Baynes v. AT&T Technologies Appellant's Petition for Rehearing and Suggestion for Rehearing En Banc

    No. 91-8488

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

TRINA L. BAYNES,
Appellant,

vs.
AT&T TECHNOLOGIES, INC. 
and TONY GASAWAY,

Appellees.

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

APPELLANT'S PETITION FOR REHEARING 
AND SUGGESTION FOR REHEARING EN BANC

RICHARD T. SEYMOUR 
MICHAEL SELMI 
SHARON R. VINICK
Lawyers1 Committee for Civil Rights 

Under Law
1400 'Eye' Street, N.W., Suite 400 
Washington, D.C. 20005 
(202) 371-1212

GORDON L. JOYNER 
945 Ashby Circle, N.W.
Atlanta, Georgia 30314 
(404) 524-2400
Attorneys for Appellant

November 9, 1992



CERTIFICATE OF INTERESTED PERSONS 
AND CORPORATE DISCLOSURE STATEMENT

This case was before the Honorable Marvin H. Shoob, and was 
referred to Magistrate Allen L. Chancey, Jr., serving as a 
Special Master. Other persons or entities who have an interest 
in the outcome of this case are: Trina L. Baynes, who appeared 
pro se on the original appeal, AT&T Technologies, Inc., and Tony 
Gasaway. Ms. Baynes is now represented by the Lawyers' Committee 
for Civil Rights Under Law and Mr. Gordon Joyner. The Lawyers' 
Committee is a private, tax exempt, non-profit corporation, 
organized under the laws of the District of Columbia and having 
its principal place of business in the District of Columbia. The 
Lawyers' Committee does not have any shareholders. The appellees 
are represented by Mr. Weyman T. Johnson, Jr. and Paul, Hastings, 
Janofsky & Walker.

These representations are made so that the Judges of this 
Court may evaluate possible disqualification or recusal pursuant 
to the local rules of court.

Michael Selmi 
Attorney for Appellant

i



STATEMENT OF COUNSEL
I express a belief, based on a reasoned and studied profes­

sional judgment, that the panel decision is contrary to the 
following decisions of the Supreme Court of the United States or 
the precedents of this circuit and that consideration by the full 
court is necessary to secure and maintain uniformity of decisions 
in this court:

American Nat'l Red Cross v. S.G. & A.E., 505 U.S. ___,
120 L.Ed.2d 201 (1992) (and similar cases cited in brief);
Bradley v. School Bd. of City of Richmond. 416 U.S. 696
(1974) (in that the panel/misinterpreted Bradley);
Delmav v. Paine Webber. 872 F.2d 356 (11th Cir. 1989);
Lussier v. Dugger. 904 F.2d 661 (11th Cir. 1990);
United States v. Peppertree Apts., 942 F .2d 1555
(11th Cir. 1991), on remand, 961 F.2d 1538 (11th
Cir. 1992).
I express a belief, based on a reasoned and studied profes­

sional judgment, that this appeal involves a question of excep­
tional importance, namely the application of the Civil Rights Act 
of 1991 to pending cases.

Attorney for Appellant/Petitioner

ii



TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ............................ i
STATEMENT OF COUNSEL .....................................  ii
TABLE OF CONTENTS ............................................ iii
TABLE OF AUTHORITIES...........................   iv
STATEMENT OF ISSUES FOR EN BANC CONSIDERATION ...............  1
STATEMENT OF THE C A S E .................................... .. • 1
ARGUMENT AND AUTHORITIES . . . .    4

I. THE PANEL FAILED TO ADDRESS THE
MEANING OF THE STATUTORY LANGUAGE .............  4

II. THE PANEL'S DECISION CONFLICTS WITH
THIS CIRCUIT'S PRECEDENT THAT LEGISLATION 
RESTORING CIVIL RIGHTS APPLIES TO PENDING CASES . 8

III. THE PANEL'S RESTRICTIVE INTERPRETATION 
OF BRADLEY V. SCHOOL BD. CONFLICTS WITH 
A LONG LINE OF PRECEDENT FROM THIS CIRCUIT . . .  10

CONCLUSION ........... . . . . . . . . .  .....................  15
CERTIFICATE OF SERVICE ........................................  16

iii



TABLE OF AUTHORITIES
CASE PAGE(S)
American Nat'l Red Cross v. S.G. & A.E. . 505 U.S. ___,

120 L.Ed. 2d 201 (1992)......................................... 7
Avers v. Allain, 893 F.2d 732 (5th Cir.),

vacated on other grounds, 914 F.2d 676 (5th Cir. 1990)
(en banc), en banc opinion vacated sub. nom.. ___ U.S.
___, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) ............. 9

Bailes v. United States. ___ U.S. ___, 118 L.Ed.2d 419
(1992)   11

Bonner v. Arizona Dept, of Corrections. 714 F. Supp. 420
(D. Ariz. 1989)    9

Bradley v. School Bd. of City of Richmond. 416 U.S. 696
(1974)   passim

Crane v. Hahlo. 258 U.S. 514 (1922)..............................13
Davis v. City & County of San Francisco. No. 91-15113,

1992 WL 251513 (9th Cir. Oct. 6, 1992) ................. passim
Delmav v. Paine Webber. 872 F.2d 356 (11th Cir. 1989) . . . 11,13
DeVarqas v. Mason & Hanger-Silas Mason Co.. 911 F.2d 1377

(10th Cir. 1990), cert, denied. 112 S.Ct. 799 (1991) . . .  9
FDIC v. 232. Inc. . 920 F.2d 815 (11th Cir. 1 9 9 1 ) ..............13
Gersman v. Group Health Ass'n. No. 89-5482, 1992 WL 220163

(D.C. Cir. Sept. 15, 19 9 2 ) .....................................1
Grove City College v. Bell. 465 U.S. 555 (1984) . . .  ........  8
Jenkins v. United Gas Coro.. 400 F.2d 28 (5th Cir. 1968) . . .  11
Johnson v. Uncle Ben's. 965 F.2d 1363 (5th Cir. 1992)  2
Kirkbride v. Continental Casualty Co.. 933 F.2d 729

(9th Cir. 1 9 9 1 ) ............................................... 15
Kunqvs v. United States. 485 U.S. 759 ( 1 9 8 8 ) .................... 6
Leake v. Long Island Jewish Medical-Ctr.. 695 F. Supp. 1414 

(E.D.N.Y. 1988), aff'd. 869 F.2d 131 (2d Cir. 1989)
(per curiam) ............................................... 9

Littlefield v. McGuffev. 954 F.2d 1337 (7th Cir. 1992) . . . .  14

xv



CASE - PAGE(S)
Lorillard v. Pons. 434 U.S. 575 (1978).......................  13
Luddinaton v. Indiana Bell Telephone Co.. 966 F.2d 225

(7th Cir. 1992)  2
Lussier v. Dugger. 904 F.2d 661 (11th Cir. 1990) . . . .  passim
Mackey v. Lanier Collections Aq'v & Serv., Inc..

486 U.S. 825 (1988)............................................ 6
Mozee v. American Commercial Marine Serv. Co.. 963 F.2d 

929 (7th Cir. 1992), cert, denied. 61 U.S.L.W. 3261 
(Oct. 5, 1 9 9 2 ) ......................................   14

Patterson v. McLean Credit Union. 491 U.S. 164 (1989) . . passim
Pension Ben. Guaranty Coro, v. R.A. Gray & Co.. 467 U.S. 717

(1984)  ....................................................  14
Russello v. United States. 464 U.S. 16 (1983)................. 6
Scarboro v. First American Nat'l Bank. 619 F.2d 621 (6th

Cir.), cert, denied. 449 U.S. 1014 (1980)................... 13
Travelers Ins. Co. v. Bullington. 878 F.2d 354 (11th Cir.

1 9 8 9 ) ..................................    7
United States v. Kolter. 849 F.2d 541 (11th Cir. 1988) . . .  9
United States v. Marengo County Comm'n. 731 F.2d 1546

(11th Cir.), cert, denied. 469 U.S. 976 (1984) ........  . . 11
United States v. Menasche. 348 U.S. 528 (1955)   6
United States v. Monsanto Co.. 858 F.2d 160 (4th Cir.

1988), cert, denied. 490 U.S. 1106 (1989)..................... 15
United States v. NEC Corp.. 931 F.2d 1493 (11th Cir. 1991) . . 6
United States v. Nordic Village, Inc.. ___  U.S. ___,

112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) .....................  7
United States v. Peppertree Apts.. 942 F.2d 1555 

(11th Cir. 1991), on remand. 961 F.2d 1538 (11th
Cir. 1992) ......................... ..............  11, 13, 14

United States v. Provident Life & Accident Ins. Co..
721 F. Supp. 1247 (S.D. Fla. 1 9 8 9 ) ....................... 9, 15

United States v. Rent America Corp.. 734 F. Supp. 474
(S.D. Fla. 1 9 9 0 ) ..............................................  14

-  v  -



CASE PAGE(S)
Voael v. City of Cincinnati. 959 F.2d 594 (6th Cir.

1992), cert, denied. 61 U.S.L.W. 3257 (Oct. 5, 1992) . . . .  2
Wabol v. Villacrusis. 908 F.2d 411 (9th Cir. 1990) ........  ,1 3
Wilson v. Belmont Homes. 970 F.2d 53 (5th Cir. 1992) ........  1
White v. Estelle. 556 F.2d 1366 (5th Cir. 1 9 7 7 ) ............... 9

LEGISLATIVE MATERIAL
P.L. 102-166, 105 Stat. 1071 (Civil Rights Act of 1991) . .passim
20 U.S.C. §§ 1601-1619 . . . . '......................   12
137 Cong. Rec. S15500 (Daily ed. Oct. 30, 1991)   12
137 Cong. Rec. S15481 (Daily ed. Oct. 30, 1991)   12

MISCELLANEOUS
L. Greenhouse, "An Administration Shift Over Retroactive Laws," 

The New York Times, April 17, 1992 .......................  11

- vi -



STATEMENT OF ISSUES 
FOR EN BANC CONSIDERATION

Whether the Civil Rights Act of 1991 applies to cases that 
were pending at the time the Act was passed?

Whether the panel's decision can be reconciled with the line 
of cases from this Circuit holding that Congressional enactments 
that restore Civil Rights laws by correcting judicial decisions are 
to be applied to pending cases?

Whether an issue as important as this should be decided 
summarily in a pro se case without adequate or accurate briefing?

STATEMENT OF THE CASE
This case involves allegations of racial and sexual harassment 

perpetrated by Ms. Baynes' immediate supervisor, and of retaliatory 
discharge. The case was tried before a Magistrate who found 
against Ms. Baynes on all issues. Significantly, the Magistrate's 
Report and Recommendation, adopted by the District Court, was based 
almost entirely on credibility findings, which Congress has now 
deemed to be the province of a jury. (R-3-53-pp.10-23)

The panel opinion in this case was the first decision by this 
Court involving the application of the Civil Rights Act of 1991, a 
question of extreme importance that affects a large number of 
cases. Indeed, the issue has already spawned thirty appellate 
decisions in other circuits, many of which have reached varying 
conclusions leaving numerous questions still open. See, e.g..
Davis v. City & County of San Francisco/ No. 91-15113, slip op. at 
12016, 1992 WL 251513 (9th Cir. Oct. 6, 1992); Gersman v. Group 
Health Ass'n, No. 89-5482, 1992 WL 220163 (D.C. Cir. Sept. 15,
1992); Wilson v. Belmont Homes. 970 F.2d 53 (5th Cir. 1992);

1



Johnson v. Uncle Ben's. 965 F.2d 1363, 1374 (5th Cir. 1992); Vogel 
v. City of Cincinnati. 959 F.2d 594 (6th Cir. 1992), cert, denied. 
61 U.S.L.W. 3257 (Oct. 5, 1992); Luddington v. Indiana Bell Tele­
phone Co.. 966 F .2d 225 (7th Cir. 1992).

On appeal, Ms. Baynes was pro se and the substance of her 
opening brief consumed six pages. Subsequent to her opening brief, 
Ms. Baynes filed a "Motion for Summary Vacation of the Judgment . . 
. For Application of the Civil Rights Act of 1991," although Ms. 
Baynes provided sparse legal authority in support of her Motion.
In contrast, the appellees were represented by the law firm of 
Paul, Hastings, Janofsky and Walker, one of the larger law firms in 
the country with an extremely active employment practice. The 
appellees' opening brief was forty-seven pages, and after Ms.
Baynes filed her Motion to Vacate, the appellees filed two lengthy 
supplemental briefs. When the Court denied appellees' Motion to 
File a Second Supplemental Brief, the appellees filed supplemental 
"authorities" with the Court that included a fifty-page brief that 
had been filed by the United States Department of Justice in a 
different case1 and thirteen district court cases that had held 
that the Civil Rights Act did not apply to pending cases. Surpris­
ingly, the appellees failed to provide the Court with any of the 
dozens of cases that had held that the Act does apply to pending 
cases. Indeed, at the time AT&T Technologies filed their supple­
mental authorities on March 19, 1992, there had been at least 
thirty district court decisions applying the Act to pending cases -

1 Appellees filed the version of the brief that appeared in 
the Daily Labor Reporter which due to small type appears to be 
shorter than fifty pages.

2



- including six from courts within this Circuit —  and yet the 
appellees failed to bring even one of those cases to the Court's 
attention,2 If that were not enough, the appellees' briefs failed 
to address accurately the case law of this Circuit, the statutory 
language of the Civil Rights Act of 1991, or Circuit precedent 
involving the application of restorative legislation to pending 
cases.

An issue of this importance deserves a full and fair briefing 
and argument. The complex question of the applicability of the 
Civil Rights Act of 1991 to pending cases affects a large number of 
cases. Indeed, many such cases are currently pending before this 
Court; several have been fully briefed and argued.3 This issue is 
too important to be decided summarily in a pro se case in which the 
one-sided briefing by appellees contains partial and misleading 
authority.

2 The district court cases within this Circuit are: King 
v. Shelby Medical Ctr.. 779 F. Supp. 157 (N.D. Ala. Dec. 18, 
1991) (Acker, J.); Goldsmith v. City of Atmore. 782 F. Supp. 106 
(S.D. Fla. Jan. 15, 1992) (Butler, J.); Long v. Carr. 784 F. 
Supp. 887 (N.D. Ga. Jan. 31, 1992) (Freeman, J.) (now on inter­
locutory appeal as Long v. Selin. No. 92-8567); Jovner v. Monier 
Roof Tile, Inc.. 784 F. Supp. 887 (N.D. Ga. Jan. 31, 1992)
(Paine, J.); Watkins v. Bessemer State Tech. College. 782 F. 
Supp. 581 (N.D. Ala. Feb. 6, 1992) (Acker, J.); Carmichael v. 
Fowler. No. l:88-CV-969, 1992 WL 120353 (N.D. Ga. Mar. 11, 1992) 
(Ward, J.). Most of these cases were not officially reported at 
the time appellees filed their submission.

