Fisher v. University of Texas at Austin Brief Amici Curiae in Support of Respondents

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No, 78-3066

CRITERION CLUB OF ALBANY, et al.. 
Appellants,

versus

THE BOARD OF COMMISSIONERS OF 
DOUGHERTY COUNTY, GEORGIA, et al.,

Appellees.

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

REPLY BRIEF OF APPELLANTS

DAVID F. WALBERT
1210 First National Bank Tews
Atlanta, Georgia 30303
HERBERT E. PHIPPS 
P. 0. Drawer 346S 
Albany, Georgia 31706
ATTORNEYS FOR APPELLANTS



UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

IN THE

No. 78-3066

CRITERION CLUB OF ALBANY, et al., 
> Appellants,

versus

THE BOARD OF COMMISSIONERS OF 
DOUGHERTY COUNTY, GEORGIA, et al.,

Appellees.

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

REPLY BRIEF OF APPELLANTS

DAVID F. WALBERT
1210 First National Bank Tower
Atlanta, Georgia 30303
HERBERT E. PHIPPS 
P. 0. Drawer 3468 
Albany, Georgia 31706
ATTORNEYS FOR APPELLANTS



TABLE OF CONTENTS

TABLE OF CASES .......................................  iii

ARGUMENT

I. APPELLANTS ARE ENTITLED TO A FEE AWARD....  1

II. APPELLANTS ARE ENTITLED TO A FEE IN
THE AMOUNT REQUESTED......................... 9

1. Title and Labor Required .............. 11

2. The Basic Hourly Rate to be Applied.... 16

3. The Novelty and Difficulty of the
Questions ............................... 20

4. Skill Required to Perform the Legal 
Service and the Experience, Pveputa-
tion, and Ability of the Attorneys.....  22

5. Preclusion of Other Employment and
the "Undesirability" of the Case...... 24

6. Whether the Fee is Fixed or Contingent. 25

7. Time Limitations Imposed by the Case... 26

8. The Amount Involved and the Results
Obtained............................. . 27

9. Nature of Relationship with Client....  28

10. Fee Multiplier Requested................ 29

CONCLUSION............................................. 31



Page(s)
Arenson v. Board of Trade,

372 F.Supp. 1349, 1353 (N.D.I11. 1974) ......  4,29

Beazer v. New York Transit Authority,
558 F . 2d 97, 100 (2d Cir. 1977)................  17,30

Blau v. Rayette-Faberge, Inc.,
339 f ", 2d 469 (2d Cir. 1968)....................  9

Brown v. Culpeoper,
561 F . 2d 1177 (5th Cir. 1977)..................  11,18

Cherner v. Transitron Electronic Corp.,
221 F.Supp. 55, 61 (D.Mass. 1963)..............  26

Cohen v. Maloney,
428 F.Supp". 1278 (D. Del. 1977).................  16

Commonwealth of Pennsylvania v. O'Neil,
431 F.Supp. 700, 712 (E.D.Pa. 1977)............ 30

David v. Garrison,
553 F . 2d 923 ....................................  20,26

Detroit v. Grinnell Corp.,
495 F . 2d 448, 471 (2d Cir. 1974)...............  25

Conson Stores, Inc. v. American Bakeries Co.,
60 F.R.D. 417, 420 (S.D.N.Y. 1973).............  20

Dorfman v. First Boston Corn.,
70 F.R.D. 366, 375-76 (E.D.Pa. 1976)........... 4,29

Dottenheim v. Emerson Electric Mfg. Co.,
7 F.R.D. 195, 197 (E.D.N.Y. 1970)..............  9

Dougherty County Board of Education v. White,
A 7 U.S.L.W. 4001, 4004 (U.S., Nov. 23, 1978)... 3,6

Ellis v. Flying Tiger Corn.,
504 F . 2d 1004 (7th Cir. 1972)..................  19

Gypsum, In re:
386 F.Supp. 959 (N.D.Cal. 1974)................  20,29

Table of Cases

-iii-



Henderson v. Fort Worth Independent School District,
574 F . 2d 1210 (5th Cir , 1978) .... .......  1,2

Henderson v. Fort Worth Independent School District,
584 F . 2d 115, 116 (5th Cir. 1978)..............  2

Hendrix v. Joseph,
559~ F. 2d 1265 (5th Cir. 1977)..................  20,26

ISKCON v. Havs,
No. 76-1938 (S.D.Fla.)..........................  19

ISKCON v. Sullivan,
No. 77-0234 (N.D.Fla. , March 20, 1978)......... 19

Johnson v. Georgia Highway Express,
448 F , 2d 714 (5th Cir. 1974)... ................  10,11,18,21

23,27,28,32
Kahan v. Rosensteil,

424 F . 2d 161 (3d Cir. 1970)..................... 9

Kaplan v. Int'1 Alliance of Theatrical &
Stage Employees,
525 F. 2d 1354, 13 63 (9th Cir. 1975)............  11

Kirksey v. Hinds County,
554 F . 2d 139 (5th Cir. 1977)...................  21

Lindy Brothers Builders, Inc. v. American Radiator,
"Sd'O F.Supp. 999 (E.D.Pa. 1974).................  29,30

Lockheed Minority Coalition v. Lockheed Mis-siles &
Space Co.,
406 F.Supp. 828 (N.D.Cal. 1976)................  14,17

NAACP v. Bell,
448 F.Supp. 1164 (D.D.C. 1978).................  18

NAACP v. Allen,
340 F.Supp. 703, 710 (N.D.Ala. 1972), aff'd,
493 F . 2d 614 (5th Cir. 1974).................... 24

Oil, Chemical & Atomic Workers v, American Maize 
Products Co.,
492 F . 2d 409 (7th Cir. 1974) ..... ............. 1

-iv-



Oliver v. Kalamazoo Board of Education,
73 F.R.D. 30 (W. D .Mich. 1976).... .............. 18

Paige v. Gray,
437 F.Supp. 137 (M.D.Ga. 1977), on remand from,
538 F . 2d 1108 (5th Cir. 1976) . . . ....... 77. 5,6,7,13,21

Pitts v. Busbee,
395 F.Supp, 35,39 (N.D.Ga. 1975)...............  5

Prandini v. National Tea Co.,
47 L.W. 2091 (3d Cir. 1978)..................... 16

Rainev v. State College,
, 551 F . 2d 672 (5th Cir. 1977).................... 24

Stanford Daily v. Zurcher,
64 F.R.D. 680, 688 (N.D.Cal. 1974).............  4,29

Torres v. Sachs,
538 F . 2d 10,12 (2d Cir. 1976)....... ..........  17

Walker v. Ralston-Purina Co.,
409 F.Supp. 101, 104 (M.D.Ga. 1976)............  12,13,14,18

Wolf v. Frank,
555 F . 2d 1213 (5th Cir. 1977)..................  31

Wynn Oil Co. v. Purolator Chemical Corn.,
391 F.Supp. 522 (M.D.Fla. 1974)./..... ........  20

-v-



ARGUMENT

I. APPELLANTS ARE ENTITLED TO A FEE AWARD.
Nor surprisingly, the appellees completely ignore 

the legislative history that governs the Fees Awards Act in 
question here, since that history squarely and unequivocally 
supports the plaintiffs' appeal. What the appellees do cite 
are two cases, Oil, Chemical & Atomic Workers v, American 
Maize Products Co., 492 F.2d 409 (7th Cir. 1974), and Henderson 
v. Fort Worth Independent School District, 574 F.2d 1210 
(5th Cir. 1978). Neither of these cases, however, add anything 
whatsoever to the defendants' position. According to the defen­
dants, the American Maize Products case was a "class action 
alleging sex discrimination under Title VII." (Appellees'
Brief at 19) That case is nothing of the sort. The American 
Maize Products decision was an appeal from a case brought
under Section 301(a) of the L.M.R.A. to compel an employer to



arbitrate a grievance. The case had absolutely nothing to 
do with attorneys' fees awards, contrary to appellees' repre­
sentation .

