Correspondence from Menefee to Chasez (Magistrate); York v. Alabama State Board of Education Memorandum Opinion

    » ® J 
BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

“2 
NF 

Ce 
on 

Tc, 

3 
405 VAN ANTWERP BUILDING 

P. O BOX 1051 
- 

MOBILE, ALABAMA 36633-1051 

JAMES U. BLACKSHER : TELEPHONE 
LARRY T. MENEFEE April 18, 1986 (205) 433-2000 
GREGORY B. STEIN 

WANDA J. COCHRAN 

Hon. Alma Chasez 
United States Magistrate 
United States Courthouse 
for the Eastern District of Louisiana 
Chambers C-151 
500 Camp Street 
New Orleans, Louisiana 70130 

Re; Major v. Treem; C.A. No. 82-1192 Section C 
  

Dear Magistrate Chasez; 

I enclose a copy of a recent memorandum opinion entered by 
United States Judge Myron Thompson in the Middle District of 
Alabama. I believe that it is instructive on several issues 
currently pending before Your Honor. This was a Title VII 
case which was settled before trial. 

On pages 9 and 10 the court addresses the reasonableness of the 
hours claimed in light of (1) the accuracy of time records, 
(2) handling "unsuccessful" issues within the litigation, and 
(3) duplication and multi ple staffing. The court gave an exten- 
sive discussion of "an adjustment' for the contingent nature of 
the litigation beginning at p. 15 and allowed a 50% enhancement 
in this settled litigation. 

Very respectfully 

BLACKSHER, MENEFEE & STEIN, P.A. 

dy Corn” 
\ of 

Larry i Menefe 
Encl. 
LTM:pfm 

¢c: ‘Patricia N. Bowers, Esq. 
William P. Quigley, Esq. 
Steven Scheckman, Esq. 
R. James Kellogg, Esq. 
Stanley Halpin, Esq. 
Lani Guinier, Esq. 

Armand Devinet Esq.  



IN THE DISTRICT COURT OF THE UNITED STATES FOR THE 

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 

- 

ARNETTA YORK, et al., 

Plaintiffs, 

CIVIL ACTION NO. 83-T-421-N V. 

ALABAMA STATE BOARD OF 

EDUCATION, et al., 

M
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No
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Defendants. 

MEMORANDUM OPINION   

hallenged the adoption and use of the National 

in the Mobile County School System. It is now 

' September 9, 1985, motion for attorney court on the plaintiffs 

nd expenses. Based on the evidence and briefs submitted by the 

the court concludes that the plaintiffs are entitled to attorney 

and expenses in the amount of 

BACKGROUND 

In May 1983, several teachers brought this lawsuit under the l4th 

amendment to tiie U. S. Constitution and several federal statutes, including 

42 U.S.C.A. §§ 20004, 2000e through 2000e-17 (otherwise known as Title VI 

and Title VIY of the Civil Rights Act of 1964), and 42 B.S.C.A, §§ 1981, 

1983, 1988. They sued the Alabama State Board of Education and its members 

1 3 and superintendent (the "state defendants') and the a of School 

County, Alabama and its members {the "Mobile 

and use of  



the NTE to deny employment to prospective and already employed teachers in 

the Mobile County School System discriminated against black persons. 

On August 10, 1983, the court certified a plaintiff class 

consisting of all "applicants for teaching positions and nontenured teachers 

who have been in the past, or may be in the future, denied employment or 

reemployment in the Mobile County School System because of the school 

system's NTE test requirement.'" York v. Alabama State Board of Education, 
  

581.F. Supp. 779, 780 n. 2 (M.D. Ala. 1983), On that date, the court also 

preliminarily found that the test requirement had an impermissible adverse 

racial impact against black teachers in violation of Title VII, and the 

court granted "preliminary injunctive relief (1) prohibiting the Mobile 

County defendants from using the test requirement and (2) requiring that 

said defendants reemploy nontenured teachers ... who but for their failure 

to meet the test requirement would have been reemployed." Id. at 781. 

The Mobile defendants appealed and sought an immediate stay of 

this court's preliminary injunction. This court and the Eleventh Circuit 

Court of Appeals denied the stay requests, and the Mobile defendants 

dismissed 

The Mobile defendants then proceeded to ignore the court's 

preliminary injunction. 'On September 9, 1983, the plaintiffs filed a motion 

for civil contempt, and shortly thereafter the court entered an order 

allowing the Mobile defendants until September 14 to comply with the court's 

injunction. The Mobile County School Board then sought to evade the court's 

order by rehiring class member teachers as "floating" teachers only and by 

refusing to reassign them to their normal classes. On September 14, the 

plaintiffs filed a second motion for civil contempt, and the court ordered 

i  



the members of the school board to appear personally before the court on 
- 

September 20 to show use why they should not be held in contempt of -court. 

