New York State Association for Retarded Children, Inc. v. Carey Brief Amici Curiae

    UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 82-7531

NEW YORK STATE ASSOCIATION FOR RETARDED 
CHILDREN, INC., et al.,

Plaintiffs-Appellees,
v.

HUGH L. CAREY, INDIVIDUALLY AND AS 
GOVERNOR OF THE STATE OF NEW YORK, 
et al.,

Defendants-Appellants.

BRIEF AMICI CURIAE IN SUPPORT OF PETITION FOR REHEARING AND 
SUGGESTION OF REHEARING EN BANC, BY THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., THE PUERTO RICAN LEGAL DEFENSE 

AND EDUCATION FUND, INC., AND THE LAWYERS' COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW

JACK GREENBERG JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
STEVEN L. WINTER

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

Legal Defense and Educational 
Fund, Inc.

JACK JOHN OLIVERO ROBERT L. BECKER
95 Madison Avenue 
New York, N.Y. 10157 
(212) 532-8470
Attorneys for the 

Puerto Rican Legal Detense 
and Education Fund, me.

WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN

733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700
Attorneys for the Lawyers' 

Committee for Civil Rights 
Under Law



INDEX

Page
I. Interest of Amici...............................  1
II. THE PANEL OPINION DOES VIOLENCE TO THE CLEARLY 

EXPRESSED CONGRESSIONAL INTENT IN PASSING § 1988 
THAT FEES TO NON-PROFIT, CIVIL RIGHTS LITIGATING 
ORGANIZATIONS SHOULD BE AWARDED ON THE SAME
BASIS AS FEES TO PRIVATE ATTORNEYS.............. 4

III. THE COST-BASED "BREAK POINT" STANDARD APPLIED BY
THE PANEL IS UNWORKABLE AND WOULD RESULT IN 
GREATLY INCREASED LITIGATION OVER FEES .........  9

IV. THE PANEL OPINION IS AT ODDS WITH THE DECISION
OF THE SUPREME COURT AND EVERY CIRCUIT INCLUDING 
THIS O N E ....................................... IJ

CONCLUSION......................................... 15



Table of Authorities
Page

Cases:
Allen v. Amalgamated Transit Union Local 788,

554 F . 2d 876 (8th Cir. 1977) ...................  13
Beazer v. New York City Transit Authority,

558 F.2d 97 (2d Cir. 1977), rev1d on
other grounds, 440 U.S. 568 (1979) .............  13

Carey v. New York Gaslight Club, Inc., 598 F.2d 
1253 (2nd Cir. 1979), aff’d, 447 U.S. 54 
( 1980) .......................................... 14

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.
1980 ) ...................................... 12,13,15

Fairley v. Patterson, 493 F.2d 598
(5th Cir. 1974 ) ................................. 7 , 13

Fontila v. Carter, 571 F.2d 487 (9th Cir. 1978) .....  13
Gautreaux v. Chicago Housing Authority, 690 F.2d

601 (7th Cir. 1982) ............................. 13
Hariston v. R. & R. Apartments, 510 F.2d 1090

(7th Cir. 1975 )   13
Hensley v. Eckerhart, U.S. , 51 U.S.L.W.

4552 (May 16, 1983) ..................  9, 12,13,14, 15
Incarcerated Men of Allen Cty. Jail v. Fair,

507 F. 2d 281 (6th Cir. 1974) ...................  13
James v. Stockham Valves & Fittings Co.,

559 F. 2d 310 (5th Cir. 1977) ...................  13
Johnson v. Georgia Highway Express, 488 F.2d

714 (5th Cir. 1974 )   passim
Johnson v. University College of Univ. of

Alabama, No. 81-7860 (SI. op.) (11th Cir.,
June 10, 1983)   13,15

Oldham v. Ehrlich, 617 F.2d 163 (8th Cir. 1980) .....  13
Palmigiano v. Garrahy, 616 F.2d 598 (1st Cir. 1980) .. 13
Ramos v. Lamm, Nos. §2-1531, 82-1544 (SI. op.)

