Blum v. Stenson Brief for the NAACP Legal Defense and Educational Fund et al. Amici Curiae, in Support of Respondent

    No. 81-1374

In The

( ta rt of th? InttTii
October Term, 1983

Barbara Blum,

v.
Ellen Stenson,

Petitioner,

Respondent.
On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR THE
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 

INC., LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, PUERTO RICAN LEGAL DEFENSE AND 

EDUCATION FUND, INC., MEXICAN AMERICAN 
LEGAL DEFENSE AND EDUCATIONAL FUND, 

AMERICAN CIVIL LIBERTIES UNION,
AMICI CURIAE, IN SUPPORT OF RESPONDENT

E. Richard Larson *
Burt Neuborne 
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800
J ack J ohn Olivero 
Kenneth Kimerling 
Puerto Rican Legal Defense and 

Education Fund, Inc.
95 Madison Avenue 
New York, New York 10016 
(212) 532-8470
J oaquin G. Avila 
Morris J. Baller 
Mexican American Legal

Defense and Educational Fund 
28 Geary Street, Suite 300 
San Francisco, California 94108 
(415) 981-5800

Attorneys for

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen Ralston 
Steven L. Winter 
NAACP Legal Defense and 

Educational Fund, Inc.
10 Columbus Circle, Suite 2030 
New York, New York 10019 
(212) 586-8397
Fred N. F ishman 
Robert H. Kapp 

Co-Chairmen 
Norman Redlich 

Trustee
William L. Robinson 
Norman J. Chachkin 
Lawyers’ Committee for Civil 

Rights Under Law 
733 15th Street, N.W., Suite 520 
Washington, D.C. 20005 
(202) 628-6700

Amici Curiae

* Counsel of Record

W i l s o n  - E p e s  P r i n t i n g  C o . ,  In c , - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



TABLE OF CONTENTS
Page

Table of Authorities  ................... ......... -....................  ii

Interest of Amici............................ ........-....-......... - ....  1

Summary of Argument......................... ............... -......—- 3

ARGUMENT........................... -............ -..........................  4

I. Congress Intended Trial Courts to Award
Market-Based Fees Under the 1976 Act to Pre­
vailing Plaintiffs Represented by Non-Profit 
Civil Rights Organizations..........—----- ----------  5
A. The Legislative History of the 1976 Act 

Thoroughly Demonstrates Congress’ Intent
to Authorize Market-Based Fee Awards......- 6

B. Subsequent Congresses Have Ratified the 
Interpretation of the 1976 Act Which Was 
Applied by the District Court in this Case.... 16

II. The Standards for Fee Awards Proposed by the
State Would Be Wholly Impracticable of Ap­
plication and Are Contrary to the Congressional 
Purpose in Enacting the 1976 A ct............. ........  18
A. A Cost-Based Approach to Fee Computation

Would Involve Civil Rights Organizations 
in Lengthy and Necessarily Complex Pro­
ceedings to Determine Fees .............-...........  19

B. The Continued Application of Market-Based 
Fees to Civil Rights Organizations Satisfies 
Congress’ Express Purpose of Promoting 
Enforcement of Civil and Constitutional
Rights ........... ................... - .... - - ......... -........  24

Conclusion ............... ..... .........  ------.... -..........................— 2^
Appendix A—Cases on Lodestar Fee Computation ...... la

Appendix B—Cases Making No Reduction in Market
Fees For Civil Rights Organizations.....  4a



11

TABLE OF AUTHORITIES
Cases: Page

Alsager v. District Court of Polk County, 447 F.
Supp. 572 (S.D, Iowa 1977).......... ................... . I6n

Alyeska Pipeline Serv. Corp. v. Wilderness Soc.,
421 U.S. 240 (1975)....... ........... .......................... . 25n

ASPIRA of New York, Inc. v. Board of Educ. of
New York, 65 F.R.D. 541 (S.D.N.Y. 1975) ....... 6n

Bates v. Little Rock, 361 U.S. 516 (1960)........ . 21
Bob Jones University v. United States, 76 L. Ed.

2d 157 (1983) .............. .................. ............... . h;
Brown v. Board of Educ., 347 U.S. 483 (1954).... 26
Bradley v. School Bd. of Richmond, 416 U.S. 696

(1974) ---------- -------------------- ----- --------------6n, 25-26
Collins v. Hoke, 705 F.2d 959 (8th Cir. 1982)___  17n
Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.

1980) ----- ------- --- -------------------- ------_.17n, 23, 24, 27
Copeland v. Marshall, 594 F.2d 244 (D.C. Cir.

1978), rev’d en banc, 641 F.2d 880 (D.C. Cir.
1980) .................... ...... .......... ......... .....................  17n

Davis v. County of Los Angeles, 8 E.P.D. f  9444
(C.D. Cal. 1974)..... ............ .............. ......... ...9,10, 14, 15

Delta Air Lines v. August, 450 U.S. 346 (1981)..12n-13n 
Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980)...... 28n
Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.

1974) ............................. ......... ..... .......... ............  15
Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974)..7, 8, 14 
Farmington Dowel Products Co. v. Forster Mfg.

Co., 421 F.2d 61 (1st Cir. 1970)___________ 1 I5n
Gautreaux v. Chicago Housing Auth,, 690 F.2d 601

(7th Cir. 1982) _____ _____ ____ ___________ 16
Glover v. Johnson, 531 F. Supp. 1036 (E.D. Mich.

1982) ....... ................ .......... ......... ....... _____....... . I7n
Goldfarb v. Virginia State Bar, 421 U.S. 773

(1975) ................................................... .................  22
Grunin v. International House of Pancakes, 513

F.2d 114 (8th Cir. 1975) ..................... ...... ............  I5n
Hanrahan v. Hampton, 446 U.S. 754 (1980)___  13
Hensley v. Eckerhart, 76 L. Ed. 2d 40 (1983)___ passim
Hills v. Gautreaux, 425 U.S. 284 (1975)............... . 26



iii
TABLE OF AUTHORITIES—Continued

Page
Johnson v. Georgia Highway Express, 488 F.2d

714 (5th Cir. 1974)..... ................. .................... ..9, 11, 12
Johnson v. Railway Express Agency, 421 U.S. 454

(1975) ...................................... .......... ..................  26
Jones v. Diamond, 636 F. 2d 1364 (5th Cir. 1981),

cert, dismissed, 102 S. Ct. 27 (1982)...... ............ . 17n
Lindy Bros. Builders v. American Radiator & 

Standard Sanitary Corp., 540 F.2d 102 (3d Cir.
1976) ........ ........ .......... ................... ......................  23

Lindy Bros. Builders v. American Radiator & 
Standard Sanitary Corp., 487 F.2d 161 (3d Cir.
1973) ............ ............................................. ....... . 15, 23

Minority Employees at NASA v. Frosch, 694 F.2d
846 (D.C. Cir. 1982).................... .................... . 18n

NAACP v. Alabama, 357 U.S. 449 (1958).............. 21
Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400 (1968)... ..... ........ ............ ............................ 25
New York Gaslight Club v. Carey, 447 U.S. 54

(1980) ................ ...... ........... .................... ........... . 8
New York State Ass’n for Retarded Children v.

Carey, 711 F.2d 1136 (2d Cir. 1983) ............16n, 20, 21
Northcross v. Board of Educ. of Memphis, 611 F.2d 

624 (6th Cir. 1979), cert, denied, 447 U.S. 911
(1980)_______ ____ __________________ 17n, 18n, 25

O’Connor v. Donaldson, 422 U.S. 563 (1975)...... 26
Oldham v. Ehrlich, 617 F.2d 163 (8th Cir. 1980) ..16n, 17n,

28n
Pacific Coast Agricultural Export Ass’n v. Sunkist 

Growers, 526 F.2d 1196 (9th Cir. 1975), cert.
denied, 425 U.S. 959 (1976)................................. 15n

Page v. Preisser, 468 F. Supp. 399 (S.D. Iowa
1979) ........ ....................................... ........ .............  16n

Palmigiano v. Garrahy, 616 F.2d 598 (1st Cir.),
cert, denied, 449 U.S. 839 (1980) .......... ......... _17n, 28n

Parham v. Southwestern Bell Tel. Co., 433 F.2d 421
(8th Cir. 1976)........ ................................. ........ . 6n

Ramey v. Cincinnati Enquirer, 508 F.2d 1188 (6th
Cir. 1974), cert, denied, 422 U.S. 1048 (1975).... 15n

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983) .... 16n



IV

TABLE OF AUTHORITIES—Continued
Page

Reynolds v. Coomey, 567 F.2d 1166 (1st Cir.
1978) ........... ...................... ............... .......... ...... . 8

Shelton v. Tucker, 364 U.S. 479 (1960)....... ..........  21
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.

