Louisville Black Police Officers Organization Inc. v. City of Louisville Brief for Plaintiffs-Appellants-Cross-Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
Nos. 81-54-66/5491

LOUISVILLE BLACK POLICE OFFICERS 
ORGANIZATION, INC., et al.,

Plaintiffs-Appel1ants- 
Cross-Appellees,

vs.
CITY OF LOUISVILLE, et al.,

Defendants-Appellees- 
Cross-Appellants.

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

(Charles M. Allen, J.)

BRIEF FOR PLAINTIFFS-APPELLANTS-CROSS-APPELLEES

ROBERT A. SEDLER
Wayne State University Law School 
Detroit, Michigan 4-8202 
(313) 577-3968
Attorney for Applicants-Appellants
WILLIAM H. ALLISON, JR.
PAUL SOREFF 
3208 West Broadway 
Louisville, Kentucky 4-0211 
(502) 776-1740
JUANITA LOGAN CHRISTIAN 
Suite 490, Hart Block Building 
730 West Main Street 
Louisville, Kentucky 40202 
(502) 587-8091
JACK GREENBERG 
PATRICK 0. PATTERSON 
10 Columbus Circle, Suite 2030 
New York, New York 10019 
(212) 586-8397
Applicants and Attorneys for Plaintiff s-Appellants



Table of Contents

Table of Authorities ..............................
Statement of the Issues Presented ................
Statement of the Case ......... ...................
Argument ..........................................

I. The actions of the District Court in 
refusing to adjust the award for the 
effect of inflation, in refusing to 
award attorneys' fees to the NAACP 
Legal Defense Fund on a basis that 
represents the reasonable value of 
services furnished by the Fund, and in 
reducing documented hours spent in good 
faith representation of the plaintiffs, 
are inconsistent with the fundamental 
purpose and underlying policies of the 
federal civil rights attorneys' fees 
statutes ................................

II. The District Court erred in entering
an award of attorneys' fees in 1981 for 
services performed in the period 1974- 
1979, on the basis of the value of 
attorney services at the time they were 
performed without adjusting the award 
for the effect of inflation ............

III. The District Court erred in refusingto award attorneys' fees for the services 
performed by NAACP Legal Defense Fund 
attorneys on the basis of the reasonable 
value of those services, taking into 
account the Fund's institutional repu­
tation and expertise, the background and 
experience of its attorneys and the 
customary rates charged by comparable 
attorneys and law firms for similar 
services.................................



Page

IV. The District Court erred in reducing, 
without any evidentiary basis, the 
documented hours spent in the prepara­
tion of the plaintiffs' post-trial brief, 
proposed findings of fact and conclusions 
of law, and post-trial reply brief, on 
the ground that, in the opinion of the 
District Court, the amount of time spent 
in such preparation was "excessive." ....  46

Conclusion ......................................... 50

Addendum A: Summary of Rates Requested
and Awarded

Addendum B: Statutes Involved

i

11



Table of Authorities

Cases
Aamco Automatic Transmissions, Inc. v.Tayloe, 82 F.R.D. 405 (E.D. Pa. 1 979) ........  31
In re Ampicillin Antitrust Litigation,
81 F.R.D. 395 (D.D.C. 1978) .......................  32
Bates v. State Bar of Arizona, 433 U.S.

350 ( 1977) ................................... 17
City of Detroit v. Grinnell Corp., 560

F. 2d 1 093 (2d Cir. 1977) .....................  19,32
Copeland v. Marshall, 641 F.2d 880 (D.C.

Cir. 1980 ) (en banc) .........................  19

Page

Gates v. Collier, 616 F.2d 1268 (5th Cir.
1980)   18

Gulf Oil Co. v. Bernard, ___U.S. ___, 101
S. Ct. 2193 ( 1 981 ) ...........................  34

Harkless v. Sweeney Independent School District,
608 F. 2d 594 (5th Cir. 1979) .................  21

Harkless v. Sweeney Independent School District,
466 F. Supp. 457 (S.D. Tex. 1978),
aff'd, 608 F. 2d 594 (5th Cir. 1 979) ..........  31

Jones v. Armstrong Cork Co., 630 F.2d 324 (5th
Cir. 1980) ................................... 44

Knutson v. Daily Review, Inc., 479 F. Supp.1263 (N.D. Cal. 1 979) .........................  32
Lindy Bros. Builders, Inc. v. American Radiator 

& Standard Sanitary Corp., 487 F.2d
161 (3d Cir. 1 973) .............................  19

Lockheed Minority Solidarity Coalition v.
Lockheed Missiles, 406 F. Supp. 828 
(N.D. Cal. 1976) .................

- iii -

32



Page
McPherson v. School Dist. No. 186, 465 F. Supp.

749 (S.D. 111. 1 978) .........................  32
NAACP v. Button, 371 U.S. 41 5 ( 1963) ..............  34,36
Northcross v. Board of Education, Memphis City 

Schools, 611 F.2d 624 (6th Cir. 1979),
cert, denied, 447 U.S 91 1 (1980) .............  passim

Seals v. Quarterly County Court, 562 F.2d 390
(6th Cir. 1977) ............................... 18

Vecchione v. Wohlgemuth, 481 F. Supp. 776
(E.D. Pa. 1 979) ............................... 31

Statutes
42 U.S.C. § 1981 ................................... 3,15
42 U.S.C. § 1983 ................................... 3,1 5
Civil Rights Attorney's Fees Awards Act of

1976, 42 U.S.C. § 1 988 ......................  passim
Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. §§ 2000e et seq.........  passim

Legislative History
H.R. Rep. No. 94-1558, 94th Cong., 2d Sess.

(1976)   16,17,40
S. Rep. No. 94-1011, 94th Cong., 2d Sess.(1976)   15,16,19,20,40,44

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

(Federal Judicial Center 1980) ........  19,32-33,41-42
Attorney Fee Awards in Antitrust and Securities 

Class Actions, 6 Class Action Reports
82 ( 1980) ..................................... 44

New York Times, Aug. 26, 1981   28
- iv -



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
Nos. 81-5466/5491

LOUISVILLE BLACK POLICE OFFICERS 
ORGANIZATION, INC., et al.,

Plaintiffs-Appellants- 
Cross-Appellees,

v s .

CITY OF LOUISVILLE, et al.,
Defendants-Appellees- 
Cross-Appellants.

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

( Charles M. Allen, J.)

BRIEF FOR PLAINTIFFS-APPELLANTS-CROSS-APPELLEES

STATEMENT OF THE ISSUES PRESENTED

1. Whether the District Court erred in entering an 
award of attorneys' fees in 1981 for services performed in 
the period 1974-1979, on the basis of the value of attorney 
services at the time they were performed, without adjusting 
the award for the effect of inflation, either directly or by 
awarding the current value of attorney services.



2. Whether the District Court erred in refusing to 
award attorneys' fees for the services performed by NAACP 
Legal Defense Fund attorneys on the basis of the reasonable 
value of those services, taking into account the Fund's 
institutional reputation and expertise, the background and 
experience of its attorneys, and the customary rates 
charged by comparable attorneys and law firms for similar 
services.

3. Whether the District Court erred in reducing the 
documented hours spent in preparation of the plaintiffs' 
post-trial brief and reply brief because, in the Court's 
opinion, the amount of time spent in such preparation was 
"excessive," and whether the Court erred further in arriving 
at this determination without holding an evidentiary hearing 
on the question.

STATEMENT OF THE CASE
The appellants (hereinafter referred to as the 

"applicants") are the attorneys for the plaintiffs in 
Louisville Black Police Officers Organization, Inc., et al. 
v. City of Louisville, et al., Civil Action No. C 74-106 
L,(\A) , in which the plaintiffs successfully challenged the 
racially discriminatory employment practices of the City of

2



Louisville Police Department. See 20 F.E.P. Cases 1195 (W.D. 
Ky. 1979). (App. 28, 57). The present appeal is from the 
District Court's award of interim attorneys' fees covering 
the period from the commencement of the action in March,
1974, to September 18, 1979, when the District Court ruled in 
favor of the plaintiffs and entered a preliminary injunction 
with respect to the hiring of black police officers.

The discrimination suit was brought initially under 42 
U.S.C. §§1981 and 1983, and alleged a violation of the 
Fourteenth Amendment rights of the plaintiffs. The complaint 
was amended in January, 1976, and March, 1977, to allege 
claims under Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. §2000e et seq. Class certification orders 
were entered on June 27, 1975, and April 22, 1977. The 
Fraternal Order of Police intervened as a defendant in 1975 
but is not involved in this appeal.

On March 7, 1977, trial commenced in the District Court 
on the issues of discrimination in recruitment, entry-level 
testing, selection and hiring. The case was tried in stages, 
and took five weeks of trial time. After the final transcript 
of the proceedings was completed and filed in May, 1978, the 
parties jointly requested and the Court granted additional 
time for filing post-trial briefs in order to allow settlement 
negotiations. These negotiations were unsuccessful, and in

3



September, 1978, counsel for plaintiffs filed their post­
trial brief and proposed findings of fact and conclusions of 
law. The defendants then retained a Washington, D.C., law 
firm and, after being granted a series of extensions of time, 
filed their post-trial briefs, proposed findings of fact and 
conclusions of law in February, 1979. The plaintiffs filed 
their post-trial reply brief in May, 1979.

On September 18, 1979, the District Court issued findings 
of fact, conclusions of law and a memorandum opinion, and 
entered a preliminary injunction. 20 F.E.P. Cases 1195 
(App. 28, 57). The Court found, inter alia, that the City 
had a history of racial segregation and discrimination in its 
police employment practices. Moreover, until 1974 the City 
had selected officers by means of unvalidated written tests 
and unstructured, subjective oral interviews. In the ten 
years preceding the filing of this lawsuit, only 11 of the 
328 officers accepted into recruit classes were black. As 
late as 1976-1977, the City used an unlawful discriminatory 
ranking system which kept qualified black applicants from 
getting jobs on the police force. In 1974, when the suit 
was filed, black officers held only 5.6% of the positions on 
the Louisville police force, and by 1977, when the case was 
tried, blacks still constituted only 7.4% of the force. In 
contrast, in 1970 23.8% of the residents of the City of

4



Louisville were black, and the Court found that the relevant 
labor market was approximately 15% black. Based upon these 
and other findings of fact and conclusions of law, the Court 
entered a preliminary injunction requiring the City to appoint 
at least one black police recruit for every two white recruits 
appointed for the next five years. The Court also held that 
plaintiffs' counsel were entitled to recover interim attorneys' 
fees. (App. 54) .

