Appendix — Gilbert v. City of Little Rock

88-1886¢@| Fite |

MAY 20 168

JOSEPH F. SPANIOL, JR.

aaa

No.____ |

3n the

Supreme Court of the United States

October Term, 1988

Johnnie Gilbert, et. al.,

Petitioners.

V.

City of Little Rock, et. al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

VOLUME II

APPENDIX

PHILLIP J. DUNCAN

Counsel of Record

THOMAS M. BRAMHALL

RALPH C. OHM

BRAMHALL, DUNCAN and OHM

Suite 820 Plaza West Building

415 North McKinley Street

Little Rock, Arkansas 72205

(501) 664-9440

Counsel for Petitioners

TABLE OF CONTENTS

En banc Decision Court of Appeals (January 27, 1989)

A-1 - A-2

Panel Decision of Court of Appeals (January 27, 1989)

B-1 - B-12

Opinion of District Court (August 2, 1988) C-1 - C-4

Opinion of istrict Court (August 4, 1987) D-1 - D-12

APPENDIX A

A-1l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 87-2128

No. 87-2189

Johnnie Gilbert, Horace Walters,

Andrew Lockhart, and Billy

O’Donald,

Appellants/Cross-appellees,

V.

The City of Little Rock,

Arkansas; The Civil Service

Commission of the City of

Little Rock, Arkansas; Walter

E. “Sonny” Simpson, individually

and in his official capacity as

Chief of Police of the City of

Little Rock, Arkansas; and

Carlton E. MeMullin, indivi-

dually and in his official

capacity as City Manager of the

City of Little Rock, Arkansas,

Appellees/Cross-appellants.

Julius Bryant, Jack Matlock,

Mixie Alexander, Jesse Briscoe,

Grady Anthony, Marcella Wilson,

and Larry Bazzelle,

Intervenors-Below.

%* &# *& & &# & #& & He He He He He He OF OF HF OH HO HF HF HO HF HO HO HF OH HR OF

Appeals from United |

States District Court

for the Eastern

District of Arkansas

A-2

Submitted: December 8, 1988

Filed: January 27, 1989

Before LAY, Chief Judge, HEANEY,* McMILLIAN,

ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN,

WOLLMAN, MAGILL, and BEAM, Circuit Judges,

en banc.

PER CURIAM.

The order of the district court! awarding appellants

expert witness fees as expenses under 42 U.S.C. § 1988 at the

statutory rate of $30 per day, 28 U.S.C. § 1821, for a total award

of $900.00, ? is affirmed by the vote of an equally divided court.

The remaining issues are remanded to the original panel

for decision.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

*The HONORABLE GERALD W. HEANEY assumed senior status on

January 1, 1989.

1

The Honorable Elsijane T. Roy, United States District Judge for the

Eastern District of Arkansas.

2

Gilbert v. City of Little Rock, No. LR-C-78-340, slip op. at 9-10 (E.D. Ark.

Aug. 7, 1987) (order), citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 107 S.Ct.

2494 (1987).

APPENDIX B

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 87-2128

No. 87-2189

Johnnie Gilbert, Horace Walters,

Andrew Lockhart, and Billy

O’Donald,

Appellants/Cross-appellees,

v.

The City of Little Rock,

Arkansas; The Civil Service

Commission of the City of

Little Rock, Arkansas; Walter

E. “Sonny” Simpson, individually

and in his official capacity as

Chief of Police of the City of

Little Rock, Arkansas; and

Carlton E. McMullin, indivi-

dually and in his official

capacity as City Manager of the

City of Little Rock, Arkansas,

Appellees/Cross-appellants.

Julius Bryant, Jack Matlock,

Mixie Alexander, Jesse Briscoe,

Grady Anthony, Marcella Wilson,

and Larry Bazzelle,

Intervenors-Below.

* *£+ &# & & & &# He He He He HOH Hi OH HF HB H H HB H H HH HH HB H HB H F

Appeals from United

States District Court

for the Eastern

District of Arkansas

B-2

Submitted: December 8, 1988

Filed: January 27, 1989

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON,

Senior Circuit Judge, and HANSON,* Senior District

Judge.

McMILLIAN, Circuit Judge.

The court en bane has remanded the non-expert

witness fees issues raised in these appeals to the original

panel for decision.

In appeal No. 87-2128, Johnnie Gilbert, Horace

Walters, Andrew Lockhart, and Billy O’Donald (appellants)

appeal from a final order entered in the District Court ! for

the Eastern District of Arkansas limiting appellant

Walters’s recovery of backpay to $331.73. Gilbert v. City of

Little Rock, No. LR-C-78-340 (E.D. Ark. Aug. 4, 1987)

(order). For reversal, appellants argue the district court

erred in refusing to award Walters backpay on the basis of

the salary of a lieutenant. In appeal No. 87-2189, the City of

Little Rock (the City) cross-appeals from the district court's

order awarding appellants $184,969.50 in attorney’s fees.

For reversal, the City argues that the district court erred in

(1) refusing to further reduce the number of compensable

hours, (2) refusing to further reduce the award of attorney's

fees for failure to completely prevail, and (3) enhancing the

award of attorney’s fees.

*The Honorable William C. Hanson, United States Senior District Judge for

the Northern and Southern Districts of Iowa, sitting by designation.

1

The Honorable Elsijane T. Roy, United States District Judge for the

Eastern District of Arkansas.

B-3

For the reasons set forth below, we affirm the order of

the district court, as modified herein.

