Geier v. Sundquist

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Geier, et al. v. Sundquist, et al. No. 02-6400

ELECTRONIC CITATION: 2004 FED App. 0186P (6th Cir.)

File Name: 04a0186p.06 Before: COLE and COOK, Circuit Judges; SPIEGEL,

District Judge.*

UNITED STATES COURT OF APPEALS _________________

FOR THE SIXTH CIRCUIT COUNSEL

_________________

ARGUED: Lewis R. Donelson III, BAKER, DONELSON,

RITA SANDERS GEIER; X BEARMAN & CALDWELL, Memphis, Tennessee, for

- Appellants. Richard F. Haglund III, OFFICE OF THE

PATRICK J. GILPIN ; ERNEST ATTORNEY GENERAL, Nashville, Tennessee, for

TERRELL ; HAROLD SWEATT; -

- No. 02-6400 Appellees. ON BRIEF: George E. Barrett, Edmund L.

PHILLIP SWEATT, Individually - Carey, Jr., BARRETT, JOHNSTON & PARSLEY, Nashville,

and as Next Friend of Phillip > Tennessee, for Appellants. Kathleen A. Eyler, OFFICE OF

, THE ATTORNEY GENERAL, Nashville, Tennessee, for

Sweatt; CITIZENS AND -

RESIDENTS OF THE STATE OF Appellees.

-

TENNESSEE; CITIZENS OF THE - COLE, J., delivered the opinion of the court, in which

UNITED STATES , - SPIEGEL, D. J., joined. COOK, J. (pp. 23-25), delivered a

Plaintiffs-Appellants, - separate dissenting opinion.

-

- _________________

v. -

- OPINION

DON SUNDQ UIST , et al., - _________________

Defendants-Appellees. -

- R. GUY COLE, JR., Circuit Judge. Appellants, the Geier

N Plaintiffs, appeal the district court’s judgment awarding them

$376,587.50 in attorneys’ fees pursuant to 42 U.S.C. § 1988

Appeal from the United States District Court for legal services performed in connection with this civil

for the Middle District of Tennessee at Nashville. rights action – ongoing for the past thirty-six years – which

No. 68-05077—Thomas A. Wiseman, Jr., District Judge. led to the desegregation of Tennessee’s public higher

education system. The Geier Plaintiffs contend that the

Argued: April 27, 2004 district court abused its discretion in: (1) declining to award

fees pursuant to the “common fund”/“common benefit”

Decided and Filed: June 18, 2004 method; (2) setting a lodestar rate of $250 per hour where the

*

The Honorable S. Arthur Spiegel, United States District Judge for

the So uthern District o f Ohio , sitting by de signation.

1

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Geier Plaintiffs had requested and submitted market data African-American institution, to desegregate its student body

supporting an hourly rate of $400; and (3) considering the and faculty. The United States intervened as a plaintiff in

Johnson factors legally unavailable for establishing and 1968, requesting more expansive relief sought by the original

enhancing the lodestar figure. We find no abuse of discretion plaintiffs. The United States asked the court to “order the

in the district court’s declining to use the “common fund”/ State defendants to present a plan calculated to produce

“common benefit” method for calculating attorneys’ fees. meaningful desegregation of the public universities in

However, because of errors in the district court’s analyses Tennessee.” Sanders, 288 F. Supp. at 939. The case soon

concerning the appropriate hourly rate and the Geier became the vehicle for the desegregation of state-affiliated

Plaintiffs’ entitlement to an upward adjustment of the fee colleges and universities throughout Tennessee. In 1973, a

award, we vacate the fee award and remand this case to the group of parents, teachers, and faculty members were allowed

district court for further proceedings consistent with this to intervene (“Richardson Intervenors”). In 1983, the district

opinion. court allowed another group of African-American and white

TSU faculty members and students to intervene (“McGinnis

I. BACKGROUND Intervenors”). Also in 1983, the district court permitted the

TSU Alumni Association to appear as amicus curiae.

This action, which was filed in 1968, concerns the

desegregation of Tennessee’s public universities. The facts The district court found that six years elapsed after Brown

and lengthy history of this litigation have been set forth in the v. Board of Education, 347 U.S. 483 (1954), before racial

prior opinions of this Court and the district court. See Geier requirements for admission to Tennessee’s public universities

v. Sundquist, 94 F.3d 644 (6th Cir. 1996); Geier v. and colleges were abolished. Although all of the state’s

Richardson, 871 F. 2d 1310 (6th Cir. 1989); Geier v. public higher education institutions had non-discriminatory

Alexander, 801 F.2d 799 (6th Cir. 1986); Geier v. Alexander, open door admissions by 1968, the district court found that

593 F. Supp. 1263 (M.D. Tenn. 1984); Geier v. University of “the dual system of education created originally by law has

Tennessee, 597 F.2d 1056 (6th Cir.), cert. denied, 444 U.S. not been effectively dismantled.” Sanders, 288 F. Supp. at

886 (1979); Geier v. Blanton, 427 F. Supp. 644 (M.D. Tenn. 940. Relying on Green v. County School Board, 391 U.S.

