Appendix — Donnell v. United States

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APPENDIX A

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

Nos. 81-1471, 81-1545

CLYDE R. DONNELL, et al.,

Appellants,

V.

UNITED STATES OF AMERICA

CLYDE R. DONNELL, et al.

v.

UNITED STATES OF AMERICA, EDDIE THOMAS, SR., et al.,

Appellants.

Argued 26 Feb. 1982

Decided 25, June 1982

Before TAMM and WILKEY, Circuit Judge, and

GESELL,* United States District Judge for the District

of Columbia.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

* Sitting by designation pursuant to 28 U.S.C. § 292(a).

2a

This is an appeal from the district court’s award of

$73,669.88 in attorneys’ fees to appellees, defendant-

intervenors below in a suit under section 5 of the Voting

Rights Act.“ Appellants challenge the intervenors’ en-

titlement to any fees at all, as well as the court’s particu-

lar determinations in calculating the award. Appellees

have cross-appealed, arguing that the district court erred

in choosing the geographical market for determining the

appropriate hourly rate. We find merit in both positions,

and reverse and remand to the district court for further

proceedings.

I. BACKGROUND

A. The Merits Litigation

In 1970 the Board of Supervisors of Warren County,

Mississippi, adopted a redistricting plan which failed to

receive approval of the United States Attorney General

and ultimately was enjoined by the District Court for

the Southern District of Mississippi because it diluted

black voting strength.“ In 1978 the Board adopted a new

plan. Rather than seeking approval of the Attorney Gen-

eral, the Board brought an action against the United

States in the District Court for the District of Columbia

seeking a declaratory judgment that the new plan did not

have a racially discriminatory purpose or effect. Seven

black voters in Warren County intervened on the side

of the United States.

After a year and a half of discovery, the district court

ruled on 31 July 1979 that plaintiffs were not entitled to

a declaratory judgment. The court held that the Board

had failed to provide a legitimate nonracial justification

for its plan, which would diminish black voting strength.

1 42 U.S.C. § 1973¢ (1976).

2 See United States v. Board of Supervisors, 429 U.S. 642, 97

S.Ct. 833, 61 L.Ed.2d 106 (1977).

8a

On 19 February 1980 the Supreme Court summarily

affirmed.*

Subsequently a new private action was filed in the

District Court for the Southern District of Mississippi

challenging the preexisting voting districts. Finding

the districts unconstitutional, the district court imposed a

plan proposed by the Department of Justice.“ In elections

held under this plan several black officials were elected.

B. Award of Attorneys’ Fees to Intervenor-Defendants

On 1 May 1980 intervenors filed a motion for an award

of $89,109.88 in attorneys’ fees pursuant to Title 42,

U.S.C. section 1973/(e), which authorizes the district

court to award a reasonable fee to the prevailing party.“

The request covered 381.05 hours worked by lead counsel

Frank Parker, chief counsel for the Jackson, Mississippi,

office of the Lawyers’ Committee for Civil Rights Under

Law; 191.85 hours worked by James Winfield, a practi-

tioner in Vicksburg, Mississippi; 47 hours worked by

Richard Kohn an attorney with the Lawyers’ Committee’s

Washington, D.C., office; and 30 hours worked by Bar-

bara Phillips, a Lawyers’ Committee attorney who worked

on the attorneys’ fee application. Parker and Kohn re-

quested an award at the rate of $100 per hour, Winfield

at the rate of $77 per hour, and Phillips at the rate of

$75 per hour; the requested rates for Parker and Kohn

were based on the District of Columbia market, whereas

the markets relied on by Winfield and Phillips were not

specified. Multiplying rates by hours resulted in a lode-

star of $59,406.25. In addition, intervenors requested an

upward adjustment of the lodestar by a factor of fifty

percent, which would produce a total of $89,109.38.

5 Donnell v. United States, Civ. No, 78-0392 (D.D.C. 31 July

1979) (three-judge court), aff'd mem., 444 U.S. 1059, 100 S.Ct.

1000, 62 L.Ed.2d 748 (1980).

Stokes v. Warren County Election Comm'n, Civ. No. J79-0425(c)

(S.D.Miss. 20 Sept. 1979).

542 U.S.C. 5 1973ʃ(e) (1976).

4a

Appellants opposed the request on several grounds, and

also requested an evidentiary hearing, which the district

court denied. On 19 February 1981 intervenors were

awarded $50,400 in attorneys’ fees. The court found

that the relevant geographical market was Mississippi

rather than the District of Columbia, and awarded hourly

rates it found prevailing in Mississippi: $60 an hour

for Parker and Kohn, $50 an hour for Winfield, and $40

an hour for Phillips. The court allowed all hours claimed

by all attorneys, except for 9.2 hours of deposition time

claimed by Winfield but specifically contested in affidavits

filed by appellants. The court then increased the lodestar

figure by fifty percent, citing the contingent nature of the

representation, the novel issues presented in the case, and

the attorneys’ unusually high quality of representation.

Intervenors subsequently sought reconsideration of the

award based on recent decisions allowing hourly rates in

Mississippi in excess of those allowed in the original de-

cision. On 20 March 1981 the court amended its award by

increasing the hourly rate for Parker and Kohn to $85 per

hour and for Winfield and Phillips to $60 per hour. The

court’s ruling on the number of hours expended and on

the number of hours expended and on the adjustment to

lodestar remained the same, resulting in a total award of

$73,699.88.

This appeal followed. Appellants challenge intervenors’

entitlement to any award, as well as the reasonableness

of the hours worked by Winfield, Parker and Kohn, the

hourly rates awarded by the district court, and the fifty

percent adjustment factor. Intervenors, appellees here,

have cross-appealed on the issue of the hourly rates. They

assert that the court erroneously used Mississippi rates

rather than rates in the District of Columbia, where the

suit was brought.

We now reverse and remand to the district court for

further proceedings.

5a

II. ENTITLEMENT TO FEES

Title 42 U.S.C. section 1973“ (e) provides:

In any action or proceeding to enforce the voting

guarantees of the fourteenth or fifteenth amend-

ment, the court, in its discretion, may allow the pre-

vailing party, other than the United States, a rea-

sonable attorney’s fee as part of the costs.°

The purpose of this provision, as well as of section

1988,’ a similar provision providing for award of at-

torneys’ fees to prevailing parties in civil rights cases

generally, is the familiar one of encouraging private

litigants to act us “private attorneys general” in seeking

to vindicate the civil rights laws. As the Senate Report

on section 19731 (e) stated, “Congress depends heavily

upon private citizens to enforce the fundamental rights

involved. The awards are a necessary means of enabling

private citizens to vindicate these Federal rights.“ Al-

though awarding fees pursuant to section 1973“ (e) is

discretionary, the legislative history makes clear that a

prevailing party usually should recover fees: “A party

seeking to enforce the rights protected by the Constitu-

tional clause or statute under which fees are authorized

by these sections, if successful, ‘should ordinarily recover

an attorney’s fee unless special circumstances would render

such an award unjust.“ Newman v. Piggy [Piggie] Park

Enterprises, Inc., 390 U.S. 400, 402 [88 S.Ct. 964, 966, 19

L.Ed.2d 1263 (1968).” °

$Id.

Id. §1988. The legislative purposes underlying § 1988 and

§ 1978l(e) are identical, and the two therefore should be construed

similarly. See, e.g., Riddell v. National Democratic Party, 624 F.2d

539, 543 (5th Cir. 1980).

8. Rep. No. 295, 94th Cong., 1st Seas. 40 (1975), U.S. Code Cong.

& Admin. News 1978, pp. 774, 807.

9d.

6a

Had this been a successful suit by these intervenors as

plaintiffs against the Board of Supervisors, then, their

entitlement to attorneys’ fees would hardly be in doubt.