BACKGROUND

On September 27, 1978, appellants filed a complaint in

district court against the City and others alleging racial

discrimination by the City of Little Rock Police Department

(LRPD), in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-5(f), 42 U.S.C. §§ 1981, 1983, and the

fourteenth amendment. Other parties subsequently

intervened as plaintiffs. Appellants and intervenors

charged LRPD with racial harassment, discriminatory

disciplinary policies, and discriminatory promotional

policies, and sought injunctive relief and compensatory and

punitive damages. The district court found neither

intentional discrimination nor disparate impact and

dismissed the complaint. Gilbert v. City of Little Rock, 544

F. Supp. 1231, 1261 (E.D. Ark. 1982). On appeal, this court

affirmed the dismissal of the racial harassment and

discriminatory discipline claims but remanded the

discriminatory promotions claim. Gilbert v. City of Little

Rock, 722 F.2d 1390 (8th Cir. 1983), cert. denied, 466 U.S. 972

(1984). The district court on remand again dismissed the

discriminatory promotions claim. Gilbert v. City of Little

Rock, No. LR-C-78-340 (E.D. Ark. June 7, 1985).

On appeal after remand, this court reversed, finding

that appellants had been discriminated against on the basis

of their race through the LRPD promotional system, and

remanded to the district court to determine the

compensation to be awarded. Gilbert v. City of Little Rock,

799 F.2d 1210 (8th Cir. 1986). We instructed that appellants

should be permanently promoted to sergeant as soon as

positions are available and should be compensated for lost

wages and benefits from the date they would have been

promoted absent discrimination until they actually were

promoted. Jd. at 1216. We also noted that appellants could

apply to the district court for attorney’s fees. Jd.

B-4

On remand, the parties stipulated the amounts of

compensation appellants Gilbert, O’Donald, and Lockhart

should receive. The parties were unable to agree on the

proper compensation for appellant Walters. Walters was

actually promoted to sergeant in September 1980, not long

after July 1980, the date he would have been promoted

absent discrimination. Walters was further promoted to

lieutenant in October 1983. The City believed that Walters

should be awarded backpay for the period between July

1980, when he would have been promoted to sergeant

absent discrimination, and September 1980, when he

actually was promoted. Walters maintained that, but for the

discrimination, he would have been promoted to lieutenant

in October 1981, rather than October 1983, and accordingly

should be awarded backpay on that basis. The district court

ruled in favor of the City because it found to be speculative

Walters’s claim that he would have been promoted to

lieutenant earlier. Slip op. at 2-3.

The district court also ruled on appellants’ request for

attorney's fees and costs pursuant to the Civil Rights

Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988. Three

of appellants’ attorneys requested an award of attorney’s

fees: Thomas M. Bramhall, Ralph C. Ohm, and Phillip J.

Duncan. Bramhall requested compensation for 153.75 hours

at the rate of $125.00 per hour. The City conceded the

reasonableness of Bramhall’s hours, but challenged the

$125.00 hourly rate as excessive. The district court granted

Bramhall compensation at the rate of $110.00 per hour and

awarded him attorney’s fees in the amount of $16,912.50.

Slip op. at 5-6.

Ohm sought compensation for 354.94 hours at the rate

of $65.00 per hour for his work as an attorney and 239.50

hours at $25.00 per hour for his work as a law clerk. The

district court reduced Ohm’s attorney hours to 300 and

reduced his overall attorney’s fee by fifteen percent due to

the failure of appellants to completely prevail. /d. at 6. The

ae

B-5

district court also enhanced Ohm's fee by fifteen percent

because of ‘the undesirability of this case, the difficulty of

the questions presented, the time and labor required, the

length of the professional! relationship with [appellants,] and

the contingent nature of the fee,” id, and awarded Ohm

$25,048.75 in attorney’s fees. Jd. at 7.

Duncan requested compensation for 1,662.69 hours at

the rate of $125.00 per hour. The district court reduced the

number of compensable hours to 1,330 and determined that

a reasonable hourly rate was $110.00. Jd. at 7-8. The district

court then reduced and enhanced Duncan’s award, as it had

previously done with Ohm’s fee, and awarded Duncan

$143,008.25 in attorney’s fees. Jd. at 8.

As to costs, the district court awarded appellants

$3,302.35 for transcript and deposition costs and $3,960.24

for out-of-pecket expenses. /d.

Appellants also claimed $93,946.69 in expert witness

fees and expenses. The district court noted that “[uJntil

recently, the Court would have been inclined to award

[appellants] the lion’s share of the expert witness fees

requested,” id. at 9-10, but felt constrained by Crawford

Fitting Co. v. J.T. Gibbons, Inc., 107 S.Ct. 2494 (1987)

(Crawford Fitting), to limit the recovery of expert witness

expenses to thirty dollars per day. Slip op. at 13.

Accordingly, the district court limited its award of expert

witness fees to $900.00. Jd.

A panel of this court affirmed the district court’s order

as modified ‘and remanded with directions. Appellants’

petition for rehearing en banc was granted, thus vacating

the panel opinion, because the analysis of the expert

witness fees issue was in conflict with SapaNajin v. Gunter,

857 F.2d 463 (8th Cir. 1988). The order of the district court

awarding appellants expert witness fees as expenses under

42 U.S.C. § 1988 at the statutory rate of $30 per day, 28

U.S.C. § 1821, was affirmed by the vote of an equally divided

B-6

court. The remaining issues were remanded to the original

panei for decision.

