a 

possible score of 100. He was recommended for an outstanding 

performance award and was on a number of occasions found eligible 

for promotions, although he never received one. As we have 

pointed out, the Government's own proposed findings of fact 
stated that his performance on his job was satisfactory and, 

indeed, the district court so held in its original findings of 

fact.

Second, the Government's brief does not address itself 

to the issue of the proper legal standard by which the deter­

mination of appropriate relief was to be made. As we pointed out 
in our opening brief, once a finding of discrimination was made, 

the burden shifted to the Government to demonstrate by clear and 

convincing evidence that Mr. Salone would never have advanced 
beyond the GS-8 position in the seven years from 1972 to 1979 in 

the absence of discrimination. Day v. Mathews, 530 F,2d 1083 (D.C. 

Cir. 1975). As noted above, the evidence is clear and convincing
2



the other way. Thus, the issue before this Court is whether the 

district court was correct in its ultimate finding that the clear 

and convincing standard was met by the Government. This Court 

clearly can review that determination (see, Causey v. Ford Motor 

Co., 516 F.2d 416 (5th Cir. 1975)) and should, for the reasons 

stated in our main brief, reverse the district court and remand 

for a determination of the proper full relief.
Finally, in the following additional cases courts have 

ordered the type of full relief plaintiff-appellant seeks here. 

Berio v. EEOC, 19 F.E.P. Cases 168 (D.D.C. 1979); Foster v. Simon, 

19 F.E.P. Cases 1648 (W.D.N.C. 1979); Guilday v. Dept, of Justice, 

22 F.E.P. Cases 376 (D. Del. 1980).

II.
Attorneys' Fees

With regard to the attorneys' fee issue, the Government 

makes a variety of arguments which we will deal with at length. 

Initially, we wish to comment on some of the factual assertions 

made by the Government in connection with this question.

First, it is simply not accurate to state that plaintiff 

sought more backpay in order to increase the counsel fee award.

Our position has always been that the counsel fee award calcu­

lation should be totally independent of the amount of backpay. The 

two issues are separate, and an increase in backpay was sought 

because plaintiff is entitled to it and for no other reason.

Second, the Government makes the assertion that it is 

common practice for cases to be taken on a contingent basis. This

3



is simply not accurate in the civil rights area, whatever may

be the practice in personal injury litigation. The undersigned

counsel for plaintiff has almost 16 years of experience in civil

rights litigation. In the course of that experience he has had

dealings with a large proportion of the attorneys throughout the

United States who are involved in civil rights cases. To his

knowledge, individual Title VII cases are not taken on the basis
of receiving a percentage of the backpay award as counsel fee.

The only contingency is that if the plaintiff prevails, the attor

ney will seek a full fee award based on prevailing billing rates
1/

under the provisions of the Act.
The reasons why attorneys do not enter into contingent 

fee agreements based on percentages of the award in these cases 

are many. If the case is successful the fees are obtained from 

the defendants; thus, there is no need to obtain it from the 

client, which is the basis for a percentage recovery from the 

client's recovery in a personal injury case. Next, it would be 

extremely rare, as this case vividly illustrates, that a backpay 

award would, in an individual case, be sufficiently large that a

1/In a limited number of class action Title VII cases, some attor­
neys have supplemented such provisions with an agreement with their 
clients that if there was a substantial backpay award and if the 
counsel fee awarded by the court was not adequate, then a percentage 
of the class backpay award may be used to compensate the attorneys. 
These instances are rare, however, and are not the general practice 
in civil rights cases.

4



percentage of it would adequately reimburse an attorney* Further, 

basing an award on a percentage of the backpay relief is inappro­

priate because it fails to take into account the future benefits 

that the client will receive. In a personal injury case, the damage 

award is the only relief obtained by the client. In a Title VII 

case, in contrast, the client not only receives an immediate 

monetary award in the form of backpay, but, because of the pro­

motion obtained, receives significantly more income over his or her 

employment career. For example, if Mr. Salone were to work for 

another ten years just at the GS-8, Step 6 level, he would receive
$33,750 more than if he had not won his case and had stayed a GS-5,

2/
Step 10.

Turning to the legal contentions of the Government, we 
first wish to reiterate our position, i .e . , the judgment of the 

District Court ordering defendant to pay attorneys' fees in the 

amount of one-third of the backpay award was unreasonable and an 

abuse of discretion. Thus, plaintiff urges that this Court award 

fees in light of the affidavits submitted by plaintiff's counsel 

and the factors listed in Johnson v. Georgia Highway Express, Inc.,

2/ According to the current salary schedules, a GS-8, Step 6 
earns $17,993 per year, while a GS-5, Step 10 earns $14,618. 
Executive Order 12200, March 12, 1980.