(10th Cir., June 15 , 1983) .....................  13



Page

Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977) ... 13
Singh v. Mahoning County Bd. of Mental

Retardation, 519 F.2d 748 (6th Cir. 1975) ......  13
Swann v. Charlotte-Mecklenburg Bd. of Ed.,

66 F.R.D. 483 (W.D. N.C. 1975 ) .................  6
Taylor v. Safeway Stores, Inc., 524 F.2d 263

(10th Cir. 1975 ) ................................ 13
Tillman v. Wheaton-Haven Recreation Ass'n, 517

F. 2d 1141 (4th Cir. 1975) ........................ 13
Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976) .......  6,7,13
Watson v. School Bd. of City of Suffolk,

566 F. 2d 1201 (4th Cir. 1977) ..................  13

Statutes
42 U.S.C. § 1988 ................................... passim
122 Cong. Rec. S. 17051 (daily ed. Sept. 29, 1976) ... 12

Other Authorities
H.R. Rep. No. 94-1558, 94th Cong., 2d Sess.

(1976) ...................................... 4,5,7,8
H.R. Rep. No. 96-1418, 96th Cong., 2d Sess.

( 1980) .......................................... 15
S. Rep. 94-1011, 94th Cong., 2d Sess.

( 1976)   4,5,8

- i i i -



UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 82-7531

NEW YORK STATE ASSOCIATION FOR RETARDED 
CHILDREN, INC., et al.,

Plaintiffs-Appellees,
v.

HUGH L. CAREY, INDIVIDUALLY AND AS 
GOVERNOR OF THE STATE OF NEW YORK, 
et al.,

Defendants-Appellants.

BRIEF AMICI CURIAE IN SUPPORT OF PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC, BY THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., THE PUERTO RICAN LEGAL DEFENSE 

AND EDUCATION FUND. INC., AND THE LAWYERS' COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW

I.
Interest of Amici —^

Each of the amici is a non-profit charitable 
organization authorized to receive tax-deductible contri­
butions under Section 501(c)(3) of the Internal Revenue 
Code. Amici are public interest law organizations whose 
purpose is to represent Blacks, Hispanics, and other minori­
ties in actions seeking to vindicate their equal civil and

1 / Counsel for the parties have consented to the filing 
of this brief amici curiae. Letters of consent are being 
transmitted to the Court under separate cover.



constitutional rights. They have served as counsel m  cases 
brought in many jurisdictions, including this circuit, in­
volving equal employment, educational, and housing oppor­
tunities, prison reform, health care, and many other areas 
of the law.

Amici have a direct and substantial interest in 
the issues raised by the panel opinion in this case. As 
discussed in Part II, infra, each of the amici was involved 
in one or more of the leading cases that established, by 
unanimous vote of all the circuits prior to this case, that 
public interest firms should have counsel fees calculated on 
exactly the same basis as attorneys in private practice. 
Since the passage of 42 U.S.C. § 1988 in 1976 a large pro­
portion, although not all, of the litigation conducted 
by amici has been covered by one or more of the various 
attorneys' fee statutes. The result has been that in recent 
years it has been possible to obtain an inceasingly larger 
proportion of the income of amici from recoveries of fees.

For example, amici NAACP Legal Defense and Educa­
tional Fund ("LDF"), one of the largest and oldest public 
interest law firms in the country, suffered a series of 
deficits from the early 1970's until 1980. The result of 
these deficits was a freeze on bringing additional litiga­
tion and the beginning of cutbacks in staff in early 1980. 
Because of a concerted effort to recover adequate counsel 
fee beginning in 1980 and continuing in 1981 and 1982 LDF 
was able to reverse this trend. It has balanced its budget

2



and begun to make up for the long series of crippling de­
ficits which it had suffered.

The award of full fees to organizations such as 
amici and the agencies representing plaintiffs in the 
present case enables them to bring more litigation. Thus 
the purpose of Congress in passing the fee statutes, to 
encourage and facilitate the bringing of such litigation, is 
futhered. Therefore, awards to public interest organi­
zations do not result in "windfalls" to them or to any indi­
viduals in any way whatsoever. Their attorneys are on 
salary and in no way receive bonuses or other additional 
income because of recoveries in any particular case they 
handle. The money recovered is solely used to support other 
litigation, including litigation that is not itself 
fee-generating.