3 Counsel for appellant is aware of at least the following 
six cases that are currently pending before this Court: Vance v. 
Southern Bell Telephone & Telegraph Co.. No. 90-3559 (argued 
October 1992); EEOC and Sosebee v. Hardee's Food Systems. Inc.. 
No. 91-8712 (fully briefed); Hutchins v. American Telephone & 
Telegraph Co.. No. 92-8433 (fully briefed); Long v. Selin. 92- 
8567 (on interlocutory appeal; fully briefed); Metro Ambulance 
Serv. v. Curtis. No. 92-1085 (on interlocutory appeal; fully 
briefed); Davis v. Alabama Gas Corp.. 92-6489 (on interlocutory 
appeal; opening brief filed).

3



ARGUMENT AND AUTHORITIES
I. THE PANEL FAILED TO ADDRESS THE

MEANING OF THE STATUTORY LANGUAGE.
This case was filed on May 25, 1988 alleging racial and sexual 

harassment and discriminatory termination. Plaintiff originally 
brought her suit under both Title VII and 42 U.S.C. § 1981 and 
sought a jury trial and damages. After the Supreme Court's deci­
sion in Patterson v. McLean Credit Union. 491 U.S. 164 (1989), 
which was decided on June 15, 1989 —  nearly two years after the 
discriminatory events in question —  the section 1981 claim was 
dismissed on summary judgment.4-

Immediately after the Patterson decision was handed down re­
stricting the scope of section 1981, Congress moved statutorily to 
correct that decision. It took two years but on November 21, 1991, 
the President signed into law the historic Civil Rights Act of 1991 
which, among other things, effectively repudiated the Supreme Court 
decision in Patterson, thereby restoring the law to its status 
prior to the Court's interpretation. Additionally, largely in 
light of the inadequacy of the remedies provided to victims of 
harassment, the Civil Rights Act of 1991 provides a right to a jury 
trial, and the opportunity to seek compensatory and punitive 
damages within specified limits, to victims of intentional discrim­
ination. The question presented here is whether the procedural 
right to a jury trial, along with the change in remedy, applies to 
cases pending at the time the Act was passed, and whether the

4 While the appellees may claim that it was uncertain 
whether a proper section 1981 claim existed, the panel accepted 
the existence of such a claim for purposes of its decision. See 
Slip op. at n.2.

4



Supreme Court's now repudiated decision in Patterson applies to 
this case.

In the panel opinion, this Court failed to address the lan­
guage of the Act, noting in a footnote only that the general rule 
is that the Act "takes effect upon enactment." Slip op. at n. 6. 
What the panel did not consider, however, is that Congress delib­
erately carved out two exceptions to this rule —  section 402(b) 
and section 109(c) —  both of which limit the Act to prospective 
effect conduct in certain circumstances. Section 402(b) reads as 
follows:

(b) Certain Disparate Impact Cases. —  Not­
withstanding any other provision of this Act, 
nothing in this Act shall apply to any dispa­
rate impact case for which a complaint was 
filed before March 1, 1975, and for which an 
initial decision was rendered after October 30,
1983.

P.L. 102-166, 105 Stat. 1071, at 1099. Additionally, section 
109(c) dealing with the extraterritorial reach of Title VII states: 
"The amendments made by this section shall not apply with respect 
to conduct occurring before the date of the enactment of this Act." 
The Ninth Circuit recently read these two provisions to require 
applying the Act to pending cases: "Congress' express declaration 
that the Act is to operate only with prospective force in two 
instances thus provides a clear indication of its intent that the 
rest of the Act . . . apply to cases pending at the time of enact­
ment and to prior conduct not barred by the applicable statutes of 
limitations." Davis v. City & County of San Francisco, supra. slip

5



op. at 12007 (footnote omitted).5
The specific language of sections 109(c) and 402(a) & (b) 

reflects a careful and deliberate scheme in which Congress deter­
mined which claims would be covered by the Act and which would not. 
"[Wjhere Congress includes particular language in one section of a 
statute but omits it in another section of the same Act, it is 
generally presumed that Congress acts intentionally and purposely 
in the disparate inclusion or exclusion." Russello v. United 
States. 464 U.S. 16, 23 (1983) (internal quotation marks and 
citation omitted); see also Davis v. City & County of San Francis­
co . slip op. at 12006; United States v. NEC Corp.. 931 F.2d 1493, 
1502 (11th Cir. 1991). Accordingly, sections 109(c) and 402(b) 
must be considered exceptions to —  and necessarily different 
from —  the general rule pronounced in section 402(a). There is no 
other plausible interpretation; at a minimum, the statutory lan­
guage must be dealt with.

Indeed, if the panel meant to suggest that sections 109(c) and 
402(b) are meaningless or superfluous, then the decision conflicts 
with the long line of Supreme Court cases holding that a statute is 
not to be construed so as to render any portion superfluous. See. 
e.q. . Mackey v. Lanier Collections Aq'v & Serv. , Inc. . 486 U.S.
825, 837 (1988); Kunqvs v. United States. 485 U.S. 759, 778 (1988); 
United States v. Menasche. 348 U.S. 528, 538-39 (1955); United 
States v. NEC Corp.. 931 F.2d at 1502. Last Term, the Supreme 
Court twice reiterated this rule of'statutory construction: it is

5 Because the Davis decision is in clear conflict with the 
panel's opinion, we have attached a copy of the decision as 
Attachment A.

6



a "settled rule" of statutory construction "that a statute must, if 
possible, be construed in such fashion that every word has some
operative meaning." United States v. Nordic Village, Inc.. ___
U.S. ___, 112 S.Ct. 1011, 117 L.Ed.2d 181, 189 (1992); American
Nat11 Red Cross v. S.G. & A.E.. 505 U.S. ___, 120 L.Ed.2d 201, 216
(1992). As the Ninth Circuit recently noted, "The Supreme Court 
has repeatedly declared that the task of discerning Congressional 
intent is well-served by adherence to the rule that statutes should 
not be construed in a manner which robs specific provisions of 
independent effect." Davis v. City & County of San Francisco, slip 
op. at 12009. The force of these decisions cannot be avoided by 
labelling the provisions as surplusage or insurance policies. Id.

The language of the Act, therefore, mandates its application 
to pre-Act conduct. The two exceptions to the general rule would 
be meaningless if the Act failed to apply to cases pending at the 
time the Act was passed. Cf. Travelers Ins. Co. v. Bullinaton. 878 
F.2d 354, 360 (11th Cir. 1989) (rejecting statutory interpretation 
that "would render Chapter 12 a triviality."). Moreover, there is 
no support in the statute, or the legislative history, for distin­
guishing between cases that were tried before the Act was passed 
and those that are tried thereafter.

The jury trial provisions are particularly important in this 
case because the Magistrate found against Ms. Baynes on credibility 
determinations on every issue.6 The facts of this case are addi­
tionally disturbing in the way that'Ms. Baynes was treated. When 
Ms. Baynes complained of sexual harassment, she was sent by the

6 See, e.q.. Appellee's Brief at 27-33 (using the term 
"credible" or "incredible" sixteen times).

7



company to a psychiatrist. (R-3-53-pp.4-5) Three other women who 
came forward to testify regarding the harassment perpetrated by Ms. 
Baynes' supervisors were likewise discredited by the Magistrate for 
various reasons. (R-3-53-pp.12, 20-23) The Magistrate's repeated 
and casual dismissal of Ms. Baynes' evidence provides a compelling 
justification for the need to have a jury decide this case. 
Regardless of whether the Magistrate was correct in his determina­
tions, Congress has now unequivocally declared that a jury should 
resolve questions of credibility in intentional discrimination 
cases and Ms. Baynes has a right to have her case heard by a jury.

II. THE PANEL'S DECISION CONFLICTS WITH THIS 
CIRCUIT'S PRECEDENT THAT LEGISLATION RE- 
STORING CIVIL RIGHTS APPLIES TO PENDING CASES.

Section 101 of the Civil Rights Act of 1991 unquestionably 
repudiates the Court's interpretation of Patterson v. McLean Credit 
Union. supra. As this Court has previously held, when Congress 
corrects an erroneous Supreme Court decision, it is imperative that 
the new law be applied to pending cases. See Lussier v. Dugger.
904 F.2d 661, 665-67 (11th Cir. 1990).

In Lussier. this Court considered the retroactive application 
of the Civil Rights Restoration Act of 1987, which "statutorily 
overruled" the Supreme Court's decision in Grove City College v. 
Bell. 465 U.S. 555 (1984). Id. at 664-65. Like the Civil Rights 
Act of 1991, the Civil Rights Restoration Act was intended to 
restore the law to its accepted meaning prior to the Supreme Court 
decision. Id. Accordingly, this Court held that retroactive 
application was consistent with the "long-standing general rule of 
statutory construction" that a court is to apply the law in effect 
at the time of its decision. Id. This Court noted further that

8



the statute was "purely remedial" in that it "merely corrects 
judicial interpretations which the Congress believed 'unduly 
narrowed or cast doubt upon the broad application of the civil 
rights laws." Id. at 666 (citation omitted).7

This Court's analysis applies with equal force to this case —  
Congress has corrected or statutorily overruled the Supreme Court's 
decision in Patterson, which is a remedial act designed to enhance 
our civil rights laws. Nor can it be said that in Patterson the 
Supreme Court was simply stating what the law had always been since 
central to the Patterson decision was the administrative enforce­
ment scheme of Title VII, which was enacted nearly one hundred 
years after the statue at issue in Patterson. See Patterson. 491 
U.S. at 180-81. Accordingly, the alleged conduct violated section 
1981 at the time of the conduct, and there is simply no logical way 
to distinguish Lussier from this case.8 What is more, the panel 
failed even to acknowledge Lussier —  which it must be conceded was 
not brought to its attention.

7 With one exception, every court that has addressed the 
issue has applied the Civil Rights Restoration Act retroactively. 
See Avers v. Allain. 893 F.2d 732, 754 (5th Cir.), vacated on 
other grounds. 914 F.2d 676 (5th Cir. 1990) (en banc), en banc 
opinion vacated and remanded sub nom. United States v. Fordice.
___ U.S. ___, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992); Leake v.
Long Island Jewish Medical Ctr.. 695 F. Supp. 1414 (E.D.N.Y.
1988), aff'd. 869 F.2d 131 (2d Cir. 1989) <per curiam); Bonner v. 
Arizona Dept, of Corrections. 714 F. Supp. 420 (D. Ariz. 1989). 
But see DeVaraas v. Mason & Hanger-Silas Mason Co.. 911 F.2d 1377 
(10th Cir. 1990), cert, denied. 112'S.Ct. 799 (1991).

8 For additional cases applying restorative legislation to 
pending cases, see United States v. Kolter. 849 F.2d 541, 544 
(11th Cir. 1988); White v. Estelle. 556 F.2d 1366, 1367 (5th Cir. 
1977); United States v. Provident Life & Accident Ins. Co.. 721 
F. Supp. 1247, 1249 (S.D. Fla. 1989).

9



III. THE PANEL'S RESTRICTIVE INTERPRETATION OF 
BRADLEY V. SCHOOL BD. CONFLICTS WITH A 
LONG LINE OF PRECEDENT FROM THIS CIRCUIT.

Although in its decision the panel purported to follow the 
dictates of Bradley v. School Bd. of City of Richmond. 416 U.S. 696 
(1974), its interpretation and application of that decision plainly 
conflicts with a long line of Circuit precedent. As the panel 
noted, Bradley mandates that a court is to apply the law in effect 
at the time of its decision unless doing so would result in mani­
fest injustice. Under Bradley, determining whether there would be 
manifest injustice requires reviewing (a) "the nature and identity 
of the parties"; (b) "the nature of their rights"; and (c) "the 
nature of the impact of the change in law upon those rights." 
Bradley. 416 U.S. at 717. The primary principles behind these 
concerns are whether the change "would infringe upon or deprive a 
person of a right that had matured or become unconditional," and 
whether "new and unanticipated obligations may be imposed upon a 
party without notice or an opportunity to be heard." Id. at 720.

The panel opinion misinterpreted Bradley on each and every 
level by focussing solely on the effect the change in law would 
have on the employer, while failing utterly to consider the inter­
ests of the victim which Congress considered paramount. Important­
ly, as will be noted in detail below, the panel did not identify 
any way in which applying the Civil Rights Act of 1991 to this case 
would affect the substantive rights of AT&T Technologies. The 
conduct complained of was a violation of section 1981 at the time 
in question, and has been a violation of Title VII throughout this 
litigation.

10



The panel began its interpretation of Bradley by holding that 
the question of the applicability of the Civil Rights Act of 1991 
is not a matter of great national concern but is more akin to a 
"private case[] between individuals." Slip op. at 2. Never before 
has this Court held that the application of our civil rights laws 
were not matters of great national concern. That the dispute 
involves private parties is irrelevant for the proper distinction 
is between "private disputes and great national concerns." United 
States v. Marengo County Comm'n. 731 F.2d 1546, 1554 (11th Cir.), 
cert, denied. 469 U.S. 976 (1984); see also United States v. 
Peppertree Aots.. 942 F.2d 1555, 1561 (11th Cir. 1991) (applying 
retroactively what the court determined was an "issue of national 
concern, the provision of housing for low and moderate income 
families and displaced families")9; Lussier v. Dugger. 904 F.2d at 
666 (noting that legislation was enacted to "assist in the struggle 
to eliminate discrimination in our society."); Delmav v. Paine 
Webber. 872 F.2d 356, 357 (11th Cir. 1989) (per curiam)
("[A]lthough this involves a dispute between private parties, the 
jurisdictional issue implicates broad national concerns . . . "); 
Jenkins v. United Gas Corp.. 400 F.2d 28, 32 (5th Cir. 1968) (in 
cases of employment discrimination individual "takes on the mantle 
of the sovereign"). It cannot be said that a federal arbitration

9 As the panel correctly noted, although the Supreme Court 
vacated this Court's decision in Peppertree. the Supreme Court's 
Order does not affect this Court's reasoning since the United 
States asked the Supreme Court not to reach the merits. See
Bailes v. United States. ___ U.S. ___, 118 L.Ed.2d 419 (1992), on
remand. United States v. Peppertree Apts.. 961 F.2d 1538 (11th 
Cir. 1992). For a discussion of the case, see L. Greenhouse, "An 
Administration Shift Over Retroactive Laws," The New York Times, 
April 17, 1992.

11



statute, at issue in Delmay, involving private parties to a commer­
cial dispute is of greater national concern than allegations of 
employment discrimination. Congress unquestionably considered the 
effectiveness of the Civil Rights Act in individual cases to be of 
great national importance.10 The panel's holding that disputes 
involving the Civil Rights Act of 1991 are not matters of national 
concern simply cannot be squared with past Circuit precedent.

