Johnson, Jr. v. Georgia Highway Express Brief for Appellee Cross-Appellant

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

RICHARD JOHNSON, JR. and FRANK HILL, et at 
Plaintiffs-Appellants-Cross-Appellees,

GEORGIA HIGHWAY EXPRESS, INC 
Defendant-Appellee-Cross-Appellant.

Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

BRIEF FOR APPELLEE-CROSS-APPELLANT

W ilson, Wilcox and W ilson 
J ohn W. W ilcox, Jr.
Thomas M. K una 

2620 Equitable Building 
Atlanta, Georgia 30303 

Attorneys for Defendant-Appellee- 
Cross-Appellant

E . T,. M bm ik niiaU .. I n i-., #S« C herry  S tree t. K ansas C ity , M o. R4KM, 141-3030



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 72-3294

RICHARD JOHNSON, JR„ and FRANK HILL, et al., 
Rlaintiffs-Appellants-Cross-Appellees,

vs,
GEORGIA HIGHWAY EXPRESS, INC., 

Defendant- Appellee-Cross-Appellant.

Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
LOCAL RULE 13(a)

The undersigned, counsel of record for Georgia High­
way Express, Inc., certifies that the following listed parties 
have an interest in the outcome of this case. These rep­
resentations are made in order that Judges of this Court 
may evaluate possible disqualification or recusal pursuant 
to Local Rule 13 (a).



1. Richard Johnson, Jr., and Frank Hill, Plain­
tiffs;

2. Black employees of Georgia Highway Express, 
Inc. who form the class Plaintiffs represent;

3. Georgia Highway Express, Inc., Defendant.

J ohn W. W ilcox, J r.
Attorney of record for Georgia 

Highway Express, Inc.



INDEX

Statement of the Issue Presented ................................. 1
Statement of the Case ................................................. 1

A. The Litigation Involved ........................................  1
B. Facts Relevant to the Issues Presented............ . 5

Argument........................................ ............... ............... 12
I. It Is, a Well-Established Principle That This 

Court Has the Power to Review the Adequacy 
and Reasonableness of an Award of Attorney’s 
Fees by a District Court ......................... ........... 13

II. An Award of $13,500 Attorney’s Fees in This 
Case Is Not “Reasonable” Within the Meaning 
of 42 U.S.C. §2000e-5(k) ..................................  16
A. Attorneys Employed by the NAACP Legal

Defense and Educational Fund, Inc. Should 
Not Be Awarded Attorney’s Fees ................ . 16

B. The Hours Claimed by Appellants Are Un­
reasonable and Excessive ........    21

C. A Serious Question Exists Regarding the
Extent to Which the Plaintiffs Prevailed......  22

D. The Reasonable Guides Available to This
Court Regarding the Award of Attorney’s 
Fees ..............    24

III. Any Award of Attorney’s Fees in Excess of 
$13,500 Would Be Unreasonable, Inequitable, 
and Excessive ....... ................ .............................. 25

Conclusion .................... ........................................ ......... 32
Supplement to Joint Appendix ........   33
Certificate of Service ......................................    34



I I

Table of Cases

B-M-G Investment Co. v. Continental Moss Gordin,
Inc., (5th Cir.; 1971) 437 F.2d 892 ...........................

Campbell v. Green, (5th Cir.; 1940) 112 F.2d 143..........
Clark v. American Marine Corp., (E.D. La.; 1970) 320 

F.Supp. 709, af fd per curiam (5th Cir.; 1971) 437
F.2d 959 ......................................-.....-.............12, 14, 17,

Connecticut Importing Co. v. Frankfort Distilleries,
(2nd Cir.; 1939) 101 F.2d 79 ......................................

Courtesies Chevrolet, Inc. v. Tennessee Walking Horse 
Breeders and Exhibitors Assn., (9th Cir.; 1968) 393
F.2d 75 .........................- .....-----.................................

Culpepper v. Reynolds Metals Co., (D.C. Ga.; 1968) 296 
F.Supp. 1232, rev’d (5th Cir.; 1970) 421 F.2d 888,
(D.C. Ga.; 1970) ......  F.Supp........., 2 EPD 1110,288,
af fd (5th Cir.; 1971) 442 F.2d 1078 -.12,13,14,17,25, 

Electronics Capital Corp. v. Sheperd, (5th Cir.; 1971)
439 F.2d 692 ................. .......-......................-.............13,

Georgia Highway Express, Inc. v. National Labor Re­
lations Board, et al., (D.C. Cir.; 1969) 415 F.2d 986 .... 

Gunn v. Layne and Bowler, Inc., (D.C. Term.; 1967)
....... F.Supp........., 1 EPD 1)9023 .............. - ---- ------

Hegler, Eve V., et al. v. Board of Education of Bearden
School District, et al., (8th Cir.; 1971) ...... F.2d........,
3 EPD 1)8337 ...................... ........................................

Hodgson V. Miller Brewing Co., (7th Cir.; 1972) 457
F.2d 221 ................................................ -...................

Hoffman v. Aetna Life Insurance Co., (5th Cir.; 1969)
411 F.2d 594 ...............................................................

Johnson, Richard, Jr. V. Georgia Highway Express, Inc.,
(5th Cir.; 1969) 417 F.2d 1122 .... ..............................

Kendrick, Vivian L. v. American Bakeries Co., et al., 
Civil Action 11,490, United States District Court, 
Northern District of Georgia, Atlanta Division -----

13
13

18

13

29

29

30

7

23

15

23

13

3

10



Ill

Lea v. Cone Mills Corp., (4th Cir.; 1972) ......  F'.2d
...... , 5 EPD 17975 .......................................... 14,28,29,

Mills v. Electric Auto-Lite Co., 296 U.S. 375 (1970) .... 
Newman v. Piggie Park Enterprises, 290 U.S. 400

(1968) ........................................................................
Sanders v. Russell, (5th Cir.; 1968) 401 F.2d 241 ...... .
Weeks v. Southern Bell Tel. & Tel. Co., (5th Cir.; 

1972) ......  F .2d...... , 5 EPD 17956 ........ 13,14, 23, 26,

Statutes

Civil Rights Act of 1866, 42 U.S.C., Section 1981 (1870) 
Civil Rights Act of 1964, 42 U.S.C., Section 2000e, et 

seq., and Section 706 (k) thereof, 42 U.S.C., Section
2000e-5(k) (1964) ......................................... 2,14,16,

Internal Revenue Code, 26 U.S.C., Section 170(c)
(1954) ................. ..........................................- ..........

Internal Revenue Code, 26 U.S.C., Section 501(c)(3)
(1954) ...................................... -...............................

28 U.S.C., Section 1291 (1958) ......................................

Rules

Rule 52(a), Federal Rules of Civil Procedure ..........

Other Authorities

ARA Code of Professional Responsibility, Ethical Con­
sideration 2-18 (1961), enforced according to Dis­
ciplinary Rule 2-106(B)(2) ....................... -..............

Cumulative List of Organizations, Publication 78, as de­
scribed in 26 U.S.C., Section 170(c) ........-......... -....

Encyclopedia of Associations, 6th Ed., 1970, Vol. I, p. 
761 .......................................................................

30
15

15
19

27

3

20

16

16
2

30

17

16

16



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 72-3294

RICHARD JOHNSON, JR, and FRANK HILL, et al., 
Plaintiffs-Appellants-Cross-Appellees,

vs.
GEORGIA HIGHWAY EXPRESS, INC., 

Defendant-Appellee-Cross-Appellant.

Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

BRIEF FOR APPELLEE-CROSS-APPELLANT

STATEMENT OF THE ISSUE PRESENTED

1. Whether the District Court was correct in award­
ing $13,500 in attorney’s fees to counsel for the plaintiffs.

STATEMENT OF THE CASE
A. The Litigation Involved.

On August 8, 1972, the District Court below issued a 
final order denying the claims of the only two intervenors 
in the case, Willie C. Shepherd and Junie R. Elder, and



2

awarded the counsel for the plaintiffs attorney’s fees in 
the amount of $13,500. The Court found that the services 
performed by counsel for the plaintiffs could have been 
done in the Atlanta, Georgia area for the above amount, 
based on

“sixty (60) man-days of work at Two Hundred Dollars 
($200.00) per day, generally considered to consist of 
from six (6) to seven (7) productive hours, which 
amounts to Twelve Thousand Dollars ($12,000.00), and 
three (3) trial days for two attorneys at Two Hundred 
Fifty Dollars ($250.00) per trial day per attorney, or 
One Thousand Five Hundred Dollars ($1,500.00).” 
(APP. 184a)1
Plaintiffs-Appellants-Cross-Appellees (herein referred 

to simply as “Appellants”) filed a Notice of Appeal from 
the attorney’s fees portion of the District Court’s Order 
on September 6, 1972. (APP1. 188a) Subsequently, on 
September 13, 1972, Defendant-Appellee-Cross-Appellant 
(herein referred to simply as “Appellee”) filed a Notice of 
Cross-Appeal. (APP. 190a) This Court has jurisdiction of 
the appeal pursuant to 28 U.S.C. §1291.

As stated by the Appellants, the original complaint in 
this action was filed by plaintiff Richard Johnson, Jr. un­
der Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§2000e et seq., on February 27, 1968. (APP. 8a-13a) An 
order of the District Court regarding the class action and 
jury demand aspects of the case was entered on June 24, 
1968. (APP. 2a) Plaintiff Johnston took an interlocutory 
appeal from this order of the District Court, and this Court 
reversed the lower Court’s holding, stating basically, that 
in Title VII cases an individual plaintiff can attack an em­
ployer’s employment practices in an across-the-board man­

1. “A PP.” refers to the prin ted  Jo in t A ppendix of the rele­
vant proceedings below.



3

ner without first proving that he is entitled to relief, and 
also stating that there is no right to a jury trial in a Title 
VII action. Richard Johnson, Jr. v. Georgia Highway Ex­
press, Inc., (5th Cir.; 1969) 417F.2d 1122.

On May 12, 1970, another individual and class action 
was filed by plaintiff Frank Hill (APP. 24a-27a), pursuant 
to Title VII and 42 U.S.C. §1981.

Prior to the trial on the merits, the Hill case was con­
solidated with the Johnson case (APP. 45a), and both par­
ties agreed to a settlement regarding the individual claim 
of Johnson. (APP. 41a-43a) The consent agreement ex­
pressly provided that the settlement amount included all 
attorney’s fees which might be attributed to Johnson’s in­
dividual claim. A consent Order was subsequently filed on 
February 22, 1972. (APP. 39a)

The trial on the merits of the individual claim of plain­
tiff Frank Hill and the class action began on January 31, 
1972, and lasted two-and-a-half days. (APP. 5a) A final 
Order in the case was filed by the District Court on March 
2, 1972. (APP. 44a-56a) In its Order, the Court below did 
find that plaintiff Hill was discriminatorily discharged— 
only that racial discrimination may have been a contribut­
ing factor in his discharge. (APP. 50a) The Court did not 
find it necessary to resolve the conflicting evidence regard­
ing the potential racial discrimination in the discharge of 
Hill, deciding only that Frank Hill should be reinstated to 
his former job of stripper, with full seniority, but without 
back pay. (APP. 51a) The Court also denied the back pay 
sought by the plaintiffs with regard to the class action as­
pect of the suit (APP. 54a), and there were no findings to 
the effect that Georgia Highway Express, Inc. maintained 
any segregated facilities.

The Court did find, however, that a large proportion of 
the opportunities of Blacks for jobs with the Appellee are



4

restricted to the dock department (albeit at a rate of pay 
of $5.40 per hour), and that this restriction was caused in 
part by an “understanding or feeling” among some Black 
employees2 that a high school education is required for 
transfer or promotion to other jobs of the Appellee, includ­
ing jobs as over-the-road drivers, pickup and delivery 
drivers, and office employees. (APP. 47a) In connection 
with this high school education requirement, the Court 
found that such a requirement would exclude a dispropor­
tionate number of Black employees and potential employ­
ees from consideration for positions as over-the-road driv­
ers, pickup and delivery drivers, and office workers, be­
cause census data indicated that a substantially greater 
proportion of adult Whites have obtained high school edu­
cations when compared with the number of adult Blacks 
who have obtained high school educations, and that this dis­
parity is general across the country and pronounced in 
Georgia and the Atlanta area. (APP. 49a)

The other finding of the Court regarding discrimina­
tion was that between December 31, 1965 and the present 
time, there had been an “understanding or feeling” among 
some Black employees of the Appellee that they might 
jeopardize their jobs with the Appellee by attempting to or 
requesting transfer to other jobs outside their respective 
departments. (APP. 47a) At no time did the Court imply 
that the Appellee was pursuing a conscious course of racial 
discrimination or deliberately trying to circumvent Title 
VII of the Civil Rights Act of 1964. Rather, the Court em­
phasized, as a cause of the restrictive job classifications, an 
“understanding or feeling among some Black employees.” 
More positively the Court found that the Appellee had

2. The Appellee emphasizes th a t Black employees w ere not 
com pletely  restricted  to jobs in the dock departm ent. There were, 
in fact, Blacks in o ther job classifications. H owever, the m ajority  
of Black employees w ere “strippers” and “stackers” in the dock 
departm ent.



5

made numerous efforts to comply with the requirements of 
Title VII, and that some of these efforts had been com­
mendable. (APP. 47a) To blithely state that the Court 
found a “wide variety of discriminatory practices by the 
defendant and (granted) broad class relief to the plaintiffs” 
(Appellants’ Brief, p. 2) is misleading and wholly inaccu­
rate.

The Appellants filed a Motion for Award of Attorney’s 
Fees on May 1, 1972 (APP. 57a-78a), wherein they re­
quested an award of attorney’s fees in the amount of 
$30,145.50, based on an alleged total of 659.5 billable hours, 
which purportedly did not include time spent in actual trial. 
(APP. 58a) Replying to this motion, Appellee filed, on 
May 4, 1972, its Response to Plaintiffs’ Motion for Award 
of Attorney’s Fees, which raised questions regarding the 
unreasonableness and the excessiveness of the hours and 
amounts claimed by counsel for the Appellants, enumerat­
ing specific reasons for its position regarding the hours and 
amounts claimed.

On June 9, 1972, the District Court held a hearing on 
the matter of attorney’s fees, during which evidence was 
presented by both sides. (APP. 6a) On June 30, 1972, the 
District Court held a hearing on the interventions of Willie 
C. Shepherd and Junie R. Elder (App. 6a), and issued an 
oral Order (APP. 177a-180a) denying the claims in inter­
vention of these two individuals and awarding $13,500 in 
attorney’s fees to plaintiffs. The above-mentioned final 
Order of the District Court pertaining to the claims in inter­
vention and the attorney’s fees awarded was filed on 
August 8, 1972.