While it is true that the second decision that 
appellees cite, the Henderson decision, did involve attorneys' 
fees, the facts and rationale of that decision make it com­
pletely irrelevant to the case at bar. More importantly, the 
appellees ignore the fact that the panel decision was vacated 
by the en banc court, and the panel "decision of the Court of 
Appeals has no precedential value." Henderson v. Fort Worth 
Independent School District, 584 F.2d 115, 116 (5th Cir. 1978) 
(en banc).

Lacking any legal support for their position, the
appellees proceed to create a factual picture that is entirely
unrelated to the case at bar. Defendants represent Dougherty
County as something of a racial utopia where the white rulers
(no black had ever held elected public office in Dougherty
County with the County Commission, the Albany City Commission,
or the State Legislature prior to the recent establishment of
single-member districts for each of the three bodies pursuant

1/to litigation and the compulsion of the Justice Department)

1/ As the appellees have pointed out in their brief, 
there has been only one black candidate for the County Com­
mission. (Appellees' Brief at 5, n. 1) This individual was 
Mr. Clennon King, who appellants overlooked in their statement 
that no black had ever run for the Commission. Mr. King is 
an at least somewhat crazy individual who has run for a number 
of offices in the State of Georgia, and he never picks up more 
than 30 or 40 votes. He is not a serious candidate, which is 
the reason he was ignored in appellants' statement. Mr. King 
is most famous for his efforts in 1976 to desegregate President 
Carter's local church in Plains, Georgia.

- 2-



treat their black subj ects graciously. The truth is much to 
the contrary, however, since Dougherty County is an area 
where racial progress has come over the decades solely where 
it has been forced by the federal courts or the federal 
government. Only a month ago, the Supreme Court of the United 
States made this very point in commenting that "Dougherty 
County [is] an area with a long history of racial discrimina­
tion in voting." Dougherty County Board of Education v. White, 
47 U.S.L.W. 4001, 4004 (U.S., Nov. 28, 1978). The Court then 
cited to the voting rights litigation concerning the City of 
Albany that parallels the instant case. Id. at n. 11. The 
opinions in that case document some of the past efforts by 
black citizens to secure some of the most minimal civil rights 
that have been denied them by local public officials.

The point of the appellees' argument is presumably 
that the plaintiffs would not have prevailed had this case 
been tried. As appellants have shown in their principal brief, 
it is clear that no such showing must be made in order to 
establish the right to attorneys’ fees. But what is most 
peculiar in the defendants' argument is that it implies that 
the fee award here should be particularly great. Since the 
plaintiffs were faced with such a difficult burden of proof, 
one which the defendants contend could not have been overcome, 
their great success in obtaining a very favorable settlement 
of the substantive issues entitles them to an enhancement of 
the award according to the applicable precedents. And since

-3-



the defendants agree that the case was a very contingent 
one, with very little chance of success, a contingent multi­
plier is also especially appropriate here. E.g., Dorfman v. 
First Boston Corp., 70 F.R.D. 366, 375-76 (E.D.Pa. 1976) (50%
bonus for contingent nature of work and quality of performance) 
Arenson v. Board of Trade, 372 F.Supp. 1349, 1358 (N.D.I11. 
1974) (award increased by a factor of 4); Stanford Daily v. 
Zurcher, 64 F.R.D. 680, 688 (N.D.Cal. 1974) ($10,000 bonus
added to reflect "the contingent nature of compensation, the 
quality of the attorney's work, and the result obtained by the 
litigation."),

Moreover, the various points cited by the defendants 
in support of their contention simply do not hold up. For 
example, the defendants state that they have an affirmative 
action plan which is evidence of responsiveness. At the trial 
in this case, however, the severely discriminatory employment 
practices of defendants would have been very helpful to the 
plaintiffs' case. The so-called affirmative action plan was 
not adopted until recently, and it was not adopted until 
various federal agencies began to require it. Again, this 
plan was not evidence of responsiveness, but was instead a 
typical instance of the "too little-too late" pattern of 
Dougherty County racial practices.

Even more serious was the substantive content of the 
plan itself. As the actual goals of the plan, the defendants 
had determined that certain higher level employment positions

-4-



within the County would have few or no blacks. These "goals" 
were arrived at by obtaining local Labor Department percen­
tages on the number of blacks employed in management and higher 
level positions, and then incorporating those percentages 
directly in as the "goals” of the plan. Because of the over­
whelming historic discrimination that continues to the present 
in Dougherty County, there are, of course, almost no blacks 
in any of these positions locally. By using these percentages 
as their "goals," the County in effect transformed
a so-called affirmative action plan into a "status quo plan" 
designed specifically to lock in the very effects of past 
discrimination that are supposed to be overcome by a true 
affirmative action plan.

Some of the other aspects of the plaintiffs 1 dilution
case were mentioned before, Brief of Appellants at 10, n. 2,
and it would be of no particular benefit to discuss all the
possible and probable evidence that would be adduced at such 

2/
a trial here. As to the appellants' amazing statement that

2/ Among the factors to be considered is the "state 
policy" concerning at-large elections. Georgia has no state 
policy favoring at-large elections, Pitts v. Busbee, 395 F. Supp. 
35, 39 (N.D.Ga. 1975), and many of the at-large elections that 
do exist here were specifically established for discriminatory 
reasons. E.g., Paige v. Gray, 437 F.Supp. 137 (M.D.Ga. 1977). 
About 20 counties with large black populations switched from 
district to at-large voting shortly after passage of the 1965 
Voting Rights Act.