BACKPAY

Appellant Walters argues that the district court erred

in refusing to award him backpay calculated with reference

to the salary of a lieutenant rather than a sergeant. Absent

discrimination, Walters would have been promoted to

sergeant in July 1980. Because of this court’s determination

in Gilbert v. City of Little Rock, 799 F.2d 1210, that Walters

had been denied promotion on the basis of racial

discrimination, he was promoted to “acting” sergeant in

September 1980. Walters was paid the salary of a

permanent sergeant, @ but, as an “acting” sergeant, he was

ineligible to be considered for promotion to lieutenant. To

be eligible for promotion to lieutenant, an officer must have

served as a “permanent” sergeant for one year. Walters

was promoted to permanent sergeant in 1982 and to

lieutenant one year later in October 1983. Waiters now

argues that he should be awarded backpay at the salary of a

lieutenant because, absent discrimination, he would have

been promoted to permanent sergeant in 1980, and further

promoted to lieutenant in 1981, rather than 1983.

The purpose of backpay is to “mak[e] persons whole for

injuries suffered through past discrimination.” Albemarle

Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (footnote

omitted). Backpay is available to remedy discrimination in a

promotional system, however, only where the employee

would have been promoted absent discrimination. Because

backpay is an equitable remedy, there must be some

certainty that the promotion would have occurred absent

the discrimination. That degree of certainty is absent in the

case of appellant Walters. Although he would have been

2

The district court awarded Walters $331.73 in backpay to

compensate him for the period from July to September 1980 that he

would have been a sergeant absent discrimination.

B-7

promoted to permanent sergeant in 1980 absent

discrimination, Walters’s claim that he would then have

been promoted to lieutenant in 1981 is nothing more than

conjecture. There is no reason to believe that just because

Walters was promoted to lieutenant within a year of

becoming a permanent sergeant in 1982, he would similarly

have been promoted to lieutenant in 1981 within a year of

becoming a permanent sergeant in 1980. An award of

backpay cannot be made on such a speculative basis.

Accordingly, we hold the district court did not err in

refusing to award Walters backpay on the basis of the

salary of a lieutenant.

ATTORNEY’S FEES

The City challenges several aspects of the district

court’s award of attorney’s fees. First, the City argues that

the district court should have further reduced the number

of compensable hours claimed by Phillip J. Duncan. Duncan

requested compensation for 1,662.69 hours, and the district

court awarded him compensation for 1,330 hours. The City

argues that 1,330 hours is an unreasonable figure.

The number of hours to be awarded to a prevailing

party under 42 U.S.C. § 1988 is committed to the discretion

of the district court. Williams v. Trans World Airlines, Inc.,

660 F.2d 1267, 1274 (8th Cir. 1981). “The trial judge should

weigh the hours claimed against his [or her] own knowledge,

experience, and expertise of the time required to complete

similar activities.” Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717 (5th Cir. 1974); see also Ladies Center,

Nebraska, Inc. v. Thone, 645 F.2d 645, 648 (8th Cir. 1981). At

this stage of the proceedings, “[t]he trial judge is in a much

better position to make this appraisal than we are.”

Jaquette v. Black Hawk County, 710 F.2d 455, 461 (8th Cir.

1983). The district court has already reduced Duncan’s

requested compensable hours by 332.69 hours. In view of

the complex and extended nature of this litigation, we are

B-8

unable to hold that the district court abused its discretion in

concluding that Duncan should be compensated for 1,330

hours of his legal work.

The City also challenges the district court’s refusal to

further reduce the award of attorney’s fees due to the

failure of appellants to completely prevail in the litigation.

The district court reduced the attorney’s fee award by

fifteen percent because only four of the thirteen original

plaintiffs in this cause were granted relief and a number of

appellants’ claims were found to lack merit. Appellants

were successful, however, in prevailing on substantial

issues in the case. They demonstrated that the promotional

practices of LRPD were racially discriminatory and

obtained appropriate relief including backpay. “Where a

plaintiff has obtained excellent results, his [or her] attorney

should receive a fully compensatory fee... . In these

circumstances the fee award should not be reduced simply

because the plaintiff failed to prevail on every contention

raised in the lawsuit.” Hensley v. Eckerhart, 461 U.S. 424,

435 (1983) (Hensley). Furthermore, even where a plaintiff

has only partially prevailed on his or her claims, “[a] court

should not disallow attorney hours related and necessary to

successful claims.” Catlett v. Missouri Highway &

Transportation Comm'n, 828 F.2d 1260, 1270 (8th Cir. 1987),

cert. denied, 108 S.Ct. 1574 (1988). Appellants did not

completely prevail in this litigation, and the district court

reduced their award to reflect that partial failure. The

district court “necessarily has discretion in making this

equitable judgment,” Hensley, 461 U.S. at 437, and we are

unable to conclude that it abused its discretion in reducing

the attorney’s fee award by fifteen percent.

The district court also enhanced the attorney’s fee

award by fifteen percent due to (1) the undesirability of this

case, (2) the difficulty of the questions presented, (3) the

time and labor required, (4) the length of the professional

relationship with appellants, and (5) the contingent nature

of the fee. The City correctly points out that the first four of

B-9

these five factors cannot serve as bases for enhancing an

award of attorney's fees because they are already reflected

in the initial determination of the reasonable hourly rate

and number of compensable hours. Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 478 U.S.