The result of the litigation furthered the purpose of the

Voting Rights Act. This case presents a more difficult

problem, however, because the suit was brought by the

Board of Supervisors against the United States, as rep-

resented by the Department of Justice. Intervenors par-

ticipated on the side of the Department of Justice, but

the significance of their efforts is in controversy. Appel-

lants contend that intervenors’ participation was sub-

ordinate and indeed unnecessary. They believe that the

Department of Justice needed no aid in defending the

suit, and prevailed on the basis of its own efforts. In

appellants’ view this duplicative role constitutes a “spe-

cial circumstance” that renders an award of fees unjust.

Intervenors counter that their aggressive litigation

efforts impelled the Department of Justice into a strong

defense, and that they produced facts and arguments of

substantial value to the district court.

The legislative history of section 1973/(e) is silent on

the appropriate standard for awarding attorneys’ fees to

intervenors who participate on the side of the United

States in a successful suit. There is a single reference

to attorneys’ fees for such a party: “In the large ma-

jority of cases the party or parties seeking to enforce

({civil] rights will be the plaintiffs and/or plaintiff-

intervenors. However, in the procedural posture of some

cases (¢.g., a declaratory judgment suit under Sec. 5 of

the Voting Rights Act), the parties seeking to enforce

such rights may be the defendants and or defendant-

intervenors.” % This indicates that intervenors may be

considered as prevailing parties entitled to an award of

attorneys’ fees. But we do not believe Congress intended

10 Jd, at 40 n.42, U.S. Code Cong. & Admin. News 1975, p. 807.

Likewise, the legislative history of § 1988 contains only this one

reference to fees for intervenors. See S. Rep. No. 1011, 94th Cong.,

2d Sess. 4 (1976), U.S. Code Cong. & Admin. News 1978, p. 5908.

7a

that such an award be as nearly automatic as it is for a

party prevailing in its own right.

In the first place, the legislative history of sections

19731 (e) and 1988 emphasizes over and over again the

critical goal of enabling private citizens to serve as “pri-

vate attorneys general” in bringing suits to vindicate the

civil rights laws. A typical statement of this purpose was

made by Representative Holtzman during the House de-

bates on the Civil Rights Attorneys’ Fees Awards Act of

1976, which enacted section 1988:

Plaintiffs who suffer discrimination and other in-

fringements of their civil rights are usually not

wealthy people. The organizations who have helped

them bring their cases are frequently not well fi-

nanced. The Justice Department does not have the

resources to bring suit for every civil rights viola-

tion. Thus, many people, deprived of their civil

rights, may not as a practical matter be able to do

anything about it. It is not right to deny people

who cannot afford to pay attorneys’ fees the avail-

ability of justice through our courts."

We think appellants have a valid point that this objec-

tive is far less compelling when the actual Attorney Gen-

eral participates in the case. Indeed, when the Justice De-

partment defends a suit under section 5 it is acting on

behalf of those whose rights are affected. It cannot be

said that rights are being denied because of inability to

pay attorneys’ fees.

Appellees respond that their role differed from that of

the Justice Department because their interests as voters

in Warren County differed from the Department’s inter-

est as a whole. While there may be instances in which

such a divergence exists between a defendant and a

11 122 Cong. Rec. 35127 (1 Oct, 1976) (remarks of Rep. Holtzman).

defendant-intervenor,” this was not the case here. The

interest of both the Attorney General and appellees was

in preventing a dilution of black voting strength. We

will not lightly infer that the Justice Department has vio-

lated this statutory obligation. In discussing the court’s

power to prevent intervention in proceedings for a de-

claratory judgment under section 4(a) of the Voting

Rights Act, which is parallel to the provision in section 5,

Judge Leventhal held for a three-judge district court:

Congress assigned to the Attorney General the pri-

mary role in vindicating the public interest under

the Act. We should be reluctant indeed to permit in-

12 For example, in Baker v. City of Detroit, 504 F. Supp. 841

(E.D. Mich. 1980), defendant-intervenors black police officers recov-

ered attorneys’ fees for their role in successfully defending a suit

brought by the police officers’ union against Detroit chalienging an

affirmative action plan voluntarily adopted by the city. The court

noted that the city would be reluctant to admit that it had in the

past discriminated against black officers, a reluctance which might.

impair its defense of the affirmative action plan.

A similar and even more significant, case is Seattle School Dist.

No. 1 v. Washington, 633 F.2d 1338 (9th Cir. 1980), prob. juris.

noted, —— U.S. ——, 102 S.Ct. 384, 70 L.Ed.2d 204 (1981). A

school district sued to have a state initiative, which had the effect

of outlawing the district’s voluntary school desegregation program,

declared unconstitutional under the fourteenth amendment. Eight

public interest groups intervened in support of the district, and

raised the alternative argument that the district operated an un-

constitutional dual school system. The district court found the

initiative unconstitutional, but subsequently refused to award any

attorneys’ fees to intervenors. The Ninth Circuit affirmed on the

merits and partly reversed on the fees issue. It held that inter-

venors were entitled to fees on the second issue, since the school

district, like the city of Detroit in Baker, would not have raised

the argument that the system was unconstitutional. But the Ninth

Circuit affirmed the district court’s decision to deny fees on the

first issue in the case, which was adequately covered hy the school

district. See id. at 1849. The Ninth Circuit thus held, as e do

today, that intervenors may be denied fees where their participation

was unnecessary in light of the efforts of the prevailing govern-

mental litigant.

tervention . . in the absence of a plausible claim

that the Attorney General is not adequately per-

forming his statutory function, and that interven-

tion is needed to enable the court properly to per-

form its declaratory function or in some other way

to protect the public interest.

However, if the Atorney General has been derelict

or deficient, if the fact-finding process is warped or

inadequate, the court has the authority and indeed

may have the duty to allow intervention to cure or

leave the deficiencies. Such intervention is not to be

permitted except upon a strong showing.”

Not only is it assumed that the Attorney General will

represent the interest of black voters, but the outcome

of a declaratory judgment suit under section 5 does not

bind private parties. Section 19736 provides that “a

declaratory judgment entered under this section shall

not] bar a subsequent action to enjoin enforcement of

[the voting] qualification, prerequisite, standard, prac-

tice, or procedure.“ Thus further buttresses Judge

Leventhal’s point that the need for intervention in a

declaratory judgment suit is quite limited. To adopt a

standard that would permit an award of attorneys’ fees

in every case in which an intervenor participated on the

side of the Department of Justice in a successful suit

would encourage intervention even where there is no

special need for it. It may be that the district courts

have gotten away from Judge Leventhal’s admonition

and have been permitting intervention as a matter of

course, but this is only an additional reason for care-

fully evaluating intervenors’ fee requests.

18 Apache County v. United States, 256 F. Supp. 903, 908 (D. D. C.

1966) (three-judge court). See also NAACP v. New York, 413 U.S.

345, 368, 93 S.Ct. 2591, 2604, 37 L.Ed.2d 648 (1973) (upholding

refusal to allow intervention where motion to intervene was un-

timely, noting that appellants did not substantiate their claim that

the United States inadequately represented their interests).

1 U.S. C. § 1978¢ (1976).

10a

Given this background, we believe that in considering

an intervenor’s request for attorneys’ fees the district

court is obligated to examine the particular role played

by the intervenor in the lawsuit. Although this question

has not been definitely resolved before today, analogous

holdings have been laid down. Courts have held that one

type of “special circumstances” that creates an exception

to the ordinary presumption in favor of granting attor-

neys’ fees to a prevailing party is where, although plain-

tiffs received the benefits sought in the lawsuit, their

efforts did not contribute to achieving those results.” *

An example is where a lawsuit was filed to achieve an

objective that was already being achieved independently.“

We think the same principle applies here as well. If a

lawsuit is successful, but the intervenor contributed little

or nothing of substance in producing that outcome, then

fees should not be awarded.“

This holding is fully consistent with the few instances

in which private parties have recovered fees under sec-

tion 1988 even though a governmental entity was litigat-

ing on their side. In Wade v. Mississippi Co-operative

Extension Service, for example, the losing party chal-

15 Connor v. Winter, 519 F. Supp. 1337, 1343 (S.D.Miss. 1981)

(three-judge court).