On September 19, the school board substantially complied with the injunction 

and the court denied the civil contempt motions without prejudice. Further 

proceedings were then required to determine whether certain teachers fell 

within the scope of the preliminary injunction and to resolve disputes about 

the appropriate pay rates for those reemployed and the dates from which they 

were to be paid. 

The plaintiffs proceeded with discovery and trial preparation, 

focusing their efforts on three principal areas. Fi ET counsel 

sought to establish that the Mobile defendants' use of the NTE requirement 

adversely affected black teachers. They propounded interrogatories designed 

to solicit the numbers and percentages of black and white teachers who were 

terminated or not hired because of their NTE scores. The Mobile defendants 

responded by making a tender of documents pursuant to Fed. R. Civ. P. 33{c). 

This response required that plaintiffs’ counsel hire paralegals who spent 

months at the Mobile defendants' offices extracting data from employment 

records. This raw data was entered into a computer and analyzed by an 

expert. Second, plaintiffs' counsel sought to establish that the Mobile 

defendants had not properly 'validated" the NTE for use in their school 

system. They retained and prepared two expert witnesses who analyzed the 

teacher examinations and scrutinized the Mobile defendants’ recently 

completed validation study of their NTE requirement. Each of the 

plaintiffs’ experts was fully prepared for trial, and ome was deposed. 

Third and finally, plaintiffs' counsel sought to show that the Mobile 

-3-  



defendants' use of the tests.was irrational and arbitrary. They consulted 
- 

informally with NTE peTsonnsl to establish that the Mobile defendants had 

improperly utilized the tests. 

The plaintiffs and the Mobile defendants reached a settlement on 

May 3, 1985, six days before the trial date. At that time, plaintiffs’ 

trial preparation was substantially complete. The court later approved the 

settlement for the plaintiff class pursuant to Ped. R, Civ. P., 23(e). 

t is in the form of a consent decree and provides a 

wide range of relief to the plaintiff class. Most significently, the decree 

enjoins the Mobile defendants from ever again using the NTE in the hiring, 

reemployvment or promotion of teachers and from using any other written 

examination for those purposes if the exam has an adverse racial Impact and 

has not been properly validated. 

The decree also provides for immediate and particular relief to 

different categories of class members. First, the decree provides that 

class members reemploved under the preliminary injunction are to have their 

tenure rights and salaries adjusted as if they had been continuously 

employed by the Mobile County Schoecl System. Second, the decree provides 

that class members who declined employment under the preliminary Imjunction 

or who could not be located in time to take advantage of the injumction are 

to be offered reemployment once more, for the 1985-86 school year. These 

teachers are to be granted tenure and receive salaries on the basis of all 

their years with the Mobile County h stem, including the year or 

years they missed because of the NTE requirement. Third, the decree 

provides that class members who were reemployed under the preliminary 

i 3,  



injunction but whose employment was subsequently nonrenewed or terminated 
- 

are not guaranteed reemployment. However, their employment records are to 

be purged to remove any adverse materials and the Mobile defendants are 

required to give them a neutral recommendation for reemployment. 

Fourth, the decree requires that the Mobile defendants accord a 

"special application process" to class members who, during the relevant 

years, applied unsuccessfully for employment and did not present a 

sufficient NTE score and whose employment records did not reflect some 

other, definite reason for their failure to be employed. The decree 

requires that the county school board give notice to these class members 

inviting them to reapply; afford these candidates fair and equitable 

consideration; report to the court and to the plaintiffs' counsel the reason 

for not hiring any such person; and provide the court and the plaintiffs’ 

counsel with information sufficient to determine the hiring rates of these 

class members and the hiring rate generally. 

The decree also requires that the Mobile defendants pay the sum of 

$635,000 to be distributed as follows. Each of the named plaintiffs will 

receive a total of $1,000 for acting as class representatives and 

prosecuting the lawsuit as a class action. The remaining amount will be 

distributed on an equal basis to all teachers who meet the following 

conditions: (a) at the end of the 1979-80, 1980-81, and/or 1981-82 school 

year, they were recommended by their principals for contract remewal; (b) 

they had not at that time presented to the school board a score of 500 or 

greater on the commons portion of the NTE; and, (c) they were not reemployed 

the subsequent school year despite their principals' recommendations. 

= 5  



The Mobile defendants also agreed to pay the plaintiffs their 
- 

reasonable costs and attorney fees. 

After settling with the Mobile defendants, the plaintiffs 

negotiated and the court approved a settlement with the state defendants in 

the form of an offer and acceptance of judgment pursuant to Fed. R. 

68. This settlement provides credit toward state teaching certificates for 

class members who lacked necessary teaching experience for such certificates 

because they were denied employment or reemployment by Mobile defendants 

on the basis of the school system's NTE requirement. 

