Petition — Huecker v. Weisenberger

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FILED

gen Court, VU. “V

| way 29 1979

————— SS — a — —

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V wrcraee RODAK, JR., CLERR

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

} 1786

GAIL 8. HUECKER,

DANIEL R. TIERNEY,

C. LESLIE DAWSON, et al., : . - . Petitioners

versus

MARIANNE WEISENBERGER

ELIZABETH MILBURN,

RONALD DELLINGER, et al., . . Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARVIN R. O'KOON

Giencral Counsel

ANN T. HUNSAKER

Assistant General Counsel

Office of the Counsel

Department for Human Resources

275 East Main Street

Frankfort, Kentucky 40621

Counsel for Petitioner

WESTERFICLO-BONTE CO., 619 W. KENTUCKY-P.©O. POX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

SE ii-iv

I eR, a 1

ee 66a dca aden kd wkaddiewken 2

iin ya isis agit’. 9 4. 6'6-0.0:0 0° 2

Constitutional Provision Involved .................. 3

Statutory Provisions Involved ..................... 3

I EE es ccvcncccssaeseesecsevveds. 5-10

Reasons For Granting the Writ .................... 11-28

ee eee as ge diiid ia kweadnesse 4 28

ean ones 64 va soo 0 v.80 kd pe 29

iia s tak soe soeasesasees 31-50

TABLE OF CITATIONS

Cases: .s . esan

Alyeska Pipeline Service Co. v. Wilderness Society,

A eer rrr ere 8, 15

Bankers Trust v. Mallis, 435 U. 8. 381 (1978) ..... 18

Boe v. Colello, 447 F. Supp. 607 (S.D.N.Y.1978) ... 12

In re Borgenicht, 470 F, 2d 283 (2nd Cir. 1972) .... 25

Bradley v. School Board of City of Richmond, 416

is Se GR nb 460-66 0-00 band soe 0606 Be 17, 19, 23

Briggs v. Pennsylvania R. Co., 334 U. S. 304 (1948) 22

City of Cleveland v. Federal Power Commission, 561

Bs Oe OU GON CREATE cv avirdoscccccbiceese 22

City of Detroit v. Grinnell Corporation, 560 F. 2d

ey GE SCY Navkad's 00h cde ce dacrbasvcca 12, 14

Clanton vy, Allied Chemical Corporation, 416 F.

ODD. SH Cit. VO. TOTS) 2. cccccccccccccsvece 12

Copetand v. Marshall, No. 77-1351 (D.C. Cir. Oct. 20,

1978) 18 E.P.D. 8827, 47 U.S.L.W. 2305 ........ 28

Davis v. County of Los Angeles, 8 E.P.D. 483 99444

PIII S605 ha wen sub et and noes ves bs cs 24

Edelman v. Jordan, 415 U. 8. 651 (1974) .......... 7,15

Employees v. Missouri Public Health Dept., 411

ee fry eee oe eee 15

In re Equity Funding Corporation of American

Securities Litigation, 438 F. Supp. 1303 (C.D.

GRE resets Mn ane 12

Escamilla v. Santos, 591 F. 2d 1086 (ith Cir. 1979). 18

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ......... 15

Gagne v. Maher, 455 F, Supp. 1344 (D. Conn. 1978) 12

Henry v. Clarksdale Municipal Separate School Dis-

trict, 409 ¥. 2d 682 (5th Cir. 1969), cert. denied,

396 U. S. 940 (1969) ; 425 F’. 2d 698 (1970) ; 433

F, 2d 387 (1970) ; 480 F. 2d 583 (1973) ; 579 F. 2d

EE <5 val ay 6k bh a bead eenaiek nee kk 19, 20

Huecker, et al. v. Weisenberger and Milburn, 538 F.

ee ee ee a, DUD svn sacs hincedadedaves 8, 22

Hutto v. Finney, __. U. S. ___, 98 S. Ct. 2565

GR ies bE Co cs via ks es Keiveneked ih ehand 11, 14, 21

ili

Cases (Con’t): PAGE

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

744 (Gi Cir. BRIE) oc ccccdacivesazecsscsancss 24

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

cert. denied, 420 U. S. 991 (1975) ............. 7

Keown v. Storti, 456 F. Supp. 227 (E.D. Pa. 1978) = 13

Keyes v. School District Number 1, Denver, Colo-

rado, 439 F. Supp. 393 (D. Col. 1977) .......... 12

King v. Greenblatt, 560 F. 2d 1024 (1st Cir. 1977),

cert, demed, U. Ss. ——, 98 8. Ct. 3146

(July 3, 1978) ...cccccccaccvcccccecseceveees 25

Latham vy. Chandler, 406 F. Supp 754 (N.D. Miss.

ATG) inc ccncvcvscnandewesecebanncs ct aceages 13

Lindy Bros. Builders, Inc. of Phila. v. American

Radiator and Standard Sanitary Corp., 540 F.

Oa 808 (Ord Clr. 2076) oi vccvcccccces 11, 13, 23, 25

Milburn and Weisenberger, et al. v. Huecker, et al.,

500 F. 2d 1279 (6th Cir. 1974) ......... cee eee 7, 24

Northcross v. Board of Education of Memphis City

Schools, 412 U. S. 427 (1973) ......... cee eeeee 20, 21

Panior v. Iberville Parish School Board, 543 F. 2d

TAET (OG Gib. FOG) os acc deen cccucacsscscsans 13

Parker v. Matthews, 411 F. Supp. 1059 (D.D.C.

BUTE) ccccccecccsccesoncrscteceeescouseeuaus 12

Perkins v. Standard Oil Co., 399 U. 8S. 222 (1970) .. 238

Prandini v. National Tea Co., 585 F. 2d 47 (8rd Cir.

WIG oc sdecnnvinsaveaciecscigusccanvenne css 13

Rainey v. Jackson State College, 551 F. 2d 672 (5th

Ge, WOGT) knccncccasscascascvsiassscceevasn co 2

Souza v. Southworth, 564 F. 2d 609 (1st Cir.1977).. 11

Stanford Dailey v. Zurcher, 64 F.R.D. 680 (N.D.

Cal. 1974), aff'd. 550 F. 2d 464 (9th Cir. 1977),

rev'd. U. S. __, 98 S. Ct. 1970 (1978) ...12, 24

Swann v. Charlotte-Mecklenburg Board of Educa-

tion, 66 F.R.D, 483 (W.D.N.C. 1975) .......00.. 24

Taylor v. Perini, 503 F. 2d 899 (6th Cir. 1974), va-

caied on other grounds, 421 U.S, 982 (1975) ... 7

Thornton v. Carter, 109 F. 2d 316 (8th Cir. 1940).. = 22

Cases (Con’t): —

Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y. 1975), 538

ae © OF | ee per 12

United States v. Redmond, 5/1 F. 2d 513 (9th Cir.

ED anus: celaas end anlesee ads ometaeviales oka as 22

Weisenberger, Milburn and Dellinger v. Huecker,

Tierney and Dawson, Nos. 78-3008, 78-3009, 78-

3012, 78-3013 and 78-3018 (6th Cir. decided Feb-

POE Ty BPO a hiii nce se wen ecccesdesveeseces 9, 10

Wheeler v. Durham City Board of Education, 585 F.

IE Sais 0 5040 ssubenaures os 16, 17

Constitution, Statutes and Acts:

Constitution of the United States, Amendment XI.. 14

United States Code,

SE SD 06 x0 a'e iad c ga cee eed an 17, 18, 19, 20

Title 42,

BE was atiede sue ts 60K vokenn Cikatesaeaes 6

NE Sig Dawe cis biter GC cus Cuairen sca auel Ss 6

SE niin cde nuead cake ieteoke pe bdakasae eens 18, 27

RES Rae Mela geipe dens 8, 13, 14, 15, 17, 24, 27

Sais Falla Sag i AF PGT EQN N rn USGI 25, 27

a rat re re ee 23

Miscellaneous:

Federal Rules of Civil Procedure, Rule 58 ........ 7,18

Senate Report No. 94-1011, reprinted in [1976]

U.S. Code Cong. & Admin. News 6338 ...16, 24, 27, 28

APPENDIX A

Contents

PAGE

Weisenberger, et al. v. Huecker, et al., Judgment and

Memorandum Opinion of United States District

Court for the Western District of Kentucky (Sep-

SEE ee OU 6 66 -400-0s db c bee bhiesneakse sane 31-33

Milburn, et al. v. Huecker, et al., Judgment and Memo-

randum Opinion of United States District Court

for the Western District of Kentucky (November

BO ROUEN: onthe ccccucdsccacuksddaees ceueeneees 34-35

Dellinger, et al. v. Dawson, et al., Judgment and Find-

ings of Fact and Conclusions of Law of United

States District Court for the Western District of

Kentucky (September 13, 1977) .................36-40

Weisenberger, Milburn & Dellinger, et al. v. Huecker,

Tierney and Dawson (now Conn), et al., Opinion of

the United States Court -of Appeals for the Sixth

Cireuit (No. 78-3008, 78-3009, 78-3012, 78-2013 and

78-S018) Februaty B71, TOTS ou cscccscciscccecsess 41-50

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

GaIL 8S. HUECKER,

DANIEL R. TIERNEY,

C. Lestre Dawson, Et AL. - - Petitioners

MARIANNE WEISENBERGER,

ELIZABETH MILBURN,

RoNALD DELLINGER, ET AL. - - Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioners, Gail S. Huecker, Daniel R. Tierney

and C. Leslie Dawson, respectfully pray that a writ of

certiorari issue to review the judgment and order of

the United States Court of Appeal for the Sixth Cir-

cuit entered in this proceeding on February 27, 1979.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit, not yet reported, is set out in full

in the Appendix, page 41. The judgments and opinions

of the United States District Court for the Western

District of Kentucky are set out in full in the Appen-

dix, page 31.

