Mobile v. Bolden Order and Decree on Plaintiffs' Claim for Attorneys' Fees and Expenses

     [||6d2df9b8-8b9f-459a-8883-eba5c7e03e4c||] IN THE UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L.«- BOLDEN, REV. RR. L. 
HOPE, CHARLES JOHNSON, JANET 
O. LeFLORE, JOHN L. LeFLORE, 

CHARLES MAXWELL, OSSIE B. 
PURIFOY, RAYMOND SCOTT, 
SHERMAN SMITH, OLLIE LEE 
TAYLOR, RODNEY O. TURNER, 
REV. ED WILLIAMS, SYLVESTER 
WILLIAMS and MRS. F. C. WILSON, 

CIVIL ACTION 
Plaintiffs, 

No. 75-297-P 
¥. 

CITY OF MOBILE, ALABAMA: GARY A. 
GREENOUGH, ROBERT B. DOYLE, JR., 
and LAMBERT C. MIMS, individually 
and in their official capacities 
as Mobile City Commissioners, 

N
o
 

Na
o?

 
N
e
 

Na
 

No
 

N
o
 

I
 

N
u
 

N
o
 

No
 

N
o
 

N
o
 

N
I
 
N
N
 

N
I
 
N
S
 
N
S
 

N
S
 
N
T
 

Defendants. 

ORDER AND DECREE ON PLAINTIFFS'CLAIM 
~ FOR ATTORNEYS' FEES AND EXPENSES 
  

The plaintiffs’ attorneys, representing the prevailing 

class in this civil rights action brought pursuant to the 1965 

Voting Rights Act, 42 U.3.C. §1973 et seq. and 42 U.S.C, §19383, 

seek award of statutorily authorized costs and attorney fees 

under the Voting Rights Act. §1973 1(e) (1977 Supp.). Bolden 

was a suit by the black citizens of Mobile seeking, as a class, 

the right to equal access to Mobile's political life. This 

court by order on October 22, 1976, mandated the City of Mobile 

to change from a Commission to a Mayor-Council form of govern- 

ment. That order is now on appeal. 

  

Congress, in 1975, in response to Alyeska Pipeline 

Service Co. v. Wilderness Society, 419 U.S. 823, 95 8, Ct. 
    

1612, 44 L.Ed.2d 141 (1975), passed §1973 1(e), an amendment to 

the 1965 Voting Rights Act, allowing courts to award attorney 

fees to the prevailing party in a Voting Rights Act suit.” The 

purpose of this amendment was to encourage private parties to 

 



  

bring voting rights actions to eliminate discrimination that 

is so contrary to our society's ideal of equal rights. The 

leading Fifth Circuit case dealing with applicable criteria to 

be weighed in determining the proper measure of attorney fees 

is Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 
  

1975). Johnson dealt with award of fees under a Title VII 

action [1964 Civil Rights Act, 42 U.S.C. $2000e ef seq.] but 

as is clear from the legislative history to §1973 1(e), "[i]t 

is intended that the standards for awarding fees under 

[Sec. 1973 1(e)] be generally the same as under the fee 

provisions of the 1964 Civil Rights Act." 2 U, 8. Code Cong. 

and Admin. News 807 (1975). 

The Johnson considerations are: 

(1) the time and labor required. 

Plaintiffs' attorneys submitted an attorney time bill 

listing 1169 chargeable hours. Counsel for both sides displayed 

exceptional legal and factual knowledge and Hiovonginess in 

preparation of this action. Each contested issue was com- 

pletely and competently litigated. 

Evidence submitted at the attorney fees hearing and 

the court's experience with similarly complex civil rights 

litigation indicates this was a reasonable amount of time in- 

vested in preparation and trial, particularly in view of the 

quality of litigation by both parties. In comparison, 

attorneys for the City submitted to their client a bill for 

1583 attorney hours. 

Bolden was the first of two related racial discrim- 

ination actions tried by this court. The second case, Brown v. 

Moore, Civil Action No. 75-298 (S.D. Ala. 1977), was a similar 

action in which the Mobile County Commissioners and School 

Board were defendants. Bolden was a more complex and intricate 

action than Brown and undoubtably demanded considerably more. 