B. Facts Relevant to the Issues Presented.

Throughout the proceedings in the Court below, the 
Appellants sought damages for the individual plaintiff 
Frank Hill, contending that he was unlawfully discharged



6

from his employment because of his race or color. They 
contended that Blacks employed by the Appellee were, 
historically, and continued to be, concentrated in lower- 
paying jobs. They contended that Blacks were wholly 
excluded from driving jobs in the pickup and delivery 
department of the Appellee and that the Appellee main­
tained segregated facilities. (APP. 12a-13a) They con­
tended that Black employees of the Appellee made, on the 
average, considerably less money than White employees 
similarly situated, and also that they made less money 
than White employees with similar lengths of service. 
(See, inter alia, Pre-trial Order, APP. 4a) During the 
trial on the merits, Appellants continued to allege that 
Black employees of the Appellee were confined to what 
they considered “menial” jobs, and also sought back pay 
relief for those Black employees involved in a walkout 
against the Appellee in 1966.

The basic findings of the Court regarding discrimina­
tion by the Appellee have been set forth above. These 
findings indicate that only a limited portion of the relief 
sought by the Appellants was granted by the District 
Court. Further, it was shown to the satisfaction of the 
Court, inter alia, that the Black employees of the Appel­
lee were not concentrated in lower-paying jobs. They 
were concentrated primarily in the dock department of 
the Appellee in positions as “stackers” and “strippers”, 
jobs which paid, at the time of trial, approximately $5.40 
per hour, a rate only $.06 per hour lower than the rate 
received by employees in the pickup and delivery depart­
ment of the Appellee.

In direct contradiction to the claims of Appellants that 
Black employees of the Appellee made less per hour than 
similarly situated White employees of the Appellee, there 
was unrefuted testimony presented by the Appellee that 
not only did Black employees make as much as White



7

employees of the Appellee, but that the average hourly 
wage for all Black employees of the Appellee at its At­
lanta Terminal was $.08 per hour more than the average 
rate for all employees at the Atlanta Terminal—$5.35 per 
hour for all Black employees, as opposed to $5.27 per hour 
for all employees.3

Finally, in refusing to award back pay to any mem­
bers of the class represented in this action, the Court 
specifically mentioned in its final Order of March 2, 1972, 
that the rights of approximately 110 Black employees who 
were involved in a 1966 walkout against the Appellee have 
been fully adjudicated and back pay awarded under the 
decision of the United States Court of Appeals for the Dis­
trict of Columbia Circuit in Georgia Highway Express, 
Inc. v. National Labor Relations Board, et al., (D.C. Cir.; 
1969) 415 F.2d 986. (APP. 48a) An examination of the 
ruling of the Court below renders Appellants’ contention 
that the District Court sustained their position with re­
spect to virtually every issue that was tried (Appellants’ 
Brief, p. 5), wholly inaccurate. Perhaps that is why Ap­
pellants found it “unnecessary to describe the primary 
litigation further” in their brief. (Appellants’ Brief, p. 6)

The evidence presented and the record made at the 
attorney’s fees hearing of June 9, 1972, clearly illustrates 
why the District Court was overly generous in awarding 
$13,500 in attorney’s fees to counsel for the Appellants.

In purporting to support their request for $30,145.50 
in attorney’s fees, Appellants’ attorneys each submitted 
an affidavit. (APP. 59a-78a) Those affidavits are replete 
with obvious duplications of effort (e.g., reviewing and

3. The testim ony regarding these am ounts was embodied 
in D efendant’s Exhibit 5 in the  C ourt below, w hich was inad­
verten tly  om itted from  the Jo in t Appendix. A tru e  and correct 
copy of tha t exhibit is attached 'hereto as a supplem ent to the 
Jo in t Appendix.



8

evaluating various papers by several attorneys). Two of 
the affidavits were made by Howard Moore, chief coun­
sel for the Appellants (APP. 59a-66a), who by his own 
admission, did not keep any time logs of time spent on the 
class action aspects of the case at hand. (APP. 88a) Yet 
the total number of hours Mr. Moore alleges he spent on. 
the class action aspects of the case total 303 hours. (APP. 
59a-66a)

Regarding this testimony of Mr. Moore, the Appel­
lants make the point repeatedly throughout their Brief 
that the only questions raised by the Appellee upon cross- 
examination of Mr. Moore related to one hour of his time 
with respect to an amended complaint (APP. 94a-95a), 
and 25 hours with respect to the drafting of plaintiffs’ first 
interrogatories. (APP. 95a-97a) It is, of course, naive for 
the Appellants to imply that the Appellee attacked just 
26 hours of the time Mr. Moore allegedly spent without 
also attacking the overall validity of the affidavits pre­
sented and the overall question of the unreasonableness 
and excessiveness of the amount of attorney’s fees sought. 
The Appellee submitted the affidavit of John W. Wilcox, 
Jr., chief counsel for the Appellee (APP. 79a-81a), which 
set forth in detail the total number of hours which had 
been billed to Georgia Highway Express, Inc. through Au­
gust 23, 1971, and which included almost all work up to 
the beginning of the trial on the merits. As the affidavit 
recited, the total number of hours billed to Georgia High­
way Express, Inc. amounted to 130-3/4, and there were 
five (5) additional hours spent up to December 31, 1971, 
which had not as yet been billed to the Appellee. This . 
affidavit of Mr. Wilcox stood uncontradicted at trial and 
was submitted by the Appellee for the Court’s convenience 
in comparing the number of hours allegedly spent by the 
plaintiffs and the number of hours actually billed by an 
experienced member of the Bar who acted as chief



9

counsel for the Appellee since the commencement of the 
case.

For an equivalent time period the Appellants sub­
mitted a total of 531 hours, of which 303 were attributable 
to Howard Moore, Jr., and 228 were attributable to Mrs. 
Gabriel K. McDonald, of Houston, Texas. The submis­
sion of the affidavit of John W. Wilcox, Jr. thus speaks 
for itself in attacking the overall reasonableness of the 
attorney’s fees sought by Appellants.

During the hearing on attorney’s fees, Appellants 
asked Mr. Michael Doyle, an attorney in the Atlanta, 
Georgia area, to draw some generalities about the amount 
of time it takes to prepare a case or to handle a case for 
a plaintiff as opposed to a defendant. Mr. Doyle said that 
at times “it makes some difference as to how much work 
the lawyer has to do in terms of gathering together facts 
and the rest. . however, he qualified this statement by 
stating that “this is not an across-the-board rule, as we 
all know.” (APP. 147a) This qualification by Mr. Doyle 
strikes a particularly clear note in the case at hand, in 
light of the extensive fact-gathering requests submitted 
by Appellants by way of discovery. (APP. 3a, 4a, 6a) 
These discovery requests required extensive, detailed re­
sponses from the Appellee, and the Appellee spent a cor­
respondingly substantial amount of time and effort in 
preparing those responses. As a direct result of the Ap­
pellee’s labors, Appellants in this case readily obtained 
all the factual information they felt was necessary to the 
prosecution of this litigation. The information supplied 
by the Appellee was as clear and concise as possible, and, 
consequently, there was never any need for the Appel­
lants to spend considerable time examining and inspect­
ing records and files within the exclusive control of the 
Appellee.



IQ

In preparing for the hearing on attorney’s fees, Ap­
pellee drew a comparison between the plaintiffs’ First In­
terrogatories in the instant case and plaintiffs’ Interroga­
tories in Vivian L. Kendrick v. American Bakeries Co., et 
al., Civil Action 11,490, United States District Court, 
Northern District of Georgia, Atlanta Division. (APP. 
164a-166a)4 Appellee, of course, did not have access to 
all papers, interrogatories, motions, complaints and other 
pleadings prepared in other cases by Mr. Moore which 
were available for his use at the time all relevant papers 
were filed in this case. However, Appellee did use the 
two instances mentioned above as. a spring-board for ques­
tioning the reliability of the affidavits by Mr. Moore.