I1. ATTORNEY FEES AGAINST MOBILE DEFENDANTS 

The Civil Rights Attorney's Fees Awards Act, 42 U.8.C.A. § 1988, 

and the attorney fee provision of Title VII of the Civil Rights Act of 1964, 

42 U.S.C.A. § 2000e-5(k), authorize courts to award reasonable attorney fees 

to prevailing civil rights litigants, 

The plaintiffs are prevailing litigants against the Mobile 

defendants. It is well : "a party may be considered to be 'pre- 

vailing' if the litigation successfully terminates by a consent decree, an 

out of court settlement ... or other mooting of the case when the plaintiff 

has vindicated his right.” Marcin v. Heckler, 773 P.24.1145, 1149 (ilth 
  

{en bane), quoting Doe v, Bushee, 684 7,2¢ 1375,:1379 (lich Cir. 
  

Here, the plaintiffs have plainly vindicated their rights with the 

decree adopted by this court. 

Moreover, the consent decree itself expressly provides that the 

b=  



plaintiffs are to recover attorney fees from the Mobile defendants. 

- 

Therefore, given that the plaintiffs are entitled to attorney fees 

from the Mobile defendants, the only task for the court is to determine a 

reasonable award. In so doing, the court is guided by the following 12 

factors set out in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-719 
  

{5th Cir. 1974): (1) the time and labor required; (2) the novelty and 

difficulty of the questions; (3) the skill requisite to perform the legal 

services properly; (4) the preclusion of other employment by the attorney 

due to acceptance of the case; (5) the customary fee in the community; (6) 

whether the fee is fixed or contingent; (7) time limitations imposed by the 

client or circumstances; (8) the amount involved and the results obtained; 

(9) the experience, reputation, and the ability of the attorney; (10) the 

"undesirability" of the case; (11) the nature and length of the professional 

relationship with the clients; and (12) awards in similar cases. The court 

is also guided by the recent Supreme Court decisions of Blum v. Stenson, 465   

86, 104 S.Ct. 1341 (1984) and Hensley v. Eckerhart, 461 U.S. 424, 103   

§.Ct, 1933 (1833), 

The court begins with the Supreme Court's observation in Blum and 

Hensley that the number of hours reasonably expended to prosecute the 

lawsuit and the prevailing market rate provide an important starting point 

for any fee determination. Blum, 465 U.S. at & nn. 14, 104 S.Ct. at 1548 

LiU.S. =t y 103 8.Ct. at 1939, In making its fee 

award, the court will therefore start by determining: (a) the number of  



hours reasonably devoted to this litigation; and (b) the prevailing market 
yr 

rate for non-contingent work performed by similarly situated attorneys in 

similar cases in the community. The product of these two figures will 

provide the court with a "lodestar" figure. The court will then determine 

whether, based on additional factors, any portion of this lodestar fee 

should be adjusted upwards or downwards. Such an approach has been approved 

in Jones v, Central Soya Co,, Inc,, 743 F.2d 536, 589 & mn. 3 (31th Cir. 
  

1984). 

A. Reasonable Hours 

The time and labor required to prosecute 

"necessary ingredient" to 

court will therefore determine which hours were reasonably necessary in this 

' attorneys only for those hours. case and compensate plaintiff 

The plaintiffs were principally represented by Gregory Stein, 

James Blacksher, and Wanda Cochran of the law firm Blacksher, Menefee & 

Stein of Mobile, Alabama. Donald Watkins of the law firm Watkims, Carter & 

Knight of Montgomery, Alabama served as local counsel for the plaintiffs. 

Stein, who served as lead counsel, claims 946.35 hours; Blacksher claims 

235.5 hours; Cochran claims 56.2 hours; and Watkins claims 10 hours. These 

figures, some of which vary slightly from those originally claimed, reflect 

corrections for mathematical errors. 

The court has considered two Johnson factors-—the novelty and 

difficulty of the case and the amount involved and the result obtained--in 

-8—-  



3 1 
assessing the reasonableness of the hours claimed. This case was not 

-W 

novel. This case was, however, a difficult Title VII disparate impact case, 

requiring, as demonstrated below, a sophisticated understanding and presen- 

tation of complex principles of law and a substantial amount of evidence. 

In addition, plaintiffs' counsel obtained not only substantial benefits, 

both monetary and nonmonetary, for their clients, but also rendered a 

substantial and significant service to all the people of the Mobile area by 

securing the elimination from their midst of another apparent obstacle to 

the fair and nondiscriminatory consideration of persons for employment in 

the Mobile County School System. In general, the hours claimed reasonably 

reflect the difficulty of this case and the efforts and success of the 

plaintiffs' counsel. 

The Mobile defendants have, however, presented several challenges 

to the claimed hours, each of which, with two minor exceptions, lacks merit. 