1977); Geier v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972); 430 (1968), the district court stated that it was “convinced

and Sanders v. Ellington, 288 F. Supp. 937 (M.D. Tenn. that there is an affirmative duty imposed upon the State by the

1968). Because, however, the matter before us benefits from Fourteenth Amendment to the Constitution of the United

an appreciation of the history and magnitude of this action, States to dismantle the dual system of higher education which

we set forth the case’s background here. presently exists in Tennessee.” Id. at 942. The court then

ordered Defendants to submit a plan “designed to effect such

In 1968, several African-Americans (the “Geier Plaintiffs”) desegregation of the higher educational institutions in

sued the Governor of Tennessee, the University of Tennessee Tennessee, with particular attention to Tennessee A & I State

(“UT”), Tennessee A & I State University, and various University, as to indicate the dismantling of the dual system

Tennessee educational agencies and officials to enjoin UT now existing.” Id. Defendants did not appeal.

from expanding its program at a non-degree-granting

educational institution in Nashville. The complaint alleged Defendants submitted a plan to the court that relied

that any expansion of UT Nashville would affect the efforts primarily on the efforts of predominantly white institutions to

of Tennessee State University (“TSU”), a predominantly expand efforts to recruit black students and faculty. The plan

No. 02-6400 Geier, et al. v. Sundquist, et al. 5 6 Geier, et al. v. Sundquist, et al. No. 02-6400

called for TSU to recruit white students and faculty and to In the subsequent years, Defendants submitted several

develop and publicize academic programs that would attract plans, and the district court ordered that some courses and

white as well as black students from the Nashville area. The fields of study be offered exclusively at UT Nashville.

Geier Plaintiffs and the United States filed objections to the Eventually, all of the plaintiffs, including the United States,

plan, and, after a hearing, the district court found that the plan proposed a merger of TSU and UT Nashville, with TSU as

lacked specificity. Instead of disapproving the plan, however, the surviving institution. The district court held a month-long

the district court directed Defendants to file a report showing evidentiary hearing on this proposal in 1976. After

what had been done to implement each component of the considering voluminous records and testimony, the district

plan. court found steady, but slow progress in attracting black

students and faculty to the formerly-white institutions, but, as

Defendants’ report showed some progress in attracting before, little or no progress in converting TSU from a one-

African-American students to the formerly all-white race university. The court concluded that the plans applied in

institutions, but little improvement in the number of black the course of the eight years that the litigation had been active

faculty at those schools, and virtually no progress in had not worked and showed no prospect of working. The

desegregating TSU. The Geier Plaintiffs filed a motion for court therefore ordered the merger of TSU and UT Nashville

further relief, contending that the plan and report failed to into a single institution under the state’s Board of Regents.

offer a scheme for dismantling the dual system of public The district court chose this “drastic remedy” because “the

higher education, as ordered by the court. While that motion State’s actions have been egregious examples of

was being considered by the district court, a new report constitutional violations.” Geier v. Blanton, 427 F. Supp.

showed that TSU remained 99.7% African-American and that 644, 660 (M.D. Tenn. 1977).

its entering class in the fall of 1970 was 99.9% African-

American. The district court found that so long as TSU In affirming the district court, Geier v. University of

remained overwhelmingly black, it could not be said that Tennessee, 597 F. 2d 1056 (6th Cir.), cert. denied, 444 U.S.

Defendants had dismantled the dual system or that they were 886 (1979), we held that the pronouncement in Green v.

“in any realistic sense, on their way toward doing so.” Geier County School Board of an affirmative duty to remove all

v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972). vestiges of state-imposed segregation applies to public higher

education as well as to education at lower levels. Geier, 597

The district court found that an “open door policy, coupled F.2d at 1065 (“[T]he state’s duty is as exacting to eliminate

with good faith recruiting efforts . . . is sufficient as a basic the vestiges of state-imposed segregation in higher education

requirement” for desegregating institutions of public higher as in elementary and secondary school systems; it is only the

education. Id. at 580 (emphasis in original). However, the means of eliminating segregation which differ.”) (quotation

court held, where this basic requirement fails to eliminate and citation omitted)). We also held that the district court’s

identifiably “white” and “black” institutions, something more factual findings were not clearly erroneous, id. at 1067, and

is required. Defendants were ordered to present another plan that the remedy ordered was within the traditional bounds of

to the court by March 15, 1972, that would provide for equitable relief. Id. at 1068.

substantial desegregation of the TSU faculty and ensure a

substantial white presence on the TSU campus. Id. at 581.

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A. The 1984 Settlement Next ensued a request for interim attorneys’ fees by the

individual plaintiffs and state defendants, who claimed that

The history of the litigation to this point illustrates the they were the “prevailing parties” within the meaning of

arduous path along which the original parties and Defendants 42 U.S.C. § 1988 after the United States intervened in this

traveled before they entered a stipulation of settlement suit, sought relief beyond the injunction requested by the

(“Settlement”) on September 25, 1984. Geier v. Alexander, private parties, and then challenged the Settlement entered

593 F. Supp. 1263 (M.D. Tenn. 1984), aff’d, 801 F.2d 799 into between the parties and approved by the district court,

(6th Cir. 1986). All of the parties, except for the United requiring both the private plaintiffs and Defendants to defend

States, agreed to the comprehensive Settlement requiring the Settlement’s terms. The district court awarded attorneys’