In May, 1980, after extensive settlement negotiations, 
the parties signed a consent decree which subsequently was 
approved by the District Court. As the Court stated in its 
findings with respect to the fee application:

"On May 2, 1980, the parties signed a consent decree which substantially incorporated the remedies 
set out in the Court's preliminary injunction, and 
which, in part, provided relief over and beyond 
that which has been set out in the preliminary 
injunction. The consent decree mandates that one 
out of every three persons appointed to the Police 
Recruit School during the next five years be persons 
of the black race. It is contemplated that at the 
end of five years approximately 15% of the Force will 
be composed of black persons.

"In addition the consent decree sets forth 
detailed provisions regarding testing, medical 
examinations, background investigations, and 
recruiting; it provides for regulation of recruit 
training with the objective in mind of all applicants 
who enter the recruit school shall graduate [sic]; it 
provides for the assignment of black officers within 
certain units so as to overcome their historic 
underrepresentation; it contains an affirmative 
promotional remedy with a promotional schedule to 
achieve 15% black representation. It sets forth 
detailed standards and procedures regarding discipline; 
it contains extensive reporting requirements; it pro­

5



vides back pay settlement funds for claims of 
discrimination in promotion in the amount of 
$150,000, and for claims of discrimination in 
discipline in the amount of $85,000.'' (App. 324-25).

The consent decree did not resolve the question of interim 
attorneys' fees, and despite substantial negotiations, the 
parties were unable to agree on this matter.

The principal attorney for the plaintiffs at the time 
the suit was filed in 1974 was William Allison of Louisville, 
who had been admitted to practice in 1969. (App. 62, 325).
In 1974-1975 he was assisted by Henry Hinton of Louisville. 
(App. 62, 327). Paul Soreff first became involved in the case 
in 1975, while still a law student. He was admitted to 
practice in 1976, and then joined Mr. Allison in practice 
and in this case. (App. 62, 326). Because of the complexity 
of this case and its determined and vigorous contention by 
the City, Attorneys Allision and Soreff concluded that they 
would need expert assistance in litigating the case. They 
first asked the United States Department of Justice to become 
involved in the case. When that request was denied, they 
turned to the NAACP Legal Defense and Educational Fund, Inc. 
(hereinafter "Legal Defense Fund" or "LDF"). The Legal 
Defense Fund agreed to participate, and Fund lawyers entered 
the case as counsel for the plaintiffs in 1976. (App. 62, 63, 
326). )

The necessity for the involvement of the Legal Defense 
Fund and the contributions of the Fund's attorneys to the

6



successful prosecution of the case are detailed at length in 
an affidavit filed by Mr. Allison. (App. 360-61). Patrick 
0. Patterson, an experienced LDF specialist in employment dis­
crimination litigation, was the primary Legal Defense Fund attorney 
assigned to the case. He was assisted by Deborah M. Greenberg, 
another experienced LDF staff attorney specializing in employment 
litigation; by Kristine S. Knaplund, a volunteer attorney at LDF; 
and by paralegals and other members of the LDF staff. Although 
other Legal Defense Fund attorneys reviewed documents and confer­
red with Mr. Patterson on the case, no compensation was claimed 
for their services. (App. 72-73). Juanita Logan Christian 
performed substantial services for the plaintiffs while serving as 
an Earl Warren Fellow at the Legal Defense Fund in 1977, and then 
served as additional counsel for the plaintiffs when she subse­
quently entered private practice in Louisville. Some work was 
also performed by Frederic Cowden of Louisville in 1977. (App.
63, 213).

The application for the award of interim attorneys' 
fees, costs and expenses was filed on August 28, 1980. (App.
59). In support of their application, the applicants 
submitted detailed time logs showing the hours that each 
attorney expended on the case, affidavits showing the 
qualifications and experience of each of the applicants, and 
affidavits of Louisville practicing attorneys relative to

7



the prevailing rates for attorney services in the Louisville 
area. The applicants sought interim attorneys' fees in the 
amount of $629,182, and costs and expenses in the amount of 
$23,468.03. (App. 65-66). The City of Louisville vigorously 
contested the application, contending that the applicants 
were entitled to recover no more than $136,336 as interim 
attorneys' fees. (App. 230). The City submitted affidavits 
of other Louisville practicing attorneys on the issue of 
prevailing rates for attorney services in the Louisville 
area. The District Court concluded that it was not necessary 
to hold an evidentiary hearing on the application.

On February 12, 1981, the Court issued its findings of 
fact, conclusions of law and memorandum opinion (App. 324 ), 
and entered a judgment thereon. (App. 2 3 9 ). On March 17,
1981, the Court issued a memorandum opinion clarifying its 
judgment (App. 341) and entered a final judgment. (App. 346).
The District Court resolved all of the principal controverted 
issues in favor of the City, except for the issue of the 
entitlement of the applicants to a contingency adjustment, 
and awarded interim attorneys' fees in the amount of $256,271.89- 
(App. 339, 346). The Court also awarded the costs and expenses 
requested by the applicants. (App. 340).

The principal controverted issues between the applicants 
and the Cityfand the resolution of these issues by the District 
Court, may be summarized as follows: There was substantial dis­

8



agreement as to the prevailing rates for attorney services
in the City of Louisville, both at the time the services in
question were rendered and as of 1981. The District Court
resolved this issue substantially in accordance with the
City's submission as to prevailing hourly rates at the time

1/the applicants' services were performed. The Court held
that the hourly rate to be awarded to the Legal Defense

2/Fund for services Ms. Greenberg performed in 1977, when 
she had been admitted to practice for 20 years, was $75 for 
office services and $106 for in-court services. (App. 333, 
344). The District Court held that the hourly rates for 
the other attorneys should be based on attorney experience at 
the time the services were rendered, and divided the attorneys 
into three categories: (1) "inexperienced," zero to two
years; (2) "intermediate," two to seven years; and (3) "fully 
experienced," over seven years. There was also to be a 40 
percent differential for courtroom work. (App. 333).

1/ While the applicants continue to disagree with the District 
Court's findings with respect to prevailing Louisville rates 
during the period 1974-1979, they concede that those findings 
are not "clearly erroneous," and so cannot be challenged in 
the present appeal.
2/ The applicants requested that fees for the services of 
LDF staff attorneys be awarded directly to the Legal Defense 
Fund itself. Fees awarded individually to attorneys employed 
by the Fund are turned over to the Fund. (App. 69, 353).

9



The District Court placed Mr. Allison, who was admitted 
to practice in 1969, in the "intermediate" category for the 
years 1974-1976, and awarded him $50 per hour for office 
services. For the years 1977-1979, Mr. Allison was placed in 
the "fully experienced" category and was awarded $65 per hour 
for office services. Mr. Patterson, an LDF specialist in 
employment discrimination litigation who was admitted
to practice in 1972, was placed in the "intermediate" category 
and awarded $50 per hour for office services rendered in 
1976 through 1979. Mr. Soreff, who was admitted to practice 
in 1976, was awarded $40 per hour for office services performed 
during his first two years of practice, and $60 per hour for 
°ffice services thereafter.— Mr. Hinton was compensated at
the rate of $50 per hour for office services, and Mr. Cowden,

. . 4 /Ms. Christian, — and Ms. Knaplund were each compensated at 
the rate of $40 per hour for office services. The rates 
requested by the applicants and awarded by the Court are 
summarized in chart form in Addendum A to this brief.

3/ There is an inconsistency here. Mr. Soreff was compensated at the rate of $60 per hour for office services when he was 
in the "intermediate" experience category, but Mr. Allison 
and Mr. Patterson were compensated at the rate of $50 per 
hour for office services while they were in the same category.
£/ Here there is another inconsistency. Ms. Christian was 
in her third year of practice in 1979 and therefore should 
have been placed in the Court's "intermediate" category for 
that year. However, the Court set her rate for 1979 at the 
lowest, "inexperienced" rate of $40 per hour.

10



The parties also disagreed as to the appropriateness of 
a contingency adjustment. The City, despite its determined 
and vigorous defense of the discrimination case and its 
retention of a Washington, D.C., law firm to represent it, 
contended that there should be no contingency adjustment at 
all. The applicants sought a 50 percent contingency adjust­
ment.’ The District Court awarded a 33.3 percent contingency 
adjustment. (App. 342). —^

The third point of contention related to an adjustment
of the award to take account of inflation. The applicants
based their claim for the value of attorneys' services on
the market value of those services at the time they were
rendered, and contended that the award should be adjusted
for inflation directly according to the Consumer Price Index.
(App. 65). They also set forth in detail how such an ad-

67justment should be made. (App. 201-02, 277-81, 316-20)r The

5/ Although the applicants continue to believe that a higher 
contingency adjustment would be appropriate, they recognize 
that the District Court has a wide range of discretion in 
determining a proper contingency adjustment. The applicants 
therefore have not challenged this aspect of the award in 
the present appeal.
6/ For example, the requested rate of $75 an hour for work 
done by Mr. Allison in 1974 was adjusted to $130.35 in 
November 1980 dollars to account for the decline in the 
value of the dollar in the intervening period, as reflected 
in the Consumer Price Index. The historical rates, CPI 
inflation factors, and adjusted rates requested by each 
attorney are set forth in Addendum A hereto.