First, they argue that the court should disallow all of Blacksher's hours 

because his time sheets are not supported by a sworn affidavit. The 

evidence establishes, however, that the claimed hours are an accurate 

transcription of Blacksher's contemporaneous entries. Moreover, his claimed 

time is supported by his deposition testimony taken under oath. 

Second, the Mobile defendants contend that the descriptions of how 

each attorney's time was spent are not specific enough for the court to 

  

1. The initial calculation of reasonable hours at the prevailing 

market rate will often subsume many of the other Johnson factors. Blum, 465 

0.8. at » 104 S.Ct. at 1548-49; Hensley, 461 U.8, at "=n, 8, 103 S.Ct. 
at 1940 n. 9. 

-9-  



assess whether the time spent was reasonable for the prosecution of this 

lawsuit. To the contrary, the time sheets are highly detailed and meet the 

required level of specificity. 

Third, the defendants argue that the court should disallow all 

time spent on the claims of class members who were ultimately found not to 

be entitled to relief under the consent decree. However, the work relating 

to those claims was so intertwined both factually and legally,with the 

successful claims that the challenged hours must be deemed compensable. 

Carmichel v. Birmingham Saw Works, 738 F.2d 1126, 1137 (1ith Cir. 1984) 
  

(court should not disallow hours that were related and necessary to the 

successful claims). 

Finally, the court would mention two additional factors 

contributing to its conclusion that the claimed hours are reasonable. 

Testimony regarding exercise of "billing judgment" indicates that counsel 

has not claimed all hours spent on this litigation, and that an effort was 

made to bill only reasonable hours. Nor has this court observed any 

unnecessary duplication of effort among the four attorneys representing the 

plaintiffs and plaintiff class in this litigation. It is customary for 

lawsuits such as this to involve multiple staffing, and each of the four 

attorneys made a distinct contribution. Jones v. Central Soya Co., Inc., 
  

748 F.2d at 594. 

While the court finds that the claimed hours are generally 

reasonable and compensable, it does agree with the Mobile defendants to the 

extent that Stein should not be permitted .2 hours he spent speaking with 

the author of a student law review note about teacher testing cases, and 

10  



Blacksher should not recover for 10.7 hours he spent exclusively in a 
- 

related state proceeding. Accordingly, the court will reduce Stein's 

claimed time from 946.35 to 946.15 hours and Blacksher's time from 235.5 to 

224.8 hours. Each of the other specific challenges to claimed hours raised 

by the defendants at the evidentiary hearing is rejected as meritless and 

not warranting discussion. 

The court therefore finds the following hours to be reasonable and 

compensable: 

846.15 hours 

224.8 hours 

B.. Prevailing Market Rate 
  

The court will next determine the prevailing market rate. In so 

doing, the court will consider the following Johnson factors: customary fee; 

skill required to perform the legal services properly; the experience, 

reputation and ability of the attorneys; time limitations; preclusion of 

other employment; undesirability of the case; nature and length of 

professional relationship with the clients; and awards in similar cases. 

Customary Fee. The plaintiffs contend that the customary fee for 

attorneys of similar experience in the community supports an hourly 

non-contingent fee of $120 for Stein, Blacksher, and Watkins, and an hourly 

fee of $75 for Cochran. The evidence of record indicates that in the  



Mobile-Montgomery area an attorney with approximately the same experience as 
- 

Stein, Blacksher, and Watkins charges a non-contingent fee ranging between 

$85 and $125 an hour and that an attorney with about the same experience as 

Cochran charges between $50 and $80 an hour. 

Skill Required to Perform the Legal Services Properly. The work 

product of plaintiffs' attorneys demonstrates a high degree of skill in 

complex civil rights litigation. 

Experience, Reputation, and Ability of the Attorneys. Blacksher 

has been practicing since 1971, Watkins since 1973, and Stein since 1975. 

Each enjoys a well-deserved reputation for civil rights advocacy of the 

highest order. Cochran, while in her first year of practice, has exhibited 

such a degree of skill and ability that her market rate should be set on the 

high end of the range mentioned for someone of her experience. 

Time Limitations. This factor requires 'some premium' where there 

1as been "[p]riority work that delays the lawyer's other legal work." 

Johnson, 488 F.2d at 718. "This factor is particularly important when new 

counsel is called in to prosecute the appeal or handle other matters at a 

late state in the proceedings Id. There is no evidence of such limitations 

here. 

Preclusion of Other Employment. This factor "involves the dual 

consideration of otherwise available business which is foreclosed because of 

conflicts of interest which occur from the representation, and the fact that 

once the employment is undertaken the attorney is not free to use the time 

spent on the client's behalf for other purposes." Johmson, 488 F.2d at 718. 

There is no significant evidence of such preclusion here. 