Cal. 1974)................... ........ .................. ............. 9,10, 15
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

66 F.R.D. 483 (W.D.N.C. 1975) ............ ......... 9,11,14
Tillman v. Wheaton-Haven Recreation Ass’n, 517

F.2d 1141 (4th Cir. 1975) ...................................  14,26
Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976).....7, 8, 14, 27
Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y. 1975),

aff’d, 538 F.2d 10 (2d Cir. 1976).......................  7, 8
Trustees v. Greenough, 105 U.S. 527 (1981)___  5
Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978).............................................  4

Statutes:
Civil Rights Attorneys’ Fees Awards Act of 1976,

42 U.S.C. § 1988, as amended ........... ............ .passim
Equal Access to Justice Act, 28 U.S.C. § 2412(d).. 21n
Equal Access to Justice Act, Pub. L. 96-481, § 206,

94 Stat. 2325 (1980).......................................... . 22n
42 U.S.C. § 1981 ..... ...... .............. ........................... . 26
42 U.S.C. § 1983 ..............................................    26

Legislative Materials:
H.R. Rep. No. 1418, 96th Cong., 2d Sess. (1980), 

reprinted in 1980 U.S. Code Cong. & Ad. News
4984 ................   21n-22n

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976), re­
printed in 1976 U.S. Code Cong. & Ad. News
5908-14 ............................................................   passim,

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976), 
reprinted in E. Larson, Federal Court Awards of
Attorney’s Fees 288-312 (1981)........................... passim

122 Cong. Rec. (1976) ...............................    passim

Other Authorities:
E. Larson, Federal Court Awards of Attorney’s

Fees (1981) ..........................................................  15n



In T he

Ihqirrmr Olmtrt of tfj? lUrntth M iipb
October Term, 1983

No. 81-1374

Barbara Bl u m ,
Petitioner, v. ’

E l len  Sten so n ,
______  Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Second Circuit

BRIEF FOR THE
NAA.CP LEGAL DEFENSE AND EDUCATIONAL FUND, 

INC., LAWYERS’' COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, PUERTO RICAN LEGAL DEFENSE AND 

EDUCATION FUND, INC', MEXICAN AMERICAN 
LEGAL DEFENSE! AND EDUCATIONAL FUND, 

AMERICAN CIVIL LIBERTIES UNION,
AMICI CURIAE, IN SUPPORT OF' RESPONDENT

INTEREST OF AMICI1

This brief is submitted on behalf of the NAACP Legal 
Defense and Educational Fund, Inc. (“LDF”), the Lawyers’ 
Committee for Civil Rights Under Law (“LCCRUL”), 
the Puerto Rican Legal Defense and Education Fund, 
Inc. (“PRLDEF”), the Mexican-American Legal Defense 
and Educational Fund (“MALDEF”), and the American 
Civil Liberties Union (“ACLU”) . amici curiae.

1 The parties have consented to the filing of this brief, and their 
letters of consent have been lodged with the Clerk of this Court 
under Rule 36.2 of the Rules of this Court.



2
Amici are non-profit, civil rights organizations which 

provide legal representation to persons seeking to vin­
dicate civil and constitutional rights. Amici litigate 
throughout the federal courts and frequently appear as 
counsel before this Court representing Blacks, Hispanics 
and other minorities in cases arising under our federal 
civil rights laws and under our Constitution. Amici 
provide this representation through their own staff attor­
neys and through cooperating private counsel, whose sub­
stantial litigation costs and expenses are often paid by 
amici. Both the quantity and the quality of the legal 
representation which can be provided by amici are di­
rectly affected by the amount of attorneys’ fees awarded 
in cases in which the parties whom they represent have 
prevailed.

Amici were involved in most of the civil rights cases 
approvingly cited in the House and Senate Reports ac­
companying the Civil Rights Attorney’s Fees Awards 
Act of 1976, 42 U.S.C. § 1988, as amended, including 
cases under other fee-shifting statutes in which the courts 
held that fee awards to plaintiffs represented by civil 
rights organizations should not be based on different 
standards than awards to plaintiffs represented by pri­
vately retained counsel. Amici also have been involved 
in more than a dozen cases in which the courts of ap­
peals have applied this principle.

As a result of the court decisions properly construing 
the Act and similar statutes to require that fee awards 
to prevailing parties be based upon market rates, amici 
have been able at least to maintain the level of legal 
services provided to individuals whose rights have been 
violated, despite sharply increased costs and the high rate 
of inflation. The cost-based approaches to fee computa­
tion advocated by the State would result in a severe cur­
tailment of the legal representation provided by and 
through amici.

Because we believe that the novel approaches to fee 
computation urged by the State are contrary to Congress’



3
intent and purpose as set forth in the legislative history 
of the 1976 Act, we submit this Brief Amici Curiae in 
support of Respondent.

SUMMARY OF ARGUMENT
1. All indicia of the legislative purpose underlying 

the 1976 Civil Rights Attorney’s Fees Awards Act com­
pel the conclusion that Congress intended market-based 
fee computation, using market-value hourly rates and in­
cluding upward and downward adjustments of the lode­
star, to be applied to prevailing parties represented by 
non-profit and civil rights organizations. Both the Sen­
ate and House Reports, as well as the floor statements 
of the Act’s supporters, show that non-profit and civil 
rights organizations are entitled to market fees and ap­
prove the results reached in earlier cases which barred 
any reduction of market-based fees for such organiza­
tions. These sources confirm that the “appropriate stand­
ards” were “correctly applied” in three illustrative cases 
which “did not produce windfalls” ; in those cases, the 
courts rejected fee reduction for non-profit organizations, 
applied market-value hourly rates, and made upward ad­
justments of the lodestars. The House and Senate Reports 
also state that fees are to be awarded under the Act 
according to “the same standards” which prevail in other 
types of equally complex federal litigation, such as anti­
trust cases, standards which require the application of 
market-value hourly rates and allow adjustments of the 
lodestar. This construction of the statute has been fol­
lowed overwhelmingly in the courts of appeals since the 
Act became effective and it has been ratified by subse­
quent Congresses.

2. Throughout its Brief, the State offers a variety 
of policy options for this Court to substitute in place 
of this settled and correct construction of the Act, de­
spite the fact that it is not the role of the federal courts 
to act as super-legislatures, particularly on matters on 
which Congress has already spoken. The State, quite



4
simply, has altogether lost sight of the fact that “policy 
questions appropriately resolved in Congress . . . are not 
subject to reexamination in the federal courts under the 
guise of judicial review,” Vermont Yankee Nuclear 
Power Corp. v. NRDC, 435 U.S. 519, 558 (1978) (em­
phasis in original).

Any reduction of market-based fee compensation for 
non-profit and civil rights organizations under the Act 
not only would contravene congressional intent, but it 
would also violate the express purpose of the Act: the 
encouragement and promotion of private enforcement of 
our fundamental civil and constitutional rights. The 
State’s cost-based policy options would subvert accom­
plishment of that purpose by forcing civil rights or­
ganizations into major litigation over fees, involving far- 
reaching inquiries of massive proportions. Continued use 
of market-based fee computation of awards to non-profit 
organizations, on the other hand, would fulfill Congress’ 
express purpose by facilitating representation of plain­
tiffs with civil rights and constitutional claims, as Con­
gress intended.

ARGUMENT
In the trial court, New York asserted none of the cost- 

based fee contentions which it subsequently raised in its 
Petition for Certiorari and which it has vigorously pur­
sued in its Brief.2 The State both failed to submit any

2 Although the Brief for Petitioner challenges the traditional 
standards of market-based fee compensation not just for non-profit 
and civil rights organizations, but also for private firms, the latter 
issue is not presented on the facts of this case and is not encom­
passed within the questions presented to- this Court, in the Statens 
Petition for Certiorari, at i. Accordingly, amici here address only 
the standards for fee awards to non-profit and civil rights organi­
zations.

Further, while the State advances two basic contentions (that 
the use of market rates to determine the “lodestar’’ figure for an 
award, see Hensley v. Eckerhart, 76 L. Ed. 2d 40, 50-51 (1983), 
is inappropriate where the prevailing plaintiff is represented by 
counsel employed by a non-profit organization; and that in such 
circumstances a modification, to the lodestar1 figure for contingency



5
affidavits or documentary evidence in opposition to Re­
spondent’s application and also affirmatively waived its 
right to present any evidence at the fee hearing. It thus 
acceded, in the trial court, to the district judge’s applica­
tion of well-established judicial standards for the deter­
mination of “reasonable” fee awards under the Civil 
Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. 
§ 1988 as amended [the “Act” or “1976 Act”] and other 
federal fee-shifting statutes. This Court should, there­
fore, affirm the judgment below since on the record be­
fore it the district court cannot be said to have abused 
its discretion. Trustees v. Greenough, 105 U.S. 527, 537 
(1881).

If the Court decides, notwithstanding these facts, to 
consider the merits of the State’s policy proposals, they 
must be rejected because they are wholly inconsistent 
with the congressional intent and purpose underlying the 
Act, as set forth primarily in S. Rep. No. 1011, 94th 
Cong., 2d Sess. (1976), reprinted in 1976 U.S. Code 
Cong. & Ad. News 5908-14; and in H.R. Rep. No. 
1558, 94th Cong., 2d Sess. (1976), reprinted in Fj. Lar­
son, Federal Court Awards of Attorney's Fees 288-312 
(1981) [hereinafter referred to, respectively, as the 
“Senate Report” and the “House Report”].

I. Congress Intended Trial Courts to Award Market- 
Based Fees Under the 1976 Act to Prevailing Plaintiffs 
Represented by Non-Profit Civil Rights Organizations

Nothing in the language of the 1976 Act provides for 
the application of different standards in awarding fees 
to lawyers employed by non-profit organizations rather 
than private law firms. Nothing in the legislative history 
of the Act supports an argument that different rules

risks or quality is also inappropriate), this Brief addresses prin­
cipally the first contention. Amici view contingency and quality 
adjustments as part of market-based fee calculation. The subject is 
dealt with more fully in the Brief of the Alliance for Justice', et al, 
Amici Curiae.



6

should apply. To the contrary, not only does the legisla­
tive history of the Act establish Congress’ intent that 
market-based fees should be awarded to non-profit civil 
rights organizations, but subsequent Congresses have rat­
ified that intent.