The panel likewise erred in its interpretation of the second 
Bradley factor. The panel apparently held that the question of 
manifest injustice is to be answered in the abstract by looking at 
the statute as a whole to determine whether the statute contains 
any new substantive provisions. If so, then it would assertedly be 
manifestly unjust to apply any part of the statute to pending cases 
—  even if the substantive changes are not at issue. This is not, 
and never has been the law, and again conflicts with a long line of 
precedent. For example, the attorney's fee provision at issue in 
Bradley was applied retroactively even though the provision was 
part of a comprehensive Education Act that included significant 
substantive changes in the law. See Bradley. 416 U.S. at 709.11

10 See. e.q.. 137 Cong. Rec. S15500 (Daily ed. Oct. 30, 
1991) (Sen. Danforth) ("[Wjhat was wrong in 1989 was not simply 
that the Supreme Court wrongly decided a half a dozen cases . . . 
. What was wrong was that in the year 1989 the Supreme Court 
chose to turn the clock back, and that can never happen in civil 
rights; it can never be allowed to happen.-") ; 13 7 Cong. Rec. 
S15481 (Daily ed. Oct. 30, 1991) (Sen. Hatfield) ("While it is 
beyond our power to end discrimination in this country, it is no 
less incumbent upon us to ensure that the laws of the United 
States offer no comfort to those who engage in discriminatory 
practices.").

11 The attorney fee provision at issue in Bradley was part 
of the Education Amendments of 1972, codified at 20 U.S.C.
§§ 1601-1619, which included new funding and programs.

12



This Court's precedents are also replete with examples in which 
certain provisions of comprehensive statutes were applied to 
pending cases despite the existence of substantive changes in the 
law. See, e.g.. United States v. Peopertree Apts.. 942 F.2d at 
1561 (part of comprehensive housing and fraud statute applied 
retroactively); FDIC v. 232. Inc.. 920 F.2d 815 (11th Cir. 1991) 
(per curiam) (portion of FIRREA, savings and loan bailout statute, 
applied retroactively); Delmav v. Paine Webber. 872 F.2d at 357 
(appellate jurisdiction section of Judicial Improvements Act 
applied despite substantive provisions in the Act). Here it cannot 
be overlooked that while the panel's holding was narrow, ostensibly 
applying only to cases in which a judgment has been entered, its 
reasoning seems to apply beyond its limited holding.

With respect to the third Bradley factor, the panel failed to 
identify any substantive change in law that was at issue in this 
case. It is beyond question that a jury trial is a procedural 
provision which does not affect the lawfulness of the underlying 
conduct. See Lorillard v. Pons. 434 U.S. 575, 584 (1978) ; Wabol v. 
Villacrusis. 908 F.2d 411, 422 (9th Cir. 1990); Scarboro v. First 
American Nat'l Bank. 619 F.2d 621, 622 (6th Cir.) (per curiam), 
cert, denied. 449 U.S. 1014 (1980). Parties certainly do not plan 
their actions by considering whether they will receive a jury trial 
should they run afoul of the law, and no party can claim a vested 
right in any particular procedure. See, e.g.. Crane v. Hahlo. 258 
U.S. 514 (1922); FDIC v. 232. I n c . 920 F.2d at 818-19 (per curi­
am) .

The law is also clear that the prospect of increased damages

13



does not alter any substantive rights; Congress has simply provided 
new remedies for preexisting rights which can be applied to pending 
cases without raising any specter of injustice. See Pension Ben. 
Guaranty Corp. v. R.A. Gray & Co.. 467 U.S. 717, 728-31 (1984) ; 
Peppertree. 942 F.2d at 1561 (noting that the change in penalties 
simply "imposes an additional remedy on already proscribed 
conduct'); Littlefield v. McGuffev. 954 F.2d 1337, 1345 (7th Cir. 
1992) ; United States v. Rent America Corp.. 734 F. Supp. 474 (S.D. 
Fla. 1990) (Fair Housing Act Amendments, and its increased reme­
dies, applied retroactively). In providing enhanced remedies to 
victims of discrimination, Congress has simply removed an artifi­
cial barrier to obtaining full relief. See Mozee v. American 
Commercial Marine Serv. Co.. 963 F.2d 929, 939 (7th Cir. 1992), 
cert, denied. 61 U.S.L.W. 3261 (Oct. 5, 1992). Importantly, in 
this case no real additional remedy was being imposed because when 
the case was filed the appellees were already subject to damages 
and a jury trial with respect to Ms. Baynes' race claims under 
section 1981. Requiring a jury trial with the opportunity to seek 
damages at this juncture simply restores the parties to the posi­
tion they were in at the inception of this suit.

The panel's restrictive interpretation of Bradley is also 
significant beyond the scope of the Civil Rights Act of 1991. The 
successful enforcement of the savings and loan bailout legislation 
has largely been dependent on retroactive application of the law, 
as has our environmental cleanup and the government's efforts to

14



ferret out contract fraud.12 If the panel opinion is allowed to 
stand, the law will be thrown into great flux as courts and parties 
scramble to reconcile this case with Peppertree. Lussier and the 
other cases previously discussed. This Court should grant en banc 
review in order to clarify the law and to reconcile the created 
conflicts.

CONCLUSION
Appellant requests that the panel opinion be vacated and that 

this case be set for briefing and argument.

SHARON R. VINICK 
Lawyers1 Committee for Civil 
Rights Under Law
1400 "Eye" Street, N.W. , Suite 400 
Washington, D.C. 20005 
(202) 371-1212
GORDON L. JOYNER 
945 Ashby Circle, N.W.
Atlanta, Georgia 30314 
(404) 524-2400
Attorneys for Appellant

November 9, 1992

12 See. e.q.. Kirkbride v. Continental Casualty Co.. 933 
F.2d 729 (9th Cir. 1991) (FIRREA); United States v. Monsanto Co.. 
858 F.2d 160 (4th Cir. 1988), cert, denied. 490 U.S. 1106 (1989) 
(CERCLA); United States v. Provident Life & Accident Ins. Co..
721 F. Supp. at 1252 (False Claims Act).

15



copies of the foregoing APPELLANT'S PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC by United States Mail, postage 
prepaid, on the following attorney of record:

Weyman T. Johnson, Jr.
Paul, Hastings, Janofsky & Walker
Georgia-Pacific Center
42nd Floor
133 Peachtree S
Atlanta, Georgi

Attorney for Appellant

16



ATTACHMENT A



\

PRINTED FORADMINISTRATIVE OFFIC E—U S. COURTS BY BARCLAYS / ELECTROGRAPIIIC—SAN FRANCISCO—C4 I5) 588 1155The nummer}, which dc*a no* comlitulc a pert of the opinion of the court, h copyrighted O  1992 by Barclay! Law Publiihen.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Fontaine D avis; E ric H. 
W ashington; J erh.yn N orth,
J immie Braden, A udrey L ee ,
Early D avis, Brandi Swanson, 
Susan M ooreiiead, A nne Y oung, 
M ary M. C arder, T heresa 
Rodigou, K athleen J. B radshaw , 
Patricia M urray, International 
A ssociation of Black 
F iREiTc.iiters-San Francisco 
C hapter, c i a l„

Plaintiffs-Appellees,

No. 91-15113 
D.C. No.

CV-84-01100-MHP 
OPINION

v.

CriY and C ounty of S an 
F rancisco,

Defendant-Appellant.

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

Marilyn H. Patel, District Judge, Presiding

Argued and Submitted
January 16, 1992—San Francisco, California 
Withdrawn from Submission April 13, 1992 

Resubmitted July 1, 1992

Filed October 6, 1992

Before: Alfred T. Goodwin, Betty B. Fletcher and 
Melvin Brunetti, Circuit Judges.

Opinion by Judge Fletcher

11977



11978 Davis v. San Francisco

SUMMARY

Attorneys and Judges/Attorneys’ Fees/Litlgatlon and 
Procedure (Clvll)/Clvll Litigation and Procedure

Affirming in part, reversing in part and remanding a district 
court judgment awarding attorneys’ fees against the City and 
County of San Francisco in an employment discrimination 
action against its Fire Department, the court of appeals held 
that, while it generally approved of the award of attorneys’ 
fees with certain modifications to be made on remand, it also 
affirmed the district court’s award of expert witness fees in 
light of its conclusion that the Civil Rights Act of 1991 
applies to cases pending on the date of its enactment.

In 1988, the City of San Francisco and a class of female 
and minority plaintiffs filed a consent decree in settlement of 
the plaintiffs’ claims that the San Francisco Fire Department 
had long engaged in various acts of employment discrimina­
tion. The decree, having received the approval of both the dis­
trict court and the Ninth Circuit, fully resolved the plaintiffs’ 
challenges to the Fire Department’s discriminatory hiring and 
promotional practices. However, the consent decree left open 
for determination by the district court the amount of fees and 
costs to be awarded in the litigation. The district court subse­
quently awarded such fees and costs. The City, while not con­
testing the plaintiffs’ entitlement to fees, challenged the 
amount of fees and costs awarded as unreasonable. The con­
sent decree also left unresolved the appropriate rate of interest 
on an award of backpay to six firefighters whom it provided 
would be promoted retroactively to the position of lieutenant. 
The district court determined that interest was payable by the 
City at a floating rate equivalent to 90% of the prime rate for 
each calendar quarter in which backpay was owing. The City 
appealed this rate as excessive.

[lj In calculating a reasonable attorneys’ fee under title 
VII, a court must first calculate a “lodestar” figure by multi-

Davis v. San Francisco 11979

plying the number of hours reasonably expended on the litiga­
tion by a reasonable hourly rate. [2j Here, the district court 
properly allowed plaintiffs' counsel to supplement their time 
sheets with additional documentation of their efforts. Basing 
the attorneys’ fee award in part on reconstructed records 
developed by reference to litigation files and other records is 
not an abuse of discretion. [3] Thus, the district court properly 
rejected the City’s challenge to plaintiffs' counsel’s documen­
tation of their hours. [4] However, time spent by law clerks 
and legal assistants on matters unrelated to the Fire Depart­
ment’s hiring and promotional practices and the issue of racial 
harassment should not have been incorporated into the calcu­
lation of the lodestar amount. Thus, on remand, the district 
court was to deduct these hours in redetermining the lodestar 
amount. [5] While the City correctly argued that time spent on 
clerical matters should not have been included in the attor­
neys’ fee atfard, it erred in suggesting that the district court 
failed to take this principle into account in its calculation of 
the lodestar amount. [6] The City’s general protestations that 
travel time should not be compensated for did not suffice in 
the face of plaintiffs’ showing concerning the accepted prac­
tice in traditional fee arrangements. [7] Since the City did not 
claim that the time spent by plaintiffs’ counsel on the fee peti­
tion was duplicative of that claimed by fee counsel, the dis­
trict court properly compensated counsel for such time. [8] 
Concerning the City’s argument on duplicative tasks and 
overstaffing, the court stated that the district court’s determi­
nation that the bulk of the hours claimed by plaintiffs’ counsel 
were reasonably expended was not an abuse of discretion. The 
familiarity of a district court with the underlying litigation 
warrants considerable deference to its findings on such mat­
ters as to whether the hours claimed by prevailing counsel are 
redundant.

[9] The court noted that prevailing civil rights counsel are 
entitled to compensation for the same tasks as a private attor­
ney. Where the giving of press conferences and performance 
of other lobbying and public relations work is directly and



11980 Davis v, San Francisco

intimately related to the successful representation of a client, 
private attorneys do such work and bill their clients. Prevail­
ing civil rights plaintiffs may do the same. [10] Here, the dis­
trict court properly determined that plaintiffs’ counsel’s 
public relations work represented a valid effort to lobby the 
San Francisco Board of Supervisors, and that obtaining their 
support, whose members are elected by the citizens of the 
City and County of San Francisco, was as vital to the consent 
decree as were the negotiations with the City’s administrative 
officials. However, on remand, the district court should disal­
low any hours claimed by plaintiffs’ counsel for public rela­
tions work that did not contribute, directly and substantially, 
to the attainment of plaintiffs’ litigation goals.

[II] Concerning the hourly rate and enhancement of the 
lodestar, in determining appropriate billing rates for the plain­
tiffs’ attorneys, the district court properly discussed at some 
length those Johnson-Kerr factors that it thought relevant to 
this case. [12] The court thus disagreed with the City’s con­
tention that the district court erred in applying a uniform rate 
to the legal work performed by each plaintiff’s attorney. The 
use of a single average rate for each attorney is not necessar­
ily an abuse of discretion. [13] The court rejected the argu­
ment that the district court should not have applied 1988 
billing rates to each hour claimed by plaintiffs’ counsel 
regardless of the year in which the work was actually per­
formed. [14] However, while the Dague court did not speak 
directly to this point, the court believed that its rejection of 
contingency as a basis for multiplying a lodestar fee similarly 
dictates that contingency not be a factor in the setting of bill­
ing rates. [15] Thus, on remand, the district court must con­
sider whether it would arrive at the same lodestar Figure in 
this case without taking the factor of contingency into 
account.

[16] Concerning the award of expert fees, the court had to 
decide whether Congress intended the provisions of the Civil 
Rights Act of 1991 to apply to pending cases so as to render

Davis v. San Francisco 11981

the Act’s express authorization of expert fee awards, rather 
than the Casey court's determination that such awards should 
not be made, controlling in this case. [17] The court noted that 
Congress’ express declaration that the Act is to operate only 
with prospective force in two instances provided a clear indi­
cation of its intent that the rest of the Act, including its expert 
fees provisions, apply to cases pending at the time of enact­
ment and to prior conduct not barred by the applicable statutes 
of limitations. [18] Given Congress’ sense that the Supreme 
Court had construed the nation’s civil rights laws so as to 
afford insufficient redress to those who have suffered job dis­
crimination, it appeared likely that Congress intended the 
courts to apply its new legislation, rather than the Court deci­
sions that predated the Act, for the benefit of the victims of 
discrimination still before them. [19] The court did not find 
in the legislative history evidence sufficient to overcome the 
weighty presumption that the Act’s language, indicating as it 
does that Congress intended the Act to apply retroactively, is 
an accurate reflection of the legislative design. [20] Nor did 
the fact that the EEOC has interpreted the Act’s damages pro­
visions to apply only to claims arising after the effective date 
of the Act call into question the clear import of the statutory 
language.

[21] Because the consent decree was the settlement of a 
federal action, the district court was well within its bounds in 
applying federal law to interpret the provisions of the decree. 
[22] Accordingly, the district court’s award of interest on 
back pay was affirmed.

COUNSEL

George A. Riley, Deputy City Attorney, San Francisco, Cali­
fornia, for the defendant-appellant,

Richard M. Pearl, San Francisco, California, for the plaintiffs- 
appellees.



11990 Davis v. San Francisco

examples of billing abuse. Many of these entries have to do 
with time billed for clerical matters such as the Filing of 
pleadings and the travel time associated therewith. Appellees’ 
counsel are not entitled, the City argues, to attorneys’ fees for 
the performance of such tasks.