546, 564-66 (1986) (Delaware Valley I); Blum v. Stenson, 465

U.S. 886, 898-900 (1984). In Delaware Valley I, the Court

noted that “ ‘[w]hen ...the applicant for a fee has carried his

[or her] burden of showing that the claimed rate and number

of hours are reasonable, the resulting product is presumed

to be the reasonable fee’ to which counsel is entitled.” 478

U.S. at 564 (emphasis in original), citing Blum v. Stenson,

465 U.S. at 897. The Court also stated that

the “novelty [and] complexity of the issues,” “the special

skill 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 as independent bases for

increasing the basic fee award. Although upward

adjustments of the lodestar figure are still permissible,

such modifications are proper only in certain “rare” and

“exceptional” cases, supported by both “specific

evidence” on the record and detailed findings by the

lower courts.

478 U.S. at 565 (citations omitted), citing Blum v. Stenson,

465 U.S. at 898-01. Accordingly, the first four factors

enumerated by the district court cannot support its

enhancement of the attorney's fee award.

The Court in Delaware Valley I left open the question

whether the risk of loss could serve as a factor supporting

enhancement of an award of attorney’s fees. The Court

returned to that question in Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 107 S.Ct. 3078 (1987)

(Delaware Valley II). Four justices in Delaware Valley II

reached the conclusion that risk of loss could not serve as an

enhancement factor. Jd. at 3086-89 (White, J., with whom

B-10

Rehnquist, C.J., and Powell and Scalia, JJ., joined). Justice

O’Connor concurred with these four justices on the

understanding that although risk of loss was not properly

applied on the facts before the Court, Congress did not

intend to exclude the possibility of enhancing an attorney's

fee award because of the risk of loss. Jd. at 3089-91

(O’Connor, J., concurring in part and concurring in the

judgment). This circuit requires an applicant to

“demonstrate that enhancement [is} necessary to attract

competent local counsel in light of the risk of loss arising

from the [applicant’s] contingency fee arrangement.”

Catlett v. Missouri Highway & Transportation Comm'n,

828 F.2d at 1271. See also Delaware Valley IJ, 107 S.Ct. at

3091 (O'Connor, J., concurring in part and concurring in the

judgment); Norman v. Housing Authority, 836 F.2d 1292,

1302 (11th Cir. 1988); Friends of the Earth v. Eastman

Kodak Co., 834 F.2d 295, 298 (2d Cir. 1987); Leroy v. City of

Houston, 831 F.2d 576, 583-84 (5th Cir. 1987), cert. denied,

108 S.Ct. 1735 (1988); Blum v. Witco Chemical Corp., 829

F.2d 367, 379-82 (3d Cir. 1987). This is because fee-shifting

statutes

were not designed as a form of economic relief to

improve the financial lot of attorneys, nor were they

intended to replicate exactly the fee an attorney could

earn through a private fee arrangement with his [or

her] client. Instead, the aim of such statutes was to

enable private parties to obtain legal help in seeking

redress for injuries resulting from the actual or

threatened violation of specific federal laws.

Delaware Valley I, 478 U.S. at 565.

The district court’s original findings did not focus on

the necessity of the enhancement in order to attract

competent local counsel in light of the risk of loss arising

from the contingent nature of the fee. Because the

enhancement was therefore unsupported by the district

court’s findings, we remanded the case to the district court

for the limited purpose of making additional factual findings

B-11

on this issue while retaining jurisdiction over the appeals.

We also instructed the district court to make findings with

respect to the extent to which the enhancement was based

on the contingent nature of the fee.

After considering affidavits submitted by both parties

from lawyers in the local community, the district court

found that in the absence of fee enhancement to compensate

for the risk of loss arising from the contingency fee

arrangement, “[appellants] would have faced substantial

difficulty in finding counsel of sufficient competency in this

market.” Gilbert v. City of Little Rock, No. LR-C-78-340,

slip op. at 2 (E.D. Ark. Aug. 2, 1988) (order). The district

court also clarified that “roughly two-thirds of the

enhancement” was attributable to the risk of loss arising

from the contingent nature of the fee. Jd., at 3. We conclude

that the district court’s enhancement of Ohm's and

Duncan’s fee award was proper, but only to reflect

enhancement solely for the risk of loss due to the contingent

nature of the fee. Reducing the enhancement from fifteen

percent to ten percent to reflect the extent to which this

factor contributed to the enhancement of the fee, we award

Ohm $24,220.00, and Duncan $136,790.50 as attorney’s fees.

Accordingly, the order of the district court is affirmed

as modified herein.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

APPENDIX C

)

a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

JOHNNIE GILBERT, et al. PLAINTIFFS

V. NO. LR-C-78-340

CITY OF LITTLE ROCK,

ARKANSAS, et al. DEFENDANTS

ORDER

On July 15, 1988, the Eighth Circuit Court of Appeals

remanded this cause to this Court “for the limited purpose

of making further findings of fact with regard to the

enhancement of Mr. Ohm’s and Mr. Duncan's attorney's

fee award.” More specifically, the Eighth Circuit directed

this Court to address:

(1) whether “without an adjustment for risk the

prevailing party ‘would have faced substantial

difficulties in finding counsel in the local or other

relevant market,’ ” (citations omitted), and

(2) the extent to which the court’s 15% enhancement is

based upon the contingent natur of the fee.

