Salone v USA Reply Brief for Plaintiff Appellant
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July 10, 1980

16 pages
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Brief Collection, LDF Court Filings. Salone v USA Reply Brief for Plaintiff Appellant, 1980. 5bd95a8c-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6aad6698-3803-4864-94af-413bd7b3712f/salone-v-usa-reply-brief-for-plaintiff-appellant. Accessed July 11, 2025.
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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