Appellee likewise attacked Mrs. McDonald’s credibil­
ity by questioning her about the reasonableness of spend­
ing 40 hours preparing for a 15-minute appellate argu­
ment. (APP. 114a-117a) At no time did Mrs. McDonald 
indicate that accurate time records were kept during her 
tenure with the NAACP Legal Defense Fund. Further­
more, Mrs. McDonald stated that during the time she was 
working for the NAACP Defense Fund, she was acting as 
a secondary counsel, which meant that Mr. Moore was to 
carry the “significant burden of the litigation”. (APP. 
110a) In spite of the questions raised regarding the 
amounts of Mrs. McDonald’s time, Appellants asked the 
Court below, and are now asking this Court, to effectively 
find that Mrs. McDonald, acting as secondary counsel, 
spent more time than John W. Wilcox, Jr., who was and 
is chief counsel for the Appellee. (APP. 68a)

Another of Appellants’ witnesses at the attorney’s 
fees hearing, David Cashdan, indicated, on recross-exam­
ination, that he was presenting himself as an expert on the

4. P lain tiffs’ interrogatories in the two above-m entioned 
cases are reproduced in  the  Jo in t Appendix at pp. 167a-176a.



11

time spent by private practitioners in Title VII litigation. 
(APP. 141a) However, on further recross-examination. 
Mr. Cashdan indicated that he had not participated as a 
private practitioner in any Federal appellate cases involv­
ing Title VII of the Civil Rights Act. Indeed, Mr. Cash- 
dan indicated that as a private practitioner he has never 
participated in any type of Federal appellate case. (APP 
142a)

With regard to the time spent by Mrs. Rindskopf on 
the case, Mr. Moore, upon recross-examination, stated that 
Mrs. Rindskopf received a stipend of roughly $10,000 per 
year from the NAACP Legal Defense Fund for prosecut­
ing civil rights actions. This statement was confirmed 
by Mrs. Rindskopf. (APP. 155a)

There was also testimony from Mr. Doyle that at the 
time of the hearing, legal fees in the Atlanta, Georgia 
area might at times be less than $35 per hour, depending 
upon the matter and the lawyer. (APP. 148a) As of 
March, 1972, Appellants requested $25 per hour in attor­
ney’s fees for those attorneys working on the case who 
were relatively inexperienced. (APP. 158a) At the hear­
ing, however, the Appellee was not so concerned with argu­
ing about the reasonable rate per hour to be charged for 
each attorney, but was instead concerned with question­
ing the overall unreasonableness and excessiveness of the 
attorney’s fees sought by the Appellants.



12

ARGUMENT

Appellee readily admits that it is the duty of Federal 
Courts . . to make sure the Act (Title VII) works. . . 
Culpepper V. Reynolds Metals Co., (D.C. Ga.; 1968) 296 
F.Supp. 1232, rev’d (5th Cir.; 1970) 421 F.2d 888 (D.C.
Ga.; 1970, ......  F.Supp. ......., 2 EPD $10,288, af fd (5th
Cir.; 1971) 442 F.2d 1078, insofar as plaintiffs who pros­
ecute Title VII actions may serve to perform a private 
function in vindicating the rights of individuals who are 
victimized by racial discrimination, and may also serve 
as agents of our national policy which seeks to eliminate 
racial and other unlawful employment discrimination. 
Clark V. American Marine Corp., (E.D. La; 1970) 320 F. 
Supp. 709, af fd per curiam (5th Cir.; 1971) 437 F.2d 959. 
This is not to state, however, that our stated national 
policy will best be served when, as in this case, there are 
serious questions regarding the reliability of the hours 
claimed to have been spent by attorneys for the plaintiffs, 
when the degree to which the plaintiffs “prevailed” is 
limited, and where parties seek, as Appellants do here 
(APP. 118a), to have monetary awards designated by 
the Court for individual attorneys involved in the case, 
including a number of attorneys who are employed as 
salaried employees of a tax-exempt, non-profit, charitable 
organization, such as the NAACP Legal Defense Fund.

The Appellee respectfully submits that the record be­
fore this Court indicates, in the first instance, that the 
award of $13,500 in attorney’s fees by the Court below is 
not supported by the evidence and testimony presented; 
and in the second instance, that any award of attorney’s 
fees in excess of $13,500 would be wholly unreasonable 
and excessive. If, in fact, the District Court was 'within 
its discretion in awarding $13,500 in attorney’s fees, any



13

further award would certainly have been abusive and ex­
cessive. We maintain that excessive and factually unsup­
ported awards of attorney’s fees in Title VII actions, far 
from promoting our stated national policy against racial 
discrimination, can only serve to promote abusive practices 
in the filing of civil rights cases, thereby causing a break­
down in the confidence of the public in our system of 
jurisprudence.

I. It Is a Well-Established Principle That This Court Has 
the Power to Review the Adequacy and Reasonable­
ness of an Award of Attorney’s Fees by a District 
Court.

This Court has generally held that reviewing what is 
a reasonable attorney’s fee is a proper function of an ap­
pellate court (Appellants’ Brief, p. 12); however, this 
Court has generally left determination of a reasonable at­
torney’s fee to the sound discretion of the trial judge. 
Electronics Capital Corp. v. Sheperd, (5th Cir.; 1971) 439 
F.2d 692; B-M-G Investment Co. v. Continental Moss 
Gordin, Inc., (5th Cir.; 1971) 437 F.2d 892; Campbell V. 
Green, (5th Cir.; 1940) 112 F.2d 143; see also, Connecticut 
Importing Co. v. Frankfort Distilleries, (2nd Cir.; 1939) 
101 F.2d 79. Corollary to this, this Court has generally held 
that an attorney’s fee award by a trial court judge should 
not be set aside unless there has been a clear abuse of his 
discretion. Hoffman v. Aetna Life Insurance Co., (5th 
Cir.; 1969) 411 F.2d 594; Culpepper v. Reynolds Metals 
Co., supra; Weeks v. Southern Bell Tel. & Tel. Co., (5th 
Cir.; 1972) ...... F.2d........, 5 EPD 1(7956.

If this Court disagrees with the views of the trial 
court on the evidence presented regarding attorney’s fees, 
it may, of course, fix the fees of counsel. B-M-G Invests 
ment Co., supra. However, courts which use the “abuse 
of discretion” standard generally give great weight to the



14

trial court’s evaluation of the evidence, because the judge 
below has the advantage of closely observing the work 
product of the attorneys involved, and as an experienced 
trial judge he would generally know how to appraise the 
time and effort reasonably and prudently spent by lawyers 
in the preparation and presentation of their cases. He 
would also know how to appraise the value of their
services. Lea v. Cone Mills Carp., (4th Cir.; 1972) ......
F.2d...... , 5 EPD 1J7975.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§2000e-5(k), provides that:

“In any action or proceeding under this Title the Court, 
in its discretion, may allow the prevailing party . . . 
a reasonable attorney’s fee as part of the cost of the 
litigation.” (Emphasis supplied.)

While, as this Court has observed, this language is not 
mandatory and does not imply the requirement of any 
formula (Weeks v. Southern Bell, supra), certainly in 
Weeks, Culpepper, Clark v. American Marine Corp., and 
other cases cited herein, this Court has examined the dis­
cretion exercised by District Court judges in courts below 
and not only with an eye toward the vantage point and 
practical expertise of these trial judges, but also with an 
eye toward commonly accepted and established practices 
of private practitioners and the well-established rules of 
evidence.