By its Order dated July 18, 1988, this Court directed the

parties to file briefs addressing these questions and to

notify the Court if a hearing was desired. Although neither

side finds a hearing necessary on these points, both sides

have submitted briefs and affidavits to the Court. Plaintiffs

submitted affidavits from three of their number and five

local attorneys, two of whom are plaintiffs’ counsel herein.

Defendants filed one affidavit from a local attorney.

C-2

Initially, the Court notes that in calculating the fees to

which plaintiffs’ counsel were found to be entitled, the

concepts of “risk” and “contingent nature of the fee” were

viewed as basically addressing the same concern — that is, if

their efforts proved unsuccessful, plaintiffs’ counsel might

expend many long and difficult hours on the case and not

receive any compensation whatsoever for their services.

With respect to the queries of the Eighth Circuit, the Court

is convinced that a considerable degree of skill and

expertise was required of counsel in this difficult case. The

affidavits submitted by plaintiffs from three of the leading

civil rights attorneys in the State of Arkansas reveal that

“risk adjustment” is essential, for a number of economic

reasons, to their acceptance of civil rights cases. While

plaintiffs may have been able to find some counsel from

Little Rock or the surrounding area to represent them in

this case even without the possibility of risk adjustment,

the Court finds from the affidavits submitted that plaintiffs

would have faced substantial difficulty in finding counsel of

sufficient competency in this market if such adjustments

were barred outright.

The Court’s determination that a 15% enhancement of

the fees awarded Mr. Ohm and Mr. Duncan was appropriate

in this cause was based almost entirely upon the factors of

“risk/contingent nature of the fee” and “the undesirability

of the case.” The Court found the latter to be applicable to

this case due to the possibility that plaintiffs’ counsel would

be stigmatized on account of the nature of the litigation and

the parties involved. The other factors cited in the Court's

Opinion of August 4, 1987 were of marginal significance, at

best, in the Court’s calculations. Although the Court did not

at the time of the making of the fee awards assign an exact

value to the “risk/contingent nature of the fee” factor in

arriving at the 15% enhancement, the Court can say that

roughly two-thirds of the enhancement was attributable to

that factor.

This Order shall be certified to the Eighth Circuit

Court of Appeals consistent with its Order of July 15, 1988.

. -|hOCUr?lhCUrlhlUanelU rOlUCUrarhrUlUhrrrUhUrirUrrUlUC UU UU SErULlUCSCllUC arlhlUDrlhUCUD

SOB BORER KEKE SZ ZEEE

C-3

Additionally, the affidavits submitted to the Court by both

parties shall be made a part of the record herein.

DATED this 2nd day of August, 1988.

/s/ Elsijane T. Roy

United States District Judge

This document entered on docket sheet in compliance with

Rule 58 end/or 79(a) FRCP on 8-3-88 by DC.

C-4

APPENDIX D

ae

—-

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

JOHNNIE GILBERT, HORACE WALTERS,

ANDREW LOCKHART and

BILLY O’DONALD PLAINTIFFS

VS. NO. LR-C-78-340

CITY OF LITTLE ROCK, ARKANSAS;

THE CIVIL SERVICE COMMISSION OF

THE CITY OF LITTLE ROCK, ARKANSAS;

WALTER E. “SONNY” SIMPSON, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY AS CHIEF

OF POLICE OF THE CITY OF LITTLE ROCK,

ARKANSAS; and CARLTON E. McMULLEN,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS CITY MANATER OF THE CITY

OF LITTLE ROCK, ARKANSAS - DEFENDANTS

MEMORANDUM OPINION

Pending before the Court is plaintifffs’ Petition for

Attorney’s Fees and Costs pursuant to 42 U.S.C. §1988, to

which defendants have fully responded. Also before the

Court is the issue of the amount of back pay to which one

plaintiff, Horace Walters, is entitled, the parties having

stipulated to the amounts which plaintiffs Johnnie Gilbert,

Billy O’Donald, and Andrew Lockhart should receive.

I. Horace Walters’ Back Pay

On August 28, 1986, the United States Court of

Appeals for the Eighth Circuit filed its Opinion in this cause

(Gilbert IJ) in which it directed, inter alia, that plaintiffs

Gilbert, O’Donald, Lockhart, and Walters be given

D-2

permanent promotions to sergeant as soon as positions are

available, and that they be compensated for lost wages and

benefits from the dates they would have been promoted

absent discrimination until they actually were promoted. !

As noted previously, the parties stipulated to the relief to

which Gilbert, O’Donald and Lockhart were entitled. From

the pleadings recently filed, it appears that the Court need

only address the issue of back pay for plaintiff Walters.

Walters was actually promoted to sergeant in 1980, not

long after the date the Eighth Circuit found he would have

been promoted had he not been discriminated against on

account of his race. For that reason, he received a higher

salary than Gilbert, O’Donald, and Lockhart during the

several years that followed. On account of this, defendants

contend that Walters is entitled to less back pay than the

others, by their figures $331.73. On the other hand, Walters

asserts that he is entitled to $9,324.95. Walters claims that

he should have been promoted to lieutenant in October of

1981, rather than October of 1983, the actual date he became

a lieutenant, and that he should receive back pay for that

deprivation, as well. The disparity between plaintiffs’ and

defendants’ back pay figures primarily stems from their

difference of opinion as to when Walters should have been

made lieutenant.

