# Petition — Greenblatt v. King

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 438 U.S. 916

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0042%3A1. Public record. Not legal advice.