A. The Legislative History of the 1976 Act Thoroughly 
Demonstrates Congress’ Intent to Authorize Market- 
Based Fee Awards

Both the committee reports and the floor debates on 
the 1976 Act make abundantly clear Congress’ intention 
that non-profit organizations are entitled to market-based 
fee awards under the statute, just as are private law 
firms, in order to carry out its legislative purpose to 
facilitate private-party judicial enforcement of civil and 
constitutional rights.3

1. The House Report, at 8 n.16, explicitly approves 
awards to non-profit organizations in a footnote to the 
portion of the report dealing with the standards for de­
termining “Reasonable fees” under the Act, in which 
market-based fee computation is endorsed: 4

Similarly, a prevailing party is entitled to counsel 
fees even if represented by an organization or if the 
party is itself an organization. Incarcerated Men of 
Allen County v. Fair, [507 F.2d 281 (6th Cir.
1974) ]; Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y.
1975) , aff’d. [538 F.2d 10] (2d Cir. . . . 1976); 
Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974)dl5i

3 See infra pp. 24-28.
4 See infra ppi 13-14.
5 The Senate Report, similarly, explains the circumstances in 

which fees would be awarded by referring- to cases litigated under 
other fee-shifting statutes in which awards were made to pren 
vailing parties represented by civil rights organizations. See, e.g., 
Senate Report at 5, citing Bradley v. School Bd. of Richmond, 416 
U.S. 696 (1974), an LDF case; Parham v. Southwestern Bell Tel. 
Co., 433 F.2d 421 (8th Cir. 1976), an LDF case; and ASPIRA of 
New York, Inc. v. Board of Educ. of New York, 65 F.R.D. 541 
(S.D.N.Y. 1975), a PRLDEF case.



7

Examination of the cited cases makes clear that the or­
ganizations referred to were non-profit groups providing 
legal services in civil rights cases.8

Of equal or greater significance is the fact that two 
of the illustrative decisions— Torres v. Sachs and Fairley 
v. Patterson—did not concern entitlement to an award 
but instead involved only the amount of fees awardable. 
In both cases the courts rejected arguments that awards 
to civil rights organizations should be less than the 
market-based fees paid to private attorneys.

In Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974), 
a LCCRUL lawsuit, the issue was “whether the [trial] 
court abused its discretion in limiting the awarded 
amount,” id. at 606. The court held explicitly “that 
allowable fees and expenses may not be reduced because 
[plaintiffs’] attorney was employed or funded by a civil 
rights organization and/or tax exempt foundation.” Id. 
And in Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y. 1975), 
aff’d, 538 F.2d 10 (2d Cir. 1976), a PRLDEF case, de­
fendants argued in both the trial court and on appeal 
that because plaintiffs’ counsel were employed by “legal 
services organizations,” “some measure of fees should be 
used less than the going rates for similar services re­
ceived by privately employed counsel,” 538 F.2d at 11. 
The district court specifically applied market-based hourly 
rates for the organizational attorneys, 69 F.R.D. at 347-

6 It is also evident from the floor debates that the Members 
of Congress were well aware that fee awards would be made to 
non-profit organizations. For example. Senator Helms, an opponent, 
complained:

Undoubtedly the added incentive of receiving one’s attorneys’ 
fees from the opposing party will increase the number of cases 
brought before the Federal bench. The legal journal, Juris 
Doctor, reports future “attorneys’ fee awards were the num­
ber one factor in the future of public interest law financing.”

122 Cong. Ree. 38134 (1976).



8

48,7 and the Second Circuit affirmed, squarely rejecting 
the defendants’ arguments and quoting from Fairley, 538 
F.2d at 12-14.

This legislative history, approvingly incorporating 
Torres and Fairley, was expressly recognized in New 
York Gaslight Club v. Carey, 447 U.S. 54, 70 n.9 (1980), 
where this Court relied specifically on Torres and also on 
Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir. 1978) 
(an LDF case in which the court required fees “to be 
awarded to attorneys employed by a public interest firm 
or organization on the same basis as to a private prac­
titioner” ) and correctly observed that “Congress endorsed 
such decisions” when it enacted the 1976 Act.

2. The Senate Report states that the appropriate 
standards for determining reasonable fee awards under 
the Act were correctly applied in three illustrative cases, 
and that in each instance the award did not produce a 
“windfall:”

The appropriate standards, see Johnson v. Georgia 
Highway Express, 488 F.2d 714 (5th Cir. 1974), 
are correctly applied in such cases as Stanford Daily 
v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974) ; Davis 
v. County of Los Angeles, 8 E.P.D. 9444 (C.D. Cal. 
1974) ; and Swann v. Charlotte-Mecklenburg Board 
of Education, 66 F.R.D. 483 (W.D.N.C. 1975). 
These cases have resulted in fees which are adequate 
to attract competent counsel, but which do not pro­
duce windfalls to attorneys.

Senate Report at 6, quoted with approval in Hensley v. 
Eckerhart, 76 L. Ed. 2d at 48 n.4. Of obvious importance

7 For a case which was litigated on the merits in 1973 and 1974, 
the trial court set the market-based hourly rates for plaintiffs’ 
three organizational lawyers as follows: $75 per hour for lead 
counsel, a 1968 law graduate; and $50 per hour for plaintiffs’ other 
two lawyers, law graduates in 1969 and 1970, respectively. 69 
F.R.D. at 346-48. The fee was ordered “to be paid by defendants 
to the Puerto Rican Legal Def ense Fund.” Id. at 348.



9
to the Senate Committee—and to the Congress which 
adopted its recommendations—were (a) the appropriate 
standards set forth in Johnson; (b) the correct applica­
tion of those standards in Stanford Daily, Davis, and 
Swann; and (c) the conclusion that the fee awards in 
the three illustrative cases did not produce windfalls.

a. In Johnson v. Georgia Highway Express, 488 F.2d 
714 (5th Cir. 1974), a decision involving appropriate fee 
computation for LDF staff attorneys and cooperating at­
torneys, the Fifth Circuit rejected a trial court’s low fee 
award—with hourly rates averaging between $28 and 
$33, rates below the bar association’s minimum fee scale, 
id. at 717—and directed trial courts to consider twelve 
factors commonly used to determine lawyers’ fees, id. 
at 717-19.8 Rather than anywhere suggesting that differ­
ent factors should govern fees for the LDF on the one 
hand and for private firms on the other, the Fifth Cir­
cuit remanded for reconsideration of the fee awards to all 
of plaintiffs’ counsel in light of the same, uniform set 
of factors which, the Fifth Circuit observed, were “con­
sistent with those recommended by the American Bar 
Association’s Code of Professional Responsibility, Ethical 
Consideration 2-18, Disciplinary Rule 2-106,” id. at 719. 
Accord, Hensley v. Eckerhart, 76 L. Ed. 2d at 48 n.3 
(“These factors derive directly from the American Bar 
Association Code of Professional Responsibility, Discipli­
nary Rule 2-106”).

b. The factors set forth in Johnson were meaningfully 
illustrated in the “three district court decisions that ‘cor­
rectly applied’ the twelve factors.” Hensley, 76 L. Ed. 
2d at 48.

8 The twelve factors set forth and described in Johnson were 
summarized by this Court in Hensley v. Eckerhart, 76 L. Ed. 2d 
at 48 n.3. The Court in Hensley, id. a t 48, also1 noted that Johnson 
was relied upon not only in the Senate Report (at 6) but also in the 
House Report (at 8). See also 122 Cong. Rec. 32185 (1976) (Sen. 
Tunney) ; id. a t 35115 (Rep. Anderson); id. at 35123 (Rep. Drinan).



10
The district court’s fee decision in Stanford Daily v. 

Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974), is the very 
model of the lodestar method of fee computation now re­
quired of the trial courts by all courts of appeals. See 
generally the decisions collected in Appendix A to this 
Brief. The Stanford Daily court first determined the 
time reasonably expended by plaintiff’s counsel, id, at 
683, 687, then ascertained the hourly rates which re­
flected the non-contingent value 9 of the attorneys’ services, 
id. at 685, and then made an upward adjustment to ac­
count for contingency risks and quality of representation, 
id. at 688.10

The same lodestar methodology was used to arrive at a 
reasonable fee award for both a private practitioner and 
for a civil rights organization in Davis v. County of Los 
Angeles, 8 E.P.D. 'IT 9444 (C.D. Cal. 1974).11 Entirely 
irrelevant in calculating the fee award was the fact that 
plaintiffs were represented by a non-profit organization:

In determining the amount of the fees to be 
awarded, it is not legally relevant that plaintiffs’ 
counsel . . . are employed by the Center for Law In 
The Public Interest, a privately funded non-profit

9 See 122 Cong. Rec. 35123 (1976) (Rep. Drinan) :
I should add that the phrase “attorney’s fee?’ would include the 
values of the legal services provided by counsel, including all 
incidental and necessary expenses incurred in furnishing 
effective and competent representation.

10 The Stanford Daily court concluded that the requested 750 
hours were reasonable; allowed a $50 hourly rate which, the court 
pointed out, “is only $1.70 an hour less than the average hourly 
rate which plaintiffs’ attorneys recommended to' the court” ; and 
then adjusted the $37,500 lodestar (750 hours times $50 per hour) 
upward by $10,000, an adjustment of the lodestar by approximately 
28%. 64 F.R.D. at 683-88.

11 The Davis court fixed market rates of $60, $55, and $35 per 
hour for plaintiffs’ three lawyers, and upon consideration of the 
adjustment factors, allowed an upward adjustment of the lodestar 
by approximately 18%. 8 E.P.D. at 5048.