-12-  



  

Undesirability of the Case. In Foster v. Board of School 
ES ~~ 

Commissioners of Mobile County, Alabama, No. 80 460-H-S (S.D. Ala. Oct. 23, 
  

1985) (recommendation of magistrate adopted by court), United States 

Magistrate Patrick H. Sims recently remarked that representing civil rights 

plaintiffs remains very undesirable in Mobile, Alabama. He stated: 

It remains true in this District that repre- 

sentation of plaintiffs in a case of this 

nature is undesirable for several reasons. 

First, counsel who succeed frequently in cases 

of this type are identified as "civil rights 
lawyers." This identify can be beneficial in 
that it attracts other similar cleims. 

However, that identity also tends to be a 

stigma in terms of attracting other sophisti- 

cated federal practice. The evidence 

establishes that, while a lawyer who does 

antitrust plaintiff's work is readily hired to 
defend a securities case or defend a Title VII 

case, successful plaintiffs' civil rights 
lawyers are not hired for other types of 

sophisticated federal litigation. Second, and 

related to the first, representation of 

plaintiffs in cases such as this tends to be a 

"high profile" position with substantial press 
overage and public discussion. The evidence 

tablishes that most entities which hire 

awyers for sophisticated federal practice 

avoid all possibility of publicity. 

The evidence here fully supports these observations by Magistrate Sims. 

Indeed, the evidence here further reflects that this lawsuit and the 

plaintiffs' attorneys themselves were subjected to substantial, and often 

vitriolide, public criticism in the Mobile aves. 

Nature and Length of Relationship with Clients. The plaintiffs 

and many members of the plaintiff class belong to the Alabama Education 

Association, with whom Blacksher, Stein, and Watkins maintain a longstanding 

professional relationship.  



Awards in Similar Cases. The court has been informed that 

Blacksher recently received a market rate of $115 per hour and Stein a rate 
- 

of $95 per hour in a voting rights case. 

Based on these criteria, the court is of the opinion that the 

following hourly fees for plaintiffs’ counsel reasonably reflect the 

prevailing market rate for non-contingent work performed by similarly 

situated attorneys in similar civil rights cases: 

$ 95/hour 

115/hour 

75/hour 

105/hour 

In setting these hourly rates, the court has compensated for delay 

in payment by "apply[ing] to the award a figure which is recognized as 

representing the time value of money over the period of the litigation.” 

Gaines v. Bougherty County Board of Education, 775 F.2d 1565, 1572 n. 14 
  

(11th Cir... 1985) (per curiam), 

Lodestar Calculation 
  

The court will now calculate an unadjusted lodestar figure for 

each attorney consisting of the product of the attorneys’ compensable time 

and his or her prevailing market fee. 

ATTORNEY HOURS RATE _ TOTAL 

Stein 946,15 5 2 $89,884.25 

Blacksher . 80 25,852.00 

«20 5 4,215.00 

.00 1,050.00  



D. Adjustment 

Plaintiffs' attorneys seek a 100% upward adjustment of the 
-» 

lodestar figures. For the reasons stated below, the court is of the 

opinion that the contingencies present in this case warrant a smaller, 507% 

adjustment for hours claimed before settlement, and no upward adjustment for 

the remaining hours. 

Although the Supreme Court has deferred ruling on whether "the 

risk of not being a prevailing party ... and therefore not being entitled to 

attorney's fees from one's adversary, may ever justify an upward fee 

adjustment,” Blum 465 U.S. at _, 104 S.Ct, ‘at 1550 n. 17, "i]t is well 

established in [the Eleventh Circui ... that a contingency fee arrangement 

may justify an increase in an award of attorney's fees." Jones v. Central   

Sova Co., Inc., 748 F.2d az 591; see alse Elum, 465 U.S. af s 104 S.Ct,     

at 1550 (Brennan, J., concurring) ("Congress has clearly indicated that the 

risk of not prevailing ... 1s = proper basis on which a district court may 

justment to an otherwise compensatory fee'). The purpose 

of an upward adjustment based on contingency is to place civil rights 

attorneys in the same position as other attorneys who charge a higher rate 

when payment is contingent upon success. ''Lawyers who are to be compensated 

only in the event of victory expect and are entitled to be paid more when 

successful than those who are assured of compensation regardless of result." 

Jones v, Dizmond, 636 ¥.2d4 1364, 1382 (5th Cir. 1981) (en banc). This "risk   

premium’ is "intended to encourage competent counsel to take on possibly 

£ undesirable cases by providing for adequate compensation for their 

successful efforts." Jones v. Central Sova Co., Inc., 748 P,2d at 593. 
  