11



City argued in response that "an hourly rate based on hourly 
rates prevailing at the present time will adequately 
compensate for inflation since 1974 and no additional 
adjustment is warranted." (App. 226) (emphasis added). On 
this issue, the District Court gave the City more than it 
asked for. The Court held that the value of attorney services 
had to be determined at the time the services were rendered 
and refused to make any adjustment at all for inflation.
(App. 337).

The other main point of disagreement was over the 
reduction in documented hours. The City claimed that there 
should be a sweeping reduction in the documented hours 
claimed by the applicants, but did not identify any particular 
hours that should be reduced. The District Court, without 
holding an evidentiary hearing on the question, held that the 
amount of time spent by the applicants in preparation of 
their posttrial brief, their proposed findings of fact and 
conclusions of law, and their post-trial reply brief was 
"excessive." The Court reduced the documented hours for the 
post-trial brief and proposed findings and conclusions by 
25 percent, and for the post-trial reply brief by 50 percent. 
(App. 335).

The applicants filed a motion to alter or amend the 
judgment on March 30, 1981. (App. 348 ). In this motion

12



the applicants asked the District Court, inter alia, to
award attorneys' fees based on the present value of attorney 
time, since it had refused to adjust directly for inflation, 
and to restore the documented hours spent in preparation of 
the post-trial brief, proposed findings and conclusions, and 
post-trial reply brief that it had eliminated. In addition, 
because the value of attorney time according to prevailing 
rates in the City of Louisville, as determined by the District 
Court, was so much lower than the value of such time as set 
forth in the affidavits previously submitted by the applicants, 
an award based on such hourly rates would not adequately 
reflect the reasonable value of the attorney services furnished 
by the Legal Defense Fund. Accordingly, the applicants 
requested that the District Court award fees to the Legal
Defense Fund on the basis of prevailing hourly rates which are 
reasonable in light of the Fund's institutional reputation 
and expertise, the background and experience of its attorneys, 
and the customary rates charged by comparable lawyers and 
law firms for similar services. —^ The current (1981) rates 
requested in the applicants' motion to alter or amend the

7/ In this regard the applicants submitted an affidavit of 
Marvin E. Frankel, a former United States District Judge for 
the Southern District of New York who is now the managing 
partner of a major New York City law firm. Judge Frankel's 
affidavit, which was not challenged by the City, states 
that, based on the facts of record concerning the experience 
and ability of the Legal Defense Fund attorneys in this 
case, current (1981) base rates of $160 per hour for Ms. 
Greenberg and $120 per hour for Mr. Patterson are reasonable 
and comparable to the rates charged by attorneys of 
comparable experience and ability in first-class New York 
law firms. (App. 428). The applicants also submitted copies 
of recent decisions from various parts of the country awarding 
base rates of $125 to $135 an hour for services performed by 
LDF staff attorneys and other comparable specialists in civil 
rights litigation. (App. 371-426) .

13



judgment are set forth in Addendum A to this brief- The 
District Court refused to amend its judgment in any 
respect and, on June 3, 1981, denied the motion. (App. 
431). A notice of appeal was filed on June 19, 1981. 
(App. 435).

ARGUMENT
I.

The Actions of the District Court in Refusing to 
Adjust the Award for the Effect of Inflation, in 
Refusing to Award Attorneys' Fees to the NAACP 
Legal Defense Fund on a Basis That Represents the 
Reasonable Value of Services Furnished by the Fund, 
and in Reducing Documented Hours Spent in the Good 
Faith Representation of the Plaintiffs, Are 
Inconsistent with the Fundamental Purpose and 
Underlying Policies of the Federal Civil Rights 
Attorneys' Fees Statutes.

In the subsequent sections of the Argument, the 
applicants will set forth in detail the reasons why the 
District Court erred in taking each of the actions that is 
challenged in the present appeal. In this section, the 
applicants will address what may be called the "common 
ground of error" —  that the challenged actions of the 
District Court are inconsistent with the fundamental purpose 
and underlying policies of the federal civil rights attor­
neys' fees statutes, as recognized and implemented by this 
Court's decision in Northcross v. Board of Education,
Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), cert.

14



denied, 447 U.S. 911 (1980).
Fees were awarded in the present case pursuant to the 

Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.
§ 1988, and § 706(k) of Title VII of the Civil Rights Act 
of 1964, as amended, 42 U.S.C. § 2000e-5(k). See Addendum 
B. The fundamental purpose of these fee award statutes 
is to insure the effective enforcement of the substantive 
federal constitutional and statutory rights established by 
42 U.S.C. §§ 1981 and 1983, Title VII and related civil 
rights statutes, by providing adequate compensation for the 
attorneys who have successfully represented victims of civil 
rights violations. As the Senate Judiciary Committee stated 
in its report recommending passage of the Civil Rights 
Attorneys' Fees Awards Act of 1976 (hereinafter the "Fees 
Act"):

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

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

15



" . . .  'Congress therefore enacted the 
provision[s] for counsel fees . . .  to encourage 
individuals injured by racial discrimination to seek 
judicial relief . . .'" S. Rep. No. 94-1011, 94th 
Cong., 2d Sess. 2-3 (1976), quoting Newman v. Piggie 
Park Enterprises, Inc., 390 U.S. 400, 402 (1968).
Congress enacted these fee-shifting statutes to insure

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

"The effective enforcement of Federal civil 
rights statutes depends largely on the efforts of 
private citizens. Although some agencies of the 
United States have civil rights responsibilities, 
their authority and resources are limited. In 
many instances where these laws are violated, it 
is necessary for the citizen to initiate court 
action to correct the illegality . . . .  [The Fees 
Act] is designed to give such persons effective 
access to the judicial process where their 
grievances can be resolved according to law." H.Rfl,
Rep. No. 94-1558, 94th Cong., 2d Sess. 1 (1976).

8/ The present case is one in which it was clearly necessary Tor the plaintiffs to initiate court action to vindicate 
their civil rights and those of the classes they represented. 
Indeed, the plaintiffs' Louisville attorneys specifically 
requested that the Department of Justice intervene in the 
case. Only when the Government declined to participate did 
the NAACP Legal Defense Fund become involved, and only after 
years of hard-fought litigation was the City compelled to 
make sweeping changes in its discriminatory employment 
practices.

16



Congress was also cognizant of "the real-life fact that 
lawyers earn their livelihood at the bar," Bates v. State Bar 
of Arizona, 433 U.S. 350, 368 (1977), and that relatively few 
attorneys were available to represent victims of racial 
discrimination and other civil rights violations. Not only 
would such representation generally involve controversial and 
politically unpopular cases, with the resulting personal and 
professional repercussions for the attorney, but the victims 
of civil rights violations rarely were able to afford to pay 
for the attorney's services. The House Judiciary Committee 
found that there was a "compelling need" for the Fees Act, 
citing evidence that "private lawyers were refusing to take 
certain types of civil rights cases because the civil rights 
bar, already short of resources, could not afford to do so." 
H.R. Rep. No. 94-1558, at 3. As this Court has stated: "The
entire purpose of the statutes was to ensure that the 
representation of important national concerns would not depend
upon the charitable instincts of a few generous attorneys."

9 /Northcross at 638. —

9/ As stated in the affidavit of Shelby Lanier, the President 
of the Louisville Black Police Officers Organization and a 
named plaintiff in this action, in 1973-1974 the organization 
approached a number of attorneys who "either were not 
interested [in representing the plaintiffs], due to the 
controversial and complex nature of the suit, or demanded 
the payment of some fee before proceeding." (App. 313). If William Allison had not agreed to represent the plaintiffs 
without payment in advance, "this suit may never have been 
brought and the discrimination against Blacks in hiring, 
promotion, assignments and discipline by the Louisville 
Police Department would not even have begun to be dealt 
with." (App. 314).

17



Recognition of the purpose of the federal civil rights 
attorneys' fees statutes is illustrated by the extremely 
liberal construction given to those statutes by the courts.
As this Court has noted, these statutes "should be liberally 
construed to achieve the public purposes involved in the 
congressional enactment." Seals v. Quarterly County Court,
562 F.2d 390, 393 (6th Cir. 1977). As another court has 
observed in regard to the Civil Rights Attorney's Fees 
Awards Act of 1976: "Recognizing Congress' clear signals
to apply the Act 'broadly to achieve its remedial purpose,' 
Courts have taken an extremely liberal view on nearly every 
interpretative question that has arisen thus far under 
§1988." Gates v. Collier, 616 F.2d 1268, 1275 (5th Cir.
1980) (citation omitted).

In Northcross, this Court held that the fundamental 
purpose and underlying policies of the federal civil rights 
attorneys' fees statutes would be best implemented by adopting 
an analytical approach to awards of attorneys' fees. Such 
an approach, this Court found, "will result in an award 
reflecting those considerations traditionally looked to in 
making fee awards, but will also provide a logical, analytical 
framework which should largely eliminate arbitrary awards 
based solely on a judge's predispositions or instincts." 
Northcross at 643. The essence of the Northcross approach is
to base the award on the fair market value of the attorney's



services, which is primarily determined by looking to (1) 
the number of documented hours expended on the case and (2) 
the reasonable value of the time of the particular attorney.
Id. at 642-643. As this Court concluded in Northcross: 
"Focusing on the fair market value of the attorney's services 
will best fulfill the purposes of the Fees Awards Act, by 
providing adequate compensation to attract qualified and 
competent attorneys without affording any windfall to those 
who undertake such representation." Id. at 638. i2/

What the Northcross approach means in the final analysis
is that the services of attorneys in civil rights cases are 
deemed to have the same market value as the services of 
attorneys in any other case. Congress expressly stated its 
intention that "the amount of fees awarded under [the Fees 
Act] be governed by the same standards which prevail in 
other types of equally complex Federal litigation, such as 
antitrust cases and not be reduced because the rights involved 
may be nonpecuniary in nature." S. Rep. No. 94-1011, at 6. 
Thus, the victim of a civil rights violation should be entitled

10/Qther Circuits have adopted substantially similar approaches to the calculation of counsel fees under federal statutes 
providing for fee awards. See Copeland v. Marshall, 641 F. 2d 
880 (D.C. Cir. 1980) (en banc); City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir. 1977); Lindy Bros. Builders^
Inc, v. American Radiator & Standard Sanitary Corp., 487 F.2d 
161 (3d Cir. 1973). See generally, A. Miller, Attorneys1 
Fees in Class Actions, at 60-184 (Federal Judicial Center 1980) .