JURISDICTION

The judgment and order of the United States Court

of Appeals for the Sixth Circuit on the three cases

consolidated on appeal was entered on February 27,

1979. This petition for a writ of certiorari was filed

within ninety days of that date. Under the provisions

of 28 U.S.C. §1254(1), this Court has jurisdiction to

review the judgment below.

QUESTIONS PRESENTED

1. Whether a party is entitled under the provisions

of 42 U.S.C. §1988 and the Eleventh Amendment to

recover attorney’s fees for time and effort spent pur-

suing attorney’s fees.

2. Whether the Weisenberger and Milburn cases were

pending cases at the time the Civil Rights Attorney’s

Fees Award Act of 1976 became law.

3. Whether awarding attorney’s fees to a government

funded legal services program is contrary to the pro-

visions of the Legal Services Corporation Act and is

an abuse of discretion in that special circumstances

exist which render the award unjust.

4. Whether awarding attorney’s fees to a government

funded legal services program for fifty dollars an hour

is reasonable,

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States, Amendment XI:

The judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the

United States by citizens of another State, or by

citizens or subjects of any foreign State.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42

§1988—

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of

this chapter and title 18, for the protection of all

persons in the United States in their civil rights,

and for their vindication, shall be exercised and

enforced in conformity with the laws of the United

States, so far as such laws are suitable to carry the

same into effect ; but in all cases where they are not

adapted to the object, or are deficient in the pro-

visions necessary to furnish suitable remedies and

punish offenses against law, the common law, as

modified and changed by the constitution and stat-

utes of the State wherein the court having juris-

diction of such civil or criminal cause is held, so

far as the same is not inconsistent with the Consti-

tution and laws of the United States, shall be

extended to and govern the said courts in the trial

and disposition of the cause, and, if it is of a

criminal nature, in the infliction of punishment on

the party found guilty. In any action or proceed-

ing 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 provision

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 attor-

ney’s fee as part of the costs.

United States Code, Title 42

§2996—

(1) there is a need to provide equal access to the

system of justice in our Nation for individuals who

seek redress of grievances;

(2) there is a need to provide high quality legal

assistance to those who would be otherwise unable

to afford adequate legal counsel and to continue the

present vital legal services program;

(3) providing legal assistance to those who face an

economic barrier to adequate legal counsel will

serve best the ends of justice and assist in improv-

ing opportunities for low-income persons consis-

tent with the purposes of this chapter ;

(4) for many of our citizens, the availability of

legal services has reaffirmed faith in our govern-

ment of laws;

(5) to preserve its strength, the legal services pro-

gram must be kept free from the influence of or

use by it of political pressures; and

(6) attorneys providing legal assistance must

have full freedom to protect the best interest of

their clients in keeping with the Code of Profes-

sional Responsibility, the Canons of Ethics, and

the high standards of the legal profession.

United States Code, Title 42

§2996f(b)—

No funds made available by the Corporation under

this subchapter, either by grant or contract, may

be used—

(1) to provide legal assistance (except in accord-

ance with guidelines promulgated by the Corpora-

tion) with respect to any fee-generating case

(which guidelines shall not preclude the provision

of legal assistance in cases in which a client seeks

only statutory benefits and appropriate private

representation is not available) ;

STATEMENT OF THE CASE

This is a petition for a writ of certiorari to the

United States Court of Appeals for the Sixth Circuit

to review a judgment and order of three cases which

were consolidated for purposes of appeal. The Court

of Appeals affirmed in part the judgments of the

United States District Court for the Western District

of Kentucky in granting attorney’s fees to respondents’

counsel. The Court of Appeals reversed the judgments

in the Weisenberger and Dellinger cases and allowed

attorney’s fees for time spent pursuing attorney’s fees.’

1The plaintiffs filed cross-appeals in Weisenberger and Dellinger

on the issue of attorney’s fees for time spent pursuing fees, but did

not file a cross-appeal in Milburn.

A. Milburn v. Huecker and Tierney; Weisenberger v.

Huecker and Tierney.

These cases were originally filed in June of 1972 as

class actions by respondents on behalf of themselves

and all recipients of benefits under the Aid to Perma-

nently and Totally Disabled program (APTD)? and the

Aid to Families with Dependent Children program

(AFDC),’ welfare programs jointly administered by

the state and federal governments. Plaintiffs claimed

that the state (the petitioners) had violated their due

process rights by failing to process applications and

award benefits within the time limits prescribed by

federal regulations.* Respondents sought declaratory

relief, an order enjoining the petitioners from not act-

ing within the appropriate time periods, an award of

all benefits wrongfully withheld since 1968, and reason-

able costs and attorney’s fees. The District Court

found the state’s practices violative of federal law and

granted prospective relief. The District Court denied,

however, the demands for retroactive payment of wel-

fare benefits wrongfully withheld, holding they were

barred by the Eleventh Amendment. The District

Court also refused requests for costs and attorney’s

fees. The respondents have been continuously repre-

sented by The Legal Aid Society of Louisville, Inc., and

have received legal representation without charge of

fees.

“Title XVI of the Social Security Act; 42 U.S.C. §1351, et seq.

The AABD pragram was substantially modified by the Supple-

mental Security Income (SSI) program, effective January 1, 1974.

’Title 1V-A of the Social Security Act; 42 U.S.C. §601, et seq.

#95 C.F.R. §206.10(a) (3) (i) and (ii).

Respondents appealed the cases to the Court of

Appeals. Milburn and Weisenberger, et al. v. Huecker,

et al., 500 F. 2d 1279 (6th Cir. 1974). The Court of

Appeals affirmed the District Court’s denial of retro-

active payment of welfare venefits on the basis of

Edelman v. Jordan, 415 U. 8. 651 (1974) ; and reversed

the failure to award costs and attorney’s fees and re-

manded the cases for further finding of facts to permit

meaningful appellate review.

On remand, respondents’ counsel submitted affi-

davits summarily estimating ninety (90) hours of work

in District Court and forty-five (45) hours in the Court

of Appeals in the cases.’ The District Court awarded

attorney’s fees to respondents’ counsel in the amount of

$2,500 in Milburn and $2,000 in Weisenberger. The

Court ordered that petitioners Huecker and Tierney

were personally liable for the awards in their indi-

vidual capacities.°

The petitioners appealed the cases to the Court of

Appeals.’. The respondents cross-appealed on the issue

of failure of the District Court to award the fees

5Weisenberger: District Court—40 hours; Court of Appeals—

15 hours. Milburn: District Court—50 hours; Court of Ap-

peals—30 hours.

®These awards were made against petitioners in their individual

capacities since the prevailing view of the Sixth Cireuit was that

the Eleventh Amendment barred the award of attorney’s fees

against an unconsenting state or against state officials acting in

their official capacities. See Jordan v. Gilligan, 500 F. 2d 701, 705

(6th Cir. 1974), cert. denied, 420 U. S. 991 (1975); Taylor v.

Perini, 503 F. 2d 899, 901 (6th Cir. 1974), vacated on other grounds,

421 U. S. 982 (1975).

7™The Sixth Circuit ruled it lacked jurisdiction to review Milburn

because no separate order was entered by the District Court pur-

suant to Rule 58, Fepera, Ruues or Civi, Procepure. 538 F. 2d

1241, 1243 (6th Cir. 1976).

against the petitioners in their official capacities. The

Court of Appeals held that the intervening decision of

the Supreme Court in Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U. S. 240 (1975), must be

applied and the private attorney general theory relied

upon by the District Court in making the award was an

inappropriate basis upon which to award attorney’s

fees. Huecker, et al. v. Weisenberger and Milburn, 538

F, 2d 1241 (6th Cir. 1976).* The Court of Appeals

upheld the denial of attorney’s fees against petitioners

in their official capacities. The case was remanded to

the District Court to make specific findings of fact on

the issue of whether petitioners exhibited bad faith, and

were thereby liable in their individual capacities.

The respondents did not petition for writ of cer-

tiorari and the mandate issued on August 11, 1976.

Seven months after the second decision by the Court of

Appeals, respondents’ counsel filed motions for attor-

ney’s fees in Weisenberger and Milburn under the pro-

visions of 42 U.S.C. §1988. The District Court in

Weisenberger held an evidentiary hearing but denied

petitioners attempts at discovery or cross-examination

to question the reasonableness of the award.’ The Dis-

trict Court in Milburn conducted no evidentiary hear-

ing. No evidence of bad faith was offered by the re-

spondents in either case. The District Court in both

®The case was decided on July 21, 1976. The Civil Rights Attor-

ney’s Fee Award Act of 1976 became effective October 19, 1976.

*The petitioners attempted to obtain copies of documents of the

respondents which related to salaries, budgets and time records of

the respondents. Respondents filed a motion for a protective order.

Petitioners also attempted to cross-examine respondents’ counsel

about salary. The District Court sustained respondents’ objection

and allowed very general testimony on salary by avowal.

eases reaffirmed the previous awards on the basis of

42 U.S.C. §1988, and denied fees for time spent by

respondents’ counsel pursuing fees.