16 See, e. g., Bush v. Bays, 463 F. Supp. 59, 66 (E.D.Va. 1978)

(holding alternatively that plaintiffs were not prevailing parties

and that an award would be unjust under the “special circum-

stances” doctrine) (“It is apparent to the Court that the attorneys

for the plaintiffs in this case merely caught hold of a train on its

way out of the station and are seeking to ride it to a substantial

award of attorneys’ fees. Plaintiffs’ lawsuit played no part in

firing the boiler, getting up a head of steam, or opening the throt-

tle. Plaintiffs just went along for the ride.”’)

17 The Ninth Circuit has agreed that fees may be denied inter-

venors under these circumstances. See note 12 supra.

16 378 F. Supp. 1251 (N. D. Miss. 1974), vacated on other grounds,

528 F.2d 508 (5th Cir. 1976), award reinstated on remand, 424

F. Supp. 1242 (N.D. Miss. 1976).

lia

lenged the plaintiffs’ entitiement to fees on the tlocry

that the Justice Department, as plaintiff-intervenor, had

done the bulk of the work. The court awarded fees to

plaintiffs after finding that “counsel for the private

plaintiffs, instead of playing a passive role, actively par-

ticipated throughout in the prosecution of the case, as-

sumed a great measure of responsibility for presenting

evidence and independently prepared and submitted vari-

ous legal memoranda of value to the court.” » This is

precisely the kind of determination we hold the district

court must make if fees are to be awarded.“

Our holding is also consistent with this court’s refusal

in Alabama Power Co. v. Gorsuch™ to award attorneys’

fees to an intervenor participating on the side of the

Environmental Protection Agency (EPA), which pre-

vailed in a suit brought by industry petitioners. As Chief

Judge Robinson stated for the court:

19 Jd. at 1254. Cases such as Wade, where the private parties

brought the suit and the government entity later intervened, obvi-

ously present a stronger case for award of fees. See also United

States v. Georgia Power Co., 474 F.2d 906, 927 (5th Cir. 1978)

(award of fees to plaintiff in Title VII suit, which was joined by

Attorney General).

2 Other courts making awards in similar circumstances have

also treated the entitlement issue as open, rather than holding, as

appellees would have us do here, that being on the successful side

is sufficient for obtaining an award of fees. See, e. ., Northeross v.

Bd. of duc, 611 F.2d 624, 640 (6th Cir. 1979) (upholding award

of fees to plaintiffs, who were joined in action by governmental

entity, because specific finding by district court “disposes of any

suggestion that the services . . were not essential”), cert. denied,

447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). See also Usery

v. Local Union No. 639 Int'l Bhd. of Teamsters, 543 F.2d 369, 388

(D.C. Cir. 1976) upholding authority to award fees to intervenors

under Labor-Management Reporting and Disclosure Act because

(“[t]he efforts of union member intervenors may be of considerable

assistance to the court and the Secretary, warranting assessment

against the party ultimately benefitted—the union membership”),

cert. denied, 429 U.S. 1128, 97 S.Ct. 1169, 51 L.Ed.2d 578 (1977).

n 672 F.2d 1 (D.C. Cir. 1982).

12a

If ever an intervenor can recover attorneys’ fees

from a party on whose side it participated—a ques-

tion we do not here reach—the justification would

have to be a clear showing of some unique contribu-

tion of the intervenor to the strength of that party’s

legal position. Here, the environmental groups have

not demonstrated with any sort of particularity that

their intervention added in any essential way to

EPA’s stance on the issues involved. Without decid-

ing more, we hold that wherever the bounds on fee

awards to such intervenors should be set, this

threshold burden has not been met.“

In Alabama Power the intervenors sought an award

from the EPA, the very governmental entity that had

prevailed in the suit, whereas here intervenors seek at-

torneys’ fees from appellants, who lost the suit. Nonethe-

less, we believe that the essential principle is the same

in both situations. Where Congress has charged a gov-

ernmental entity to enforce a statutory provision, and

the entity successfully does so, an intervenor should be

awarded attorneys’ fees only if it contributed substan-

tially to the success of the litigation. This inquiry pri-

marily entails determining whether the governmental

litigant adequately represented the intervenors’ interests

by diligently defending the suit. It also entails consider-

ing both whether the intervenors proposed different

theories and arguments for the court’s consideration and

whether the work it performed was of important value

to the court.

By providing for attorneys’ fees to be awarded in ac-

tions brought to vindicate the civil rights laws, Con-

gress did not intend to allow private litigants to ride the

back of the Justice Department to an easy award of

attorneys’ fees. Obviously, if an intervenor did nothing

but simply show up at depositions, hearings, and the

trial itself, and spend lots of time reading the parties’

22 Td. at 4.

18a

documents, an award of attorneys’ fees would be inap-

propriate. The same would be true if the intervenors’ sub-

missions and arguments were mostly redundant of the

Government’s or were otherwise unhelpful. We do not

say that this is true of intervenors here, but only that

the district court should find out and assess the signfi-

cance of their efforts in the case.

The court failed to make this determination, leaving

the parties’ vigorous dispute unresolved. Appellants

claim that intervenors contributed nothing the Govern-

ment did not also contribute, pointing as an example to

intervenors’ failure to submit their own proposed findings

of fact and conclusions of law. Intervenors contend that

the Justice Department’s proposed findings and conclu-

sions were the product of both the Department and in-

tervenors, and in general they argue that their efforts

were critical in forcing the Justice Department to con-

duct an active defense. On remand the district court

should resolve this controversy and determine if fees are

appropriate.

III. CALCULATIONS OF THE FEES

In this section we deal with the challenges raised by

both parties to the district court’s calculation of the

amount of fees awarded. Of course, if the district court

on remand finds that intervenors are not entitled to any

fees, the discussion in this section will become moot.

A. Hours Reasonably Expended

Appellants challenge the number of hours attorneys

for appellees claim to have worked on this case, asserting

primarily that there was substantial duplication among

the tasks performed by the three attorneys who worked

on the merits of the litigation.” In particular they chal-

lenge the billing hours attributed to Winfield, the local

Mississippi attorney for appellees. For example, appel-

23 The hours worked by Phillips on the attorneys’ fees applica-

tion are not in controversy.

14a

lants note that twenty-flve entries by Winfleld of time

spent analyzing various documents are identical to those

reported by lead counsel Parker. Based on this, appel-

lants claim that the district court should conduct an evi-

dentiary hearing to determine not only whether these

entries were indeed duplicative and unnecessary, but also

whether Winfield performed any substantial function in

the proceedings at all. In addition, appellants allege that

the time spent by Kohn, the District of Columbia counsel,

was unnecessary, and that Parker also spent an excessive

amount of time on the case.

The district court brushed off these objections sum-

marily:

Intervenors’ attorneys provided detailed records of

the time logged and services rendered. The Court

has examined them carefully and finds that they are

reasonable. The duplication of hours between attor-

neys for certain work, which was pointed out by the

plaintiffs, does not concern the Court. This case was

a complicated one entailing extensive document

work. It necessarily involved some duplication of

effort by the attorneys so that each could understand

the case properly.“

The court went on to approve all hours submitted, with

the exception of 9.2 hours submitted by Winfield for time

spent at depositions, where the plaintiffs had submitted

affidavits from the deponents stating that Winfield was

not present.

We find no fault with the district court’s decision to

allow all the hours claimed by Kohn and Parker. The

only challenge appellants have raised with regard to

Kohn is that his role was entirely redundant. But we

believe it was reasonable for appellees to have an attor-

ney in Washington, D.C., who was prepared to take what-

2 Civ. No. 78-392, memorandum opinion (mem. op.) at 4 (D.D.C.

18 Feb. 1981).

15a

ever actions might be necessary in the district court. The

hours submitted by Kohn seem reasonable, and given the

absence of any particular challenge by appellants we can

find no problem with the court’s decision.