Other courts, in applying the “abuse of discretion” 
rule, have done likewise. The United States Court of Ap­
peals for the Eighth Circuit, when faced with a record 
which was devoid of any acceptable proof concerning time 
spent by attorneys in preparation for their case or any 
acceptable proof as to the reasonableness of attorney’s fees, 
affirmed an award of $350 attorney’s fees by the court



15

below on the grounds that the only guide the trial court has 
before it in allotting attorney’s fees was the time during 
which the attorney for the plaintiff appeared before that 
court. Eve V. Hegler, et al. v. Board of Education of
Bearden School District, et al., (8th Cir.; 1971) ......
F.2d ...... , 3 EPD j[8337. In light of the Appellee’s dis­
crediting Mr. Moore’s testimony regarding time spent in 
this case, and Mrs. McDonald’s alleged time, the Appellee 
submits that this Court has very little acceptable evidence 
before it other than the affidavit of John W. Wilcox, Jr. 
concerning time spent in this case, on which to base its 
decision as to whether an attorney’s fee award of $13,500 
in this partially successful Title VII action is reasonable.

In Mills v. Electric Auto-Lite Co., 296 U.S. 375 (1970) 
and in Newman v. Biggie Park Enterprises, 290 U.S. 400 
(1968), the Supreme Court indicated that awards of at­
torney’s fees can be ultimately based on the principle of 
effectuating Congressional policy and encouraging public 
interest suits without regard to the good or bad faith of 
the defendants, but these decisions did not encompass the 
range of policy considerations envisioned by the Appellee 
in this case. Laying aside for the moment the question 
of the good faith of the defendant and the fact that many 
of the efforts of the defendant to comply with Title VII 
of the Civil Rights Act have been “commendable” in the 
words of the District Court (APP. 47a), would an award 
of $13,500 in attorney’s fees, which this Appellee thinks 
excessive, serve to effectuate our national policy against 
racial discrimination? For the reasons stated herein, the 
Appellee maintains it would not. In a suit where no dam­
ages in the form of back pay were awarded either to the 
individual plaintiff or to any members of the represented 
class, and where the members of the class were “restricted” 
primarily to a job classification where they made $5.40 
per hour and were “prevented” from transferring to an­



16

other department of an employer in which employees 
made $5.46 per hour and were making, on the average, 
$.08 per hour more than the average employee of that em­
ployer, to award the substantial sum of $13,500 in attorney’s 
fees would in no way effectuate established national policy 
against racial discrimination, but, rather, would encourage 
litigation primarily for the purpose of collecting substantial 
attorney’s fees.

II. An Award of $13,500 Attorney’s Fees in This Case Is
Not “Reasonable” Within the Meaning of 42 U.S.C.
§2000e-5(k).

A. Attorneys employed by the NAACP Legal Defense 
and Educational Fund, Inc. should not be awarded 
attorney’s fees.

At all times since the inception of this case, the 
NAACP Legal Defense and Educational Fund, Inc. (herein 
referred to simply as “Legal Defense Fund”) has been a 
tax-exempt, charitable organization as described in 26 
U.S.C. §501 (c) (3), and is properly listed as such on page 
428 of Cumulative List of Organizations, Publication 78, 
described in 26 U.S.C. §170 (c). Accordingly, all donations 
to this organization are deductible.

The tax-deductible funds amassed by the Legal De­
fense Fund are used “to finance court actions for equality 
in schools, jobs, hospitals, and to defend civil rights work­
ers against illegal arrest, harassment and violence.”5 Thus, 
one of the stated primary purposes for which this charitable 
organization exists is to finance court actions of precisely 
the same type as the case at hand.

Appellee takes note that in his affidavit Howard Moore 
states “. . . I did agree to represent the plaintiff Richard

5. Encyclopedia of Associations, 6th Ed., 1970, Vol. I, p. 761.



17

Johnson, Jr. with the expectation that I would be com­
pensated in the event that the plaintiff prevailed. . . .” 
(APP. 62a) This portion of Howard Moore’s statement 
substantially represents much of the rationale behind 
awarding attorney’s fees to private practitioners in Title 
VII actions, and is encompassed in the duty of Federal 
Courts generally to “make sure the Act works.” Culpep­
per v. Reynolds Metals Co., and Clark v. American Marine 
Corp., supra. This rationale, however, does not and should 
not logically extend to salaried employees of a tax-exempt, 
public-oriented, charitable organization which exists, inter 
alia, precisely for the purpose of participating in this type 
of litigation for the public good.

In Clark, supra, at page 710, one of the factors men­
tioned by the Court in assessing reasonable attorney’s fees 
is “ (t)he likelihood, if apparent, to the client, that the ac­
ceptance of the particular employment will preclude other 
employment by the lawyer.” Appellants have similarly 
mentioned preclusion from other employment as a factor 
to be considered in considering an award of attorney’s fees 
(Appellants’ Brief, p. 31), and in this regard specifically 
mentioned Mr. Moore, Mrs. Rindskopf, and Mrs. McDon­
ald.6 This standard is one of the generally accepted and 
applicable standards pertaining to attorney’s fees in the 
ABA Code of Professional Responsibility, Ethical Con­
sideration 2-18(1961), enforced according to Disciplinary 
Rule 2-106 (B)(2). When considering this factor regard­
ing attorney’s fees, it is obvious that it cannot apply in 
any manner to work performed in this case by Mrs. Mc­
Donald, who, while an employee of the Legal Defense

6. The Appellee assumes th a t A ppellants are speaking of 
the approxim ately 40 hours Mrs. McDonald spent on the instan t 
case as a private  practitioner and not w ith  regard  to the 188 
hours she allegedly spent while employed as a salaried employee 
of the NAACP Legal Defense Fund.



18

Fund, spent an alleged 188 hours in working on this case; 
to Mr. Ralston or to Mr. Bailer, who have also submitted 
affidavits in support of Appellants’ claim for an award of 
attorney’s fees to the individual attorneys involved. (APP. 
118a)

Clark v. American Marine Corp., supra, affirmed per 
curiam by this Court, awarded attorney’s fees on a lump­
sum basis with this observation:

“The lawyers who filed this suit were Louisiana coun­
sel engaged in private practice, members of the Loui­
siana State Bar and of the bar of this court; they were 
joined as co-counsel by a lawyer from New York who 
was admitted pro hac vice. The latter did in fact act 
as leading counsel. But the statute does not prescribe 
the payment of fees to the lawyers. It allows the 
award to be made to the prevailing party. Whether 
or not he agreed to pay a fee and in what amount is 
not decisive.”

Either Howard Moore, Jr. or Mrs. Rindskopf has been 
the chief counsel throughout the prosecution of this suit. 
Also, this case is not comparable to the type of situation 
found in Clark, since Appellants here did not request a 
lump-sum payment of attorney’s fees without regard to the 
question of any arrangements the plaintiffs might have had 
with their attorneys. Instead, Appellants requested awards 
of attorney’s fees to the individual attorneys involved. 
(APP. 118a) Appellee submits that Clark does not con­
trol in the instant case, and that even if Clark may be 
applied to the situation presented here, namely, where the 
attorneys have requested individual awards rather than a 
lump-sum payment, the Court should not ignore the un­
disputed arrangements between clients and attorneys here, 
which includes, of course, the distinction between the pri­



19

vate practitioners involved and salaried employees of the 
Legal Defense Fund.

If attorney’s fees of $13,500 are awarded, they will 
doubtless go to the Legal Defense F'und, since Mrs. Mc­
Donald and Messrs. Ralston and Bailer were salaried em­
ployees and acted, in effect, as agents for the Legal De­
fense Fund. Should this happen, the Appellee will be, in 
effect, forced by this Court to make a contribution to the 
Legal Defense Fund, which in no way can be characterized 
as “compensatory” and is, without question, beyond the 
general scope of monetary awards in American juris­
prudence.