19



to go into the legal market and purchase the services of the 
most competent and qualified attorney to redress that vio­
lation, in the same manner as a corporation or commercial 
enterprise can go into the legal market and purchase attorney 
services to vindicate its legal rights. If a civil rights 
attorney has the same experience and expertise in the civil 
rights area as a corporate or commercial attorney has in the 
corporate or commercial area, the services of the civil 
rights attorney are deemed to have the same market value as 
the services of the corporate or commercial attorney and must 
be compensated on the same basis.

So too, under the Northcross approach —  which in this 
regard is particularly related to the purpose of the federal 
fee award statutes —  counsel for the plaintiffs in civil 
rights actions are to be encouraged to do everything possible 
to vindicate the federally protected rights of their clients, 
just as other attorneys are encouraged —  by the prospect of 
being paid the market value of their services —  to do every­
thing possible to vindicate the rights of their clients. "In 
computing the fee, counsel for prevailing parties should be 
paid, as is traditional with attorneys compensated by a fee­
paying client, 'for all time reasonably expended on a 
matter.'" S. Rep. No. 94-1011, at 6. Civil rights attorneys

20



are to be encouraged to work on each aspect of the case as 
thoroughly and diligently as they would if the case involved 
the interests of a corporate or commercial client. They are 
to be encouraged to pursue every line of inquiry and to 
engage in "innovative and vigorous lawyering in a changing 
area of the law," and to "take the most advantageous position 
on their clients' behalf that is possible in good faith."
Northcross at 636. They are to be encouraged to take the 
same team approach to complex litigation involving civil 
rights as a "high-powered" law firm would take to complex 
litigation involving the antitrust laws or corporate control. 
There cannot, consistent with the purpose of the federal fee 
award statutes, be any notion that a civil rights case is 
"not worth that much," or that a civil rights case must be 
"litigated on the cheap." See Harkless v. Sweeney 
Independent School District, 608 F.2d 594, 597-598 (5th Cir. 
1979). It is these objectives that the Northcross approach 
seeks to accomplish by providing that the attorney shall be 
compensated for the market value of the attorney's services.

The actions of the District Court that are challenged 
on the present appeal strike at the heart of the Northcross 
approach and deny compensation to the applicants in accordance 
with the fair market value of their services, thus undermining 
the fundamental purpose and underlying policies of the 
statutes providing for awards of counsel fees in civil rights

21



cases. Each of these actions of the District Court will be 
specifically addressed in the following sections of this 
brief.

II.
The District Court Erred in Entering an Award of
Attorneys' Fees in 1981 for Services Performed in
the Period 1974-1979, on the Basis of the Value of
Attorney Services at the Time They Were Performed
Without Adjusting the Award for the Effect of
Inflation.

In the Court below, there initially was no dispute 
between the parties that the award had to be adjusted by 
some method to compensate the applicants for the effect of 
inflation. The applicants contended that the award should be 
based on the market value of the attorney services at the 
time the services were rendered, and that the award should be 
adjusted for inflation directly according to the Consumer 
Price Index. (App. 65, 277-81). The City's position in this 
regard was as follows:

"While the Court in Northcross did authorize 
a consideration of inflation in determining the 
reasonableness of the fee awarded, it did not specify 
the method of this consideration. The Court did 
approve, however, the standard method used by the 
federal courts of setting a single hourly rate based 
upon a reasonable rate at the time of the award . . .

"Only if the hourly rate set at the time of 
award is not sufficient to balance the lower rate which 
prevailed at the time the services were provided should

22



an adjustment for inflation be made.
"Defendants submit that an hourly rate 

based on hourly rates prevailing at the present 
time will adequately compensate for inflation 
since 1974 and no additional adjustment is 
warranted." (App. 226) (emphasis added).

On this issue, the District Court gave the City more than it
asked for: The Court determined the value of attorney ser-
ices at the time the services were rendered and refused
to make any adjustment at all for inflation. (App. 337,
432) .

The District Court took the position that it had the
discretion to refuse to adjust the award for the effect of
inflation, and that Northcross merely authorized, but did11/not require, such an adjustment. (App. 432). It then ex­
ercised that "discretion" against making an adjustment, be­
cause the services in the present case had been performed "only" 
two to seven years prior to the award and because "substan­
tial delay in the instant case resulted from actions of the

12/plaintiffs' attorneys." (App. 432-33). The applicants

11/ In responding to the applicants' motion to alter or 
amend the judgment, the City revised its position and supported 
the District Court's view. (Memorandum of Law in Support of 
Defendants' Response to Motion To Amend Findings of Fact, 
Conclusions of Law, and To Alter or Amend Final Judgment, at 
1-2 ).
12/ In its original memorandum opinion, the District Court 
said that "long periods of time ensued between the trial of 
the action and final decision of the Court due, in considerable 
measure, to the parties' desire for extensions of time in 
which to file briefs." (App. 337-38). In its order overruling 
the motion to amend, however, it put the blame entirely on 
the plaintiffs' attorneys. (App. 433).

23



submit that the District Court does not have such "discretion" 
under Northcross; to the contrary, an adjustment must be 
made for the effect of inflation, either directly, as 
proposed by the applicants, or by basing the award for past 
services on the present value of the attorneys' services. 
Moreover, as set forth below, there is no basis in the 
record for the District Court's finding that plaintiffs' 
counsel were responsible for "substantial delay." See pp. 
29—31, infra.

In Northcross this Court, referring to an award of 
attorneys' fees for services performed prior to 1977, 
stated:

". . . . the district court will be required to
consider whether the inflation of the intervening years 
must be taken into account, or whether the lower rate 
which prevailed for services at the time they were 
rendered has been balanced by the long delay which will 
reduce the purchasing power of the award's dollars in 
the present marketplace." Northcross at 640.

In that case the District Court had made the award on the 
basis of the 1977 value of the attorney services, notwith­
standing that the attorneys sought recovery for services 
dating back to 1960, when the suit was first filed. See 
Northcross at 641. The question that the District Court was 
directed to consider was whether an additional adiustment 
was necessary because of the inflation which had occurred 
between the time the services were performed and the time 
the award was rendered, during which time the attorneys had 
received no money whatsoever. If an additional adjustment

24



for inflation was not necessary, it was because the attorneys 
were being compensated at 1977 rates for services which had less 
value (both in terms of lesser attorney experience and in terms 
of lower prevailing rates) at the time they were performed. But 
one way or another, some adjustment for the effect of inflation 
on the purchasing power of the award would be made.

In the present case, the award rendered in 1981 was 
for services performed from 1974 to 1979. Unlike the award 
made by the District Court in Northcross, which was based on 
the 1977 value of attorney services, the award in the present 
case was based on the lower value of attorney services (both 
in terms of lesser attorney experience and in terms of lower 
prevailing rates) at the time the services were performed,

iand there was no adjustment at all for inflation. The appli­
cants, then, got the worst of both worlds. The award was 
based on the value of attorney services as calculated in 1974, 
1975, and so forth, but the money was not received until 1981, 
and the inflation of the intervening years was not taken into 
account. The long delay between the time the services were 
performed and the time the award was made most assuredly "will 
reduce the purchasing power of the award's dollars in the present 
marketplace." Northcross at 640. Thus, the applicants are not- 
recovering the fair market value of their services, as required

25



13/by Northcross.
The District Court, failing to relate this Court's discus­

sion of the matter of adjusting the award for inflation in 
Northcross to the Northcross approach of basing the award 
on the fair market value of the attorney's services, attempted 
instead to distinguish Northcross on its particular facts.
The District Court stated:

"We find no indication that Northcross gives 
the District Court the 'either-or' alternative of 
adding an inflation factor into attorney fee 
awards, or granting fees based on the present 
value of comparable work by the same attorneys.
While we do not doubt that Northcross authorizes 
either such course, there is some distance 
between authorization and requirement, and we 
found in our memorandum opinion of February 12,
1981 that the Louisville Black Police attorneys 
have been fairly and adequately compensated 
without the addition of an inflation factor or the 
use of a present-value based calculation. We 
distinguish Northcross from the instant case in 
that the passage of time in Northcross had been

13/ The following chart illustrates the eroding effects of 
inflation on the purchasing power of a rate of $50 an hour
awarded in 1980 for 
1979, based on the 
U.S. Department of 
App. 201-02, 271-81

services performed between 1974 and 
Consumer Price Index as calculated by the 
Labor, Bureau of Labor Statistics (see 
, 316-20).

Year Services Performed Consumer Price Index
Purchasing Power 
of $50 Awarded 

in 1980
Decline in Purchasing 

Power
1979 217.7 $42.49 15.0%
1978 195.3 $38.11 23.8%
1977 181.5 $35.42 29.2%
1976 170.5 $33.27 33.5%
1975 161.2 $31.46 37.1%
1974 147.7 $28.83 42.3%

26



much greater between the performance of much of the 
work involved and the ultimate entry of the order 
awarding attorney fees, and the fact that sub­
stantial delay in the instant case resulted from 
actions of the plaintiffs' attorneys." (App. 432-33).
What the District Court ignored, of course, was the 

relationship between an adjustment for inflation and recovery 
of the fair market value of attorney services, as mandated 
by the Northcross approach. Because of the "reduction of the 
purchasing power of the award's dollars in the present market­
place" due to the effects of inflaction, the present applicants 
will not in fact recover the fair market value of their services 
unless an adjustment is made for inflation. In the absence 
of such an adjustment, contrary to the assertion of the District 
Court, attorneys cannot be "fairly and adequately compensated" 
when there is a delay of some years between the time the services 
were performed and the time the attorneys receive compensation 
for those services.