-5-



reapportionment would have been forthcoming here merely for 
the asking, however, a response is required. (Appellees'
Brief at 20) The representation by appellants that the 
local legislative delegation has been responsive to black 
interests is, at best, grossly untrue. The local delegation 
in both the House and Senate had been exclusively white since 
Reconstruction until 1974. Prior to that time, the legisla­
ture had maintained multi-member districts locally which pre­
cluded any black from being elected. Notwithstanding this 
obvious discrimination against black electors and candidates, 
the legislature refused to change until it was forced to 
establish single-member districts by the Justice Department 
pursuant to the Voting Rights Act of 1965. See, U.S. Comm'n 
on Civil Rights, The Voting Rights Act: Ten Years After, 230-34 
(1975). The black candidate who prevailed in his 1974 race 
from the single-member district was also subjected to new 
rules by his employer, the Dougherty County Board of Education, 
designed to make political candidacy difficult. That case was 
just resolved by the United States Supreme Court, Dougherty 
County Board of Education v. White, 47 U.S.L.W. 4001 (U.S.,
Nov. 28, 1978).

And even though identical litigation to the present 
case concerning elections in the City of Albany -- where 
approximately 80% of all Dougherty County residents live,
47 U.S.L.W. at 4004, n. 11 —  had been ongoing for years in the 
Paige v. Gray case, the legislature had never given the slightest

-6-



indication of any intention to accommodate the interests of 
local black citizens. In the present case, there was simi­
larly not the slightest hint of possible settlement until 
after Judge Owens’ second opinion in Paige v. Gray, which 
put six of the seven City Commissioners in Albany on a dis­
trict plan and left the Mayor (who is also a Commissioner)

1/on an at-large basis. Indeed, it is strange that the 
defendants now have the temerity to suggest that the case 
could have been settled without a law suit when defense 
counsel himself took the position that he was going to try 
this case, and denied any substantive liability, as recently 
as July of 1977. As the correspondence in the file reveals, 
both counsel had represented to the Court an intention to 
try the case, and asked for additional time to prepare for 
a trial on the merits. Judge Owens granted the joint request 
for such an extension on July 22, 1977,(R. 219) The Court’s 
letter was in response to the letter from defendants' counsel 
announcing his intention'to be ready to try the case in Novem­
ber of 1977. (R. 218)

Thus, the ultimate legislative solution in this 
case is by no means an example of responsiveness; it is simply 
the same historical pattern seen in Dougherty County for

3/ The plaintiffs again appealed that case to this 
Court to contest the propriety of the remaining at-large seat, 
but the parties agreed to a redistricting of the City that was 
implemented pending that appeal. The appeal was then dis­
missed after the implementation of the accommodation. Paige 
v. Gray, No. 77-3220.

-7-



decades. When the whites in positions of power know that they 
must act or the federal government, or a federal court, will 
take over and act for them, then and only then do blacks make 
any progress locally. Plaintiffs’ counsel in this case knew 
the legislative delegation well, and they knew that nothing 
would be accomplished without a judgment in hand from the 
district court, or at least without the kind of clear indica­
tions of an upcoming judgment that was sent from Judge Owens 
to the parties. Indeed, in the experience of present counsel, 
the legislature of Georgia will normally act, even after an 
adverse judgment, only in a way that is specifically designed 
to do the absolute minimum possible, rather than give blacks 
fair and proportional access in a reapportionment scheme.
Since it is more difficult for blacks to challenge a reappor­
tionment scheme that allows them some access, albeit less than 
equal access, the legislature has acted in some areas to allow 
blacks the minimum number of seats on local elected bodies 
that might thwart a judicial challenge, and a subsequent 
reapportionment through a court-ordered plan. To allow the 
legislature to act without firm guidance from a federal court, 
brought into play by plaintiffs’ counsel, counsel might have 
been acting negligently since their clients could have 
received a reapportionment scheme that was a slight improvement, 
but which fell far short of a truly fair scheme.

Moreover, defendants here forget the interesting 
issue that would have arisen had a legislative solution been

-8



successful without the necessity of ever having had to have 
brought a law suit. In commercial litigation —  where there 
is no similarly positive statement in the congressional 
history concerning the desirability and necessity of awarding 
fees —  courts have still awarded fees where no suit whatso­
ever was necessary, and the entire underlying controversy was 
resolved and mooted prior to suit. These courts have reasoned 
that it would be "penalizing efficiency and expediency" to 
deny fees where counsel has acted out of court and was success­
ful in pursuing his clients' interests. E.g. , Dottenheim v. 
Emerson Electric Mfg, Co., 7 F.R.D. 195, 197 (E.D.N.Y. 1970).
See also, Kahan v. Rosensteil, 424 F.2d 161 (3d Cir. 1970);
Blau v. Rayette-Faberge, Inc., 389 F.2d 469 (2d Cir. 1968).

II. APPELLANTS ARE ENTITLED TO A FEE IN THE AMOUNT REQUESTED.
Plaintiffs have requested that this Court determine 

the amount of fees to be awarded, both for the proceedings in 
the district court, and for the efforts on appeal here. Plain­
tiffs make this request in order to ensure that a fee determina­
tion is made in the most expeditious manner, and to ensure that 
the determination is a final one that would not be subject to 
appeal by either side. In support of that request, the plain­
tiffs have cited in their principal brief authority which allows 
the Court of Appeals to set the amount of fees, even in the 
event of a disagreement with the lower court over the facts 
and evidence. The appellees here have said nothing in their

-9-



brief which would weigh against appellants’ request; in fact, 
their brief emphasizes the wisdom of having a determination 
made at this time.

There is no factual dispute whatsoever over the 
amount of time claimed here, or the hourly rata requested.
The defendants at no time have made any effort to contradict 
the hours claimed by plaintiff, nor is there any evidence 
in this record whatsoever that would contradict the amount 
of the hourly rate requested. The defendants have not 
exercised their right to discovery to bolster any of their 
suggestions that the time claimed might be excessive. Still, 
defendants state that this case for some reason should be 
remanded to the district court and that the court ”should 
look into" various of the Johnson factors.

The defendants seem to misconceive the role of 
the federal courts. The courts must make factual decisions 
when there is a true conflict of fact, but it is not the 
court's function to conduct investigations on behalf of 
counsel who have failed in their own efforts to raise any 
factual disputes. United States District Courts do not con­
duct discovery hearings, but rather hearings to resolve 
conflicting evidence. Particularly in the area of attorneys' 
fee awards, hearings should be conducted only when absolutely 
necessary. This Court itself is expert in determining the 
amount of fees, and there is less need than in the usual case

-10-



of a factual dispute to conduct an evidentiary hearing. One 
would think that the defendants would equally welcome a fee 
determination by this Court in order to eliminate the expendi­
ture of any further attorney time in this case, which must 
ultimately be borne by the defendants. As in Brown v. Culpepper, 
561 F.2d 1177 (5th Cir, 1977), there is absolutely no need for 
a hearing in the lower court here. See also, Kaplan v. Int'l 
Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1363 
(9th Cir. 1975) (rejecting claim that hearing is necessary before 
making fee award).

Indeed, it should be noted that every bit of this 
section of defendants’ brief is a verbatim quotation of their 
brief in the trial court. Since they do not even intend to 
present anything different, regardless of which court sets the 
fees, it is difficult to understand any reason at all why de­
fendants seek a remand and another opportunity to submit the 
same material.