 



  

time than the School Board and County Commission action. Some 

of the attorney time spent by movants benefited both cases; 

in that two-thirds of the county's population lies in the City 

of Mobile, some factual evidence from the Bolden trial was 

introduced in Brown. Much of the legal research necessary in 

Bolden benefited counsel in Brown. The plaintiffs' counsel, 

at the direction of the court to prorate their time because of 

the legal and factual similarity between the two cases, divided 

603.8 hours between this and the Brown case as time spent on 

research or factual investigation applicable to both cases. 

Defendants do not challenge the accuracy of plain- 

tiffs’ time claim; rather they charge duplication of effort 

‘by the four attorneys that worked on the case. One of the 

plaintiffs’ counsel, however, submitted only 34 hours of 

time spent on the case, with the remaining 1135 hours divided 

among three attorneys. The court finds little merit in de- 

fendants' claim that extensive duplication of work resulted 

from three main plaintiffs’ counsel present throughout the 

trial in both Bolden and Brown. The particular competency 

and area of emphasis by each plaintiffs’ attorney negates 

the claim of duplicity. Further, counsel for the City of 

Mobile, during some if not all of the trial, had three at- 

torneys present. 

(2) novelty and difficulty of question. 

The rights sought by plaintiffs, elimination of 

voter dilution, is an established right. The remedy pursued, 

a change in the form of municipal government, to the knowledge 

of this court, had been achieved in only one other action. 

B.U.L.L.. Vv. City of Shreveport, Civil Action 74-272 (W.D. la. 
  

July 16, 1978). 

The legal concepts dealing with voter dilution are 

complex and esoteric. 

 



  

(3) requisite legal skill. 

Voting rights work requires a level of outstanding 

legal achievement. Plaintiffs' lead counsel is an exceptionally 

skilled and recognized authority on civil rights litigation. 

Lead co-counsel displayed outstanding expertise, particularly 

in statistical analysis. The two associate counsel displayed 

a high level of competence. The work product, preparation, 

and general ability of all attorneys was exemplary. 

(4) preclusion of other employment. 

Anytime an attorney accepts a case, he is in a sense 

precluding some other employment, if for no other reason, 

because of time constraints. Representation of the black 

class by movants would not preclude future employment because 

of a conflict of interest problem. 

| (5) the customary fee. 

The court must consider the prevailing. fee structure 

for similar work in Mobile in order to determine the proper at- 

torney fees award to plaintiffs. Testimony indicated the pre- 

vailing rate for municipal or public service work in this area 

hovers near the $40.00 per hour rate. The City's attorneys 

charged $50.00 per attorney hour, including attorneys with one 

year or less experience. 

(6) fixed or contingent fee. 

Under 42 U.S.C. §1973 1(e), the prevailing party in 
  

an action arising under the 1965 Voting Rights Act is entitled, 

at the court's discretion, to fees and costs. This places 

plaintiffs’ counsel on a contingency fee basis. The plaintiffs 

have prevailed in this action. Soy H 

During this and the Brown action, plaintiffs received 

$7,971.40 as partial payment of costs and $8,925.00 as partial 

payment of fees from the NAACP Legal Defense Fund as well as 

$1,500.00 as costs from the Non-Partisan Voters League. These 

 



  

payments applied to both this and Brown. By prior agreement 

with the NAACP, counsel must, if recovery of fees and costs 

is granted by the court, return $16,896.40 to the Legal Defense 

Fund. Consequently, this amount will not be deducted from the 

plaintiffs’ award in either of the cases. On the other hand, 

the $1,500 given to plaintiffs’ counsel by the Non-Partisan 

Voters League does not have to be returned. It will be pro- 

rated among the three actions (two cases). One-hald will be 

deducted from the recovery of plaintiffs’ counsel in this case. 

(7) priority of the action. 

Plaintiffs' counsel made no claim that this case 

delayed their other work to a greater extent than any other 

action. 

(8) results obtained. 

Plaintiffs are the prevailing party in that their 

requested relief, the ordering of a mayor-council form of 

government, was achieved. The relief granted is designed to 

eliminate racial voter dilution for one-third of Mobile's resi- 

dents. Lack of money damages awarded to the plaintiffs should 

not reduce awardable fees merely because of the non-pecuniary 

nature of the relief. 2 5. Code Cong. and Admin. News at 

2808 (1975). 

