Petition — Greenblatt v. King

Supreme Court, U.S, ©

FILED

NOV 141977

In the MICHAEL RODAK, JR., CLERK

Supreme Court of the United States.

Octoser Term, 1977.

N. @7- 684

MILTON GREENBLATT, Er AL.,

PETITIONERS,

0.

MITCHELL G. KING, JR.,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the First Circuit.

Francis X. BELLotti,

Attorney General,

STEPHEN R. De Insxy,

Assistant Attorney General,

Chief, Criminal Bureau,

Barsara A. H. Smirn,

Assistant Attorney General,

Chief, Criminal Appellate Section,

KATHLEEN KING PARKER,

Assistant Attorney General,

Criminal Division,

One Ashburton Place, 18th Floor,

Boston, Massachusetts 02108.

Of Counsel: (617) 727-2240

Joun P. Corserrt,

Assistant Attorney General.

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional and statutory provisions involved

Statement of the case

Reasons for granting the writ

I. The Eleventh Amendment bars the award of

attorney's fees against the state 5

II. The validity of the Civil Rights Attorneys

Fees Awards Act of 1976, as applied to an

award against a state, has not been decided

by this Court 7

III. Retrospective application of the Fees Act

to authorize attorney's fees awards against

aowwnwnw wv

states is manifestly unjust 8

Conclusion 10

Appendix: Opinion of United States Court of Appeals

for the First Circuit la

Table of Authorities Cited.

CASEs.

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) 4,5,7

Bond v. Stanton, 528 F. 2d 688 (7th Cir. 1976),

vacated and remanded, 429 U.S. 973 (1976) 6

Se,

ii TABLE OF AUTHORITIES CITED.

Bradley v. School Board of City of Richmond, 416

U.S. 696 (1974) 9

Class v. Norton, 505 F. 2d 123 (2d Cir. 1974) 6

Edelman v. Jordan, 415 U.S. 651 (1974) 6, 7

Fairmont Creamery Co. v. Minnesota, 275 U.S. 70

(1927) 7

Finney v. Hutto, 548 F. 2d 740 (8th Cir. 1977) 5

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 5, 7, 8

Ford Motor Co. v. Department of Treasury, 323

U.S. 459 (1945) 6

Hallmark Clinic v. North Carolina Dept. of Human

Resources, 519 F. 2d 1315 (4th Cir. 1975) 6

Hutto v. Finney, No. 76-1660, cert. granted, Octo-

ber 17, 1977, 46 U.S.L.W. 3256 5

Jordon v. Gilligan, 500 F. 2d 701 (6th Cir. 1974),

cert. denied, 421 U.S. 991 (1975) 6

Monroe v. Pape, 365 U.S. 167 (1961) 8

Named Individual Members, San Antonio Conserva-

tion Society v. Texas Highway Dept., 496 F. 2d

1017 (5th Cir. 1974), cert. denied, 420 U.S. 926

(1975) 6

Rodriguez v. Jimenez, 551 F. 2d 877 (1st Cir. 1977) 5n

Souza v. Travisono, 512 F. 2d 1137 (1st Cir. 1975),

vacated, 423 U.S. 809 (1975) 6

Skehan v. Board of Trustees of Bloomsburg State

College, 501 F. 2d 31 (3d Cir. 1974), vacated,

421 U.S. 983 (1975) 6

Skehan v. Board of Trustees of Bloomsburg State

College, 46 U.S.L.W. 2045 (W.D. Pa. Aug. 2,

1977)

Young, Ex parte, 209 U.S. 123 (1908)

“1

TABLE OF AUTHORITIES CITED.

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Eleventh Amendment 2, 3, 5, 6, 7, 8, 9

Fourteenth Amendment, § 5 7

20 U.S.C. § 1617 9

28 U.S.C.

§ 1254(1) 2

§ 1343 4

42 U.S.C. § 1983 4,5, 8

Civil Rights Act of 1964, Title VII, 42 U.S.C.