Finally, plaintiffs indicated in their original 
brief that they intended to generally rest on the record in 
the trial court, including the pertinent affidavits and briefs, 
as to the appropriateness of the amount of fee to be awarded. 
However, since the defendants' principal brief does go into 
the time, hourly rate, and other Johnson factors, the plaintiffs 
will do the same here rather than just merely rest on the re­
cord. In large part, the following will be a reiteration of what 
has been presented in the lower court briefs, updated with re­
cent decisions that have occurred in the ensuing months.

1. Time and Labor Required. The defendants' brief 
grossly misrepresents the evidence in the record with regard 
to the time expended by plaintiffs' counsel. For example,

-11-



defendants state that Mr. Walbert "is claiming approximately
34.15 hours" for conferences with cocounsel. (Appellees’ Brief
at 23) However, the supporting affidavits and exhibits in the
record show no such thing whatsoever. (R. 127-29) Defendants'
representation that Mr. Walbert is also claiming 14.1 hours
for "telephone calls which were apparently to cocounsel" is
not exaggerated as seriously as this first statement, but is
exaggerated by approximately 100%.

Eliminating the exaggerations of defense counsel,
it is clear that the time claimed by plaintiffs1 counsel
is extremely reasonable in this case, given its factual
complexity. The hours expended by an attorney are given
primary consideration in setting the fee award. Because it
is very difficult to second guess the time expended after
the fact, the courts are generally reluctant to eliminate
time claimed unless there is clear waste or duplication. As
the Court stated in Walker v. Raiston-Purina Co., 409 F.Supp.
101, 104 (M.D.Ga. 1976):

Who can say how much of a lawyer's time or 
what steps, effort or strategy leads to 
victory? Who can say that Ms. Turner with 
an expenditure of less time and effort would 
have built the fire that was built under 
the defendants to cause them to voluntarily 
pay the handsome sum of $70,000 that has 
been paid and to agree to the substantial, 
far-reaching changes in their employment 
practices? The only perfect vision that 
this court knows of is "20/20 hindsight."
That in common sense language is nothing 
more than second-guessing what plaintiffs' 
counsel did. The court cannot fault what 
she did or say that anything that she did is 
unnecessary.

-12-



In the Walker case, substantial time was expended in
obtaining a settlement in a Title VII action. In this case, 
a relatively small amount of time was expended in obtaining 
excellent results. Indeed, the relative time expended in 
light of the results can be very favorably assessed by com­
paring this case with the litigation involving the City of 
Albany, Paige v. Gray. Similar relief in that case was not 
obtained until the entry of two orders by the district court, 
and an appeal to this Court. Many thousands of dollars of 
expenses and over a thousand hours of attorney time were 
expended in the Albany case to obtain that relief. The same 
relief was obtained here with a fraction of the effort. It 
would be impossible to rationally claim that plaintiffs' 
counsel expended unnecessary effort in obtaining the relief 
that flowed from this case.

Following the logic the district court adopted in 
the Walker case, all of the time claimed by counsel should be 
deemed necessary and compensable. Counsel made all possible 
efforts to keep their time in this case to an absolute minimum, 
and every effort was made to arrive at a settlement that would 
fully protect the rights of black voters. During the 1977 
session of the General Assembly, counsel for plaintiffs sought 
to resolve the issues in the case with legislation, but satis­
factory legislation could not be agreed upon that would allow 
equal access to the political system. Subsequently, counsel 
still endeavored to minimize the amount of time expended in

-13-



this case, even though the case appeared on the Court's 
regular pre-trial calendar. By minimising the time invested, 
counsel did everything possible to ensure that a fee award, in 
the event of a settlement, as eventually occurred, would be 
based on the fewest number of hours reasonably expendable.
Had counsel proceeded to fully prepare this case for trial 

prior to its settling, many times the amount of hours actually 

claimed would have been expended.

Moreover, plaintiffs1 counsel here are experienced 
in civil rights litigation, and particularly in election liti­
gation. This fact alone enabled counsel to obtain excellent 
results with the expenditure of relatively little time. The 
litigation here is complicated, and less-experienced attorneys 
might have spent as much time as is claimed in toto here even 
prior to filing suit through investigation, research, and 
client conferences. See, e.cj. , Walker v. Ralston-Purina Co., 
409 F.Supp. at 104 (one attorney expending 150 hours prior 
to filing complaint). Similarly, over 1,000 hours were allowed 
plaintiff's counsel in Lockheed Minority Coalition v, Lockheed 
Missiles & Space Co., 406 F.Supp. 828 (N.D.Cal. 1976), where 
plaintiff's counsel merely worked out a consent order in a 
Title VII case. In the Lockheed case, the defendants had 
agreed to settle the case even before they filed their answer, 
and the bulk of the work expended in the settlement proposals 
was performed by the defendants' lawyers.

-14-



The presence of two experienced counsel representing
the plaintiffs has also allowed for expenditure of less time 
than would otherwise be necessary. Had Atlanta counsel alone 
been representing plaintiffs, far more time would have been 
required to perform the same work because of the distance 
and travel and the lack of familiarity with the community 
enjoyed by Albany counsel. Conversely, had Albany counsel 
been the sole attorney representing the plaintiffs, the addi­
tional experience, past work product, and consultation of 
Atlanta counsel would have been lost. While both attorneys 
certainly conferred during the entire pendency of the case, 
these consultations were in no way duplicative, but rather
ensured that the best ideas and strategies were pursued at 

(R. 130,142,154)
each step./ Indeed, unlike the practice in many medium-sized 
and large law firms, counsel for plaintiffs here did not 
review one another's work in detail, but just consulted and 
divided the work between themselves. Even had there been 
more review and duplication of work, as is the practice in 
the larger law firms, such time would have been completely 
compensable under the Attorneys' Fees Awards Act. According 
to the congressional history, fee awards under that Act must 
be made just as fees are calculated in the regular private 
practice, and the awards must include compensation "for all 
time reasonably expended on a matter." S.Rep. at 6.

There is a final point involving the time for which 
compensation is requested in this motion, and that is the

-15-



appropriateness of including in the fee award time spent in 
the preparation of the fee motion and appeal. In appellants'
principal brief, counsel cited to a number of controlling 
cases on this point (Appellants' Brief at 29-31), and in 
opposition to this claim, the appellees cite to the single 
district court decision of Cohen v. Maloney, 428 F.Supp. 1278 
(D.Del. 1977). Whatever significance the Cohen decision might 
once have had, it certainly is no longer of any import since 
the Third Circuit, where Delaware is located, has subsequently 
taken the position urged by appellants. Prandini v. National 
Tea Co., 47 L.W. 2091 (3d Cir. 1978).

In sum, it is clear that the time claimed throughout 
this case is entirely reasonable. Together, counsel originally 
requested compensation for a total of 204.4 hours (R. 126), 
and that time claimed has subsequently been increased by an 
additional 74.55 hours.(Appellants' Brief, App. p. 2, 5) It 
includes all the time expended in the prosecution of this 
appeal, the time expended in the prosecution of the fee motion 
and related briefs in the district court, and all the time 
expended in the underlying substantive case.