11

public interest law firm. It is in the: interest of 
the public that such law firms be awarded reason­
able attorneys’ fees to be computed in the traditional 
manner when its counsel perform legal services 
otherwise entitling them to the award of attorneys’ 
fees.

8 E.P.D. at 5048-49 (citations omitted).

The identical conclusion was reached by the court in 
Swann v. Charlotte-Mecklenburg Board of Education, 66 
F.R.D. 483 (W.D.N.C. 1975), a decision, like Johnson, 
awarding fees for time expended by LDF staff attorneys 
and local cooperating attorneys.12 The LDF, in addition 
to being a recipient of the fees in Swann, had reimbursed 
local counsel for “their out-of-pocket expenses” and had 
“also compensated local counsel on a nominal basis,” 66 
F.R.D. at 486. These factors, however, were deemed 
irrelevant in view of the established legal principle that 
market-based “reasonable fees should be granted . . . 
regardless of whether the attorneys were salaried em­
ployees of a legal aid agency.” Id. (citations omitted).

c. As observed in the Senate Report at 6, the fee 
awards in the foregoing cases—computed according to 
traditional market-based standards—did not result in 
“windfalls.” Instead, “These cases have resulted in fees 
which are adequate to attract competent counsel, but

12 Although the actual fee computation methodology is not ex­
plicitly set forth in Swann, the trial court did agree with the rea­
sonableness of the 2,700 hours expended, and the court allowed a 
fee award of $175,000, 66 F.R.D. at 484, 486. From these figures it 
may be inferred that the trial court applied hourly rates averaging 
$65 per hour, or that lower market rates were applied to determine 
a lodestar which was then adjusted upwards. While the Swann 
court did not award plaintiffs’ counsel all that they requested and 
fixed a total fee award which was less than the amount paid by the 
school board to its retained private counsel, the- court certainly did 
not use different standards for those of plaintiffs’ counsel em­
ployed by LDF and those in private practice in North Carolina.



12
which do not produce windfalls to attorneys.” Id. (em­
phasis added) .1S

d. Congressional adoption of the Johnson factors, and 
congressional approval of their correct application in the 
foregoing three illustrative cases, was recognized by 
this Court in Hensley v. Eckerhart, 76 L, Ed. 2d at 48 & 
n.4, a case involving the appropriate standards for 
awarding fees to Legal Services of Eastern Missouri. 
In Hensley, there was no disagreement between the 
Justices in the majority and the concurring Justices with 
regard to the appropriate elements of the fee computa­
tion. Justice Powell wrote, for the majority:

The most useful starting point for determining 
the amount of a reasonable fee is the number of 
hours reasonably expended on the litigation multi­
plied by a reasonable hourly rate. This calculation 
provides an objective basis on which to make an in­
itial estimate of the value of a lawyer’s services. 
. . . The product of reasonable hours times a reason­
able rate does not end the inquiry. There remain 
other considerations that may lead the district court 
to adjust the fee upward or downward, including the 
important factor of the “results obtained.”

76 L. Ed. 2d at 50, 51 (footnote omitted and emphasis 
added).14 The four concurring Justices agreed:

13 No Senator or Representative suggested that windfall awards 
were likely under the Act. The only mention of “windfalls” during 
the debates referred to percentage-of-recovery awards in the tens 
of millions of dollars in treble damage suits. See 122 Cong. Rec. 
31473-74 (1976) (Sen. Allen).

14 The fee computation methodology explained by Justice Powell 
for the majority in Hensley as applicable to' determining fees for 
civil rights organizations is the same methodology set forth as 
applicable to- Title VII private practitioners in Delta Air Lines v. 
August, 450 U.S. 346, 364-65 (1981) (Powell, J., concurring) :

The primary factors relevant to setting the fee usually are the 
time expended and a reasonable hourly rate for that time.3

3 In Lindy Bros. Builders, Inc. V. American Radiator & 
Standard Sanitary Corp., 540 F.2d 102 (1976) (en banc), the



13

As nearly as possible, m arket standards should pre­
vail, for that is the best way of ensuring tha t com­
petent counsel will be available to all persons with 
bona fide civil rights claims. This means tha t judges 
awarding fees must make certain tha t attorneys are 
paid the full value tha t their efforts would receive 
on the open m arket in non-civil-rights cases, both 
by awarding them market-rate fees, and by award­
ing fees only for time reasonably expended. . . .

76 L. Ed. 2d at 59 (citations omitted and emphasis 
added in part). See also id. at 58 n.6 (concurring 
opinion).

3. The same conclusion flows from the 94th Congress’ 
adoption of existing judicial standards under other fed­
eral fee-shifting statutes to apply under the 1976 Act. As 
this Court correctly pointed out in Hanrahan v. Hampton, 
446 U.S. 754 (1980), “The provision for counsel fees in 
§ 1988 was patterned upon the attorney’s fees provisions 
contained in Titles II and VII of the Civil Rights Act of 
1964, and § 402 of the Voting Rights Act Amendments 
of 1975.” 446 U.S. at 758 n.4 (statutory citations 
omitted), citing the Senate Report at 2 and the House 
Report at 5, and further citing interpretive cases. In 
addition to the legislative history references cited in 
Hanrahan, the House Report, at 8, explicitly states the 
“intentt] that, at a minimum, existing judicial standards,

Court of Appeals for the Third Circuit held that the primary 
determinant of a court-awarded feet—the. “lodestar”—should 
be the amount of time reasonably expended on the matter 
multiplied by a reasonable hourly rate. The “lodestar” is 
subject to' adjustment based on, inter alia, the quality of the 
work and the results obtained. Id., a t 117-118; accord, Furtado 
V. Bishop, 635 F.2d 915 (CA1 1980) ; Copeland V. Marshall, 
205 U.S. App. D.C. 390, 641 F.2d 880 (1980) (en bane). Cf. 
Johnson V. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 
1974).



14
to which ample reference is made in this report, should 
guide the courts in construing [the Act].” 16

Under existing judicial standards interpreting other 
federal fee-shifting statutes, the uniform judicial ap­
proach was to apply the same market-based standards to 
plaintiffs represented by either public or private counsel. 
See, for example, the legislative history-cited cases: Tor­
res, 538 F.2d at 12-14 (Voting Rights Act) ; Fairley, 493 
F.2d at 606 (same) ; Swann, 66 F.R.D. at 486 (ESAA) ; 
Davis, 8 E.P.D. at 5048-49 (Title VII) ; see also Tillman 
v. Wheaton-Haven Recreation Ass’n, 517 F,2d 1141, 1148 
(4th Cir. 1975) (Title II).

4. Congress’ approval of fee awards based on market 
rates and appropriate adjustments of the lodestar as 
“reasonable” awards is further illustrated by its reliance 
on the standards of fee computation applied in other types 
of equally complex federal litigation. In addition to ex­
pressly approving the standards applied under other fed­
eral fee-shifting statutes, the Senate Report, at 6, states:

It is intended that the amount of fees awarded 
under [the Act] be governed by the same standards 
which prevail in other types of equally complex Fed­
eral litigation, such as antitrust cases and not be 
reduced because the rights involved may be non- 
pecuniary in nature.1161

15 See also Senate Report, at 4. Proponents of the 1976 Act 
also repeatedly referred during the floor debates to the ample 
precedent under earlier statute's which would guide1 the' courts in 
applying the bill’s provisions. See, e.g., 122 Cong. Rec. 31471 (1976) 
(Sen. Scott) ; id. a t 35114-15 (Rep. Anderson) ; id. at 35117 (Rep. 
Railsback) ; id. a t 35122-23 (Rep. D rinan); id. a t 35125 (Rep. 
Kastenmeier). Senator Helms sought to impose a “bad faith” 
requirement in order to prevent construction of the Act in the same 
manner as earlier fee-shifting provisions. His amendment was de­
feated. 122 Cong. Rec. 38133-35 (1976).

16 A similar comparative reference to fee compensation, in anti­
trust cases is made' in the House! Report at 9 : “The' same, principle 
should apply here as civil rights plaintiffs should not be singled 
out for different and less favorable treatment.”



15
In other types of complex federal litigation, such as 

antitrust and securities cases, the amount of fees awarded 
has never been governed by—and is not now governed 
by—any factors pertaining to the overhead or to the cost 
outlays of the lawyers’ employers, or to the take-home 
pay of the lawyers themselves. Instead, fee awards in 
large monetary cases were sometimes based on percentages 
of the recoveries, while fee awards in other litigation 
(and often in monetary cases as well) were governed 
simply by market-based standards.

By 1976, the amount of fees awarded in antitrust and 
securities cases was determined by the lodestar method. 
See generally Lindy Bros. Builders v. American Radiator 
& Standard Sanitary Corp., 487 F.2d 161, 166-70 (3d Cir. 
1973), and Detroit v. Grinned Corp., 495 F.2d 448, 470- 
74 (2d Cir. 1974).17 The lodestar method employs what 
unquestionably are market-based standards of fee compu­
tation: consideration of hours reasonably expended, the 
hourly rates which reflect the value of the lawyers’ serv­
ices, and adjustments to the lodestar to account for con­
tingency and quality factors which alter rates in the 
market place.18

This of course is the same lodestar method which was 
utilized by the courts in Stanford Daily and Davis (where 
the courts “correctly applied” the appropriate criteria of 
fee compensation). And it is the same lodestar method 
required of the trial courts by all courts of appeals in 
civil rights cases and in other complex cases alike. See 
generally the cases collected in Appendix A to this Brief.