Although determined to make Walters whole for the

injuries he suffered at the hands of defendants, the Court

cannot say with certainty that he would have been

promoted to lieutenant in October of 1981 but for the

unlawful discrimination. Clearly, the Court cannot award

any relief, back pay or otherwise, on such a speculative

1

The mandate from the Eighth Circuit was received by this Court on

November 10, 1986. After severai extensions of time for each side to

prepare its pleadings and briefs, this matter became ripe for

consideration on May 26, 1987. However, additional briefs were received

in response to the United States Supreme Court’s decision in Crawford

Fitting Company v. J.T. Gibbons, Inc., infra.

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basis. Accordingly, the Court finds that Horace Walters is

entitled to back pay from defendants in the amount of

$331.73, representing the salary he was denied by virtue of

the delay of his promotion to sergeant. Inasmuch as the

other types of relief mandated by the Eighth Circuit have

not been addressed by the parties in their pleadings and

memoranda, the Court assumes that those matters have

been disposed of through stipulation.

II. Attorney's Fees and Costs

Defendants concede that, for the purposes of the Civil

Rights Attorney's Fees Award Act of 1976, 42 U.S.C. §1988,

plaintiffs are “prevailing parties” herein and are entitled to

an award of reasonable attorney's fees and costs. That

given, this Court need only determine what amount of fees

and costs will be “reasonable” under the circumstances of

this case, as guided by the pronouncements of the United

States Supreme Court and the Eighth Circuit Court of

Appeals on the subject.

A. Attorney's Fees

“The most useful starting point for determining the

amount of a reasonable fee is the number of hours

reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S 424,

433 (1983); see also Blum v. Stenson, 465 U.S. 886 (1984)

(“product of reasonable hours times a reasonable rate

normally provides a reasonable attorney's fee within the

meaning of the statute’). This computation yields what is

known as the “lodestar” amount. Although this formula

provides a sound basis for computing an estimate of the fee

a lawyer should receive in any particular case, it “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.’” Hensley v. Eckerhart, supra, at 434. Other

factors which should be considered in determining the

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propriety of fee enhancement or reduction are set out in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974) 2.

Plaintiffs, through the affidavits of their counsel,

request attorney’s fees for the hours reflected below at the

claimed hourly rates, as follows:

Hours

Attorney Expended Hourly Rate Lodestar Fee

Phillip J. Duncan 1,662.69 $125.00 $207,836.25

Thomas M. Bramhall 153.75 $125.00 19,218.75

Ralph C. Ohm 354.94 $65.00 23,071.10

Ralph C. Ohm (law clerk) 239.50 $25.00 5,987.50

TOTAL $256,113.60

In addition, plaintiffs have asked the Court to enhance the

amount of the requested fees on account of, among other

things, the quality of representation, the complexity of the

issues, and the risk of receiving no fee at all.

With but a few exceptions, defendants contend that the

hours claimed to have been expended and the hourly rate of

pay requested by plaintiffs’ counsel are unreasonable and

excessive. The Court will address the merits of the petition

as it relates to each attorney individually.

2

Those factors are: (1) the time and labor required; (2) the novelty and

difficulty of the questions; (3) the skill requisite to perform the legal

service properly; (4) the preclusion of other employment by the attorney

due to acceptance of the case; (5) the customary fee; (6) whether the fee is

fixed or contingent; (7) time limitations imposed by the client or the

circumstances; (8) the amount involved and the results obtained; (9) the

experience, reputation and abilities of the attorneys; (10) the

“undesirability” of the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar cases. Jd. at

717-719.

|

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1. Thomas M. Bramhall

Regarding the request for Mr. Bramhall, defendants

concede the reasonableness of the 153.75 hours he claims to

have expended on this case; however, they challenge the

$125.00 hourly rate requested for him. In support of the

request, plaintiffs have attached affidavits from several

members of the local bar attesting to the considerable

ability and experience of Mr. Bramhall as a trial attorney.

Mr. Bramhall devoted approximately four weeks time

to preparation and presentation of this case on retrial.

Plaintiffs ultimately prevailed on most of the issues

litigated during his participation. The Court acknowledges

his experience and competence as an attorney. Based upon

the arguments of counsel and the affidavits in support

thereof, the Court finds that Mr. Bramhall should be

compensated at the rate of $110.00 per hour for his services

rendered to plaintiffs herein. That figure is consistent with

prevailing rates in the Little Rock area for experienced

counsel in difficult civil rights cases. Due to his relatively

brief involvement in this matter, the Court is of the opinion

that no enhancement of Mr. Bramhall’s fee is warranted.

Nor is any reduction appropriate on account of the success

ultimately obtained. Accordingly, an attorney’s fee in the

amount of $16,912.50 is awarded for Mr. Bramhall.

2. Ralph C. Ohm

Defendants object not only to the number of hours

expended by Mr. Ohm, but also to the $65.00 hourly rate

requested for his attorney services. The Court finds no

merit in most of defendants’ contentions with respect to Mr.

Ohm's representation. However, the Court agrees that the

number of attorney hours claimed should be slightly

reduced due to duplication of the efforts of Messrs.

