Robert W. Kelley, Cross-Appellees v. Metropolitan County Board of Education, Cross-Appellants

WELLFORD, Circuit Judge.

(Concurring in part and dissenting in part.)

I concur with Judge Kennedy in her discussion and reiteration of the rationale of Buian v. Baughard, 687 F.2d 859 (6th Cir.1982).

I concur in Judge Krupansky’s opinion to the extent it approves of the district court’s overall reduction of fees by 10 percent for duplication of services. The opinion observes that a larger reduction under appropriate circumstances may be justified where there has been a failure “to keep contemporaneous time records.” The fact that only a modest reduction was directed by the trial judge is evidence of a sensitive and understanding approach by him in considering all of the aspects of the attorney fee request in this case under standards set by the Supreme Court. 1

I also concur in the court’s judgment that the district court’s conclusion properly refused to award fees for the period during 1979 and 1980 hearings when the essentially frivolous testimony of plaintiffs’ expert witness, Scott, was discussed and produced but later repudiated. I agree, furthermore, that defendant Board should not be held liable for the costs plaintiffs incurred in seeking an injunction against the Mayor and Council, since the latter, if anyone, should be responsible, rather than defendant Board, for those expenses. In addition, I agree that there should be a remand to *690 consider to what extent, if at all, plaintiffs should be considered “prevailing parties” on certain issues still pending, or in respect to charges or claims in which plaintiffs failed to succeed before the trial court (or this court). See Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983) (a case in which some of plaintiffs’ counsel participated as did the Attorney General of the State of Tennessee by ami-cus brief). 2 The district court, on remand, may find some of the claims made by plaintiffs essentially “unrelated” to those on which plaintiffs were found to prevail. See Hensley, 461 U.S. at 435 , 103 S.Ct. at 1940 . As the Supreme Court stated:

If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole time a reasonable hourly rate may be an excessive amount.

* * * * * *

That the plaintiff is a “prevailing party” therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved.

* * :jc # *

There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for limited success. The court necessarily has discretion in making this equitable judgment.

Hensley, 461 U.S. at 436-37 , 103 S.Ct. at 1941-42 .

I respectfully dissent, however, from other portions of the majority opinion. I would hold Buian v. Baughard, 687 F.2d 859 (6th Cir.1982) to be essentially sound in requiring a determination about allowance of costs as a condition for subsequent allowance of fees in civil rights attorney fee award requests. Buian is not inconsistent with, the practice of pragmatic referral to the district court for determination of the reasonable amount of an attorney fee award in a proper case. See Smith v. Detroit Board of Education, 728 F.2d 359 (6th Cir.1984). I would not overrule Bui-an, and I would affirm the judgment below to the extent that it applied Buian to reduce a portion of the fee request.

With regard to the hourly and daily rates awarded to counsel Williams and Dinkins, remembering that “the fee applicant bears the burden of establishing entitlement ... and documenting the appropriate hours and hourly rates,” and emphasizing that “the district court has discretion in determining the amount of a fee award,” Hensley, 461 U.S. at 437 , 103 S.Ct. at 1941 (emphasis added), I would affirm the district court’s action as being within his sound discretion. Much of the fee award claim in this case goes back to services rendered a number of years ago when, in Tennessee, it was rare for an attorney in any case to claim an hourly or daily fee equal to that awarded by the district court in this case. It should be remembered that plaintiffs’ attorneys are entitled only to an award for reasonable value of their services. 3 In perhaps this court’s most frequently cited case dealing with attorney fees in a comparable school desegregation situation, 4 reference was made to an allowance of fees through 1977 to an experienced and successful civil rights lead counsel, Louis Lucas, who requested $75 an hour for services in a 1977 hearing. That same attorney, involved in numerous school desegregation cases in this Circuit (as has been Mr. Williams, one *691 of the claimant’s here), requested an hourly fee of $125 an hour for services in a 1978 hearing in the Memphis desegregation case. He was awarded $75 an hour by this court for non-courtroom time because the requested rate was found to be too high. Northcross, 611 F.2d at 641. In that same case, another experienced civil rights plaintiff attorney, William Caldwell, requested $60 an hour for his services under the 1976 Civil Rights Attorney’s Fees Awards Act; Elijah Noel, Jr., in a comparable position with Mr. Dinkins, requested $50 an hour for his services to plaintiffs through 1977, $60 thereafter. Id.