The District Court's attempt to distinguish Northcross 
on its particular facts does not undercut the rationale of 
Northcross with respect to the required adjustment for in­
flation. Even if Northcross properly could be so distinguished 
—  which, as will be demonstrated, it cannot —  the rationale 
of Northcross is applicable to any award of attorneys' fees 
that is made some years after the services were performed.
That rationale does not depend on the degree of inflation 
during the intervening years or on the reasons for the lapse 
of time between the performance of the services and the issuance 
of the fee award. Rather, it is based on the guiding principle

27



of Northcross: that attorneys should be compensated for the
fair market value of their services. Where there has been a 
substantial delay between the performance of the services and 
the award of compensation, the attorneys will not receive the 
fair market value of their services unless an adjustment is 
made for the effect of inflation.

Not only was this Court's decision in Northcross not
based on the particular facts of that case, but there are no
factual distinctions between Northcross and the present case
which would justify the refusal of the District Court to
adjust for inflation here. While the passage of time between
the performance of the services and the rendition of the
award in Northcross may have been greater than in the present
case, double-digit inflation is a product of the 1970's, and
it has continued into the 1980's. Thus, the greater extent
of the inflation of the intervening years in the present case
counterbalances the longer delay between the performance of
the services and the rendition of the award in Northcross.
The Consumer Price Index, based on a scale of 100 in 1967,
increased from 147.7 in 1974 to 256.2 in November, 1980. In
other words, the 1967-based consumer dollar was worth 67.8
cents in 1974; by November, 1980, its value had declined to

14/39 cents. (App. 281). In the present case, therefore,

14/ Thus, a 1980 dollar would buy only as many goods and 
services as 58 cents bought in 1974. Stated another way, it 
took $1.74 in 1980 terms to equal the purchasing power of 
$1.00 in 1974 terms. By July 1981, the most recent date for 
which figures were available at the time this brief was 
written, the Consumer Price Index had risen to 274.4. N . Y. 
Times, Aug. 26, 1981, at A1, col. 6. Thus, it now takes

28



-just as in Northcross, the applicants will be seriously undercom-11/pensated if the award is not adjusted for inflation.
Secondly, even if an adjustment for inflation could be 

disallowed because of "responsibility for delay" —  which, 
under the Northcross approach, it cannot —  the District Court 
could not properly refuse to adjust for inflation on the ground 
that "substantial delay in the instant case resulted from actions 
of the plaintiffs' attorneys." (App. 433). As the District 
Court acknowledged, this was not a simple case. (App. 335). A 
five to six year period between the filing of such a suit and its 
favorable resolution for the plaintiffs is not at all uncommon in 
complex civil rights cases. Extensive discovery was necessary 
before the plaintiffs could begin to develop their case. A 
persual of the docket entries (App. 1-27) demonstrates the

14/ Continued
$1.86 in 1981 terms to equal the purchasing power of $1.00 
in 1974 terms. A detailed description of the method of 
calculating an inflation factor based on the Consumer Price 
Index for each year is contained in the Appendix. (App. 279- 
81, 316-20). The CPI inflation factors for each year from 
1974 through 1979, based on the CPI for November, 1980, are 
set forth in Addendum A to this brief.
15/ For example, the District Court set Mr. Allison's rate at 
$50 an hour in 1981 dollars for services he performed in 1974.
In order to adjust for the effects of inflation up to November 
1980, this rate must be multiplied by a factor of 1.738. See 
Addendum A. Thus, a rate of $50 an hour in 1974 dollars is 
equivalent in purchasing power to a rate of $87 an hour in 
1980 dollars. Conversely, a rate of $50 an hour in 1980 dollars 
is worth only $29 in 1974 dollars. By awarding Mr. Allison a 
rate of only $50 an hour in 1981 for services he performed in 
1974, and by refusing to make any adjustment for the effects 
of inflation, the District Court cut the purchasing power of 
this part of his award by more than 40 percent . See n.13, 
supra.

29



extensive nature of the discovery conducted by all parties and 
the multifaceted nature of the proceedings. Insofar as there 
were requests for extensions of time, particularly between 
the trial of the action and the decision of the District Court on 
the merits, the requests were made by both parties, as the 
District Court recognized. (App. 337-38). Approximately 20 
months elapsed between the completion of the trial of the 
case in September, 1977, and the filing of all post-trial 
briefs and reply briefs by the parties. The first eight months 
were taken up with transcriptions of the trial testimony.
After the transcript was completed in May, 1978, the parties 
attempted to negotiate a settlement, but were unable to do 
so, and counsel for the plaintiffs filed their post-trial 
brief and proposed findings of fact and conclusions of law 
in September, 1978. The City thereafter retained a Washington, 
D.C., firm to represent it, and was granted a series of exten­
sions amounting to more than 3 months beyond the original period 
of 60 days within which it was to file its post-trial brief.
On February 20, 1979, the City submitted its 176-page proposed 
findings of fact and conclusions of law and its 94-page post-trial 
brief. The intervening defendants also submitted a 90-page 
post-trial brief and proposed findings and conclusions. After 
being granted extensions of less than a month, counsel for the 
plaintiffs served their post-trial reply brief on May 18, 1979.

Thus, the record simply will not support the District 
Court's conclusion that "substantial delay in the instant

30



The plaintiffs' attorneys prosecuted the case on behalf of 
their clients thoroughly and carefully, and as diligently as 
they could in light of the complexity of the case, the determined 
opposition of both the defendants and the intervening defendants, 
and the multifaceted nature of the proceedings. Extensions 
of time were requested by both sides and were granted by the 
District Court. In Northcross, there were delays of up to 
two years from one phase of the case to another, Northcross 
at 628-629, but this was not considered sufficient to justify 
a refusal to adjust the award for the effects of inflation.

The opinion of this Court in Northcross is not alone 
in recognizing the need to take inflation into account in 
awarding fees for services performed in past years. Many 
reported fee decisions in prolonged and complex federal litiga­
tion —  including fee awards in antitrust and securities cases, 
applying the same standards which are to govern fee awards in 
civil rights cases (see Northcross at 633) —  simply award 
current rates without discussion of the inflation problem. See, 
e.g., Harkless v. Sweeney Independent School District, 466 F. 
Supp. 457 (S.D. Tex. 1978), aff*d, 608 F.2d 594 (5th Cir. 1979). 
The courts which have expressly addressed the impact of inflation
have employed various methods to compensate counsel for the loss

16/
resulting from delay in payment. As the D.C. Circuit

case resulted from actions of the plaintiffs' attorneys."

16/ See, e.g., Vecchione v. Wohlgemuth, 481 F. Supp. 776,
795 (E.D. Pa. 1979) (upward adjustment of base fee "to compensate 
counsel for the delay in recovery of their fee"); Aamco

31



stated in a recent eri banc opinion,
". . . payment today for services 
rendered long in the past deprives the 
eventual recipient of the value of the 
use of the money in the meantime, which 
use, particularly in an inflationary 
era, is valuable. A percentage 
adjustment to reflect the delay in 
receipt of payment therefore may be 
appropriate . . . .  23/

[Footnote 23] " On the other hand, 
if the 'lodestar' itself is based on 
present hourly rates, rather than the 
lesser rates applicable to the time 
period in which the services were 
rendered, the harm resulting from delay 
in payment may be largely reduced or eliminated." Copeland v. Marshall, 641 
F.2d 880, 893 and n. 23 (D.C. Cir. 1980) 
(en banc) (emphasis in original).

A recent wide-ranging study of counsel fee awards in 
class actions, commissioned by the Federal Judicial Center, 
has confirmed the principle expressed in Northcross and 
other decisions that the effect of inflation ordinarily 
should be taken into account in awarding fees. A. Miller, 
Attorneys' Fees in Class Actions, at 362-364 (Federal Judicial 
Center 1980). This study includes a thorough review of the 
case law, id. at 363 nn. 30-31, and it concludes in pertinent 
part that:

16/ Continued
Automatic Transmissions, Inc, v. Tayloe, 82 F.R.D. 405 (E.D.Pa. 
1979) (similar); Knutson v. Daily Review, Inc., 479 F. Supp. 
1263, 1277 (N.D. Cal. 1979) (similar); Lockheed Minority 
Solidarity Coalition v. Lockheed Missiles, 406 F. Supp.
828, 834-35 (N.D. Cal. 1976); In re Ampicillin Antitrust 
Litigation, 81 F.R.D. 395, 402 (D.D.C. 1978) (inflation 
accounted for by application of current rates); McPherson v. 
School Dist. No. 186, 465 F. Supp. 749, 760 (S.D. 111. 1978) 
(school desegregation case; same).

32



"Fee awards should include some 
compensation for the costs of delay in 
receiving the fee award. This can be 
accomplished through application of 
discounted current rates or through use 
of historic rates adjusted for,7/ 
inflation." Id. at 362-363. — •

The applicants in the present case, no less than the 
attorneys for the plaintiffs in Northcross and the other 
cases cited above, are entitled to recover the fair market 
value of the services they performed in vindicating federally- 
protected rights. As these courts have recognized, and as 
the recent Federal Judicial Center study has confirmed, 
plaintiffs' counsel will not recover the fair market value 
of their services unless the award is adjusted for inflation. 
The applicants submit that the most appropriate way to adjust 
for the effects of the inflation is to do so directly by 
awarding the value of the services at the time they were 
performed and adjusting the award for inflation according to 
the Consumer Price Index. See App. 279-81. Basing the award 
on the value of attorney services at the time of the award

17/ The study further found that, "[i]n addition to adjusting 
the fee for inflation to take into account the declining 
value of the dollar, many courts also order an award of 
interest to pay for the loss of the use of those dollars 
between the time the work is performed and the time the fee 
is finally paid. Such orders are within the proper scope of 
the court's discretion and are not inappropriate, especially 
in the longer cases." Attorneys' Fees in Class Actions, at 
364. (The applicants did not request an award of pre-judgment 
interest in the present case.) The study also concluded that, if 
current rates are used, they should be discounted to take into 
account the lower costs incurred at historic rates as well as 
any increase in rates attributable to professional growth rather 
than inflation. Id. at 363-364.