§§ 2000e et seq. (1970 ed. Supp. IV) 8

§ 2000e(a) 8

§ 2000e-5(g) 8

Civil Rights Attorneys Fees Awards Act of 1976,

42 U.S.C § 1988, as amended, Pub. L. 94-559,

§ 2, 90 Stat. 2641 (October 19, 1976) 2, 3, 4,

5n, 6, 7, 8 et seq.

In the

Supreme Court of the United States.

Ocroser Term, 1977.

No.

MILTON GREENBLATT, er AL.,

PETITIONERS,

vo.

MITCHELL G. KING, JR.,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the First Circuit.

The petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the First Circuit entered in this

proceeding on August 15, 1977.

2

Opinion Below.

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix, infra. The District Court for the

District of Massachusetts did not issue an opinion.

Jurisdiction.

The judgment of the Court of Appeals was entered on

August 15, 1977. This petition was filed within 90 days of

that date. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

Questions Presented.

1. Whether the Eleventh Amendment to the Constitution

of the United States bars an award of attorneys’ fees against

officials of the Commonwealth of Massachusetts, in their

official capacities.

2. Whether the Civil Rights Attorneys Fees Awards Act

of 1976, 42 U.S.C. § 1988, as amended, authorizes the

awarding of attorney’s fees against state officials in tneir

official capacities, notwithstanding the Eleventh Amend-

ment.

3. Whether the Civil Rights Attorneys Fees Awards Act

should apply where the attorneys’ services were performed

more than two years before the effective date of the Act,

and where the only issue pending in the case on the effective

date of the Act was the attorneys’ fees issue.

3

Constitutional And Statutory Provisions Involved.

The Eleventh Amendment to the Constitution of the

United States provides as follows:

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, com-

menced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects

of any Foreign State.

42 U.S.C. § 1988 (as amended by Pub. L. 94-559, § 2, 90

Stat. 2641, October 19, 1976) provides in applicable part as

follows:

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this title,

title IX of Public Law 92-318, or in any civil action or

proceeding, by or on behalf of the United States of

America, to enforce, or charging a violation of, a pro-

vision of the United States Internal Revenue Code, or

title VI of the Civil Rights Act of 1964, the court, in its

discretion, may allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part of

the costs.

Statement Of The Case.

This petition challenges a district court order, affirmed by

the Court of Appeals for the First Circuit, awarding respon-

4

dent’s appointed counsel $4,000 in attorneys’ fees, the award

to be paid by the petitioner state officials.

The original complaint in this case, filed in February,

1972, challenged the use of certain disciplinary procedures

on patients confined as “sexually dangerous persons” at the

Treatment Center at Massachusetts Correctional Institution,

Bridgewater. Respondent (plaintiff below) brought the

action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

Counsel was appointed and came into the case in Sep-

tember, 1973.

After one day of trial, the case was settled by the entry of

two consent decrees in June, 1974 (App. la). These decrees

were agreed to constitute a final judgment on all of the

respondent’s claims except his motion for attorneys’ fees,

which was filed June 21, 1974. ©

On October 29, 1974, the district court ordered an award

of $4,000 in attorneys’ fees, to be paid by the petitioner

state officials (defendants below). The petitioners appealed

this order. Before the appeal was decided, the court of ap-

peals granted leave to the district court to entertain and

rule upon a motion seeking clarification of the October 29,

1974, order. In response to the motion for clarification, the

district court modified its order on April 18, 1975. The

petitioners appealed the modified order. Before the appeal

was decided, the court of appeals remanded the case to the

district court for consideration in light of Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240 (1975)

(App. 2a).

Upon remand, no action was taken in the district court

until after the passage of the Civil Rights Attorneys Fees

Awards Act of 1976 (hereinafter the Fees Act). On Febru-

ary 17, 1977, the district court entered an order allowing

$4,000 as attorneys’ fees, under the authority of the Fees

5

Act (App. 2a). The court of appeals affirmed that order in

an opinion dated August 15, 1977 (App. la-7a).