Defendants to implement numerous new desegregation fees against the United States to the Geier Plaintiffs and the

programs throughout Tennessee’s system of higher education, state. The United States appealed and we vacated the award.

including: (1) attempting to obtain a student body at TSU that Geier v. Richardson, 881 F.2d 1075, No. 88-5155, 1989 WL

is 50% white; (2) assuring that changes in admissions policies 90761 (6th Cir. Aug. 11, 1989).

do not have an adverse racial impact; and (3) actively

recruiting African-American faculty and administrative staff B. The 2001 Consent Decree

for Tennessee’s predominantly white institutions. The

Settlement also established a monitoring committee and In 1994, the state moved to vacate the 1984 Settlement and

provided for the resolution of disputes among the parties. terminate the litigation based, in part, on a change in the law

“The plan embodied in the [Settlement] was the culmination stemming from the Supreme Court’s decision in United States

of long hours and days of negotiations in which all parties, v. Fordice, 505 U.S. 717 (1992), which addressed

including the United States, participated.” Geier, 801 F.2d at Mississippi’s dual system of public higher education. In

802. 1996, again relying on Fordice, Defendants moved for a

judgment on the pleadings. The district court did not rule on

But the struggle to desegregate Tennessee’s system of the motion to vacate, and it eventually denied the state’s

higher education continued. Shortly after the district court motion for judgment on the pleadings.

approved the Settlement, the United States filed a

memorandum challenging many of the programs contained in Ultimately, in January of 2000, the parties entered

the Settlement. The district court rejected the Government’s voluntary mediation. Once again, the parties devoted

arguments and the Government appealed to this Court, Geier substantial time to considering the state of racial equality in

v. Alexander, 801 F.2d 799 (1988), challenging only that part Tennessee’s system of higher education. In January 2001, the

of the Settlement that established a pre-professional program parties entered into a Consent Decree, Geier v. Sundquist, 128

pursuant to which seventy-five qualified African-American F. Supp. 2d 519 (M.D. Tenn. 2001), which states, in part:

sophomores would be selected each year and guaranteed

admission to one of the state’ professional schools upon In dismantling the vestiges of the former dual system, it

completing his or her undergraduate work and satisfying the is the parties’ intention to create an education system that

relevant school’s admissions standards. The Government enhances the increased enrollment of African American

argued that this constituted a “racial quota” system, but this students at the predominantly white institutions and that

Court rejected that argument and affirmed the district court’s likewise enhances the enrollment of white students at the

judgment authorizing the Settlement. State’s predominantly black institution. To achieve this

No. 02-6400 Geier, et al. v. Sundquist, et al. 9 10 Geier, et al. v. Sundquist, et al. No. 02-6400

goal, the parties are committed to maintaining hours, which included 416 hours of undocumented time.

educational institutions that are committed to Counsel urged the court to consider the so-called “Johnson

desegregation and to reaching out to all residents of this factors,” listed in Johnson v. Georgia Highway Exp., Inc., 488

State regardless of race. It is also the intention of the F.2d 714 (5th Cir. 1974), either as bearing upon the lodestar

parties that employment and promotion decisions within amount or an enhancement thereof. But, for reasons that will

the State’s system of higher education be made in an be described in more detail below, the district court fixed the

environment unfettered by the discriminatory practices of lodestar at $250 and deemed any enhancement legally

the old dual system. The goal is to increase the presence unwarranted.

of other-race faculty, staff, and administrators on the

campuses of the State’s colleges and universities. The Geier Plaintiffs’ fee award – which covers the period

between June 1987 and January 2001 – is the subject of this

128 F. Supp. 2d at 521. appeal. Pursuant to the 1984 Settlement, they received

$85,000 in interim attorneys’ fees in 1988; that is the only fee

C. Attorneys’ Fees the Geier Plaintiffs have received to date.

Pursuant to the 2001 Consent Decree, the Geier Plaintiffs, II. ANALYSIS

the Richardson Intervenors, and the McGinnis Intervenors

filed applications for attorneys’ fees with the Tennessee We review a district court’s award of attorneys’ fees for

Attorney General. The McGinnis Intervernors reached an abuse of discretion. Perotti v. Seiter, 935 F.2d 761, 763

agreement with the state and were paid attorneys’ fees in June (1991). “An abuse of discretion exists when the district court

2001. However, unable to agree on an award amount with the applies the wrong legal standard, misapplies the correct legal

state, the Geier Plaintiffs and Richardson Intervenors filed standard, or relies on clearly erroneous findings of fact.”

their applications for attorneys’ fees with the federal district First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th

court. They requested a hearing concerning the fee Cir. 1993).

applications, but the district court deemed it unnecessary.

A. Common Fund/Common Benefit Method

On September 27, 2002, the district court issued an Opinion

and Order concerning the attorneys’ fees, awarding the Geier The Geier Plaintiffs’ first claim on appeal is that the district

Plaintiffs’ $376,587.50, although they had requested court abused its discretion in declining to use the “common

$5,000,000. Geier v. Sundquist, 227 F. Supp. 2d 881 (M.D. fund”/“common benefit” method (hereinafter “common

Tenn. 2002).1 The district court used the lodestar method for fund”) for determining attorneys’ fees. Like the lodestar

calculating the fee award and concluded that $250 per hour method, the common fund method is an exception to the

was a reasonable hourly fee. It then determined that counsel general “American rule” that litigants pay their own

for the Geier Plaintiffs should be compensated for 1432.55 attorneys’ fees. It is employed where a lawyer recovers a

common fund for the benefit of persons in addition to those

he formally represents. As the Supreme Court has explained:

1 The doctrine rests on the perception that persons who

Although the court’s opinion also determined a fee award for the

Richardson Intervenors, the state ultima tely reached an agreement with obtain the benefit of a lawsuit without contributing to its

them and paid their attorneys’ fees.