We agree with the City. In Missouri v. Jenkins, 491 U.S. 
274 (1989), the Supreme Court noted that “purely clerical or 
secretarial tasks should not be billed at a paralegal [or law­
yer’s] rate, regardless of who performs them . . .  ‘[The] dollar 
value [of such non-legal work] is not enhanced just because 
a lawyer does it.’ ’’ Id. at 288 n.10 (quoting Johnson v. Geor­
gia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 
1974)). It simply is not reasonable for a lawyer to bill, at her 
regular hourly rate, for tasks that a non-attorney employed by 
her could perform at a much lower cost.

[5] The City overlooks the fact, however, that the district 
court took proper account of the clerical time claimed by 
appellees’ counsel in calculating the lodestar amount. The 
court noted the City’s contention that appellees’ counsel had 
billed eighty-three hours for chores such as xeroxing and the 
serving and Filing of papers. While questioning the accuracy 
of the City’s Figure, the court observed that appellees’ counsel 
had reduced the total number of hours claimed by Five percent 
to account for billing errors of this sort. This Five percent 
reduction more than compensated for the time challenged by 
the City as improperly billed, rendering a further reduction in 
the lodestar amount unnecessary. 748 F. Supp. at 1422-23.* 
Thus, while the City correctly argues that time spent on cleri­
cal matters should not have been included in the attorneys’ fee 
award, it errs in suggesting that the district court failed to take

*AII together, appellees’ counsel billed approximately nine thousand 
hours. The five percent billing judgment reduction thus amounted to about 
four hundred and fifty hours. The district court's reasoning would have 
been suspect if it had continually relied upon the five percent reduction to 
forgive errors in appellees’ counsel’s billing practices. This it did not do.

Davis v. San Francisct) 11991

this principle into account in its calculation of the lodestar 
amount.

(iv) Travel Time

The City not only challenges the hours claimed by appel­
lees’ counsel for travelling in connection with the perfor­
mance of clerical tasks, but also contends that the district 
court improperly allowed counsel to bill for time spent travel­
ling to co-counsel meetings. This argument lacks merit. The 
touchstone in determining whether hours have been properly 
claimed is reasonableness. The assessment of reasonableness 
is made by reference to standards established in dealings 
between paying clients and the private bar. “[The] calculation 
of fees for prevailing civil rights plaintiffs is to be the same 
as in traditional fee arrangements and . . .  all reasonable time 
spent is to be compensated.” Suzuki v. Yuen, 678 F.2d 761, 
764 (9th Cir. 1982).

[6] The district court allowed appellees’ counsel to claim 
time spent travelling to co-counsel meetings because “counsel 
have submitted evidence establishing that local attorneys cus­
tomarily bill their clients for travel time to co-counsel 
meetings.” 748 F. Supp. at 1422. The City did not introduce 
any evidence to the contrary below, and does not point to any 
on appeal. Its general protestations that travel time should not 
be compensated for do not suffice in the face of appellees’ 
showing concerning the accepted practice in traditional fee 
arrangements.

(v) Time Spent on Fee Petition

This Court has repeatedly held that time spent by counsel 
in establishing the right to a fee award is compensable. See, 
e.g., D'Emanuele v. Montgomery Ward & Co., 904 F.2d 
1379, 1387-88 (9th Cir. 1990); Clark v. City o f Los Angeles, 
803 F.2d 987, 992 (9th Cir. 1986); In Re Nucorp Energy, Inc., 
764 F.2d 655, 659-660 (9th Cir. 1985). In the face of this pre-



11992 Davis v. San Francisco

cedent, the City argues that appellees’ counsel should not 
receive compensation for the time they spent on their fee peti­
tion because they hired an additional lawyer to act as fee 
counsel.

[7] Counsel may certainly solicit the assistance of other 
lawyers in working on a case, however, and the time spent by 
all lawyers on a litigation can be billed so long as the hours 
claimed are not duplicative. Just recently we affirmed a fee 
award which included compensation for time spent by plain­
tiffs’ regular counsel as well as special fee counsel on a fee 
petition. “A review of the record indicates that the request for 
fees and costs for work on the fee petition is reasonable. We 
therefore award $65,641.50 for fees incurred in litigating the 
fee petition: $9,370.50 for work performed by class counsel 
and $56,271.00 for legal services rendered by counsel 
employed by class counsel.” Bernardi v. Yeutter, 951 F.2d 
971, 976 (9th Cir. 1991). Since the City does not claim that 
the time spent by appellees’ counsel on the fee petition was 
duplicative of that claimed by fee counsel, the district court 
properly compensated appellees’ counsel for such time.

(vi) Duplicative Tasks and Overstaffing

The City contends that because a number of attorneys and 
paralegals billed the City for time spent on the SFFD litiga­
tion, the hours they claimed were necessarily duplicative. The 
district court discussed this question of overstaffing at some 
length. It noted that those challenging the SFFD’s employ­
ment practices had been divided into five subclasses of liti­
gants because of potential conflicts of interest. Each subclass 
necessarily had to be represented by a different attorney. The 
appellees also hired additional attorneys with special expertise 
in employment discrimination litigation who helped develop 
the overall strategy and legal analysis. The court reviewed the 
time records of each attorney and determined that, for the 
most part, the hours claimed “ ‘reflect [ ] the distinct contribu­
tion of each lawyer to the case.’ ” 748 F. Supp. at 1421 (quot­

Davis v. San Francisco 11993

ing Johnson v. University College, 706 F.2d 1205, 1208 (9th 
Cir. 1983)). It disallowed a number of hours, however, which 
it attributed to unnecessary multiple appearances by counsel 
and law students at depositions and hearings.

[8] We review for abuse of discretion. The district court’s 
determination that the bulk of the hours claimed by appellees’ 
counsel were reasonably expended was not an abuse of dis­
cretion. We have previously recognized that broad-based class 
litigation often requires the participation of multiple attorneys. 
“[I]n an important class action litigation such as this, the par­
ticipation of more than one attorney does not constitute an 
unnecessary duplication of effort.” Probe v. State Teachers’ 
Retirement System, 780 F.2d 776, 785 (9th Cir. 1986), cert, 
denied, 476 U.S. 1170 (1986); see also Kim v. Fujikawa, 871 
F.2d 1427, 1435 n.9 (9th Cir. 1989). Furthermore, following 
the lead of the Supreme Court, we have stressed that the 
familiarity of a district court with the underlying litigation 
warrants considerable deference to its findings on such mat­
ters as whether the hours claimed by prevailing counsel are 
redundant. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 437 
(1983) (“We reemphasize that the district court has discretion 
in determining the amount of a fee award. This is appropriate 
in view of the district court’s superior understanding of the lit­
igation and the desirability of avoiding frequent appellate 
review of what essentially are factual matters.”); White v. City 
o f Richmond, 713 F.2d 458, 461 (9th Cir. 1983) (“We will not 
assume that the attorneys’ efforts were duplicative or unnec­
essary where the District Court employed such caution.’’).

The district court scrutinized the hours claimed by appel­
lees’ counsel with care. While the City observes that district 
courts in other multiple representation cases have disallowed 
hours as redundant, that fact does not cast doubt on the court’s 
finding here that appellees’ counsel did not, for the most part, 
seek compensation for duplicative efforts. The City’s general­
ized assertions that appellees’ counsel billed excessive hours 
for time spent in co-counsel meetings similarly fall short of



11982 Davis v. S an Francisco

OPINION

FLETCHER, Circuit Judge:

On May 20, 1988, the City of San Francisco (the City) and 
a class of female and minority plaintiffs filed a consent decree 
in settlement of the plaintiffs’ claims that the San Francisco 
Fire Department (SFFD) had long engaged in various acts of 
employment discrimination. The decree, which received the 
approval of both the district court and this Court, fully 
resolved the plaintiffs’ challenges to the SFFD’s hiring and 
promotional practices. It left open two questions, however, 
which form the basis for this appeal.

The decree stated that “[t]he issues of the costs and attor­
neys’ fees due to counsel for the parties to this action shall be 
heard and resolved by the [district] Court. . . . ” The plaintiffs 
subsequently moved the district court for an award of fees and 
costs pursuant to 42 U.S.C. § 2000e-5(k) (1982). The City, 
while not contesting the plaintiffs’ entitlement to fees, appeals 
the amount of fees and costs awarded as unreasonable.

The decree also left unresolved the appropriate rate of 
interest on an award of backpay to six firefighters whom it 
provided would be promoted retroactively to the position of 
lieutenant. The district court subsequently determined that 
interest was payable by the City at a floating rate equivalent 
to ninety percent of the prime rate for each calendar quarter 
in which backpay was owing. The City appeals this rate as 
excessive.

I. FACTUAL BACKGROUND

The SFFD has long been subject to suits alleging discrimi­
nation in its hiring and promotion of firefighters. In 1970, 
when only four of the Department’s eighteen hundred fire­
fighters were black, the National Association for the 
Advancement of Colored People filed suit in federal district

Davis v. San Francisco 11983

court challenging the validity of the entry-level hiring test 
used by the Department. After a series of rulings by the dis­
trict court that the test and its subsequent modifications by the 
City had an adverse impact on blacks and were not job- 
related, see Western Addition Community Org. v. Alio to, 360 
F. Supp. 733, 739 (N.D. Cal. 1973) (WACO Ilf), Western 
Addition Community Org. v. Alioto, 340 F. Supp. 1351, 1356 
(N.D. Cal. 1972) (WACO If), Western Addition Community 
Org. v. Alioto, 330 F. Supp. 536 (N.D. Cal. 1971) (WACO /). 
a consent decree was entered into governing the manner in 
which various components of a hiring test developed by the 
SFFD in 1976 were to be used. WACO P, No.C-70-1335 
WTS, slip op. at 9-10 (N.D. Cal. May 18, 1977). The decree 
contained no provisions for race-conscious relief and appar­
ently did not eliminate the disparate impact of the Depart­
ment’s hiring procedures. See United States v. City and 
County o f San Francisco, 696 F. Supp. 1287, 1293 (N.D. Cal. 
1988). By its terms the decree expired in 1982.

In 1980, a group of black firefighters filed a complaint with 
the California Department of Fair Employment and Housing, 
alleging that an examination instituted by the SFFD in 1978 
to determine promotions to the position of lieutenant discrimi­
nated on the basis of race in violation of California’s Fair 
Employment and Housing Act, Cal. Gov’t. Code §§ 12900 et 
seq. (West 1980). The California Fair Employment and Hous­
ing Commission determined that the examination had an 
adverse impact on blacks and was not job-related. The Cali­
fornia Court of Appeals upheld this ruling but deferred any 
relief pending the outcome of a new round of federal litiga­
tion. City and County o f San Francisco v. Fair Employment 
and Housing Commission, 236 Cal. Rptr. 716 (Cal. App. 
1987).

The federal litigation focused on a revised hiring test intro­
duced by the SFFD in 1982 and a new promotional test insti­
tuted in 1984. The United States and the present appellees 
brought separate suits in federal district court in 1984 chal-



11984 Davis v. San Francisco

lenging the validity of those tests under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), and the 
State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 
§6701 et seq. (repealed 1986). The United States sought 
relief for black, Asian and Hispanic applicants and fire­
fighters, while the present appellees originally sued on behalf 
of female and black applicants and firefighters and ultimately 
came to represent Hispanic and Asian applicants and fire­
fighters as well. While the United States challenged only the 
validity of the SFFD’s hiring and promotional tests, the appel­
lees added claims for racial harassment. Unlike the United 
States, furthermore, they sought race and gender conscious 
relief. The two actions were consolidated in 1986.

In October 1986, one week before trial was to commence, 
the City declared that it would no longer defend the validity 
of the SFFD’s employment tests. The district court then 
entered summary judgment for the United States and the 
appellees and issued a permanent injunction prohibiting the 
SFFD’s use of tests with an adverse impact on women or 
minorities where those tests could not be justified by business 
necessity. The injunction also required the institution of 
recruitment and training programs for female and minority 
firefighters and the development of new employment tests by 
the SFFD that would conform to the Uniform Guidelines on 
Employee Selection Procedures, 29 C.F.R. § 1607.1 et seq. 
(1991) (Uniform Guidelines). Finally, the injunction provided 
that all members of the SFFD enjoying a rank higher than 
lieutenant would be held personally responsible for the imple­
mentation of the SFFD’s anti-harassment policy, and man­
dated the development of new procedures for hearing claims 
of harassment. United States v. City and County o f San Fran­
cisco, 656 F. Supp. 276, 289-90 (N.D. Cal. 1987).

The injunction did not address the present appellees’ claim 
that the SFFD’s repeated failure to develop employment tests 
free of disparate impact warranted race and sex conscious 
relief. The consent decree entered into between the appellees

Davis v. S an Francisco 11985

and the City, and opposed by the United States, resolves this 
issue. The decree establishes long term goals of forty percent 
minority and ten percent female representation in the SFFD’s 
ranks (the SFFD did not hire its first female firefighter until 
August of 1987). In order to attain these goals, the decree pro­
vides that of the firefighters hired over its seven year lifespan, 
at least nineteen percent should be Asian, ten percent should 
be black, and eleven percent should be Hispanic. Altogether, 
fifty-five percent of the firefighters hired are to be members 
of a minority group, and ten percent of the firefighters hired 
are to be female. The decree envisions that five hundred fire­
fighters will be hired during its lifespan.

The decree provides, furthermore, for specific recruitment 
efforts to attract females and members of minority groups to 
the SFFD. It requires that any tests utilized by the SFFD must 
conform to the Uniform Guidelines. And it states that any 
failure by the SFFD to meet the female and minority hiring 
goals it sets forth must be justified to the district court

The decree also addresses the question of promotions and 
provides for the retroactive elevation of six named black fire­
fighters to the rank of lieutenant, with backpay awarded from 
March 9, 1979, the date of their promotion. The decree further 
declares that the proportion of minority and female fire­
fighters promoted to officers’ positions should come to resem­
ble the proportion of qualified women and minorities applying 
for such positions. In addition to the named black firefighters, 
it provides for the elevation of eleven black, eight Hispanic 
and eight Asian firefighters to the rank of lieutenant within 
sixty days of the filing of the decree, and declares that twelve 
of an additional forty-eight individuals to be promoted should 
be members of minority groups. The decree establishes proce­
dures, Finally, for adjudicating claims of harassment and dis­
crimination on the job. The district court approved the decree 
in an exhaustive opinion, United States v. City and County o f 
San Francisco, 696 F. Supp. 1287 (N.D. Cal. 1988), which



11986 Davis v. San Francisco

was affirmed by a panel of this Court. Davis v. City and 
County o f San Francisco, 890 F.2d 1438 (9th Cir. 1989).

As noted above, the decree left open the issue of attorneys’ 
fees. Subsequent to the filing of the decree, the appellees 
moved the district court for an award of fees pursuant to 42 
U.S.C. § 2000e-5(k), which provides that in Title VII actions 
“the court, in its discretion, may allow the prevailing party, 
other than the [EEOC] or the United States, a reasonable
attorney’s f e e ___” The City did not contest the appellees’
status as prevailing parties, but vigorously challenged the 
amount of fees they requested. It asserted that the number of 
hours appellees’ counsel claimed to have expended on the liti­
gation was unreasonable, that the hourly rates claimed were 
excessive, that certain costs claimed by the appellees includ­
ing expert witness fees were not compensable, and that the 
appellees were not entitled to an enhancement of their fee 
award based on the contingent nature of the case and the high 
degree of success obtained.