The issues raised in this petition are identical to the attor-

neys’ fees issues raised in Hutto v. Finney, No. 76-1660,

certiorari granted October 17, 1977, 46 U.S.L.W. 3256.

The Hutto case involves a constitutional challenge to prac-

tices and conditions in the Arkansas prisons. The federal

district court in Hutto ordered the State of Arkansas to pay

$20,000 in attorneys’ fees. The Court of Appeals for the

Eighth Circuit affirmed this order and further ordered the

state to pay $2,500 in attorneys’ fees for the appeal. Finney

v. Hutto, 548 F. 2d 740 (8th Cir. 1977).'

Reasons For Granting The Writ.

I. THe ELEVENTH AMENDMENT Bars THE AWARD OF

Atrorneys’ Fees AGAINST THE STATE.

The district court in this § 1983 case has awarded $4,000

in attorneys’ fees to respondent’s counsel, to be paid by the

state official petitioners. This Court has not decided

whether such an award is barred by the Eleventh Amend-

ment to the Constitution.

The question was not decided in Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240, 269 n. 44 (1975).

It was not decided in Fitzpatrick v. Bitzer, 427 U.S. 445,

456-457 (1976), because there effective Congressional au-

thorization for the fees award existed. The circuit courts

‘The First Circuit relied on the Eighth Circuit’s decision both in this

case, App. 3a n. 2, and in Rodriguez v. Jimenez, 551 F. 2d 877, 878-

879 (1st Cir. 1977), an earlier case involving the Fees Act.

6

which have decided the issue, after Edelman v. Jordan, 415

U.S. 651 (1974), have reached conflicting results. The

Third, Fourth, Fifth and Sixth Circuits have concluded that

the Eleventh Amendment prohibits an award of attorneys’

fees against an unconsenting sovereign state. Skehan v.

Board of Trustees of Bloomsburg State College, 501 F. 2d

31, 42 (3d Cir. 1974) (dicta), vacated on other grounds, 421

U.S. 983 (1975); Hallmark Clinic v. North Carolina Dept.

of Human Resources, 519 F. 2d 1315, 1316-1317 (4th Cir.

1975); Named Individual Members, San Antonio Conserva-

tion Society, v. Texas Highway Dept., 496 F. 2d 1017,

1026 (5th Cir. 1974), cert. denied, 420 U.S. 926 (1975);

Jordon v. Gilligan, 500 F. 2d 701, 705-710 (6th Cir. 1974),

cert. denied, 421 U.S. 991 (1975). The First, Second and

Seventh Circuits have held that the Eleventh Amendment

does not bar an award of fees against a state. Souza v.

Travisono, 512 F. 2d 1137, 1139-1140 (1st Cir. 1975), va-

cated on other grounds, 423 U.S. 809 (1975); Class v. Nor-

ton, 505 F. 2d 123, 126-127 (2d Cir. 1974); Bond v. Stan-

ton, 528 F. 2d 688 (7th Cir. 1976), vacated and remanded

for further consideration in light of Pub. L. 94-559 (42

U.S.C. § 1988, as amended), 429 U.S. 973 (1976).

The decisions of this Court indicate that the Eleventh

Amendment does bar this attorneys’ fees award. The funds

to satisfy the award must come from the funds of the Ccem-

monwealth of Massachusetts, because the defendants are

state officials.* Thus the award is a monetary award against

the Commonwealth itself. Ford Motor Co. v. Department

of Treasury, 323 U.S. 459 (1945). Furthermore, the award

*Petitioners did not raise the Eleventh Amendment defense in the

district court or in the court of appeals. However, this defense is a

matter of jurisdiction which can be raised for the first time here. Edel-

man v. Jordan, 415 U.S. 651, 678 (1974); Ford Motor Co. v. Depart-

ment of Treasury, 323 U.S. 459 (1945).

7

here resembles an accrued monetary liability resulting from

a past breach of legal duty; thus it is barred by the Eleventh

Amendment. Edelman v. Jordan, 415 U.S. 651 (1974).