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cost are unjustly enriched at the successful litigant’s measures – transposing the action’s social value into

expense. Jurisdiction over the fund involved in the monetary value is imprecise, and more importantly, still

litigation allows a court to prevent this inequity by leaves us without a fund. The money designated by

assessing the attorneys’ fees against the entire fund, thus Tennessee for the remedial programs goes to fund the

spreading fees proportionately among those benefitted by programs, not to pay the plaintiffs. Moreover, applying the

the suit. Aleyska factors, described above, the common fund method

is unworkable here: the class of persons benefitted by this

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) lawsuit is not at all small or manageable. Rather, according

(citations omitted). In order for a class to recover attorneys’ to the 2001 Consent Decree, the class includes “all residents

fees pursuant to the common fund doctrine: (1) the class of of this State,” Geier, 128 F. Supp. 2d at 521. As such, the

people benefitted by the lawsuit must be small in number and class is not easily identifiable and the benefits could not be

easily identifiable; (2) the benefits must be traceable with traced with any accuracy.

some accuracy; and (3) there must be reason for confidence

that the costs can in fact be shifted with some exactitude to B. Reasonable Hourly Rate

those benefitting. Aleyska Pipeline Serv. Co. v. Wilderness

Soc’y, 421 U.S. 240, 247 (1975). The Supreme Court has Having declined to use the common fund doctrine for

stated that “[t]hose characteristics are not present where calculating attorneys’ fees, the district court instead used the

litigants simply vindicate a general social grievance.” lodestar approach whereby the court multiplies a reasonable

Boeing, 444 U.S. at 478. The criteria are met, however, hourly rate by the proven number of hours reasonably

“when each member of a certified class has an undisputed and expended on the case by counsel. Adcock-Ladd v. Secretary

mathematically ascertainable claim to part of a lump-sum of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). “The primary

judgment recovered on his behalf.” Id. As such, the common concern in an attorney fee case is that the fee awarded be

fund method is often used to determine attorneys’ fees in reasonable, that is, one that is adequately compensatory to

class action securities cases, see, e.g., Boeing, 444 U.S. 472, attract competent counsel yet which avoids producing a

and suits by union members against their unions, see, e.g., windfall for lawyers.” Reed v. Rhodes, 179 F.3d 453, 471

Hall v. Cole, 412 U.S. 1 (1973). (6th Cir. 1999) (citing Blum v. Stenson, 465 U.S. 886, 893,

897 (1984). To arrive at a reasonable hourly rate, courts use

It was not an abuse of discretion for the district court to as a guideline the prevailing market rate, defined as the rate

decline to use the common fund method in this case. In that lawyers of comparable skill and experience can

addition to the doctrine being inapplicable where litigants are reasonably expect to command within the venue of the court

vindicating a social grievance, the doctrine is inappropriate of record. Adock-Ladd, 227 F.3d at 350. The Geier

here because there is simply no fund. The benefit provided to Plaintiffs contend that the district court abused its discretion

the plaintiff class – the desegregation of Tennessee’s system in finding $250 a reasonable hourly rate when they had both

of higher education – is not pecuniary in any conventional requested $400 per hour and submitted evidence that $400

way and did not result in the creation of a fund to be divvied was the reasonable hourly rate for lawyers of skill and

up among the plaintiffs, as is the case in common fund cases. experience comparable to George E. Barrett, the Geier

Although (as the Geier Plaintiffs urge) the benefits attained Plaintiffs’ lead counsel, litigating a civil rights action of this

could perhaps be measured as pecuniary – in the sense that a scale.

dollar value could be assigned to the cost of the remedial

No. 02-6400 Geier, et al. v. Sundquist, et al. 13 14 Geier, et al. v. Sundquist, et al. No. 02-6400

We recognize that deference is to be given to a district We also note that the district court determined that $250 per

court’s determination of a reasonable attorneys’ fee. hour was the appropriate hourly rate for the McGinnis

Nonetheless, it remains important for the district court to Intervenors’ counsel, Messrs. Norris and Weatherly. The

provide an adequate explanation of the reasons for its award Geier Plaintiffs argued that they were more experienced and

and the manner in which that award was determined. Hensley more active in the litigation than the intervenors’ counsel, and

v. Eckerhart, 461 U.S. 424, 437 (1983) (“it remains important that therefore, they are entitled to a higher hourly rate. We

for the district court . . . to provide a concise but clear find this argument sensible. According to the record, Norris

explanation of its reasons for the fee award.”). At times, we and Weatherly are less experienced than Mr. Barrett, and both

have found an abuse of discretion where a district court fails were paid at lower hourly rates earlier in this lawsuit. See

to explain its reasoning adequately or to consider the Geier 227 F. Supp. 2d at 883 (explaining that, in 1987, Norris

competing arguments of the parties. See Moore v. City of was paid $90 per hour; Dinkins $125 per hour; and Barrett