-15-  



  

Judge Vance summarized these policy considerations in Yates v. Mobile 
- 

Personnel Board, 719 F.2d 1530, 1534 (11th Cir. 1983): 
  

Vindication of the policy of the law depends 

to a significant degree on the willingness of 

highly skilled attorneys, such as those now 

before the court, to accept employment in 

discrimination cases on a wholly contingent 

basis. They will hardly be willing to do so 

if their potential compensation is limited to 

the hourly rate to which they would be 

entitled in noncontingent employment. Busy 

and successful attorneys simply could not 

afford to accept contingent employment if 

those were not the rules that were applied. 

The enforcement of our civil rights acts 

would then be entrusted largely to less capa- 

ble and less successful lawyers who lack 

sufficient employment. Such an arrangement 

would ill serve policies of enormous national 

importance. 

The Eleventh Circuit has, however, "specifically rejected the 

contention that there must be enhancement in every case in which a fee is 

contingent." Id. Nonetheless, the upward adjustment for contingency should 

be the norm rather than the exception. 'When the attorney fee is contingent 

upon success, the hourly rate should ordinarily be raised to compensate the 

attorney for the risk of nonrecovery.'" Carmichel, 738 F.2d at 1138. The 

court will now discuss those factors that should guide a court in deter- 

mining when and to what extent an upward adjustment is appropriate. 

For a case to be considered contingent, a plaintiff's counsel must 

have actually agreed not to hold his client accountable for his fees if he 

loses the case, Jones v. Central Soya Co., Inc,, 748 F.2d a The 
  

"practical risk" of nonrecovery from indigent clients is not enough. Id. 

Here the evidence establishes that an actual contingency agreement was 

216  



reached between the plaintiffs and their counsel. 
- 

The Mobile defendants argue that the fee arrangement was not truly 

contingent because the Alabama Education Association payed plaintiffs’ 

counsel's out-of-pocket expenses on the understanding that such funds would 

be reimbursed should the plaintiffs prevail. These advances totalled 

$52,247.01. . This contention 1s meritless, It 1s firmly established in this 

circuit that partial compensation by third parties does not compel denial of 

a contingency enhancement or reduction of an attorney fees award. See, 

e.g., Johnson v. University College of the University of Alabama in 
  

05, 1210 (11th Cir.), cert, denied, 464 U.S. 994, 1064 
  

S.Ct. 489 (1983). 

However, the court still cannot presume risk from the mere 

existence of a bona fide contingency agreement. The court must determine 

whether and to what extent the legal and factual difficulties of the 

! 

particular case before it warrant addition of a “risk premium! to the 

lodestar figure. See generally Wildman v, Lerner Stores Corp,., 771 F.2d 
  

605, 613 (1st Cir. 1985) (actual risks borne by attorneys should determine 

whether an upward adjustment is called for, not the mere fact that the case 

on 2 contingent basis), See also Blum, 465 U.5. at =, 104 S.Ct, 
  

at 1551 (Brennan, J., concurring) (Congress authorized district courts to 

award upward adjustments to compensate for the contingent mature of success, 

nonpayment in a particular case'}; A. Miller, 

Actions at 373-374 (Federal Judicial Center 1980) 
  

onsideration should be limited to the risks involved in each 

This rule furthers Congressional intent by ensuring that  



attorney fee awards, while attracting competent counsel, do not create huge 

- 

windfalls for civil rights attorneys. Duncan v. Polythress, 777 F.2d 1508, 
  

1513 nn, 15 & 16 (11th Cir. 1985), 

In determining whether the risk present in a particular case 

warrants an upward adjustment in the lodestar, the court must begin by 

ascertaining "the unlikelihood of success and the risk of nonpayment for 

counsel, 'viewed at the time of filing suit.'" Hall v. Borough of Rosell, 
  

747 F.2d 838, 843 (34 Cir. 19843, quoting.lindy Bros. Builders, Ime. v. 
  

American Radiator & Standard Sanitary Corp., 340 7.24 162, 117 (3d. Cir. 
  

1976). When, 'from the very outset, liability of the defendants was clear 

and the case involved no novel legal theory or difficult factual questions,” 

an upward adjustment for contingency may be denied. Hall, 747 F.2d at 843. 

When, however, the legal theories advanced are so novel and the factual 

hurdles presented so substantial that the prevailing party's risk of loss at 

the time suit was filed was quite high, an upward adjustment of 100%Z or more 

for contingency may be appropriate. Of course, when the novelty and 

difficulty of the case at the time it was filed falls somewhere between the 

two extremes outlined above, the court will consider the degree of risk and 

award an upward adjustment that reflects this risk. 

Here, the degree of risk at the time this lawsuit was filed fell 

between the two extremes outlined above. The case was neither fraught with 

risk nor a sure winner. Although the court concluded in its August 10, 

1983, memorandum opinion awarding preliminary injunctive relief that there 

was a substantial likelihood plaintiffs would prevail on their Title VII 

claim, York, 581 F. Supp. at 784-86, this likelihood of success was counter- 

wile  



balanced by significant contingencies. 