The award here is not the incidental effect of injunctive

relief against the state, permissible under Ex parte Young,

209 U.S. 123 (1908). The consent decree in this case

granted relief which had no effect on the Commonwealth’s

funds, as that decree only stopped certain disciplinary pro-

cedures. Neither is this award like costs of litigation, which

can be awarded against a state under Fairmont Creamery

Co. v. Minnesota, 275 U.S. 70 (1927). This Court’s de-

cision in Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975), aemonstrates that costs and attorneys’

fees are generically different from one another. Thus the

award here resembles none of the recognized exceptions to

the Eleventh Amendment’s bar to recovery of money from a

state. The court of appeals erred in affirming the award of

attorneys’ fees.

II. THe Vaumwrry Or Tue Crvit Ricuts ATTORNEYS FEEs

Awarps Act Or 1976, As AppLiep To AN AWARD AGAINST

A State, Has Not Been Deciwep By Tus Court.

Petitioners recognize that Congress can limit the Eleventh

Amendment by legislation enacted under § 5 of the Four-

teenth Amendment. | Fitzpatrick v. Bitzer, 427 U.S. 445

(1976). The Civil Rights Attorneys Fees Awards Act, how-

ever, is not the necessary authorization for the award of

attorneys’ fees against a state.

Proper statutory authorization to sue the state was the

basis for this Court’s holding in Fitzpatrick v. Bitzer, supra,

that money damages and attorneys’ fees could be awarded

against a state, notwithstanding the Eleventh Amendment,

8

in suits under Title VII of the Civil Rights Act of 1964, 42

U.S.C §§ 2000e et. seq. (1970 ed. Supp. IV). The proper

statutory authorization for a money award against the state

in Fitzpatrick was the express authorization to sue the state

as employer found in 42 U.S.C. §§ 2000e(a) and 2000e-5(g)

(1970 ed. Supp. IV).

The Fees Act here is different from the statute in Fitz-

patrick. The Fees Act here allows the prevailing party to

recover attorneys’ fees in a suit under 42 U.S.C. § 1983. It

does not authorize a suit against the state under § 1983. It

is settled that a state is not a “person” which can be sued

under § 1983. Monroe v. Pape, 365 U.S. 167, 187-191

(1961); Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1967). In

passing the Fees Act, Congress did not amend § 1983 to au-

thorize a suit against a state. Therefore, statutory au-

thorization to sue the state, which allowed damages and at-

torneys’ fees under Title VII in Fitzpatrick, does not exist in

this case. It follows that the Fees Act does not abrogate the

Eleventh Amendment bar to the award of attorneys’ fees

here. See Skehan v. Board of Trustees of Bloomsburg State

College, 46 U.S.L.W. 2045 (W.D. Pa. Aug. 2, 1977). Thus

the court of appeals erred in applying the Fees Act.

III. RerrospectiveE APPLICATION Or THE Fees Act To Av-

THORIZE ATTORNEYS Fres Awarps AGAINST STATEs Is

MANIFESTLY UNyust.

The court of appeals held that the Fees Act should apply

in this case, even though the attorneys’ services were per-

formed several years before the effective date of the Fees

Act, and even though the state treasury will pay the award

(App. 3a n. 2). Petitioners urge that, if the Fees Act is held

to have abrogated the Eleventh Amendment defense, then

the retrospective application of the Fees Act in this case is

“manifestly unjust” and therefore within the express excep-

9

tion to the rule of Bradley v. School Board of City of Rich-

mond, 416 U.S. 696 (1974).

In Bradley, this Court held that the statute authorizing

attorneys’ fees in school desegregation cases (20 U.S.C.

§ 1617) should be applied to cases in which the propriety of

an attorneys’ fees award was pending resolution on appeal

on the effective date of the statute. The Bradley rule,

however, is not without limitation; an exception to the rule

should be made to prevent manifest injustice. 416 U.S. at

716-721.