Appellants similarly have failed to specify their chal-

lenges to Parker’s claimed hours. We emphasize that the

party challenging an application for fees should frame

its objections with specificity. The district court cannot

inquire into the reasonableness of every action taken and

every hour spent by counsel, and it will consider objec-

tions to filed hours only where it has been presented

with a reasonable basis for believing the filing is exces-

sive.“ No such basis exists here, and we uphold the de-

cision regarding Parker’s hours.

We find that the district court erred, however, in

refusing to inquire into the matter of hours worked by

Winfield. In Copeland v. Marshall we stated: “It is

axiomatic that we cannot identify an unreasonable award

unless it is accompanied by a statement of reasons.” **

In this instance appellants raised specific and substantial

questions about Winfield’s hours worked yet the district

court never stated specifically why it found no merit in

appellant’s claims. Although the court may be correct

that a complicated case “necessarily involves some dupli-

cation of effort,” that rationale cannot be dispositive.

The submission of so many identical time entries inevi-

tably raises questions about exactly what the attorneys

did and whether it was necessary. And given the differ-

ent roles played by Winfield and Parker, their submis-

sion of identical time records for analyzing these many

25 See generally National Ass’n. of Concerned Veterans v. Secre-

tary of Defense, 675 F.2d 1319 at 1329-30 (D.C. Cir. 1982); Cope-

land v. Marshall, 641 F.2d 880, 908 (D.C. Cir. 1980) (en banc).

26641 F.2d 880, 901 n.39 (D.C. Cir. 1980) (en banc).

16a

documents presents the question whether such extensive

duplication was warranted.”

This is especially true given the prior question whether

intervenors played a necessary role in this case at all.

Even if the district court finds that intervenors’ partici-

pation in the case was important and substantial, there

yet remains the question whether this participation

needed to be so extensive given the central role played by

four attorneys from the Department of Justice.** Appel-

lants have raised compelling questions regarding Win-

field’s participation, particularly in light of the leading

and sometimes almost exclusive role Parker assumed on

behalf of intervenors. Parker is an extremely experi-

enced voting rights attorney, and he has participated ex-

tensively in Mississippi litigation. Even if some addi-

tional local expertise was needed, which was intervenors’

justification for Winfield’s participation in the litigation,

there is an open question whether there was a need for

the local attorney to read every document and otherwise

act as a major co-counsel. The fact that Winfield’s time

submissions in a great many instances are identical to

those of Parker only adds to the need for an investigation

of this issue.

In National Association of Concerned Veterans v. Sec-

retary of Defense this court emphasized that in most

27 The issue is not whether intervenors used too many attorneys,

but whether the work performed was unnecessary. See, e. g., Tasby

v. Estes, 651 F.2d 287, 289 (5th Cir. 1981). Even if there was

justification for the use of three attorneys performing different

roles, that does not necessarily imply that every atterney needed to

read every document in the case. And the existence of numerous

identical time submissions raises a question whether each attorney

actually did read every document or whether each attorney had an

accurate understanding of his particular role in the litigation.

28 Cf. Baker v. City of Detroit, 504 F. Supp. 841, 851 (E.D. Mich.

1980) (awarding fees to intervenors, noting “that this sum should

not be onerous” because “intervenors did not take part in most pre-

trial discovery” and “played a subsidiary role [at trial]“).

2° 675 F.2d 1319 (D.C. Cir. 1982).

17a

cases questions regarding an attorneys’ fee application

can be resolved without an evidentiary hearing. We also

held, however, that “procedural fairness requires that a

hearing be held where in the District Court’s view mate-

rial issues of fact that may substantially affect the size

of the award remain in well-founded dispute.” *° We

hold that the district court abused its discretion in sum-

marily resolving the issues with regard to Winfield's time

submission. On remand an evidentiary hearing should

be held to determine the reasonableness of the time

charges submitted by Winfield. The district court should

consider any specific challenges by appellants to Win-

field’s participation, such as their objections to the dupli-

cative entries and to the generalized billing of twenty

hours for time spent with clients.

B. Reasonable Hourly Rate

Both parties have appealed on the hourly rate issue.

Appellants challenge the rates awarded as excessive. The

court initially awarded $60 per hour for Parker and

Kohn, $50 per hour for Winfield, and $40 per hour for

Phillips. It subsequently increased these rates to $85 per

hour for Parker and Kohn and $60 per hour for Winfield

and Phillips. This increase was in response to intervenors’

motion for reconsideration based on recent decisions

awarding attorneys’ fees for litigation in Mississippi. Al-

though appellees thus were awarded rates in excess of

those appellants claim are the maximum for experienced

attorneys in Mississippi, appellees have cross-appealed

claiming that the district court should have based their

fees on the customary rates charged in the District of

Columbia, where the lawsuit was filed.

We uphold the cross-appeal with regard to Parker,

Kohn, and Phillips, finding that these attorneys are en-

titled to rates customarily charged in the District of

Columbia. On remand the district court should determine

the hourly rates to be awared to these three attorneys.

0 Id., at 1330.

18a

We hold that Winfield’s rates should be determined on the

basis of the prevailing market rate in Mississippi, as his

participation in the case was premised entirely on his

local expertise. We vacate the district court’s award of

$60 per hour to Winfield, and remand for a new deter-

mination of his appropriate hourly rate.

Copeland v. Marshall held: “The reasonable hourly

rate is that prevailing in the community for similar

work.” ** Usually no problem arises in choosing the rele-

vant community because the lawyers work in the com-

munity in which the suit was brought. The difficulty

arises when lawyers come from out of town to litigate

the suit. The issue here is whether the relevant com-

munity is the District of Columbia, where the suit was

brought, or Mississippi, which was the source of the con-

troversy at issue and the place where most of the work

was performed.

We recognize the logic on both sides of the argument,

but hold that the proper rule is that the relevant com-

munity is the one in which the district court sits. This

is a simple rule to follow. It requires the district court

normally to determine only the prevailing market rate

within its jurisdiction, an inquiry about which it should

develop expertise. Moreover, it is a neutral rule which

will not work to any clear advantage for either those

seeking attorneys’ fees or those paying them. High-

priced attorneys coming into a jurisdiction in which mar-

ket rates are lower will have to accept those lower rates

for litigation performed there. Similarly, some attorneys

may receive fees based on rates higher than they nor-

mally command if those higher rates are the norm for

the jurisdiction in which the suit was litigated. Although

there may be cases, such as this one, where much of

the work must be performed away from the district’s

community, we do not believe that this alone provides a

1 641 F. ad at 892.

19a

sufficient reason for deviating from the general rule. This

position is consistent with that of other federal courts.““

There are some situations, however, in which the rule

should not be followed. Courts have held that the hourly

rate of the Lawyer’s community, as opposed to the dis-

trict court’s community, should be awarded if there are

compelling reasons why the services performed by that

attorney were unavailable within the court’s jurisdiction.

For example, the Seventh Circuit has stated:

If a high priced, out of town attorney renders serv-

ices which local attorneys could do as well, and there

is no other reason to have them performed by the

former, then the judge, in his discretion, might allow

only an hourly rate which local attorneys would have

charged for the same service. On the other hand,

there are undoubtedly services which a local attorney

may not be willing or able to perform. The com-

plexity and specialized nature of a case may mean

that no attorney, with the required skills, is available

locally.“

Thus, if a particular attorney's services are necessary,

the proper hourly rate is that prevailing in that attor-

ney’s local community.

Applying these criteria to this case, we find that

Parker, Kohn, and Phillips should have been awarded

District of Columbia hourly rates. Kohn served entirely

as Washington, D.C., counsel, and thus D.C. rates are

entirely appropriate. Parker served as lead counsel, mak-

82 See, e.g., McPherson v. School Dist. #186, 465 F. Supp. 749,

760 (S.D. III. 1978); Donaldson v. O'Connor, 454 F. Supp. 311, 314

(N.D. Fla. 1978) (citing cases).

83 Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 at 768 (7th Cir.

1982). See also Donaldson v. O'Connor, 454 F. Supp. 311, 315 (N.D.