(9) experience, reputation, and ability of attorneys. 

Four attorneys represented the plaintiff class. J. U. 

Blacksher, the lead counsel, has been a member of the bar since 

1971. He specializes in civil rights litigation. He has dis- 

played a special competence in pretrial, trial and legal analysis 

in civil rights litigation. io % 

Edward Still, a Birmingham attorney, associated in 

this action by plaintiffs' Mobile counsel, has also been a bar 

 



  

member since 1971. The court is unaware of his reputation in 

Birmingham, but Mr. Still displayed a thorough knowledge of 

state and federal voting laws and restrictions, municipal gov- 

ernment, and statistical expertise. He was co-lead counsel. 

He displayed an unusual competence in statistical analysis, 

development and presentation, and cross-examination of such 

issues as regression analysis and other statistical data. 

His work in preparing and presenting councilman districts 

with small population variables, the use of identical wards 

and beats which minimized the splitting of wards and creating 

new voting places, etec., which were also designed to correct 

the lack of access to the political structure because of race, 

was particularly valuable to the court. Although the de- 

fendants objected to any change which would create single- 

member districts, no objection was made by them besauns of 

. i p 1 
the manner in which the districts were created. 

  

1/ The City of Mobile paid $15,960.95 to an expert, James 
E. Voyles, whose expertise included the history of race 
and politics in Mobile, regression analysis and other 
statistical data presented in the case. He was present 
and permitted to remain in the courtroom to assist de- 
fendants' counsel during most of the trial proceedings. 

  

Larry Menefee and Greg Stein, both associates in 

Mr. Clacksher's firm, have been practicing for about one and 

two years respectively. Mr. Menefee had one year's experience 

as law clerk for a United States District Court Judge. He 

directed and did considerable investigatory work. Mr. Stein 

did not participate in the trial of the action. | 

(10) wundesirability of the case. . 

The controversy surrounding this action before, during 

and after trial, clearly indicates that this particular action 

was unpopular with much of the Mobile establishment. Many of 

plaintiffs’ counsel's clients, however, are from the black com- 

Ge 

 



  

munity. Attorneys Blacksher and Still actively engage in 

civil rights practice. The law firm of which Mr. Blacksher 

is a member has grown from one to seven since 1968. The 

growth has been primarily due to its success in civil rights 

litigation. As of June 1977, Blacksher is counsel in a 

similar voter dilution case in Pensacola. He has in the past, 

and is presently, pursuing several civil rights actions in this 

court. Mr. Still, since the filing of this suit, also has 

been engaged as counsel in similar voting discrimination suits 

throughout Alabama. 

(11) . length of relationship with client. 

Plaintiff representatives of the class are members 

of the Non-Partisan Voters League, an organization dedicated 

to the equality of black and white citizens. Although 

plaintiffs' counsel has not previously represented the NPVL 

itself, they have traditionally been active in the black 

community. This is exemplified by the fact that Mr. Blacksher's 

law firm of seven attorneys consists of three blacks, including 

two of the four partners. 

(12) awards in similar cases. 

Not only is the customary fee in the Mobile area 

to be considered, but awards in similar cases "within and 

without the court's circuit" should be reviewed. Johnson, 

supra, 488 F.2d at 719. A review of similar actions in the 

south indicates $35.00 to $50.00 an hour is a reasonable fee. 

See Barth v. Bayou Candy Co., 379 F. Supp. 1201 (E.D. Ia. 1974) 
  

($50 an hour trial work, $40 an hour preliminary work) (sex 

discrimination); Wallace v. House, 377 F. Supp. 1192 (W.D. La. 

1974) (850 an hour) (voting rights case); Wade v. Mississippi 
  

Cooperative Extension Service, 378 F. Supp. 1251 (N.D. Miss. 
  

1974) ($35.00 an hour) (racial discrimination in employment). 

For Indigents in criminal cases, Congress has set a” 

rate of $30.00 for trial time and $20.00 for office and investi- 

ly J 

 



  

2/ oe 
gatory time.— This is an indication by Congress of its idea 

  

2/ 18 U.S.C. §3006A. 
  

of an appropriate attorney's fee at public expense. However, 

that fee is certain, win or lose, and not contingent as in this 

type of action. 