This Court noted three factors to be examined in deter-

mining whether manifest injustice is worked by the retro-

spective application of a fees statute: the identity of the

parties, the nature of their rights, and the impact of the

change in law upon those rights. 416 U.S. at 717. In this

case, the petitioners are state officials, but the real party in

interest is the Commonwealth of Massachusetts. The Com-

monwealth’s resources are limited; the demands on those re-

sources, overwhelming. The award has not been budgeted.

Indeed, the award here is an unforeseeable obligation im-

posed on the state by the enactment of the Fees Act. Before

the Act, the state had a defense to the award, based on the

Eleventh Amendment. Had the state defendants been able

to foresee this new attorneys’ fees obligation, they might

have conducted this litigation differently in order to limit or

eliminate their liability for attorneys’ fees.

Massachusetts is not the only state affected by the retro-

spective application of the Fees Act; nor is this the only case

in which Massachusetts is vulnerable.’ Many civil rights

* Petitioners do not contend that the $4,000 award here is unduly bur-

densome. In other cases pending in the District of Massachusetts, how-

ever, the Commonwealth is potentially liable for much larger awards.

An informal survey of cases handled in this office shows that we are

handling at least twenty significant civil rights cases in which the Com-

monwealth might be held liable for attorneys’ fees. A conservative esti-

mate of our total potential liability for fees in these twenty cases is a

figure in excess of $350,000.

10

cases against state officials are pending on federal dockets;

some have been pending for years before the enactment of

the Fees Act. Some of these cases, like this one, have been

settled by consent decrees which do not resolve the attorneys’

fees problem. The potential financial consequences of the

Fees Act to all the states are alarming, even if the Act has

only prospective effect. The consequences of the retrospec-

tive application of the Act are grave.

Conclusion.

For these reasons, a writ of certiorari should issue to re-

view the judgment and opinion of the First Circuit.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

' STEPHEN R. DELINSKY,

Assistant Attorney General,

Chief, Criminal Bureau,

BARBARA A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

KATHLEEN KING PARKER,

Assistant Attorney General,

Criminal Division,

One Ashburton Place, 18th Floor,

Boston, Massachusetts 02108.

(617) 727-2240

Of Counsel:

JOHN P. CORBETT,

Assistant Attorney General.

la

Appendix.

United States Court of Appeals

for the First Circuit

No. 74-1425

MITCHELL G. KING, JR.,

PiaintirF, APPELLEE,

v.

MILTON GREENBLATT, et at.,

Derenvants, Arrei.ants.

APPEAI. FROM THE UNITED STATES DISTRICT COURT

VOR THE DISTRICT OF MASSACIIUSETTS

[Hon. Curves E. Wyzansxi, Ju., U.S. District Judge]

Before

Corrin, Chief Judge,

Lay, Circutt Judge,”

Campneni, Circuit Judae.

Kathleen Wing Parker, Assistant Attorney General, with whom Francis A.

Bellotti, Atiornw y General, Stephon RL Delinsh y, Assistant Attorney General,

Chief, Criminal Uuresnu and Barbara A, HW. Smith, Assistant Attorney General,

Chief, Criminal Appellate Seetion were on brief, for appellants.

John H. Hen, with whom Foley, Hoag §& kliot was on brief, for appellice.

August 15, 1977

Campneit, Circuit Judge. This is an appeal from the

award of $4,000 in attorney’s fees to Mitchell B. King, Jr.

whose civil rights suit to improve his conditions of con-

finement at the treatment center for the sexually danger-

ous at MCI Bridgewater culminated in two June 1974

consent decrees in his favor. On October 29, 1974, several

*Of the Eighth Circuit, sitting by designation.

2a

2 KING UV. GREENBLATT

months after the matter was concluded, the district court

awarded $4,000 to King’s attorney ‘‘[flor ten hours in

court and seventy hours of preparation’? at a rate of $50

per hour. Defendants — state officials acting in their offi-

cial capacities — appealed but thereafter withdrew their

appeal by permission of this court to seek clarification of

the district court’s order. While the motion to clarify was

before the district court, we decided Souza v. Travisono,

512 F.2d 1137 (1st Cir.), vacated, 423 U.S. 809 (1975). In

light of that decision, the district court on April 18, 1975,

modified its earlicr order and awarded $1,964 to reflect the

$30 per in-court hour and $20 per out-of-court hour rate of

the Criminal Justice Act of 1964, 18 ULS.C. § 3006A (d) (1).