Fla. 1978) (holding that “where, as here, a plaintiff can show he has

been unable through diligent, go“ “*ith efforts to retain local coun-

sel, attorney’s fees under 42 U.S. G. § 1988 are not limited to the

prevailing rate in the district where the case is tried.”).

20a

ing him responsible for all intervenors’ positions in the

case, including at the trial itself. Although he works

primarily out of Mississippi, his role in the litigation ex-

tended to the trial in D.C. as well as the gathering of

evidence ia Mississippi. District of Columbia rates are

therefore appropriate. Finally, Phillips is also entitled

to D.C. rates, even though she works in the Lawyers’

Committee’s Mississippi office. Her function of prepar-

ing the attorneys’ fees application was directed entirely

toward convincing the district court, and it could have

been done by any local District of Columbia attorney.

The appropriate rate for Winfield, in contrast, is that

prevailing in Mississippi. His role in the case fits

squarely within the exception to the rule that the district

court’s community should be used in determining the

hourly rate. The justification for Winfield’s participa-

tion in the case was, in appellees’ own words,

“his expertise in and extensive knowledge of local

Warren County conditions, particularly the location

of black population concentrations in Vicksburg and

Warren County, population shifts since the 1970

Census, the location of streets and other boundaries

used in the plaintiffs’ proposed redistricting plan, the

history of discrimination against black people in

Warren County, and the current grievances of the

black community against the Board of Super-

visors.” “

Winfield thus was hired for his particular expertise, and

his function could not have been duplicated by an attor-

ney from the District of Columbia. The proper hourly

rate, therefore, is the normal one in Mississippi.

The district court awarded Winfield $60 per hour, but

we vacate this award and remand for a new determina-

tion. Intervenors sought to recover District of Columbia

rates for all their attorneys, and thus provided little evi-

Brief for Appellees at 27.

21a

dence on Mississippi rates. Winfield simply asserted that

“(flor a case of this magnitude and significance, my

hourly rate is $75.00 per hour.“ If this was meant

to indicate the rate Winfield normally charges when he

performs work for a fee, then he should provide specific

supporting evidence, as required by National Association

of Concerned Veterans.“ The cases provided by inter-

venors showing rates awarded for Mississippi services in

other litigations are legitimate pieces of evidence, though

the weight given them by the district court should de-

pend on whether “they were determined based on actual

evidence of prevailing market rates, the attorneys in-

volved had similar qualifications, and isues of compara-

ble complexity were raised.“ Any further evidence ad-

duced by Winfield in support of his claimed rate, or evi-

dence offered by appellants to support a lower rate,

should be evaluated in accordance with Concerned Veter-

ans, as of course should the evidence regarding the rates

for the other three attorneys.

C, Adjustments to the Lodestar

The final point of contention is the district court’s deci-

sion to adjust the lodestar upward by a factor of 1.5. The

court reasoned as follows:

This case was a contingent one for intervenors’ at-

torneys, who work for a private charitable civil

rights legal organization, the Lawyers’ Committee

for Civil Rights. The Lawyers’ Committee has no

fee arrangement with its clients and is substantially

dependent upon court awards of attorneys’ fees to

continue its work. Additionally, this case presented

issues of first impression to this Court. It is the first

one in which a proposed plan to redistrict a county

was challenged as racially discriminatory and as an

a Affidavit of James E. Winfield at 4, reprinted in J. A. at 34.

86 675 F. ad at 1325-26.

* Id. at 1325 n.7.

attempt to gerrymander district lines to dilute the

black voting strength. Finally, the intervenors’ qual-

ity of representation was unusually and consistently

high. .

We vacate this aspect of the award and remand for a

new determination of what adjustment, if any, should

be made to the lodestar.

In Copeland v. Marshall this court held that an adjust-

ment to the lodestar may be appropriate to compensate

for certain factors such as the contingent nature of suc-

cess, delay in receipt of payment, and the quality of rep-

resentation. The decision left open the possibility that

other factors may be relevant in adjusting the lodestar

up or down, but these three have remained the basic

considerations.”

Applying this framework to the district court’s reason-

ing in support of the upward adjustment, we first note

that the court improperly relied on its view that the

case presented issues of first impression. We do not be-

lieve such a consideration is appropriate in determining

whether to adjust the lodestar fee.“ If a case was par-

38 Mem. op. at 4-5, reprinted in J.A. at 16-17.

39 641 F. ad at 892-94.

4% Even were we to find this consideration relevant, we would

disagree with the district court that this case presented issues of

first impression. That this was the first case in this circuit to deal

with county redistricting is not dispositive. This circuit has dealt

before with cases under the Voting Rights Act involving the legality

of a redistricting scheme. See, ¢.g., Mississippi v. United States,

490 F. Supp. 569 (D.D.C. 1979) (three-judge district court), aff’d

mem., 444 U.S. 1050, 100 S.Ct. 994, 62 L.Ed.2d 739 (1980). We

perceive no difference between the applicable law on county redis-

tricting and that on redistricting of other governmental jurisdic-

tions. Moreover, many county redistricting cases have been decided

elsewhere. Intervenors’ lead counsel Parker alone has listed five

Mississippi county redistricting cases on which he served as lead

counsel for black plaintiffs. Affidavit of Frank R. Parker at 7,

reprinted in J.A. at 2.

28a

ticularly difficult, it probably required a large number of

hours of attorney time, a factor which will show up in

the lodestar calculation.“ And if especially talented

counsel were necessary to litigate the case, this fact will

be reflected in the hourly rate used in setting the lode-

star fee. In addition, the complexity and uncertainty of

the issues in the case are considerations in determining

whether there was a possibility that no fees would be

recovered and therefore whether a contingency adjust-

ment is appropriate.“ Finally, there remains a possibil-

ity of upward adjustment based upon the quality of a

representation or the nature of the results achieved. Any

further consideration of the first impression nature of

the issues is therefore unwarranted as it would be dupli-

cative.

The district court properly considered the contingent

nature of the representation by attorneys for appellees.

Appellants have not asserted the existence of a fee ar-

rangement between appellees and their attorneys, and ac-

cordingly it was proper to provide an adjustment for the

contingency that no fees would be awarded.” An addi-

tional factor which the district court could have con-

sidered, but did not, was the delay in payment of the

41 See Copeland, 641 F. ad at 890.

42 See note 43 infra. See also Environmental Defense Fund, Inc.

v. EPA, 672 F.2d 42, 60-61 (D.C. Cir. 1982) (“It is true that the

case is extremely important and very complicated, and thet EDF

counsel performed with great skill; however, these factors are fully

compensated by the amounts credited under the categories of

‘hours reasonably expended’ and ‘reasonably hourly rates.“)

48 The court should, however, inquire specifically into the actual

probability that intervenors would have lost. the case and thus

recovered no fees. See Copeland, 641 F.2d at 893 (Since “it is

difficult in hindsight to determine the risk of failure at the com-

mencement of a lawsuit that ultimately proved to be successful

. . . we ask only that the district court judges exercise their discre-

tion as conscientiously as possible, and state their reasons as clearly

as possible.“)

24a

fees. Of course, as we cautioned in Copeland, “if the

‘lodestar’ itself is based on present hourly rates, rather

than the lesser rates applicable to the time period in

which the services were rendered, the arm resulting from

delay in payment may be largely reduced or elimi-

nated.” “

We disagree strongly, however, with the district court’s

decision to base the adjustment in part on its view that

“the intervenors’ quality of representation was unusually

and consistently high.“ We have found it all too com-

mon for the district courts to adjust the lodestar upward

to reflect what the courts view as a high level of quality

of representation. This trend should stop. Copeland con-

templated such adjustments only for rare cases: “A

quality adjustment is appropriate only when the repre-

sentation is unusually good or bad, taking into account

the level of skill normally expected of an attorney com-

manding tke hourly rate used to compute the lode-

star.“ % As we stated in Concerned Veterans: “The

Court could not have stated in clearer terms that an ad-

justment for the quality of representation should not be

routinely awarded but only awarded in exceptional cases.