Finally, although the income of amici from counsel 
fees has increased, it still represents 20% to 25% at most. 
Thus, even with recoveries at "market rates," the organiza­
tions must depend heavily on the philanthropy of private 
contributors and foundations. If the proportion of income 
recovered by fees decreases even below its present level, 
the only result will be to severely cripple the ability of 
amici and similar organizations to carry out the purpose of 
Congress, the private enforcement of the civil rights 
statutes.

3



II.
THE PANEL OPINION DOES VIOLENCE TO THE CLEARLY EXPRESSED 
CONGRESSIONAL INTENT IN PASSING § 1988 THAT FEES TO 
NON-PROFIT, CIVIL RIGHTS LITIGATING ORGANIZATIONS SHOULD 
BE AWARDED ON THE SAME BASIS AS FEES TO PRIVATE ATTORNEYS

The entire structure of the panel's decision im­
posing different, more parsimonious standards for the calcu­
lation of fees to non-profit, civil rights litigating organ­
izations is premised on a misreading of the legislative his­
tory of § 1988 that both ignores the clearly expressed con­
gressional intent and stands on its head what Congress ac­
tually said. Judge Newman's prevailing opinion is based on 
his reading of the legislative history as not "affording 
further guidance as to how the fee award should be calcu­
lated," Slip op. at 4565, but as counselling "caution 
against fee awards that 'produce windfalls to attorneys.'"
Slip op. at 4587 (citing S. Rep. No. 94-1011, 94th Cong., 2d
Sess. at 6 (1976) and H.R. Rep. No. 94-1558, 94th Cong., 2d

2/Sess. at 9 (1976)). — It is flatly wrong on both counts.

2 / The prevailing panel opinion is based on a deceptively 
simple syllogism. It goes like this: Since the legislative
history proscribes windfalls, and since the application of a 
market based fee contains a profit element, the award of a 
market based fee to a non-profit organization would encom­
pass a profit and, thus, a windfall. As indicated below, 
however, the legislative history does not contain a general­
ized prohibition against windfalls, but rather a specific 
conclusion that the award of fees like those disapproved by 
the panel is not a windfall. Indeed, Congress prescribed 
market based fees in all cases for its prospective motiva­
tional value "to attract competent counsel" to civil rights 
cases. S. Rep., supra, at 6; H.R. Rep., supra, at 9.

4



The text of the two congressional reports is clear. 
The Senate report specified the standards it intended to 
adopt:

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.

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.

S. Rep., supra, at 6. Similarly, the House report first
adopted the Johnson factors, H.R. Rep., supra, at 8, noted
that "a prevailing party is entitled to counsel fees even if
represented by an organization," id. at n. 16, and concluded
that: "The application of these standards will insure that
reasonable fees are awarded to attract competent counsel in
cases involving civil and constitutional rights, while
avoiding windfalls to attorneys." Id. at 9.

Thus, Congress expressly adopted the standards 
already developed in the pre-Act case law and specifically 
said that the application of these standards would not pro­
duce windfalls. Examination of the cases cited by Congress 
indicates that two of the four cases cited by the Senate and 
three of the cases cited by the House specifically awarded fees

5



to non-profit, civil rights litigating organizations on the 
same basis as to private attorneys. Rather than providing 
an admonition against windfalls that could serve as the 
basis for reduced fees to non-profit attorneys, the con­
gressional reports' explicit adoption of these cases makes 
clear that awards of market rate fees to non-profit attor­
neys are not windfalls.

In Johnson, cited by both the House and Senate 
reports, the fees at issue were those for attorneys employed 
by amicus LDF. 488 F.2d at 715, 719. —  ̂Thus, the very
foundation for the standards applied for market based fee 
awards, 488 F.2d at 717-19, were first articulated in a case 
involving non-profit attorneys. Moreover, the Senate report 
noted that these standards were "correctly applied" in 
Swann. Swann too involved fees for counsel employed by 
amicus LDF. Not only did the Swann court not reduce LDF's 
fees because of its non-profit nature, it specifically noted 
that the fact that LDF subsidized private counsel with costs 
and some fees should not operate to reduce their court-awarded 
fee. 66 F.R.D. at 486.