The appeal from this second order was pending when the

Supreme Court decided Alyeska Pipeline Serv. Co. vy. Wil-

derness Soc’y., 421 U.S. 240 (1975), and on July 15, 1975,

we remanded to the district court for reconsideration in

view of Alyeska, Because a decision by another judge on

substantially the same issue was anticipated, both parties

suggested that the district court stay further action. As

a result, the case lay dormant until December 22, 1976 when

appellee moved that this court revoke its July 15, 1975

remind order on the ground that the order had been mooted

by the recently enacted Civil Rights Attorney’s Fees Award

Act of 1976, Pub. L. No. 94-558, 90 Stat. 2641 (amending

42 U.S.C. § 1988). We denied the motion without prejudice

to the district court’s giving consideration to the Act’s

applicability. The district court directed the defendants to

show cause why the original $4,000 fee award should not

be imposed, After taking briefs on the issue, by order of

February 17, 1977, it allowed compensation in the amount

of $4,000, incorporating by reference the original October

29, 1974 order, all other proceedings in the district court

and this court, and the briefs of the parties in response to

-_

3a

OPINION OF THE COURT 3

the show cause order. The appeal from the February order

was consolidated with the prior appeals.

The question is whether ‘‘reasonable attorney’s fees’’

as provided by the Civil Rights Attorney’s Fees Award

Act of 1976 (the Fees Act)' are still to be computed at the

rate established by the Criminal Justice Act applied in

Souza v. Travisono, supra, or whether a different standard

should apply.’

Appellants argue that Souza established this circuit’s

standard for reasonable attorney’s fees in civil rights cases

and that the standard remains unaffected by passage of

the Fees Act. Pointing to the district court’s finding that

this case was not ‘‘of truly exceptional public importance’’

and arguing that the effect of inflation should not be an

issue — the services were rendered at approximately the

same time as those in Souza—appellants urge that the

district court’s award of $1,964 was the proper amount.

When we decided Souza there was no statute authorizing

——_—

142 U.S.C. § 1988 as amended reads in relevant part:

‘‘In any action, or proceeding to cuforce a provision of sections 1981,

1982, 1983, 1085, and 1986 of thin title, title IN of Public Law 92-318,

or in ony civil action or proceeding, by or on behalf of the United States

of America, to enforee, or charging a vivlation of, a provision of the

United States Internal Revenue Code, or tithe VI of the Civil Rights

Act of 1964, the court, in its discretion, may allow the prevailing party,

other than the United States, « reasonable attorney’s fee as part of

the costs.’’

2 We do not accept appellants’ threshold claim that the Fees Act may not

be applied retroactively because the Commonwealth is the real party in interest

and the state treasury will pay the award. In Martinez Rodriquez vy. Jimenez,

551 F.2d 877, 878-79 (ist Cir. 1977), also a prisoners’ rights case, we held,

in express agreement with the Kighth Cireuit’s decision in Finnacy vy. Hutto,

548 F.2d 740 (8th Cir, 1977), that the Fees Act would apply to cases on

direct appeal at the time the Act was passed und that the eleventh amend-

ment did not bar awards under the Act. The Fifth Circuit has since adopted

the same view, Rainey v. Jackson State Colicgr, 551 F.2d 672, 675-76 (5th

Cir. 1977), and the Ninth Circuit, while not discussing the cleventh amend-

ment issuc, has hekl that the Fees Act applies to pending actions, Stanford

Daily v. Zurcher, 550 F.2d 464, 465-66 (9th Cir. 1977). That the taxpayers

will have to pay does not constitute manifest injustice so as to avoid the rvle

of Bradley v. Richmond School Board, 416 U.S. 696 (1974). Appellants

‘*would not have ordered their conduct diffcrently if they had known the new

statute was going to apply.’’ Martinez Rodriquez v. Jimencz, supra, 551 F.2d

at 878 n.4, citing B v. Richmond School Board, supra, 416 U.S. at 716-21.

