Baker v. Jefferson County Brief for Appellants

    UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 82-5153

CHARLES W. BAKER, et al. ,
Plaintiffs-Appellants, 

vs.
COUNTY OF JEFFERSON, et al.,

Defendants-Appellees.

On Appeal from the United States District 
Court for the Western District of Kentucky 

(Charles M. Allen, J.)

BRIEF FOR APPELLANTS

JUANITA LOGAN CHRISTIAN 
LYNN M. BYNUM 

Suite 490
730 West Main Street 
Louisville, Kentucky 40202 
(502) 587-8091

JACK GREENBERG 
PATRICK 0. PATTERSON 
JUDITH REED 

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

Counsel for Appellants



Table of Contents
Page

Table of Authorities .............................  iii
Fact Sheet for Title VII Appeals ................. vi
Questions Presented ..............................  1
Statement of the Case ............................  2
Argument ..........................................  11

I. In making an award of fees which did not 
compensate plaintiffs' counsel for the 
fair market value of their services in 
this civil rights case, the District 
Court abused its discretion and failed 
to comply with the requirements of the 
applicable federal fee award statutes .... H

II. The fees awarded to plaintiffs’ Louis­
ville attorneys were based on hourly 
rates far below the fair market value 
of their services ........................  17
A. The rates set by the District Court

were contrary to all the evidence 
in the record establishing reason­
able hourly rates ....................  17

B. The rates set by the District Court 
for services performed in this case 
in 1979-1981 were inherently un­
reasonable because they were based 
on rates’ previously awarded in a 
different case for services per­
formed in 1974-1979 .................. 19

C. The rates set by the District Court 
were contrary to the requirements 
of the federal fee award statutes .... 24

D. The District Court failed to com­
pensate plaintiffs' Louisville 
counsel at a higher rate for all 
documented in-court services ........  27



Page
III. The fees awarded to the Legal Defense 

Fund were based on hourly rates far 
below the fair market value of the
services it provided in this case .......  28

IV. The fees awarded to plaintiffs'
attorneys were unreasonable because
they did not account for the fact
that compensation was contingent upon
success in the case ........................ 38
A. Plaintiffs' counsel were entitled 

to a contingency adjustment for 
time spent on the class aspects of
the case .............................  41

B. Plaintiffs' counsel were entitled 
to a contingency adjustment for 
time spent on the plaintiffs'
individual claims ....................  44
1. The Louisville Attorneys .........  44
2. The Legal Defense Fund ...........  46

V. The District Court erred in failing to 
direct payment of interest on the judg­
ment awarding attorneys' fees, costs, 
and expenses .............................  48

Conclusion ........    49
Addendum: Statutes Involved

- ii -



Table of Authorities
Page

Cases
Anderson v. Morris, 658 F .2d 246 (4th Cir.

1981)   15
Bradford v. Blum, 501 F. Supp. 526 (S.D.N.Y.

1981) .........................................  37
Chrapliwy v. Uniroyal, Inc., 670 F .2d 760 (7th

Cir. 1982)   32,35,36
City of Detroit v. Grinnell Corp., 560 F .2d

1093 (2d Cir. 1977)   15
City of Detroit v. Grinnell Corp., 575 F .2d 1009

(2d Cir. 1977)   48
Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.

1980) (en banc) ........................  15,31,42,47
Davis v. County of Los Angeles, 8 EPD

IT 9444 (C.D. Cal. 1974) .............  24,31,32,47
Deposit Guaranty National Bank v. Roper, 445

U.S. 326 (1980) .............................  13
Fairley v. Patterson, 493 F.2d 598 (5th Cir.

1974) .........................................  31
Furtado v. Bishop, 635 F .2d 915 (1st Cir. 1980) ... 15
Gates v. Collier, 616 F .2d 1268 (5th Cir. 1980) ... 15
Gulf Oil Co. v. Bernard, 101 S.Ct. 2193 (1981) .... 29
Hedrick v. Hercules, Inc., 658 F .2d 1088 (5th

Cir. 1981) .................................... 32
Incarcerated Men of Allen County Jail v. Fair,

507 F . 2d 281 (6th Cir. 1974)   31,47
Jones v. Armstrong Cork Co., 630 F .2d 324 (5th

Cir. 1980) .................................... 37
Jones v. Diamond, 636 F.2d 1364 (5th Cir.

1981) (en banc) ..............................  44
Jones v. Federated Department Stores, Inc., 527

F. Supp. 912 (S.D. Ohio 1981)   18,19

- iii -



Page
Johnson v. Georgia Highway Express, Inc.,

488 F . 2d 714 (5th Cir. 1974) ................. 31
Lindy Brothers Builders, Inc. v. American 

Radiator & Standard Sanitary Corp.,
487 F . 2d 161 (3rd Cir. 1973) ................. 15

Lindy Brothers Builders, Inc. v. American 
Radiator & Standard Sanitary Corp.,
540 F .2d 102 (3rd Cir. 1976) (en banc) ......  42

Maher v. Gagne, 448 U.S. 122 (1980) ............... 16
NAACP v. Button, 371 U.S. 415 (1963) .............. 8,29
Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968)   13
New York Gaslight Club, Inc. v. Carey, 447

U.S. 54 (1980)   13,31,46
Northcross v. Board of Education, Memphis 

City Schools, 611 F .2d 624 (6th Cir.
1979) , cert, denied, 447 U.S. 911
(1980 ).........................................  passim

Oldham v. Erlich, 617 F .2d 163 (8th Cir. 1980) .... 47
Palmigiano v. Garrahy, 616 F .2d 598 (1st Cir.

1980) . 47
Seals v. Quarterly County Court, 562 F .2d 390

(6th Cir. 1977)   15
Stanford Daily v. Zurcher, 64 F.R.D. 680 24,30,31,32,

(N.D. Cal. 1974) .......................  42,44,45
Swann v. Charlotte-Mecklenburg Board of 

Education, 66 F.R.D. 483 (W.D.N.C.
1975)   24,31,47

Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y.
1975), aff'd, 538 F .2d 10 (2d Cir. 1976) ....  31

Statutes
28 U.S.C. § 1961 .................................. 48
Civil Rights Attorney's Fees Award Act of 1976,

42 U.S.C. § 1988 ..............................  passim

IV



Page
Title VII of the Civil Rights Act of 1964-,

42 U.S.C. §§ 2000e et seq...................  passim

Legislative History
H.R. Rep. No. 94-1558, 94th Cong.,

2d Sess. (1976)   13,14,25,31,46
S. Rep. No. 94-1011, 94th Cong., 2d 12,13,24,25,30,31,

Sess. (1976)   33,42,43,46

Other Authorities
A. Miller, Attorneys' Fees in Class Actions

(Federal Judicial Center 1980)   15,34,35
Attorney Fee Awards in Antitrust and Securities 

Class Actions, 6 Class Action Reports
82 (1980) .................................... 10

U.S..Department of Commerce, Bureau of the Census,
Census Tracts, Louisville, Ky.-Ind.
Standard Metropolitan Statistical Area,
Table P-1 (General Characteristics of
the Population: 1970)   5

U.S. Department of Labor, Bureau of Labor 
Statistics, 105 Monthly Labor Report
(May 1982)   23,24

v



UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FACT SHEET FOR TITLE VII APPEALS

Case Name and Number: Charles W. Baker, et al. v. County of
Jefferson, et al., No. 82-5153

Person Reporting: Patrick 0. Patterson
Counsel for Plaintiffs-Appellants

1. Dates EEOC charges filed: April 27, 1979; May 9, 1979;
January 22, 1980.

2. Was any compromise or settlement reached by the state civil
rights agency? No. By EEOC? No.

3. Date EEOC right to sue letters issued: January 25, 1980.
4. Date present action filed: January 24, 1980.
5. Have all filings been timely? (X) Yes. ( ) No. If not,

are any "tolling" arguments available? ( ) Yes. ( ) No. 
If so, describe briefly.

6. Nature of claims of discrimination and date(s) of occurrence:
(a) Discrimination in hiring, training, assignment, 
promotion, and discipline of black police officers and 
applicants since prior to March 1972 and continuing;
(b) Retaliatory demotion of two police officers for 
filing EEOC charges and opposing defendants' racial dis­
crimination, on or about January 17, 1980.

7. Disposition below: Consent decree approved December 18, 1980;
judgment awarding fees, costs and expenses to plaintiffs' 
counsel entered March 5, 1982.

vi



UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 82-5153

CHARLES W. BAKER, et al.,
Plaintiffs-Appellants, 

vs.
COUNTY OF JEFFERSON, et al.,

Defendants-Appellees.

On Appeal from the United States District 
Court for the Western District of Kentucky 

(Charles M. Allen, J.)

BRIEF FOR APPELLANTS

QUESTIONS PRESENTED

1. Whether the District Court erred in setting rates of 
$35 and $55 an hour for the services performed by plaintiffs' 
Louisville counsel where those rates are substantially lower 
than the reasonable market value of the services provided by 
those attorneys, as measured by either their normal hourly 
rates or the prevailing rates customarily charged by com­
parable attorneys in the Louisville area for similar services.



2. Whether the District Court erred in failing to compen­
sate plaintiffs' Louisville counsel at a higher rate for all 
documented in-court services.

3. Whether the District Court erred in setting a rate 
of $70 an hour for services performed by an experienced staff 
attorney of the New York-based NAACP Legal Defense and Educational 
Fund, where that rate is substantially lower than the reasonable 
market value of those services as measured by (a) the individual 
attorney's background and experience as a specialist in employ­
ment discrimination cases, (b) the Legal Defense Fund's insti­
tutional resources and expertise, and (c) the prevailing rates 
customarily charged by comparable attorneys and national law 
firms for similar services.

4. Whether the District Court erred in failing to make 
any contingency adjustment in the fees awarded to plaintiffs' 
counsel.

5. Whether the District Court erred in failing to direct 
payment of interest on the judgment awarding fees, costs and 
expenses to plaintiffs' counsel.

STATEMENT OF THE CASE

This * is an appeal by plaintiffs' counsel from an inadequate 
award of counsel fees under the Civil Rights Attorney's Fees 
Awards Act of 1976, 42 U.S.C. § 1988, and Title VII of the 
Civil Rights Act of 1964 , as amended, 42 U.S.C. § 2000e e_t seq.

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The present appeal involves the same District Judge, most of 
the same attorneys for the plaintiffs, and some of the same 
issues as the appeal in Louisville Black Police Officers Organi­
zation, Inc., et al. v. City of Louisville, et al., Civil 
Action No. C-74-106 L(A) (W.D. Ky., March 17, 1981), appeal 
docketed, Nos. 81-5466/5491 (6th Cir., June 30, 1981). The 
plaintiffs in the Louisville Black Police case obtained 
substantial classwide and individual relief for racially dis­
criminatory employment practices of the City of Louisville 
Police Department, and the plaintiffs in the present case 
obtained similar relief with respect to the Jefferson County, 
Kentucky, Police Department. Counsel for the plaintiffs in 
both cases have appealed from fee awards entered by the District 
Court.