\

In a thorough opinion, the district court scrutinized the fee 
request It disallowed some of the hours claimed by the appel­
lees, but largely agreed with their contentions concerning 
costs and an appropriate billing rate. It enhanced appellees’ 
fee award by a factor of two to account for the contingent 
nature of the compensation arrangement. The court awarded 
fees and costs in an amount slightly exceeding three and one 
half million dollars. United States v. City and County o f San 
Francisco, 748 F. Supp. 1416 (N.D. Cal. 1990).

The district court also determined the rate of interest to be 
applied to the backpay awards of the six individuals promoted 
retroactively to the rank of lieutenant. Adopting the appellees’ 
proposal, it declared that “[i]nterest shall be calculated begin­
ning on March 9,1979, from the end of each calendar quarter, 
on the amount then due and owing, at 90% of the average 
prime rate as obtained from the Federal Reserve Bank for the 
year in which the calendar quarter occurs.” United States v.

Davis v. San Francisco 11987

City and County o f San Francisco, 747 F. Supp. 1370, 1373 
(N.D. Cal. 1990).

We have jurisdiction over the City’s appeals from these 
determinations pursuant to 28 U.S.C. § 1291 (1988).

II. ATTORNEYS’ FEES

[I] We review an award of attorneys’ fees for an abuse of 
discretion. Bernardi v. Yeutter, 951 F.2d 971, 973 (9th Cir. 
1991); Merritt v. Mackey, 932 F.2d 1317, 1324 (9th Cir. 
1991). The district court properly recognized that the 
Supreme Court has adopted a two-pronged approach to the 
calculation of a “reasonable attorney’s fee” under Title VII. 
A court must first calculate a “lodestar" figure by 
“multiplying the number of hours reasonably expended on the 
litigation times a reasonable hourly rate.” Blum v. Stenson, 
465 U.S. 886, 888 (1984); Cunningham v. County o f Los 
Angeles, 879 F.2d 481,484 (9th Cir. 1988), cert, denied, 493 
U.S. 1035 (1990).' While this lodestar figure is presumed to 
represent an appropriate fee, under certain circumstances a 
court may adjust the award upward or downward to take into 
account special factors. Blum, 465 U.S. at 897.

The City contests each step in this analysis as performed by 
the district court, arguing that the court allowed appellees’

’Both the Supreme Court and this court have held that the standards for 
determining a reasonable attorney’s fee in a Title VII action pursuant to 
42 U.S.C. §2000c-5(k) are identical to those utilized in determining an 
attorney’s fee award pursuant to 42 U.S.C. § 1988, which allows for the 
award of a reasonable attorney’s fee to the prevailing party in actions 
brought under 42 U.S.C. §§ 1981-1986 and Titles VI and IX of the Civil 
Rights Act of 1964. See Hensley v. Fckerhart, 461 U.S. 424, 433 n.7 
(1988) (“The standards set forth in this |§ I988| opinion are generally 
applicable in all cases in which Congress has authorized an award of fees 
to a prevailing party.’ ’’); Fadhl v. City and County o f San Francisco, 859 
F.2d 649, 650 n. I (9th Cir. 1988). Thus, we will refer to both § 1988 and 
§20(X)e-5(k) cases in assessing the propriety of the district court's fee 
award here.



11988 D avis v . S an Francisco

counsel to claim an excessive number of hours and to bill 
those hours at an exorbitant rate, and that it then doubled the 
resulting lodestar amount even though no special factors 
existed to justify an enhancement of the award. We consider 
these arguments in tum.

A. Reasonable Hours

(i) Inadequate Documentation

The City first complains that appellees’ counsel failed to 
keep adequate records of the time spent on this litigation. The 
City contends that many of appellees’ counsel’s time sheets 
are vague and summary in nature, and thus did not provide the 
district court with an appropriate basis for making its award.

[2j The district court, however, properly allowed appellees’ 
counsel to supplement their time sheets with additional docu­
mentation of their efforts. “Basing the attorneys’ fee award in 
part on reconstructed records developed by reference to litiga­
tion files and other records is not an abuse of discretion.’’ 
Bonette v. California Health and Welfare Agency, 704 F.2d 
1465,1473 (9th Cir. 1983). The district court found appellees’ 
counsel’s reconstructed records, which drew on agendas and 
summaries of meetings and the notes and time sheets of co­
counsel, to be extensive, United States v. City and County o f 
San Francisco, 748 F. Supp. 1416, 1420 (N.D. Cal. 1990), 
and we do not find it to have abused its discretion in reaching 
this conclusion.

[3J The City asserts that even the reconstructed records are 
conclusory and uninformative, but the very example it points 
to in support of this contention illustrates that it seeks to 
impose too high a standard of documentation on fee claim­
ants. In Hensley v. Eckerhart, 461 U.S. 424 (1983), the 
Supreme Court noted that “[pjlaintiffs counsel, of course, is 
not required to record in great detail how each minute of his 
time was expended. But at least counsel should identify the

Davis v. S an Francisco 11989

general subject matter of his time expenditures.” Id. at 437 
nJ2. The example challenged by the City as an instance of 
poor documentation is a time record describing several hours 
as having been spent at a counsel’s meeting that “occurred 
less than a month before the plaintiff's complaint was filed" 
and at which a host of issues were discussed in connection 
with the filing. Contrary to the City’s characterization of this 
description as wholly inadequate, it conveys information suf­
ficient to pass muster under the Hensley standard. Thus, the 
district court properly rejected the City’s challenge to appel­
lees’ counsel’s documentation of their hours.*

(ii) Unrelated Claims

[4] In calculating the lodestar amount, the district court did 
not include time spent by appellees’ counsel on matters unre­
lated to the SFFD’s hiring and promotional practices and the 
issue of racial harassment which formed the basis for its per­
manent injunction and the subsequent consent decree. In an 
apparent oversight, however, the court included time spent by 
law clerks and legal assistants on such matters. The appellees 
agree with the City that the sixty-four and a half hours so 
spent should not have been incorporated into the calculation 
of the lodestar. On remand, therefore, the district court should 
deduct these hours in redetermining the lodestar amount.

(iii) Clerical Matters

The City points to entries in the time sheets of William 
McNeill, one of appellees’ attorneys, as constituting clear

* R cla ted  to  th e  C i ty ’s a tta c k  o n  a p p e l le e s ’ c o u n s e l ’s  re c o rd k e e p in g  is its 
c o n te n tio n  th a t a p p e l le e s ’ c o u n se l  c la irp e d , a n d  w e re  a w a rd e d , h o u rs  
e x c e e d in g  th o se  th a t c a n  b e  a c c o u n te d  fo r b y  to ta l lin g  th e ir  t im e  sh e e ts . 
T h e  C ity  h a s  n o t p o in te d  to  an y  in s ta n c e s  w h e re  th e  d is tr ic t  c o u r t e r re d  in 
its  c o m p u la tio n  o f  th e  h o u rs  sp e n t by  a p p e l le e s ’ c o u n se l  o n  th is  l it ig a tio n . 
T h e  d is tr ic t  c o u r t p ro v id e d  a  d e ta i le d  a t lo m e y -b y  a tto rn e y  b re a k d o w n  o f  
th o se  h o u rs  a s  an  a p p e n d ix  to  its  o p in io n . S e e  U n ite d  S ta te s  v. C ity  a n d  
C o u n ty  o f  San F ra n c isc o , 7 4 8  F. S u p p . a t 1 4 4 1 -1 4 4 3 .



11994 D avis v . S an Francisco

the mark in light of the district court’s finding that appellees’ 
counsel presented “comprehensive and persuasive” evidence, 
“in the form of agendas, meeting summaries and deposition 
testimony, of the efficient and essential nature of their co­
counsel meetings.” 748 F. Supp. at 1421.

(vii) Press Conferences and Public Relations

The City challenges approximately eleven hours of time 
billed by appellees’ counsel for what it characterizes as talks 
given to community organizations. The district court rejected 
this characterization, stating that closer review demonstrated 
that appellees’ counsel spent the eleven hours conferring with 
their clients and with attorneys involved in similar litigation. 
748 F. Supp. at 1423 (N.D. Cal. 1990). The City points to 
nothing in the record indicating that the district court erred in 
reaching this conclusion.

The district court also allowed appellees’ counsel compen­
sation for time spent in giving press conferences and perform­
ing other public relations work. “Attorney work in the 
political arena,” it stated, “where narrowly focused on foster­
ing the litigation goals of their clients, is compensable,” 748 
F. Supp. at 1423. The district court derived this standard for 
the compensability of public relations work from the Eighth 
Circuit’s opinion in Jenkins v. Missouri, 862 F.2d 677 (8th 
Cir. 1988), affd, 491 U.S. 274 (1989).

[9] As we have previously noted, prevailing civil rights 
counsel are entitled to compensation for the same tasks as a 
private attorney. Where the giving of press conferences and 
performance of other lobbying and public relations work is 
directly and intimately related to the successful representation 
of a client, private attorneys do such work and bill their cli­
ents. Prevailing civil rights plaintiffs may do the same.

[10] The district court determined that appellees' counsel’s 
public relations work represented a valid effort to lobby the

D avis v. S an Francisco 11995

San Francisco Board of Supervisors, and that “obtaining the 
support of the Board of Supervisors, whose members are 
elected by the citizens of the City and County of San Fran­
cisco, was as vital to the consent decree as were the negotia­
tions with the City’s administrative officials.” 748 F. Supp. at 
1423. The district court’s familiarity with the litigation and 
with the factors that led to the ultimate signing of the consent 
decree counsel deference to this determination. The City sug­
gests, however, that at least some of the public relations activ­
ity compensated for cannot be justified according to this 
reasoning. It points, for example, to television appearances 
made by appellees’ counsel after the signing of the consent 
decree. On remand, the district court should disallow any 
hours claimed by appellees’ counsel for public relations work 
which did not contribute, directly and substantially, to the 
attainment of appellees’ litigation goals.

B, Reasonable Hourly Rate and Enhancement o f the 
Lodestar

The City vigorously contests the billing rates used by the 
district court in arriving at its lodestar figure. Both the 
Supreme Court and this court have made clear that such rates 
should be established by reference to the fees that private 
attorneys of an ability and reputation comparable to that of 
prevailing counsel charge their paying clients for legal work 
of similar complexity. In Blum v. Stenson, 465 U.S. 886 
(1984), a unanimous Supreme Court declared that “Congress 
did not intend the calculation of fee awards to vary depending 
on whether plaintiff was represented by private counsel or by 
a nonprofit legal services organization.” Id. at 894. Reason­
able fees are thus “to be calculated according to the prevailing 
market rates in the relevant community,” id. at 895, with close 
attention paid to the fees charged by “lawyers of reasonably 
comparable skill, experience, and reputation.” Id. at 895 n.l 1. 
See also Jordan v. Multnomah County, 815 F.2d 1258, 1262 
(9th Cir. 1987) (‘The prevailing market rate in the community 
is indicative of a reasonable hourly rate.”); Chalmers v. City



11996 D avis v . S an Francisco

o f Los Angeles, 796 F.2d 1205, 1210-1211 (9th Cir. 1986), 
amended, 808 F.2d 1373 (9th Cir. 1987).

In determining an appropriate market rate, a district court 
may make reference to the factors developed by the Fifth Cir­
cuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 
714, 717-19 (5th Cir. 1974) and approved by this Court in 
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67,69-70 (9th Cir. 
1975), cert, denied, 425 U.S. 951 (1976). See United Steel­
workers v. Phelps Dodge Corp., 896 F.2d 403, 406 (9th Cir. 
1990). The Johnson-Kerr factors include the novelty and dif­
ficulty of the issues involved in a case, the skill required to 
litigate those issues, the preclusion of other employment, the 
customary fee, relevant time constraints, the amount at stake 
and the results obtained, the experience, reputation, and abil­
ity of the attorneys, the nature and length of their professional 
relationship with the client, the “undesirability” of a case, and 
awards in similar suits. United Steelworkers, 8% F.2d at 406 
n.3.4 '

[11] In determining appropriate billing rates for the appel­
lees’ attorneys, the district court discussed at some length 
those JohnsonKerr factors which it thought relevant to this 
case. It observed that the case involved difficult issues con­
cerning the validity of the SFFD’s employment tests that 
required considerable skill to litigate, particularly given the 
City’s “ ‘tenacious and uncompromising pretrial litigation in 
defense of the challenged examinations.’ ” 748 F. Supp. at 
1426 (quoting United States v. City and County o f San Fran­
cisco, 656 F. Supp. 276, 281 (N.D. Cal. 1987)). Representing

4Ooe other Johnson Kerr factor, the time and labor required to litigate 
a case, pertains to the reasonableness of the hours claimed by prevailing
counsel. Blum v. Sienson, 46S U.S. at 898 (1984). As we discuss below, 
the Supreme Court recently deemed irrelevant to the fee calculation a final 
JohnsonKerr factor, the fixed or contingent nature of the fee. City o f  Bur­
lington v. Dague, 112 S.Ct 2638 (1992). The Dague opinion can also be 
read as casting doubt on the relevance of a case's “desirability” to the fee 
calculation. Id. at 2641-42.

Davis v. San Francisco 11997

the interests of class members during the remedial phases of 
the litigation was also a difficult task. “For example, it was 
through the efforts of counsel for plaintiff-intervenors that this 
court was alerted to the City’s planned budget cuts which 
would have adversely affected the [consent] decree. As at 
other junctures in the litigation, counsel for plaintiff- 
intervenors exhibited critical legal and political skill in oppos­
ing the budget cuts.” 748 F. Supp. at 1427.

The court further noted that appellees' counsel made a 
“massive level of commitment” to this case which precluded 
them from engaging in most other work during its pendency. 
748 F. Supp. at 1427. Counsel worked under considerable 
time pressure, particularly in seeking to prevent the City from 
entering into a consent decree with the United States which 
would have strictly limited the relief available to the appel­
lees. Id

In addition, counsel obtained “excellent results” for their 
clients. Id. at 1428. While the SFFD had previously entered 
into consent decrees with minority groups, none involved the 
dramatic race and gender conscious relief embodied in the 
present decree. In 1985, the court noted, “minorities com­
prised only 14.6% of the city’s firefighting force. As of 
August 8, 1990 minority composition stood at 24%. In a 
department which hired no women before 1985 there are now 
36, comprising 2.6% of the force. One of the women is a lieu­
tenant. Minority men have registered even broader gains in 
the officer ranks. In a fire department that had no minority 
members in the ranks of lieutenant or above in 1985, there are 
presently 54 lieutenants, eight captains, five battalion chiefs, 
one assistant chief and one assistant deputy chief II.” Id. The 
court also scrutinized the educational background, career his­
tory and community standing of each appellee’s attorney and 
concluded that they possessed a “high level of experience, 
ability and reputation . . . . ’’ Id.