REST COPY AVAILABLE

— oro

4a

4 KING UV. GREENBLATT

‘*a reasonable attorney’s fee as part of the costs’’ in cases

brought under 42 U.S.C. § 1983. The lack of authoritative

guidance, the bar’s traditional duty to assist in public serv-

ice litigation regardless of fee, and our concern with pos-

sible excessiveness, all dictated a cautious approach. The

conservative Criminal Justice Act rates which, while below

the going marketplace rates had the imprimatur of legis-

lative approval, seemed most appropriate at the time. Pas-

sage of the Fees Act has, however, rendered obsolete the

considerations underlying Souza. Not only has Congress

now provided for atiorney’s fees awards in civil rights

cases, the Act’s legislative history leaves no doubt that

Congress intended not only that the fees be adequate

enough to ‘‘attract competent counsel’’* but ‘‘that the

amount ... [would] be governed by the same standards

which prevail in other types of equally complex federal

litigation such as antitrust cases’’.* Mechanical application

of the Criminal Justice Act fee scale obviously does not

meet these criteria, and we shall therefore no longer re-

quire adherence to Souza.

What constitutes a reasonable attorney’s fee in a par-

ticular case shall rest within the sound discretion of the

district court, see Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717 (5th Cir. 1974). We shall, however,

expect a court to adhere carefully to certain general cri-

teria in making a diseretionary award under the Fees Act.

The Fifth Circuit’s decision in Johnson v. Georgia High-

way Express, Inc., supra, was cited with approval in the

legislative history of the Fees Act and in decisions of the

Eighth, Ninth, and D.C. Circuits. Johnson listed twelve

3S. Rep. No. 1011, 94th Cong., 2d Sess. 6, reprinted in [1976] U.S. Code

Cong. & Ad. News 5908, 5913; H. Rep. No. 1558, 94th Cong., 2d Sess. 9 (1976).

*S. Rep. No. 1011, supra at 6, [1976] U.S. Code Cong. & Ad. News at 5913.

5 Although not necessarily in civil rights cases where the Fees Act applies,

these decisions all dealt with the award of ‘‘reasoy ‘ble’’ fees as provided

for by statute. See Finney v. Hutto, 548 F.2d 740, 742 (8th Cir. 1977) (Fees

Act); Kerr v. Screen Extras Guild, 526 F.2d 67, ) (9th Cir. 1975), cert.

ee ee

5a

OPINION OF THE COURT 5

factors to be considered by district courts in arriving at

reasonable fees awards: 1) the time and labor required;

2) the novelty and difficulty of the question presented;

3) the skill required to perform the legal services; 4) the

preclusion of other employment by the attorney due to

acceptance of the case; 5) the customary fee in the com-

munity; 6) whether the fee is fixed or contingent; 7) time

limitations imposed by client or circumstances; 8) the

amount involved and the rosults obtained; 9) the experi-

ence, reputation and ability of the attorney; 10) the unde-

sirability of the case; 11) the nature and length of the pro-

fessional relationship with the client; 12) awards in similar

cases. Id. at 717-19. These criteria are similar to those in

the ABA Code of Professicnal Responsibility® and we ap-

prove them for use in Fees Act cases within this circuit

with the following observations.

denied, 425 UB. 951 (1976) (Labor-Management Relations Reporting and

Disclosure Act); Kvans v. Sheraton Park Hotel, 503 F.2d 177, 188 (D.C.

Cir. 1974) (Title VII).

6 Ethical Considcration 2-18 reads in relevant part,

‘*The determination of the reasenabliencas of a fee requires consideration

of all relevant circumstances, including those atated in the Diseiplinary

Rules [set out below]. The feos of a lawyer will vary according to many

fartor:, incleding tho time required, bia experience, ability, and reputa-

tion, the nature of the employment, the responsibility involved, and the

results obtained. . . .’’ [Footnote omitted.)