2. The Basic Hourly Rate to be Applied. The 
legislative history of the 1976 Fees Awards Act lays to rest 
any notion that civil rights attorneys should be compensated 
at any lower rate than similarly qualified counsel who 
specialize in other areas of federal litigation. Defendants

-16-



have readily admitted that plaintiffs' counsel are civil rights 
specialists. (Appellees' Brief at 27) In the past, some 
decisions have awarded attorneys handling cases of the present 
sort fees at a lower rate than would pertain to counsel who 
handle commercial litigation. With the adoption of the 1976 
Act, Congress has squarely rejected that approach. The 
Senate Report specifically mentions that fee awards in anti-trust 
cases should be followed as a proper guideline in setting the 
appropriate rates in civil rights cases. Senate Report at 6. 
Following this congressional directive, the courts have held 
that the hourly rates applicable in a case such as the present 
one should be the same as apply in complex commercial
litigation. E.g., Beazer v. New York Transit Authority, 558 
F .2d 97, 100 (2d Cir. 1977); Torres v. Sachs, 538 F.2d 10, 12 
(2d Cir. 1976). The purpose of making awards that are com­
parable to the fees recovered in complex commercial litigation 
is to ensure that sufficient awards are made to make consti­
tutional litigation "financially attractive to highly qualified 
attorney." Lockheed Minority Coalition v. Lockheed Missiles & 
Space Co., 406 F.Supp. at 830. And while the largest fee awards 
in commercial cases normally have occurred where large sums 
of money are involved, Congress has clearly indicated that fee 
awards in civil rights cases should not be any less "because 
the rights involved may be nonpecuniary in nature." S.Rep. at

-17-



The evidence here is uncontradicted that plaintiffs'
counsel should reasonably be awarded a fee at a rate of $80.00
per hour, absent any upward adjustments pursuant to the other

(R.130-36, 142-47)
Johnson criteria./ The leading case in the Fifth Circuit 
concerning the rate of fees to be awarded under the 1976 Fee 
Awards Act is Brown v. Culpepper. In that case, counsel were 
awarded $65.00 and $75.00 per hour rates for litigation that 
was trivial by comparison to the complexity of the present 
case. In Walker v. Ralston-Purina Co., supra, the one 
experienced attorney present for plaintiffs was awarded $75.00 
per hour. Of course, the $75.00 per hour figures in these 
cases translate, merely after inflation, to hourly rates in 
excess of the $80.00 per hour requested here.

Fee awards of $100.00 per hour have been allowed 
in civil rights cases recently. In NAACP v. Bell, 448 F.Supp. 
1164 (D.D.C. 1978), for example, the Court allowed two of 
plaintiff's attorneys $100.00 per hour in a case that required 
no final judgment, nor any hearing or trial on the merits. The 
defendants voluntarily changed their practices in such a way 
that the case was simply mooted. One hundred dollars per 
hour was also awarded to plaintiff's counsel in another civil 
rights case, that one involving school desegregation. Oliver 
v. Kalamazoo Board of Education, 73 F.R.D. 30 (W.D.Mich. 1976).

In other civil rights cases, plaintiffs' counsel are 
aware of $100.00 per hour awards, although the orders in



those case have not been reported. For example, Judge King
of Miami awarded $100.00 per hour to Mr. Barry Fisher in a
First Amendment case on June 21, 1978. ISKCON v. Hays, No.
76-1938 (S.D.Fla.). The same counsel received an award of $80.00
per hour in another case that was very straightforward and was
effectively uncontested. ISKCON v. Sullivan, No. 77-0234
(N.D.Fla., March 20, 1978) (Judge William Stafford)(Orders
affixed hereto in appendix). One of plaintiff's counsel here
knows Mr. Fisher well; his Qualifications are similar to pre-

1/sent counsel's.
In addition to the civil rights awards, the Court 

must consider other areas of federal litigation as appropriate 
guidelines for setting the fees in this case, and particularly 
the antitrust cases where fee litigation has been very common. 
These cases establish rates far in excess of $100.00 per hour 
in metropolitan areas in the South as well as in the North.
And these rates were established by decisions that are now 
several years old so that the effects of inflation must again 
be considered. E.g., Ellis v. Flying Tiger Corp., 504 F .2d 
1004 (7th Cir. 1972) (securities case awarding $132 per hour

47
Appellees cite Rainey v. Jackson State College,

551 F.2d 672 (5th Cir. 1977) for evidence that $35.00 per hour 
(excluding inflationary effects) might be appropriate in a 
civil rights case. The decision did not hold that, but merely 
gave plaintiffs' counsel exactly what they requested. It was 
undisputed that that was the minimum local fee, id. at 675, 677, 
and there is no indication why plaintiffs sought only the mini­
mum. Possibly counsel had been paid other sums, independent of 
an award, by their client or by an association. Clearly, coun­
sel could have received more there had they asked for it.
Compare Brown v. Culpepper, supra.

-19-



average in the absence of any discovery or pretrial prepar­
ation) ; In re Gypsum Cases, 386 F.Supp. 959 (N.D.Cal. 1974) 
($100.00 per hour for partners plus multipliers); Wynn Oil Co. 
v. Purolator Chemical Corp., 391 F.Supp. 522 (M.D.Fla. 1974) 
{$75.00 per hour for attorneys with five years experience, 
plus bonus); Donson Stores, Inc, v. American Bakeries Co.,
60 F.R.D. 417, 420 (S.D.N.Y. 1973) (awarding fee of over 
$200.00 per hour as an average for partners and associates).

Again, those cases involved monetary relief, and the 
present case involves nonpecuniary relief alone; but that 
is no basis for reducing the award. S.Rep. at 6.

3. The Novelty and Difficulty of the Questions. 
Dilution litigation is among the most complicated kinds of 
federal litigation factually. As this Court recently commented, 
it is a "changing and complex area of the lav/." Nevett v .
Sides, 571 F.2d 209, 225 (5th Cir. 1978). Going beyond a 
mere repetition of the history of racial discrimination and 
segregation in a particular community, and developing sophis­
ticated and convincing methods of proof demand trial and pre­
trial skills of a high caliber. The factual complexity and 
difficulties that arise in these cases are well-illustrated 
by the Fifth Circuit's recent decisions in Hendrix v. Joseph,
559 F.2d 1265 (5th Cir. 1977), and David v. Garrison, 553 F.2a 
923. These cases, and many others, also illustrate the varia­
tion and complexity of the legal issues that arise in dilution 
litigation. For example, the Fifth Circuit's recent £n banc

-20



decision in Kirksey v. Hinds County, 554 F.2d 139 (5th Cir.