Bramhall and Duncan. Mr. Ohm shall be compensated for

300 hours at the rate of $65.00 per hour for his attorney

time, as well as for all claimed law clerk time at the rate of

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$25.00 per hour. Accordingly, the Court finds that for his

efforts on behalf of plaintiff, a reasonable fee for Mr. Ohm is

$19,500.00 for services as attorney and $5,987.50 for

services as law clerk, or a total lodestar of $25,487.50. The

Court further finds that the attorney’s fee portion of the

lodestar should be adjusted. Reduction of that figure by

15% is warranted due to plaintiffs’ failure to completely

prevail. Only four of the thirteen original plaintiffs in this

cause were granted relief, and a number of plaintiffs’ claims

were found to lack merit. However, an enhancement of 15%

is appropriate on account of the undesirability of this case,

the difficulty of the questions presented, the time and labor

required, the length of the professional relationship with

plaintiffs, and the contingent nature of the fee. Thus, the

adjusted attorney’s fee award for Mr. Ohm’s services is

$19,061.25. The total award for his services shall be

$25,048.75. ;

3. Phillip J. Duncan

The major point of contention between the parties with

regard to attorney’s fees concerns the fee requested for Mr.

Duncan — $207,836.25. Defendant contends that both the

$125.00 hourly rate requested and the 1,662.69 hours

expended are grossly excessive and unreasonable.

After carefully reviewing Mr. Duncan’s detailed record

of his time expended on this case, the Court feels compelled

to agree with defendants that the number of hours claimed

is excessive. The time record reflects entries for “research”

or “study case law” on well over a hundred days during his

work on this case. Although it is indeed reasonable for an

attorney to engage in a certain amount of research in

preparing a case for trial, the Court finds that it would be

inequitable to require defendants to compensate Mr.

Duncan for all of his research time. Considering the

circumstances of this case and the time and effort required

to fully present plaintiffs’ claims, the Court finds that the

number of hours which Mr. Duncan should have reasonably

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expended on this case is 1,330, or roughly 80 per cent of

what has been claimed.

Defendants contend that Mr. Duncan should be

compensated at the rate of $90.00 per hour, rather than

$125.00, as requested, for his professional services rendered

herein. Based on the affidavits of other local counsel, as well

as the pleadings and memoranda of the parties, the Court

finds that a rate of compensation for Mr. Duncan of $110.00

per hour for all time reasonably expended from 1980 to the

present is both reasonable and fair. The product of Mr.

Duncan’s allowed hours times the approved hourly rate

yields a lodestar of $146,300.00. Using the reduction and

enhancement percentages set out previously with respect

to the fee for Mr. Ohm, the Court finds that plaintiffs should

be awarded $143,008.25 in attorney’s fees for the services of

Mr. Duncan. Total attorney’s fees (including law clerk

compensation) in the amount of $184,969.50 are hereby

awarded.

B. Costs

Plaintiffs request that they be awarded costs from

defendants in the total amount of $103,534.01, consisting of

transcript and deposition costs, other out-of-pocket

expenses, and expert witness fees. Defendants argue, for a

number of reasons, that they should be compelled to pay

only a fraction of those costs. The Court will address each

element of these costs separately.

1. Transcript and Deposition Costs

Defendants have, “in the interest of fairness,”

stipulated that plaintiffs should be reimbursed all of the

$3,302.35 they have requested for transcript and deposition

costs. That sum is hereby awarded to plaintiffs from

defendants.

D-8

2. Out-of-Pocket Expenses

Plaintiffs seek reimbursement for a miscellany of

expenses in the aggregate amount of $6,284.97. Defendants

concede the fairness and reasonableness of $3,960.24 of such

expenses, but dispute the remainder.

Defendants’ primary objection in this area concerns

plaintiffs’ request for reimbursement of air fare, hotels and

meals, printing expenses and express mail costs incurred

while this case was before the Eighth Circuit on appeal.

After reviewing the cost statement and the arguments of

counsel, the Court finds that defendants’ contentions have

merit. In an order dated February 5, 1987, the Eighth

Circuit declined to reconsider its previous denial of

plaintiffs’ petition seeking additional costs. In that order,

the Eighth Circuit stated “[i]t was the intent of this Court in

our December 31, 1986 order to award the appellants

$30,679 in attorneys’ fees and $915.87 in costs for all

services rendered with respect to all appeals to this Court.

The Court now adheres to that ruling.” The Eighth Circuit

having awarded plaintiffs what it determined to be a fair

amount for expenses incurred on appeal, it would be

inappropriate for this Court to look beyond that award.

Accordingly, plaintiffs are hereby awarded their district

court level out-of-pocket expenses from defendants in the

amount of $3,960.24.

3. Expert Witness Fees

By far the largest component of plaintiffs’ statement of

costs is the request for expert witness fees and expenses,

which totals $93,946.69. Plaintiffs make this request

pursuant to 28 U.S.C. §1920 and Rule 54 of the Federal

Rules of Civil Procedure, as well as 42 U.S.C. §1988.

Defendants contend that the request is grossly excessive

and argue that plaintiffs should receive far less

remuneration for these expenses.

D-9

Until recently, the Court would have been inclined to

award plaintiffs the lion’s share of the expert witness fees

requested. However, this issue has been made more

difficult by the United States Supreme Court’s holding that

“... absent explicit statutory or contractual authorization

for the taxation of the expenses of a litigant’s witness as

costs, federal courts are bound by the [$30-per-day]

limitations set out in 18 U.S.C. §1821 and §1920.” 3 Crawford

Fitting Company v. J.T. Gibbons, Inc., ___ U.S. ___, 107

S.Ct. 2494, 96 L.Ed.2d 385 (June 15, 1987). Although the

concurring and dissenting opinions in Crawford Fitting

recite the understanding that the holding does not reach the

question of whether a district court may award fees for an

expert witness under 42 U.S.C. §1988, the majority declined

the opportunity to so limit their decision.