Disciplinary Rule 2-106(B) provides:

‘*A fee is clearly excessive when, after a review of the facts, a lawyer

of ordinary prudence would be left with a definite and firm conviction

that the fee is in excess of a reasonable fee. Factors to be considered

as guides in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the

questions involved, and the skill requisite to perform the legal

serviee properly.

(2) The likelihood, if apparent to the client, that the acceptance of the

employment will preclude other employment by the

(3) The fee customarily charged in the locality for similar legal

t involved and the results obtained. |

The amoun

The time limitations imposed by the client or the circumstances.

6) The natore and length of the professional relationship with

client.

The

perf

i

the

experience, reputation, and ability of the lawyer or lawyers

orming the services.

(8) Whether fee is fixed or contingent.’’

6a

6 KING UV. GREENBLATT

As a starting point the attorney or attorneys must sub-

mit to the court a detailed record of the time spent on the

case and the duties performed. See Stanford Daily v.

Zurcher, 64 F.R.D. 680, 682 (N.D. Cal. 1974), aff’d, 550

F.2d 464 (1977). The court must secure from the attorneys

a full and specific accounting for their time; bills which

simply list a certain number of hours and lack such impor-

tant specifics as dates and the nature of the work per-

formed during the hour or hours in question should be

refused, Furthermore, ‘‘laln attorney's record of time

is not a talisman’’, Rainey v. Jackson State College, 551

F.2d 672, 677 (5th Cir, 1977); the district court should

scrutinize it with care.

“The trial judge should weigh the hours claimed

against his own knowledge, experience, and expertise

of the time required to complete similar activities. If

more than one attorney is involved, the possibility of

duplication of effort along with the proper utilization

of time should he scrutinized. The time of two or three

lawyers in a courtroom or conference when one would

do, may obviously be discounted. It is appropriate to

distinguish between legal work, in the strict sense, and

investigation, clerical work, compilation of facts and

statistics and other work which can often be accom-

plished by non-lawyers but which a lawyer may do be-

cause he has no other help available. Such non-legal

work may commund a lesser rate. Its dollar value is

not enhanced just because a lawyer does it.’’

Johnson v. Georgia Highway EKxpress, Inc., supra, 488 F.2d

ut 717.

Once the time and labor required have been fully evalu-

ated, the district court should apply the relevant Johnson

criteria in arriving at a reasonable fee. In so doing, it

.

ee. anesese

7a

OPINION OF THE COURT 7

would be helpful for the court to set out in the record the

basis for the award and any pertinent findings of fact.

See, e.g., Stanford Daily v. Zurcher, supra. Care obviously

should be taken to avoid excessive fees. The ‘‘normal’’

per hour rate in a locale is itself an artificial construct.

Actual bills will frequently be lower, sometimes much lower,

than that rate might indicate; on exceptional occasions they

may however exceed it. While the modest Criminal Jus-

tice Act rates might allow a more mechanical application,

an assumed niarketplace rate is never to be applied across

the board without regard to the difficulty of the work, the

results achieved and all other relevant factors.

There remains the question of the disposition of the mat-

ter before us. We have reviewed the record with care and

conclude that the $4,000 award was reasonable under the

Johnson criteria. The case involved important issues; the

results were :listinctly beneficial and peculiarly dependent

upon the work of counsel; and there are findings that the

attorney performed with commendable diligenee and abil-

ity. While the court used a $50 an hour yardstick, it ap-

pears that more than 80 hours was actually spent by the

attorney; we are satisfied that the award was not coim-

puted mechanically and that it reflects an appropriate

sensitivity to relevant considerations. Bearing in mind

that the fees issue has remained unresolved since 1974, we

believe it both unnecessary and unduly burdensome to re-

mand to the district court for yet a further round of con-

sideration. We therefore affirm.

Affirmed.