On January 24, 1980, plaintiffs' counsel instituted this 
action in the District Court pursuant to Titles VI and VII of 
the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d 
and 2000e et seq; 42 U.S.C. §§ 1981 and 1983; and the Thirteenth 
and Fourteenth Amendments. The complaint charged the defendants 
with unlawful employment discrimination against the plaintiffs 
individually and as representatives of a class of black officers 
and applicants for employment. The complaint also charged the 
defendants with unlawful retaliation against plaintiff Charles 
Baker, a black officer, for filing a charge of discrimination 
and for opposing the defendants' racial discrimination, and 
against plaintiff John Arnold, a white officer, for supporting 
and assisting plaintiff Baker in opposing that discrimination.

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The defendants subsequently informed the Court and 
plaintiffs' counsel that they wished to negotiate a settlement 
of the class claims of discrimination in hiring and promotion, 
but that they would vigorously resist the individual claims of 
plaintiffs Baker and Arnold. (Memorandum Opinion on Plaintiffs' 
Application for an Award of Attorneys' Fees, Costs, and Ex­
penses, March 5, 1982, at 1) (hereinafter "Counsel Fee Opinion"). 
Accordingly, while the parties prepared for a contested hearing 
on the individual retaliation claims, they also proceeded with 
a substantial amount of informal, voluntary discovery concerning 
the claims of discrimination against blacks as a class. On 
March 4, 1980, following a four day hearing on the individual 
retaliation claims, the District Court dissolved the temporary 
restraining order it had previously granted and denied plain­
tiffs' motion for a preliminary injunction. Plaintiffs appealed. 
See Brief for Appellants in Baker and Arnold v. County of 
Jefferson, No. 80-3205 (filed Nov. 14, 1980).

While that appeal was pending in the Sixth Circuit, the 
parties continued their efforts to negotiate a settlement of the 
case as a whole. Those efforts culminated in a consent decree 
which the Court approved on December 18, 1980. That decree 
remains in effect. It provides substantial classwide relief 
for black police officers and applicants as well as individual 
relief for the plaintiffs. In addition to prohibiting unlawful

discrimination and retaliation, the decree requires the defendant 

to take the following affirmative actions: implement a minority

4-



recruitment program; hire one black officer for each white
1/officer hired until at least 13.8%— of the officers on the 

force are black; provide assistance to police recruits in 
recruit school; assure adequate representation of black officers 
in assignments and units throughout the Department; and promote 
black officers to higher ranks in specified ratios until at 
least 13.8% of the officers in each rank are black. (Consent 
Decree, M  1-39). The decree also requires the defendants to 
pay a total of $18,500 to the named plaintiffs in satisfaction 
of their individual claims for monetary relief. (Id./

40) y
The only issues not resolved by the consent decree con­

cerned attorneys' fees, costs, and expenses. (Consent Decree,
1[ 56). Following the District Court's approval of the decree, 
counsel for the parties attempted to settle these issues but 
were unable to reach a negotiated settlement. Therefore, in 
November 1981, counsel for plaintiffs filed their application 
for attorneys' fees, costs, and expenses. The application

1/ According to the 1970 census, blacks accounted for 13.8% 
of the population in Jefferson County and 12.2% of the popula­
tion in the Louisville SMSA. U.S. Bureau of the Census, Census 
Tracts, Louisville, Ky.-Ind. Standard Metropolitan Statistical 
Area, Table P-1 (General Characteristics of the Population:
1970). The Court had found that "only 3% of the persons on the 
Police Force are black, and that only one sergeant is black, and 
that he was just promoted to that status within the last few 
weeks." (Findings of Fact, Conclusions of Law and Memorandum 
Opinion, March 4, 1980, at 4).
2/ Plaintiffs' appeal was subsequently dismissed at the request 
of the parties. (Order Dismissing Appeal, No. 80-3205, Feb. 18, 
1981) .

-5-



requested compensation for all attorney time expended on the case 
through December 31, 1980, and also for all subsequent time 
devoted to implementation of the consent decree and to negotia­
tion and litigation of the claim for counsel fees. Plaintiffs' 
counsel reserved the right to file a supplemental application 
requesting other fees, costs, and expenses.

In support of their fee application, counsel for plaintiffs 
filed detailed time logs and affidavits showing their experience, 
qualifications, and hourly billing rates. The application and 
supporting affidavits show that Juanita Logan Christian, a 
Louisville attorney who was admitted to practice in 1977, 
began working on this case in January 1979. (Christian Affidavit, 
11 2 and Ex. A, p. 1). Ms. Christian, who has some experience in 
civil rights litigation {id., 1M( 3-5), drafted the plaintiffs'
EEOC charges and served as the plaintiffs' principal attorney in 
most of the ensuing litigation and negotiation. (Id. 1(1( 2, 8-9). 
She was assisted by her associate, Lynn M. Bynum, who was 
admitted to practice in 1978. (Bynum Affidavit, 1| 2). Ms. 
Christian received a total of approximately $7,600 from various 
sources as advances on fees, costs, and expenses, with the 
express understanding that she would refund any part of such 
advances subsequently awarded by the Court. (Christian Supp. 
Affidavit, 1M| 2-19) .

Ms. Christian and Ms. Bynum requested base rates of $85 
and $75 an hour, respectively. —^ These rates were well within

3/ Ms. Christian requested an increased hourly rate of $105 for 
36.25 hours of "in-court" time, defined as time spent in depo­
sitions and in court proceedings. Ms. Bynum requested an hourly 
rate of $90 for 0.75 hour of in-court time. (Counsel Fee Appli­
cation, at 4 and Attachment 1).

- 6-



the range of their normal hourly billing rates. (Christian
Affidavit, 1( 6; Bynum Affidavit, 1[ 4) . The requested rates
were also consistent with all the evidence of record regarding

4/the hourly rates of Louisville attorneys generally, — in­
cluding the customary hourly rates charged by counsel for 
defendants. —^

4/ Counsel for plaintiffs filed the affidavits of six local 
attorneys establishing the rates customarily charged by 
Louisville attorneys in 1981 for complex federal litigation. 
Defendants did not file any affidavits or present any other 
evidence contradicting those affidavits. The affidavits may 
be summarized as follows:

Affiant Attorney 
and Law School 
Class

Rate for 
Attorney with 
Less than 3 
Years Ex­
perience

Rate for 
Attorney with 
More than 3 
Years Ex­
perience

Aff iant 
Attorney's 
Rate

0. Barber, 1968 $60-75 $75-100 $ 90-100
F. Haddad, 1952 $60 $80-100 $100-125
G. Helman, 1968 $60-80 $80-100 $ 75 (cases 

not involving 
complex federal 
litigation)

J. Hickey, 1965 - $70-110 $ 80-100
T. Hogan, 1969 $60 $80-100 $ 75-100
S. Manly, 1971 $60 $75-150 $100
5/ In the only affidavit filed by defendants bearing on the issue 
of hourly rates, William L. Hoge, III, an attorney for the defendants 
who was admitted to practice in approximately 1971, stated that his 
"customary hourly fee ranges between $75 and $100 per hour in his 
private practice." (Hoge Affidavit in Support of Defendants' Appli­
cation for Attorney's Fees, 11 7). He also stated that, "since the
time expended by Affiant in the instant matter was due to his 
position as an Assistant Jefferson County Attorney, Affiant believes 
that a fair and reasonable hourly rate [for his services in this 
case] would be $60 per hour." (Id.)

-7-



Before filing this action in the District Court, Ms.
Christian requested the assistance of the NAACP Legal Defense 
and Educational Fund, Inc. (hereinafter "Legal Defense Fund" or 
"LDF"). She made that request because of the Legal Defense 
Fund's institutional expertise and resources, and because of 
the specialized training and experience of its staff attor­
neys in civil rights litigation and employment discrimination 
law. (Christian Affidavit, 11 8). The Legal Defense Fund is 
a New York-based, tax-exempt charitable organization which 
provides specialized legal assistance in civil rights cases.
It has been cited by the Supreme Court for its "corporate 
reputation for expertness in presenting and arguing the 
difficult questions of law that frequently arise in civil 
rights litigation." NAACP v. Button, 371 U.S. 415, 422 (1963). 
The Legal Defense Fund is generally recognized as one of the 
foremost civil rights law firms in the United States; its staff 
attorneys have served as counsel in many landmark employment 
discrimination cases and other civil rights cases decided by 
the Supreme Court and other courts. (Patterson Affidavit,
111! 2-4) .

Legal Defense Fund attorneys began working with Ms. Christian 
on this case in January 1980. (Patterson Affidavit, App. D, at 
1). Patrick 0. Patterson, the principal LDF staff attorney on 
the case, is a 1972 honors graduate of Columbia Law School. He 
has litigated many employment discrimination class actions, has 
lectured at numerous conferences and training programs on 
employment litigation and related topics, and has taught a law

- 8-



school course in employment discrimination law. Since joining 
the staff of the Legal Defense Fund in 1976, he has continued 
to specialize in employment discrimination litigation. (Id.,
111! 12-15 and App. A) .

The Legal Defense Fund requested a base rate of $120 an 
hour for Mr. Patterson's services. The record shows that this 
rate was reasonable and comparable to the hourly rates charged 
for complex federal litigation by attorneys of comparable 
experience and ability in first-class New York firms. (Frankel 
Affidavit, KK 4-5).—/ The record also shows that courts in 
various parts of the country have awarded base rates of $125 to 
$135 an hour for services performed by other LDF staff attorneys 
and by comparable specialists in civil rights litigation. 
(Patterson Affidavit, 11 17 and App. B) . The record further 
shows that the rate requested by LDF in the present case was 
conservative in comparison to the rates typically awarded in

6/ The affidavit of Marvin E. Frankel, who served for 13 
years as a United States District Judge for the Southern 
District of New York and is now a member and managing partner 
of the New York City law firm of Proskauer Rose Goetz & 
Mendelsohn, demonstrates that, for services performed in 
complex federal litigation where payment of counsel fees is 
not contingent upon success in the case, the rates charged 
by New York City law firms in 1981 ranged from $70 to $275 
(or more) per hour. His affidavit also establishes that, 
based on the facts of record concerning Mr. Patterson's 
experience and ability, a current base rate of $120 per hour 
for his services is reasonable and comparable to the rates 
charged by attorneys of comparable experience and ability in 
first-class New York firms.

-9-



antitrust and securities cases. (Id., 11 18 and App. C) ^
The defendants did not dispute any of these facts.