Paducah, 790 F.2d 557 (6th Cir. 1986). $150 per hour). Furthermore, by Mr. Norris’s own

admission, in a letter to Mr. Barrett dated February 2, 2001,

Here, in determining the reasonable hourly rate, the district he and Weatherly played a less “global” role in this action

court appears to have relied almost exclusively on market data through the years.

provided by Defendants, citing to local awards of

approximately $250 per hour in civil rights cases. (The court In short, the district court’s order contains no explanation

also purported to rely on its own judicial experience, noting: of how – or even if – it accounted for the Geier Plaintiffs’

“My recollection is not what it once was, but I cannot recall competing information concerning the prevailing market rate.

ever awarding a fee in excess of $250 per hour.” Geier, 227 Absent some indication of how the district court’s discretion

F. Supp. 2d at 886.). While this data is informative, the was exercised, we have no way of knowing whether that

district court never mentioned that the Geier Plaintiffs’ discretion was abused. See Chalmers v. City of Los Angeles,

counsel requested $400 per hour, and the court never 796 F.2d 1205 (9th Cir. 1986) (vacating award of attorneys’

discussed any of the evidence submitted by the Geier fees and remanding where district court’s opinion

Plaintiffs supporting a $400 per hour rate. Attorney Lewis R. insufficiently explained how it arrived at the fee amount). We

Donelson, of Nashville, Memphis, and Knoxville’s Baker, are, therefore, unable to affirm the decision below.

Donelson law firm, submitted an affidavit stating that a $450

hourly rate for Mr. Barrett was “fair and reasonable [and] not Accordingly, the hourly rate determination as to the Geier

an uncommon rate for leading attorneys in Tennessee at this Plaintiffs is vacated and we remand this matter for further

time,” and that Mr. Barrett “is certainly the leading expert on review based upon the market data of record, including the

civil rights desegregation cases.” There were similar Geier Plaintiffs’ submissions.

affidavits – attesting to the reasonableness of a $400 or $450

hourly fee – from five other attorneys. In addition, the Geier C. The Johnson Factors

Plaintiffs point to the $400 per hour rate awarded attorneys in

Craft v. Vanderbilt University, a federal class action from the The Geier Plaintiffs’ last claim on appeal is that the district

Middle District of Tennessee alleging civil rights violations court abused its discretion in failing to consider the

in connection with a 1940s medical experiment in which Johnson factors as bearing on the initial lodestar figure and

pregnant women unknowingly ingested radioactive iron any enhancement thereof. The Supreme Court has repeatedly

isotope. stated that “[t]he primary concern in an attorney fee case is

No. 02-6400 Geier, et al. v. Sundquist, et al. 15 16 Geier, et al. v. Sundquist, et al. No. 02-6400

that the fee award be reasonable.” Blum v. Stenson, 465 U.S. by failing to consider an upward adjustment of the lodestar

886, 893 (1984). As already discussed, the first step in figure. To help explain why this is so, we set forth, in

determining a reasonable fee in a lodestar case is to multiply relevant part, the district court’s analysis on this point. The

the number of hours reasonably expended on the litigation by district court stated:

a reasonable hourly rate. Once the lodestar figure is

established, the trial court is permitted to consider other Counsel urges the Court to consider the Johnson factors

factors, and to adjust the award upward or downward to . . . either as bearing upon the lodestar amount or an

achieve a reasonable result. Hensley v. Eckerhart, 461 U.S. enhancement thereof. . . . [The district court here lists

424, 434 (1983). In considering any adjustment, the Supreme the Johnson factors]. . . .

Court has cited with approval the twelve factors listed in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, The one factor in Johnson that the Supreme Court felt

717-19 (5th Cir. 1974). Hensley, 461 U.S. at 430 n. 3, 434 n. may be still available is that of “risk.” When the case

9. Those factors are: was filed in 1968, there was substantial risk that the

outcome might be unfavorable. Although Brown v.

(1) the time and labor required; (2) the novelty and Board had been decided 14 years before, this case

difficulty of the question; (3) the skill requisite to involved higher education and the law was unsettled.

perform the legal service properly; (4) the preclusion of Risk was removed after Judge Gray’s early decisions,

other employment by the attorney due to acceptance of and certainly was finally removed after the Stipulation of

the case; (5) the customary fee; (6) whether the fee is Settlement in 1984. Thereafter, the case only required

fixed or contingent; (7) time limitations imposed by the monitoring for compliance. A flurry of activity in the

client or the circumstances; (8) the amount involved and case arose when the state sought dismissal under the

the results obtained; (9) the experience, reputation, and decision in Fordice. When Attorney General Paul

ability of the attorney; (10) the “undesirability” of the Summers took office and indicated a desire to settle the

case; (11) the nature and length of the professional case, and initiated mediation, good will and innovative

relationship with the client; and (12) awards in similar efforts on the part of all counsel and parties resulted in

cases. the Consent Decree. Therefore, under the teaching of

[Pennsylvania v. Delaware Valley Citizens’ Council for

Johnson, 488 F.2d at 717-19. The Supreme Court, however, Clear Air, 478 U.S. 546 (1986) no enhancement is

has limited the application of the Johnson factors, noting that warranted and the Court fixes the lodestar at $250 per

“many of these factors usually are subsumed within the initial hour.

calculation of hours reasonably expended at a reasonable

hourly rate.” Hensley, 461 U.S. at 434 n. 9. Geier, 227 F. Supp. 2d at 886-87 (emphasis in original).