The petitioners appealed the cases a third time to

the Court of Appeals, arguing, among other things, that

it was improper for the District Court to rely on the

Act; an award to a Legal Services Corporation funded

organization was improper; the rate of $50.00 per hour

was improper for a Legal Services Corporation funded

organization; and, on respondents’ cross-appeal in

Weisenberger, fees for time spent pursuing fees were

correctly denied. The Court of Appeals affirmed the

award of $2,000 and $2,500 awarded by the District

Court. An additional judgment for $2,548 was awarded

to plaintiffs’ counsel in Wetsenberger for time spent

by respondents’ counsel in pursuing fees.'° Weisen-

berger, Milburn and Dellinger v. Huecker, Tierney and

Dawson, Nos. 78-3008, 78-3009, 78-3012, 78-3013 and

78-3018 (6th Cir. decided Feb. 27, 1979).

B. Dellinger v. Dawson.

In May, 1975, respondents filed a complaint on be-

half of a statewide class alleging petitioners denied

them constitutional and statutory rights by failing to

process unemployment insurance benefit claims within

specific time limits. On January 17, 1977, the District

Court entered judgment requiring that payment of

initial unemployment insurance benefits be made within

10The Court of Appeals awarded $5,096 divided equally between

the Weisenberger and Dellinger cases for all time spent on the

appeals. Appendix, page 49.

10 -

twenty-four days of application on all claims uncon-

tested by the former employer. The District Court

further ordered that checks to replace lost or stolen

checks be delivered to respondents within fourteen days

of receipt of an affidavit stating that a benefit check is

lost, stolen, or missing.

Respondents subsequently moved the District Court

to alter and amend its previous order to allow attor-

ney’s fees. The District Court conducted an evidentiary

hearing but denied petitioners attempts at discovery or

cross-examination to question the reasonableness of the

award.'' On September 13, 1977, the District Court

awarded $2,912.50 in attorney’s fees to plaintiffs. The

District Court refused to allow fees for time spent

litigating the attorney’s fees issue,,

The petitioners appealed the award of attorney’s

fees arguing in part that an award to a Legal Services

Corporation funded organization was improper; the

rate of $50.00 per hour was improper; and, on respond-

ents’ cross-appeal, the denial of fees for time spent

pursuing fees was proper. The Court of Appeals af-

firmed the award of $2,912.50 and awarded respondents’

counsel an additional $2,548.00.'* Weisenberger, Mil-

burn and Dellinger v. Huecker, Tierney and Dawson,

supra,

11See footnote 9, at p. 8, supra.

14See footnote 10, at p. 9, supra.

REASONS FOR GRANTING THE WRIT

1. The Decision of the Court of Appeals in Awarding At-

torney’s Fees for Time Spent Obtaining Fees Conflicts

With the Decisions of Other Courts of Appeals and

Involves an Important Constitutional and Statutory

Question Which Has Not Been, But Should Be, Settled

by the Supreme Court,

The federal courts are in disagreement as to whether

an award should include compensation for time spent

in pursuit of fees. This confusion is expressed in the

three cases in this petition. The District Court denied

compensation for pursuit of fees, citing Lindy Bros.

Builders, Inc. of Phila. v. American Radiator and

Standard Sanitary Corp., 540 F. 2d 102 (8rd Cir.

1976), and the Court of Appeals reversed, citing no

particular authority but noting the Supreme Court

permitted fees on appeal before the Court of Appeals

in Hutto v. Finney, U. S. ——, 98 S. Ct. 2565

(1978). The Sixth Circuit failed to note that the fee

award on appeal in Hutto involved an important sub-

stantive issue on which the petitioner lost. In Weisen-

berger and Milburn, the only substantive issue ever ap-

pealed was done so on respondents’ initial appeal and

resulted in respondents’ loss."* There never has been

a substantive issue on appeal in Dellinger.

The holdings in other circuits are in conflict. The

First Circuit and the Court of Appeals for the District

of Columbia apparently agree with the Sixth Circuit

ruling in the present cases, and allow awards of at-

torney’s fees for the time spent in pursuit of those fees.

Souza v. Southworth, 564 F. 2d 609 (1st Cir. 1977);

13500 F. 2d 1279 (6th Cir. 1974),

and Parker v. Matthews, 411 F. Supp 1059 (D.D.C.

1976). The Tenth Circuit allows ‘‘fees for fees’’ but

limits the award to a smaller rate than is allowed for

time spent on substantive issues. Keyes v. School Dis-

trict Number 1, Denver, Colorado, 439 F. Supp. 393

(D. Col. 1977).

In the Fourth Circuit, the award of attorney’s fees

for the time spent in pursuit of those fees is not allowed.

Clanton vy. Allied Chemical Corporation, 416 F. Supp.

39 (E.D. Va. 1976). Inthe Second and Ninth Circuits,

where ‘‘fees for fees’’ were originally allowed, the

courts now hold that such fees are not appropriate. City

of Detroit v. Grinnell Corporation, 560 F. 2d 1093 (2nd

Cir. 1977); Gagne v. Maher, 455 F. Supp. 1344 (D.

Conn. 1978) ; Boe v. Colello, 447 F. Supp. 607 (S.D.N.Y.

1978); and In re Equity Funding Corporation of

American Securities Litigation, 438 F. Supp. 1303 (C.D.

Cal. 1977). Interestingly, the early cases in the Second

and Ninth Circuits were heavily cited by courts in the

other circuits in deciding to allow fees for time spent

pursuing attorney’s fees. The case in the Second Cir-

cuit was Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y.

1975). This case was affirmed at 538 F. 2d 10 (2nd

Cir. 1976), without discussion of the ‘‘fees for fees’’

aspect. It should be noted that the fees for pursuing

fees only involved 2.9 hours of work in that case.

The Ninth Circuit case was Stanford Daily v. Zur-

cher, 64 F.R.D. 680 (N.D. Cal. 1974), aff’d., 550 F. 2d

464 (9th Cir. 1977), rev’d., U.S. —, 98S. Ct. 1970

(1978). The original award of fees in this case was

apparently based on unreasonable search and seizure,

and the Supreme Court, in reversing the Court of Ap-

peal’s judgment upon which the award was predicated,

specifically declined, in footnote 3, to consider the pro-

priety of the award at that time. 988. Ct. at 1975. As

was pointed out, both of these circuits have now joined

the Fourth Circuit in refusing to award attorney’s fees

for time spent in pursuing fees.

In the Third and Fifth Circuits, a rule on whether

to award fees for time spent pursuing fees does not

appear to be firmly established. The Third Circuit

originally declined to award such fees in Lindy Bros.

Builders, Inc. of Phila. v. American Radiator and

Standard Sanitary Corporation, supra. They later dis-

tinguished Lindy as applying only to awards made

under the common benefit theory, and awarded fees for

time spent in pursuit of fees under the statutory au-

thority of 42 U.S.C. §2000e. Prandini v. National Tea

Co., 585 F. 2d 47 (38rd Cir. 1978). Since that decision,

a District Court in the Third Circuit has declined to

award fees for time spent in pursuit of fees under 42

U.S.C. § 1988, and that judgment has thus far been

allowed to stand. Keown v. Storti, 456 F. Supp. 227

(E.D. Pa. 1978). The Fifth Circuit also has conflicting

eases. Panior v. Iberville Parish School Board, 543 F.

2d 1117 (5th Cir. 1976) ; and Latham v. Chandler, 406

F. Supp. 754 (N.D. Miss. 1976).

In general, those courts that have declined to award

attorney’s fees for time spent in pursuit of fees have

done so on the theory that the benefit from such work

inured to counsel as distinguished from benefitting the

plaintiff or plaintiff class. This distinction is especiaily

important when plaintiff’s counsel is a government

funded legal services organization established for the

benefit of indigents. On the other hand, those courts

that have awarded such fees have generally applied the

theory that not to do so would allow a deep-pocket losing

party to dissipate the award by appealing the decision.

If the losing party made bad faith objections to a

fee claim or in appealing a fee claim, he would be liable

for the time spent by the prevailing party under the

bad faith theory of recovery. City of Detroit v. Grin-

nell Corporation, supra. The cost of the appeal itself

would normally stop a losing party from appealing un-

less he thought he had a good chance of success.

To allow fees for time pursuing fees seriously jeop-

ardizes a defendant’s capacity to interpose good faith

objections to the claim for fees or appealing the award.

If defendants contest what they legitimately consider

to be an unreasonable or fraudulent claim for attorney’s

fess, contesting the fee claim could easily be more costly

than the original claim. And where does it end? If

defendants do contest the claim and prevail, shouldn’t

they likewise be awarded fees for time spent success-

fully contesting fees?

The Supreme Court, in Hutto v. Finney, 98 S. Ct.

at 2573, held that Congress, in amending § 1988, success-

fully exercised its power to set aside the states’ Elev-

enth Amendment immunity in order to enforce the

Fourteenth Amendment. However, Congress did not

express any exercise of power, either by the terms of

the amendments to § 1988 or its legislative history, to

set aside the states’ Eleventh Amendment immunity to

award fees for time spent in pursuit of fees. Fitz-

patrick vy. Bitzer, 427 U. 8. 445 (1976); Edelman v.

Jordan, 415 U. 8. 651 (1974) ; Employees vy. Missouri

Public Health Dept., 411 U.S. 279 (1973). 42 U.S.C.

§ 1988 provides for award of attorney’s fees to enforce

the provisions of 42 U.S.C. §§ 1981, 1982, 1983, 1985

and 1986, title LX of Public Law 92-318, title VI of the

Civil Rights Act of 1964; or in any civil action by the

United States to enforce a provision of the Internal

Revenue Code. There is no provision in § 1988 for an

award of attorney’s fees for obtaining fees under § 1988.

As noted by the Supreme Court in Alyeska Pipeline

Service Co. v. Wilderness Society, supra, federal courts

do not have the power to grant fees to prevailing parties

without specific statutory authority to do so. Likewise,

federal courts do not have the power to grant fees for

time spent obtaining fees as there is no statutory au-

thority to do so.