Counsel for plaintiffs requested compensation for a total 
of 836.45 documented hours. (Counsel Fee Application, 
Attachment 1). Their total fee request, including a contin­
gency adjustment of 25%, amounted to $98,431, plus post­
judgment interest. (Id., Proposed Order and Judgment, at 
2). On March 5, 1982, the District Court issued its memo­
randum opinion and entered a judgment awarding less than 
half that amount.—^

The Court held that the plaintiffs were the prevailing 
parties and that their attorneys were therefore entitled to 
an award of fees for all time reasonably expended on the 
case. (Counsel Fee Opinion, at 2-3). The Court also held 
that, with the exception of 3 specific hours of one attorney's 
time, all of the 836.45 hours documented by plaintiffs'
counsel were appropriate and should be compensated. (Id.

9 /at 4-5, 7). — The Court concluded, however, that

7/ Counsel for plaintiffs filed a copy of a recent survey 
of fee awards in antitrust and securities cases which shows 
that, in awards made from approximately 1974 through early 
1980 for which all necessary information is available, the 
average base rate (with no adjustment for inflation) was 
approximately $92.50 per hour, and the average actual rate 
(with no adjustment for inflation) was approximately $165 
per hour. When adjusted for inflation to February 1980, the 
average actual hourly rate was over $200 per hour. Attorney 
Fee Awards in Antitrust and Securities Class Actions, 6 
Class Action Reports 82, 121 (1980). (Patterson Affidavit, 
App. C).
8/ The Court awarded a total of $45,603.79 in fees, without 
interest. (Judgment entered March 5, 1982). The Court 
awarded the full amount of costs and expenses requested by 
plaintiffs' counsel, also without interest. (Id.)
9_/ The Court reduced these hours by 5% to account for dupli­
cation of effort. (Counsel Fee Opinion, at 7).

- 10-



Ms. Christian's rate should be set at only $55 an hour and 
Ms. Bynum's at only $35 an hour. (Id. at 7). — / The Court set
a rate of only $70 an hour for Mr. Patterson's services.
(Id.) — / Furthermore, the Court concluded that plaintiffs'
counsel were not entitled to any contingency adjustment in the 
fees. (Id. at 7-8). Finally the Court failed to direct 
payment of interest on the judgment. (Judgment entered March 
5, 1982). Plaintiffs' counsel filed their notice of appeal on 
March 12, 1982.

ARGUMENT
I. IN MAKING AN AWARD OF FEES WHICH DID NOT COMPENSATE

PLAINTIFFS' COUNSEL FOR THE FAIR MARKET VALUE OF 
THEIR SERVICES IN THIS CIVIL RIGHTS CASE, THE 
DISTRICT COURT ABUSED ITS DISCRETION AND FAILED TO 
COMPLY WITH THE REQUIREMENTS OF THE APPLICABLE 
FEDERAL FEE AWARD STATUTES.
Both Title VII of the Civil Rights Act of 1964 and the 

Civil Rights Attorney's Fees Awards Acts of 1976 provide for an 
award to prevailing plaintiffs of "a reasonable attorney's fee as 
part of the costs." 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988. ' As 
this Court held in its controlling decision in Northcross v. Board 
of Education, Memphis City Schools, 611 F.2d 624, 632 (6th Cir.

10/ The Court set a rate of $75 an hour for Ms. Christian's 
in-court services but compensated only 15.5 hours of her time 
at this rate. (Counsel Fee Opinion at 4, 7-8).
11/ The Court compensated 16.3 hours of Mr. Patterson's time 
at an in-court rate of $95 an hour. (Counsel Fee Opinion, at 
5, 7) .

- 11-



1979, cert, denied, 447 U.S. 911 (1980), ... in making fee awards
in civil rights cases today, courts are no longer applying their 
historical equitable powers to devise an adequate remedy." Instead, 
they are awarding fees pursuant to the express direction of 
Congress:

[R]ather than being an equitable remedy, flexibly 
applied in those circumstances which the court 
considers appropriate, it is now a statutory 
remedy, and the courts are obligated to apply 
the standards and guidelines provided by the 
legislature in making an award of fees. There­
fore, a close examination both of the statute 
itself and its legislative history is necessary.

Id. at 632 (emphasis in original).
In Northcross, this Court undertook such an examination and 

concluded that Congress has "commande[d] the courts to use the 
broadest and most effective remedies available to them to achieve 
the goals of the civil rights laws," id̂ . at 633, and that Congress 
accordingly has mandated fee awards representing "the fair market 
value of the services provided." _Id. at 638. The fundamental 
purpose of the fee award statutes is to provide for effective 
enforcement of the Constitution and civil rights laws by assuring 
reasonable compensation for the lawyers who represent victims of 
civil rights violations. As the Senate Judiciary Committee stated 
in its report on the Civil Rights Attorney's Fees Awards Act of 
1976 (hereinafter "Fees Act"):

[T]he civil rights laws depend heavily upon 
private enforcement, and fee awards have proved an 
essential remedy if private citizens are to have a 
meaningful opportunity to vindicate the important 
Congressional policies which these laws contain.

- 12 -



In many cases arising under our civil rights 
laws, the citizen who must sue to enforce the law 
has little or no money with which to hire a lawyer. 
If private citizens are to be able to assert their 
civil rights, and if those who violate the 
Nation's fundamental laws are not to proceed with 
impunity, then citizens must have the opportunity 
to recover what it costs them to vindicate these 
rights in court.

... "Congress therefore enacted the pro­
vision^] for counsel fees ... to encourage 
individuals injured by racial discrimination to 
seek judicial relief...."

S. Rep. No. 94-1011, 94th Cong., 2d Sess. 2-3 (1976), quoting 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 
(1968) . Accord, New York Gaslight Club, Inc, v. Carey, 447 
U.S. 54, 60-66 (1980) .

Congress enacted these fee-shifting statutes to insure 
"vigorous enforcement of ... civil rights legislation, while 
at the same time limiting the growth of the enforcement 
bureaucracy." S. Rep. No. 94-1011, at 4. As the House 
Judiciary Committee stated in its report on, the Fees Act:

The effective enforcement of Federal civil 
rights statutes depends largely on the efforts of 
private citizens. Although some agencies of the 
United States have civil rights responsibilities, 
their authority and resources are limited. In 
many instances where these laws are violated, it 
is necesssary for the citizen to initiate court 
action to correct the illegality. Unless the 
judicial remedy is full and complete, it will 
remain a meaningless right. Because a vast 
majority of the victims of civil rights violations 
cannot afford legal counsel, they are unable to
present their cases to the courts___  [The Fees
Act] is designed to give such persons effective 
access to the judicial process where their grievances 
can be resolved according to law.

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 1 (1976). See also
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 338-39

-13-



(1980) . 12/

Congress was aware that the victims of civil rights 
violations often could not vindicate their rights in court 
because they were unable to obtain counsel. Citing evidence 
that "private lawyers were refusing to take certain types of 
civil rights cases because the civil rights bar, already 
short of resources, could not afford to do so," the House 
Committee found a "compelling need" for the Fees Act. H.R.
Rep. No. 94-1558, at 3. Congress thus concluded that the 
Act was necessary to "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. As this Court recognized in Northcross, "[t]he 
entire purpose of the statutes was to ensure that the repre­
sentation of important national concerns would not depend upon 
the charitable instincts of a few generous attorneys." 611 
F .2d at 638.

The legislative history of the fee award statutes requires 
that they be construed "[i]n accordance with the[ir] broad

12/ In the present case it is clear that the plaintiffs' 
Tnjuries were not remedied by the regulatory action of govern­
ment, and that those injuries would have continued if plaintiffs' 
counsel had not filed this private enforcement action. Be­
ginning in April 1979, the plaintiffs filed a series of 
administrative charges of discrimination with the Equal Employ­
ment Opportunity Commission. (Complaint, 11 13 and Ex. A-C) . But 
no corrective action was taken until after this lawsuit was filed 
in January 1980. As the District Court found, "Jefferson County 
had not changed its policies with regard to blacks until this 
lawsuit was filed and, therefore, it cannot validly complain that 
the suit was not necessary in order to effectuate the settlement 
which resulted." (Counsel Fee Opinion, at 3-4).

-14-



See alsoremedial purpose." Northcross, 611 F.2d at 633.
Seals v. Quarterly County Court. 562 F.2d 390, 393 (6th Cir. 
1977); Gates v. Collier, 616 F.2d 1268, 1275 (5th Cir.
1980). Following the mandate of Congress, this Court in 
N°rthcross adopted "a logical, analytical framework which 
should largely eliminate arbitrary awards based solely on a 
judge's predispositions or instincts." 611 F.2d at 643.
This analytical approach is designed to insure that attorneys 
are compensated for the fair market value of their services, 
by requiring district courts to make reviewable determinations 
of: (1) the hours of service provided; (2) reasonable
hourly rates for the services provided by particular attorneys; 
and (3) appropriate adjustments to insure that the fee is 
reasonable in view of special circumstances, including the 
fact that receipt of an award is contingent upon success in 
the case. Id. at 636-39. As the Court concluded, "[f]ocusing 
on the fair market value of the attorney's services will 
best fulfill the purposes of the Fees Awards Act, by providing 
adequate compensation to attract qualified and competent 
attorneys without affording any windfall to those who undertake 
such representation." Id. at 638. — /

In some respects, the District Court in the present case 
properly applied the statutory requirements imposed by Congress 
That Court held, for example, that in obtaining a consent

13/ Other Circuits have adopted substantially similar approaches 
to the calculation of counsel fees under federal fee award 
statutes. See Lindy Bros. Builders, Inc, v. American Radiator &

City ofStandard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973)
Detroit v. Grinnell Corp.. 560 F.2d 1093 (2d Cir. 1977)
~ _BishoP ' 635 F.2d 915 (1st Cir. 1980); Copeland v. MarsKlll.

(en banc); Anderson v. Morris,
, 635 F .2d 915 
(D.C. Cir. 1980 
(4th Cir. 1981).

at

Furtado
F.2d 880 
F.2d 246 
Fees in Class Actions,

"641
658

See generally a . Miller, Attorneys' 
60-184 (Federal Judicial Center 1980)
-15-



decree providing substantial classwide and individual relief, 
the plaintiffs became the prevailing parties and were 
therefore entitled to an award of fees. (Counsel Fee Opinion, 
at 2-3). See Maher v. Gagne, 448 U.S. 122, 129 (1980).
Moreover, since the plaintiffs were the prevailing parties 
in the case as a whole, the District Court correctly held 
that they were entitled to an award of fees for all time rea­
sonably expended on the case, and that the defendants were 
not entitled to any award of fees. (Counsel Fee Opinion, 
at 2-3). See Northcross, 611 F .2d at 635-36. The Court 
further held that, with the exception of 3 specific hours of 
one attorney's time, all of the 836.45 hours documented by
plaintiffs' counsel were appropriate and should be compensated.

14/(Counsel Fee Opinion, at 4-5,7). See Northcross, 611
F.2d at 636-37. Finally, the Court awarded the full amount 
of plaintiffs' costs and expenses. (Counsel Fee Opinion, at 
8). See Northcross, 611 F.2d at 639-40.