1977), involved a difficult question that runs through all 
dilution cases - - the relation between past discrimination and 
unequal access to the political system, and the requirement 
of a present showing of unequal access and the burdens of 
proof. As another example, the trial court held in the 
Albany case that the White v. Regester theory of dilution 
was not even available in the absence of a showing of a pur­
poseful and intentional switch to an at-large election system. 
That ruling was reversed by the Fifth Circuit's decision, 538 

F .2d 1108, where the appellants were represented by one of 
the counsel for plaintiffs in the instant case. It arose 
again in Thomasville Branch of the NAACP v. Thomas County,
571 F .2d 257 (5th Cir. 1978). And final examples of issues 

still undetermined are the questions of relief and the ex­

tent to which a court-ordered plan, or a legislative plan, 

can retain some at-large representation.

This particular Johnson criterion—  novelty and 
difficulty —  recognizes that more time is necessarily spent 
in uncharted areas of the law. It is largely related to 
the amount of time expended, and the Johnson case states 
that an attorney should be commensurately compensated if he 
expends many hours in assessing potential claims in new and 
unique areas, where such a large expenditure of time might 
not be warranted in a less novel case. Johnson does not

-21-



indicate that the hourly rate should in any way be lowered 
where a case is the subject of an area that has already seen 
a fair amount of litigation, particularly where, as plain­
tiffs have already asserted, the amount of time expended 
during the litigation was extremely slight compared to the 
complexity and significance oq the case

Finally, it must be remembered that defendants 
have argued how very/ difficult this case would have been to 
win at trial. Their entire brief takes the position that 
plaintiffs' burden would have been virtually insurmountable, 
so this factor certainly entitles plaintiff to an enhancement 
of the basic fee award.

4. Skill Required to Perform the Legal Service and 
the Experience, Reputation, and Ability of the Attorneys. 
Counsel in the present case are two of the most experienced 
civil rights lawyers in Georgia. That is particularly impor­
tant here because civil rights litigation is familiar only 
to a relatively small handful of the bar. Thus, much older 
and more experienced commercial litigators would not have 
been able to handle this case as well because of their lack 
of familiarity with civil rights litigation.

Both the academic qualifications and experience 
of counsel here weigh very heavily in favor of an upward 
enhancement of the basic award. That information is generally 
set forth in the record (R. 130-32, 140-43), and there is no 
need to reiterate it all here. It does include the highest 
academic qualifications; one counsel was editor-in-chief

-22-



of his law review, and the other was an editor of his law 
review; counsel have published law-related articles; one of 
the counsel here had federally-related experience in clerking 
for the chief judge of the United States District Court of 
Oregon after law school; one of the two counsel presently 
is chairperson of the State Bar of Georgia's Individual Rights 
Section; and both have a great deal of civil rights litigation- 
related experience. In particular, counsel have represented 
black citizens with regard to the reapportionment of over 
twenty local bodies. Cases in this Court include: Lodge v.
Buxton, 5th Cir. No. 78-3241, U.S. Supreme Court No. A-417 
(application for stay); McIntosh County NAACP v. City of Darien, 
5th Cir. No. 78-1287; Paige V. Gray, 5th Cir. No. 77-3220;
Thomas County NAACP v. Thomas County, 571 F.2d 257 {5th Cir. 
1978); Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976).

The many affidavits submitted in support of the 
fee motion which are part of the record in this case support 
the contention that plaintiffs' counsel enjoyed a high degree 
of skill and a strong reputation. And, this Court also has 
the benefit of both the main brief and the instant brief to 
further evaluate the competence of counsel here.

Nevertheless, the defendants contend that "this 
item should be inquired into by the trial court." (Appellees' 
Brief at 26). Defendants make this request even though they 
admit that plaintiffs' counsel are specialists in civil rights 
actions, (Appellees' Brief at 27). Clearly no purpose could 
be served by having a hearing regarding this issue.

-2



5. Preclusion of Other Employment and the 
"Undesirability" of the Case. These two considerations 
again weigh in favor of plaintiffs. Although defendants 
suggest that the contrary is true, they ignore the reality 
of the economics of civil rights cases. Bringing suit 
against the most powerful public officials does not exactly 
inure to the financial benefit of plaintiffs’ counsel. The 
impact of this litigation is inevitably detrimental economi­
cally. Large business clients will not retain an attorney 
who is associated with this kind of lititation, regardless 
of his ability to adequately represent business clients.
Even independent of the racial attitudes that such businessmen 
might hold, they simply would not want to be associated with 
counsel who are involved with such controversial matters, 
particularly when they are directed against political leaders.

This Court has apparently recognized that civil 
rights litigation is "undesirable” as a matter of law in prior 
decisions in the sense that it impairs the ability of plaintiffs' 
attorneys to cultivate those clients who traditionally pay the 
most lucrative fees. See, e.g., Rainey v. State College, 551 
F.2d 672, 677 (5th Cir. 1977); NAACF v, Allen, 340 F'.Supp. 703 
710 (N.D.Ala. 1972), aff’d 493 F.2d 614 (5th Cir. 1974).

-24-



6, Whether the Fee is Fixed or Contingent. In 
their brief, defendants state that "there is no indication 
in movants' brief or affidavits whether a fee was quoted to 
the clients or whether, in fact, counsel has received com­
pensation from other sources." (Appellees' Brief at 26-27)
As with the rest of appellees’ brief, this section is quoted 
verbatim from their brief in the trial court. (R. 173) And 
as was also pointed out in the trial court, defendants' 
representation is entirely false. As was stated in the trial 
court by plaintiffs' counsel, the "possibility of recovering 
a fee is completely contingent in this case." (R. 161, 180)

The contingency factor has two obvious purposes. The 
first is to compensate attorneys proportionately where they 
undergo a risk of recovery, rather than operate on a straight 
billing basis. The second reason is to provide additional 
compensation because they are not paid until the end of a 
case. This necessitates an extended period of time when 
office overhead and all other expences must be invested by 
counsel.

In one of the leading fee award cases, the Second 
Circuit emphasized that the contingency factor is possibly the 
foremost factor to be used in adjusting the award. Detroit 
v. Grinned1 Corp., 495 F.2d 448, 471 (2d Cir. 1974). "No 
one expects a lawyer whose compensation is contingent upon 
his success to charge, once successful, as little as he would 
charge a client who in advance had agreed to pay for his

-25-



Cherner v. Transitronservices, regardless of success.
Electronic Corp., 221 F.Supp. 55, 61 (D.Mass. 1963).

Of course, the contingency factor varies from case 
to case. In a more complicated case, where the burden is 
greater, a proportionately greater contingency factor is 
appropriate. What the mathematical "probability" of prevailing 
in thus case was at the time of filing is impossible to 
assess. It is clear from the reported cases, however, that 
the case was unquestionably a contingent one in the sense that 
success was in no way guarantted. One need not go beyond 
the Fifth Circuit's decisions in Hendrix v. Joseph and 
David v. Garrison to see that experienced and competent 
counsel have failed to prevail in the same kind of challenge 
that was mounted here.