In light of these factors, the court turned to the evidence 
submitted by the appellees concerning the rates charged by



11998 D avis v . S an Francisco

San Francisco attorneys for work comparable to that per­
formed in the SFFD litigation. We recently pronounced that 
declarations of the “prevailing market rate in the relevant 
community . . . [are] sufficient to establish the appropriate 
[billing] rate for lodestar purposes.” Bouman v. Block, 940 
F.2d 1211, 1235 (9th Cir.), cert. denied, 112 S.Ct. 640 (1991). 
Here, the appellees produced numerous affidavits declaring 
that the fees sought by appellees’ counsel, which incorporated 
1988 rates of $110 per hour for 1985 law school graduates to 
$23S per hour for 1969 law school graduates, in addition to 
$70 per hour for paralegals, were well within the bounds of 
the “prevailing market rates” that form the basis for a proper 
fee award. Blum at 895. The district court referred to several 
of those affidavits in granting appellees’ counsel’s requested 
rates. It pointed to the declaration of a “prominent Title VII 
class action attorney” in San Francisco that attorneys at his 
firm with credentials similar to those of appellees' counsel 
would, in 1988, have billed at rates ranging from $110 per 
hour for 1986 law school graduates to $250 per hour for 1969 
graduates, with paralegal timfc billed at $50 to $85 per hour. 
It further noted the affidavit of an attorney at McCutchen, 
Doyle, Brown & Enersen, a well-respected San Francisco 
firm, that lawyers comparable to appellees’ counsel at his firm 
would have billed at 1988 rates ranging from $150 per hour 
for 1985 graduates to $230 for 1971 graduates. It referred, 
finally, to an affidavit indicating that a third San Francisco 
firm billed at essentially the same rates. 748 F. Supp. at 1430- 
1431.

The City did not controvert this evidence below. The only 
evidence it presented concerning billing rates was a survey 
done of the California legal market as a whole which dis­
cussed a wide variety of practice areas. As the Supreme Court 
made clear in Blum, however, the proper reference point in 
determining an appropriate fee award is the rates charged by 
private attorneys in the same legal market as prevailing coun­
sel, San Francisco in this instance, for work similar to that 
performed by such counsel, broad-based complex litigation

D avis v . S an Francisco 11999

here. The City’s survey was properly dismissed by the district 
court as shedding no light on this matter.

Before this court, the City discusses several district court 
decisions which, in its estimation, establish that the rates 
claimed by appellees’ counsel for work performed in the San 
Francisco market were excessive. In Bernardi v. Yeutter, 754 
F. Supp. 743 (N.D. Cal. 1990), o ff d in part and rev’d  in part, 
951 F.2d 971 (9th Cir. 1991), the district court deemed 1988 
rates ranging from $105 per hour to $145 per hour appropriate 
for several San Francisco lawyers who represented the pre­
vailing party in a sex discrimination case. One of those law­
yers is also involved in this case. The court pointedly noted, 
however, that it did not consider “the case to have been com­
plex litigation,” 754 F. Supp. at 746, and therefore rejected 
evidence concerning the much higher rates which San Fran­
cisco attorneys charge for such litigation. By contrast, there is 
no claim here that the challenge to the SFFD’s hiring and pro­
motion policies did not amount to a complex class suit.

The City also points to the district court's decision in Bucci 
v. Chromalloy, 1989 W.L. 222441 (N.D. Cal. 1989), o ff d  927 
F.2d 608 (9th Cir. 1991) (unpublished memorandum), where 
fees were awarded based on rates ranging from $175 per hour 
for an attorney of twenty years experience to $130 per hour 
for an attorney of nine years experience. While those rates are 
somewhat lower than the ones utilized by the district court in 
the present case, the district court in Bucci characterized the 
proceedings before it as having been quite simple. “This case 
was a straightforward discrimination action based on a fla­
grant pattern of abusive and insulting behavior on the part of 
plaintiff's supervisor. While the action vindicated significant 
civil rights, it did not involve complex fact patterns or novel 
and difficult legal questions. Indeed, plaintiff’s counsel admit­
ted in his deposition testimony that the case was not 
complex." Id. at *3. The difficulty of a case and the skill 
required to litigate it are two of the Johnson Kerr factors 
which a district court may refer to in setting an appropriate



12000 D avis v . S an Francisco

billing rate. That the district court here, in what it considered 
to be a demanding case, utilized higher rates in calculating its 
fee award than did a court which viewed the case before it to 
have been open-and-shut does not strike us as an abuse of dis­
cretion,

[12] The City levels several other criticisms at the billing 
rates approved by the district court. It argues that the district 
court abused its discretion in applying the same hourly rate to 
each task performed by appellees’ counsel. We noted above 
our agreement with the City’s position insofar as it contends 
that appellees’ counsel were not entitled to claim fees for the 
performance of clerical work. However, we disagree with the 
City’s contention that the district court erred in applying a 
uniform rate to the legal work performed by each appellee’s 
attorney. Private practitioners do not generally charge varying 
rates for the different lawyerly tasks they undertake on a 
given case, and we have squarely held that the district courts 
can act accordingly in their calculation of fee awards. “[T]he 
use of a single average rate for each attorney is not necessar­
ily an abuse of discretion.” White v. City o f Richmond, 713 
F.2d 458, 461 (9th Cir. 1983).

[13] The City also contends that the district court should 
not have applied 1988 billing rates to each hour claimed by 
appellees’ counsel regardless of the year in which the work 
was actually performed. This argument runs counter to a 
wealth of precedent. In Missouri v. Jenkins, 491 U.S. 274 
(1989), the Supreme Court observed that “[cjlearly, compen­
sation received several years after the services were rendered 
— as it frequently is in complex civil rights litigation — is 
not equivalent to the same dollar amount received reasonably 
promptly as the legal services are performed, as would nor­
mally be the case with private billings. We agree, therefore, 
that an appropriate adjustment for delay in payment — 
whether by the application of current rather than historic 
hourly rates or otherwise — is [entirely proper].” Id. at 283- 
84. We have also approved the use of current billing rates to

D avis v. S an Francisco 12001

“compensate for the delay in receiving payment. This adjust­
ment [will] take into account lost interest and inflation.” 
Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir. 1991) (cita­
tion omitted).

The City argues, finally, that the billing rates approved by 
the district court exceeded the rates charged by several of the 
appellees’ attorneys in their private practices and therefore 
constituted an abuse of discretion. We rejected this argument 
in White v. City o f Richmond, 713 F.2d 458 (1983). “[W]e 
take judicial notice of the fact that many civil rights practi­
tioners do not bill their clients at an hourly commercial rate. 
While evidence of counsel’s customary hourly rate may be 
considered by the District Court, it is not an abuse of discre­
tion in this type of case to use the reasonable community stan­
dard that was employed here.” Id. at 461. Accord Maldonado 
v. Lehman, 811 F.2d 1341, 1342 (9th Cir.) (quoting White), 
cert, denied, 484 U.S. 990 (1987).

One factor utilized by the district court in its rate determi­
nation, the contingent nature of the fee arrangement, requires 
us to remand to the district court for a redetermination of the 
fee. In keeping with the law of this circuit at the time it ren­
dered its decision, the district court deemed the fact that 
appellees’ counsel undertook this case on a contingent basis, 
and therefore bore the risk of nonpayment in the event of fail­
ure, to constitute a special circumstance warranting the 
enhancement of the lodestar fee. However, in its recent deci­
sion in City o f Burlington v. Dague, 112 S.Ct. 2638 (1992), 
the Supreme Court declared that the typical federal fee- 
shifting statutes, including 42 U.S.C. § 2000e-5(k), do not 
allow for upward adjustments to a lodestar fee on the basis 
that prevailing party’s counsel incurred the risk of nonpay­
ment.

[14] The district court referred to the factor of contingency 
at two points in its fee determination. It relied on contingenc y 
to apply a multiplier to the lodestar fee; Dague requires the



12002 Davis v . S an Francisco

elimination of that multiplier. The district court also men­
tioned contingency as a consideration in listing the Johnson- 
Kerr factors which it thought relevant to establishing appro­
priate billing rates. 748 F. Supp. at 1427. While ihe Dague 
Court did not speak directly to this point, we believe that its 
rejection of contingency as a basis for multiplying a lodestar 
fee similarly dictates that contingency not be a factor in the 
setting of billing rates. Dague represents an outright rejection 
of contingency as a factor relevant to the establishment of a 
reasonable fee; it would seem to be immaterial whether the 
consideration of contingency occurs in deciding to apply a 
multiplier to the lodestar fee or in initially calculating the 
lodestar.

115] Reading the district court’s remarks in context, we do 
not think it likely that the district court’s rate determinations 
in computing the lodestar took into account at that point the 
contingent nature of appellee counsel’s fee arrangements. 
Contingency was only one of a host of factors listed by the 
district court as items to be considered in its setting of billing 
rates, and was not a factor focused on by the court until it con­
sidered whether to apply a multiplier to the lodestar. The 
court’s rate determinations appear to have rested on its assess­
ment of the degree of complexity of the case and the prevail­
ing legal fees in San Francisco for work of a like kind and 
quality as that performed here, and seem well supported in 
that regard. Nevertheless, we think it appropriate that on 
remand the district court consider whether it would arrive at 
the same lodestar figure in this case without taking the factor 
of contingency into account.

in. costs

A. Expert Fees

[16] The City challenges the district court's grant of 
$12,200 in expert witness fees and $69,516 in general 
expenses to the appellees as part of the attorneys’ fee award.

D avis v . S an Francisco 12003

In contesting the award of expert fees, the City points to the 
Supreme Court’s decision in West Virginia University Hospi­
tals, Inc. v. Casey, 111 S.Ct. 1138 (1991), which was ren­
dered subsequent to the district court’s decision in this case. 
The Casey Court held that statutes allowing for the award of 
a reasonable attorneys’ fee do not, by virtue of that authoriza­
tion alone, provide for the compensation of expert witness 
expenses.* TTie Court reasoned that because Congress has fre­
quently drafted statutes explicitly authorizing the award of 
both attorneys’ and expert witness fees, a statute which autho­
rizes only the grant of attorneys’ fees connotes a Congressio­
nal intent that expert costs not be shifted. Casey, 111 S.Ct. at 
1141-43. At the time that Casey was decided, 42 U.S.C.
§ 2000e-5(k) provided only for the award of a reasonable 
attorney’s fee in Title VII actions. It made no mention of 
expert witness costs. According to Casey, then, the appellees 
should not have been compensated for those costs by the dis­
trict court. In the Civil Rights Act of 1991 (the Act), however, 
Congress rejected the notion that successful litigants should 
not be granted expert fees in Title VII suits. It amended 
§2000e-5(k) to provide explicitly for the award of a 
“reasonable attorney’s fee (including expert fees) as part of ,
the costs____” Pub. L. No. 102-166, Title 1, § 113(b), 105
Stat. 1075, 1079 (1991).* We must decide whether Congress 
intended the provisions of the new Act to apply to pending 
cases so as to render the Act’s express authorization of expert 
fee awards, rather than the Casey Court’s determination that 
such awards should not be made, controlling here.

The Supreme Court has, on different occasions, set forth 
seemingly inconsistent presumptions regarding the applicabil­
ity of new enactments to pending cases (or to litigation con­
cerning pre-enactment events that is commenced post-

*The s ta tu te  at is su e  in  C a se y  w a s  4 2  U .S .C . § 1988 .

•S e c tio n  1 13(a) o f  the  A ct a m e n d s  4 2  U .S .C . § 1988  to  a u th o r iz e  th e  
a w a n l o f  e x p e r t  fe es  in  a c tio n s  b ro u g h t p u rsu a n t to  4 2  U .S .C , § § 1 9 8 1  a n d  
1981 A .



12004 D avis v . S an Francisco

enactment). In Bradley v. Richmond School Board, 416 U.S. 
6%  (1974), the Court reviewed the reversal of a district court 
award of attorney’s fees to the prevailing plaintiffs in a school 
desegregation litigation. The district court had relied on its 
equitable powers in making the award, but the court of 
appeals held that statutory authorization was required and 
concluded that the district court lacked such authorization at 
the time it awarded the fees. In the period between the deci­
sions of the district and appellate courts, however, Congress 
enacted legislation authorizing the award of a reasonable 
attorney’s fee in school desegregation cases. Thus, the 
Supreme Court had to decide whether the court of appeals 
should have taken the new statute into account in reaching its 
decision, and in a unanimous ruling held that it should have 
done so. “[A] Court is to apply the law in effect at the time 
it renders its decision, unless doing so would result in mani­
fest injustice or there is statutory direction or legislative his­
tory to the contrary.” Bradley, 416 U.S. at 711. “[E]ven where 
the intervening law does not explicitly recite that it is to be 
applied to pending cases, it is to be given recognition and 
effect. . .  [W]e must reject the contention that a change in the 
law is to be given effect in a pending case only where that is 
the clear and stated intention of the legislature.” Id. at 715.

In Bowen v. Georgetown University Hospital, 488 U.S. 204 
(1988), the Court made what appears, at least on its face, to 
be a somewhat different statement concerning the effect of 
new enactments. The Bowen Court had to decide whether the 
Medicare Act authorizes the Secretary of Health and Human 
Services to engage in retroactive rulemaking. In the course of 
resolving this question, the Court declared, without reference 
to its prior statements in Bradley, that “[rjetroactivity is not 
favored in the law. Thus, congressional enactments and 
administrative rules will not be construed to have retroactive 
effect unless their language requires this result.” Bowen, 488 
U.S. at 208.

A year later, in Kaiser Aluminum A Chemical Corp. v. 
Bonjomo, 494 U.S. 827 (1990), the Court noted that the views

D avis v. S an FkANCisoo 12005

articulated in Bradley and Bowen concerning the applicability 
in time of new enactments are in “apparent tension.” Id. at 
837. The Bonjorno Court saw no need to resolve this tension, 
however, in deciding whether a recently enacted statute pre­
scribing a federal rate of postjudgment interest applied to 
judgments entered before its effective date. “[Ujnder either 
[the Bradley or Bonjorno) view, where the congressional 
intent is clear, it governs.” Id. The Court perceived a clear 
legislative intent that the postjudgment interest statute be 
applied only prospectively, and thus deemed it unnecessary to 
reconcile Bradley and Bonjorno and the precedents which 
those cases draw on.

We similarly do not need to choose between the Bradley 
and Bowen presumptions regarding retroactivity in deciding 
whether-the Civil Rights Act of 1991 applies to pending 
cases. Reliance on a presumption is unnecessary, because the 
language of the Act reveals Congress’ clear intention that the 
majority of the Act's provisions be applied to cases pending 
at the time of its passage.