Appellants mention that

“If the award below stands, it can only signal poten­
tial Title VII advocates that they may represent plain­
tiffs with the certain expectation of having to make 
large financial sacrifices, even if they ultimately pre­
vail. Few members of the private bar may be ex­
pected to hearken to such a forbidding call.

“It cannot be overemphasized that Title VII can­
not work and its promise will be broken if the private 
bar is forced to shun Title VII cases or treat them 
cavalierly simply because Title VII -work would force 
its practitioners into bankruptcy.” (Appellants’ Brief, 
p. 19)

This reasoning cannot possibly apply to those attorneys 
employed on salary by the Legal Defense Fund, because 
they are paid a salary by the Fund, whether or not they 
prevail in any given action. It is their business to prose­
cute actions such as the instant one. Thus, even though 
this Court has acknowledged its awareness of the hardships 
civil rights lawyers face in their communities (Sanders v. 
Russell, (5th Cir.; 1968) 401 F.2d 241), the financial hard­



20

ships described by Appellants are wholly irrelevant when 
discussing lawyers who operate on a salaried basis from 
coast to coast.

Furthermore, while Appellants assert that they have 
acted as “private attorneys general” and that “ (t)heir ef­
forts, and hence those of other attorneys handling other 
litigation of great public importance, must be encouraged” 
(Appellants’ Brief, p. 27), it is evident on the facts that 
those salaried attorney-employees of the Legal Defense 
Fund are more closely analogous to members of the Equal 
Employment Opportunity Commission or other agencies 
of the United States Government, rather than private prac­
titioners, insofar as theirs is a public organization which 
is supported by public funds and exists for the public good.

It must also be noted at this juncture that under 42 
U.S.C. §2000e-5(k), the Equal Employment Opportunity 
Commission and the United States Government are not 
allowed awards of attorney’s fees when either of them 
represents the “prevailing party.” Thus, to award attor­
ney’s fees or apportion any part of the amount of attor­
ney’s fees awarded in this case to Mrs. McDonald for the 
188 hours she spent as an employee of the Legal Defense 
Fund, or to Messrs. Ralston and Bailer, could only serve 
to thwart the purpose of the attorney’s fees provisions of 
Title VII.

Finally, if equity dictates that no attorney’s fees should 
be awarded to employees of the Legal Defense Fund, this 
Court should likewise apportion any attorney’s fees at­
tributable to services performed by Mrs. Rindskopf. She 
receives approximately $10,000 annually from the Legal 
Defense Fund to prosecute actions of this type, and this 
stipend sets her completely apart from the truly “private” 
practitioner who might undertake to represent an indigent 
plaintiff in a Title VII action solely on the basis that he



21

would “be compensated in the event that the plaintiff pre­
vailed.” (APP. 62a)

B. The hours claimed by Appellants are unreasonable 
and excessive.

This Court has before it the affidavits of counsel for 
Appellants, submitted in support of their Motion for Award 
of Attorney’s Fees. (APP. 57a-78a) In large part, these 
affidavits speak for themselves regarding duplication of 
effort and unnecessary hours allegedly spent (i.e., review 
and evaluation of various materials by several attorneys, 
consulting with co-counsel, etc.). The Appellee has also 
shown that the testimony of Howard Moore and Mrs. Mc­
Donald regarding the time spent by them in prosecuting 
this action is substantially unreliable. In light of Appel­
lants’ numerous statements in their Brief regarding the 
paucity of hours actually challenged by Appellee, we must 
emphasize that we did not at the attorneys’ fees hearing, 
and still do not for purposes of this appeal, feel that any 
further contradiction of the testimony of Mr. Moore and 
Mrs. McDonald was necessary. To pursue each and every 
item set forth in their affidavits would have taken up an 
inordinately long period of time in the Court below. The 
Appellants alleged that they spent an incredibly large 
number of hours in handling this case, and the Appellee 
successfully challenged and discredited some of those hours. 
By doing so, the Appellee placed the overall reliability of 
the Appellants’ supportive affidavits in serious doubt.

As mentioned above, Mr. Moore did not keep a time 
log during the period he was involved in this action. (APP. 
88a) Likewise, Mrs. McDonald alleged that she spent an 
incredibly large number of hours by “estimating”, upon re­
view of her files, the time she had spent on this case several 
years ago. (APP. 104a-105a) Appellee feels that the ac­



22

curacy of the methods used for arriving at a time-spent 
figure by Mr. Moore and Mrs. McDonald failed completely 
upon cross-examination by Appellee. Since the affidavits 
of Mr. Moore and Mrs. McDonald are unreliable, the Appel­
lee submits that the hours claimed by them must be largely 
ignored by this Court in computing a proper amount of 
attorney’s fees.

Appellee further submits that the participation of Mrs. 
McDonald and Messrs. Ralston and Bailer in the case was 
unnecessary and a per se duplicating factor, in light of Mr. 
Moore’s position as chief counsel (APP. 87a, 110a) and 
the reputation enjoyed by Appellants’ principal counsel, 
the firm of Moore, Alexander and Rindskopf. (APP. 152a; 
Appellants’ Brief, p. 33) Similarly, and without regard at 
this moment as to the arrangements the various attorneys 
involved in this case had with their clients or employers, 
it is not commonly accepted practice among members of the 
legal profession to use more than two attorneys at any one 
time during a trial, to bill clients for unnecessary time spent 
and for reviewing and evaluating files primarily as a train­
ing vehicle. Private practitioners generally try to elim­
inate duplication in their bills. (APP. 150a-151a) Appel­
lants apparently feel that they should be allowed to charge 
for obvious duplication of effort and unnecessary time spent 
—a proposition with which we cannot agree.

C. A serious question exists regarding the extent to 
which the plaintiffs prevailed.

The various claims made by the plaintiffs and relief 
sought has been set forth above (supra, pp. 5-7) in juxta­
position to the relief ultimately obtained from the District 
Court. Without being unnecessarily repetitive, and since 
the record before this Court speaks for itself as to the re­
lief obtained by Appellants, we emphasize that there was



23

no back pay awarded to the individual plaintiffs in the 
action, or any members of the enumerated class; and that 
the relief ordered by the Court below amounted to guide­
lines geared to insure that Blacks employed by the Appel­
lee would no longer have the “feeling or understanding” 
(APP. 47a) that they were restricted by lack of a high 
school education or were restricted in any other discrimina­
tory fashion whatsoever regarding hiring, promotions and 
transfers. This ruling cannot be classified as “broad”, and 
the members of the class in this action were not “victim­
ized” (Appellants’ Brief, p. 17) by the Appellee. They 
were primarily concentrated in the dock department, with 
wages of $5.40 per hour. This is primarily why, as has 
been pointed out above, the average Black employee of 
the Appellee made $.08 per hour more than the average- 
employee of the Appellee, and hence more than the aver­
age White employee of the Appellee.

Other District Courts within the Fifth Circuit have 
stated that the award of reasonable attorney’s fees in ac­
cordance with the mandates of Title VII should be based 
upon that portion of the case in which the employee and 
those in his class prevailed. (See, e.g,, Gunn v. Layne and
Bowler, Inc., (D.C. Tenn.; 1967) ....... F.Supp.........., 1
EPD 1J9023.) The Seventh Circuit has noted an employer’s 
“conscious effort to circumvent Federal law” in awarding 
attorney’s fees in Hodgson V. Miller Brewing Company, 
(7th Cir.; 1972) 457 F.2d 221, which involved violations of 
the Equal Pay Act.