- 

The court described Title VII disparate impact law as follows 

its August 10, 1983, memorandum opinion: 

In a Title VII disparate impact case, such as 

the instant one, a plaintiff challenges 

“practices that are fair in form, but dis- 
criminatory in operation." Griggs v. Duke 
Power Co., 401 U, S, 424, 431, 91 §.Ct, 84%, 

B53, 28 L.E4.24 158 (1971). The plaintiff, 

therefore, need not prove intentional dis- 

crimination. International Brotherhood of 

Teamsters v, United States, 431 U.S. 32%, 335 

n.: 155 97 S.Ct, 1843, 18% n, 15,52 1..54.2d 

386 (1977), 

  

  

  

The proper allocation of burdens is well 

established. The plaintiff has the initial 

burden of establishing a prima facie case of 

racial discrimination, which he or she may 

do merely by showing that the facially neu- 

tral tests in question hav verse racial 

impact. Griggs, 401 U.S. at 232, 91 S.Ct. at 
854, Tests are considered as having an 

adverse racial impact if they 'select appli- 

cants for hire or promotion at a racial 

pattern significantly different from the pool 

of applicants," Albemarle Paper Co. v. Moody, 
422 B.S. 403, 4725, 95 S.Ct. 2362, 2375, 45 
L.Ed,2d 280 (1975) If the plaintiff 
si iahes a prima facie case, the burden 

then shifts to the defendant to show that the 

tests have '"a manifest relationship to the 
employment in question," Griggs, supra-—that 
is, have been validated. If the defendamt 

carries its burden, the plaintiff may newer- 

theless prevail if he or she can show "that 

other selection devices without a similarly 

  

  

  

2. The plaintiffs advanced several other theories or claims. 

court has, however, focused solely on the plaintiffs' Title VII claim 

because it is apparent that this claim was their strongest, least risky 

claim. 

-19~  



undesirable racial effect would also serve the 

employer's legitimate interest." Albemarle 
Paper Co., Supra. 
  

York, 581 F. Supp. at 784-85 (footnote omitted). 

The court based its preliminary injunction on the following 

information: partial data tending to demonstrate adverse impact against 

black teachers and job applicants in the Mobile County School System; 

testimony by Alabama's Assistant Superintendent of Education indicating that 

the NTE examinations are known to have an adverse impact against black 

teachers; decisions by other courts holding, in varying contexts, that the 

NTE tests adversely affect black teachers; policy statements by the authors 

of the NTE examinations discouraging use of arbitrary cutoff scores without 

prior investigation of the probable consequences; and the Mobile defendants’ 

failure to present any evidence of validation. 

While this evidence led the court to conclude that there was a 

substantial likelihood that the plaintiffs would establish a prima facie 

case and the defendants would be unable to rebut this case, several 

significant contingencies remained. It is well known that proof of adverse 

impact in testing cases involves many complex legal, scientific, psycho- 

logical, and factual questions. See generally B. Scllei & P, Grossman,   

Employment Discrimination Law at 80-161 (2d ed. 1983). For purposes of 
  

brevity, the court will focus only on the significant risks faced by the 

plaintiffs here. 

The plaintiffs' initial burden at trial would have been to 

demonstrate a statistically significant difference between the tests' impact 

on black and white teachers. Such a showing was subject to challenge on 

=20=  



several fronts. First, the defendants could have attacked the method of 
0 

comparison utilized in platneitts’ statistical study. The court would then 

have been required to determine whether pass rates, selection rates, or 

failure rates should have been the appropriate unit of analysis. A ruling 

adverse to the plaintiffs on this point alone could have destroyed the prima 

facie evidence and compelled judgment for the defendants. Second, the 

defendants could have attacked the reliability of plaintiffs' underlying 

data, asserting that the sample size was too small or that the data was 

incomplete or inaccurate. Again, an adverse determination on this point 

could have warranted judgment for the defendants. 

Even if the plaintiffs passed these initial hurdles, the 

defendants might have prevailed if they validated the tests by establishing 

1 1 
'a demonstrable relationship" between the tests and the job in question. 

Griggs v. Duke Power Co., 401 U.S. 424, 431 91 S.Ct. 849, 853 (1971). 
  

The record reflects that the Mobile defendants had completed a validation 

study to be used at trial. Furthermore, while a showing of test validity 

" "situationally specific," United States v. Georgia Power, 474 F.2d 
  

906, 932 (5th Cir. 1973), #t is neteworthy that one court hes found the NIE 

tests properly validated for use by a state to certify teachers and 

determine their pay. United States v. State of South Carolina, 445 F. Supp. 
  