Similarly, the House report cited with approval 
both this court's ruling in Torres v. Sachs, 538 F .2d 10 (2d 
Cir. 1976), aff'g 69 F.R.D. 343 (S.D.N.Y. 1975), and the

3/ In fact, Johnson awarded fees for work done by several 
of the undersigned counsel for amici. See 488 F.2d at 715.

6



Fifth Circuit opinion in Fairley v. Patterson, 493 F .2d 598
(5th Cir. 1974), for the proposition that full fees should
be awarded to non-profit, litigating organizations. H.R.
Rep., supra, at 8 n. 16. Fairley involved fees to amicus
Lawyers' Committee. 493 F.2d at 606-07 and n. 12. The
court specifically held that:

This Court has indicated on several 
occasions that allowable fees and 
expenses may not be reduced because 
appellants' attorney was employed or 
funded by a civil rights organization 
and/or tax exempt foundation or 
because the attorney does not exact a 
fee. This Court has, previously, 
awarded fees to attorneys while em­
ployed by the Lawyers Committee with­
out hinting that their employment 
status was relevant to this issue.

Id. (footnote omitted). Moreover, this court awarded fees 
to amicus Puerto Rican Legal Defense Fund in Torres, speci­
fically quoting the language from Fairley that fees "may not 
be reduced" because of the organizational nature of plain­
tiffs' counsel, 538 F .2d at 13, and noting that

the receipt of such [unreduced] fees 
promotes their continued existence 
and service to the public in this 
field.

Application of the [fee 
shiftingj provision to furnish 
full recompense for the value of 
services in successful litigation 
helps assure the continued availabili­
ty of the services to those most in 
need of assistance in translating the 
promise of the Act into actual[ity]
... often grudgingly yielded to minor­
ities by those reluctant ... to impose 
on the majority necessary expenses of 
implementation.

Id. Indeed, Torres1s reference to fees pegged at the "full

7



... value of services" and not their actual cost is an ex­
plicit repudiation of the prevailing panel opinions adop­
tion of the modified cost-plus approach. The "full recom- , 
pense for the value of services" standard applied by Torres 
is consonant with Congress's stated intent to provide for 
fees likely to motivate counsel to take civil rights cases 
—  i.e., "adequate to attract competent counsel." S. Rep., 
supra, at 6; H.R. Rep., supra, at 9.

Thus, the legislative history makes clear that 
Congress was aware of and specifically adopted those cases 
and those specific standards that require that full market 
based fees be awarded to non-profit, civil rights litigating 
organizations. Contrary to the assertion of the prevailing 
panel opinion, it did specify "how the fee award should be 
calculated," citing specific examples. Moreover, it ex­
pressly noted that the application of these standards —  
which require unreduced fees to non-profit attorneys —  
would not result in windfalls as Congress viewed that term.
The panel opinion is at odds with the most clearly expressed

3a/congressional intent and should be vacated. —

3a/ Similarly, the panel's handling of the multiplier 
or "bonus" issue is flawed. Both Stanford Daily and Davis, 
which we approved by the Senate report, applied multipliers 
to the hourly rates to approximate the market value of 
contingent, delayed court awarded fees.

8



III.
THE COST-BASED "BREAK POINT" STANDARD APPLIED 
BY THE PANEL IS UNWORKABLE AND WOULD RESULT IN 
GREATLY INCREASED LITIGATION OVER FEES________
As recognized by the prevailing panel opinion, 

"litigation over attorney's tees has itself become a signi­
ficant addition to the legal landscape . . . ” Slip op. at 
4583. The Supreme Court recently admonished that: "A
request for attorney's fees should not result in a second
major litigation." Hensley v. Eckerhart, ___ U.S. ___, 51
U.S.L.W. 4552, 4555 (May 15, 1983). Yet the effect of using 
the "break point" calculation devised by the panel will be 
to turn each attorney's tees request made by a non-profit 
organization into a massive inquiry into the finances and 
business practices of the organization and local private 
attorneys.