33



may be a "rough and ready" way of accomplishing the same 
objective. See Addendum A. But the award must be adjusted 
for the effects of inflation, and the adamant refusal of the 
District Court to do so in the present case was clear error.

III.
The District Court Erred in Refusing to Award Attorneys' 
Fees for the Services Performed by NAACP Legal Defense 
Fund Attorneys on the Basis of the Reasonable Value of 
Those Services, Taking into Account the Fund's 
Institutional Reputation and Expertise, the Background 
and Experience of Its Attorneys, and the Customary 
Rates Charged by Comparable Attorneys and Law Firms for 
Similar Services.

The NAACP Legal Defense Fund is a "nonprofit organization 
dedicated to the vindication of the legal rights of blacks
and other citizens." Gulf Oil Co. v. Bernard, ____U.S. _____,
101 S. Ct. 2193, 2199 n. 11 (1981). The Legal Defense Fund, 
like the NAACP by which it was founded, has played a unique 
role in the struggle for racial equality in this Nation.
That role, particularly in sponsoring and developing civil 
rights litigation, has long been recognized by the courts.
The Legal Defense Fund has been cited by the Supreme Court 
as having a "corporate reputation for expertness in presenting 
and arguing the difficult questions of law that frequently 
arise in civil rights litigation." NAACP v. Button, 371 U.S.
415, 422 (1963). Precisely because the Fund has long been 
involved in civil rights cases, it has acquired an institutional 
expertise that makes the time of its attorneys necessarily more

34



valuable than the time of most private attorneys providing
representation in such cases. This point was specifically 
recognized by this Court in Northcross. As it stated:

"The services provided by the Legal Defense Fund 
clearly had to be provided by someone, and in fact, the 
attorneys' intimate familiarity with the issues involved 
in desegregation litigation undoubtedly meant that their 
time was far more productive in this area than would be 
that of a local attorney with less expertise."
Northcross at 637.
The Legal Defense Fund has the same "intimate familiarity" 

with the issues involved in employment discrimination litigation, 
and as set forth in the affidavit of Mr. Allison (App. 361), the 
local attorneys believed that the Fund's participation in 
the present litigation was absolutely necessary to its successful 
prosecution. The uncontroverted affidavits of Mr. Allison 
(App. 360-62) and Mr. Patterson (App. 364-69) set forth in detail 
the crucial role played by the Legal Defense Fund in the 
litigation of this case. After entering the case in 1976, 
the LDF attorneys, Mr. Patterson and Ms. Greenberg, assumed 
the role of lead counsel with respect to several major aspects 
of the litigation. Mr. Patterson was responsible for overall 
strategy; he generally determined, in consultation with the 
other attorneys, what testimony and documentary evidence 
would be needed at trial; he advised the Louisville attorneys 
on numerous questions of law; he functioned as lead counsel 
in conducting legal research and writing motions and legal 
memoranda; he was in change of the research and writing of 
the plaintiffs' post-trial briefs. (App. 365-66). Until her 
departure from the Fund in June, 1977, Ms. Greenberg served

35



as lead counsel with respect to the issues of testing and 
test validation. Thereafter Mr. Patterson assumed full respon­
sibility as lead counsel on these issues. (App. 366). As Mr. 
Allison stated in his affidavit, his office had never before 
handled such a complex class action. The experience and 
expertise of the Legal Defense Fund attorneys in the special­
ized field of employment discrimination law "were invaluable 
and caused hundreds of fewer hours to be spent in trial 
preparation." (App. 361). Moreover, "[b]ecause of LDF's 
experience in these types of cases and familiarity with the 
law in this area, less time was actually spent replying 
to legal challenges by the defendants and [in] the writing of 
briefs." (App. 361).

The rates which the District Court found to be the 
prevailing hourly rates for attorneys practicing in the City 
of Louisville seriously undervalue the services provided by 
the Legal Defense Fund staff attorneys. By limiting the 
award to prevailing hourly rates for attorneys engaged in 
private practice in Louisville, the District Court completely 
ignored the fact that the Legal Defense Fund staff attorneys 
were not conventional private practititioners, but staff 
attorneys of an organization that has a "corporate reputation 
for expertness in presenting and arguing the difficult questions 
of law that frequently arise in civil rights litigation."
NAACP v. Button, supra. In the present case, it was not 
merely the services of the staff attorneys that were available

36



to the plaintiffs, but also the institutional resources of 
the Legal Defense Fund.

As staff attorneys of the Legal Defense Fund, Mr. Patterson
and Ms. Greenberg received training and experience in litigating
civil rights cases that simply could not be available to lawyers
who were engaged in private practice. Their uncontroverted

18/ 19/
affidavits establish that Mr. Patterson and Ms. Greenberg 
are both highly qualified and experienced specialists in litigat­
ing employment discrimination cases. Moreover, the institu­
tional expertise and experience of the Legal Defense Fund, 
derived from being in the forefront of civil rights litigation in 
this Nation for over four decades, came with the staff attorneys 
assigned to this case, and those attorneys drew on this institu-

18/ Since his graduation with honors from Columbia Law 
School in 1972, Mr. Patterson has continuously specialized 
in the field of employment discrimination law. He taught a 
clinical course in fair employment law at the University of 
Wisconsin Law School. He has lectured at conferences and 
training programs on employment discrimination litigation 
and related topics. Both before and since joining the staff 
of the Legal Defense Fund in 1976, he has had major or 
principal responsibility for the trial and appellate litiga­
tion of many employment discrimination class actions. (App.
70-74).
19/ Ms. Greenberg graduated from Columbia Law School in 
1957. While on the staff of the Legal Defense Fund from 1972 to 
1977, she specialized in employment discrimination litigation 
and was involved in at least 30 employment discrimination 
class actions at the trial and appellate levels. As a lecturer 
at Columbia Law School, she conducted a clinical seminar in 
public interest litigation. She has also lectured at a number of 
other law schools, conferences, and courses on such topics as 
employment testing, affirmative action, discovery techniques, 
class actions and legal ethics. She is a past or present member 
of a number of bar association committees and other organizations 
specializing in civil rights and equal employment opportunity law. 
(App. 171-74).

37



20/
tional expertise and experience throughout the litigation.
Since this is so, the fair market value of the services furnished 
by staff attorneys of the Legal Defense Fund necessarily must 
include the value of the institutional expertise and resources of 
the Fund itself.

In rejecting this principle, the District Court stated:
"We see nothing in Northcross which requires that attorneys 
of a particular organization be accorded fees higher than 
their other qualifications would suggest to be warranted, on 
the assumption that their employment by that organization 
presumptively makes them superior to other able attorneys 
who specialize in the same area of law." (App. 433). However, 
as Mr. Allison's affidavit made clear, he and the plaintiffs' 
other Louisville attorneys were not "specialists" in the same 
sense as the Legal Defense Fund attorneys. Indeed, his 
office "had never before handled a complex class action law 
suit of this nature." (App. 361).

As this Court specifically stated in Northcross, "the [Legal 
Defense Fund] attorneys' intimate familiarity with the issues 
involved in desegregation litigation undoubtedly meant that their 
time was far more productive in this area than would be that of a 
local attorney with less expertise." Northcross at 637. The 
greater expertise of the Legal Defense Fund staff attorneys comes 
not only from their personal qualifications and experience

20/ Other Legal Defense Fund attorneys reviewed documents 
and conferred with the staff attorneys assigned to the case, 
but no compensation was claimed for their services. (App. 72-73, 
366-67) .

38



and their internal specialization at the Fund, but also from
the institutional expertise of the Fund itself and from the
institutional resources of the Fund that are made available
in any litigation in which the Fund participates. Lawyers
in private practice do not generally specialize in civil rights

21/law, but even if they did, they could not acquire the 
institutional expertise of the Legal Defense Fund, which has 
resulted from its being for so long in the forefront of the 
struggle for racial equality in this Nation. The attorneys' fees 
award goes to the Legal Defense Fund, not to the individual 
attorneys, and the award therefore must be based on the reason­
able value of the total services furnished by the Legal Defense 
Fund, including the Fund's institutional expertise and resources.

Totally apart from the fact that the District Court 
erred in failing to take into account the specialized qualifications 
of the Legal Defense Fund attorneys in this case, their 
leading role in the litigation, and the Fund's institutional 
expertise and resources in determining the fair market value 
of the services they furnished, the District Court further 
erred in looking to a "local market" rather than to the 
"national market" in determining the fair market value of

21/ This is in large part because prior to the advent of 
the federal civil rights attorneys' fees statutes, compensa­
tion generally was not available to lawyers who represented victims of civil rights violations. "The entire purpose of 
the statutes was to ensure that the representation of 
important national concerns would not depend upon the 
charitable instincts of a few generous attorneys." Northcross 
at 638.

39



those services. The relevant "market" for purposes of determin­
ing the fair market value of services provided by a particular 
attorney or law firm necessarily must be the "market" in which 
the particular attorney or law firm practices. If a New York law 
firm, specializing in antitrust matters and operating in the 
"national market," successfully represented a plaintiff in 
an antitrust action in Louisville, it would be compensated 
on the basis of the rates it normally charges, not on the basis 
of prevailing Louisville rates for other kinds of litigation.
For the same reason, the Legal Defense Fund, which operates in 
the "national market" to vindicate federally-protected civil 
rights, should be compensated according to the fair market value 
of its services in the national market in which it operates, not 
on the basis of prevailing Louisville rates. As this Court noted 
in Northcross, Congress determined that the amount of fees to be 
awarded under the Fees Act should be governed by the same stan­
dards which prevail in other types of equally complex Federal 
litigation, such as antitrust cases," and should not be reduced 
because the rights involved may be nonpecuniary in nature. 611 
F.2d at 633, quoting S. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 
(1976). See also H. R. Rep. No. 94-1558, 94th Cong., 2d Sess. 9 
(1976) ("civil rights plaintiffs should not be singled out for 
different and less favorable treatment"). Since national law 
firms which successfully represent plaintiffs in antitrust and 
securities actions are not required to "discount" the value of 
their services in accordance with prevailing local rates, the
functional equivalents of such national law firms, such as the

- 40 -



Legal Defense Fund, which successfully represent plaintiffs in 
civil rights actions on a nationwide basis, likewise should 
not be required to "discount" the value of their services, 
and should be entitled to recover the fair market value of their 
services based on the rates that prevail in the "national market" 
in which they operate.