Movants submit to the court an attorney fees bill for 

1169 hours of legal serv ices, asking for $75.00 an hour for 

Blacksher and Still's time and $60.00 an hour for Menefee's 

and Stein's time. This totale 479,864.50 in fees. Additionally, 

movants request a 25% bonus because of the public benefit and 

novelty of the legal issues involved and remedy requested. The 

$19,966.00 bonus in addition to : requested $7,237.54 in ex- 

penses, totals $107,068.04. 

Counsel for the City of Mobile submitted evidence 

to the court that their bill of $85,035.00 included approxi- 

mately 1583 attorney hours and about 107 hours paralegal time. 

At the court's request, they have informed the court they 

charged $50.00 an hour for all attorneys' work, regardless of 

experience, and $25.00 an hour for the paralegal work. The 

work done by city employees in gathering information for use 

in the case was not requested or included. It is assumed they 

were not paid extra. 

It is clear to the court that the requested hourly 

remuneration is excessive. To award plaintiffs’ attorneys a 

premium rate, as they requested, because of the contingent basis 

and novelty of this action would provide an unwarranted wind- 

fall for public interest attorneys. It must be Fineabeted that. 

the bill for these fees essentially is paid by the public. 

In 1975, Alabama's per capita income ranked 47th in the nation.™ 

  

3/ The latest reported data in the 1977 World Almanac, News- ~~ 
paper Enterprises Assn., p. 127. 

  

oS 

 



  

Excessiveness cannot be afforded when we further consider Mobile 

and Alabama's property and income taxes are low in comparison 

to many other cities and states. Mobile's state and city sales 

tax is 6% which is high and regressive in nature, placing a 

large portion of the tax burden on middle and low income groups. 

To order the city to pay such a high rate would be inequitable 

and burdensome. Nevertheless, the movants are entitled to an 

adequate rate of compensation. The purpose of statutory fee 

provisions is to attract competent counsel in these types of 

actions. To award an insufficient fee would discourage the 

Congressional .intent behind these fee provisions. The court 

would ordinarily be inclined to award a maximum fee of $40.00 

an hour. To do this would ignore the fee paid by the city 

defendants to their counsel of $50.00 an hour. The defendants’ 

counsel are highly skilled Praetitioners with an outstanding 

reputation. They can, and do, demand higher fees from the 

private sector. To award plaintiffs' skillful attorneys fees 

of less than an equivalent $50.00 an hour paid from the same 

tax source would be inequitable and unfair. 

The court finds $50.00 an hour to be a fair and 

equitable rate to be paid plaintiffs' counsel. Plaintiffs 

have claimed 1169 hours of attorneys' time. The court reduces 

the hours claimed by movants by 12.95 hours. This represents 

the prorated time applicable to Bolden for Mr. Still's auto- 

mobile travel. It is the court's opinion that when an attorney 

charges a portal-to-portal fee, as here, he is under an obliga- 

tion to take the most efficient mode of transportation, which 

in this instance is air travel. The court has considered the - 

flight time necessary for each trip as charged in other trips 

in reducing the time. 

The court awards plaintiffs’ counsel attorney fees 

of $57,802.50 and expenses of 87,237.54, totaling $65,050.04 

 



fake 

  

minus a $750.00 credit received from the Non-Partisan Voters 

League, for a sum of $64,300.04. 

It is therefore ORDERED, ADJUDGED, and DECREED 

that the plaintiffs have and recover of the defendants 

$64,300.04 as attorney fees and expenses. 

The defendants are taxed with the costs. 

Done, this the Fi of June, 1977. 

“ne 

  

UNITED STATES DISTRICT JUDGE 

U. S. DISTRICT COURT 
SOU. DIST. ALA. 
FILED AND ENTERED THIS THE 

DAY OF JUNE, 1977 
MINUTE ENTRY NO. 
WILLIAM J. O'CONNOR, CLERK 
BY- 

  

Deputy Clerk 

-10~ [||6d2df9b8-8b9f-459a-8883-eba5c7e03e4c||]