In other respects, however, the District Court failed 
to comply with the standards and guidelines established by 
Congress. The Court set hourly rates which were far below 
the market value of the services provided by plaintiffs' Louisville 
attorneys, as measured by either their normal hourly rates or the 
prevailing rates customarily charged by comparable Louisville 
attorneys for similar services. See Section II, infra. 
Additionally, although the Court set higher rates for in­
court than for out-of-court services, it failed to compensate

14/ The District Court reduced these hours by 5% to account for 
duplication of effort. (Counsel Fee Opinion, at 7). This 
reduction was permissible under Northcross, 611 F.2d at 636-37.

-16-



plaintiffs' Louisville counsel at the higher rate for all 
documented in-court services. Id. The Court also substantially 
undervalued the services performed by plaintiffs' Legal Defense 
Fund counsel, setting rates which were unreasonably low in view 
of (a) the individual LDF staff attorney's background and 
experience as a specialist in employment discrimination cases,
(b)ithe Legal Defense Fund's institutional resources and expertise, 
and (c) the prevailing rates customarily charged by comparable 
attorneys and national law firms for similar services. See 
Section III, infra. Furthermore, the Court failed to make any 
adjustment in the fees to account for the fact that recovery 
of fees was contingent upon success in the case. See Section IV, 
infra. Finally, the Court failed to direct payment of post­
judgment interest on any of the fees, costs and expenses awarded 
to plaintiffs' counsel. See Section V, infra. As a result of 
these errors by the District Court, plaintiffs' counsel have 
been deprived of the fair market value of the services they 
provided in this case.
II. THE FEES AWARDED TO PLAINTIFFS' LOUISVILLE ATTORNEYS 

WERE BASED ON HOURLY RATES FAR BELOW THE FAIR MARKET 
VALUE OF THEIR SERVICES.
A. The Rates Set by the District Court Were Contrary 

to All the Evidence in the Record Establishing 
Reasonable Hourly Rates.

In Northcross, this Court held that hourly rates should 
reflect

the fair market value of the services provided.
In most communities, the marketplace has set a 
value for the services of attorneys, and the 
hourly rate charged by an attorney for his or her 
services will normally reflect the training, 
background, experience and skill of the individual 
attorney. For those attorneys who have no private 
practice, the rates customarily charged in the 
community for similar services can be looked to 
for guidance.

-17-



611 F .2d at 638.
In accordance with the guidance provided by Northcross, 

plaintiffs' Louisville attorneys, Juanita Logan Christian 
and Lynn M. Bynum, submitted evidence in the present case 
establishing both the hourly rates they normally charged 
paying clients in their private practice and the rates com­
parable Louisville attorneys customarily charged clients for 
similar services. The base rates they requested in this case 
—  $85 an hour for Ms. Christian and $75 an hour for Ms.
Bynum —  were well within the range of their normal hourly 
rates, and were also consistent with all the evidence of 
record regarding the hourly rates charged by Louisville 
attorneys generally, including the customary rates charged 
by counsel for the defendants in this case. See pp. 6-7, 
supra. The defendants did not offer any evidence disputing 
the reasonableness of the requested rates. Yet the District 
Court refused to award the rates supported by the record, 
and instead set rates of only $55 an hour for Ms. Christian 
and only $35 an hour for Ms. Bynum. (Counsel Fee Opinion, at 
7) .

Another court in this Circuit was recently confronted 
with essentially the same situation. In Jones v.Federated 
Department Stores, Inc., 527 F. Supp. 912 (S.D. Ohio 1981), 
attorneys for the prevailing plaintiffs in a Title VII case 
had submitted a fee application to the magistrate to whom 
the case had been referred. In support of their application, 
plaintiff's attorneys in that case filed affidavits regarding 
their hourly rates. In addition, another attorney testified 
that the rates requested by plaintiff's counsel were in line

-18-



with the rates generally charged by other Dayton attorneys 
with comparable experience. 527 F. Supp. at 919. The de­
fendants did not offer any evidence regarding hourly rates.

The magistrate in Jones, like the District Court in the 
present case, did not accept the rates established by the 
record, opting instead for lower hourly rates. The court in 
Jones reversed this determination as clearly erroneous.
Like the District Court here, the magistrate in Jones 
"committed error when he failed to rely on, or at least 
distinguish, the only evidence in the record ... indicating 
the 'fair market value of the services provided.'" 527 F.
Supp. at 919 (emphasis in original), quoting Northcross, 611 
F.2d at 638. As in the present case, the magistrate in Jones 
not only "failfed] to discuss, rely upon or distinguish [the 
evidence establishing prevailing rates in the community]
..., but he failed to discuss and distinguish the figures 
proferred by the attorneys themselves." Id. Like the rates 
set by the magistrate in Jones, the rates set by the District 
Court in the present case are not supported by any evidence 
in the record and must therefore be reversed.

B . The Rates Set by the District Court for Services 
Performed in this Case in 1979-1981 Were 
Inherently Unreasonable Because They Were Based on 
Rates Previously Awarded in a Different Case for 
Services Performed in 1974-1979.

Rather than relying on the uncontroverted evidence in the 
case at bar to determine reasonable current hourly rates, the 
District Court turned instead for guidance to its prior decision 
awarding fees for a different period of time in the Louisville 
Black Police case. (Counsel Fee Opinion, at 5-6). That decision, 
as noted above, is presently before this Court on appeal.

-19-



In the Louisville Black Police case, plaintiffs' counsel
requested fees for services performed from 1974 to 1979. In its 
initial counsel fee opinion in that case, the District Court set 
hourly rates for attorneys in three different categories: (1) 
"inexperienced," zero to two years of experience; (2) "intermediate," 
two to seven years; and (3) "fully experienced," more than seven 
years. (Appendix in Nos. 81-5466/5491, at 333). The Court further 
held that, for the period 1974 to 1979, the "inexperienced" attorney 
rates were $40 an hour for office work and $56 an hour for in-court 
work; the "intermediate" rates were $50 an hour for office work and 
$70 an hour for in-court work; and the "fully experienced" rates 
were $65 an hour for office work and $90 an hour for in-court work. 
(Id. at 333-34) /

Plaintiffs' counsel contended in Louisville Black Police that, 
due to the effects of inflation in the intervening years, an award 
of fees in 1981 based on these 1974-1979 rates would not compensate 
them for the fair market,, value of their services. They argued that 
the District Court was required under Northcross either to adjust 
these historical rates directly to reflect the annual increase in 
the Consumer Price Index, or in the alternative to award fees for 
past services at the attorneys' present hourly rates. (See Brief
for Plaintiffs-Appellants in Nos. 81-5466/5491, at 22-34). The/
District Court rejected both approaches, holding as follows:

We find no indication that Nor thcross gives 
the District Court the "either-or" alternative of 
adding an inflation factor into attorney fee 
awards, or granting fees based on the present value of

15/ The Court held that Deborah M. Greenberg, a Legal Defense Fund 
attorney who graduated from law school in 1957, did not fall within 
any of these categories. She was awarded $75 an hour for office 
work and $106 an hour for in-court work. (Appendix in Nos. 81- 
5466/5491, at 332-33).

- 20-



comparable work by the same attorneys. ... [W]e 
found in our memorandum opinion of February 12,
1981 that the Louisville Black Police attorneys 
have been fairly and adequately compensated without 
the addition of an inflation factor or the use of 
a present-value based calculation....

(Appendix in Nos. 81-5466/5491, at 432). Thus, in its
Louisville Black Police opinions the Court made it very clear that
it was awarding fees on the basis of rates that it found to be
reasonable for the period 1974-1979.

In its opinion in the present case, however, the District
Court described its Louisville Black Police decision as follows:

This Court held in Louisville Black Police 
Officers' Organization v. City of Louisville, 
supra, that $40 per hour represents a reasonable 
figure to use for attorneys who are in their 
first two years of practice. We then went on to 
hold that persons with two to seven years might 
be considered as having intermediate experience 
and being entitled to fees of $65 per hour 
for out-of-court work, and $90 per hour for 
in-court work. For those persons who had 
more than seven years of experience, we 
regarded them as being fully experienced, and 
entitled to, and in the case of Deborah Greenberg 
who met that qualification, an award of $75 for 
out-of-court work and $106 per hour for in-court 
work was appropriate [sic].

(Counsel Fee Opinion, at 5-6). Stating that the Louisville Black 
Police case "had lasted for almost six years and ... had been 
bitterly contested," the Court then found that the "[r]epresen- 
tation afforded by counsel, in that case, in effect made it much easier 
for counsel in the case at bar, and basically narrowed their 
representation to the objective of obtaining a fair settlement 
based on the settlement that had been reached in Louisville 
Black Police ... and in [sic] attempting to secure for Baker and 
Arnold more favorable treatment than they had been accorded by
the Jefferson County Police Department." (Id. at 6). Contrary

- 2 1 -



to the Court's statement, however, no settlement had been
reached in the Louisville Black Police case at the time the 
present action was filed in January 1980; in fact, the parties 
did not submit their proposed consent decree in Louisville 
Black Police until May 1980, and the Court did not approve 
that decree until September 1980. (Appendix in Nos. 81- 
5466/5491, at 23-24). The District Court's finding in this 
regard is clearly erroneous.

In setting hourly rates in the present case, the District 
Court stated that it was following the three-category approach 
it had adopted in the Louisville Black Police case. The Court 
found that Ms. Christian passed from "inexperienced" to 
"intermediate" in May 1979, that Ms. Bynum made this transition 

in October 1980, and that Mr. Patterson became "fully experienced" 
in 1979. (Counsel Fee Opinion, at 6-7). The Court then held 
that, "[b]ecause of the difference in the amount of difficul­
ties incurred" in the present case as compared to the Louisville 

16/Pol ice case, — ' the following rates were appropriate: $35
an hour for work done by Ms. Bynum, $55 an hour for out-of- 
court work and $75 an hour for in-court work done by Ms. Christian, 
and $70 an hour for out-of-court work and $95 an hour for in-court 
work done by Mr. Patterson. (Id̂ .) — ^ The Court failed to note
that in the present case it was awarding fees for services performed 
in 1979-1981, whereas in Louisville Black Police it had awarded

16/ The Court stated that it had also considered the affidavits 
of record in the present case. (Counsel Fee Opinion, at 7).
However, the rates it awarded were far below the rates 
established by those uncontroverted affidavits.
17/ The Legal Defense Fund had requested a rate of $120 an 
hour for Mr. Patterson's services. See Section III, infra.

- 2 2 -



fees at substantially the same rates for services performed 
in 1974-1979.— ^ As set forth above, the Court in Louisville Black 
Pol ice had held that those rates were appropriate for work done in 
that period, and had explicitly refused either to directly adjust 
those rates for inflation or to award current rates. (Appendix in 
Nos. 81-5466/5491, at 432).