Since we are vacating the lodestar figure in light of the Although the district court quoted from that part of

hourly rate issue discussed in Part II, Section B. above, there Delaware Valley indicating that “adjustments of the lodestar

is no reason to address, at this time, the Geier Plaintiffs’ figure are still permissible” in “rare” and “exceptional” cases,

contention that the district court failed to consider the 478 U.S. at 565, the court never discussed whether this is

Johnson factors in establishing that initial figure. However, such a special case. Instead, the district court stated that none

we agree with the Geier Plaintiffs that the district court erred of the Johnson factors are legally available as bearing on an

No. 02-6400 Geier, et al. v. Sundquist, et al. 17 18 Geier, et al. v. Sundquist, et al. No. 02-6400

upward adjustment, except for “risk.” The court then Of the factor pertaining to the quality of counsel’s

determined that there was no risk level in this case after the representation, the Supreme Court stated in Blum that it is

1984 Settlement (a questionable conclusion in light of the “generally . . . reflected in the reasonable hourly rate,”

state’s efforts to dismiss the case in 1994, resulting in although it may still justify an upward adjustment “in the rare

protracted litigation and negotiations resulting in a new case where the fee applicant offers specific evidence to show

Consent Decree in 2001; but this is not pressing to the issue that the quality of service rendered was superior to that one

now before us), and that therefore, “no enhancement [of the reasonably should expect in light of the hourly rates charged

lodestar] is warranted.” Geier, 227 F. Supp. 2d at 887. and that the success was ‘exceptional’.” Blum, 465 U.S. at

899. Similarly, with respect to the factor pertaining to the

Unfortunately, that analysis was not correct. The Supreme “results obtained,” the Supreme Court stated that it “generally

Court has emphasized that, although application of the will be subsumed within other factors used to calculate a

Johnson factors is limited, upward adjustments are reasonable fee” and “normally should not provide an

permissible in certain “rare” and “exceptional” cases. independent basis for increasing the fee award.” Id. at 900.

Pennsylvania v. Delaware Valley Citizens’ Council for Clean But the Supreme Court was careful to stress that it was not

Air, 478 U.S. 546, 564 (1986). We also note that the blanketly precluding consideration of “results obtained,” but

Supreme Court has not had occasion to individually address rather establishing a presumption that that factor is included

each of the factors; it has only provided specific guidance in the initial lodestar figure but may still be considered as part

concerning some of them. In its clearest pronouncement of an upward adjustment in exceptional cases: “[W]e reiterate

concerning the Johnson factors, the Supreme Court held that what was said in Hensley: ‘where a plaintiff has obtained

neither the complexity nor novelty of the issues in a case is an excellent results, his attorney should recover a fully

appropriate factor in determining whether to increase the compensatory fee. Normally this will encompass all hours

basic fee award. Blum, 465 U.S. at 898-99. With respect to reasonably expended on the litigation, and indeed in some

risk – that is, the risk of not prevailing in the litigation – the cases of exceptional success an enhancement award may be

Supreme Court has held this factor applicable only where the justified.” Id. at 901 (quoting Hensley, 461 U.S. at 435).

trial court specifically finds that the case is one of the Lastly, to underscore its point that certain Johnson factors –

“exceptional” cases in which an upward adjustment is including the “results obtained” – are applicable to a trial

appropriate and that there was real risk of not prevailing in the court’s consideration of an upward adjustment in exceptional

case. Pennsylvania v. Delaware Valley Citizens’ Council for cases, the Supreme Court explicitly reject[ed] petitioner’s

Clean Air, 483 U.S. 711, 730-31 (1987). In addition, as a argument that an upward adjustment to an attorney’s fee is

general rule, the upward adjustment for risk may be no more never appropriate under § 1988. Id. at 901.

than one third of the lodestar, and “[a]ny additional

adjustment [for risk] would require the most exacting The last Supreme Court case to consider the Johnson

justification.” Id. at 730. Because the “rare” and factors in any depth reaffirmed Blum. In Pennsylvania v.

“exceptional” determination must precede any risk analysis, Delaware Valley Citizens’ Council for Clean Air, 478 U.S.

the district court here was not even permitted to reach the risk 546, 565 (1986) (hereinafter “Delaware Valley”), the

analysis, having never considered whether this case is one of Supreme Court noted that factors such as “the special skill

the rare and exceptional ones meriting an upward adjustment. and experience of counsel,” the “quality of representation,”

and the “results obtained” from the litigation “are presumably

fully reflected in the lodestar amount, and thus cannot serve

No. 02-6400 Geier, et al. v. Sundquist, et al. 19 20 Geier, et al. v. Sundquist, et al. No. 02-6400

as independent bases for increasing the basic fee award.” the same as applying it, particularly where the court has

Again, however, the Supreme Court stated that “upward overlooked several of the most important elements of the

adjustments of the lodestar figure are still permissible” and standard – in this case, the continuing permissibility of

are proper “in certain ‘rare’ and ‘exceptional’ cases.” Id. at upward adjustments in exceptional cases and the relevance of

565 (quoting Blum, 465 U.S. at 898-901). In Delaware certain Johnson factors to that adjustment.