2. The Decision of the Court Below in Awarding Attor-

ney’s Fees Pursuant to §1988 in the Weisenberger and

Milburn Cases Is in Conflict With the Decisions of Other

Courts of Appeals as They Were Not Pending Cases.

In enacting the 1976 amendments to 42 U.S.C.

§ 1988, Congress noted its objective :

In many eases arising under our civil rights laws,

the citizens who must sue to enforce the law has

little or no money with which to hire a lawyer. If

private citizens are to be able to assert their civil

rights, . . . then citizens must have the oppor-

tunity to recover what it costs them to vindicate

these rights in court. SENATE REPORT No.

94-1011, page 2, reprinted in [1976] U. 8S. CODE

CONG. & AD. NEWS. 6338, at 6339-6340,

The provisions of § 1988 state that it applies to ‘‘ pend-

ing cases.’’ However, no where does Congress explain

in the provisions of the amendment or the legislative

history what it means by the term pending case.

The Weisenberger and Milburn cases were origi-

nally filed in 1972 and all substantive, civil rights issues

were resolved in the District Court and the Court of

Appeals on the first appeal. 500 F, 2d 1279 (6th Cir.

1974). The respondents asserted their civil rights with-

out the provisions of the 1976 amendments to § 1988,

Therefore, lack of provision of attorney’s fees in no

way hindered their vindication.

If the Weisenberger and Milburn cases were decided

in the Court of Appeals for the Fourth Circuit or Fifth

Circuit, the results have been different. The Fourth

and Fifth Cireuit Courts of Appeals would have held

the cases were not pending at the time the 1976 amend-

ments of § 1988 became law.

The United States Court of Appeals for the Fourth

Circuit correctly applied the ‘‘pending case’’ rule in

the school desegregation case of Wheeler v. Durham

City Board of Education, 585 KF, 2d 618 (4th Cir, 1978),

The initial complaints to force desegregation were filed

in 1960. As with so many desegregation cases, numer-

ous orders were entered from time to time by the

District Court and appeals taken to the Court of Ap-

peals. In 1972, plaintffs filed a motion for further

relief. The District Court denied the relief but the

Court of Appeals reversed and granted plaintiffs the

substantive relief they sought. Plaintiffs then moved

for attorney’s fees on the basis of 20 U.S.C, § 1617 and

42 U.S.C. §1988 for all work accomplished since 1960.

20 U.S.C. § 1617 permits attorney’s fees in school de-

segregation cases and became effective on July 1, 1972."

The Court of Appeals noted at the outset that both

§ 1617 and § 1988 have practically identical language ;

and although the Court ruled with respect to § 1617, it

said that, its holding “*. . . applied equally to § 1988,

for there is no indication that Congress intended the

language of the two statutes to be interpreted differ-

ently.”’ Wheeler vy. Durham City Board of Education,

585 FE. 2d at 621. The Court of Appeals stated the

question before it was whether the litigation was pend-

ing on the effective date of the statute within the ration-

ale of Bradley v. School Board of City of Richmond,

416 U. S, 696 (1974). Noting that final orders were

entered which decided the rights of the parties, and

that appeals on the substantive issues were not taken,

the Court of Appeals held that no issue was pending in

the sense that the term was used in Bradley, supra,

As with § 1988, the Court of Appeals noted that the

legislative history of § 1617 is silent as to the definition

of pending cases,

Absent an expression of contrary congressional in-

tent, we think that the statute should be aeecommo-

dated to the nature of the litigation to which it

applies.

48717 of the Emergency School Aid Act of 1972,

We therefore hold that §1617 does not authorize

attorneys’ fees with regard to those whases of

litigation that had been reduced to a final judgment

at the time §1617 became effective. Wheeler v.

Durham City Board of Education, 585 F, 2d at 623.

The Court of Appeals for the Fifth Circuit reached

the same conclusion in a § 1983 action filed by plaintiffs

in July 1974 against county officials in Texas alleging

intolerable living conditions in jail. After two years

of litigation, the parties entered a consent decree on

July 29, 1976. Based upon existing law at the time, on

August 30, 1976, the District Court denied plaintiffs’

request for attorney’s fees and entered a memorandum

opinion and order. A judgment or order was not set

out on a separate document as required by Rule 58 of

the Federal Rules of Civil Procedure.” Plaintiffs

moved for reconsideration of attorney’s fees pursuant

to the 1976 amendments to §1988. The District Court

held that the August 30th order was not a final appeal-

able judgment since a Rule 58 judgment had not been

entered and awarded attorney’s fees pursuant to § 1988.

The Court of Appeals for the Fifth Circuit reversed.

Escamilla v. Santos, 591 F. 2d 1086 (5th Cir. 1979).

Citing Bankers Trust v. Mallis, 435 U. 8. 381 (1978),

the Court of Appeals stated that the memorandum

opinion will be considered a final judgment. The Court

of Appeals held the District Court erred in concluding

it had retained jurisdiction to award attorney’s fees

because at the time the amendments to § 1988 beeame

law, no issues were pending.

15This is identical to the situation in the Milburn case. See

538 F. 2d at 1243.

The Court of Appeals for the Fifth Circuit consid-

ered attorney’s fees in relation to 20 U.S.C. § 1617 in

Henry v. Clarksdale Municipal Separate School Dis-

trict, 579 F. 2d 916 (5th Cir. 1978). The school de-

segregation case was originally filed in District Court

in 1964. The case was before the Fifth Circuit four

times on substantive desegregation issues.’® On the

fourth appeal, the Fifth Circuit remanded the case to

determine, in essence, if the defendants had acted in bad

faith in the years preceding the effective date of § 1617

and to determine reasonable fees since July 1, 1972, the

effective date of §1617. Henry v. Clarksdale Municipal

Separate School District, 480 F. 2d at 585-86. The

District Court assessed fees for post-July 1, 1972 legal

services; and found the defendants had not exhibited

bad faith and, therefore, denied pre-July 1, 1972 fees.

The plaintiffs appealed, claiming the case was pending

on the issue of attorney’s fees in the District Court at

the time § 1617 became law and, therefore, fees should

be awarded for the entire litigation, citing Bradley,

supra,

The Fifth Cireuit affirmed the District Court’s

ruling. Henry v. Clarksdale Municipal Separate School

District, 579 F. 2d 916 (1978). Asin the Weisenberger

and Milburn cases, there were no substantive issues

pending in the District Court or on appeal when the

statute authorizing an award of attorney’s fees was

enacted. The Court of Appeals found the District

16Henry v. Clarksdale Municipal Separate Schooi District, 409

F. 2d 682 (5th Cir. 1969), cert. denied, 396 U. S. 940 (1969) ;

425 F. 2d 698 (1970) ; 433 F. 2d 387 (1970) ; 480 F. 2d 583 (1973).

Court correctly made a finding of whether the defend-

ants had acted unreasonably and stubbornly in the liti-

gation to determine whether the plaintiffs were entitled

to attorney’s fees for pre-statutory authorization work.

The Fifth Circuit noted the clear distinction:

At the time [§ 1617] was enacted, all definitive or

substantive orders of this Court and the District

Court for desegregating the . . pubie schools

. had been entered and were being complied

with. There were no pending appeals of any sort.

To apply [§1617] retroactively, a case must have

an ‘active’ issue pending on the date of its enact-

ment, see Rainey v. Jackson State College, 551 F.

2d 672, 676 (5th Cir. 1977). Henry v. Clarksdale

Municipal Separate School District, 579 F. 2d at

918 and 919 (5th Cir. 1978).

If the reasoning of the Fourth and Fifth Circuits

had been applied in Weisenberger and Milburn, the

Sixth Circuit would have reversed the District Court

and denied the $2,000 and $2,500 awards as these

amounts were for work accomplished on those phases of

the litigation which had been reduced to a final judg-

ment prior to the effective date of § 1988. Indeed, the

petitioners were in compliance with the final judgment

four years before § 1988 became law.

In Northeross v. Board of Education of Memphis

City Schools, 412 U. 8. 427 (1973), the Supreme Court

decided the issue of whether a successful plaintiff

should ordinarily recover an attorney’s fee under 20

U.S.C. § 1617. The Court then decided a question left

open in Northeross in Bradley v. School Board of City

of Richmond, 416 U. 8S. at 710, as to whether § 1617

applies to cases pending on appeal when the law be-

came effective.

In Hutto v. Finney, 98 3. Ct. at 2573, the Supreme

Court decided whether a -uccessful plaintiff can re-

cover an attorney’s fee against the state under the bad

faith theory of recovery and the 1976 amendments to

42 U.S.C. §1988. However, both Hutto and Bradley

leave undecided by the Supreme Court the issue of

whether §1988 authorizes an award of attorney’s fees

in cases in which all § 1983 issues were resolved and ap-

peals exhausted prior to the effective date of the law.

In Hutto v. Finney, supra, the Supreme Court

considered two awards of attorney’s fees against state

officials: (1) a District Court award against the state

as a result of the official’s bad faith in failing to cure

constitutional violations identified by the District

Court; and (2) a Court of Appeals award against the

state pursuant to the Civil Rights Attorney’s Fees

Awards Act of 1976 for plaintiffs’ counsel’s services on

appeal. The District Court award was made prior to

enactment of the Act; the Court of Appeal’s award was

subsequent thereto. The Supreme Court upheld both

awards: the District Court award under the bad faith

theory and the Court of Appeals award under the pro-

visions of § 1988.

The second decision by the Court of Appeals in

Weisenberger and Milburn is consistent with the de-

cision by the Supreme Court in Hutto v. Finney, supra.