Section 402(a) of the new law states that “[ejxcept as other­
wise specifically provided, this Act and the amendments 
made by this Act shall take effect upon enactment." By itself, 
this language does not determine whether the Act applies to 
ongoing cases, though it does give at least “some indication 
that [Congress] believed that application of [the Act’s] provi­
sions was urgent.” In re Reynolds, 726 F.2d 1420, 1423 (9th 
Cir. 1984) (commenting on essentially identical language in 
the Omnibus Budget Reconciliation Act of 1981). However, 
two other sections of the Act reveal Congress’ intent that the 
Act generally apply to pending litigation.

Section 109(c) of the Act states that its extension of Title 
VH’s protections to United States citizens working for Ameri­
can companies overseas “shall not apply with respect to con­
duct occurring before the date of the enactment of this Act.” 
Section 402(b) declares, furthermore, that “nothing in this Act



12006 Davis v. S an Francisco

shall apply lo any disparate impact case for which a complaint 
was filed before March 1, 1975, and for which an initial deci­
sion was rendered after October 30, 1983.”7

These directives from Congress that in two specific 
instances the Act not be applied to cases having to do with 
pre-Act conduct provide strong evidence of Congress’ intent 
that the courts treat other provisions of the Act as relevant to 
such cases. “ ‘[WJhere Congress includes particular language 
in one section of a statute but omits it in another section of the 
same Act, it is generally presumed that Congress acts inten­
tionally and purposely in the disparate inclusion or 
exclusion.’ ” Russello v. United States, 464 U.S. 16, 23 (1983) 
(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 
(5th Cir. 1972)).

Indeed, if we construed the entire Act as applying only to 
post-passage conduct, we would run afoul of what the 
Supreme Court has repeatedly declared to be the 
“ ‘elementary canon of construction that a statute should be 
interpreted so as not to render one part inoperative.’ ” South 
Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 
n.22 (1986) (quoting Colautti v. Franklin, 439 U.S. 379, 392 
(1979)); Kungys v. United States. 485 U.S. 759, 778 (1988) 
(plurality opinion of Scalia, J.) (referring to “the cardinal rule 
of statutory interpretation that no provision should be con­
strued to be entirely redundant”); Mountain States Tel. A Tel. 
Co. v. Pueblo o f Santa Ana, 472 U.S. 237, 249-50 (1985) 
(quoting Colautti); United States v. Menasche, 348 U.S. 528, 
538-39 (1955) (“It is our duty ‘to give effect, if possible, to 
every clause and word of a statute,’ rather than to emasculate 
an entire section___”) (quoting Montclair v. Ramsdell, 107

fTbis latter provision is generally referred to as the Wards Cove 
amendment because its sole effect is to preclude the application of the 
Act's requirements to pending litigation involving the prevailing party in 
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), one of the 
Supreme Court decisions addressed by the new Act

D avis v. S an Francisco 12007

U.S. 147, 152 (1883)); see also Beisler v. Commissioner o f  
Internal Revenue. 814 F.2d 1304, 1307 (9th Cir. 1987) (en 
banc) (“We should avoid an interpretation of a statute that 
renders any part of it superfluous and does not give effect to 
all of the words used by Congress.’’).

[17] We would rob Sections 109(c) and 402(b) of all pur­
pose were we to hold that the rest of the Act does not apply 
to pre-Act conduct. There would have been no need for Con­
gress to provide that the Act does not pertain to the pre­
passage activities of the Wards Cove Company, see Section 
402(b), or of American businesses operating overseas, see 
Section 109(c), if it had not viewed the Act as otherwise 
applying to such conduct. Congress’ express declaration that 
the Act is to operate only with prospective force in two 
instances thus provides a clear indication of its intent that the 
rest of the Act, including its expert fees provisions, apply to 
cases pending at the time of enactment and to prior conduct 
not barred by the applicable statutes of limitations.*

Additional evidence of Congress’ aims is provided by the 
introductory passages of the Act, in which Congress made no 
secret of its intent to reverse a number of Supreme Court deci­
sions that it thought construed too narrowly various employ­
ment discrimination statutes, in Section 2 of the Act, 
Congress expressed its “finding” that “the decision of the 
Supreme Court in Wards Cove Packing Co. v. Atonio, 490 
U.S. 642 (1989), has weakened the scope and effectiveness of 
Federal civil rights protections,” and in Section 3 it declared 
that among its purposes in passing the Act was its desire to 
“codify the concepts of ‘business necessity’ and ‘job related’

'Because the statutes of limitation!, governing most employment dis­
crimination claims are generally short, see e.g., 42 U.S.C. 5 2000e-5(e) 
(providing that unfair employment practice charges under Title VII must, 
with certain exceptions related to the processing of charges by Slate fair 
employment agencies, be filed within 180 days of the alleged occurrence), 
this latter category of cases is likely to be quite small.



12008 D avis v . S an Francisco

enunciated in . . .  Supreme Court decisions prior to Wards 
Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) and to 
“respond to recent decisions of the Supreme Court by expand­
ing the scope of relevant civil rights statutes in order to pro­
vide adequate protection to victims of discrimination.”

[18] Given Congress’ sense that the Supreme Court had 
construed the Nation’s civil rights laws so as to afford insuffi­
cient redress to those who have suffered Job discrimination, 
it appears likely that Congress intended the courts to apply its 
new legislation, rather than the Court decisions which pre­
dated the Act, for the benefit of the victims of discrimination 
still before them. Indeed, the facts of this case indicate that to 
construe Congress’ intent otherwise would lead to incongru­
ous results. The district court rendered its award of expert fees 
at a time when it perceived Title VII as providing it with the 
authority to do so. The Supreme Court subsequently handed 
down its decision in Casey, the result of which was to render 
such an award of fees improper. Shortly thereafter, Congress 
passed, and the President signed into law, a statute which 
strips Casey of any force in the employment discrimination 
context by explicitly providing that, in actions brought pursu­
ant to Title VII or 42 U.S.C. § 1981, expert fees may be 
awarded. We must now decide whether to reverse the district 
court’s grant of such fees. It would appear inconsistent with 
Congress’ intent for us to do so on the grounds of a Supreme 
Court decision predating the Act, the implications of which 
Congress has explicitly rejected in the employment discrimi­
nation arena.

The courts of appeals that have construed the entire Act to 
apply only to post-Act conduct have either ignored Sections 
109(c) and 402(b) or the elementary canon of construction 
that we should avoid an interpretation of the Act which ren­
ders those sections superfluous. In Vogel v. City o f Cincinnati, 
959 F.2d 594 (6th Cir. 1992), the Sixth Circuit declared that 
neither the language nor the legislative history of the Act pro­
vide any guidance as to whether it should be applied retroac-

D avis v. S an Francisco 12009

lively. However, the Vogel court did not mention Sections 
109(c) and 402(b) in reaching this conclusion. The only lan­
guage that it discussed was that of Section 402(a) (providing 
that the Act is to take effect immediately upon enactment), 
which, as we noted above, is of little assistance in resolving 
the retroactivity issue. The Seventh Circuit, in Luddington v. 
Indiana Bell Telephone Co., No. 91-2320 (7th Cir. June 15, 
1992), similarly looked only to Section 402(a) to find the 
Act’s text bereft of guidance.

In another opinion, the Seventh Circuit did acknowledge 
the existence of Sections 402(b) and 109(c), but rather than 
according those sections meaning simply treated them as 
redundant. Mozee v. American Commercial Marine Serv. Co., 
963 F.2d 929 (7th Cir. 1992). Without pointing to any support 
in the text or the history of the Act for its analysis, the Mozee 
court asserted that Section 402(b) represents “nothing more 
than a clear assurance that courts would not apply the 1991 
Act to the Wards Cove litigation,” 963 F.2d at 933, and that 
Section 109(c) similarly “can be interpreted as an extra assur­
ance that this Section’s provisions will only apply to post­
enactment conduct___” Id. The Fifth Circuit advanced a
similar hypothesis in Johnson v. Uncle Ben's, Inc., No. 91- 
2590 (5th Cir. July 1, 1992). “Congress may have wanted to 
ensure that certain retroactive applications of the statute were 
barred without intending to reach any general conclusion 
about the statute’s general retroactive application.” Slip op. at 
5917. We decline to join the Fifth and Seventh Circuits in rel­
egating Sections 109(c) and 402(b) to the status of mere sur­
plusage, and in speculating as to reasons why Congress might 
have incorporated such surplusage into the Act. The Supreme 
Court has repeatedly declared that the task of discerning Con­
gressional intent is well-served by adherence to the rule that 
statutes should not be construed in a manner which robs spe­
cific provisions of independent effect. We do not find it 
appropriate to ignore this “cardinal rule” of statutory interpre­
tation. Kungys, 485 U.S. at 778. Where Congress intended 
that certain sections of the Act should not be applied retroac-



12010 D avis v. S an Francisco

tively, it made specific pronouncements as to those. We will 
not render those pronouncements a nullity by holding that the 
rest of the Act is likewise to have no retroactive effect.

The Eighth Circuit, in Fray v. Omaha World Herald Co., 
960 F.2d 1370 (8th Cir. 1992), did not completely ignore Sec­
tions 109(c) and 402(b), but did downplay their significance 
in light of the legislative history of the Act, which it deemed 
“highly probative.” Id. at 1377. Because of the emphasis the 
Eighth Circuit gave to it, we too turn to that legislative his­
tory. However, we keep in mind that “[t]he starting point for 
interpretation of a statute ‘is the language of the statute itself. 
Absent a clearly expressed legislative intention to the con­
trary, that language must ordinarily be regarded as 
conclusive.’ ” Bonprno, 494 U.S. at 835 (quoting Consumer 
Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 
108 (1980)); cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 452 
(1987) (Scalia, J., concurring) (“[IJf the language of a statute 
is clear, that language must be given effect - at least in the 
absence of a patent absurdity.”). Further, we agree with the 
majority of circuits that have considered the issue that the leg­
islative history outside the Act itself provides little indication 
as to Congress’ intent on the subject of retroactivity.*

The Act lacks much in the way of a traditional legislative 
history. No committee or conference reports accompanied its 
passage. The only commentary on the Act’s provisions is con­
tained in the floor statements of various members of Congress 
and the interpretive memoranda which they inserted into the

* The Eighth Circuit is the only court of appeals to have found guidance 
in the Act’s legislative history. See Johnson, slip op. at 5917 (“Legislative 
history . . . sheds little light on whether the Act should apply to pre- 
enactment conduct.”); Luddingion, slip op. at 3 (‘The floor debates on the 
1991 act reveal . . . divergent views on these questions jconccming 
retroactivity!.”); Moiee, 963 F.2d at 934 (“A dear indication of congres­
sional intent cannot be deciphered from the legislative history . . . ."); 
Vogel, 959 F.2d at 598 (“The legislative history does not provide any 
guidance on this question |of retroactivity].”).

Davis v . S an Francisco 1201

Congressional Record. Nothing suggests that these statements 
and memoranda represent the views of anyone other than the 
members who made or signed onto them. Thus, we agree with 
Senator Danforth, a principal cosponsor of the Senate Bill that 
was enacted into law,10 as to the limited value of these legisla­
tive materials:

It is very common for Members of the Senate to try 
to affect the way in which a court will interpret a 
statute by putting things into the Congressional 
Record. Sometimes statements are made on the floor 
of the Senate . . .  Another way to do it is to put inter­
pretive memoranda in the Congressional Record. 
These memoranda typically are not read on the floor 
of the Senate. They are just stuck into the Record . . .  
Last Friday, Senator Kennedy made a speech on the 
floor of the Senate. He stated his views of what the 
bill does. Senator Hatch has just made a very exten­
sive speech on the floor. He stated his views of what 
the bill does. My guess, Mr. President, is that if Sen­
ator Kennedy would give us his analysis of Senator 
Hatch’s position, he would disagree with i t  If Sena­
tor Hatch would give us his analysis of Senator Ken­
nedy’s position, Senator Hatch would disagree with 
Senator Kennedy. I might disagree with both of 
them. I anticipate that 1 am going to have an inter­
pretive memorandum which will be put into the 
Record signed by the other original six Republican 
cosponsors for the legislation. That will be our inter­
pretation of various provisions, but it may not be the 
interpretation of Senator Hatch or Senator Kennedy 
or anyone else . . .  [Wjhatever is said on the floor or 
the Senate about a bill is the view of a Senator who 
is saying it . . . [A] court would be well advised to 
take with a large grain of salt floor debate and state­
ments placed into the Congressional Record which

,0S. 1745, I02d Cong., 1st Sess. (1991) (enacted).



12012 D avis v . S an Francisco

purport to create an interpretation for the legislation 
that is before us.

137 Cong. Rec. SI5325 (daily ed. Oct. 29, 1991) (statement 
of Sen. Danforth).

Even if we were to treat the floor statements and interpre­
tive memoranda as providing evidence of the intent of Con­
gress as a whole, we would be able to derive little guidance 
from them on the subject of retroactivity. A number of mem­
bers of Congress expressed the view that the Act was not 
meant to apply retroactively. See, e.g., 137 Cong. Rec. 
S15472, S15478 (daily ed. Oct. 30, 1991) (interpretive memo­
randum submitted by Sen. Dole); 137 Cong. Rec. SI 5483- 
15485 (daily ed. Oct. 30, 1991) (statement and interpretive 
memorandum of Sen. Danforth); 137 Cong. Rec. 15493 (daily 
ed. Oct. 30, 1991) (statement of Sen. Murkowski); 137 Cong. 
Rec. S15953 (daily ed. Nov. 5, 1991) (interpretive memoran­
dum submitted by Sen. Dole); 137 Cong. Rec. SI5966 (daily 
ed. Nov. 5, 1991) (statements of Sens. Gorton, Durenberger, 
and Simpson). Other members expressed exactly the contrary 
view. See, e.g., 137 Cong. Rec. SI5485 (daily ed. Oct. 30, 
1991) (statement of Sen. Kennedy);*1 137 Cong. Rec. S 15963 
(statement of Sen. Kennedy); 137 Cong. Rec. H9530-31 
(daily ed. Nov. 7, 1991) (interpretive memorandum submitted 
by Rep. Edwards); 137 Cong. Rec. H9549 (daily ed. Nov. 7, 
1991) (statement of Rep. Fish). Taken as a whole, the floor 
debates do not convey a strong sense of Congress’ intent on 
the subject of retroactivity, and certainly do little to call into 
question the strong presumption that each section of the Act 
should be given meaning in the context of the Act read in its 
entirety.

In Fray, the Eighth Circuit placed much reliance on the fact

"Along with Senator Danforth, Senator Kennedy was the principal 
cosponsor of the Act in the Senate. Representative Edwards was a princi­
pal cosponsor of the Act in the House.