7. Time Limitations Imposed by the Case. This 
factor, too, demands an upward adjustment of the fee award. 
Federal litigation of public issues demands a high priority 
in one's practice, which warrants a premium fee. Counsel 
must be prepared at all times to respond to any request of 
the Court, and to take whatever actions may be necessary 
to fully protect his client's rights.

These demands create an inevitable conflict with 
other aspects of one’s practice, because other business must 
necessarily take a lower priority. The problem is further 
accentuated by the geographical spread of counsel's civil

-26-



rights practice. Because of travel time, the conflicts
that would exist in any event are even greater, and other 
business necessarily must be ignored. The overall effect is 
that counsel's caseload must be kept lower than would be 
desirable to optimize one's practice.

8. The Amount Involved and The Results Obtained.
The rights involved here are nonpecuniary, but they are of 
the greatest level of public importance. The case involves 
no less a question than whether the governing body of Dougherty 
County would be democratically elected, or whether nearly 
40% of the community would be excluded from full participa­
tion in the electoral process. While the Johnson case speaks 
of the amount involved, the absence of any amount of money 
involved in this case in no way detracts from the amount 
of fees that should be awarded under the 1976 Act. The com­
mittee report makes it clear that this case should be 
treated like a commercial case involving large sums of money. 
Senate Report at 6.

In fact, precisely because injunctive relief alone 
was sought here, the fee award should be even higher. Since 
there is no fund of damages from which an attorney’s fee 
could possibly be paid, on a contingent or other basis, the 
fee award is the sole basis for compensation. And the rate 
of compensation in the award should reflect that fact.

The results obtained on account of this action 
would appear to be excellent. A reapportionment scheme has

-27-



been enacted that has allowed for the election of two blacks 
to the Dougherty County Commission. No black had ever 
before served on the Dougherty County Commission, at least 
since Reconstruction. And in fact, no serious black candi­
date had ever even run for the Dougherty County Commission on 
the assumption that he or she would be facing overwhelming 
and unfair odds because of the at-large method of election.

Dougherty County is one of the most populous counties 
in the State, and the importance of this litigation, and the 
very successful conclusion, cannot be underestimated for the 
members of the plaintiff class. Beginning with the 1978 
elections, black voters and candidates will be able to par- 
ticppate in the county-wide election process for the first 
time because of the removal of this historic barrier to fair 
and equal political participation.

10. Nature of Relationship with Client. It is not 
entirely clear from the Johnson decision how this factor is 
to be assessed, and it does not appear to be a significant 
one in the many other fee award decisions that have been 
reported. For information purposes, however, Mr. Phipps 
has represented individuals who are or have been members of 
the Criterion Club in other matters. Mr. Walbert has never 
represented either the Criterion Club or any of its members 
in other litigation. Both counsel represent similar organ­
izations in civil rights litigation in other areas. (R.163)

-28-



9. Fee Multiplier Requested. In commercial cases, 
generous bonuses, or multipliers, have often been awarded 
to compensate counsel where their case has been one of a 
contingent nature, or where the court considers that the 
attorneys involved obtained particularly good results and 
were especially qualified. These bonuses have ranged from 
relativelv small cercentaaes ud to multiolied factors of 3 
and 4. Arenson v. Board of Trade, 372 F.Su d d . 1349, 1358 
(N.D.I11, 1974) (award increased by factor of 4); Lindy 
Brothers Builders, Inc, v. American Radiator, 382 F.Supp.
999 (E.D.Pa. 1974); Dorfman v. First Boston Corp.,
70 F.R.D. 366, 375-76 (E.D.Pa. 1976) (50% bonus for contingent
nature of work and quality of performance); In re Gypsum Cases, 
386 F.Supp. 959 (N.D.Cal. 1974) (awards multiplied by factors 
varying from 2.2 to 3.0).

While these bonuses have become an integral part 
of the fee award process in commercial cases, there is no 
question in light of the legislative history of the 1976 
Fee Awards Act that the exact same treatment is appropriate 
and required in civil rights litigation. In discussing the 
standards to be applied under the Fee Awards Act, the Senate 
Report stated that the appropriate fee standard was "correctly 
applied" in Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal. 
1974). Senate Report at 6. In the Stanford Daily case, the 
court awarded fees of $50.00 per hour (which would be

-29-



approximately $75.00 today after inflation) for 750 hours 
of work, and then added a $10,000.00 bonus, or approximately 
33%, to the basic amount to reflect "the contingent nature 
of compensation, the quality of the attorney's work, and 
the results obtained by the litigation." Id. at 688. Thus, 
Congress has expressly approved the "bonus" approach that has 
historically been utilized in commercial litigation, and 
integrated that approach into the civil rights area.

The courts which have squarely considered this issue 
have also held that the multiplier and bonus analysis is 
equally appropriate under the 1976 Act, must as it is in 
antitrust and other commercial litigation. In Commonwealth 
of Pennsylvania v. O'Neil, 431 F .Supp. 700, '712 (E.D.Pa. 1977), 
the Court held that the multiplier analysis set forth in 
the leading cases of Lindy I and Lindy II should be applied in 
civil rights cases. Based on that conclusion, the Court 
awarded one attorney fees at the rate of $80.00 per hour and 
then enhanced his overall award by a factor of one-third.
The total counsel fees and expenses in that case exceeded 
$200,00.00, and the Court concluded that the bonus was 
appropriate because the case was contingent and because of 
the quality of representation. Similarly, the Second Circuit 
held that the multiplier analysis should be used in civil 
rights cases in Beazer v. New York Transit Authority, 558 
F.2d 97 (2d Cir. 1977). The court identified two factors 
that were important in determining whether the award should

-30-



go beyond the hourly rate and be enhanced by a bonus or 
multiplier. Those two factors were the "risk of loss on the 
legal issues" and the "benefit to the clients," and the 
Court indicated that there should be an enhancement of the 
overall fee if those factors were present, as they clearly 
are here. Id. at 100.

The most recent Fifth Circuit case concerning the 
award of a multiplier is Wolf v. Frank, 555 F.2d 1213 (5th 
Cir. 1977). In that case, the Court disallowed a doubling of 
the fee by the trial court on the sole ground that the 
defendants had been obstreperous. As the Court pointed out, 
the obstructionism of the defendants would be reflected in 
the total amount of time presented in the fee award for com­
pensation and did not in its own right warrant a multiplier 
treatment. Still, the Court did go on to allow a bonus of 
one-third in that case because of the contingent nature of 
the law suit. The one-third bonus was applied to fee awards 
that had been calculated at base rates of $75.00 to $100.00 
per hour for out-of-court time for three separate attorneys.

CONCLUSION
Plaintiffs here are seeking compensation for total 

time expended of 278.95 hours. The basic rate plaintiffs 
seek to be applied to these hours is $80.00 per hour, and 
they request that an upward multiplier for the original 
motion in the district court of 75% be applied. The basis



of this 
tion of 
(1) the 
(3) the 
and (4) 
tion of

upward adiustment is, as indicated above, considera- 
the various Johnson factors. These include primarily: 
contingency factor; (2) the difficulty of the issues; 
quality of the work and the ability of the attorneys; 
the time premium factor applicable in federal litiga- 
election issues.