Valley, the Supreme Court does not purport to expand Blum

in any way. Accordingly, we must construe its statement that The Geier Plaintiffs have asserted that this is one of those

certain Johnson factors “cannot serve as independent bases “rare” and “exceptional” cases meriting an upward adjustment

for increasing the basic fee award,” id., not in isolation or as of the lodestar figure. The appropriate legal analysis begins

precluding use of those factors altogether, but rather in light with consideration of that question. As detailed in Part I of

of (1) the statements that precede it – namely that the named this opinion, the magnitude of this case is formidable in

factors are “presumably” reflected in the lodestar fee, but not numerous respects. The legal principles advanced by the

certainly so; (2) the statements that follow it, reiterating that Geier Plaintiffs were pathbreaking and of great social import.

upward adjustments are permissible in “rare” and It was in this case that this Court first held that there was an

“exceptional” cases; and (3) Blum, the case that that portion affirmative duty to remove all vestiges of state-imposed

of Delaware Valley is summarizing, which preserved the use segregation in institutions of public higher education, just as

of the “results obtained” and the “quality of representation” there was such an obligation at lower educational levels.

for an upward adjustment analysis in those “rare” and Plaintiffs have litigated – successfully – for thirty-six years

“exceptional” cases. against continuous state opposition and contrary judicial

precedents outside this Circuit, and they have secured

Here, the district court neither found this case exceptional injunctive relief – valued at approximately $320 million – in

nor unexceptional – and as such, should not have even programs affecting all public institutions of higher education

reached the risk analysis that it performed. Moreover, as we in the state of Tennessee.

have explained, it is not the case, as the district court

believed, that all of the Johnson factors are no longer When this case was filed, it focused the federal judiciary on

available as bearing on an adjustment of the lodestar figure. the desegregation of public higher education. See Decl. of

Certain factors – such as the “results obtained” – are still David Williams, II, Vice Chancellor for Student Life and

relevant, following the predicate determination that the case University Affairs and General Counsel and University

is one of the rare and exceptional ones meriting an upward Secretary, Vanderbilt University ¶¶ 6-14. (JA 554-56.)

adjustment. Because the district court applied the wrong legal Defendants had argued that a good faith, open door policy of

standard to the upward adjustment analysis – and also seemed admissions satisfied the requirements of the Fourteenth

to imply, in error, that upward adjustments are no longer even Amendment for racial equality in public institutions of higher

permissible – we find an abuse of discretion. First Tech. education. Their argument was based on an interpretation of

Safety Sys., 11 F.3d at 647 (“An abuse of discretion exists the outcome of a civil rights action in Alabama, in which a

when the district court applies the wrong legal standard. . . .”). federal district court denied the plaintiffs injunctive relief

concerning state officials’ plans to expand a previously white

Nor are we satisfied that the district court engaged in the campus near a historically black college in Montgomery,

proper legal analysis simply because it quoted from the Alabama. The U.S. Supreme Court had summarily affirmed.

germane part of Delaware Valley. To cite a standard is not See Alabama State Teachers Ass’n v. Alabama Pub. Sch. and

No. 02-6400 Geier, et al. v. Sundquist, et al. 21 22 Geier, et al. v. Sundquist, et al. No. 02-6400

Coll. Auth., 289 F. Supp. 784, 787 (M.D. Ala. 1968), aff’d III. CONCLUSION

393 U.S. 400 (1969) (hereinafter “ASTA”). The opinion in

ASTA and the Supreme Court’s summary affirmance led some For the reasons set forth above, we VACATE the district

to believe that an open door policy alone was sufficient to court’s award of attorneys’ fees to the Geier Plaintiffs and

remedy de jure segregation in higher education. It was Geier REMAND for: (1) further explanation concerning the hourly

that steered the jurisprudence in a different direction and rate; (2) calculation of the lodestar figure; and

became the basis for concerted efforts by the Office of Civil (3) determination of any upward adjustment.

Rights of the Department of Education and the Department of

Justice’s Civil Rights Division to persuade courts that open

door policies were insufficient (and, on their own, ineffective)

to achieve desegregated systems of public higher education in

the South. See Declarations of David Williams, II (JA 554-

557) and Rita Sanders Geier (JA 510-517). Those efforts

included lawsuits brought in Virginia, Alabama, Mississippi,

and Louisiana. In the Virginia case, Norris v. State Council

of Higher Educ. for Virginia, 327 F. Supp. 1368 (E.D. Va.

1971), the court explicitly relied on the district court opinion

in Geier to reject arguments by the state defendants that a

state could discharge its duty to dismantle a previously de

jure segregated system simply by declaring open enrollment.

The exceptional nature and national significance of this

case was further exemplified in 1997, when the U.S.

Department of Justice’s Civil Rights Division celebrated its

fortieth anniversary. Speakers included members of

Congress, the U.S. Attorney General, Department of Justice

officials, and Rita Sanders Geier, the lead original plaintiff in

this action.