D avis v. S an Francisco 12013

that the 1990 version of the Civil Rights Act, which President 
Bush vetoed, contained express provisions for its retroactive 
application, while the 1991 legislation does not. “When a bill 
mandating retroactivity fails to pass, and a law omitting that 
mandate is then enacted, the legislative intent was surely that 
the new law be prospective only; any other conclusion simply 
ignores the realities of the legislative process.” Fray, 960 F.2d 
at 1378.** However, as the Seventh Circuit noted in Mozee, 
this reasoning is suspect because it ignores other events of 
significance in the passage of the Act Mozee, 963 F.2d at 
933. The fact that the Act as passed does not contain the 
explicit retroactivity language of the 1990 bill appears no 
more probative than the fact that it omits language found in 
the Administration’s 1991 bill which would have expressly 
provided for the Act’s prospective application.

The Administration bill, which was introduced in the 
House of Representatives by House Minority Leader Michel, 
declared that “[tjhis Act and the amendments made by this 
Act shall take effect upon enactment. The amendments made 
by this Act shall not apply to any claim arising before the 
effective date of this Act.”1* The bill was soundly defeated in 
the House, though the language providing that the Act would 
take effect upon enactment survived and became Section 
402(a). The Administration’s declaration that the Act would 
apply only prospectively is nowhere to be found in the statute 
as enacted. According to the Eighth Circuit’s own reasoning, 
then, the omission of this language creates a strong inference 
that Congress intended the Act to apply retroactively, one suf­
ficient to rebut the opposite inference drawn by the Eighth 
Circuit from the difference in language between the 1990 and 
1991 bills. See Mozee, 963 F.2d at 933 (“(T]he fact that Con-

' ‘Tt.e Fifth Circuit, white appearing not to find guidance in the Act s 
legislative history, also made mention of this difference between the lan­
guage of the 1990 bill and the 1991 Act in its Johnson decision Slip on 
at 5917.

H.R. 1375, 102nd Cong., 1st Scss. § 15 (1991).13



12014 D avis v. S an Francisco

gress failed to include this explicit language in the 1991 Civil 
Rights Act l ] arguably indicates that Congress intended a 
prospective application of the 1991 Act. However, this argu­
ment is negated by the fact that Congress did not adopt the 
Bush Administration’s proposed bill which, in contrast, con­
tained explicitly prospective language.”).

[19J In sum, little of value can be discerned from the legis­
lative history of the Act. The floor debates and events leading 
to the passage of the Act provide conflicting signals as to 
whether Congress envisioned that the Act would apply to pre­
passage conduct We do not find in the legislative history evi­
dence sufficient to overcome the weighty presumption that the 
Act’s language, indicating as it does that Congress intended 
the Act to apply retroactively, is an accurate reflection of the 
legislative design.

[20] Nor does the fact that the Equal Employment Opportu­
nity Commission (EEOC) has interpreted the Act’s damages 
provisions to apply only to claims arising after the effective 
date of the Act call into question the clear import of the statu­
tory language. The EEOC’s view is expressed in a policy 
guidance issued soon after the Act was passed. “Policy Guid­
ance on Application of Damages Provisions of the Civil 
Rights Act of 1991 to Pending Charges and Pre-Act 
Conduct,” EEOC Notice 915.002, reprinted in EEOC Compl. 
Man. 1 20% (CCH) (Dec. 27, 1991) [Guidance].'4 In the 
guidance, the EEOC argues that neither the language nor the 
legislative history of the Act provide a clear sense of Con­
gress’ intent on the subject of retroactivity. The EEOC then 
discusses the Bradley and Bowen presumptions in favor of 
and against the retroactive application of statutes, and con­
cludes by applying the Bowen presumption against retroactiv-

,4Tbe guidance deals only with the compensatory and damages provi­
sions of the Act. but since its reasoning applies to the Act in general we 
address it here.

D avis v. S an Francisco 12015

ity to the Act on the grounds that Bowen was decided 
subsequent to Bradley.

In EEOC v. Arabian American Oil Co., I l l  S.Ct. 1227 
(1991) (ARAMCO), the Supreme Court explained that the 
EEOC’s interpretations of Title VII are not entitled to the 
same deference as other agency’s interpretations of the stat­
utes which they are charged with administering:

In General Electric Co. v. Gilbert, 429 U.S. 125, 
140-146 (1976), we addressed the proper deference 
to be afforded the EEOC’s guidelines. Recognizing 
that “Congress, in enacting Title VII, did not confer 
upon the EEOC authority to promulgate rules or 
regulations,” we held that the level of deference 
afforded “ ‘will depend upon the thoroughness evi­
dent in its consideration, the validity of its reasoning, 
its consistency with earlier and later pronounce­
ments, and all those factors which give it power to 
persuade, if lacking power to control.’ ”

ARAMCO, 111 S.Ct at 1235 (quoting Gilbert, 429 U.S. at 
141, 142) (in turn quoting Skidmore v. Swift & Co., 323 U.S. 
134, 140 (1944)) (parallel citations omitted); see also Gilbert, 
429 U.S. at 141 (“[C]ourts properly may accord less weight 
to [EEOC] guidelines than to administrative regulations 
which Congress has declared shall have the force of law, or 
to regulations which under the enabling statute may them­
selves supply the basis for imposition of liability___ ”) (cita­
tions omitted).

Here, it is doubtful whether the EEOC guidance is entitled 
to even this limited deference. The EEOC’s interpretations of 
Title VII are properly considefed by the courts because the 
EEOC bears responsibility for enforcing that statute. How­
ever, the damages provisions of the new Act, which form the 
subject matter of the policy guidance, do not represent amend­
ments to Title VII, but rather add a new section to the



12016 Davis v . S an Francisco

Reconstruction-era civil rights statutes, to be codified at 42 
U.S.C, § 1981 A. The EEOC is not responsible for administer­
ing those statutes. Thus the guidance does not represent the 
interpretation of a statutory provision with respect to which 
the EEOC has enforcement responsibilities, and its signifi­
cance is questionable in light of that fact.

In any event, we find that the guidance lacks the “power to 
persuade,” ARAMCO, 111 S.Ct at 1235 (quoting Skidmore, 
323 U.S. at 134), as it too quickly concludes that resort to a 
presumption is necessary to resolve the question of the Act’s 
retroactivity. The guidance notes that Sections 109(c) and 
402(b) provide that in certain, limited respects, the Act is to 
apply only prospectively. However, it goes on to reject any 
“inference that the remainder of the Act has retroactive 
effect,” asserting only that “it cannot be said that *the[ j lan­
guage [of those sections] requires this result.’ ” Guidance at 
2 (quoting Bowen, 488 iJ.S. at 208) (alterations in original). 
The guidance does not elaborate upon this last statement, 
which we find to be wholly inadequate in the face of the 
deeply rooted principle of statutory construction that enact­
ments should not be construed in a manner which renders cer­
tain of their provisions superfluous. Guided by the plain 
language of the statute and this cardinal rule of interpretation, 
we conclude that Congress intended the courts to apply the 
Civil Rights Act of 1991 to cases pending at the time of its 
enactment and to pre-Act conduct still open to challenge after 
that time. Accordingly, we affirm the district court’s award of 
expert witness fees in this case.1*

’‘Concurring in ARAMCO, Justice Scalia questioned the majority's 
assertion that the EEOC's views are not entitled to the deference typically 
accorded administrative agencies. Pointing to the Court's decision in 
EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988), Justice 
Scalia argued that the EEOC's interpretation of ambiguous statutory lan­
guage should be deferred to as long as it is reasonable. Justice Scalia went 
on to state, however, that “deference is not abdication, and it requires us 
to accept only those agency interpretations that are reasonable in light of

D avis v. S an Francisco 12017

B. Other Expenses

The Casey decision did not affect the authority of courts to 
compensate for expenses other than expert fees as part of an 
attorneys’ fee award. The holding and reasoning of Casey 
were very carefully limited to the question of expert expenses. 
As noted above, the Casey Court determined that because 
Congress has frequently enacted laws authorizing the award 
of both attorneys’ fees and expert witness fees, a statute 
authorizing only the former indicates Congress’ intent that 
expert costs not be shifted. This reasoning does not apply to 
other sorts of costs that Congress is not in the habit of provid­
ing specific authorization for and which the courts have long 
held can be awarded as part of a reasonable attorneys’ fee 
since they are typically charged to paying clients by private 
attorneys. Thus, in the wake of Casey, we have continued to 
hold that attorneys’ fees awards can include reimbursement 
for out-of-pocket expenses including the travel, courier and 
copying costs that appellees’ attorneys incurred here. In Davis 
v. Mason County, 927 F.2d 1473, 1487-88 (9th Cir.), cert, 
denied, 112 S.Ct. 275 (1991), for example, we reversed a 
grant of expert costs as part of an attorneys’ fee award (our 
decision predated the 199! Civil Rights Act) while affirming 
an award of travel expenses on the grounds that “expenses 
incurred during the course of litigation which are normally 
billed to fee-paying clients [are taxable] under [the attorneys’ 
fees statutes].”

The City contends, however, that some of the costs claimed 
by appellees’ counsel are simply not of the sort that a private 
attorney would bill to a paying client, and points to items

the principles of construction courts normally employ.” ARAMCO, 111 
S.Ct. at 1237 (Scalia, J„ concurring). For the reasons elaborated upon 
above, we have concluded that the EEOC's interpretation of the Act is oot 
reasonable as it fails to take into account the long held rule of construction 
that statutory provisions should not be read to be mere surplusage.



12018 D avis v. S an Francisco

including a filing cabinet and pizza as examples. We are not 
at all sure that the City’s assertions are accurate. In any event, 
on remand the district court -should review the cost bill to 
ensure that appellees are not compensated for expenses that 
would not ordinarily be treated as reimbursable in a private 
attorney-client relationship.

IV. INTEREST ON THE BACKPAY AWARD

The consent decree provided that six black firefighters 
should be retroactively promoted to the position of lieutenant, 
with their date of appointment set at March 9, 1979, and 
awarded “backpay from that date, taking into account the 
applicable base rates of pay for fire lieutenant and their actual 
regular earnings (not including overtime) plus interest since 
that date.” United States v. City & County o f San Francisco, 
696 F. Supp at 1314. While the City and the appellees agree 
on the amount of backpay that is due the six lieutenants, they 
dispute the interest that the lieutenants should receive on their 
awards. The district court, utilizing a standard it first devel­
oped in Richardson v. Restaurant Marketing Assocs., 527 F. 
Supp. 690 (N.D. Cal. 1981), determined that interest “ ‘shall 
be calculated from the end of each calendar quarter, on the 
amount then due and owing, at 90% of the average prime rate 
[as obtained from the Federal Reserve Bank] for the year in 
which the calendar quarter occurs.’ ” 747 F. Supp. at 1371 
(quoting Richardson, 527 F. Supp. at 691).

The City challenges this determination on three grounds. It 
first argues that the district court should have utilized the rate 
of interest relied upon by the California Fair Employment and 
Housing Commission in 1982 when it held that the SFFD’s 
promotion examination was invalid and retroactively 
appointed the six black firefighters in question here to the 
position of lieutenant. As discussed above, the California 
Court of Appeals subsequently vacated this relief pending res­
olution of the current round of federal litigation. City and 
County o f San Francisco v. FEHC, 236 Cal. Rptr. 716, 726-

D a vis v. S an Francisco 12019

728 (Cal. App. 1987). Nonetheless, the City argues that since, 
in diversity actions, “[t]he recognized general rule is that state 
law determines the rate of prejudgment interest,” Northrop 
Corp. v. Triad In f l Marketing, 842 F.2d 1154, 1155 (9th Cir. 
1988), the FEHC interest rate should be applied to the back­
pay award here since the lieutenants originally brought suit 
and were awarded relief in a state forum pursuant to state 
anti-discrimination law.

[21] However, the consent decree which provides for the 
present award of backpay and interest constitutes the settle­
ment of a federal action. The litigation which led to the decree 
was brought pursuant to two federal statutes. Title VU of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), 
and the State and Local Fiscal Assistance Act of 1972, 31 
U.S.C. §6701 et seq, (repealed 1986). No state law claims 
were presented. The district court was thus well within its 
bounds in applying federal law to interpret the provisions of 
the consent decree.

[22] The City next argues that if federal law principles are 
to govern the calculation of interest in this case, the rate 
should be set by reference to 28 U.S.C. § 1961 (1982). That 
statute provides that “[iInterest shall be allowed on any 
money judgment in a civil case recovered in a district court 
. . .  Such [post-judgment] interest shall be calculated from the 
date of the entry of the judgment, at a rate equal to the coupon 
issue yield equivalent (as determined by the Secretary of the 
Treasury) of the average accepted auction price for the last 
auction of fifty-two week United States Treasury bills settled 
immediately prior to the date of judgment” While section 
1961 speaks to the appropriate rate for post-judgment interest, 
we have held that “the same rate should be applied to pre­
judgment interest ‘unless the trial judge finds, on substantial 
evidence, that the equities of a particular case require a differ­
ent rate.’ ” Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir. 1986) 
(quoting Western Pacific Fisheries, Inc. v. SS President 
Grant, 730 F.2d 1280, 1289 (9th Cir. 1984)).



12020 D avis v . S an Francisco

In Richardson, which was decided in 1981, the district 
court deemed the adoption of a floating prime rate standard 
justified “in light. . .  of the continued increases in the rate of 
inflation and rapid fluctuation of the prime rate in recent years 
. .  . .” 527 F. Supp. at 698. The same considerations warrant 
a departure from the May 1988 Treasury bill rate prescribed 
by section 1961 here. For much of the period subsequent to 
March 9, 1979, the date of the lieutenant’s retroactive promo­
tion, interest rates greatly exceeded those prevalent in 1988. 
The late 1970’s and early 1980’s, in particular, were a period 
of very high inflation and even higher short term interest 
rates. To apply to the entire period that backpay was owing 
to the lieutenants a rate of interest that prevailed in a past 
period of lower inflation would not compensate them fully for 
their loss of use of the backpay during that time.

The City argues, finally, that it should pay interest only on 
an amount equivalent to the lieutenants’ backpay award as 
reduced by their federal income tax liability. This argument 
is foreclosed by the terms of the consent decree. The decree 
provided that the City would pay the lieutenants interest on 
their backpay award, not on some portion of it. The City may 
not use this litigation as a vehicle for modifying what it has 
previously agreed to do.

CONCLUSION

We remand to the district court to redetermine its attorneys’ 
fees award in light of the following: sixty-four and a half 
hours of law clerk time attributable to unrelated matters 
should be deducted from the lodestar, fees for public relations 
work should be stricken unless each item can be documented 
as something only a lawyer appropriately should do; billing 
rates previously set should be reexamined to make sure the 
fact of contingent representation was not a factor in setting the 
rate; enhancement of the lodestar fee for contingency should 
be eliminated. We affirm the court’s award of expert witness 
fees in light of our conclusion that the Civil Rights Act of

D avis v . S an Francisco 12021

1991 applies to pending cases, but the court should reexamine 
the costs bill to make sure the items allowed would be of a 
type and in an amount that a paying client would be expected 
to reimburse. The court’s award of interest on back pay is 
affirmed. In all other respects we affirm.

AFFIRMED IN PART; REVERSED IN PART AND 
REMANDED