Thus, for services performed from 1979 to 1981 in the present 
case, plaintiffs' counsel were not compensated on the basis of the 
reasonable current hourly rates established by the uncontroverted 
evidence in the record. Instead, they were compensated on the 
basis of rates which the District Court had previously found to be 
reasonable in a different case for the period 1974-1979. Nothing in 
the present record —  or in the Louisville Black Police record, for 
that matter -- justifies the use of those rates in this case. 
Indeed, due to inflation, the use of 1974 rates to compensate 
plaintiffs' counsel for work they did in 1979-1981 is inherently 
u n r e asonable^

18/ The hourly rate set for Ms. Bynum work in the present case was 
$15 an hour less than the "intermediate" rate and $5 an hour less 
than the minimum "inexperienced" rate set for the period 1974-1979 
in the Louisville Black Police case. The rates awarded for Ms. 
Christian's and Mr. Patterson's work in the present case were each 
$5 above the corresponding rates set for "intermediate" and "fully 
experienced" attorneys, respectively, in the Louisville Black Police 
case. See p. 20, supra.
19/ The Consumer Price Index, based on a scale of 100 in 1967, 
increased from 147.7 in 1974 to 272.3 in 1981. U.S. Department of 
Labor, Bureau of Labor Statistics, 105 Monthly Labor Report at 85, 
Table 19 (May 1982). Thus, the 1967-based consumer dollar was 
worth 67.8 cents in 1974; by 1981, its value had declined to 36.7 
cents. Conversely, a 1981 dollar would buy only as many goods and 
services as 54 cents bought in 1974. Accordingly, as of 1981, the 
hourly rate awarded to Ms. Christian in the present case ($55) was 
equivalent to a rate of $29.70 awarded in 1974, and the hourly rate 
awarded to Ms. Bynum ($35) was equivalent to a rate of $18.90 
awarded in 1974.

-23-



c. The Rates Set by the District Court Were Contrary 
to the Requirements of the Federal Fee Award Statutes.

The legislative history of the Fees Act demonstrates that 
the overriding purpose of the fee award statutes is to encourage 
private enforcement of the civil rights laws "by providing 
adequate compensation to attract qualified and competent attorneys 
without affording any windfall to those who undertake such 
representation." Northcross, 611 F.2d at 638. See Section I, 
supra. As Congress recognized, reasonable hourly rates are an 
essential element of adequate compensation.

The Senate Judiciary Committee's report on the Fees Act 
cited three cases as illustrative of the proper application of 
the standards governing the amount of fees: Stanford Daily v. 
Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v. County of Los 
Angeles, 8 EPD 1[ 9444 (C.D. Cal. 1974) ; and Swann v. Charlotte- 
Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C. 1975).
S. Rep. No. 94-1011, at 6. In Stanford Daily, the court held 
in 1974 that $50 was a reasonable hourly rate for work performed 
from 1971 to 1974. 64 F.R.D. at 685. In Davis, the court
held in 1974 that rates ranging from $35 to $60 an hour were 
reasonable for work performed in 1973 and 1974. 8 EPD at p.
5048. In Swann, the Court awarded fees in 1975 at an effective 
rate of $65 an hour for work done from 1968 through 1974. 66
F.R.D. at 486. These rates translate into the following amounts 
in 1981 dollars: Stanford Daily, $92 an hour; Davis, $65-$lll 
an hour; Swann, $110 an hour. — 7 Congress determined that

20/ Between 1974 (the year the awards were made in Stanford 
Daily and Davis) and 1981, the Consumer Price Index increased 
by a factor of 1.844, from 147.7 to 272.3. Between 1975 (the
year the award was made in Swann) and 1981, the Index increased
by a factor of 1.689, from 161.2 to 272.3. U.S. Department
of Labor, Bureau of Labor Statistics, 105 Monthly Labor Report 
at 85, Table 19 (May 1982). The rates awarded in 1974 and 
1975 are multiplied by the applicable factor to convert them 
to 1981-dollar equivalents. -24-



the fees awarded in these cases were "adequate to attract 
competent counsel, but ... do not produce windfalls to attorneys." 
S. Rep. No. 94- 1011, at 6.

Congress also determined that "the amount of fees awarded 
under [the Fees Act should] be governed by the same standards 
which prevail in other types of equally complex Federal litigation, 
such as antitrust cases ...," S. Rep. No. 94-1011, at 6, and 
that "civil rights plaintiffs should not be singled out for 
different and less favorable treatment." H.R. Rep. No. 94-1558, 
at 9. See Northcross, 611 F.2d at 633. As the survey submitted 
by plaintiffs demonstrates, the rates requested in the present 
case were modest in comparison to the average actual rate of 
over $200 an hour awarded in antitrust and securities litigation. 
See p. 10, supra. The defendants did not offer any evidence 
contradicting the findings of this survey. Nevertheless, the 
District Court made no reference to it —  or to any of the 
other record evidence —  when it set the hourly rates in this 
case.

Finally, Congress determined that attorneys for prevailing 
civil rights plaintiffs should be paid in the same manner as 
attorneys compensated by fee-paying clients. See S. Rep. No. 
94-1011, at 6. As a rule, attorneys who win major cases are 
able to command higher hourly rates when they represent fee­
paying clients in subsequent cases involving similar issues.
Their clients recognize that, as a result of their experience 
in earlier cases, their familiarity with the issues involved, 
and the precedential value of their previous victories, such 
attorneys are able to use their time more productively and to

-25-



achieve favorable results without expending as many hours as 
might otherwise be required. Cf. Northcross, 611 F.2d at 
637.

The District Court recognized that its prior decision
in Louisville Black Police had that effect in the present
case. The defendants here were aware of that decision, and
" [w]ith this knowledge at hand, defendants not only indicated
their willingness to settle the case very early on, but also
made unnecessary the taking of extensive discovery ...."
(Counsel Fee Opinion, at 3). Thus, in part because plaintiffs'
counsel had prevailed after six years of "bitterly contested"
litigation in the Louisville Black Police case, the present
case was resolved in a relatively short period of time, with

21/a comparatively small number of attorney hours. —  (Id. at 
6 ) .

However, instead of recognizing that the market value 
of the services provided by plaintiffs' attorneys had, if 
anything, increased as a result of their success in the 
Louisville Black Police case, the District Court held that 
their hourly rates should be reduced "[b]ecause of the 
difference in the amount of difficulties" in that case as 
compared to this one. (Counsel Fee Opinion, at 6). Thus, 
plaintiffs' counsel were penalized because they had prevailed 
in the earlier case, and defendants received a windfall:

21/ In the present case, plaintiffs' counsel requested 
compensation for a total of 836.45 hours. In their first fee 
application in the Louisville Black Police case, they requested 
compensation for 4,511.25 hours. (Appendix in Nos. 81-5466/5491, 
at 66). In a second application now pending before the District 
Court in that case, they have requested compensation for an 
additional 3,693.2 hours.(Second Application for Award of 
Interim Attorneys' Fees, Costs and Expenses in Civil Action 
No. C 74-106L(A), dated March 19, 1982).

-26-



not only did they pay for far fewer attorney hours as a result 
of the prior litigation, but they paid for those hours at 
less than full market value.

In sum, the rates set by the District Court did not 
reflect the fair market value of the services provided by 
plaintiffs' Louisville attorneys. Ignoring all the relevant 
evidence in the record and disregarding the intent of Congress, 
the District Court entered an "arbitrary award ... based solely 
on a judge's predispositions or instincts." Northcross, 611 
F.2d at 643. This is precisely what the federal fee award 
statutes and this Court's decision in Northcross were designed 
to prevent.

D. The District Court Failed to Compensate
Plaintiffs' Louisville Counsel at a Higher 
Rate for All Documented In-Court Services.
Ms. Christian requested a higher "in-court" hourly 

rate for 36.25 documented hours she had spent in court and in 
depositions. The District Court awarded a rate of $75 an 
hour for Ms. Christian's in-court time, as compared to $55 an 
hour for her other time (Counsel Fee Opinion, at 7), but com­
pensated only 15.5 hours of her time at the higher hourly rate. 
(Id. at 4, 8) .

While the District Court described only 15.5 hours of her 
time as being "spent in court at trial" (id. at 4), the record 
shows that Ms. Christian spent a total of 22.5 hours in court 
at trial between February 4 and February 8, 1980. (Christian 
Affidavit, Ex. A (1980), at 2). The remainder of the time for

-27-



which she claimed an in-court rate was also fully documented. —  

The District Court did not explain why it had refused to award 
the full number of documented hours at the in-court rate, nor 
did it identify the hours it had disallowed. This arbitrary 
reduction in fees was not permissible under Northcross. See 
611 F .2d at 637.
III. THE FEES AWARDED TO THE LEGAL DEFENSE FUND WERE 

BASED ON HOURLY RATES FAR BELOW THE FAIR MARKET 
VALUE OF THE SERVICES IT PROVIDED IN THIS CASE.

The Legal Defense Fund requested a base rate of $120 an 
hour for the work done in this case by one of its staff attorneys, 
Patrick 0. Patterson. In support of that request, the applicants 
submitted the following: (1) Mr. Patterson's affidavit des­
cribing his qualifications and experience as a specialist in 
employment discrimination litigation; (2) the affidavit of former 
District Judge Marvin E. Frankel, establishing that the requested 
rate was reasonable and comparable to the hourly rates charged by 
attorneys of comparable experience and ability in first-class New 
York law firms; (3) recent decisions from various parts of the 
country awarding base rates of $125 to $135 an hour for services 
performed by LDF staff attorneys and by comparable specialists in 
civil rights litigation; and (4) a survey demonstrating that the 
rate requested by the Legal Defense Fund was conservative in 
comparison to the rates typically awarded in antitrust and 
securities cases. See pp. 8-10, supra. Although the defendants

22/ This remaining time consisted of the following: a hearing 
on plaintiffs' motion for a temporary restraining order (Jan. 
25); five depositions (Jan. 31); two conferences with the Court 
(Feb. 8, Dec. 18); and an oral argument on plaintiffs' motion 
for a preliminary injunction (Feb. 20). (Christian Affidavit, 
Ex. A (1980), at 1-7; Ex. A (1980-81), at 1).

-28-



did not dispute any of these facts, the District Court refused to 
award the rate supported by the record. Instead, it compensated 
Mr. Patterson's time at a rate of $70 an hour. (Counsel Fee 
Opinion, at 7). — ^

For the reasons set forth in section II of this brief, 
supra, the District Court erred with respect to all of 
plaintiffs' attorneys in setting hourly rates which were not 
supported by the record in this case and were inconsistent with 
the intent of Congress. In compensating the Legal Defense Fund 
for its services at a rate of only $70 an hour, the District 
Court compounded these errors by failing to recognize that the 
services of LDF specialists in civil rights cases have a higher 
market value than the services of most other lawyers in such cases.