In Hutto, the District Court found the defendants had

acted in bad faith and the award served the same pur-

pose as a remedial fine imposed for civil contempt, and

vindicated the court’s authority over a recalcitrant liti-

gant. 988. Ct. at 2574. The Supreme Court ruled the

Eleventh Amendment did not prevent an award of

attorney’s fees against the state agency’s officers in

their official capacities on a finding of bad faith prior

to enactment of §1988. For an award of attorney’s

fees against an officer in his individual capacity, § 1988

does not apply and a finding of bad faith is still neces-

sary. 98S. Ct. 2579. However, in Weisenberger and

Milburn, the respondents never presented any evidence

of bad faith on the part of the petitioners and the

District Court never made any finding of bad faith,

despite the mandate of the Court of Appeals. Huecker,

et al. v. Weisenberger, et al., 538 F. 2d at 1246.

It is fundamental law that a District Court has no

power or authority to deviate from a mandate issued

by a Court of Appeals, even if the mandate was in error.

Briggs v. Pennsylvania R. Co., 334 U. 8. 304 (1948) ;

United States v. Redmond, 571 F. 2d 513 (9th Cir.

1978) ; City of Cleveland v. Federal Power Commission,

561 F. 2d 334 (D.C. Cir. 1977) ; Thornton v. Carter, 109

F. 2d 316 (8th Cir. 1940). A judgment which is wrong,

but unreversed by a higher court, is as effective as a

judgment which is right. Thornton v. Carter, supra.

The Court of Appeals for the Sixth Circuit, in

Weisenberger on the second appeal, did not render a

judgment which was incorrect or in error. The re-

spondents did not seek a stay of mandate, a petition for

writ of certiorari or to have the mandate recalled and

amended. Rather, the District Court completely ig-

nored the mandate and applied §1988 by virtue of a

motion made by respondents seven months after the

decision of the Court of Appeals. Therefore, it is clear

that the decision of the Sixth Circuit on the second

appeal is the controlling law which the District Court

should have applied. The ‘‘propriety of the fee award’’

was not pending resolution on appeal when the statute

became law. Bradley v. School Board of City of Rich-

mond, supra.

3. The Decision of the Court Below in Awarding Attor-

ney’s Fees of Fifty Dollars an Hour to a Government

Funded Legal Services Organization Raises Significant

and Recurring Problems in the Lower Federal Courts.

In the Milburn case, the District Court did not hold

an evidentiary hearing on the award of attorney’s fees

under the Act contrary to federal court decisions.

Lindy Bros. Builders, Inc. of Phila. v. American Ra-

diator & Standard Sanitary Corp., 487 F. 2d 161, 169

(8rd Cir. 1973). The Supreme Court in Perkins v.

Standard Oil Co., 399 U.S. 222 (1970), a case involving

award of attorney’s fees under section 4 of the Clayton

Act, stated that ‘‘[t]he amount of the award for such

services should, as a general rule, be fixed in the first

instance by the District Court, after hearing evidence

as to extent and nature of the services rendered.’’ 399

U. 8S. at 223. Without an evidentiary hearing, it is

impossible for the appropriate standards to be reviewed

in determining, for purposes of appeal, whether the

award was reasonable. Milburn and Weisenberger v.

Huecker, et al., 500 F. 2d 1279, 1282 (6th Cir. 1974).

The legislative history of the 1976 amendments to

42 U.S.C. § 1988 clearly state the standards to be ap-

plied in determining the amounts of fees to be awarded.

The appropriate standards, see Johnson v. Georgia

Highway Express, 488 F, 2d 714 (5th Cir. 1974),

are correctly applied in such cases as Stanfard

Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974) ;

Davis v. County of Los Angeles, 8 E.P.D. 483 19444

(C.D. Cal. 1974) ; and Swann v. Charlotte-Mecklen-

burg Board of Education, 66 F.R.D. 483 (W.D.N.C.

1975). These cases have resulted in fees which are

adequate to attract competent counsel, but which

do not produce windfalls to attorneys. In comput-

ing the fee prevailing parties should be paid, as is

traditional with attorneys compensated by a fee-

paying client, ‘for all time reasonably expended on

a matter.’ Davis, supra; Stanford, supra, at 648.

SENATE REPORT No. 94-1011 at p. 6.

The respondents’ counsel have offered no business

records which reflect the amount of time which was

spent on the cases or the actual cost of the cases. In

Weisenberger and Milburn, the District Court did not

require the respondents’ counsel reconstruct their ef-

forts on each procedural aspect of the cases or on each

of the issues (whether they prevailed on the issues or

not) in their claims for $2,000 and $2,500 respectfully."

The failure of the District Court to require respond-

ents’ counsel to reconstruct the time records in a sub-

stantial or reasonably accurate manner is contrary to

178ee footnote 9, at p. 8, supra.

decisions in Zn re Borgenicht, 470 F. 2d 283, 284 (2nd

Cir. 1972); Lindy Bros. Builders, Inc. of Phila. v.

American Radiator and Standard Sanitary Corp., 487

F. 2d 161, 166 (3rd Cir. 1973) ; King v. Greenblatt, 560

F. 2d 1024 (1st Cir. 1977), cert. denied, U.S. .

98 S. Ct. 3146 (July 3, 1978). In the Dellinger and

Weisenberger cases, the District Court denied the peti-

tioners’ counsel access to business records of the re-

spondents’ counsel in an attempt to verify the accuracy

of their statement and discover the reasonableness of

the award. The District Court indirectly placed the

burden of disapproving the award on the petitioners

yet failed to allow the petitioners discovery or adequate

eross-examination of respondents’ counsel.

The petitioners have argued in District Court and

the Court of Appeals that respondents’ counsel, which

is funded by the Legal Services Corporation, is pro-

hibited from accepting fee-generating cases and thus

must be prohibited from accepting fees for cases. 42

U.S.C. §2996g(b) (1). This statute provides as follows:

(b) No funds made available by the Corporation

under this subchapter, either by grant or contract,

may be used—

(1) to provide legal assistance (except in accord-

ance with guidelines promulgated by the Corpora-

tion) with respect to any fee-generating case

(which guidelines shall not preclude the provision

of legal assistance in cases in which a client seeks

only statutory benefits and appropriate private

representation is not available) ;

The Corporation adopted rules which define a fee-

generating case as one which ‘‘reasonably may be ex-

pected to result in a fee for legal services for an award

to a client, from public funds, or from the opposing

party.”’ 45 C.F.R. §1609.2; 41 FrprraL Recisrer 38505

(Sept. 10, 1976). Further, the Corporation in regula-

tion and consistent with the law, stated that the legal

services agency (recipient) cannot use Corporation

funds to provide legal representation in a fee-generat-

ing case unless other representation is unavailable. 45

C.F.R. §1609.3. The regulations further provide that

the legal services agency can only seek and accept a fee

if the agency has determined under specific guidelines

(set out in 45 C.F.R. §1609.4) that other adequate

representation is deemed unavailable. 45 CO.F.R.

§1609.5.

The respondents’ counsel failed to establish in the

District Court that they had satisfied the requirements

of their governing regulations. It is the contention of

petitioners that as a Legal Services Corporation re-

cipient, respondents’ counsel must submit some evi-

dence that under their regulations they have complied

with the requirements that permit them to seek and

accept a fee award. Absent such proof, respondents’

counsel should be denied any fee.

The District Court and the Court of Appeals found

that a reasonable rate of hourly compensation to the

respondents’ counsel is fifty dollars ($50.00) per hour.

The petitioners tried to obtain business documents and

testimony on cross-examination which would clearly

show that fifty dollars an hour was not and is not neces-

sary to ‘attract competent counsel’’ and will ‘‘ produce

windfalls to [legal services program] attorneys.’’

SENATE Report No. 94-1011, page 6. The District

Court and the Court of Appeals rejected the petitioners

argument. The petitioners strongly feel the federal

courts need specific guidance in this area of the law.

It must be noted that the purpose of the Legal

Services Corporation Act and funding of free legal

services is to ‘‘provide equal access to the system of

justice . . . for individuals who seek redress of griev-

ance;’’ and ‘‘to provide high quality legal assistance to

those who would be otherwise unable to afford adequate

legal counsel. . . .”? 42 U.S.C. §2996(1) and (2).

Therefore, the Legal Services Corporation Act is de-

signed to give legal services for the indigent, and fees

which are adequate to attract counsel should not be the

controlling test in determining the rate of reimburse-

ment when individuals are represented by legal services

attorneys. Rather, the controlling test in determining

the amount of the fees to be awarded to government

funded legal services is whether such an award will

result in a windfall. The standard which should be

applied in determining a reasonable rate of reimburse-

ment should be different for a case in which a legal

services attorney,is representing an individual than if

an attorney in private practice is representing an indi-

vidual. By allowing evidence and consideration of the

actual costs involved in the representation, the govern-

ment funded legal services program will be adequately

compensated and windfalls will not result.

In civil rights actions pursuant to 42 U.S.C. §1983,

defendants are government officials. As is noted in the

legislative history to 42 U.S.C. $1988, ‘‘In such cases it

is intended that the attorney’s fees . . . will be col-

lected either directly from the official, in his official

capacity, from funds of his agency or under his control,

or from the State or local government (whether or not

the agency or government is a named party).’’ SENATE

Report No, 94-1011, p. 5. The deep pocket which state

funds naturally offer become an incentive or temptation

to counsel to inflate their hours and rate of compensa-

tion to claim more as reimbursement than could be re-

covered from private parties. Copeland v. Marshall,

No. 77-1351, Court of Appeals for the District of Co-

lumbia Cireuit; 18 E.P.D. 8827 (October 20, 1978) ;

47 U.S.L.W. 2305. Indeed, state funds will tempt at-

torneys to seek out civil rights issues to litigate if the

rate of compensation is more than the actual cost of

litigation.