All of this, combined with the tenacity of the attorneys and

broad remedies obtained – described in Part I above – render

this a “rare” and “exceptional” case. Having held that this

case is exceptional within the meaning of Blum and Johnson,

an upward adjustment is permissible and we remand to the

district court for the particularized application of factors –

including “results obtained” – bearing on the amount of any

upward adjustment.

No. 02-6400 Geier, et al. v. Sundquist, et al. 23 24 Geier, et al. v. Sundquist, et al. No. 02-6400

______________ prevailing market rate in the relevant community. Geier v.

Sundquist, 227 F. Supp. 2d 881, 886 (M.D. Tenn. 2002)

DISSENT (“This Court therefore finds that the prevailing market rate

______________ that lawyers of comparable skill and experience can

reasonably expect to command within the Middle District of

COOK, Circuit Judge, dissenting. Because I conclude that Tennessee for this type of work is $250 per hour.”).

the district court did not abuse its discretion in (1)

determining that $250 was a reasonable hourly rate for the Citing Moore v. City of Paducah, 790 F.2d 557 (6th Cir.

Geier plaintiffs’ counsel, and (2) refusing to apply an upward 1986), the majority infers an abuse of discretion from the

adjustment to the lodestar amount, I respectfully dissent from absence of explicit commentary in the district court’s opinion

parts II.B and II.C of the majority’s opinion. about the competing arguments of the Geier plaintiffs. The

Moore court, however, defined abuse of discretion in the

A. The Reasonable Hourly Rate context of a district court’s ruling on a motion to amend the

pleadings, and since that decision, this court has cited the

As the majority notes, a district court must provide a Moore definition only in that context. This court has not

“concise but clear explanation of its reasons for the fee previously held that a district court, having determined a

award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A reasonable hourly fee using evidence of the prevailing market

district court abuses its discretion when it “relies on clearly rate in the relevant community, abused its discretion in failing

erroneous findings of fact, or when it improperly applies the to explicitly discuss the arguments of one of the parties, and

law or uses an erroneous legal standard.” Adcock-Ladd v. we should not do so here.

Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citation

omitted). This court may also find an abuse of discretion I conclude that under the highly deferential standard this

“when [we are] firmly convinced that a mistake has been court applies in reviewing statutory fee awards, the district

made.” Id. at 349 (citation omitted). court’s determination that $250 constitutes the reasonable

hourly rate for the Geier plaintiffs’ counsel was not an abuse

In determining the reasonable hourly rate for the Geier of discretion. Although discussing the Geier plaintiffs’

plaintiffs’ counsel, the district court did not rely on clearly arguments in favor of a $400 hourly rate may have further

erroneous findings of fact, improperly apply the law, or use clarified the district court’s decision, the lack of such a

an erroneous legal standard. Instead, the district court used discussion does not leave me “firmly convinced that a

the “prevailing market rates in the relevant community” to set mistake has been made.” Adcock-Ladd, 227 F.3d at 349.

the reasonable hourly rate, surveying the hourly rates awarded

to highly experienced counsel in civil rights and class action B. The Johnson Factors

cases in Tennessee. Blum v. Stenson, 465 U.S. 886, 895

(1984) (holding that “‘reasonable fees’ under § 1988 are to be The majority concludes that the district court misstated the

calculated according to the prevailing market rates in the Supreme Court’s holding in Pennsylvania v. Delaware Valley

relevant community”). Although the district court did not Citizens’ Council for Clean Air, 478 U.S. 546 (1986),

expressly reject the Geier plaintiffs’ arguments supporting concerning a district court’s assessment of the Johnson factor

their request for a $400 hourly rate, the district court’s of “risk” when considering an upward adjustment. Geier, 227

opinion reflects its rejection of the figure as exceeding the F. Supp. 2d at 887 (“[t]he one factor in Johnson that the

No. 02-6400 Geier, et al. v. Sundquist, et al. 25

Supreme Court felt may be still available is that of ‘risk’”).

I respectfully disagree, however, because when taken in

context, the district court’s opinion reflects an understanding

of the Supreme Court’s view in Delaware Valley regarding

risk analysis. Delaware Valley, 478 U.S. at 568 (leaving

unresolved “the question of upward adjustment, by way of

multipliers or enhancement of the lodestar, based on the

likelihood of success, or to put it another way, the risk of

loss”). The district court, in an extended quote from

Delaware Valley, acknowledged that a court’s determination

of the reasonable hourly rate most likely already accounts for

most, if not all, of the Johnson factors, with risk as the factor

remaining to be considered at the upward-adjustment stage of

the lodestar analysis.

The district court’s opinion details its reason for denying an

enhancement of the lodestar amount. Judge Wiseman

evaluated the risk here to be insufficient to warrant an upward

adjustment because the period for which the Geier plaintiffs’

counsel sought fees encompassed only “monitoring for

compliance,” with an occasional “flurry of activity.”

“Generally, the trial judge’s exercise of discretion in statutory

fee award cases is entitled to substantial deference, especially

when the rationale for the award was predominantly fact-

driven.” Adcock-Ladd, 227 F.3d at 349.

Given the substantial deference this court accords a district

court’s fee award when the district court provides a non-

erroneous legal and factual basis for its decision, I would

affirm the fee award here. Because the majority does not, I

respectfully dissent.