The panel decreed that district courts must de­
termine the appropriate hourly rate tor non-profit organi­
zations by ascertaining

the range of billing rates in the community of the 
applicant attorneys and . . . without elaborate
fact-finding, . . . selectlingj a 'break point'
beyond which a billing rate in that community at 
that time reflects both a significant profit 
component and overhead costs significantly higher 
than those of a non-profit office. Fees for 
non-profit law offices should not be based on 
hourly rates exceeding that 'break point,' except 
in the unlikely event that the applicant's 
non-profit law office can demonstrate that a 
higher rate is required to enable it to secure 
reimbursement of its costs.

Slip op. at 4592-93. However, the calculation of the "break 
point" must inevitably entail "elaborate fact finding" into

9



the financial practices of attorneys in the community as 
well as those of the particular organization requesting 
fees. Without this fact-finding, the "break point" would be 
a wholly arbitrary ceiling on attorney's tees awards to non­
profit organizations.

The trial court would first have to ascertain the
point at which various billing rates of private attorneys in
the community during the relevant time period reflect
significant profit and overhead costs. Although the
calculation of this point would require discovery of the
financial records of private firms, it is highly unlikely
that firms will voluntarily release their financial records
for these purposes. Third-party testimony about the
business practices of various firms in the community might
thus be necessary, and expert testimony may be needed to

4/properly analyze the financial records involved. Indeed, 
because of the panel's endorsement of the use of historical 
rates, these calculations would have to be repeated tor each 
year of the often lengthy litigation.

4/ Such discovery is crucial to the extent that the "break 
point" calculation in part reflects the profit and overhead 
costs of private firms since, as Judge Friendly acknowledged 
"No one seems to know to what extent [hourly ratesJ take 
account of the cost of hours that cannot be billed or must 
be billed at noncompensatory rates, or include a profit 
component even before adjustment to reflect the success of 
the firm's efforts.. . . Very likely different firms have
different practices in these respects." Slip op. at 4601 
n.2 (Friendly, J., concurring).

10



The organization requesting fees would also have to be 
allowed to present evidence to the court of its financial 
structure for the entire period at issue to show its true 
overhead and costs. Inevitably, expert testimony from 
accountants would be needed to determine the amount of the 
organization's overhead which could be attributed to the 
particular litigation. The court would then have to compare 
the organization's financial structure with that of private 
law firms to determine the point at which use of the firms' 
billing rates would constitute a profit, or "windfall tee," 
to the organization.

The inquiry could not even stop there. The
organization would have to be afforded the opportunity to
demonstrate that the trial court's award does not reflect
the true costs of the litigation. Such a demonstration
would entail further analysis of the organization's finances
in a second round of hearings and submissions. Moreover,
this complex determination of a "reasonable fee" would have
to be repeated in each case brought under the more than 12U

5/fee-shifting statutes" since the panel acknowledged that: 
"We do not expect that even in the same community and at the 
same time each district judge will necessarily select the 
same 'break point' as a presumptive maximum rate needed to 
avoid windfall fees to non-profit law offices." Slip op. at 
4593.

W Slip op. at 4583, citing Attorney's Fee Award Reporter, Oct. 1982 at 2-3.

11



Such a massive undertaking will only further
burden the trial and appellate courts with tee litigation

6despite the oft-repeated plea for simplicity in fee awards.-'
Hensley, 51 U.S.L.W. at 4555 (majority opinion) and 4560
(Brennan, J. concurring). Moreover, the prospect of
enduring a prolonged battle over fees will deter non-profit
organizations from taking on many civil rights cases, since
receipt of desperately needed fees will be further delayed
and since the already overstretched resources of such
organizations will be further burdened each time they apply
for fees. Cf. Copeland v. Marshall, 641 F.2d 880, 897 (D.C.
Cir. 1980) (en banc). Since time spent on attorney's tees
applications is itself compensable, the net result of the
time-consuming and complex process will be an overall

7/increase in fee awards. Id. at 896.