CONCLUSION

For these reasons set forth above, a writ of certiorari

should issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit.

sen eee

ANN T. HUNSAKER

Assistant General Counsel

275 East Main Street

Frankfort, Kentucky 40621

Marvin R. O’Koon

General Counsel

Counsel for Petitioners

PROOF OF SERVICE

I, Ann T. Hunsaker, Counsel for the Petitioner here

certify that three (3) copies of the foregoing Petition were

mailed, postage prepaid, to Honorable Lawrence 8. Elswit,

Counsel for Respondent, Legal Aid Society of Louisville,

Inec., 425 West Muhammad Ali Blvd., Louisville, Kentucky

40202, on this the 5d day of May, 1979.

Qnnt¥. Kanto ber]

Ann T. HunsakKer

Assistant General Counsel

APPENDIX

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 7299-A

Manwanne Wrisenounamn, Mr Au - ~~ Plaintiff's

Gau, S. Hunecken, Wr Au - + + + + Defendants

“_—«

JUDGMENT. Entered September 26, 1977

On motion of the plaintiffs, and the Court being suffi

ciontly advised,

Ir Is Orpen ano Apsuparp that the Legal Aid Society

of Louisville, Ine, recover the sum of $2,000 as attorneys’

feos against the defendants, Gail S. Iluecker and Daniel R.

Tierney, jointly and severally, Said judgment shall be paid

within 80 days of the date of this judgment and shall bear

interest at the rate of 6 per cent per annum from the date

of this judgment until paid,

This is a final and appealable judgment and there is no

just cause for delay.

September 23, 1977

(s) Charles M, Allen

United States District Judge

ce: Counsel of Record

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 7299-A

Marianne WeIsenBerceR, Hr Au. - - - Plaintiffs

Gam S. Huecxern, Er Au. - - - - - Defendants

MEMORANDUM OPINION—Entered September 26, 1977

This action is submitted to the Court, pursuant to an

order entered by the Court on August 15, 1977. At issue is

whether or not the Legal Aid Society should receive any

additional fees as a result of 2814 hours expended by At-

torneys Henry B. Hinton, Jr. and Kurt Berggren in at-

tempting to secure attorneys’ fees for the Legal Aid Society

in this Court and in the United States Court of Appeals for

the Sixth Circuit.

The Court has determined, in a case very similar to this,

to wit: Dellinger, et al. v. Dawson, et al., No. C 75-0156L(A)

filed September 13, 1977, that Legal Aid Society attorneys

are not entitled to recover attorneys’ fees for work ex-

pended in connection with their motion for the award of

fees. The reasoning, as set out in that case, is that an

award of legal fees would only redound to the benefit of the

Legal Aid Society and not to the benefit of their clients,

since their clients are on a non-paying basis. We realize

that in Lindy Brothers Builders, Inc. of Philadelphia v.

American Radiator and Standard Sanitary Corp., 487 F. 2d

161 (3rd Cir. 1973); see, also 540 F. 2d 102 (1976), claims

for attorneys’ fees representing time spent in persuading

the Court as to the amount of fee which should be awarded,

are not compensable by the Court. That case, of course,

involved a somewhat different situation, since any attor-

neys’ fees which were awarded diminished the recovery

accruing to the named plaintiffs and the class which they

represent. Such would not be the case here.

In conclusion, we have entered an order this day denying

the motion of the Legal Aid Society for additional fees by

awarding to them fees in the amount of $2,000. We predi-

cate this judgment on the fact that the fee was awarded

prior to the appeal in Huecker v. Milburn, 538 F. 2d 1241

(6th Cir. 1976), wherein the court, in footnote 3, p. 1243,

referred to this Court’s finding that the Legal Aid Society

spent an estimated 40 hours in the District Court and 15

hours in the Appellate Court.

This Court sees no reason to rehash the questions raised

at this time and, therefore, reaffirms its award of $2,000.

September 23, 1977

(s) Charles M. Allen

United States District Judge

ee: Counsel of Record

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

No. 7301-B

Evizasern Mitpurn, Er Au. - - - - - Plaintiffs

Gam. S. Huecxern, Er Au. - - - - - Defendants

JUDGMENT—Entered November 17, 1977

On motion of the Legal Aid Society for payment of fees

by the defendants, Huecker and Tierney, and the Court

being sufficiently advised,

It is OrpErED AND Apsupcep that the defendants, Gail S.

Hueckner and Daniel R. Tierney, jointly and severally, pay

the sum of Two Thousand Five Hundred ($2,500.00)

Dollars as attorneys’ fees to the Legal Aid Society of

Louisville.

This is a final and appealable Judgment, and there is no

just cause for delay.

This 16th day of November, 1977.

(s) Thomas A. Ballantine, Jr.

United States District Judge

Copies to:

Counsel of record

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

No. 7301-B

EuizabetH Minpurn, Et AL. - - - - - Plaintiff's

Gam. 8S. Huecxern, Er Au. - - - - - Defendants

MEMORANDUM OPINION—Entered November 17, 1977

This matter is pending on the motion of the Legal Aid

Society for the allowance of fees for representing the

indigent plaintiffs.

In Huecker v, Milburn, 538 F. 2d 1241 (6th Cir., 1976),

the Court of Appeals stated that it lacked jurisdiction to

pass on the question of attorneys’ fees since no final Order

had been entered directing payment.

The Court is not now disposed to discuss in any further

detail the Memorandum entered by Judge Bratcher on

February 19, 1975. This Memorandum will be adopted by

reference in its entirety, and the Court further finds that

the passage of the Civil Rights Attorneys’ Fees Award Act

of 1976, P.L. 94-559, lends further support to the award of

fees in cases such as this.

The Court further finds that the defendants, Huecker

and Tierney, jointly and severally, are liable to the Legal

Aid Society in the sum of Two Thousand Five Hundred

($2,500.00) Dollars, and an appropriate Judgment has been

entered this date.

This 16th day of November, 1977.

(s) Thomas A. Ballantine, Jr.

United States District Judge

Copies to:

Counsel of record

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. C 75-0156 L(A)

Ronatp Devurncer, Er Au. - - - - - Plaintiffs

Vv.

Lesum Dawson - - - - - - = = Defendants

JUDGMENT—HEntered September 13, 1977

The Court, having entered its findings of fact and con-

clusions of law, and being fully advised in the premises,

Iv Is Orperev anv Apsupaep that the State defendants,

Leslie Dawson, Gail S. Huecker, Michael Morriaty, Daniel

Tierney, and Gene Vandergriff, their servants, agents, suc-

cessors and all other persons in privity with them pay the

sum of $2,912.50.

Ir Is Furruer Orverep anp Apsupcep that said sum be

paid to the Legal Aid Society as attorneys’ fees awarded to

it by the Court.

This is a final and appealable judgment and there is no

just cause for delay.

Dated: 9-13-77

(s) Charles M. Allen

United States District Judge

ee: Counsel of Record

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. C 75-0156 L(A)

RonaLp De.uinaer, et al. - - - . Plaintiff's

Vv.

Lestiz Dawson, etal. - -— - 7 - Defendants

FINDINGS OF FACT AND CONCLUSION OF LAW

Kntered September 13, 1977

This action is submitted to the Court on the motion of

the plaintiffs for attorneys’ fees in the amount of $3,737.50.

The Court held an evidentiary hearing in accordance with

the holding in Lindy Brothers Builders, Inc, of Philadelphia

v. American Radiator and Standard Sanitary Corp., 487

F. 2d 161 (3rd Cir. 1973) ; see, also, 540 F. 2d 102 (1976).

The Legal Aid Society, in this action, represented a class

of plaintiffs who requested the Court to enter judgment

requiring the State defendants to process promptly unem-

ployment benefit applications which are uncontested, and

further to deliver promptly replacement checks where such

benefit checks were lost, stolen or missing, and further re-

questing certain relief as to the Secretary of Labor. While

plaintiffs did not succeed in all of their requests, they did

obtain a summary judgment ordering the State defendants

to process all unemployment benefit applications for ex-

tended, second extended or supplemental unemployment

benefits which are uncontested in such a manner that pay-

ment be mailed personally to the applicant within 24 days

after the application for benefits had been filed. Plaintiffs

also succeeded in obtaining from the Court the summary

judgment a requirement that the State defendants deliver

any replacement checks within 14 days. Also, the judgment

requires the State defendants to make reports to this Court

until December 15, 1977 regarding their carrying out the

provisions of the judgment. The complaint as to the

Secretary of Labor was dismissed.

Counsel for plaintiffs thereby secured a judgment which

was of benefit to a large class of persons, the exact number

of which is unknown. Also, it should be noted that their

request for attorneys’ fees will not diminish any rights

which the class-plaintiffs have secured as a result of the

judgment, contrary to the situation in Lindy, supra, where

the attorneys’ fees were payable out of the fund recovered

by them on behalf of their clients.

The plaintiffs’ affidavits and testimony at the hearing

reveal that the attorneys for the Legal Aid Society ex-

pended 58.5 nontrial hours, which they claim is compensable

at $50 per hour, and 7.5 trial hours, which they claim is

compensable at $65 per hour. . However, the Court notes

that three attorneys were present at the so-called trial,

which was actually a motion’for a restraining order, and the

Court finds that it is notnecessary that more than one at-

torney be present at the hearing on the motion, therefore,

resulting in a disallowance of two-thirds of the amount re-

quested in connection with trial hours.