17 See also, e.g., Grunin v. Int’l House of Pancakes, 513 F.2d 114, 
125-29 (8th Cir. 1975) ; Ramey v. Cincinnati Enquirer, 508 F.2d 
1188, 1196-98 (6th Cir. 1974), cert, denied, 422 U.S. 1048 (1975); 
Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61, 
86-91 (1st Cir. 1970); cf. Pacific Coast Agricultural Export Ass’n 
v. Sunkist Growers, 526 F.2d 1196, 1210 (9th Cir. 1975), cert, 
denied, 425 U.S. 959 (1976).

18 See generally E. Larson, Federal Court Awards of Attorney’s 
Fees 115-240 (1981), and cases cited herein.



16

B. Subsequent Congresses Have Ratified the Interpre­
tation of the 1976 Act Which Was Applied by the 
District Court in this Case

In Bob Jones University v. United States, 76 L. Ed. 2d 
157, 178-79 (1983), and in other cases, this Court has 
recognized that when a statute has been given a con­
sistent judicial construction, and when that interpretation 
has been made known to Congress but Congress takes no 
action to amend the law in order to overturn that con­
struction, this congressional “ratification” makes the pre­
vailing judicial interpretation a part of the law. That is 
the situation here.

As the Seventh Circuit recently put it, “The notion that 
fee awards should be reduced where they are to be paid 
to not-for-profit organizations has been rejected by every 
court of appeals to consider it.” Gautreaux v. Chicago 
Housing Authority, 690 F.2d 601, 613 (7th Cir. 1982). 
This virtual unanimity is reflected in the twenty courts 
of appeals’ decisions which have addressed this issue and 
resolved it (primarily in reliance upon the legislative 
history and the purposes of the Act). See generally the 
courts of appeals’ decisions collected in Appendix B to 
this Brief.19 Under these decisions, and in conjunction

19 We concede that the State’s elaborate argument does find 
support in one currently viable decision: Judge Newman’s recent 
opinion for the Second Circuit in New York Ass’n for Retarded 
Children v. Carey, 711 F.2d 1136, 1148-52 (2d Cir. 1983). Judge 
Newman’s, opinion, however, is likely to remain a lonely aberration. 
It is contrary to a Tenth Circuit ruling issued the same day, Ramos 
v. Lamm, 713 F.2d 546, 551-52 (10th Cir. 1983), and to the. decisions 
of every other court of appeals. See Appendix B to this Brief. 
Significantly, it is also contrary to both the majority and con­
curring opinions in Hensley.

The other cases upon which the State relies hardly presage a 
trend. Page v. Preisser, 468 F. Supp. 399 (S.D. Iowa 1979) and 
Alsager v. District Court of Polk County, 447 F. Supp. 572 (S.D. 
Iowa 1977) were, disapproved by the Eighth Circuit, see Oldham v. 
Ehrlich, 617 F.2d 163, 168-69 (8th Cir. 1980), and thereafter the



17
with the lodestar methodology, the hourly rate component 
of the lodestar is determined by the market-based value 
of the attorneys’ services, permissible adjustments to the 
lodestar account for contingency and quality factors, and 
the end result is a reasonable fee and not a windfall.'20

author of those rulings himself allowed market rate fees, without 
reduction, to plaintiffs represented by the Legal Services Corpora­
tion of Iowa, in, a decision quickly affirmed by the Eighth Circuit 
on the basis of Oldham, Collins v. Hoke, 705 F.2d 959 (8th Cir. 
1983). Glover v. Johnson, 531 F. Supp. 1036 (E.D. Mich. 1982) 
inexplicably departed from the fee computation method adopted 
by the Sixth Circuit in Northcross v. Board of Educ. of Mem,phis, 
611 F.2d 624 (6th Cir. 1979), cert, denied, 447 U.S. 911 (1980) 
and has not been, followed by other courts within the Circuit. 
Finally, Judge Wilkey’s opinion in Copeland v. Marshall, 594 F.2d 
244 (D.C. Cir. 1978) and his dissent in id., 641 F.2d 880, 908-30 
(D.C. Cir. 1980) (en banc) are nothing more than a minority 
viewpoint rejected within his own. Circuit and by others, see, e.g., 
Palmigiano v. Garrahy, 616 F.2,d 598, 603 (1st Cir.), cert, denied, 
449 U.S. 839 (1980).

20 Petitioner’s repeated mischaracterization of contingency-factor 
adjustments to the lodestar as “windfalls” unauthorized by the 
Act not only is a contention directly contrary to the legislative 
history of the Act, see supra at pp. 6-15, but it also represents 
a serious misunderstanding about why risks of litigation and delays 
in payment must; be considered in computing a reasonable fee. As 
summarized by the Fifth Circuit en banc in. Jones v. Diamond, 636 
F.2d 1364, 1382 (5th Cir. 1981), cert, dismissed, 102 S. Ct. 27 
(1982), consideration of the contingency factors, in setting a rea­
sonable fee under § 1988 “reflects the provisions of the ABA Code 
of Professional Responsibility, DR 2-106 (B )(8), and the practice 
of the Bar1.” The reason is obvious:

Lawyers who are to be compensated only in the event of 
victory expect and are entitled to be paid more when successful 
than those who are assured of compensation regardless of 
result. This is neither less nor more appropriate in. civil rights 
litigation, than in personal injury cases. The standard of com­
pensation must enable counsel to accept apparently just causes 
without awaiting sure winners.

Id. The Sixth Circuit reiterated the same conclusion somewhat 
more bluntly in a case involving reasonable compensation for the 
Legal Defense Fund: “The contingency factor is not a ‘bonus’



18
As the Brief of the Alliance for Justice, et aL, Amici 

Curiae, demonstrates in detail, Congress since 1976 has 
on numerous occasions been petitioned by State Attorneys 
General and others to amend the 1976 Act to alter the 
standards for awarding and calculating fees. These pro­
posals, however, have never been given serious considera­
tion. Congress has thus demonstrated, in the most sig- 
nicant manner possible, its satisfaction with the over­
whelmingly consistent interpretation of the statute and 
the State’s arguments are more appropriately addressed 
to Congress than to this Court.

II. The Standards for Fee Awards Proposed by the State 
Would Be Wholly Impracticable of Application and 
Are Contrary to the Congressional Purpose in Enact­
ing the 1976 Act

Opposing the traditional lodestar method of calculat­
ing fee awards which was intended by Congress, the 
State asks this Court to amend the 1976 Act by mandat­
ing the use of a complicated cost-based approach. Not 
only are the State’s suggested approaches unworkable 
and arbitrary, but they would engulf the federal courts 
in a morass of discovery and factual disputes solely over 
fees.21 Analysis of a law firm’s and a non-profit organi-

but is part of the reasonable compensation to which a prevailing 
party’s attorney is entitled under § 1988.” Northcross v. Board 
of Educ. of Memphis, 611 F.2d 624, 638 (6th Cir. 1979), cert, 
denied, 447 U.S. 911 (1980). See also Minority Employees at NASA  
v. Frosch, 694 F.2d 846, 847 (D.C. Cir. 1982) (upholding a 10% 
lodestar adjustment for the Lawyers’ Committee', which “receives 
remuneration only in the event of success” and which therefore 
was eligible for a contingency adjustment “to the same extent as 
similarly situated private attorneys”).

21 One of the virtues of the 1976 legislation is its simplicity:
I t will also result in a significant saving of judicial resources. 
At present, due to the Alyeska decision, a court must analyze a 
party’s actions to determine, bad faith in order to. award at­
torneys’ fees. This is a complex, time-consuming process often 
requiring an extensive evidentiary hearing. The enactment of



19
zation’s costs and overhead in order to determine an 
appropriate fee is, as we show below, an extraordinarily 
more complex and time-consuming process even than the 
search for “bad faith,” see n.21 supra. Imposition of 
such a process by this Court would only impede and 
deter any firm or organization from seeking adequate 
compensation for successful representation of a prevail­
ing party in an action covered by the 1976 Act.

A. A Cost-Based Approach to Fee Computation Would 
Involve Civil Rights Organizations in Lengthy and 
Necessarily Complex Proceedings to Determine 
Fees

The State’s bold policy proposals for a cost-based ap­
proach to fee computation would be devastating to civil 
rights enforcement. A cost-based approach not only 
would relegate civil rights litigation to a back-of-the-bus, 
second-class status but also would involve the federal 
courts, as well as organizations, in lengthy and neces­
sarily complex proceedings to determine fee awards.

1. The three cost-based policy options which the State 
urges this Court to choose among not only are fraught 
with practical difficulties, but in fact are balanced on top 
of two false premises. First, the supposed willingness of 
private firms to lay open their financial records so as to 
enable analysis of their hourly rate structures and over­
head for comparative purposes, thereby permitting the 
State’s legislative policy options to be implemented, is 
simply nonexistent. Second, the alleged ease of utilizing 
a cost-based approach is refuted by the error of the 
aforementioned assumption, by the absence of any gen­
erally accepted method for law firm cost accounting, and

this legislation will make such an evidentiary hearing unneces­
sary in the1 many civil rights cases presently pending in the 
Federal courts.

122 Cong. Rec. 33314-15 (1976) (Sen. Abourezk, floor manager of 
the bill). See also Hensley v. Eckerhart, 76 L. Ed. 2d at 53 (“A 
request for attorney’s fees should not result in a second major 
litigation”) .