Plaintiffs in civil rights cases, like plaintiffs in antitrust 
cases, cannot be limited to their local area in obtaining legal 
representation, but are entitled to be represented by the func­
tional equivalent of national law firms with special expertise in 
such cases. In enacting the fee award statutes, Congress intended 
to give the victims of civil rights violations the best possible 
representation they could obtain. In order to effectuate the intent 
of Congress, the attorneys and organizations that provide such 
representation must be compensated at rates which take into account 
the nature and location of their practice, their reputation and 
expertise, and the prevailing rates charged by comparable firms for 
comparable services.

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

". . . if the schedule for the community where 
the litigation takes place is chosen, some attorneys may be compensated 
at rates much higher or lower than they 
normally would command. This system 
might contribute to inequities in the 
availability of high quality legal 
services. For example, an experienced

41



and successful attorney from a major 
urban area might be unwilling to take a 
case in a rural community if he or she knew 
the rate of compensation would be much 
lower than what could be earned at 
home . . . A. Miller, Attorneys'
Fees in Class Actions, at 365-366 
(Federal Judicial Center 1980) (footnote 
omitted).

This is precisely what happened in the present case: the
services of specialized staff attorneys from the Legal Defense
Fund's New York City office were compensated at far lower
rates than the Fund could obtain for the services of those
attorneys in New York and many other parts of the country. (App.
367, 371-426, 428-30). If the Legal Defense Fund and other civil
rights legal organizations are not permitted to recover the fair
market value of their services, they will be less able to continue
providing effective legal assistance to vindicate federally
protected rights. The purposes of the federal fee award statutes
are not served by reducing counsel fee awards and thereby limiting
the activities of such organizations. To the contrary, those
purposes are advanced by the involvement of the Legal Defense
Fund and similar organizations in as many cases as possible. The
low rates awarded to the Fund in the present case therefore

22/frustrate the intent of Congress. See also n.25, infra.

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

42



The Federal Judicial Center study concluded that the 
problem of geographic variations in rates could be solved, to 
some extent,

. .by interpreting the concept of 
community standard as including both 
geography and the substantive law 
character of the case. Rates within 
areas of specialization of legal 
practice do not vary as much among 
regions of the country as do fee rates 
in general. Focusing on the rates 
within the specialization reduces 
the problem of varying community rates.
. . ." Attorneys' Fees in Class Actions, 
supra, at 366. See also, _icJ. at 9, 364.

The study also concluded that
"[i]n cases involving the larger, more 
active class action plaintiffs' firms, 
the courts should be aware that there 
often are prior judicial opinions in 
which reasonable hourly rates were set 
for particular attorneys in that 
organization. Although these rates may 
not be determinative, they certainly 
would be relevant in making a fee award.
. . . [T]he petitioning attorneys 
should be requested to cite any cases 
ruling on fee matters involving them, 
and when appropriate, furnish documents 
from those cases." Id. at 362.

In the present case, the applicants supplied the District 
Court with copies of recent decisions from various parts of 
the country awarding base rates of $125 to $135 an hour for 
services performed by Legal Defense Fund staff attorneys and 
other specialists with comparable skill, ability and expertise 
in civil rights cases. (App. 367, 371-426). They also submitted 
the affidavit of former District Judge Marvin E. Frankel, 
establishing that current (1981) base rates of $120 an hour for 
Mr. Patterson and $160 an hour for Ms. Greenberg were reasonable

43



and comparable to the rates charged by attorneys of comparable 
experience and ability in other first-class New York law firms.

23/(App. 429-30). They further demonstrated that these rates
were conservative in comparison to the rates typically awarded in

24/
securities and antitrust cases. None of this evidence 
was challenged by the defendants, but all of it was ignored 
by the District Court, which set Mr. Patterson's rate at $50

23/ Judge Frankel served for 13 years as a United States 
District Judge for the Southern District of New York and is 
now a member and managing partner of the New York City law 
firm of Proskauer Rose Goetz & Mendelsohn. Judge Frankel's 
affidavit demonstrates that, for services performed in complex 
federal litigation where payment of counsel fees is not contingent 
upon success in the case, the current (1981) rates charged by New 
York City law firms range from $70 to $275 (or more) per hour.
His affidavit also establishes that, based on the facts of record 
concerning the experience and ability of the particular Legal 
Defense Fund attorneys in this case, current base rates of $160 
per hour for Ms. Greenberg and $120 per hour for Mr. Patterson are 
reasonable and comparable to the rates charged by attorneys of 
comparable experience and ability in first-class New York firms.
It is appropriate to award fees to the Legal Defense Fund on the 
basis of New York rates. See Jones v. Armstrong Cork Co., 630 F.2d 
324, 325 (5th Cir. 1980) ("[ajlthough involved in the same [Georgia] 
case, the fees awarded to lawyers from the LDF's New York City 
office would not necessarily be reasonable fees for . . .  a Macon, 
Georgia private practitioner").
24/ As this Court noted in Northcross, Congress intended that fee 
awards in civil rights cases would be governed "by the same 
standards which prevail in other types of equally complex Federal 
litigation, such as antitrust cases." 611 F.2d at 633, quoting S. 
Rep. No. 94-1011, 94th Cong., 2d Sess. 6 (1976). A recent 
survey of fee awards in antitrust and securities cases shows that, 
in awards made from approximately 1974 through early 1980 for 
which all necessary information is available, the average base 
rate (with no adjustment for inflation) was approximately $92.50 
per hour, and the average actual rate (with no adjustment for 
inflation) was approximately $165 per hour. When adjusted for 
inflation to February 1980, the average actual hourly rate was 
over $200 per hour. Attorney Fee Awards in Antitrust and Securi­
ties Class Actions, 6 Class Action Reports 82, 121 (1980). This 
survey was reproduced in its entirety and filed in the District 
Court. It appears in the record as an appendix to the Applicants' 
Reply to Defendants' Supplemental Response. (App. 273).

44-



an hour and Ms. Greenberg's rate at $75 an hour. The Court
thereby abused its discretion and erred as a matter of law in
denying the Legal Defense Fund the fair market value of its
services, which the Fund was entitled to recover under North- 25/
cross.

25/ In addition to setting unreasonably low rates for LDF 
attorneys and thus depriving the Fund of the fair market value of 
its services, the District Court made a number of other rulings 
which are so disadvantageous to the Legal Defense Fund that, 
taken together, they can be read to convey the message that 
the Fund is not welcome in the Western District of Kentucky.
(1) In establishing its three categories of attorney experience 
and corresponding hourly rates, the Court set 7 years as the 
dividing line between the "intermediate" rate and the "fully 
experienced" rate. This coincides precisely with the 7 years of 
experience of Mr. Patterson, the principal LDF attorney in this 
case, as of 1979, the last year for which fees were requested.
(App. 74, 333-34). (2) After establishing these categories, the 
Court applied them in an inconsistent manner to the detriment of 
the Legal Defense Fund. Mr. Soreff, a 1976 law school graduate 
practicing with a two-person Louisville firm which "had never 
before handled a complex class action lawsuit of this nature"
(App. 361), was awarded fees at a rate of $60 an hour for services 
performed in 1978 and 1979, when he had only two to three years 
of experience. The Legal Defense Fund, on the other hand, was 
awarded fees for the services of Mr. Patterson —  a 1972 law 
school graduate and a specialist in employment litigation who 
played a lead role in the prosecution of this case —  at a rate of 
only $50 an hour when he had six to seven years of experience.
(App. 334). (3) The Court, without any evidentiary basis, cut
the documented hours spent by plaintiffs' counsel on their post­
trial brief and reply brief by 25% and 50% respectively. (App. 
335). LDF attorneys did the bulk of the work on these briefs.
(App. 298-99). (4) The applicants requested compensation for
documented time spent in travel between New York and Louisville.
The defendants acknowledged that this time should be compensated 
at one-half the normal hourly rate. (App. 222). The Court, 
however, refused to award any fees at all for "travel time con­
sumed in airplane flights between Louisville and New York . . . ." 
(App. 336). Necessary travel by LDF attorneys accounted for 
virtually all of this time. (App. 222). (5) In its judgment
entered on Feb. 12, 1981, the Court directed that interest on its 
award of fees, costs and expenses "shall be awarded from the 
entry of a final judgment." (App. 340). However, the final 
judgment entered on March 17, 1981, provided that "the award of 
attorneys' fees shall bear interest at the rate of 8% per annum 
from the date of this judgment until paid" (App. 346-47) (emphasis

45



IV.

The District Court Erred In Reducing, Without Any 
Evidentiary Basis, the Documented Hours Spent in 
the Preparation of the Plaintiffs' Post-Trial 
Brief, Proposed Findings of Fact and Conclusions 
of Law, and Post-Trial Reply Brief, on the Ground 
That, in the Opinion of the District Court, the 
Amount of Time Spent in Such Preparation Was 
"Excessive".
In addition to applying an across-the-board reduction

26/
of 5 percent for duplication of services, the District 
Court specifically reduced the documented hours spent in prepara­
tion of the plaintiffs' post-trial brief (including their proposed 
findings of fact and conclusions of law) by 25 percent and 
the documented hours spent in preparation of their post-trial 
reply brief by 50 percent. The District Court took this action 
on the ground that, in its opinion, the amount of time spent in 
such preparation was "excessive."