We observe Also that Professor Lloyd Anderson, for-

merly an attorney for the Legal Aid Society, filed his affi-

davit as tothe amount of time consumed by him in connec-

tion with the instant case. The Court finds that the time

spent’ by Mr. Anderson, with one exception, is included in

the time referred to in Mr. Elswit’s affidavit and is, there-

fore duplicative. The one exception pertains to an item

which consumed 5 hours.

Bbaiterer cn.

Also, the Court finds that the Legal Aid attorneys ex-

pended 12.5 hours in connection with their motion for

attorneys’ fee. Lindy, supra, holds that the time expended

in obtaining attorneys’ fees should not be allowed as a basis

for the award of attorneys’ fees in a case where a fund has

been made availabie for distribution to the prevailing plain-

tiffs, and where the attorneys’ fees would come out of that

fund and diminish the amounts recoverable by the members

of the prevailing class. Lindy, supra, therefore, is not com-

pletely controlling on this Court, and the Court believes

that it would be unwise to convert Lindy’s holding into an

absolute holding that in no case could a successful plain-

tiff’s attorney recover fees for time spent in connection with

the application for fees. The Court can envision a situation

where a successful plaintiff would have a contract with his

attorney for a fee based upon an hourly rate, subject to a

credit for any fees recovered from the defendant. In that

event, the denial of attorneys’ fees for the work expended

in connection with the motion for fees would result in a

diminution of the successful plaintiff’s net recovery,

whereas an award of the fees would tend to make him

whole.

However, this is not the case here, inasmuch as there is

no showing that the class-plaintiffs are bound by any agree-

ment to pay fees to the Legal Aid Society. No doubt such

an agreement might well be contrary to the rationale for

the existence of the Legal Aid Society. We, therefore, have

deleted from the fee computation of the plantiffs the 12-14

hours spent in connection with the fee application.

Finally, we must deduct a reasonable amount for the

time spent in connection with the preparation of pleadings

as to the Secretary of Labor and briefs in connection there-

with. While the Legal Aid attorneys candidly stated that

they could not place a percentage figure on the time con-

sumed in these areas, the Court notes that almost the entire

focus of the action has been directed at the State defendants

and not at the Secretary of Labor. We, accordingly, deduct

only 5 percent of the net amount remaining after deductions

for the application for attorneys’ fees and for duplicative

work.

We note that the attorneys for the Legal Aid Society

are highly-skilled in the field of welfare law such as is in-

volved in the instant case. We recognize their request for

fees, insofar as the hourly rate is concerned, to be eminently

reasonable. We note in passing, that private counsel

employed by the Commonwealth of Kentucky in an action

pertaining to the constitutionality of the Kentucky Bail-

bond statute, have stated that reasonable fees for their

senior partners are $100 per hour, for junior partners $75

per hour and for associates $60 per hour. We, therefore,

have no hesitation in awarding Legal Aid Society attorneys

compensation based upon the hourly rates which they

suggest.

The Court has this day entered a judgment in accordance

with these findings of fact and conclusions of law.

(s) Charles M. Allen

United States District Judge

Dated 9/13/77

ec: Counsel of Record

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 78-3008, 78-3009, 78-3012, 78-3013 and

78-3018

sary WEISENBERGER, EizaBeTH Mripurn,

ONALD DeuinGcer, et al. -— - Plaintiffs-A ppellees,

Cross-A ppellants,

Gam S. Hurcxer, Dante, Trerney, C. Lester

Dawson (now Peter Conn), Secretary of

the Kentucky Department for Human Re-

sources, etal. - - - - Defendants-Appellants,

Cross-Appellees

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

OPINION—Decided and «‘iled February 27, 1979.

Before: Epwarps, Chief Circuit Judge, Weick and

CELEBREZZE, Circuit Judges.

CELEBREZZE, Circuit Judge.

Defendants, administrators of the Kentucky welfare and

unemp!oyment insurance programs, appeal from an award

of attorney’s fees in three cases arising from the United

States District Court for the Western District of Kentucky.

Plaintiffs have cross-appealed in two of the cases from the

district court’s denial of attorney’s fees for legal services

performed in pursuit of fees. These appeals present three

basic issues: whether the district court properly relied

upon the Civil Rights Attorney’s Fees awards Act of 1976!

[hereinafter Act] as a basis for awarding attorney’s fees;

whether the district court properly exercised its discretion

in computing and awarding the fees; and whether attorney’s

fees may be awarded for lega! services performed in pur-

suit of attorney’s fees. For the reasons stated below, we

affirm in part, reverse in part, and remand with directions.

A. Milburn v. Huecker

Weisenberger v. Huecker

This is the third opportunity this court has had to re-

view these appeals. These cases were originally brought as

class actions by plaintiffs on behalf of themselves and all

recipients of benefits under the Aid to Permanently and

Totally Disabled program (APTD) and the Aid to Families

with Dependent Children program (AFDC), welfare pro-

grams jointly administered by the state and federal govern-

ments. Plaintiffs claimed that the state had violated their

due process rights by failing to process applications and

award benefits within the prescribed time limits. Plaintiffs

sought declaratory relief, an order enjoining the defendants

from not acting within the appropriate time periods, an

award of all benefits wrongfully withheld, and reasonable

costs and attorney’s fees. The district court found the

state’s practices violative of federal law and granted pro-

spective relief. The court denied, however, the demands for

1Pub. L. 94-559 (Oct. 19, 1976), codified in 42 U.S.C. § 1988:

In any action or proceeding to enforce a provision of sec-

tions 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 charg-

ing a violation of, a provision of the United States Internal

Revenue Code, or title VI of the Civil Rights Act of 1964, the

court, in its diseretion, may allow the prevailing party, other

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

the costs.

aah teem... -

retroactive payment of welfare benefits wrongfully with-

held, holding they were barred by the eleventh amendment.

The district court also refused requests for costs and at-

torney’s fees.

On the first appeal presented to this court, 500 F. 2d

1279 (6th Cir. 1974), we affirmed the district court’s grant

of prospective relief and affirmed, on the basis of Edelman

v. Jordan, 415 U. S. 651 (1974),? the denial of retroactive

relief. We reversed the failure to award costs and attor-

ney’s fees and remanded the cases for further finding of

facts to permit meaningful appellate review.

On remand the district court in each case abandoned its

previous position and awarded attorney’s fees to plaintiffs.

The district court awarded attorney’s fees in the amount of

$2,500 in Milburn and $2,000 in Weisenberger. Both awards

were to be paid by the defendants in their individual ea-

pacities.’

On our second review of these cases we only reviewed

the attorney’s fee award in Weisenberger.4| We held the

*In Edelman v. Jordon, 415 U.S. 651 (1974), the Supreme Court

held that the eleventh amendment deprived federal courts of juris-

diction to award past due welfare benefits payable from a state’s

treasury, and that a state’s participation in a federal welfare pro-

gram does not, without more, constitute an implied waiver of

eleventh amendment immunity.

’These awards were made against defendants in their individual

capacities since the then prevailing view in our circuit was that the

eleventh amendment barred the award of attorney’s fees against an

unconsenting state or against state officials acting in their official

capacities. See Jordon v. Gilligan, 500 F. 2d 701, 705 (6th Cir.

1974), cert. denied, 420 U. S. 991 (1975) ; Taylor v. Perini, 503 F.

2d 899, 901 (6th Cir. 1974), vacated on other grounds, 421 U. S.

982 (1975). Other circuits espoused the contrary position. See

Heucker v. Milburn, 538 F. 2d 1241, 1244 n.5 (6th Cir. 1976) (eol-

lecting cases). This conflict has been resolved in civil rights cases

against the prior position of this circuit. See note 7, infra.

4We lacked jurisdiction to review the Milburn award because no

separate order was entered by the district court pursuant to Fen. R.

Civ. P. 58. 538 F. 2d 1241, 1243 (6th Cir. 1976).

eleventh amendment did not constitute a bar to an award of

attorney’s fees against state officials individually since

such awards would not be paid out of the state’s treasury.

We were required, however, to remand the case a second

time. An intervening decision of the Supreme Court,

Alyeska Pipeline Service Co. v. Wilderness Society, 421

U. S. 240 (1975), held that the private attorney general

theory relied upon by the district court in making the award

was an inappropriate basis upon which to award attorney’s

fees. We instructed the district court to make specific

findings of fact on the issue of whether defendants exhibited

“bad faith.” Under Alyeska only a finding of “bad faith”

could justify a fee award in the present cases.

In the interim between our second remand of these cases

and the district court award of fees presently under review,

the Supreme Court decided the case of Fitzpatrick v. Bitzer,

427 U. S. 445 (1976). The Court held in Fitzpatrick that

the eleventh amendment and the principle of state sover-

eignty it embodies are limited by the enforcement provi-

sions of § 5 of the fourteenth amendment. Section 5 grants

Congress authority to enforce “by appropriate legislation”

the substantive provisions of the fourteenth amendment.*

The Court stated in Fitzpatrick:

When Congress acts pursuant to §¢ 5, not only is it

exercising legislative authority that is plenary within

the terms of the constitutional grant, it is exercising

that authority under one section of a constitutional

Amendment whose other sections by their own terms

embody limitations on state authority. We think that

Congress may, in determining what is “appropriate

‘The Court held in Fitzpatrick that the eleventh amendment

does not bar an award of backpay benefits in a Title VIT suit against

a state employer in light of the fact that the 1972 Amendments to

Title VIT, 42 U.S.C. §§ 2000-e, et seq., which made Title VII appli-

cable to state employers, were enacted pursuant to Congress’ § 5

power to eniorce the fourteenth amendment,

legislation” for the purpose of enforcing the provisions

of the Fourteenth Amendment, provide for private

suits against States or state officials which are consti-

tutionally impermissible in other contexts.