The Legal Defense Fund is a "nonprofit organization 
dedicated to the vindication of the legal rights of blacks and 
other citizens." Gulf Oil Co. v. Bernard, 101 S.Ct. 2193, 2199 
n.ll (1981). The Supreme Court and other courts have long 
recognized the Fund's "corporate reputation for expertness in 
presenting and arguing the difficult questions of law that 
frequently arise in civil rights litigation." NAACP v. Button,
371 U.S. 415, 422 (1963). As a result of the Fund's long 
involvement in civil rights cases and the specialization of its 
staff attorneys, the Fund has acquired an institutional expertise 
that makes its time more valuable than the time of most private 
attorneys in such cases. As this Court stated in Northcross;

23/ The Court compensated 16.3 of Mr. Patterson's hours at an 
in-court rate of $95 an hour. (Counsel Fee Opinion, at 7).

-29-



The services provided by the Legal 
Defense Fund clearly had to be provided by 
someone, and in fact, the attorneys' 
intimate familiarity with the issues in­
volved in desegregation litigation 
undoubtedly meant that their time was far 
more productive in this area than would 
be that of a local attorney with less 
expertise.

611 F .2d at 637.
The Legal Defense Fund has the same intimate familiarity 

with the issues involved in employment discrimination litigation. 
Indeed, Ms. Christian asked the Fund for assistance in the present 
case precisely because of its institutional expertise and resources, 
and because of the specialized training and experience of its 
staff attorneys in civil rights litigation and employment dis­
crimination law. (Christian Affidavit, 1[ 8). The record shows 
that the Fund played a crucial role in this case. (See Patterson 
Affidavit, 1[ 20). The District Court characterized Mr. Patterson's 
role as that of "lead counsel" in the case. (Counsel Fee 
Opinion, at 5).

In enacting the Fees Act in 1976, Congress intended to 
insure that, when public interest organizations provide legal 
services such as those provided by the Legal Defense Fund in the 
present case, they will receive fee awards representing the full 
market value of their services. As noted above, the Senate Report 
listed three decisions as examples of the proper application of 
standards governing the amount of fees. S. Rep. No. 94- 1011, at 
6. Each of these decisions expressly held that fees should not 
be denied or reduced because the plaintiffs were represented by 
public interest attorneys. Stanford Daily v. Zurcher, supra,64

-30-



F.R.D. at 681; Davis v. County of Los Angeles, supra, 8 EPD at 
pp. 5048-49; Swann v. Charlotte-Mecklenburg Board of Education, 
supra, 66 F.R.D. at 486. The House Report also cited three such 
cases with approval, H.R. Rep. No. 94-1558, at 8 n.16, including 
this Court's decision in Incarcerated Men of Allen County Jail v. 
Fair, 507 F.2d 281, 286 (6th Cir. 1974) (a full award of fees 
"serves its purpose— to prevent worthy claimants from being 
silenced or stifled because of a lack of legal resources--whether 
it goes to private or 'public' counsel"). See also Fairley v. 
Patterson, 493 F.2d 598, 607 (5th Cir. 1974); Torres v. Sachs, 69 
F.R.D. 343 (S.D.N.Y. 1975), aff'a, 538 F.2d 10 (2d Cir. 1976).
As the Supreme Court has concluded, "Congress endorsed such 
decisions allowing fees to public interest groups when it was 
considering, and passed, the [Fees Act], which is legislation 
similar in purpose and design to Title VII's fee provision."
New York Gaslight Club, Inc, v. Carey, 447 U.S. 54, 70-71 n.9 
(1980). See also Copeland v. Marshall, supra, 641 F.2d at 
899-900.

The legislative history of the Fees Act further demon­
strates that the Legal Defense Fund should be compensated at rates 
which recognize the individual and institutional expertise of its 
attorneys. The Senate Report cited Johnson v. Georgia Highway 
Express, Inc., 488 F .2d 714 (5th Cir. 1974), as providing appro­
priate standards for fee awards. S. Rep. No. 94-1011, at 6. 
Johnson, in which the plaintiffs were represented by LDF attorneys, 
states that "[a]n attorney specializing in civil rights cases may 
enjoy a higher rate for his expertise than others, providing his

-31-



ability corresponds with his experience." See also Stanford 
Daily v. Zurcher, supra, 64 F.R.D. at 684 (attorneys should be 
compensated for "specialized knowledge of civil rights 
litigation")? Davis v. County of Los Angeles, supra, 8 EPD at p.
5048 (awarding a higher hourly rate to "an able and experienced 
litigator in employment discrimination cases").

The District Court in the present case failed to follow 
the instructions of Congress. The record here shows that plain­
tiffs’ LDF counsel was a highly qualified and experienced 
specialist in employment discrimination litigation, and that he 
played a leading role in this case. As other courts have recog­
nized, these facts justify a higher hourly rate than would 
otherwise be appropriate. See, e.g., Chrapliwy v. Uniroyal, Inc.,
670 F.2d 760, 764, 769 (7th Cir. 1982) (New York City and 
Washington, D.C., attorneys specializing in employment discrimination 
litigation entitled to hourly rates of $200 and $175, respectively); 
Hedrick y. Hercules, Inc., 658 F.2d 1088, 1097 (5th Cir. 1981) 
(Gadsden, Alabama, attorney with special expertise and experience 
in employment discrimination cases entitled to rate of $120 an 
hour) .

Moreover, as a staff attorney at the Legal Defense 
Fund, plaintiffs' LDF counsel brought with him the institutional 
expertise and experience of the Fund as a whole. Mr. Patterson 
was able to draw on the Fund's institutional expertise and

-32-



24/resources throughout his involvement in this case, —  and 
therefore his time was "far more productive in this area than 
would be that of a local attorney with less expertise." 
Northcross, 611 F.2d at 637. Thus, the fair market value of Mr. 
Patterson's services cannot properly be determined without 
considering both his individual qualifications and experience and 
the institutional expertise and resources of the Legal Defense 
Fund itself.

The District Court further erred in limiting its focus 
to the local Louisville market rather than determining the value 
of the Legal Defense Fund's services in the context of the 
national market in which its attorneys practice. As this Court 
recognized in Northcross, Congress mandated that the amount of 
fees to be awarded under the Fees Act should be governed "by the 
same standards which prevail in other types of equally complex 
Federal litigation, such as antitrust cases," and should not be 
reduced because the rights involved may be nonpecuniary in 
nature. 611 F.2d at 633, quoting S. Rep. No. 94-1011, at 6.
Thus, plaintiffs in civil rights cases, like plaintiffs in 
antitrust cases, cannot be limited to their local area in 
obtaining legal representation, but are entitled to be repre­
sented by the civil-rights equivalent of national law firms with 
special expertise in such cases. In order to effectuate the 
intent of Congress, the attorneys and organizations that provide 
such specialized services must be compensated at rates which take

24/ Other LDF attorneys reviewed documents and conferred with 
Mr. Patterson on the case, but no compensation was claimed for 
their services. (Patterson Affidavit, 1[ 21).

-33-



into account not only their reputation and expertise, but also 
the nature and location of their practice and the prevailing 
rates charged by comparable firms for comparable services.

A recent study of counsel fee awards in class actions, 
commissioned by the Federal Judicial Center, includes detailed 
consideration of the problems raised by the existence of varying 
rates for legal services throughout the country. The study found 
in part that,

. . . if the schedule for the community 
where the litigation takes place is 
chosen, some attorneys may be compensated
at rates much higher or lower than they 
normally would command. This system 
might contribute to inequities in the 
availability of high quality legal 
services. For example, an experienced 
and successful attorney from a major 
urban area might be unwilling to take a 
case in a rural community if he or she 
knew the rate of compensation would be 
much lower than what could be earned at 
home . . . .

A. Miller, Attorneys' Fees in Class Actions, at 365-66 (Federal 
Judicial Center 1980) (footnote omitted).

This is precisely what happened in the present case: 
the services of a specialized staff attorney from the Legal Defense 
Fund's New York City office were compensated at far lower rates 
than the Fund could obtain for the services of that same attorney 
in New York and many other parts of the country. If the Legal 
Defense Fund and other civil rights law firms are not permitted 
to recover the fair market value of their services, their ability 
to provide effective legal assistance to vindicate federally 
protected rights will be significantly impaired. The purposes of

-34-



the federal fee award statutes will not be served by reducing 
counsel fee awards and thereby limiting the activities of such 
organizations. To the contrary, those purposes are advanced by 
the involvement of the Legal Defense Fund and similar 
organizations in as many cases as possible. The low rates 
awarded to the Fund in the present case therefore frustrate

25/the intent of Congress. —
The Federal Judicial Center study concluded that the 

problem of geographic variations in rates could be solved, to 
some extent,

... by interpreting the concept of community 
standard as including both geography and the 
substantive law character of the case. Rates 
within areas of specialization of legal 
practice do not vary as much among regions of 
the country as do fee rates in general. Fo­
cusing on the rates within the specialization 
reduces the problem of varying community 
rates.

Attorneys' Fees in Class Actions, supra, at 366. See also, id. 
at 9, 364.

The Seventh Circuit recently adopted this solution in 
Chrapliwy v. Uniroyal, Inc., supra. There the attorneys for the 
prevailing plaintiffs in a Title VII case litigated in South 
Bend, Indiana, included employment discrimination specialists 
from New York and Washington, D.C., as well as local counsel. 
They requested rates ranging from $175-$200 an hour for the

25/ The Legal Defense Fund is a private, nonprofit organiza­
tion funded primarily by tax-deductible contributions from private 
individuals. In recent years, following the enactment of the Fees 
Act of 1976, counsel fee awards and settlements in cases litigated 
by LDF staff attorneys have also provided a significant source of 
funds for LDF's program, comprising approximately 12 percent of 
its income in 1978 and 1979, and over 20 percent of its income in 
1980. (Patterson Affidavit, 11 6). If this important source of 
income were curtailed, LDF would have to devote more of its efforts 
to raising funds and less to litigating civil rights cases.

-35-



specialists down to $50-$70 an hour for the local attorneys.
670 F.2d at 764. The district court held that the New York 
and Washington attorneys were limited to recovering local 
rates, and awarded them $50-$75 an hour. Id. at 768.

The Seventh Circuit reversed, holding that the district 
court had "erred as a matter of law in limiting the hourly 
rates to local rates charged in the South Bend area." 670 
F.2d at 768. The court held that Congress did not intend to 
limit civil rights plaintiffs to their local area in obtaining 
representation; to the contrary, Congress intended to encourage 
plaintiffs to go elsewhere if it was necessary to do so in 
order to find attorneys with the requisite degree of skill and 
expertise. I_d. at 768-69. As the court stated:

. Attorneys with specialized skills in a narrow 
area of law, such as admiralty law, patent law, or 
antitrust and other complex litigation, tend to be 
found in large cities, where an attorney may have 
a greater opportunity to focus on a narrow area of 
law. As a specialist, the attorney will usually 
charge more for performing services in his area of 
expertise than a general practitioner will charge 
for performing-similar services. Furthermore, the 
costs of practicing law will vary from city to city, 
and such costs will be reflected in the rates of 
the attorneys.