Respectfully submitted,

DAVID F. WALBERT
1210 First National Bank Tower 
Atlanta, Georgia 30303 
Telephone: (404) 658-9977

P. 0. Box 3468 
Albany, Georgia 31706 
Telephone: (912) 435-6149

-32-



Ui.jlTED states dis t r i c t court 
SOUTHERN DISTRICT OF FLORIDA

Case No. 76-1938-Civ-JLK
INTERNATIONAL SOCIETY FOR ) 
KRISHNA CONSCIOUSNESS, INC.,} 
et al.,

Plaintiff, 5 

vs. )

D E C E I V E

JUN 2 1 1978
QRDER GRANTING MOTION FOR

CAPTAIN RALPH L. HAYS, 
ETC., ET AL.,

BARRY2ETO >i- FEES AND COSTS irrcrr-----------------

Defendants.}

)
This cause came on for consideration upon the motion of 

plaintiff, ISKCON, to award attorneys* fees and costs. The 

court, having considered the record, finds that the motion 

should be granted.

The court notes, as stated in Barry Fisher’s affidavit 

in support of attorneys’ fees, 31 hours and 45 minutes as
m

the total hours spent in preparation. Further, DOT has agreed:

". . . said award should be determined subsequent to the 

documentation of plaintiff’s request for attorneys' fees and 

costs.” The court has carefully considered each item listed 

in plaintiff’s time records. Therefore it is

ORDERED and ADJUDGED that $3,175.00 is awarded. Plaintiff 

is instructed to submit affidavits of costs incurred in this 

natter.

DONE and ORDERED in chambers at the United States District 

courthouse, Miami, Florida this £4 day of June, 1973.
2 T Q F G
*JAMES LAWRENCE KING 

UNITED STATES DISTRICT JUDGE

cc; All Counsel

App. 1



J U  THE U'i'KD STATES in STRICT CO! ' FOR Till' 
NORTHERN DISTRICT Of’ FLORIDA 

PANAMA CITY DIVISION

INTERNATIONAL SOCIETY FOR KRISHNA 
CONSCIOUSNESS, INC., ct al., etc.,

Plaintiffs,

vs .
LEE SULLIVAN, Panama City Beach 
Police Chief, et al., etc.,

Defendants.

MCA 77-0234

ORDER

This action came before the court on July 10, 1978, 
for a hearing on defendants' motion to alter, amend or 
clarify judgment and plaintiffs' motion for award of attorney 
fees and costs pursuant to the Civil Rights Attorney's Fees 
Awards Act of 1976. Having considered the motions, the 
evidence, and the argument of counsel, the court makes the 
following findings and conclusions of law:

1. Defendants' motion to alter, amend or clarify 
judgment should be granted insofar as it asserts that de­
fendant Thomas Sale is not a proper party to this lawsuit.
The 1972 revision of Article V of the Florida Constitution 
abolished municipal courts and removed the prosecutorial 
function of city attorneys. See Fla. Const. Art. V,
§§ 1 & 17. Defendant Lee Sullivan, however, is a proper 
party. The ordinance challenged in this lawsuit placed 
upon the chief of police of the City of Panama City Beach 
the duties of enforcing the ordinance and granting so­
licitation permits. It is not material that Mr. Sullivan 
was not chief of police on June 7, 1977, since the com­
plaint was not focused primarily on the incident that 
occurred on that date, but rather on the facial invalidity

iff ; ;.iu.s. n r o

137’. Jill 20 PiiiZ-V:

2
r~ ! i i— r"N

App



of the ordinance. Under Rule 25, F.k.Civ.P., Mr. Sullivan 
would have, been automatically substituted as the defend­
ant in this action upon his assumption of the-office of 
chief of police. Moreover, defendant Sullivan is' subject 

to no personal liability for attorney's fees; in the absence 
of action in bad faith, attorney's fees may be awarded 
against a public official only in his official capacity. 
Universal Amusement Co., Inc, v. Vance, 559 F. 2d 1286 (5th 
Cir. 1977) .

2. Applying the standards approved in Johnson v. Georgia 
Highway Express, Inc., 488 F. 2d 714 (5th Cir. 1974) , the 
follov/ing matters are relevant to plaintiff's motion for 
award of attorney's fees:

(a) Plaintiff's attorneys specialize in civil 
rights cases, and one of these attorneys has had several 
years' experience specializing in First Amendment litigation 
in the federal courts.

(b) Attorney Barry Fisher has had a long-standing 
professional relationship with plaintiff International 
Society for Krishna Consciousness.

(c) The hours claimed by plaintiffs' attorneys 
in this lawsuit do not appear unreasonable in light of the 
nature of this case. Defendants have .not established by a 
preponderance of the evidence their claim that plaintiffs' 
counsel unduly or unnecessarily obstructed the entry of a 
consent,judgment. At most, the evidence shows that settlement 
negotiations between the parties stalled in a dispute over- 
plaintiffs' entitlement to an award of attorney's fees.
Neither party can be clearly faulted for this circumstance.

(d) The issues involved in this litigation were 
neither novel nor difficult; even defendants conceded at 
an early stage that the city ordinance under challenge was 
facially invalid under established constitutional principles.

App. 3



of the fee .ates charged by plaintiff- attorneys. Having 
reviev/cd the affidavits submitted by plaintiffs' counsel, 
the court is of the view tfiat the fees set forth therein 
are reasonable for attorneys of like training, experience 
and ability.

(f) Larry Keesey expended 39.1 hours on this 
case at a rate of $60.00 per hour, for a total of $2,346.00.

(g) Kent Spriggs expended 8.8 hours on this case 
at a rate of $75.00 per hour, for a total of $660.00.

(h) Joseph F. Henderson expended 5.0 hours on 
this case at a rate of $50.00 per hour, for a total of 
$250.00.

(i) Barry A. Fisher expended 24.25 hours on this 
case at a rate of $80.00 per hour, for a total of $1,940.00.

(j) Plaintiffs incurred costs of $62.59.
. In accordance with the foregoing, it is
ORDERED AND ADJUDGED:
1. Defendants' motion to alter, amend or clarify 

judgment is GRANTED in part. The order granting summary 
judgment is hereby amended to reflect that Thomas Sale is 
dismissed as a party defendant.-

2. Plaintiffs' motion for award of attorney's fees 
is GRANTED, and plaintiffs shall recover against defendant 
Lee Sullivan, solely in his official capacity, the amount 
of $5,258.59, representing costs and attorney's fees. 
'Judgment accordingly.

DONE AND ORDERED this

UNITED STATES DISTRICT JUDGE

App. 4



CERTIFICATE OF SERVICE

copy of 
counsel

I HEREBY CERTIFY that I have this day served one 
the foregoing Reply Brief of Appellants upon opposing
by mailing, first class- postage prepaid.

This aO f f day o: / 197 S*