20

also by the prolonged and difficult litigation which must 
inevitably occur over cost accounting for fee purposes. 
Given the fact that “the fee applicant bears the burden 
of establishing entitlement to an award and documenting 
the appropriate . . . hourly rates,” Hensley v. Eckerhart, 
76 L. Ed. 2d at 53, the actual burdens imposed on pre­
vailing plaintiffs’ counsel by the State’s policy options 
would be overwhelming.

a. The State, in its Brief at 12-13, 23-26, asserts that 
the best policy option is the approach suggested by Judge 
Friendly in his concurring opinion in New York State 
Association for Retarded Children v. Carey, 711 F.2d 
1136, 1155 (2d Cir. 1983), under which courts would 
determine hourly rates based, first, upon “the hourly 
compensation paid to private attorneys in the same com­
munity with equivalent experience,” and second, upon 
“the nonprofit office’s per hour overhead.” This approach 
would require, in every case, two sets of inquiries of 
monumental proportions. First, counsel seeking or op­
posing an award would be expected to discover, from all 
(most? more than half?) private firms in the community, 
all records pertaining to their financial structures and 
to their billing practices, for the purpose of supporting 
their claims as to the hourly compensation paid private 
attorneys in the community. Second, counsel for prevail­
ing plaintiffs would have to restructure the financial rec­
ords of the non-profit organizations which employ them 
in order to allocate all one-time as well as all on-going 
overhead costs to particular pieces of litigation; 22 and

22 The allocation of “overhead costs” particular pieces of 
litigation or to a particular attorney would be not only extraor­
dinarily time-consuming but also ultimately arbitrary, if not nearly 
impossible, in view of the fact that there exists no generally 
accepted accounting principle to apply to this suggested task. For 
example, there is no generally accepted accounting principle! to use 
in determining cost allocations to different organizational activities 
or units, to' major and particularly complex pieces of litigation as 
opposed to relatively more routine cases, to' cases litigated by ex­
perienced attorneys rather than by younger attorneys, to cases



21
then, of course, open those records to discovery.23 Even 
assuming that the first set of inquiries would produce 
anything at all, and that the second would produce any­
thing other than extended litigation about the allocation 
of overhead, there in any event is no question that the 
inquiries and resultant litigation battles would assume 
massive proportions.

b. The State alternatively proposes, in its Brief at 23, 
29, the “simpler, albeit less exact formulation . . . advo­
cated by Judge Newman” in his opinion in Association 
for Retarded Children, 711 F.2d at 1151-52, under which 
district court judges would select an entirely arbitrary 
“break point” ceiling on hourly rates 24 but which would

litigated out of town rather than in town. These problems are 
magnified for organizations such as amici, who are involved in 
scores of different cases at any given moment.

Additionally, there would be further complexities about how to 
allocate the costs of technological equipment such as word proces­
sors and computer terminals, which are subject to major up-front 
outlays followed thereafter by lesser outlays, and whose effective 
lives are- uncertain at best.

Amici recognize that non-profit organizations are subject to an­
nual financial reporting to the Internal Revenue Service. But the 
defined accounting procedures used for this overall purpose have 
no applicability to  the per-case or per-attomey cost allocations 
proposed by the State here.

23 See, e.g., Shelton v. Tucker, 364 U.S. 479 (1960) ; Bates v. 
Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357 U.S. 449 
(1958).

24 Judge Newman’s opinion does not explain the derivation, of the 
two “break point” figures to be applied by the trial court on remand 
in that case: a $75 per hour ceiling for services rendered in the 
years 1978-80, and a $50 per hour ceiling for services rendered in 
the years 1972-77. 711 F.2d at 1152-53. The latter figure is appar­
ently based upon the perceived appropriateness of the' $75 per hour 
ceiling, which Judge Wyzanski, concurring, 711 F.2d at 1156, sug­
gested may have been “borrowed” from the Equal Access to' Justice 
Act, 28 U.S.C. § 2412(d) (2) (A). The EAJA is totally inapplicable 
to this litigation. The House Report on that statute' is explicit :

Moreover, this section is not intended to' replace or supersede 
any existing fee-shifting statutes such as the Freedom of In-



22
also permit higher hourly rates where necessary to re­
cover counsel’s actual costs. Despite the superficial sim­
plicity of Judge Newman’s formulation, his invitation 
for judicially sanctioned arbitrariness in fact invites pre­
cisely the same two sets of massive inquiries suggested by 
Judge Friendly. Counsel for prevailing plaintiffs, in 
order to protect against arbitrarily low or excessively 
parsimonious “break point” determinations, would neces­
sarily attempt to meet their burden of proof by trying 
to lay open the financial records of private law firms and 
by restructuring the financial records of their organiza­
tions to allocate costs to individual cases, also subject to 
discovery. Again, the resultant inquiries and litigation 
disputes would assume massive proportions.

c. Possibly in recognition of the multifarious problems 
which would flow from its first two policy options, the 
State proposes that yet another cost-based approach 
“would be for the district courts to set hourly rates based 
on promulgated schedules of estimated hourly salaries of 
private attorneys, based on years of experience, and 
average hourly overhead costs.” Brief for Petitioner, at 
29 (emphasis in original). Although the State apparently 
believes that this policy option would “avoid . . . the 
necessity of a case-by-case calculation,” id., this policy 
option both ignores the adjudicatory—not legislative— 
role of the judiciary and also seemingly attempts to cir­
cumvent the antitrust ban on promulgated fee schedules, 
see Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). 
This policy option would encourage, if not compel, the 
very same monumental inquiries into the financial struc-

formation Act, the Civil Rights Acts, and the Voting Rights 
Act in which Congress has. indicated a specific intent to* en­
courage* vigorous enforcement, or to alter the* standards or the 
case law governing those Acts. It is. intended to* apply only to 
cases (other than tort cases) where fee awards against* the 
government are not already authorized.

H.R. Rep. No*. 1418, 96th Cong., 2d Sess. 18 (1980), reprinted in 
1980 U.S. Code Cong. & Ad. News 4984, 4997. Cf. EAJA, Pub. L. 
96-481, § 206, 94 Stat. 2325, 2330 (1980).



23
tures of private law firms, both by district courts intend­
ing to promulgate a fee schedule and thereafter by coun­
sel when the schedule is sought to be applied to their 
cases.

2. “A request for attorney’s fees should not result in a 
second major litigation.” Hensley v. Eckerhart, 76 L. Ed. 
2d at 53. Contrary to this admonition, and contrary to 
the recognition by all members of this Court in Hensley 
that market-based fees are to be awarded to plaintiffs 
represented by civil rights organizations, see supra pp. 
12-13, the State here nevertheless proposes not only 
a second major litigation but truly major litigation, in­
volving a series of far-reaching inquiries which would 
“ ‘assume massive proportions, perhaps even dwarfing 
the case in chief.’ ” Copeland v. Marshall, 641 F.2d 880, 
896 (D.C. Cir. 1980) (en banc), quoting from Lindy 
Brothers Builders v. American Radiator & Standard 
Saniary Corp., 540 F.2d 102, 116 (3d Cir. 1976) (en 
banc).

The massiveness of the inquiries attendant to a cost- 
based approach to fee computation was part of the rea­
son for the en banc court’s rejection of that policy option 
in Copeland. As the en banc court pointed out, the “prob­
lems associated with administering a ‘cost-plus’ calculus 
are multifarious,” the nature of the questions which 
would have to be answered “creates the specter of a 
monumental inquiry on an issue wholly ancillary to the 
substance of the lawsuit,” and the unavoidable result is 
that a “ ‘cost-plus’ method of calculating fees would in­
deed become the inquiry of ‘massive proportions’ that we 
strive to avoid.” 641 F.2d at 896. None of these problems 
arises in the application of market value fees since 
“ [t] he ‘lodestar,’ or ‘market value,’ method of fee setting 
has the virtue of being relatively easy to administer.” Id.

The en banc court’s rejection of a cost-based approach 
in Copeland however depended not “on administrative 
convenience alone” but instead on the fact that “the 
theoretical basis of ‘cost-plus’ is fundamentally incon-



24
sistent with Congress’ purpose in providing for statutory 
fee-shifting.” Id. at 897. In fact, the legislative history 
of the 1976 Act leaves no doubt that lawyers employed 
by civil rights organizations “should be compensated by 
using a market value approach.” Id. at 899. There 
similarly is no doubt that market value fee compensation 
for non-profit and civil rights organizations fulfills Con­
gress’ purpose since full fee awards “help finance their 
work,” and thereby “provide greater enforcement.” Id.

B. The Continued Application of Market-Based Fees 
to Civil Rights Organizations Satisfies Congress’ 
Express Purpose of Promoting Enforcement of 
Civil and Constitutional Rights

Congress’ unquestioned purpose in enacting the 1976 
Act was to promote enforcement of civil and constitu­
tional rights. Fulfillment of that purpose compels market- 
based fee awards to civil rights organizations.

1. Repeated throughout the House and Senate Reports 
is an overriding theme: the necessity to enact the legisla­
tion to encourage private enforcement of civil and con­
stitutional rights. The Senate Report, at 5, observes that 
after “several hearings held over a period of years,” the 
Senate Committee “found that fee awards are essential 
if the Federal statutes to which [the Act] applies are to 
be fully enforced.” This theme is repeated throughout 
the Report. E.g., id. at 2:

All of these 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.

The House Committee fully concurred,35 pointing out the 
obvious: that the purpose! of the 1976 Act was to “attract

25 The House Report, at 1, states;:
The effective enforcement of Federal civil rights statutes de­
pends largely on the efforts of private citizens. Although some 
agencies of the United States have civil rights responsibilities,



25
competent counsel in cases involving civil and constitu­
tional rights,” and that the hoped-for “effect of [the Act] 
will be to promote the enforcement of the Federal civil 
rights acts, as Congress intended.” House Report, at 9.