1094, 1112 (D. 8.C. 1977), af£'d, 434 U.S. 1026, 98.8.Cr. 756 (1978), 

The contingencies detailed above warrant an upward adjustment in 

the lodestar. However, virtually all contingencies ceased on the day the 

parties settled this case. The settlement was clearly an excellent 

resolution of this lawsuit, and the parties should have been reasonably  



confident of approval by the court. No upward adjustment is warranted for 

time claimed after this date. Accordingly, the court will divide the 
- 

lodestar into non-contingent and contingent components, and award an upward 

adjustment only for the contingent portion. 

Using the date of settlement, May 23, 1985, as the first 

non-contingent date, the court finds that the non-contimgent portion of the 

lodestar for each attorney is as follows: 

ATTORNEY HOURS TOTAL 

Stein 112.50 $ 10,687.50 

Blacksher None 

Cochran 14 

Watkins 

As to the contingent portion of each attorney's lodestar, the 

court is of the opinion that an upward adjustment of 50% is warranted. The 

court bases this conclusion on the significant contingencies that existed 

from the time the lawsuit was filed, and on the convictiem that these 

contingencies, while significant, were not of such a magmitude that the 

claimed 100% multiplier would be appropriate. The contimgent portion of the 

lodestar for each attorney, then, is as follows: 

ATTORNEY HOURS ' SUB-TOTAL 507% ADJUSTMENT TOTAL 
    

Stein 833.65 8 $ 79,196.75 3 39,598.33 $112,795.13 

Blacksher 4.80 25,852.00 12,926.00 38,778.00 

Cochran «20 3,165.00 1.582.350 4,747.50 

Watkins .00 5 1,050.00 525.00 3,575.00  



Adding the non-contingent and contingent figures together, the 

- 

court awards the following fees to each attorney: 

ATTORNEY NON-CONTINGENT AWARD CONTINGENT AWARD TOTAL AWARD 
    

  

Stein $ 10,637.50 $ 118,795.13 $ 129,482.63 

Blacksher None 32,778.00 38,778.00 

Cochran 1,050.00 ; +30 59737 .:50 

Watkins None .00 1,575.00   

TOTAL $175,633.13 

EXPENSES AGAIN MOBILE DEFENDANTS 

{£fs’' counsel also petition this court for an award of 

expenses totalling $52,247.01. The Mobile defendants object on the grounds 

that the claimed expenses are unreasonable. In particular, they argue that 

substantial sums relating to time spent by experts and paralegals should be 

denied. The court concludes that these arguments are meritless. The 

experts' time was well within the bounds of reason, especially since expert 

testimony was critical to the questions of disparate impact, test design and 

validation. As to the argument about paralegals, there is ample evidence 

that the extent of paralegal hours was due, at least in part, to the Mobile 

defendants' Rule 33(c) tender of documents. In any event, use of paralegals 

substantially reduced the number of claimed attorney hours. Accordingly, 

the court concludes that the claimed expenses are reasonable and fully 

compensable. Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1190-1191 
  

{lich Cir. 1883).  



® * 

IV. ATTORNEY FEES AND EXPENSES AGAINST 

THE STATE DEFENDANTS 

The plaintiffs and the Mobile defendants contend that the state 

defendants should also be liable for the attorney fees and expenses in this 

litigation. The court disagrees. 

The law in this circuit is that liability for attorney fees and 

expenses should be allocated according to the degree of responsibility 

attributable to each defendant. Dean v. Gladney, 621 F.2d 1331, 1339-1340   

{5th Cir. 1980), cert. denied, 430°U.8, 983, 101 S.Ct, 13523 (1981). Here,   

it is undisputed that the Mobile defendants decided to use the NTE despite 

the state defendants' warnings to the contrary. The Mobile defendants were, 

therefore, the beginning and end of the apparent problem. The state 

defendants are not culpable. 

Admittedly, the plaintiffs obtained some relief from the state 

defendants. This relief was a settlement that provided for credit toward 

state teaching certificates for class members who lacked necessary teaching 

experience for such certificates because the Mobile defendants denied them 

employment and reemployment on the basis of the NTE requirement. The 

settlement with the state defendants was but necessary additional relief for 

the apparent wrong caused by the Mobile defendants. The Mobile defendants’ 

conduct was therefore the basis for the attorney fees and expenses incurred 

by the plaintiffs in obtaining supplemental relief from the state 

defendants. 

Under these circumstances, the Mobile defendants should pay for 

all attorney fees and expenses in this litigation, including the fees and 

expenses incurred by the plaintiffs in obtaining additional relief from the 

Ly  



state defendants. The state defendants should not be liable for any fees 
-l 

and expenses. 

An appropriate order will therefore be entered requiring that the 

Mobile defendants pay the plaintiffs $227,880.14 for attorney fees and 

expenses. 

DONE, this the 26th day of February, 1986. 

  

AK ay 

Oh 
UNLTED STATES DISTRICT JUDGE