6 / In contrast to its willingness to examine in detail the 
financial structure of non-profit organizations, the panel 
endorsed percentage cuts of hours as a "practical means of 
trimming fat from a fee application," noting that "it is 
unrealistic to expect a trial judge to evaluate and rule on 
every entry in an application." Slip op. at 4579-80. Judge 
Newman's opinion thus introduces the ratchet theory of fee 
award litigation: A trial judge may make wholesale, arbitrary
cuts in fee awards, but a successful civil rights litigant 
represented by an established civil rights organization must 
provide elaborate proof of its organizational costs, accounting, 
and finances to justify every penny of what would be an 
undisputed market rate for private attorneys. This flies in 
the face of the explicit congressional purpose behind §1988 
—  as stated by Senator Kennedy, one of the sponsors of the 
bill -- that "Congress clearly intends to facilitate and to 
encourage the bringing of actions to enforce the protections 
of the civil rights law." 122 Cong. Rec. S. 17051 (daily 
ed. Sept. 29, 1976).
7/ In Copeland, the Court noted a district court award of 
$5,000 in additional fees for time spent solely documenting 
a fee request under the requirements of a cost-plus formula 
641 F .2d at 896 n. 30. Those requirements are substantially 
similar to the evidentiary and procedural requirements 
necessitated by the panel's "break point" approach.

12



THE PANEL OPINION IS AT ODDS WITH THE DECISIONS OF 
THE SUPREME COURT AND EVERY CIRCUIT INCLUDING THIS ONE
The market-rate approach, in which the number ot

hours reasonably expended on the litigation is multiplied by
a reasonable hourly rate prevailing in the community for
similar work, has been endorsed by the Supreme Court and

8/every court of appeals, including the Second Circuit.-
Moreover, every circuit court, including this circuit in
previous ruling, has held that fee awards for non-profit
organizations should be calculated on the same basis as

9/private attorneys. The unanimous holdings of the courts

IV.

8/ Hensley v. Eckerhart, 51 U.S.L.W. at 4554; Beazer v. New 
York City Transit Authority, 558 F.2d 97 (2d Cir. 1977), 
rev'd on other grounds, 440 U.S. 568 (1979); Torres v. Sachs, 
538 F.2d 10, 13 (2d Cir. 1976); Copeland v, Marshall, 641 
F.2d 880 (D.C. Cir. 1980) (en banc) Palmigiano v. Garrahy,
616 F.2d 598, (1st Cir.), cert. denied, 449 U.S. 839 (1980); 
Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977), cert. 
denied, 436 U.S. 913 (1978); Waston v. School Bd. of City of 
Suffolk, 566 F.2d 1201 (4th Cir. 1977); James v. Stockham 
Valves & Fittings Co., 559 F .2d 310, 359 n. 64 (5th Cir.
197 7 ) , cert. denied, 434 U.S. 1034 (1978); Singer v. Mahoning 
County Board of Mental Retardation, 519 F.2d 748 (6th Cir. 
1975); Hariston v. R & R Apartments, 510 F.2d 1090, 1093 n.
3 (7th Cir. 1975); Allen v. Amalgamated Transit Union Local 
788, 554 F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S.
891 (1977); Fontila v. Carter, 571 F .2d 487, 496 (9th Cir. 
1978); Taylor v. Safeway Stores, Inc., 524 F.2d 263, 268 & 
n. 2 (10th Cir. 1975).
9/ Torres v. Sachs, 538 F.2d at 12-13; Copeland v. Marshall, 
641 F.2d at 899-900; Palmigiano v, Garrahy, 616 F .2d at 601; 
Rodriguez v. Taylor, 569 F.2d 1231, 1250 (3rd Cir. 1977); 
Tillman v. Wheaton-Haven Recreation Ass'n, 517 F.2d 1141,
1148 (4th Cir. 1975); Fairley v. Patterson, 493 F .2d 598,
606 (5th Cir. 1974); Incarcerated Men of Allen Cty Jail v. 
Fair, 507 F .2d 281, 286 (6th Cir. 1974); Gautreaux v. Chicago 
Housing Authority, 690 F .2d 601, 613 (7th Cir. 1982); Oldham 
v. Ehrlich, 617 F.2d 163, 168-69 (8th Cir. 1980); Dennis v. 
Chang, 611 F.2d 1302, 1309 (9th Cir. 1980); Ramos v, Lamm, 
Nos. 82-1531, 82-1544 (Slip op.) (10th Cir. June 15, 1983); 
Johnson v. University College of Univ. of Alabama, No. 81- 
7860 (Slip op. p.3360) (11th Cir. June 10, 1983).