2. Congress also recognized the important role played 
by civil rights and other non-profit organizations in en­
forcing civil and constitutional rights. Both the House 
and Senate Reports rely on cases involving amici and 
other organizations as examples of the kind of litigation 
to which the Act applies and the manner in which it is to 
be interpreted.

The most frequently cited decision in both Reports is 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 
(1968), an LDF case in which this Court held that fees 
were to be awarded to prevailing plaintiffs unless special 
circumstances rendered an award of fees unjust. The 
Reports also discuss Northcross v. Board of Education of 
Memphis, 412 U.S. 427 (1973), and Bradley v. School

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. Unless the judicial 
remedy is full and complete, it will remain a meaningless right. 
Because a vast majority of the victims of civil rights violations 
cannot afford legal counsel, they are unable to present their 
cases to the courts. In authorizing an award of reasonable 
attorney’s fees, [the Act] is designed to give such persons 
effective access, to the judicial process where their grievances 
can be resolved according to law.

See also, e.g., 122 Cong. Rec. 31472 (1976) (Sen. Kennedy); id. at 
31832 (Sen. Hathaway); id. a t 33313-14 (Sen. Tunney); id. at 
35118 (Rep. Seiberling) ; id. a t 35126 (Rep. Kastenmeier); id. at 
35127 (Rep. Jordan).

This. Court’s, decision in Ahjeska Pipeline Serv. Corp, v. Wilder­
ness Soc., 421 U.S. 240 (1975), denying fee awards in many civil 
rights cases, created a threat of significantly reduced private civil 
rights enforcement which thei Congress wished to avoid. See House 
Report a t 2-3. See also 122 Cong. Rec. 35118 (1976) (Rep. Bolling) 
(Alyeslca decision created an “emergency” for Congress to deal 
w ith).



26
Board of Richmond, 416 U.S. 696 (1974), both also 
LDF suits.

Illustrating the breadth of civil rights enforcement 
litigation to which the Act was intended to apply, the 
House Report at 4-5 cites both to federal statutes and 
to illustrative cases brought through civil rights organiza­
tions to enforce those statutes. As to the enforcement of 
42 U.S.C. § 1981, Congress cited Johnson v. Railway Ex­
press Agency, 421 U.S. 454 (1975) (LDF), and Tillman 
v. Wheaton-Haven Recreation Association, 410 U.S. 431 
(1973) (ACLU). Enforcement of 42 U.S.C. § 1983 was 
illustrated through reliance on Brown v. Board of Edu­
cation, 347 U.S. 483 (1954) (LDF), and O'Connor v. 
Donaldson, 422 U.S. 563 (1975) (ACLU). Title VI 
enforcement was illustrated by reliance on several cases 
including Hills v. Gautreaux, 425 U.S. 284 (1975) (spon­
sored in part by the ACLU).

In view of Congress’ reliance on these cases, coupled 
with its reliance on civil rights fee decisions rendered by 
the lower federal courts, it is simply inconceivable that 
Congress could have intended less than full market-value 
fee awards to civil rights organizations so as “to pro­
mote the enforcement of the Federal civil rights acts, as 
Congress intended.” House Report, at 9. All indicia of 
congressional purpose compel the conclusion that plaintiffs 
represented by civil rights organizations are entitled to 
full market value fee compensation.

3. Effective private enforcement of civil and constitu­
tional rights requires not only the opportunity to apply 
for fees when the litigation is successful, but also the 
opportunity to recover adequate fees. In rejecting fee- 
reduction arguments such as those now made by the State 
in this case, the courts of appeals have overwhelmingly 
held that awarding full market-value fees to civil rights 
organizations fulfills the congressional purpose of encour­
aging private civil rights enforcement in two important 
respects.



27
First, full fee compensation for civil rights organiza­

tions correlates perfectly with the congressional purpose, 
since such fees go not into attorneys’ pockets but directly 
further civil rights litigation. As summarized by the 
Second Circuit in a Voting Rights Act case cited with 
approval in the House Report, see supra pp. 7-8, 14, 
since “ [1] itigation to secure the law’s protection has fre­
quently depended on the exertions of organizations dedi­
cated to the enforcement of the Civil Rights Act,” and 
since the receipt of full fee awards by civil rights organi­
zations “promotes their continued existence and service 
to the public in this field,” therefore “full recompense for 
the value of services in successful litigation helps assure 
the continued availability of the services to those most in 
need of assistance in translating the promise of the Act 
into actually functioning voting rights.” Torres v. Sachs, 
538 F.2d 10, 13 (2d Cir. 1976).

Second, full fee compensation for civil rights organiza­
tions deters both unlawful behavior and also imprudent 
litigation tactics by defendants. As summarized by the 
District of Columbia Circuit en banc in a Title VII case, 
“to compute fees differently depending on the identity of 
the successful plaintiffs’ attorney might result in two 
kinds of windfalls to defendants,” 2<5

26 Copeland v. Marshall, 641 F.2d at 899:
The incentive to employers not to discriminate is reduced if 
diminished fee awards are assessed when discrimination is 
established. Moreover, where a public interest law firm, serves 
as plaintiff’s counsel. . .  the defendant will be subject to a lesser 
incentive to settle a suit without litigation than would be the 
case if a high-priced private: firm undertook plaintiff’s repre­
sentation . . . .  Defendant’s counsel could inundate the plaintiff 
with discovery requests without fear of paying the full value 
of the legal resources wasted in response. We do not think 
that Title VII intended that defendants should have an incen­
tive to litigate imprudently simply because of the fortuity of 
the identity of plaintiff’s counsel.



28
Relying on similar Voting Rights Act cases and Title 

VII cases, and to carry out Congress’ express purpose in 
passing the 1976 Act, the courts of appeals have repeat­
edly reiterated the necessary fulfillment of both these 
objectives through market-value awards to civil rights 
organizations under the Act.27 If Congress’ express pur­
pose is to be respected, market-value fee compensation 
must continue to be applied.

27 See, e.g., Oldham v. Ehrlich, 617 F.2d 163, 168-69 (8th Cir. 
1980) (“Legal aid organizations can expand their services to in­
digent civil rights complaints by virtue of their receipt of attorneys’ 
fees. And a defendant sued by a. plaintiff retaining legal aid counsel 
should not be benefited by the fortuity that the plaintiff could not 
afford private counsel”) ; Palmigiano v. Garrahy, 616 F.2d 598, 602 
(1st Cir.) (The ACLU’s “National Prison Project, like other such 
organizations, has finite resources, and a  full fee award will enable 
it to undertake further civil rights litigation . . . .  Indeed, we are 
concerned that compensation a t a lesser rate would result in a wind­
fall to the defendants”), cert, denied, 449 U.S. 839 (1980) ; Dennis 
v. Chang, 611 F.2d 1302, 1306 (9th Cir. 1980) (Full compensation 
“serves the purposes of the Act for two reasons: (1) the award 
encourages the legal services organization to' expend its limited 
resources in litigation aimed at enforcing the civil rights statutes; 
and (2) the award encourages potential defendants to comply with 
civil rights statutes”) ; see generally the courts of appeals’ decisions 
collected in Appendix B to this Brief.



CONCLUSION
For the foregoing reasons, the State’s cost-based policy 

options should be rejected in this forum, and the contin­
ued applicability of market-based fees for civil rights 
organizations should be reaffirmed. The judgment of the 
court below accordingly should be affirmed.

Respectfully submitted,

E. Richard Larson *
Burt Neuborne 
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800
J ack J ohn Olivero 
Kenneth Kimerling 
Puerto- Rican Legal Defense and 

Education Fund, Inc.
95 Madison Avenue 
New York, New York 10016 
(212) 532-8470
J oaquin G. Avila 
Morris J. Baller 
Mexican American Legal

Defense and Educational Fund 
28 Geary Street, Suite 300 
San Francisco, California 94108 
(415) 981-5800

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen Ralston 
Steven L. Winter 
NAACP Legal Defense and 

Educational Fund, Inc.
10 Columbus Circle>, Suite 2030 
New York, New York 10019 
(212) 586-8397
Fred N. F ishman 
Robert H. Kapp 

Co-Chairmen 
Norman Redlich 

Trustee
William L. Robinson 
Norman J. Chachkin 
Lawyers’ Committee for Civil 

Rights Under Law 
733 15th Street, N.W., Suite 520 
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amici Curiae

Dated: October 24, 1983 * Counsel of Record



APPENDICES



APPENDIX A

LODESTAR FEE COMPUTATION

D istrict  of Columbia  Cir c u it : Copeland v. Marshall, 
641 F.2d 880,890-900 (D.C. Cir. 1980) (en banc) (Title 
VII) ; see also, e.g., Donnell v. United States, 682 F.2d 
240, 249-55 (D.C. Cir. 1982) (Voting Rights Act); 
National Treasury Employees Union v. Nixon, 521 F.2d 
317, 322 (D.C. Cir. 1975) (common fund).

F irst Cir c u it : Furtado v. Bishop, 635 F.2d 915, 919- 
20 (1st Cir. 1980) (§ 1988); see also, e.g., Madeira v. 
Pagan, 698 F.2d 38, 39-41 (1st Cir. 1983) (LMRDA) ; 
Lamphere v. Brown University, 610 F.2d 46, 47 (1st 
Cir. 1979) (Title VII).