An adjustment should not be made out of sympathy for

claimant’s cause or to mollify counsel because the lodestar

figure claimed was reduced.“

Of course it remains within the district court’s discre-

tion to make this quality determination. But in this case

the district court’s own opinion demonstrates conclu-

sively that a quality adjustment was not warranted. In

the initial part of its opinion discussing the reasonable

hourly rates, the court stated:

d. at 893 n.23. See also Concerned Veterans, at 1328.

45 Mem. op. at 5, reprinted in J.A. at 17.

40 641 F.2d at 893.

47 At 1328.

25a

Frank Parker, the lead counsel, is an experienced

and able specialist in the field of reapportionment

and county redistricting. In the instant litigation,

he presented his case with efficiency and clarity. His

performance was generally of high quality. James

Winfield and Richard Kohn, while not specialists in

their field, also ably represented their clients. Bar-

bara Phillips, a recent law school graduate, prepared

the intervenors‘ application for attorneys’ fees and

costs.“

As regards Phillips, it is obvious that the district court

found nothing exceptional in her performance. Indeed, it

is almost incredible that her performance could have been

exceptional, given that her function was simply to pre-

pare the application for attorneys’ fees and costs. As re-

gards Winfield and Kohn, the district court found that

they “ably represented their clients.” Far from repre-

senting an unusually high quality of representation, “able

representation” is the minimum that every client is en-

titled to expect from his attorney. And “efficiency and

clarity” and performance “generally of high quality,”

which was how the district court described Parker’s per-

formance, is precisely what one would expect from an at-

torney particularly experienced in this field serving as a

party’s lead counsel in a complex litigation. Based on

these descriptions the district court’s determination that

attorneys for appellees were entitled to an upward ad-

justment for the quality of their representation was er-

roneous as a matter of law.“

We hasten to emphasize that in no way do we deni-

grate the capabilities and performances in this litigation

48 Mem. op. at 2-3, reprinted in J. A. at 14-15.

49 We note also that if the district court felt that, say, one of the

four attorneys had performed unusually well, it should have awarded

an adjustment only for that attorney’s lodestar amount. The special

quality of one lawyer’s services provides no logical basis for grant-

ing all the lawyers a quality adjustment.

26a

of the attorneys for appellees. But the district court

made every effort to ensure that these attorneys were

awarded an appropriate market rate for attorneys of

their experience and for this type of litigation. We have

no doubt that the district court will do the same on re-

mand, if it finds fees are warranted, when it deter-

mines the appropriate District of Columbia rates for

Parker, Kohn, and Phillips, and the appropriate Missis-

sippi rate for Winfield. But as this court recently held

in Environmental Defense Fund, Inc. v. EPA, no quality

adjustment is appropriate when, “while the ‘quality of

representation’ . . . was first-rate, the work done clearly

was performed at levels of efficiency that were within

the usual range of these experienced lawyers’ skills.“ “

The district court’s own description of the level of rep-

resentation in this case makes clear that the work done

was not exceptional, but rather performed at levels one

should expect from these lawyers.”

IV. CONCLUSION

On remand the court should first determine appellees’

general entitlement to attorneys’ fees in this case. If

the court finds that fees are appropriately granted, it

should then conduct an evidentiary hearing to determine

the reasonable number of hours worked by Winfield, in

light of the discussion in this opinion. The court should

also determine the prevailing market rate in the District

of Columbia for attorneys similar to Parker, Kohn, and

90 672 F.2d 42, 64 (D.C, Cir. 1982). See also id. at 60-61, quoted

at note 42 supra.

51 Copeland also provides, under the rubric of quality of repre-

sentation, that the court may adjust the lodesta upward if the

attorney has “obtained an exceptional result for the client.” 641

F.2d at 894. This means a result substantially better than could

reasonably have been expected. The district court properly did not

rely on that standard below, as the result obtained here was not

exceptional, even though it was an important one which furthered

the goals of the Voting Rights Act.

27a

Phillips, and in Mississippi for attorneys similar to Win-

field. Having thus calculated the lodestar fee, the court

should then determine an adjustment to the lodestar, if

any is deemed appropriate, based on the contingent na-

ture of this suit and on the delay in receipt of payment,

if the hourly rates used in calculating the lodestar are

not present hourly rates. The court may not include an

upward adjustment for the quality of representation, as

we have held that court’s own opinion shows that an ad-

justment is unwarranted.

Reversed and remanded,

28a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-392

CLYDE R. DONNELL, et al.,

Plaintiffs

v.

UNITED STATES OF AMERICA and

GRIFFIN BELL, Attorney General, etc.,

Defendants

and

EDDIE THOMAS, SR., et al.,

Defendant-Intervenors

Filed Feb. 19, 1981]

MEMORANDUM OPINION

This case is before the Court on defendant-intervenors’

application for attorneys’ fees and costs pursuant to

42 U.S.C. §1978 l(e). Defendant-intervenors (inter-

venors) and the United States Government were the

prevailing parties in a voting rights action brought

under 42 U.S.C. §1978c. They successfully challenged

as racially discriminatory the 1978 county redistricting

plan drawn by Warren County, Mississippi Board of

Supervisors. The District Court ruling was affirmed by

the Supreme Court, United States v. Board of Super-

visors of Warren County, Mississippi, 100 S. Ct. 1000

(1980).

29a

Intervenors seek the following award:

Attorneys Fees

Frank N. Parker 381.05 hrs. at $100 per hr. $38,105.00

James E. Winfield 191.35 hrs. at $ 75 per hr. 14,351.25

Richard S. Kohn 47 hrs. at $100 per hr. 4,700.00

Barbara Y. Phillips 30 hrs. at $ 75 per hr. 2,250.00

$59,406.25

$59,406.25 attorney hours x 1.5

(lodestar ) (enhancement) $89,109.38

Litigation Expenses

Meals and lodging $ 421.21

Gas 218.26

Federal Express 179.17

Reproduction of maps 723.77

Preparation of plans 620.00

Copying 120.00

Consultant fees 55.00

Ai*line tickets 643.00

Telephone expenses 40.00

Printing of Supreme Court brief 514.30

Deposition copies 2.,025.68

$ 5,560.29

TOTAL AWARD $94,669.67

The Court awards reasonable attorneys’ fees and costs

pursuant to 42 U.S.C. § 1973 1(e). As outlined in Cope-

land v. Marshall, No. 77-1351, (D.C. Cir. Sept. 2, 1980),

Slip Op. at 19-26 (hereinafter Copeland III), the court

initially determines a lodestar award, which is the rea-

sonable number of hours spent on the case times a rea-

sonable rate for the various persons who worked on the

ease. The court then adjusts the lodestar up or down

after examining and weighing the 12 criteria established

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

(1974), the most important criteria being the contingent

nature of the fee and the quality of representation.*

Copeland III at 22-26.

*The Johnson criteria were (1) the time and labor required;

(2) the novelty and difficulty of the questions; (3) the skill requi-

site to perform the legal services properly; (4) the preclusion of

other employment; (5) the customary fee in the community for

30a

The Court first addresses its duty to set reasonable

hourly rates. Frank Parker, the lead counsel, is an ex-

perienced and able specialist in the field of reapportion-

ment and county redistricting. In the instant litigation,

he presented his case with efficiency and clarity. His

performance was generally of high quality. James Win-

field and Richard Kohn, while not specialists in the field,

also ably represented their clients. Barbara Phillips, a

recent law school graduate, prepared the intervenors’ ap-

plication for attorneys’ fees and costs.

The Court fixes the rate of compensation at “that pre-

vailing in the community for similar work.” Cope-

land III, Slip Op. at 21. The typical attorney’s fees for

litigation of this specialized nature in Mississippi range

from $50.00 to $65.00 per hour. Attorneys right out of

law school receive about $30.00 per hour. Plaintiffs’

attorneys received $50.00 per hour for their work. Mr.

Parker, Mr. Winfield and Ms. Phillips practice in Missis-

sippi. The case arose in Mississippi and was primarily

prepared in Mississippi. The case was tried in Wash-

ington, D.C. because of the statutory requirements that

it be brought here.