13



of appeals were explicitly endorsed by the Supreme Court
when it affirmed this court's decision in Carey v. New York
Gaslight Club Inc., 598 F.2d 1253, 1255 n.l (2nd Cir. 1979),
at 447 U.S. 54, 70 n.9 (1980). Moreover, it implicitly held
that the "market value" method of calculation was properly
applied to a legal service organization in Hensley v. Eckerhart,
51 U.S.L.W. at 4555. Therefore, the overwhelming weight of
precedent has rejected the panel's reasoning.

The concerns of the panel over the award given by
the district court here could have been easily addressed
within the confines of the market-rate method. The primary
concern of the panel was with the "perplexing" use of hourly
rates based on the fee schedule of a Wall Street firm. Slip
op. at 4585. Assuming, arguendo, that those rates are too

11/high, the panel could have remanded to the district court
to reconsider in light of rates charged by other, less
expensive firms in the community. This would have modified
the fee award -- if that were appropriate -- without
requiring the massive inquiry that the panel now seeks to

12/impose on all such awards in this circuit.

11/ The district court found as a fact that the use of this 
fee schedule was reasonable given "the court's acquaintance 
with fees currently charged by local firms, both large and 
small, and ... its reading of the affidavits of John Hupper 
of Cravath, Swain & Moore and Melvyn Weiss of Milberg, Weiss, 
Bershad & Specthrie. . ." 544 F. Supp. at 337.
12/ The prevailing panel opinion determined that the "break 
point" in this case was $75 per hour. However, there is no 
indication of how this "break point" figure was arrived at. 
Indeed, Judge Wyzanski deemed the $75 figure "a mere ad hoc 
device for disposing of the case at bar. The $75 figure 
apparently comes from the Equal Access to Justice Act . . .it has no relation to appropriate compensation for attorneys 
in Civil Rights Act Cases." The House Report on the Equal

14



Finally, the panel decision is in conflict with decision
of other courts of appeals and the Supreme Court in refusing

13/to apply a multiplier for contingency or other factors
and in not requiring the adjustment of historical rates to

14/compensate for delay m  payment.
CONCLUSION

For the foregoing reasons, amici urge that the 
petition for rehearing be granted and that the case be heard 
en banc. Amici further respectfully suggests that further 
briefing by the parties and amici would be appropriate and 
of assistance to the Court.

Re

JACK
JAMES M. NABRIT, III 
STEVEN L. WINTER

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

Attorneys tor the NAACP 
Legal Defense and Educational 
Fund, Inc.

12/ Continued
Access to Justice Act specifically states that the $75 rate 
"is not intended to affect or limit the computation of reasonable 
attorney fees under any other provision of law authorizing 
an award of fees for litigation under a particular statute, 
such as the Civil Rights Acts, designed to promote private 
enforcement of that Act." H.R. Rep. No. 96-1418, 96th Cong.,
2d Ses., reprinted in 1980 U.S. Code Cong. & Ad. News 4984,
4994 .
13/ See, Hensley v. Eckerhart, 51 U.S.L.W. at 4555; Copeland 
v. Marshall, 641 F.2d at 892-93; Johnson v. University College 
of University of Alabama, No. 81-7860 (Slip. op. p.3363)
(11th Cir. June 10, 1983).
14/ See, e.g., Copeland v. Marshall, 641 F .2d at 893; Johnson v. University College of University of Alabama, No. 81-7860, 
(Slip. op. p.3363-64) (11th Cir. June 10, 1983).

15



JACK JOHN OLIVERO 
ROBERT L. BECKER

95 Madison Avenue
New York, New York 10157
(212) 532-8470

Attorneys tor the
Puerto Rican Legal Detense
and Education Fund, Inc.

WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN

733 15th Street, N.W. 
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys tor the Lawyers' 
Committee for Civil Rights 
Under Law

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the
foregoing brief amici curiae on counsel for the parties by
depositing the same in the United States mail, first class,
postate prepaid, on Frederick K. Mehlman, Asst. Atty.
General, New York, New York, and John E. Kirklin, Legal Aid
Society, New York, New York.

Dated:June 29, 1983.
Attorney for Amici