5



488 F .2d 714 (5th Cir. 1974). See, Brown v. Culpepper, 559 F.

2d 274 (5th Cir. 1977); Brown v. Culpepper, 561 F.2d 1177 (5th 

Cir. 1977); Northcross v. Board of Education of Memphis City 

Schools, 611 F .2d 624, 632 (6th Cir. 1979).
1. Defendants incorrectly cite Prebble v. Brodrick,

535 F .2d 605 (10th Cir. 1976) and Occidental Petroleum Corp. v. 

Walker, 289 F.2d 1 (10th Cir. 1961) to suggest that plaintiff 

has waived his right to appeal the award of attorneys' fees. 

Neither case controls here. In Prebble the objection plain­

tiff failed to raise involved a jury instruction. In that 

context, the court said, ". . . a  party may not assign an . . ,

error unless he objects thereto before the jury retires, stating 
distinctly the matter to which he objects . . . "  535 F.2d at 612. 

In Occidental Petroleum Corp. a waiver argument was rejected, 

although the Court did state the general rule that a party should 

object to a trial court's ruling in order to preserve an issue on 

appeal. In the present case there clearly was no acquiescence 

in the court's ruling.
Here, in essence, the district judge announced that the 

ruling would be based on a percentage of the plaintiff's backpay 

recovery (Tr. at 790), without explaining why he was chosing the 

percentage method over an hourly rate basis, as defendants' coun­

sel had mentioned. (Tr. at 788) Plaintiff's counsel never 

agreed to such an award. In fact, the record reveals that the 

court specifically asked defendants' counsel whether the one-third 

amount would be agreeable, but did not solicit the opinion of

6



plaintiff's counsel.

Indeed, the record further indicates that plaintiff's 

counsel told the court what the status of attorneys' fees was 

at the time of trial. Thus, he informed the court that the 
plaintiff had paid $4,000 of his own funds to his earlier lawyers, 

Mr. Floyd and Mr. Mikovsky for work done in 1973-75 (Tr. at 790) 

and that the NAACP Legal Defense Fund attorneys as well as him­

self still needed to be recompensed. Therefore, it was clear 

that a $5,000 attorneys' fee award could not possibly both reim­

burse plaintiff for his out-of-pocket expenses and compensate the 

attorneys involved in the case after 1975.
Of utmost significance for the waiver question defen­

dants raise is the fact that the district court's denial of the 

plaintiff's motion to alter or amend the judgment was based on 

the merits rather than on procedural grounds. Thus, the district 

court did not regard plaintiff as having waived his right to 

object to the amount of the award.

2. The focus of this appeal is on the failure of the 

district court to explain its reasoning and demonstrate the cal­

culations used to arrive at the fee. Such an omission constitutes 

a misuse of the discretion afforded the court by the Civil Rights 
Act. See, Northcross v. Board of Education of Memphis City 

Schools, 611 F .2d 624, 636 (6th Cir. 1979). A close reading of 

the trial transcript reveals that defendant's counsel incorrectly 

informed the district court that there were no guidelines to be

7



In responsefollowed in awarding reasonable attorneys' fees, 

to this, the court announced that the attorneys' fee award would 

be based on one-third of the backpay awarded to plaintiff. "That 

which is arbitrary or conclusory is not reasonable, and is not 

fair to either of the parties involved." Id.

3/

3/ As the Supreme Court has recently held, the extensive 
legislative history of the Civil Rights Attorneys' Fees Awards Act 
of 1976 should be looked to in interpreting the paralell pro­
visions of Title VII. New York Gaslight Club, Inc, v. Carey, ____
U.S. ____, 48 U.S.L.W. 4645, 4649 n. 9 (June 9, 1980). In the Fee
Act of 1976, just as in Title VII, statutory language refers only 
to "reasonable" fees. The legislative history in both the Senate 
and the House of Representatives, however, includes discussions of 
what the term "reasonable fee" means. Thus, a district court's 
award cannot be totally discretionary or free from any recognized 
standard. The Senate Report states:

"It is intended that the amount of fees 
awarded under S. 2278 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 nonpecuniary 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 v.
County of Los Angeles, 8 E.P.D. II 9444 (C.D. Cal.
1974); and Swann v. Charlotte-Mecklenburg Board 
of Education, 66 F.R.D. 483 (V7.D.N.C. 1975).
These cases have resulted in fees which are 
adequate to attack competent counsel, but which 
do not produce windfalls to attorneys. In com­
puting the fee, counsel for prevailing parties 
should be paid, as is traditional with attor­
neys compensated by a fee-paying client, 'for 
all time reasonably expended on a matter.* Davis, 
supra; Stanford Daily, supra, at 684."