The primary purpose of awarding fees in cases

brought under the Civil Rights Act of 1964 is “to en-

courage individuals injured by racial discrimination to

seek judicial relief.” Newman v. Piggie Park Enter-

prises, Inc., 390 U.S. 400, 402 (1968); see also Cope-

land III, Slip Op. at 18. In providing reasonable and

sufficient compensation for attorneys, an important con-

sideration is “the custom or rule in the place of ... [an

attorney’s] practice.” Ranger Insurance Company v.

similar work; (6) the fixed or contingent nature of the fee; (7)

time limitations imposed by the client or the circumstances; (8)

the amount involved and the results obtained; (9) the experience,

reputation and ability of the attorneys; (10) the undesirability of

the case; (11) the nature and length of the professional relation-

ship with the client; and (12) awards in similar cases. Johnson

at 717-19.

31a

Algie, 482 F.2d 861 (5th Cir. 1973). This Court finds

awarding intervenors in the instant case attorneys’ fees

at Mississippi rates and their costs of travel provides

them sufficient incentive and compensation to take this

case and ones like it. The cases cited by intervenors,

who argue that D.C. rates should guide the Court, ac-

tually support this Court’s position. In many, the Court

ruled that the local rates of the instant court be applied

in cases arising in the same locale and argued by local

attorneys. Pugh v. Rainwater, 465 F. Supp. 41, 44-45

(S.D. Fla. 1979) ; Guajardo v. Estelle, 482 F. Supp. 1373

(S.D. Tex. 1977); accord Donaldson v. O’Connor, 454

F. Supp. 311, 314 (N.D. Fla. 1978).

In conclusion, this Court will apply Mississippi rates.

Accordingly, Mr. Parker will be compensated at the rate

of $60.00 per hour as was the lead counsel and the spe-

cialist. Mr. Winfield will receive $50.00 per hour and

Ms. Phillips $40.00 per hour. Mr. Kohn, the local coun-

sel, will receive the same as Mr. Parker, $60.00 per hour.

The Court must next determine the reasonable number

of hours spent by the attorneys. Intervenors’ attorneys

provided detailed records of the time logged and services

rendered. The Court has examined them carefully and

finds that they are reasonable. The duplication of hours

between attorneys for certain work, which was pointed

out by the plaintiffs, does not concern the Court. This

case was a complicated one entailing extensive document

work. It necessarily involved some duplication of effort

by the attorneys so that each could understand the case

properly.

The Court finds it necessary to make only one reduc-

tion in hours. Mr. Winfield claims attorney’s fees for

the time he spent at four depositions at which his pres-

ence was not recorded by the reported. By affidavit, he

claims he has an independent recollection that he was

present at each deposition. However, for two of the

deposition sessions in question, plaintiffs have filed affi-

davits from the deponents stating that Mr. Winfield was

32a

not present. Accordingly, the Court reduces Mr. Win-

fields’ time request by 9.2 hours, which represents the

time Mr. Winfield spent at the two depositions where

his presence is disputed by deponents.

In accordance with the above, the Court finds the fol-

lowing number of hours to be reasonable:

Frank Parker 381.05 hours

James Winfield 182.15 hours

Richard Kohn 47 hours

Barbara Phillips 30 hours

The above determinativns amount to a lodestar figure

of $35,990.50. However, this figure should be adjusted

upward. This case was a contingent one for intervenors’

attorneys, who work for a private charitable civil rights

legal organization, the Lawyers’ Committee for Civil

Rights. The Lawyers’ Committee has no fee arrange-

ment with its clients and is substantially dependent upon

court awards of attorneys’ fees to continue its work.

Additionally, this case presented issues of first impres-

sion to this Court. It is the first one in which a proposed

plan to redistrict a county was challenged as racially

discriminatory and as an attempt to gerrymander dis-

trict lines to dilute the black voting strength. Finally,

the intervenors’ quality of representation was unusually

and consistently high. In accordance with Copeland III,

the Court raises the intervenors’ attorneys’ fees award to

$50,400. Id. at 22-26.

The Court will not rule on the issue of costs presently

before it. The documentation provided by the intervenors

is insufficient to allow the Court to review their applica-

tion meaningfully. However, the Court will hold the

issue of costs in abeyance until such time as intervenors

provide a detailed justification of their request.

A separate order is attached.

/s/ June L. Green

JUNE L. GREEN

US. District Judge

Dated: February 18, 1981

33a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-392

CLYDE R. DONNELL, et al.,

v. Plaintiffs

UNITED STATES OF AMERICA and

GRIFFIN BELL, Attorney General, etc.,

ond Defendants

EppIE THOMAS, SR., et al.,

Defendant-Intervenors

[Filed March 20, 1981]

ORDER

Upon consideration of defendant-intervenors’ motion to

alter ard amend this Court’s Order awarding attorneys’

fees of February 19, 1981, and the memoranda filed by

the parties, it is by the Court this 20th day of March

1981,

ORDERED that this Court’s Memorandum Opinion

and Order of February 19, 1981, are hereby altered and

amended to award Frank R. Parker and Richard S. Kohn

fees at the rate of $85.00 per hour, and James E. Win-

field and Barbara Y. Phillips fees at the rate of $60.00

per hour, plus an enhancement of 1.5, for the reasons

stated in the Court’s Memorandum Opinion of Febru-

ary 19, 1981; and it is further

ORDERED that intervenors shall recover from the

plaintiffs an award of attorneys’ fees of $73,669.88.

/ June I. Green

JUNE L. GREEN

US. District Judge

PARKER ENTRY

84a

APPENDIX C

TIME WINFIELD ENTRY

TIME

1.

7.

10.

11.

12.

18.

Analysis of Board of Super-

visors’ Plan, May 20, 1978

Meeting with clients, May

24, 1978 (includes prepara-

tion)

. Meeting with clients, May

81, 1978

. Motion to intervene and an-

swer in intervention, filed

June 5, 1978

Depositions of Charlie Steele,

James Wilson and Mra.

Charlie Hunt, June 4 1978

Depositions of Eddie Thomas,

Levi Brown, and Simon

Kemp, June 5, 1978

Deposition of St. Clair

Mitchell and Robert Pickett,

July 13

Depositions of Tommie Lee

Williams and Wright L.

Lassiter, July 14

Depositions of Alexander M.

Peters, Barry A. Weinberg,

and Lisbon C. Berry, Jr.,

July 20

Preparation of defendants-

intervenors’ interrogatories

to plaintiffs and their agents,

served July 25, 1978

Deposition upon written ques-

tions of Drew 8. Days, III,

Asst. Attorney General, filed

July 27, 1978

Analysis of plaintiffs’ request

to produce and interroga-

tories to defendants and their

agents, August 21

Analysis of defendants’ in-

terrogatories to plaintiffs’

and request for of

documents, Sept. 18

* Italicized entries indicate those in which identical times are billed.

6.7

3.8

2⁵

Analysis of Board of Super-

visors’ Plan, May 20, 1978

Meeting with clients, May

24, 1978 (includes prepara-

tion)

Meeting with clients, May

31, 1978

None

Depositions of Charlie Steele,

James Wilson, and Mrs.

Charlie Hunt, June 3 1978

Depositions of Eddie Thomas,

Levi Brown, and Simon

Kemp, June 5, 1978

None

None

None

Preparation of defendants-

intervenors’ interrogatories

to plaintiffs and their agents,

served July 25, 1978

None

Analysis of plaintiffs’ request

to produce and interroga-

tories to defendants and their

agents, August 21

Analysis of defendants’ in-

terrogatories to plaintiffs’

and request for production of

documents, Sept. 18

PARKER ENTRY

354

TIME

WINFIELD ENTRY

TIME

14,

15.

16.

17.

18.

19.

20.

2¹.

24.

26.