In Northcross, this Court specifically stated that "[hjours 
may be cut for duplication, padding or frivolous claims." 611 
F.2d at 636. It nowhere stated that documented hours spent in 
good-faith representation of the victims of racial discrimination

25/ Continued
added), and the City accordingly has refused to pay any interest 
on the award of costs and expenses. All but a small portion of 
these costs and expenses are payable solely to the Legal Defense 
Fund. (App. 95-105).

In all of these respects, the District Court erred in 
refusing to compensate the Legal Defense Fund for the reasonable 
value of its sevices. As this Court held in Northcross, such 
arbitrary action against the Legal Defense Fund constitutes an 
abuse of discretion. 611 F.2d at 637.
26/ The applicants recognize that this small percentage reduc­
tion is authorized by Northcross, 611 F.2d at 636-637, and therefore have not challenged it on appeal.

46



could be reduced because, in the unsupported view of the District 
Court, the amount of time spent in such preparation was "exces­
sive." Indeed, permitting such action by the District Court would 
be directly contrary to this Court's decision in Northcross to 
"eliminate arbitrary awards based solely on a judge's predisposi­
tions or instincts." Ld. at 643. As the Court stated in North- 
cross , "[t]hat which is arbitrary or conclusory is not reason­
able, and is not fair to either of the parties involved." Id. at 
636.

Moreover, allowing such huge arbitrary reductions in docu­
mented hours would undermine the purpose of the federal fee award 
statutes. Attorneys for prevailing plaintiffs in civil rights 
cases "should be paid, 'as is traditional with attorneys compen­
sated by a fee-paying client, for all time reasonably expended on 
a matter.'" Northcross at 633, quoting S. Rep. No. 94-1011, 94th 
Cong., 2d Sess. 6 (1976). After a case has been decided and the 
plaintiffs have prevailed, it is easy in retrospect to say that 
plaintiffs' counsel spent "too much time" on a particular aspect 
of the case. But the purpose of the fee award statutes dictates 
that counsel for the plaintiffs should be encouraged to put forth 
all the effort that they think is necessary to vindicate the 
federally protected rights of their clients. They should not be 
encouraged to err on the side of "not doing enough" for fear that 
in retrospect the District Court will find that they "did too 
much." They will be adequately deterred from doing "unnecessary" 
work by the knowledge that they will receive no compensation 
whatsoever unless the plaintiffs prevail.

47



By denying recovery for documented hours spent in the 
good faith representation of the plaintiffs in the present 
case, the District Court has said, in effect, that the plaintiffs' 
attorneys "didn't have to do as much as they did in order 
to prevail." Let us assume in retrospect that the District 
Judge is correct. But the plaintiffs' attorneys did do 
that much, and the plaintiffs did prevail. Where the plaintiffs 
have prevailed, and where the attorneys for the plaintiffs 
have acted in good faith in the representation of their clients, 
it cannot, consistent with the purpose of the fee award statutes, 
lie in the mouth of the constitutional or statutory wrongdoer to 
say that the attorneys expended "too much time" in vindicating 
those rights. If there is a risk of "excessiveness" in the 
vindication of federally protected rights, that risk should 
be borne by the wrongdoer, not by the attorneys who acted to 
vindicate those rights and, ultimately, by the victims of 
the civil rights violation.

The "message" of the District Court to plaintiffs' counsel in 
civil rights cases is all too clear: "Take it easy, don't spend 
all the time that you believe to be necessary on the case. Make 
sure that in retrospect the Court will not find that you spent 
'too much time,' since even if the plaintiffs prevail, you won't 
be compensated for the 'excessive' time." Congress, it is submit­
ted, was trying to send exactly the opposite "message" by the 
enactment of the federal fee award statutes.

Even if Northcross could be read to authorize such a 
significant reduction of documented hours for "excessiveness,"

48



at a minimum the District Court would be required to hold an
evidentiary hearing on the question in the present case. As
the District Court recognized, the City "filed a lengthy and
exhaustive brief, findings of fact and conclusion of law which
required, in turn, a somewhat lengthy reply brief on the part of

27/
plaintiffs' counsel." (App. 335). The City did more than 
that. After receiving the plaintiffs' post-trial brief, it 
determined that it was necessary to retain a Washington, D.C., law 
firm to represent it at this crucial stage of the case. The 
"excessiveness" of the time that plaintiffs' counsel spent on 
their post-trial briefs must necessarily be determined in relation 
to the amount of time that counsel for the City spent on the same 
aspect of the case. The record indicates that, in preparing the 
City's post-trial brief and proposed findings of fact and conclu­
sions of law, the City's Washington firm spent more than twice as 
many hours as the combined total of all hours spent by plaintffs' 
counsel in preparing not only the plaintiffs' post-trial brief 
and proposed findings of fact and conclusions of law, but their 
reply brief as well! (App. 362). This evidence fully confirms 
Judge Frankel's opinion as to the high quality of the plaintiffs' 
briefs, as well as his view that the experience, skill, ability 
and expertise of the Legal Defense Fund lawyers enabled them 
to prepare these briefs in less time than most attorneys would be 
required to spend. (App. 430). Before concluding that the 
amount of time spent by the applicants was "excessive," on the

27/ The intervening defendants also filed a lengthy brief and 
proposed findings of fact and conclusions of law to which plain­
tiffs' counsel were required to respond.

49



facts of this case the District Court was required at a minimum 
to hold an evidentiary hearing on the question.

The applicants in the present case have vigorously and 
effectively represented their clients, and that representation 
has resulted in the vindication of federally protected rights.
In accordance with the guidance provided by this Court in North- 
cross , they engaged in "vigorous and innovative lawyering in a 
changing area of the law," and they took "the most advantageous 
position on thier clients' behalf that [was] possible in good 
faith." 611 F.2d at 636. The applicants expended the amount of 
time that, in their good-faith professional judgment, they thought 
was necessary to the successful prosecution of the case. They did 
so in the full realization that they would receive no compensation 
for any time unless the plaintiffs ultimately prevailed. In 
making substantial arbitrary cuts in the documented hours they 
spent in preparing the plaintiffs' post-trial brief and reply 
brief, the District Court abused its discretion and erred as a 
matter of law.

CONCLUSION

For the reasons stated herein, the judgment of the 
District Court is erroneous and must be reversed, and the 
case must be remanded for the entry of a proper award.

50



Respectfully submitted,

A?
ROBERT A. SEDLER
Wayne State University Law School 
Detroit, Michigan 48202 
(313) 577-3968
Attorney for Applicants-Appellants

WILLIAM H. ALLISON, JR. 
PAUL SOREFF 
3208 West Broadway 
Louisville, Kentucky 40211 
(502) 776-1740

JUANITA LOGAN CHRISTIAN 
Suite 490, Hart Block Building 
730 West Main Street 
Louisville, Kentucky 40202 
(502) 587-8091

JACK GREENBERG PATRICK O. PATTERSON 
10 Columbus Circle, Suite 2030 
New York, New York 10019 
(212) 586-8397

August 1981.
Applicants and Attorneys for 
Plaintiffs-Appellants



ADDENDUM A

Summary of Rates Requested and Awarded

Rates Requested by Applicants 
for Office Services

Attorney 
and Year

Year
Work

★ /Alternative A— Alternative B— • Rates Awarded 
by the 
District 
Court

S

of Admission 
to the Bar

Per­
formed Historical

Rate
$

CPI
Infla­
tion
Factor

Adjusted
Rate

S

Current 
(1981) 
Rate 

S

W. Allison 1974 75 1.738 130.35 90 50
(1969) 1975 75 1.592 119.40 90 50

1976 85 1.505 127.93 90 50
1977 35 1.413 120.11 90 65
1978 85 1.313 111.61 90 65
1979 35 1.179 100.22 90 55

P. Soreff 1976 50 1.505 75.25 80 40
(1976) 1977 50 1.413 70.65 30 40

1978 65 1.313 85.35 80 50
1979- 65 1.179 76.64 80 60

J. Christian 1977 50 1.413 70.65 75 40
(1977) 1978 50 1.313 65.65 75 40

1979 65 1.179 76.64 75 40

H. Hinton 1974 75. 1.738 130.35 90 50
(1971) 1975 75 1.592 119.40 90 50

F. Cowden 1977 50 1.413 70.65 30 40
(1975)

K. Knaplund 1978 50 1.313 65.65 75 40
(1977) 1979 50 1.179 58.95 75 40

LDF
Staff
Attorneys
P. Patterson 1976 85 1.505 127.93 120 50
(1972) 1977 35 1.413 120.11 120 50

1978 85 1.313 111.61 120 50
1979 85 1.179 100.22 120 50

D. Greenberg
(1957)

1977 100 1.413 141.30 160 75

*/ These rates were requested in the original application for fees. (App. 59).- 
They were adjusted in accordance with the consumer price index to account for 
inflation up to November 1980. (App. 279-81, 322-23).
*»/ After the District Court had refused to adjust the historical rates to 
take inflation into account, the applicants filed a motion to alter or amend 
the judgment, in which they requested that fees be awarded on the basis of 
these current rates. (App. 34-8, 352-54).



ADDENDUM B

Statutes Involved

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

In any action or proceeding to enforce a provision 
of sections 1981, 1982, 1983, 1985, and 1986 of this 
title, ... the court, in its discretion, may allow the 
prevailing party, other than the United States, a 
reasonable attorney's fee as part of the costs.

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

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



CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing brief
for plaintiffs-appellants-cross-appellees and one copy of the
joint appendix were served this date by depositing the same in
the United States mail, addressed as follows:

Winston E. King, Esq.Assistant Director of Law 
Room 200 City Hall 
601 West Jefferson Street 
Louisville, Kentucky 40202

Dated: August 31, 1981.

PATRICK 0. PATTERSON 
Attorney for Plaintiffs- 
AppeHants-Cross-Appellees