While the Appellee is aware that this Court has stated 
that while a District Court, in its discretion, may allow a 
reasonable attorney’s fee award to the prevailing party 
in a Title VII suit, it “is not mandatory, nor does it imply 
the requirement of any formula.” Weeks v. Southern Bell, 
supra; and the Appellee urges this Court to reasonably



24

apportion the amount of attorney’s fees awarded to Ap­
pellants in this case, based, among other things, on the 
extent to which they prevailed in the Court below. Equity 
requires that this Court accept such a “rule of apportion­
ment” in order that the mandates of Title YII and our na­
tional policy against racial discrimination may retain their 
vitality. If this Appellee or any other employer takes steps 
geared to eliminate racially discriminatory policies which 
may have been part of its past history, and is still bur­
dened with substantial monetary awards, such as the 
award for attorney’s fees in this case, despite being sub­
stantially absolved of conscious or willful wrongdoing with 
regard to its Black employees, what incentive can there 
possibly be for this employer or others to voluntarily com­
ply with Title VII? If excessive attorney’s fees are 
granted in this case and others like it, employers will 
have to pay dearly, whether or not they attempt to comply 
fully with the mandates of Title VII; and attorneys will 
be encouraged to file suit in situations where no “in­
vidious discrimination” is present because there is a strong 
possibility that substantial attorney’s fees will be awarded.

D. The reasonable guides available to this court re­
garding the award of attorney’s fees.

In light of the questionable reliability of the affidavits 
and testimony of Mr. Moore and Mrs. McDonald treated 
above, the Appellee submits that only the uncontradicted 
testimony of John W. Wilcox, Jr., contained in his affidavit 
(APP. 79a-81a) gives a reliable indication of the amount 
of time reasonably necessary in handling the instant litiga­
tion up until the time of the trial on the merits. With re­
gard to time spent from the commencement of the trial 
on the merits until its conclusion, the Appellee does not 
dispute the reasonableness of the hours submitted by Mrs. 
Rindskopf; it only questions the weight these hours should



25

be given in light of Mrs. Rindskopf’s retainer arrange­
ment with the NAACP Legal Defense Fund.

The other uncontradicted evidence before this Court 
which is relevant to' the issue of attorney’s fees is the 
testimony of Appellants’ witness, Mr. Michael Doyle, re­
garding common billing practices among private prac­
titioners, described supra, which casts serious doubts on 
the reasonableness of the practices employed by counsel 
for the Appellants.

Finally, this Court has before it the admission by 
Howard Moore that the case of Culpepper v. Reynolds 
Metals Co., supra, is closely analogous to the instant case 
regarding both significance of the case and amount of 
time spent. (APP. 89a) In that case there was a monetary 
recovery of $156 by the plaintiff Culpepper, and attorneys’ 
fees of $1,500 were awarded. While the Appellee believes 
this Court is expert on the question of attorney’s fees 
and does not feel it necessary to advise the Court, as Ap­
pellants do, as to precise amounts to be deemed reasonable, 
we do feel that in light of the unreliability of Mr. Moore’s 
affidavit and testimony regarding attorney’s fees, consider­
able weight should be given to his comparison between the 
two above-mentioned cases.

III. Any Award of Attorney’s Fees in Excess of $13,500
Would Be Unreasonable, Inequitable, and Excessive.

The Appellee has raised a number of different issues 
herein regarding the excessiveness of the $13,500 in at­
torney’s fees awarded by the Court below, and, accordingly, 
urges this Court to direct that the amount of attorney’s 
fees awarded to the Appellants should be reduced to an 
amount substantially lower than $13,500. Should, however, 
this Court decide that the questions raised by Appellee 
do not dictate an award of less than $13,500, by deciding



26

those issues raised adversely to the Appellee, in no event 
should this Court find that the District Court Judge abused 
his discretion and direct that attorney’s fees in excess of 
$13,500 be awarded.

As seen in Weeks v. Southern Bell, supra, there is no 
set formula for an award of reasonable attorney’s fees in 
Title VII cases. What this Appellee is seeking is for this 
Court to set some more definite guidelines and limitations 
on awards of attorney’s fees in such cases. Laying these 
contentions aside for the moment, however, the award of 
$13,500 attorney’s fees by the Court below can certainly 
not be considered an abuse of discretion. In the Weeks 
case, where Mrs. Weeks recovered over $30,000 in back 
pay and the Court awarded $15,000 in attorney’s fees, this 
Court observed that

“Judge Bell reviewed the many factors that are prop­
erly taken into consideration in determining a reason­
able attorney’s fee and applied his own knowledge, ex­
perience, and expertise to determine the dollar amount 
to be awarded. . . .”

In finding that a review of the facts before Judge Bell 
supported his award, this Court also stated:

“Judge Bell thoroughly discussed the bases for his 
award of attorney’s fees to Mrs. Roberts. He weighed 
the result obtained; the time expended by Mrs. Roberts 
both during and after the appeal; the expert testimony 
of Phyllis Kravitch and Julian F. Cornish, two Sa­
vannah attorneys; the affidavits of three Louisiana at­
torneys—George B. Hall of Alexandria, Edna Sakir of 
New Orleans, and Jerry H. Bankston of Baton Rouge; 
and the affidavit of J. R, Goldthwaite, Jr., of Atlanta. 
Additionally, Judge Bell considered the decision of 
Judge Rubin in Clark v. American Marine Corpora-



27

tion. . . , as well as the fact; that ‘the settlement finally 
consummated was very favorable to plaintiff. . He 
considered the briefs filed in the Fifth Circuit, the 
record, the difficulty of the appeal, the efforts on re­
mand and the contingency of an attorney’s fee award.

“Judge Bell was an experienced trial lawyer ac­
customed to the manifest difficulties inherent in fixing 
reasonable attorney’s fees. He is an experienced, fair- 
minded, highly respected member of this Court. He 
was fully aware of the importance of the Weeks case. 
The question before this reviewing court is not what 
fee the members of this panel might have awarded 
sitting as a district court. The question is whether 
Judge Bell abused his discretion by awarding an un­
reasonably low fee. The majority answers firmly that 
Judge Bell did not abuse his discretion in making his 
award of $15,000 to Mrs. Roberts.”

The reasoning of this Court with regard to Judge Bell’s 
award of attorney’s fees in the Weeks case applies equally 
to the award of the District Court below, should this Court 
decide the issues previously raised by the Appellee ad­
versely. Here, as in the Weeks case, Judge Moye, who pre­
sided over the trial on the merits in the District Court 
below, was an experienced trial lawyer for many years 
before he became a District Court Judge. As a private 
practitioner his reputation in the Atlanta, Georgia area was 
one of the highest order. While Appellants would have 
this Court find that Judge Moye abused his discretion be­
cause he did not set out in more detail each of the facets 
of the evidence presented before him and upon which 
he relied in awarding $13,500 in attorney’s fees, this Ap­
pellee finds it incomprehensible that a Judge with such a 
wealth of experience as a private practitioner could pos­
sibly have ignored the evidence presented to him on this



28

issue. By way of parallel, it is equally incomprehensible 
to this Appellee that merely because an appellate court 
adopts the opinion of a lower court per curiam, this, in 
itself, indicates that the appellate court has not considered 
the evidence in the entire record before it, and the conten­
tions of both the appellant and the appellee.