S. Rep. No. 94-1011 (94th Cong., 2d Sess., § 1976), p. 6 (emphasis 
added).

8



Similarly, the Fifth Circuit recently

held that it was unable to review an award because it was

"unaccompanied by some indication that the trial court [had]

given due consideration to the twelve Johnson factors." Whiting

v. Jackson State University, 616 F.2d 116, 126 (5th Cir. 1980).

Similarly, the court in Souza v. Southworth, 564 F.2d 609 (1st

Cir. 1977) said at page 612:
. . . the assessment of a reasonable
fee in a particular case rests within 
the sound discretion of the district 
court . . . .  This means that we will 
look for a reasoned discussion of those 
factors [listed in Johnson v. Georgia 
Highway Express] that the court finds 
relevant.

Also see, e.g. Premier Corporation v. Serrano, 578 F.2d 566 (5th 

Cir. 1978); Rock v. Norfolk and Western Railway Company, 473 F.2d 

1344 (4th Cir. 1973); Weeks v. Southern Bell Telephone and Tele­
graph Company, 467 F.2d 95 (5th Cir. 1972). The present case is 

on point with Walston v. School Board of The City of Suffolk, 566 

F .2d 1201, 1204 (4th Cir. 1977), where the court of appeals over­

turned an attorneys' fee award which was based on a percentage of 

the plaintiff's recovery.
We think that the district court's 
award of counsel fees was inade­
quate. The inadequacy stems from 
the sole reliance on the amount of 
monetary recovery. Other factors 
should have been considered and 
given weight.

3. The various civil rights acts provide that a pre­

vailing party should receive attorney's fees, but clearly do not 

limit those fees to the amount recovered by the plaintiff. Harkless 
v. Sweeny Independent School District, 608 F .2d 594, 598 (5th Cir.

9



1979). By pegging the attorneys' fee to the monetary amount 

recovered by the plaintiff the percentage fee formula effects 

such a limitation and thereby frustrates the purpose of the 

fee provision, which is to provide adequate compensation to 

attract qualified and competent counsel in civil rights cases. 

This goal can only be achieved by focusing on the fair market 

value of the attorney's services. Northcross v. Board of 

Education, supra, at 638 . Thus, there can be no justification 
for the loss (to attorneys) based solely on the court's selec­

tion of a convenient percentage. See, Berger, Court Awarded 

Fees: What is Reasonable? 126 U. Pa. L .Rev. 281, 317 (1977).
This very consideration was noted during the Senate debates 

prior to passage of the 1976 Fees Award Act. Read into the 
record was a law review article that discussed, inter alia, the 

use of a percentage theory in antitrust suits:

The rigid requirements of the "fixed" per­
centage theory, with its insensitivity to 
individual differences in antitrust suits, make 
it inappropriate in the great majority of cases.
This was recognized in the famous case of Trans 
World Airlines, Inc, v. Hughes, where the court 
totally ignored the percentage theory. The 
court reasoned that the theory gives undue 
emphasis to the size of the recovery. Where 
there are small recoveries, the percentage 
theory "completely ignores professional skill 
and the complexity of the work involved." Con­
versely, where the recovery is very high, the 
theory can result in an excessive award. The 
weakness of the percentage theory can be 
illustrated in other situations: where plain­
tiffs in order to expedite the trial, stipulate 
that they will not claim certain damages to which 
they might otherwise be entitled, or where the

10



court acknowledges that actual damages suffered 
as a direct result of the antitrust violation 
would have been found to be far greater except 
for the difficulty of proof, the fixed 4/
percentage approach would be clearly unfair.

See also, Palmer v. Rogers, 10 E.P.D. 1110,499 (D.D.C. 1975).

In light of the above, the fact that the attorneys'

fees award may exceed plaintiff's backpay award is not relevant.