Id. at 456 (footnote omitted),

On October 19, 1976, also between our second remand

and the district court awards presently before us, Congress

enacted, pursuant to its ¢ 5 power, the Civil Rights Attor-

ney’s Fees Awards Act of 1976.6 The Act provides that in

certain civil rights suits a court may in its discretion award

attorney’s fees to prevailing parties as part of the costs of

the litigation. The Supreme Court in the recent case of

Hutto v. Finney, U. S. ——, 98 S. Ct. 2565 (1978),

held that the Act is a clear exercise of the § 5 power of

Congress to set aside a state’s eleventh amendment im-

munity and “to authorize fee awards payable by the States

when their officials are sued in their official capacities.”

Id. at ___., 98 S. Ct. at 2575."

®See note 1, supra.

7The Court in Hutto discussed another rationale in support of

the power of Congress to authorize such an award against state offi-

cials acting in their official capacities. The Court stated:

The Act imposes attorney’s fees ‘‘as a part of the costs.’’

Costs have traditionally been awarded without regard for the

State’s Eleventh Amendment immunity. The practice of

awarding costs against the States goes back to 1849 in this

Court. See Missouri v. Iowa, 7 How. 660, 681, 12 L. Ed. 861,

870; North Dakota v. Minnesota, 263 U. S. 583, 44 S. Ct. 208,

68 L. Ed. 461 (Collecting cases). The Court has never viewed

the Eleventh Amendment as barring such awards, even in suits

between States and individual litigants.

Hutto v. Finney, U. S. at , 98 S. Ct. at 2576 (footnote

omitted but commended to the reader).

The prior decisions of this court in the present cases and in others

which held the eleventh amendment constituted a bar to an award

of attorney’s fees against state officials acting in their official

capacities, see note 3, supra, are no longer good law in suits within

the purview of the Act.

On the second remand, the district court in each case

specifically relied upon the Act to support the awards of

attorney’s fees. The district court made no findings on the

issue of “bad faith.” Defendants assert on this third appeal

that it was improper for the district court to rely on the

Act. Plaintiffs in Weisenberger but not Milburn have

cross-appealed from the district court’s denial of attorney’s

fees for time spent pursuing attorney’s fees.

B. Dellinger v. Dawson

This case is before this court for the first time. In May,

1975, plaintiffs filed a complaint on behalf of a statewide

class alleging defendants denied them constitutional and

' statutory rights bv fgiling to process unemployment insur-

ance benefit claim :thin specific statutory time limits. On

January 17, 1°. the district court entered judgment re-

quiring that pa;®«at of unemployment insurance benefits

be made within twenty-four days of application on all claims

uncontested by the former employer. The court further

ordered that replacement checks be delivered to claimants

within fourteen days of receipt of an affidavit stating that

a claimant’s due and owing benefit check is lost, stolen, or

missing.

Plaintiffs subsequently moved the district court to alter

and amend its previous order to allow reasonable attorney’s

fees. On September 13, 1977, the district court awarded

$2,912.50 in attorney’s fees to plaintiffs. The district court

refused to allow fees for time spent litigating the attorney’s

fee issue. Defendants have appealed from only the part of

the final judgment which awarded attorney’s fees.* Plain-

tiffs have cross-appealed from that portion of the final

judgment which denied an award of attorney’s fees for time

spent pursuing attorney’s fees.

8Defendants did not appeal from the district court judgment

with respect to the merits of the case.

Oh tah es,

“A court is to apply the law in effect at the time it

renders its decision, unless doing so would result in mani-

fest injustice or there is statutory direction or legislative

history to the contrary.” Bradley v. Richmond School

Board, 416 U. S. 696, 711 (1974); Thorpe v. Housing Au-

thority of the City of Durham, 393 U. S. 268 (1969) ;

United States v. Schooner Peggy, 1 U. 8S. (1 Cranch) 358

(1801) ; Republic Steel Corp. v. Costle, 581 F. 2d 1228, 1233

(6th Cir. 1978). Since the Act was in existence at the time

the district court made the fee awards, it is applicable to

the instant cases.° The Supreme Court in Hutto v. Finney,

U.S. , 98 8. Ct. 2565, specifically heid that the

Act is applicable to cases that were pending when the

statute was enacted. Jd. at ....n. 23, 98S. Ct. at 2576 n.

23. See also Monroe v. County Board of Education, 583 F.

2d 263 (6th Cir. 1978). The legislative history of the Act

evidences a clear Congressional intent that the Act be

applied to pending cases. See S. Rep. No. 94-1011, 94th

Cong., 2d Sess., reprinted in {1976] U. S. Cope Conca. &

Ap. News 5908; H. R. Rep. No. 94-1558, 94th Cong., 2d Sess.,

4n.6. Further, defendants have made no showing to this

court that “manifest injustice” would result upon applica-

tion of the Act to the present cases. Accordingly, the dis-

trict court properly determined that the Act was applicable

since the plaintiffs were prevailing parties and the cases

were pending when the Act became law.'®

Our review of the records in these cases also leads us to

conclude that the amount of the awards in each case was

®All three of the present cases were originally brought under

42 U.S.C. § 1983. The Act by its terms applies to § 1983 suits,

When the Act became law only the attorney’s fee issue re-

mained undecided in Milburn and Weisenberger. We do not agree

with defendant’s argument that such cases cannot be regarded as

pending cases. See King v. Greenblatt, 560 F. 2d 1024 (1st Cir.

1977), cert. denied, U.S. (1978).

appropriate and a proper exercise of discretion." The

district court appropriately determined the amount of time

plaintiffs’ counsel spent on these cases and utilized a rea-

sonable hourly rate of compensation in arriving at a reason-

able award. Defendants have failed to display any evidence

that would lead us to conclude the district court abused its

discretion in this regard,

iit

On cross-appeal in Weisenberger and Dellinger, plain-

tiffs allege that the district court abused its discretion in

refusing to award attorney’s fees for counsel time spent

pursuing the recovery of attorney’s fees. We agree.

When Congress passed the Act its basic purpose was to

encourage the private prosecution of civil rights suits

through the transfer of the costs of litigation to those who

infringe upon basie civil rights. If a successful party in a

civil rights suit is awarded attorney’s fees under the Act

and he cannot secure attorney’s fees for legal services

needed to defend the award on appeal, the underlying Con-

gressional purpose for the Act would be frustrated. We

conelude that implementation of Congressional policy re-

quires the awarding of attorney’s fees for time spent pur-

suing attorney’s fees in the cases presently under review.

This award should also include amounts for legal time

11The original attorney’s fee awards in Weisenberger and Mil-

burn were made against the defendants in their individual ca-

pacities. See 538 F. 2d at 1243. The awards were made in that

manner because of the then current status of eleventh amendment

jurisprudence in our circuit. Sce note 3, supra. It is clear that

the Act currently permits an award of attorney's fees against state

officials in their official capacities. Hutto v. Finney, ___ U.S.

, 98 8S. Ct. 2565. The awards currently under review were

made under the auspices of the Act. Accordingly, we construe the

awards to be against defendants in their official capacities. No find-

ings of ‘‘bad faith’’ are needed to support an award of attorney’s

fees against state officials acting in their official capacities under

the Act. Id. at ___, 98 S. Ct. at 2579. The same reasoning

applies to the award in Dellinger.

spent defending and prosecuting the instant appeals. The

Supreme Court in Hutto v. Finney, U. S. , 98

S. Ct. 2565, upheld the authority of the court of appeals

under the Act to award attorney’s fees for legal services

rendered in the presentation of an appeal before the court

of appeals.

In Monroe v. County Board of Education, 583 F. 2d 263,

265 (6th Cir. 1978), a case dealing with attorney’s fee

awards, we stated:

Under other circumstances the action would be re-

manded for a determination of such reasonable amount,

but we do not choose to follow that course for two

reasons. First, the additional delay which would be

occasioned by such a remand would further postpone

the award of compensation which has already lingered

in the courts for an unconscionable time, and this

Court’s long and detailed familiarity with what has

transpired during the history of this protracted litiga-

tion make it possible for a determination of reasonable

compensation to be made at this judicial level.

We feel this statement is equally applicable here. Based

upon all of the factors and circumstances which we deem to

be relevant, and the affidavits of plaintiffs’ counsel sub-

mitted to this court, we conclude that the additional sum of

$5,096.00 would provide reasonable compensation for plain-

tiffs’ counsel and properly vindicate Congressional policy

underlying the Act.'?

"Counsel for plaintiffs submitted affidavits before the district

court and this court relating the number of hours expended before

the district court since the original fee awards and in our court

prosecuting the present appeals. We have taken the number of

hours submitted by plaintiffs’ counsel, 113.25 hours, and reduced it

by 10% to account for duplication of efforts among the respective

attorneys. See Oliver v. Kalamazoo Bd. of Educ., 576 F. 2d 714,

715 n. 2 (6th Cir. 1978). In arriving at the total amount awarded

we multiplied the reduced number of hours by a rate of $50 per

hour, a rate of hourly compensation found to be reasonable by the

district court.

Accordingly, the judgment of the district court in Mil-

burn and the portions of the judgments in Wetsenberger

and Dellinger awarding attorneys’ fees, as construed by

this court against defendants in their official capacities, are

affirmed. The portions of the judgments in Weisenberger

and Dellinger which denied plaintiffs attorney’s fees for

time spent pursuing attorney’s fees are reversed. Weisen-

berger and Dellinger are remanded to the district court

with directions to enter judgment for an additional

$5,096.00, divided equally between each case, as attorney’s

fees for plaintiffs’ counsel to be assessed against the de-

fendants in their official capacities as part of the costs of

this case.

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