Second Cir c u it : Detroit v. Grinnell Corp., 495 F.2d 
448, 470-74 (2d Cir. 1974) (“Grinnell I”) (antitrust), 
and Detroit v. Grinnell Corp., 560 F.2d 1093, 1098-1102 
(2d Cir. 1977) (“Grinnell II”) (antitrust) ; see also,
e.g., Cohen v. West Haven Board of Police Commission­
ers, 638 F.2d 496, 505-06 (2d Cir. 1980) (Revenue Shar­
ing Act) ; Mid-Hudson Legal Services v. G & U, Inc., 
578 F.2d 34, 38 (2d Cir. 1978) (§ 1988) ; Beazer v. New 
York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 
1977) (§ 1988), rev’d on other grounds, 440 U.S. 568 
(1979).

T hird  Cir c u it : Lindy Bros. Builders v. American 
Radiator & Standard Sanitary Corp., 487 F.2d 161, 166- 
70 (3d Cir. 1973) (“Lindy I”) (antitrust common fund), 
and Lindy Bros. Builders v. American Radiator & Stand­
ard Sanitary Corp., 540 F.2d 102, 109-15 (3d Cir. 1976) 
(en banc) (“Lindy II”) (antitrust common fund) ; see 
also, e.g., Pawlak v. Greenawalt, 713 F.2d 972 (3d Cir. 
1983) (common benefit under the LMRDA) ; Prandini 
v. National Tea Co., 585 F.2d 47, 49 (3d Cir. 1978) 
(Title VII) ; Hughes v. Repko, 578 F.2d 483, 487-89 (3d 
Cir. 1978) (§ 1988) ; Rodriguez v. Taylor, 569 F.2d 1231,



2a

1247 (3d Cir. 1977) (ADEA), cert, denied, 436 U.S. 913 
(1978).

F ourth  Cir c u it : Anderson v. Morris, 658 F.2d 246, 
249 (4th Cir. 1981) (§ 1988) ; see also, e.g., Disabled in 
Action v. Mayor & City Council of Baltimore, 685 F.2d 
881, 886 (4th Cir. 1982) (Rehabilitation Act).

F if t h  Cir c u it : Copper Liquor, Inc. v. Adolph Coors 
Co., 624 F.2d 575, 581-83 (5th Cir. 1980) (Clayton A ct); 
see also, e.g., Graves v. Barnes, 700 F.2d 220, 221-24 
(5th Cir. 1983) (Voting Rights Act) ; c/., Johnson v. 
Georgia Highway Express, 488 F.2d 714, 717-20 (5th 
Cir. 1974) (Title VII).

Six t h  Circuit  : Louisville Black Police Officers Organi­
zation v. Louisville, 700 F.2d 268, 273-81 (6th Cir. 1983) 
(§ 1988 and Title V II); see also, Northcross v. Board of 
Education of Memphis, 611 F.2d 624, 641-42 (6th Cir. 
1979) (§ 1988), cert, denied, 447 U.S. 911 (1980).

Sev en th  Cir c u it : Waters v. Wisconsin Steel Works of 
Int’l Harvester, 502 F.2d 1309, 1322 (7th Cir. 1974) 
(Title VII), cert, denied, 425 U.S. 997 (1976), and 
Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir. 1980) 
(§ 1988) ; see also, e.g., Chrapliwy v. Uniroyal, Inc., 670 
F.2d 760, 763 n.5 (7th Cir. 1982) (Title VII) ; Kamberos 
v. GTE Automatic Electric, 603 F.2d 598, 603-04 (7th 
Cir. 1979) (Title VII), cert, denied, 454 U.S. 1060 
(1981).

E ig h t h  Cir c u it : Avalon Cinema Corp. v. Thompson, 
689 F.2d 137, 139-40 (8th Cir. 1982) (en banc) (§ 1988) ; 
see also, e.g., Taylor v. Jones, 653 F.2d 1193, 1205-06 
(8th Cir. 1981) (§ 1988) ; DiSalvo v. Chamber of Com­
merce of Greater Kansas City, 568 F.2d 593, 599 (8th 
Cir. 1978) (Title VII).

N in t h  Circuit  : Brandenburger v. Thompson, 494 F.2d 
885, 890 n.7 (9th Cir. 1974) (private attorney general 
theory) ; see also, e.g., White v. Richmond, 713 F.2d 458



3a

(9th Cir. 1983) (§ 1988) ; Moore v. Jas H. Matthews & 
Co., 682 F.2d 830, 839-41 (9th Cir. 1982) (Clayton 
Act) ; Thornberry v. Delta Air Lines, 676 F.2d 1240, 
1242-43 (9th Cir. 1982) (Title VII) ; Manhart v. Los 
Angeles, Dep’t of Water and Power, 652 F.2d 904, 907- 
OS (9th Cir. 1981) (Title VII) ; cf., Kerr v. Screen 
Extras Guild, 526 F.2d 67, 68-70 (9th Cir. 1974) 
(LMRDA), cert, denied, 425 U.S. 951 (1976).

T e n t h  Cir c u it : Ramos v. Lamm, 713 F.2d 546, 551- 
58 (10th Cir. 1983) (§ 1988).

E lev e n t h  Cir c u it : Fitzpatrick v. Internal Revenue 
Service, 665 F.2d 327, 332 (11th Cir. 1982) (Privacy 
A ct); see also, e.g., Freeman v. Motor Convoy, Inc., 700 
F.2d 1339, 1356 (11th Cir. 1983) (Title VII).



4a

APPENDIX B

NO REDUCTION IN MARKET FEES FOR 
CIVIL RIGHTS ORGANIZATIONS

D istrict  op Columbia  Circuit  : Copeland v. Marshall, 
641 F.2d 880, 898-900 (D.C. Cir. 1980) (en banc) (Title 
VII) (market value fees for all public interest organiza­
tions) ; see also Donnell v. United States, 682 F.2d 240, 
251-52 (D.C. Cir. 1982) (Voting Rights Act) (Lawyers’ 
Committee).

F irst Cir c u it : Palmigiano v. Garrahy, 616 F.2d 598, 
601-02 (1st Cir. 1980) (§ 1988) (ACLU), cert, denied, 
449 U.S. 839 (1980) ; see also, Reynolds v. Coomey, 567 
F.2d 1166, 1167 (1st Cir. 1978) (Title VII) (Legal 
Defense Fund).

Second Cir c u it : Carey v. New York Gaslight Club, 
598 F.2d 1253, 1255 n.l (2d Cir. 1979) (Title VII) 
(NAACP), aff’d, 447 U.S. 54 (1980); Beazer v. New 
York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 
1977) (§ 1988) (Legal Action Center), rev’d on other 
grounds, 440 U.S. 568 (1979) ; Torres v. Sachs, 538 F.2d 
10, 13-14 (2d Cir. 1976) (Voting Rights Act) (Puerto 
Rican Legal Defense Fund).*

T hird  Cir c u it : Rodriguez v. Taylor, 569 F.2d 1231, 
1250 (3d Cir. 1977) (ADEA) (Community Legal Serv­
ices), cert, denied, 436 U.S. 913 (1978); see also, Pawlak 
v. Greenawalt, 713 F.2d 972 (3d Cir. 1983) (common 
benefit under the LMRDA) (Public Citizen Litigation 
Group).

F ourth  Cir c u it : Tillman v. Wheaton-Haven Recrea­
tion Ass’n, 517 F.2d 1141, 1148 (4th Cir. 1975) (Title 
II) (ACLU).

* These decisions have been overruled by Judge Newman’s de­
cision for the panel in New York State Ass’n for Retarded Children 
v. Carey, 711 F.2d 1136, 1148-52 (2d Cir. 1983).



5a

F ifth  Circuit: Watkins v. Mobile Homing Board, 632 
F.2d 565, 567 (5th Cir. 1980) (§ 1988) (Legal Services 
Corporation of Alabama) ; Thompson v. Madison County 
Board of Education, 496 F.2d 682, 689 (5th Cir. 1974) 
(ESAA) (Lawyers’ Committee); Fairley v. Patterson, 
493 F.2d 598, 606 (5th Cir. 1974) (Voting Rights Act) 
(Lawyers’ Committee).

Sixth Circuit: Louisville Black Police Officers Organi­
zation v. Louisville, 700 F.2d 268, 276-78 (6th Cir. 
1983) (§ 1988 and Title VII) (Legal Defense Fund); 
Northcross v. Board of Education of Memphis, 611 F.2d 
624, 637-38 (6th Cir. 1979) (§ 1988) (Legal Defense 
Fund), cert, denied, 447 U.S. 911 (1980).

Seventh Circuit: Gautreaux v. Chicago Housing Au­
thority, 690 F.2d 601, 612-13 (7th Cir. '1982) (§ 1988) 
(ACLU) ; Mary and Crystal v. Ramsden, 635 F.2d 590, 
601-02 (7th Cir. 1980) (§ 1988) (Youth Policy and Law 
Center); Hairston v. R. & R. Apartments, 510 F.2d 1090, 
1092-93 (7th Cir. 1975) (Fair Housing Act) (Legal 
Services).

E ighth Circuit: Collins v. Hoke, 705 F.2d 959, 964 
(8th Cir. 1983) (§ 1988) (Legal Services Corporation 
of Iowa) ; Oldham v. Ehrlich, 617 F.2d 163, 168-69 (8th 
Cir. 1980) (§ 1988) (Nebraska Legal Aid Organization).

N inth  Circuit: Dennis v. Chang, 611 F.2d 1302, 
1305-09 (9th Cir. 1980) (§ 1988) (Legal Aid Society of 
Hawaii).

Tenth  Circuit: Ramos v. Lamm, 713 F.2d 546, 551- 
52 (10th Cir. 1983) (§ 1988) (ACLU).

Eleventh Circuit: See Fifth Circuit decisions bind­
ing on the Eleventh Circuit.



.