Id. at 769. In Chrapliwy, as in the present case, the skills 
and expertise of plaintiffs' out-of-town specialists in 
employment discrimination law were not available in the local 
area, and the plaintiffs acted reasonably in going beyond their 
local area to find such specialists. The Seventh Circuit there­
fore held that plaintiffs' New York and Washington attorneys 
were entitled as a matter of law to be compensated on the basis

-36-



of their billing rates of $175-$200 an hour. Id.
In a case involving Legal Defense Fund lawyers, the 

Fifth Circuit as well has recognized that reasonable fees 
for New York attorneys may not be the same as reasonable 
fees for attorneys located elsewhere. In Jones v. Armstrong 
Cork Co., 630 F.2d 324, 325 (5th Cir. 1980), the court held 
that, " [a]lthough involved in the same [Georgia] case, the 
fees awarded to lawyers from the LDF's New York City office 
would not necessarily be reasonable fees for .. a Macon, 
Georgia private practitioner." Cf. Bradford v. Blum, 507 
F .2d 526 (S.D.N.Y 1981) (reasonable hourly rates for New 
York attorneys in 1981 were $75 for attorneys with less than 
two years of experience, $90 for those with more than two 
years, and $125 for those with as much as 12 years).

In the present case, plaintiffs' counsel submitted ample
evidence that a base rate of $120 an hour reflected the fair
market value of the services provided by the Legal Defense
Fund. See pp. 9-10. supra. None of this evidence was
challenged by the defendants, but all of it was ignored by
the District Court, which compensated the Legal Defense Fund
for Mr. Patterson's services at a rate of only $70 an hour —
even less than the market value of the services of Louisville

26/attorneys with equivalent years of experience. The

26/ In 1981, Louisville attorneys with as little as three
years of experience generally charged $75 an hour or more
for complex litigation, and attorneys with substantially
more experience charged up to $125 an hour. See p. 7,
supra. An attorney for the non-prevailing defendants, who
was admitted to practice at approximately the same time as
Mr. Patterson, filed an affidavit in the present case
stating that his "customary hourly fee ranges between $75
and $100 per hour in his private practice." (Hoge Affidavit
in Support of Defendants' Application for Attorney's Fees, 1| 7).

-37-



Court thus abused its discretion and erred as a matter of 
law in denying the Legal Defense Fund the fair market value 
of its services.
IV. THE FEES AWARDED TO PLAINTIFFS' ATTORNEYS WERE UNREASONABLE 

BECAUSE THEY DID NOT ACCOUNT FOR THE FACT THAT COMPENSATION 
WAS CONTINGENT UPON SUCCESS IN THE CASE.
This Court held in Northcross that, in many cases, a fee

awarded solely on the basis of routine hourly rates
is not "reasonable," because it does not take 
into account special circumstances,, such as 
unusual time constraint, or an unusually un­
popular cause, which affect the market value 
of the services rendered. Perhaps the most 
significant factor in these cases which at 
times renders the routine hourly fee un­
reasonably low is the fact that the award is 
contingent upon success. An attorney's regular 
hourly billing is based upon an expectation of 
payment, win, lose or draw. If he or she will 
only be paid in the event of victory, those 
rates will be adjusted upward to compensate for 
the risk the attorney is accepting of not being 
paid at all. Some cases under the civil rights 
statutes, those in which the facts are strong 
and the law clear, pose little risk of losing, 
and the attorney's normal billing rate will be 
adequate compensation. Others, in developing 
areas of law or where the facts are strongly 
disputed, will require a substantial upward 
adjustment to compensate for the risk ... The 
contingency factor is not a "bonus" but is part 
of the reasonable compensation to which a 
prevailing party's attorney is entitled under 
§ 1988.

611 F .2d at 638.
In the present case, plaintiffs' counsel requested a con­

tingency adjustment of 25%. (Application, at 4). At some 
stages, the case was unusually time-consuming, particularly for 
Ms. Christian. (Christian Affidavit, 1[ 9). Moreover, the case 
involved a complex and developing area of the law in which the 
outcome was far from assured. For example, the District Court,

-38-



after a lengthy hearing, denied the motion of plaintiffs Baker 
and Arnold for a preliminary injunction on the ground that they 
"would have little chance of success on the merits of this case." 
(Findings of Fact, Conclusions of Law and Memorandum Opinion,
March 4, 1980, at 7). Both the District Court and this Court 
subsequently denied plaintiffs' motions for an injunction pending 
appeal. (Counsel Fee Opinion, at 2). Nonetheless, the plaintiffs 
ultimately did prevail. Thus, plaintiffs' counsel in the present 
case were entitled to a contingency adjustment substantially 
larger than the upward adjustment granted by this Court in 
Northcross, where there was "not ... a very large chance that the 
plaintiffs would wholly fail to prevail." 611 F.2d at 641.

On the other hand, plaintiffs' counsel acknowledged that the 
District Court's September 1979 decision in the Louisville Black 
Pol ice case clearly had an effect on the willingness of Jefferson 
County officials to settle the present case, which was filed in 
January 1980. In its Lousiville Black Police decision, the Court 
had found the City of Louisville liable for racial discrimination 
in its police hiring practices. That decision did not involve any 
claims of retaliation, nor did it resolve any issues concerning 
discrimination in training, assignment, or promotion. All of 
these issues were raised in the present case, and the plaintiffs 
in this case obtained relief as to all of these issues in the 
consent decree. Nevertheless, because of the admitted influence 
of the Lousiville Black Police decision on the resolution of the 
case at bar, plaintiffs' counsel requested a lower contingency 
adjustment in this case than the factor of 33.33% the Court had

-39-



awarded in Louisville Black Police. (See Appendix in Nos. 81-
5466/5491, at 342). They concluded that an adjustment of 25% 
would "serve the Congressional purpose of awarding sufficient 
compensation to attract competent counsel." Northcross, 611 F.2d 
at 641.

The District Court, however, refused to award any contingency
adjustment whatsoever. With respect to the time plaintiffs'
counsel had expended in obtaining extensive classwide relief, the
Court stated that there was "little or no doubt that plaintiffs
would prevail, since defendants indicated their desire to surrender
very early in the case, and, therefore, no contingency factor is
proper in that regard." (Counsel Fee Opinion, at 7). The Court
also refused to award any contingency adjustment for time spent
on the plaintiffs’ individual claims. Ms. Christian was denied
an adjustment on the ground that she had received "$7,500 as an
advance on fee from the Fraternal Order of Police...." (Counsel

27/Fee Opinion, at 8). In making this clearly erroneous
finding, the Court failed to note that nearly half of the total 
amount advanced to Ms. Christian merely covered the out-of-pocket 
expenses she had incurred, and that the remaining sum was in­
significant in comparison to her total of 525 compensable hours.— ^

27/ In fact, Ms. Christian received only $3,654.43 as an advance 
from the Fraternal Order of Police. (Christian Supp. Affidavit,
1(11 13-15). She also received advances of $435.00 from plaintiffs 
Baker and Arnold, $2,034.95 from the Mount Olive Baptist Church, 
and $1,479.29 from a group of black ministers. (Id., 1111 3-13).
All these advances were accepted with the express understanding 
that Ms. Christian would refund any part of such advances sub­
sequently awarded by the Court. (Id., 11 2).
28/ Ms. Christian received advances totaling $7603.67. (Christian 
Supp. Affidavit, mi 3-19). Since the Court found that she had 
incurred $3,627.35 in reasonable costs and expenses (Counsel Fee 
Opinion, at 8), only $3,976.32 of the total amount advanced repre­
sented an advance on fees. The Court found that Ms. Christian 
had a total of 525.25 compensable hours. (Id. at 4).

-40-



The Legal Defense Fund was denied a contingency adjustment for 
Mr. Patterson's services on the ground that he was "working as a 
salaried employee and attorney for the Legal Defense Fund...." 
(Id..) The Court ignored the fact that the fees were requested by 
the Legal Defense Fund, not Mr. Patterson, and that any award to 
him would be turned over to the Fund. (Patterson Affidavit, 1( 7).
The Court concluded that "no contingency factor should be made 
[sic], since Ms. Christian was assured of at least $7,500 in 
fees and Mr. Patterson was assured of his salary." (Counsel Fee 
Opinion, at 8).

29 /In denying a contingency adjustment on these grounds, 
the District Court made clearly erroneous findings of fact, erred 
as a matter of law, and abused its discretion.

A. Plaintiffs' Counsel Were Entitled to a 
Contingency Adjustment for Time Spent 
on The Class Aspects of the Case.

The District Court held that it would not be proper to award 
a contingency adjustment for time spent on the class aspects of 
the case because "there was little or no doubt that plaintiffs 
would prevail, since defendants indicated their desire to surrender 
very early in the case ...." (Counsel Fee Opinion, at 7). However,
the relevant time for assessing the risk undertaken by plaintiffs'
29/ in their request for a contingency adjustment, plaintiffs' 

counsel did not differentiate between services performed before 
and services performed after the entry of the consent decree on 
December 18, 1980. We concede that, under Northcross, the 
District Court could properly decline to award a contingency 
adjustment for hours worked after the decree was entered, on the 
ground that there was no longer any risk that plaintiffs' counsel 
would not be compensated for those hours. See 611 F.2d at 638. 
However, the District Cort refused to award a contingency 
adjustment for any of the work performed by plaintiffs' counsel.

-41-



attorneys is before they have filed a civil rights case, not
after. In Stanford Daily v. Zurcher, supra —  cited by the Senate 
Committee as illustrative of the proper application of standards 
governing fee awards, S. Rep. No. 94-1011, at 6 —  the court 
assessed the risk of nonpayment that existed "at the beginning of 
the litigation...." 64 F.R.D. at 686. Since the fundamental 
purpose of the fee award statutes is to encourage attorneys to 
represent the victims of civil rights violations, those attorneys 
must be compensated for the risks of nonpayment that exist when 
they agree to undertake such representation, not the lesser risks 
which may be discerned by hindsight after that representation has 
begun to succeed. Thus, "the district court should appraise the 
professional burden undertaken —  that is, the probability or 
likelihood of success, viewed at the time of filing suit." Lindy 
Brothers Builders, Inc, v. American Radiator & Standard Sanitary 
Corp., 540 F.2d 102, 117 (3d Cir. 1976) (emphasis added). The 
contingency adjustment is designed "to compensate for the possibility 
at the outset that the litigation would be unsuccessful and that 
no fee would be obtained." Copeland v. Marshall, supra, 641 F.2d 
at 893 (emphasis added). See also Northcross, 611 F.2d at 638-39.