In Oliver v. Kalamazoo Board of Education, 576 F.2d 714 (6th Cir.1978), another leading school desegregation case comparable to the one at issue, lead counsel Lucas (and others in the category of Mr. Williams) 5 received fees ranging from $60 to $100 an hour for courtroom services, and this allowance, instead of “bonus awards,” was approved by this court. Other attorneys in the case for plaintiffs were awarded fees ranging from $35 to $60. Oliver, 576 F.2d at 717 n. 3. Mr. Williams was awarded total fees of $47,833 by this court arising from his services to plaintiffs as lead counsel over approximately fifteen years in another school case with a similar appellate history, including Supreme Court hearings. Monroe v. Board of Commissioners of the City of Jackson, Tennessee, 581 F.2d 581 (6th Cir.1978). See also Monroe v. Board of Commissioners of Education of Madison County, Tennessee, 583 F.2d 263 (6th Cir.1978). The rates ultimately approved in those cases were less than those approved by Judge Wiseman after the full hearing conducted by him before making his decision.

I therefore depart from the majority view that an increase in hourly rates or daily rates over and above that established in the reasonable discretion of the trial judge, who is familiar with local practice and local fee rates, was mandated. The majority seems unmindful of the Supreme Court’s advice:

We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.

Hensley, 461 U.S. at 437 , 103 S.Ct. at 1941 .

With the contingency factor added in this case, for service beginning in 1972, plaintiffs attorneys are also being rewarded on a substantially higher basis than were plaintiffs’ attorneys in Northcross and in Oliver . No added contingency factor at all was allowed in Hensley .

The concurring opinion of Justice Brennan in Hensley, 461 U.S. at 455 , 103 S.Ct. at 1950 , admonishes:

If a district court has articulated a fair explanation for its fee award in a given case, the court of appeals should not reverse or remand the judgment unless the award is so low as to provide clearly inadequate compensation [emphasis added].

Finally, I would affirm the trial judge in his holding that the May 30, 1972 order in this case was a type of “final order settling the issue of attorney’s fees to that point.” Northcross, 611 F.2d at 635. That order, as found by the district court, disposed of all outstanding phases of the case; it was a “discrete step” deciding the then pending issues arising from the change in the law brought about by Green v. School Board of New Kent County, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968). As in all substantial school desegregation cases of this type, including the Northcross case, the court retained jurisdiction for such implementation that experience and future changing circumstances might bring about. This did not prevent the 1972 order, affirmed by this court, from being the kind of “discrete step or distinct break in the proceedings” described in Northcross. It was *692 a comprehensive order directing desegregation of the metropolitan school system from which both sides unsuccessfully appealed up to the United States Supreme Court. There were no further substantial hearings in this case until 1978, further evidencing that the district court was not clearly erroneous in making a factual finding to that effect and limiting the fee award in light of that finding. It is abundantly clear that major school desegregation cases of this kind may extend over many years, but that interim final orders may come about reflecting a distinct conclusion of then pending issues, which in light of the changes in applicable law, (such as Green, supra, and Swann v. Charlotte-Mecklenburg Board, 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971)) may be revised to reflect current standards or new, unforeseen conditions.

In sum, I dissent because I believe Judge Wiesman acted fairly and within the bounds of his sound discretion and applied the law reasonably to the facts of the case.

. "Where the documentation of hours is inadequate, the district court may reduce the award accordingly. The district court also should exclude from this initial fee calculation hours that were not 'reasonably expended.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433-34 , 103 S.Ct. 1933, 1939-40 , 76 L.Ed.2d 40 (1983).

. It should be noted that the successful plaintiffs’ attorney in Hensley claimed nearly 3000 hours of time and requested a rate of $40 to $65 an hour from 1975 through 1979.

. As a former district judge for many years in the Western District of Tennessee and, before 1971, a practicing lawyer in the largest city in the state, my own experience indicates that Judge Wiseman was, if anything, generous in his award and rate of compensation granted to plaintiffs’ attorneys.

. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir.1979), cert. denied, 447 U.S. 911 , 100 S.Ct. 2999 , 64 L.Ed.2d 862 (1980).

. Including a judge on this court, then chief counsel for the NAACP Legal & Defense Fund, and a federal district judge in Michigan.