Reimbursement of prevailing parties for the fees of

expert witnesses has often been approved, in some cases

under 28 U.S.C. §1920 and Federal Rule of Civil Procedure

§4(d), see e.g., Wilmington v. J.I. Case Co., 793 F.2d 909 (8th

Cir. 1986); Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d

201 (8rd Cir. 1981), while in others pursuant to 42 U.S.C.

§1988, see e.g., Ramos v. Lamm, 713 F.2d 546 (10th Cir.

1983); Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981)

(overruled by International Woodworkers of America v.

Champion International Corporation, 790 F.2d 1174 (5th Cir.

1986) (en banc), aff'd, ___ U.S. ___, 107 S.Ct. 2494, 96

L.Ed.2d 385 (June 15, 1987).4 Although not expressly

disallowing the practice, some courts have ruled that it is

not an abuse of discretion for a district court to decline to

award compensation for expert witness fees to a prevailing

party. E.G., Davis v. Richmond, Fredericksburg & Potomac

3

As is apparent from the remainder of the opinion in Crawford

Fitting, the citation in the quoted sentence to “18 U.S.C. §1821 and §1920”

is merely a typographical error and should cite “28 U.S.C. §1821 and

§1920.”

4

This case was consolidated on appeal by the United States Supreme

Court with Crawford Fitting.

D-10

R. Co., 803 F.2d 1322 (4th Cir. 1986); Walker v. Robbins

Hose Co. No. 1, Inc., 622 F.2d 696 (3rd Cir. 1980).

The Eighth Circuit Court of Appeals has consistently

approved awards for expert witness fees to prevailing

parties. E.g., Wilmington v. J.I. Case Co., supra; Nemmers

v. City of Dubuque, 764 F.2d 502 (8th Cir. 1985); Paschall v. .

Kansas City Star Co., 695 F.2d 322 (8th Cir. 1982); vacated

on other grounds, 727 F.2d 692 (8th Cir. 1984). In Paschall,

the Eighth Circuit adopted the approach of the Third

Circuit set out in Roberts v. S.S. Kyriakoula D. Lemos,

supra, and followed the developing trend of allowing

recovery of “expert witness fees when the expert’s

testimony was crucial to the resolution of the case.” 695

F.2d at 338. In choosing that course, the Eighth Circuit cited

Farmer v. Arabian American Oil Co., 379 U.S. 227 (1965),

noting that in that case “the Supreme Court indicated that

Fed.R.Civ.P. 54 authorizes district judges to award costs

not specifically enumerated in 28 U.S.C. §1821.” Jd.

In determining that expert witness fees were

recoverable under 28 U.S.C. §§1821 and 1920 and Federal

Rule of Civil Procedure 54(d), it appears that both the

Eighth Circuit and the Third Circuit relied heavily on the

statement in Farmer v. Arabian American Oil Co. that

“[T]he discretion given district judges [by Rule 54(d) ] to tax

costs should be sparingly exercised with reference to

expenses not specifically allowed by statute.” 379 U.S. at

235. In Crawford Fitting, however, that statement and the

notion that it authorizes an award of costs outside those

specified in §1821 and §1920 were expressly disapproved.

In light of Crawford Fitting, this Court is convinced

that it can tax as costs expert witness fees in excess of the

$30-per-day limit of §1821 only where expressly authorized

by statute or agreement. Congress has indeed shown a

willingness to explicitly provide for their recovery, for ‘‘[a]t

least twenty-eight statutes provide for the taxing of expert

witness’ fees as costs in civil actions, albeit under varying

ae

D-11

standards... .” International Woodworkers of America,

supra, 790 F.2d at 1179 n.7. As an example, section 307(f) of

the Clean Air Act, 42 U.S.C. §7607(f) (1982), provides:

In any judicial proceeding under this section, the

court may award costs of litigation (including

reasonable attorney and expert witness fees) whenever

it determines that such award is appropriate.

But, for whatever reason, Congress chose not to expressly

provide in 42 U.S.C. §1988 for the recovery of expert

witness fees in civil rights cases. As noted by Circuit Judge

Godbold in his dissenting opinion in the civil rights case of

Jones v. Diamond, supra, 636 F.2d at 1391:

No Act of Congress is cited as authority for this

proposition [that plaintiffs may recover expert witness

fees]; indeed, there is none. Instead, the majority

opinion relies on a Senate Report concerning legislation

which could have contained such a provision, but did

not.

There simply is no explicit statutory authority which would

allow this Court to award plaintiffs expert witness fees in

excess of $30 per day. Accordingly, plaintiffs shail be

recompensed for their expert witness fees in the following

amounts:

James L. Outtz $ 330.00

E. Lee Hoffman 480.00

Rawleigh H. Rawls 90.00

Total $ 900.00

The Court is not unmindful of the burden that this

finding places on civil rights plaintiffs, not only in the

instant case, but in others, as well. However, this Court is

constrained to follow the pronouncements of the United

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States Supreme Court. That constraint mandates the result

reached herein.

In summary, the Court finds that plaintiffs shall

receive from defendants total attorney’s fees in the amount

of $184,969.50, and total costs of $8,162.59. > Judgment shall

be entered in accordance with this Opinion.

DATED this 4th day of August, 1987.

/s/ Elsijane T. Roy

United States District Judge

5

The attorney’s fees figure set out herein does not include sums paid

by defendants to Messrs. John Walker and Emmanuel Pruitt pursuant to

stipulation for attorney services on behalf of plaintiffs earlier in the case.