Confronted with conflicting evidence on the issue of 
attorney’s fees, Judge Moye stated that his award of $13,- 
500 was

“based upon my finding that the job which has been 
accomplished in this case could be accomplished for 
that sum of money in this locality. It is based, gen­
erally, upon sixty days, sixty man days, $200 amount­
ing to $1200 (sic). Three trial days, $250 apiece for 
two attorneys, $1500, for a total of $13,500.” (APP. 
178a-179a)

Judge Moye was thoroughly familiar with rates commonly 
charged for various types of litigation in the Atlanta area, 
heard evidence on that point and numerous other points 
regarding the award of attorney’s fees, and certainly was 
in the best possible position to gauge the reasonable amount 
of time which should have been spent by the Appellants 
in conducting the litigation involved. He had first-hand 
contact with counsel for both sides and heard all of the 
evidence presented. As the United States Court of Ap­
peals for the Fourth Circuit properly observed in Lea v. 
Cone Mills Corp., supra,

“Judge Stanley (the trial court judge), of course, had 
the advantage of close observation of their (plaintiffs’ 
counsel) work product. An experienced trial judge, 
such as he, knows how to appraise the time and effort 
reasonably and prudently spent by lawyers in the 
preparation and presentation of their cases; he knows



29

how to appraise the value of their services. Duplica­
tion of effort which we may only suspect could have 
been very apparent to him. Indeed we know that he 
thought the computation of the hours unreasonably 
high, for . . .  he remarked from the Bench, ‘some of 
these items I just think wouldn’t take that long.’ ”

It is also significant that when Judge Moye issued his oral 
order regarding attorney’s fees, on June 30, 1972 (APP. 
177a-179a), the Appellants did not request more specific 
findings.

Regarding the significance to be attached to the 
amount awarded, per se, by no stretch of the imagination 
can an award of $13,500 in attorney’s fees be character­
ized as “minimal” (Appellants’ Brief, p. 18) in a case 
where the “prevailing party” was only partially success­
ful. In Culpepper v. Reynolds Metals Co., supra, character­
ized by Howard Moore as closely analogous to the instant 
case with respect to both significance and effort necessary, 
this Court approved not only the award of $156 in dam­
ages to the plaintiff, but an award of $1,500 in attorney’s 
fees. In Lea v. Cone Mills Corp., supra, Judge Haynsworth 
took note of Courtesies Chevrolet, Inc. v. Tennessee Walk­
ing Horse Breeders and Exhibitors Assn., (9 Cir.; 1968) 
393 F.2d 75, which the Court said was

“a not uncomplicated antitrust case in which the 
plaintiffs’ attorneys had expended 2,289 hours, four 
times the number of hours claimed here (in Lea).”

Judge Haynsworth was of the opinion that if $10,000 in 
attorney’s fees could be considered reasonable in such a 
complex antitrust case, certainly $10,000 in a Title VII ac­
tion where counsel for the plaintiffs had allegedly spent 
515 hours in handling the case and where there were



30

numerous attorneys involved (12), was certainly within 
the bounds of reasonableness.7

The Appellants have proposed that this Court should 
either set aside the award of the District Court below and 
make a decision of its own on the basis of the complete 
record, or remand to the District Court with directions to 
enter a more generous award based on articulated and re- 
viewable findings and standards. (Appellants’ Brief, p. 
26) Throughout their brief, Appellants place great em­
phasis on the number of hours claimed by them, apparently 
choosing to ignore the fact that the overall reliability of the 
affidavits and testimony supporting these claimed hours 
has been successfully attacked by the Appellee. There are 
two additional responses to the position taken by the Ap­
pellants. In the first instance, the hours allegedly spent 
by attorneys in the case are not the sole basis for determin­
ing a fee in this Circuit. Electronics Capital Ccnp. v. Shep- 
erd, supra. Secondly, Rule 52(a) of the Federal Rules of 
Civil Procedure does not require a specific findings of fact 
and conclusions of law with regard to motions for attor­
ney’s fees under the provisions of Title VII. The Appel­
lee feels that the following observation by Judge Hayns- 
worth in Lea v. Cone Mills Corp., supra, should control 
here:

“F.R.C.P. Rule 52 (a) does require findings of fact and
conclusions of law in actions tried without a jury, but,
in its last sentence, it exempts ‘decisions on motions

7. The Appellee recognizes th a t in Lea  v. Cone Mills Corp. 
the 'Fourth Circuit Court of Appeals was faced w ith the addi­
tional problem  th a t the tr ia l court judge had died betw een the 
tim e he issued his final order and the tim e the case was review ed 
by the C ourt of Appeals. N otw ithstanding this, however, the 
Appellee feels th a t the  reasoning of the C ircuit Court in  Lea  is 
still applicable to the findings of Judge Moye in the proceedings 
below.



31

under Rule 12 or 56 or any other motion except as 
provided in Rule 41(b).’ The fee award was sought 
by motion under the provisions of §706 (k) of Title 
VII. It is one of the ‘other motions’ exempted from 
the requirements of Rule 52(a), and the absence of 
findings does not require reversal. The fact that no 
findings were requested of the District Court empha­
sizes our conclusion.” (Emphasis supplied.)

The order of Judge Moye was based on the evidence pre­
sented to him, and his own expertise and experience re­
garding the amount of time necessary for the job accom­
plished by counsel for the Appellants, and the amount 
which could reasonably have been charged for the job per­
formed by counsel for the Appellants. Should this Court 
decide that the issues raised by the Appellee do not war­
rant a reduction in the award of $13,500, Judge Moye’s 
award should stand. Given the limited success of the Ap­
pellants and the evidence before this Court, it is evident 
that Judge Moye’s award is sufficient and does not con­
stitute a clear abuse of his discretion. Culpepper v. Reyn­
olds Metals Co., supra; Electronics Capital Corp. v. Sheperd, 
supra.



32

CONCLUSION

For the reasons set forth herein, this Court should re­
verse the judgment of the Court below and direct that 
Court to award counsel for the Appellants attorney’s fees 
in an amount substantially less than $13,500.

Alternatively, this Court should affirm the award of 
$13,500 in attorney’s fees by the Court below as being 
within that Court’s discretion.

Respectfully submitted,
W ilson, W ilcox and W ilson

J ohn W. W ilcox, J r.

Thomas M. K una 
Attorneys for Georgia Highway 

Express, Inc., Defendant-Ap­
pellee-Cross-Appellant

2620 Equitable Building 
Atlanta, Georgia 30303 
Telephone: (404) 524-3611



33

SUPPLEMENT TO JOINT APPENDIX, DEFENDANT S 
EXHIBIT NO. 5, UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA

Average Rate by Department

Atlanta Terminal Office, Atlanta Pick Up & Delivery De­
partment and Atlanta Dock Department.
Source
Payroll Records 
of 1/17/72

Average 
Per Hour 

Rate for all 
Employees

Average 
Per Hour 
for Black 

Employees

Average 
Yearly 

Earning 
Overall 
Based 

on 40-hour 
Week

Atlanta Office 
Atlanta Pick Up &

$4.59 $4.18 $ 9,547.20

Delivery Department 5.39 5.46 11,211.20
Atlanta Dock 5.32 5.35 11,065.60
TOTAL AVERAGES $5.27 $5.35

1.2% difference between Average Yearly Earnings of 
Pick Up & Delivery Department and Dock Department.



34

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the above 
and foregoing Brief for Appellee-Cross-Appellant, by mail­
ing a copy of same, United States Mail, postage prepaid, 
this the 5th day of January, 1973, to the following:

Howard Moore, Jr.
Elizabeth R. Rindskopf 
75 Piedmont Avenue, N.E.
Atlanta, Georgia 30303
Jack Greenberg 
Charles Stephen Ralston 
William L. Robinson 
Morris J. Bailer 
10 Columbus Circle 
New York, New York 10019

Thomas M. Kuna 
Attorney for Georgia Highway 

Express, Inc.