As the court in Harkless v. Sweeny Independent School System, supra

at 598 stated:
We note initially that the plaintiffs 

not only recovered back pay, which was 
minimal since most were able to quickly 
secure new employment, but also had the 
satisfaction of vindicating their pro­
fessional status, which defendants, to put 
it mildly, had impugned, 466 F. Supp. 473, 
see 544 F.2d 1353, 1355. In any case, the 
statute provides that a "prevailing party" 
should receive attorney's fees when the 
trial court deems it appropriate, and does not 
limit those fees to the amount recovered by 
the plaintiff. The purpose of the Attorney's 
Fees Award Act— to encourage private enforce­
ment of the civil rights laws— would be 
thwarted by a limitation such as that proposed 
by the appellants, and no such restriction is 
suggested by the legislative history of the Act.

*  *  *

In other circuits recovery of attorney's 
fees under the Act has been approved even 
though damages were only nominal,see, e. g.,
Perez v. University of Puerto Rico, 600 F.2d 1 
(1st Cir. 1979), as well as in cases where the 
challenged practices were discontinued before 
the case reached trial, International Soc. for 
Krishna Consciousness, Inc. v. Andersen, 569 
F .2d 1027 (8th Cir. 1978) . . . .
4. Finally, defendant's suggestion that $20 per hour 

is a reasonable rate cannot pass muster. Because of the rate of 
inflation and increases in the cost of living, the support de-

4/ 122 Cong. Rec. S. 16658 (daily ed., Sept. 21, 1976), quoting
from 60 Cal. L. Rev. 1656.

11



fendant cites from 1972 and 1973 cases are not applicable in 

1980. Courts in recent years have awarded much higher amounts 

to attorneys (see cases cited at p. 20 of Brief for Plaintiff- 

Appellant; Northcross v. Bd. of Ed., supra (rates from $44 to 

$137.50)). The argument that fees should reflect the standards 

of the Criminal Justice Act has been repeatedly rejected. Palmer 

v. Rogers, 10 E.P.D. 11 10,499, p. 6131 (D.D.C. 1975); Smith v. 

Kleindeinst, 8 F.E.P. Cases 753 (D.D.C. 1974), aff'd sub nom,

Smith v. Levy, 527 F .2d 853 (D.C. Cir. 1975). Indeed, following 

the Court of Appeals' summary rejection of the argument in Smith, 

the Department of Justice abandoned the argument. Its present 

policy in settling counsel fees claims is to agree to amounts up 
to $60 per hour, depending on the experience of counsel. Simi­

larly, the argument that a counsel fee award of $20,000 would be 

more than the federal treasury could bear must be rejected in 

light of recent decisions awarding fees at rates of $75 per hour 

and up against a variety of local government agencies. See, Brown 

v. Culpepper, supra; Northcross v. Bd. of Ed., supra; Harkless v. 

Sweeny Independent School District, supra.

In sum, we urge that this Court award a reasonable fee 
based on the approach of the Sixth Circuit in Northcross. As that 
Court held:

We conclude that an analytical 
approach, grounded in the number of 
hours expended on the case, will take 
into account all the relevant factors, 
and will lead to a reasonable result.
The number of hours of work will auto­
matically reflect the "time and labor

12



involved,""the novelty and difficulty of 
the question," and "preclusion of other 
employment." The attorney's normal 
hourly billing rate will reflect "the skill 
requisite to perform the legal service prop­
erly, ""the customary fee," and the "ex­
perience, reputation and ability of the 
attorney." . . . Thus, applying the 
approach used in this decision will result 
in an award reflecting those considerations 
traditionally looked to in making fee awards, 
but will also provide a logical,analytical 
framework which should largely eliminate 
arbitrary awards based solely on a judge's 
predisposition or instincts.

For the foregoing reasons, the decision of the court

611 F .2d at 642-643.

CONCLUSION

below should be reversed.

Respectfully submitted

JACK GREENBERG
CHARLES STEPHEN RALSTON

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

CLAUDE V. SUMNER
4444 South Douglas Boulevard 
Oklahoma City, Oklahoma 73150 
(405) 733-3851

Attorneys for Plaintiff-Appellant



CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the 

attached Reply Brief of Plaintiff-appellant by mailing the 

same to Larry D. Patton, Esq., United States Attorney and John 

E. Green, Esq., First Assistant United States Attorney, 4434 
United States Courthouse, Oklahoma City, Oklahoma 73102.

.A  “S
Dated: July 10, 1980. CHARLES STEPHEN RALSTON

Counsel for Plaintiff- 
appellant