A few months before plaintiffs' counsel filed the present 
case in January 1980, the District Court had entered a decision 
resolving some issues in the Louisville Black Police case. But 
many of the class claims and issues raised in the present case 
were not addressed in that decision. The consent decree resolving 
the remaining issues in the Louisville Black Police case was not 
approved until September 1980, long after plaintiffs' counsel

-42-



30/ As the Dis­had done most of the work in the present case, 
trict Court acknowledged, "Jefferson County had not changed its 
policies with regard to blacks until this lawsuit was filed and, 
therefore, it cannot validly complain that the suit was not 
necessary in order to effectuate the settlement which resulted." 
(Counsel Fee Opinion, at 3-4). Thus, plaintiffs clearly were 
not assured of victory at the outset, and even after the defen­
dants announced their desire to settle, plaintiffs were not 
assured of obtaining a consent decree which would provide an 
acceptable level of class relief. In fact, it took many months 
for the parties to resolve all their differences and agree to 
the terms of the decree. In these circumstances, there was a 
significantly greater risk than in Northcross that the plain­
tiffs would not prevail.

Moreover, Congress has provided that attorneys for pre­
vailing civil rights plaintiffs should be compensated in a

%
manner which is consistent with and "traditional with attorneys 
compensated by a fee-paying client ...." S. Rep. No. 94-1011, 
at 6. Attorneys retained by fee-paying clients —  including

30/ The District Court stated that the role of plaintiffs' 
counsel with regard to the class claims and issues in the 
present case was "basically narrowed ...to the objective of 
obtaining a fair settlement based on the settlement that had 
been reached in Louisville Black Police...." (Counsel Fee 
Opinion, at 6). This finding is clearly erroneous. In fact, 
while the present action was filed in January 1980, the parties 
did not submit a proposed consent decree in Louisville Black 
Pol ice until May 1980, and the Court did not approve that decree 
until September 1980. (See Appendix in Nos. 81-5466/5491, at 23- 
24) .

-43-



defendants in civil rights cases —  are paid for their services,
win, lose, or draw. Plaintiffs' attorneys in civil rights
cases, on the other hand, are not paid at all when they lose.
They must therefore receive greater compensation when they win
in order to be compensated in a manner similar to attorneys
representing fee-paying clients. (See Hickey Affidavit, 1M| 3-5).
As the court in Stanford Daily stated:

From the attorney's standpoint, the contin­
gent fee insures that counsel are compensated not 
only for their successful efforts but also for 
unsuccessful litigation. Its use allows attorneys 
—  including attorneys who could not otherwise absorb 
the costs of lost cases —  to take the financial 
gamble of representing penurious clients, since, over 
the long run, substantial fees awards in successful 
cases will provide full and fair compensation for all 
legal services rendered to all clients. From the 
public's standpoint, the contingent fee helps equalize 
the access of rich, middle-class, and poor individuals 
to the courts by making attorney decisions concerning 
representation turn on an action's merits rather than 
on the size of a client's income.

64 F.R.D. at 685. See also Jones v. Diamond, 636 F.2d 1364, 1382
(5th <3ir. 1981) (en banc).

In short, here as in Northcross, "there was a real element 
of contingency as to whether the attorneys would be compensated" 
for their work on the class aspects of the case. 611 F.2d at 
641. In refusing to adjust the fees to account for this con­
tingency, the District Court denied plaintiffs' counsel rea­
sonable compensation for their services.

B. Plaintiffs' Counsel Were Entitled to a
Contingency Adjustment for Time Spent on 
the Plaintiffs' Individual Claims.
1. The Louisville Attorneys 

With respect to the individual claims of plaintiffs Baker 
and Arnold, the District Court did not dispute the existence of a 
substantial risk that plaintiffs would not prevail. Instead, the

-44-



Court denied Ms. Christian's request for a contingency adjustment
because she had received a relatively small amount as a refundable
advance on her fee. (Counsel Fee Opinion, at 8). Here again,

31/the Court erred. —
Congress did not intend for such small advances to have any

effect whatsoever on contingency adjustments. As noted above,
the legislative history of the Fees Act specifically endorsed the
analysis of Stanford Daily v. Zurcher, supra, which held in part
that an advance of $8,500- by the plaintiffs during the course of
the litigation was not sufficient to diminish the contingencies
involved. As the court stated:

[T]he attorneys clearly were not guaranteed 
payment for most of the hours which they 
expended. At the beginning of the liti­
gation, they undoubtedly realized that full 
payment for their services depended on the 
unforeseeable turns of the litigation 
process working in their clients' favor.
In short, the fact that a fraction of their 
fees were guaranteed should not obscure the 
fact that the remainder was contingent on 
their success.

64 F.R.D. at 686 (footnote omitted).
In the present case, Ms. Christian received less than $4,000 

as an advance on her fee in a case in which she worked 525 com­
pensable hours. The fact that she had received this small 
fraction of her fee did not relieve the District Court of its 
statutory obligation to insure that she was compensated for the 
reasonable value of all her services. Such compensation would

31/ The Court also erred in denying Ms. Bynum's request for a 
contingency adjustment. The Court gave no reason for that ruling.

-45-



necessarily include an adequate contingency adjustment to account 
for the risk she accepted of not being paid at all for hundreds 
of hours of work. Northcross, 611 F.2d at 638.

2. The Legal Defense Fund
The Legal Defense Fund did not receive any advances of 

either fees or expenses. Nevertheless, it was denied a con­
tingency adjustment on still another ground: that its staff 
attorney was a salaried employee. (Counsel Fee Opinion, at 8). 
This too was error.

First, the observation that Mr. Patterson received a salary 
was completely irrelevant to the issue before the Court. Fees 
were requested by the Legal Defense Fund, not by Mr. Patterson; 
any award made to Mr. Patterson would be turned over to the Fund. 
(Patterson Affidavit, % 7). The fact that Mr. Patterson was 
assured of receiving a salary from LDF had nothing whatever to do 
with LDF1s right to recover a reasonable fee for his services —  

except perhaps to highlight the risk of nonrecovery undertaken by 
the Legal Defense Fund in this case.

Second, the legislative history of the Fees Act leaves no 
doubt that Congress intended to require full awards of fees to 
public interest organizations such as the Legal Defense Fund.
See New York Gaslight Club, Inc, v. Carey, supra, 447 U.S. at 
70-71 n.9. The committee reports in both the House and the 
Senate endorsed cases making such awards. S. Rep. No. 94-1011, 
at 6; H.R. Rep. No. 94-1558, at 8 n.16. Under these cases, the 
fact that plaintiffs are represented by a salaried public

-46-



Incarcera-interest attorney is not legally relevant. See, e.g., 
ted Men of Allen County Jail v. Fair, supra, 507 F.2d at 286; 
Davis v. County of Los Angeles, supra, 8 EPD at pp. 5048-49; 
Swann v. Charlotte-Mecklenburg Board of Education, supra, 66
F.R.D. at 486.

Finally, the overwhelming weight of authority holds that fees
may not be reduced on the ground that the plaintiff's attorney
receives a salary from a public interest organization. As the
Eighth Circuit has stated in Oldham v. Erlich,

it is inappropriate to consider that the 
prevailing plaintiff's attorney was 
working for a legal aid organization.
The basic purpose of section 1988 —  to 
encourage enforcement and observance of 
civil rights —  permits no distinction 
between private attorneys and legal aid 
organizations. Legal aid organizations 
can expand their services to indigent 
civil rights complainants by virtue of 
their receipt of attorneys' fees. And a 
defendant sued by a plaintiff retaining 
legal aid counsel should not be benefited 
by the fortuity that the plaintiff could 
not afford private counsel. Thus, whether 
the focus is on enabling suit by those
otherwise unable to afford litigation, >
or on deterring misconduct by. imposing 
a monetary burden upon the wrongdoer, a 
legal aid organization merits an attor­
ney's fee fully as much as does the 
private attorney.

617 F .2d 163, 168-69 (8th Cir. 1980). And, as the First Circuit 
has recognized, because fee awards to an organization such as the 
Legal Defense Fund "are expected to be used to finance more civil 
rights litigation," such awards do not result in "an impermissible 
windfall to the organization." Palmigiano v. Garrahy, 616 F.2d 
598, 602 (1st Cir. 1980). See also Copeland v. Marshall, supra,
641 F.2d at 898-900 and cases cited therein.

-47-



Thus, under the legislative history and the cases, the 
Legal Defense Fund is entitled to recover a contingency adjust­
ment as part of the fair market value of its services. In 
this respect it is the same as any private attorney entitled to 
reasonable compensation. The District Court clearly erred in 
depriving the Legal Defense Fund of this compensation

V. THE DISTRICT COURT ERRED IN FAILING TO DIRECT 
PAYMENT OF INTEREST ON THE JUDGMENT AWARDING 
ATTORNEYS' FEES, COSTS, AND EXPENSES.
Title 28 U.S.C. § 1961 states in pertinent part that:

Interest shall be allowed on any money 
judgment in a civil case recovered in a
district court ---  Such interest shall be
calculated from the date of the entry of the 
judgment, at the rate allowed by State law.
Counsel for plaintiffs requested interest, but the

District Court failed to award it. This was clear error.
See City of Detroit v. Grinnell Corp., 575 F.2d 1099 (2d Cir.
1977).

-48-



CONCLUSION
For the foregoing reasons, the judgment should be 

reversed and the case should be remanded to the District 
Court for the entry of a proper award.

Respectfully Submitted,

JUANITA LOGAN CHRISTIAN
LYNN M. BYNUM 

Suite 490
730 West Main Street 
Louisville, Kentucky 40202 
(502) 587-8091

JACK GREENBERG 
PATRICK 0. PATTERSON 
JUDITH REED 

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

Counsel for Appellants

-49-



ADDENDUM

The Civil Rights Attorney's Fees Awards Act of 
1976, 42 U.S.C. § 1988:

In any action or proceeding to enforce a 
provision of sections 1981, 1982, 1983, 1985, 
and 1988 of this title, ... or Title VI of the 
Civil Rights Act of 1964, the court, in its 
discretion, may allow the prevailing party, 
other than the United States, a reasonable 
attorney's fee as part of the costs.

Section 706(k), Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. § 2000e-5(k):

In any action or proceeding under this 
title the court, in its discretion, may allow 
the prevailing party, other than the [Equal 
Employment Opportunity] Commission or the 
United States, a reasonable attorney's fee as 
part of the costs ....

28 U.S.C. § 1961:
Interest shall be allowed on any money 

judgment in a civil case recovered in a district 
court. Execution therefor may be levied by the 
marshal, in any case where, by the law of the 
State in which such court is held, execution may 
be levied for interest on judgments recovered in 
the courts of the State. Such interest shall be 
calculated from the date of the entry of the 
judgment, at the rate allowed by State law.



CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing brief 

for plaintiffs-appellants were served on each of the 
following on this date by United States mail, first class 
postage prepaid, addressed as follows:

William L. Hoge, III, Esq.
1112 Kentucky Home Life Building
Louisville, Kentucky 40202
F. Chris Gorman, Esq.
1210 Citizens Plaza
Louisville, Kentucky 40202

Dated: May 26, 1982.
PATRICK 0. PATTERSON
Counsel for Plaintiffs-Appellants