Analysis of plaintiffs’ inter-

rogatories to intervenors,

served Oct, 18

Analysis of plaintiffs’ an-

swers to intervenors’ inter-

rogatories, received October

21

Analysis of defendants’ an-

swers to plaintiffs’ interroga-

tories and defendants’ re-

sponse to plaintiffs’ request

for production, filed Nov. 27

Intervenors’ notice of deposi-

tions, Nov. 27

Depositions of Clyde R. Don-

nell and Paul A. Pride, No-

vember 30 (including prepa-

ration)

Dec. 1

Deposition of Hoyt T. Hol-

land, Jr., Dec. 2 (including

preparation)

Discussion with counsel re

Joint motion to extend dis-

covery

Deposition of George Culkin,

Dec. 12 (inoluding prepara-

tion)

Analysis of defendants’ re-

quest to produce and second

set of interrogatories to

plaintiffs, Dec. 13

Analysis of plaintiffs’ re-

sponse to defendants’ first

interrogatories, received Dec,

18

of defendanis’

amended response to Days’

deposition, received January

8, 1979

Analysis of answers to depo-

sition upon written questions

of Asst. Att’y Gen. Drew S.

pon III, received Jan. 9,

1

12.6

Deposition of Thomas Akers,

3

8.4

4.2

4

Analysis of plaintiffs’ inter-

rogatories to intervenors,

served Oct. 18

Analysis of plaintiffs’ an-

swers to intervenors’ inter-

rogatories, received October

21

Analysis of defendants’ an-

swers to plaintiffs’ interroga-

tories and defendants’ re-

sponse to plaintiffs’ request

for production, filed Nov. 27

None

Depositions of Clyde R. Don-

nell and Paul A. Pride, No-

vember 30

Deposition of Thomas Akers,

2 Dee. 1

Deposition of Hoyt T. Hol-

land, Jr., Dec. 2 (including

preparation)

None

Deposition of George Culkin,

Dec. 12 (including prepara-

tion)

Analysis of defendants’ re-

quest to produce and second

set of interrogatories to

plaintiffs, Dec. 13

Analysis of plaintiffs’ re-

sponse to defendants’ first

interrogatories, received Dec.

18

Analysis of defendants’

amended response to Days’

deposition, received January

8, 1979

Analysis of answers to depo-

sition upon written questions

of Asst. Att'y Gen. Drew S.

Days, III, received Jan. 9,

1979

1.5

3.2

8.4

4.2

1

* Italicized entries indicate those in which identical times are billed.

PARKER ENTRY

36

TIME WINFIELD ENTRY

TIME

27. Preparation of intervenors’

31.

answers to plaintiffs’ inter-

rogatories, served Feb. 2

Analysis of plaintiffs’ an-

wers to second set of de-

fendants’ interrogatories, re-

ceived Feb. 3

Analysis of plaintiffs’ motion

to compel defendants to

answer in ies and

terrogatories

Feo amc received Feb.

2 of defendants’ mo-

Analysis of defendants’ mem-

orandum in response to plain-

tiffe’ motion to permit in-

spection, filed Feb. 8

Analysis of defendants’ supp.

answers to plaintiffs’ inter-

rogatories

Analysis of defendants’ mo-

tion to compel answers to

interrogatories an? memo-

randum, received Feb. 12

. Analysis of defendants’ supp.

sponse to plaintiffs’ motion to

compel, filed Feb. 12

Analysis of plaintiffs’ re-

sponse to defendants motion

to compel answers and plain-

tiffs’ supp. interrogatories to

defendants, received Feb. 27

Analysis of plaintiffs’ motion

for reconsideration and mem-

m

Intervenors’ notice of depo-

sition, filed Feb. 26

Deposition of Herbert Boler,

March 1

50

3.8

Preparation of intervenors’

answers to plaintiffs’ inter-

rogatories, served Feb. 2

Analysis of plaintiffs’ an-

swers to second set of de-

fendants’ interrogatories, re-

ceived Feb. 3

Analysis of plaintiffs’ motion

to compel defendants to

answer interrogatories and

memorandum, received Feb.

8

Analysis of defendants’ mo-

tion for inspection of Povo

ments and memorandum, re-

ceived Feb. 16

Analysis of defendants’ mem-

m in response to plain-

tiffs’ motion to permit in-

spection, filed Feb. 8

Analysis of defendants’ supp.

answers to plaintiffs’ inter-

rogatories

Analysis of defendants’ mo-

tion to compel answers to

interrogatories and memo-

randum, received Feb. 12

Analysis of defendants’ supp.

responses to plaintiffs’ first

interrogatories and defend-

ants’ memorandum in re-

sponse to plaintiffs’ motion to

compel, filed Feb. 12

Analysis of plaintiffs’ re-

sponse to defendants motion

to compel answers and plain-

tiffs’ supp. interrogatories to

defendants, received Feb. 27

Analysis of plaintiffs’ motion

for re i tion and mem-

orandum

Intervenors’ motion [sic] of

deposition, filed Feb. 2¢

None

15

* Ita)izized entries indicate those in which identical times are billed.

PARKER ENTRY

37a

TIME WINFIELD ENTRY

TIME

40.

49.

51.

Deposition of Frank Sum-

mers, March 2

Analysis of defendants’ re-

sponses to plaintiffs’ supple-

mental interrogatories, re-

ceived March 16

. Preparation of intervenors’

first request for admission of

facts and genuineness of doc-

uments, filed March 20

Analysis of defendants’ re-

sponse to intervenors’ first

request for admissions

. Discussions with counsel re:

joint motion to alter briefing

schedule

None

Deposition of John Ferguson

and Robert Walker, May 22

Deposition of Melvin Red-

mond and discussions with

Redmond and counsel

Deposition of Henry J. Kirk-

sey, May 24

Depositions of Hoyt T. Hol-

land and Dr. Linda Malone,

May 31 (including prepara-

tion)

Analysis of plaintiffs’ amend-

ed response to intervenors’

request for admissions

Preparation of intervenors’

pretrial brief, served June 15

Analysis of Trial Brief of

the United States, received

June 19

Analysis of Plaintiffs’ Pre-

Trial Brief, received June 21

Preparation of Reply Brief

for Intervenors

* Italicized entries indicate those in which identical times are billed.

4.7

5.5

4.8

14

15

None

None

Preparation of intervenors’

first request for admission of

facts and genuineness of doc-

uments, filed March 20

Analysis of defendants’ re-

sponse to intervenors’ first

request for admissions

None

Deposition of Charles Chip-

lin, May 21

Deposition of John Ferguson

and Robert Walker, May 22

None

Deposition of Henry J. Kirk-

sey, May 24

Depositions of Hoyt T. Hol-

land and Dr. Linda Malone,

May 31 (including prepara-

tion)

None

None

None

None

None

4.5

4.8

PARKER ENTRY

TIME

WINFIELD ENTRY

TIME

54. Analysis of United States’

Response to Plaintiffs’ Pre-

Trial Brief and Defendants’

Pre-Trial Statement, received

June 25

Analysis of Defendants’

Supp. Response to Interve-

nors’ Request for Admissions,

dated June 21

Analysis of plaintiffs’ objec-

tion and memorandum in

support of objection, received

June 25

. Analysis of Plaintiffs’ Reply

Brief and attached exhibits,

received June 25

Preparation for and pre-trial

conference, June 25

Analysis of defendants’ pro-

posed findings of fact and

conclusions of law, received

July 3

. Analysis of plaintiffs’ pro-

posed findings of fact and

conclusions of law

Analysis of plaintiffs’ infor-

mational memorandum and

attachments, received July 26

Preparation for oral argu-

ment and oral argument on

record, July 3

Analysis of District Court’s

findings of fact and conclu-

sions of law, filed July 31

Analysis of plaintiffs’ mo-

tion for early decision, re-

ceived August 3

Preparation of intervenors’

motion for clarification and

for declaratory and injunc-

tive relief, exhibits to motion,

and memorandum in support

of motion, filed August 14

55.

61.

Analysis of United States’

Response to Plaintiffs’ Pre-

Trial Brief, and Defendants’

Pre-Trial Statement, received

June 25

Analysis of Defendants’

Supp. Response to Interve-

nors’ Request for Admissions,

dated June 21

Analysis of plaintiffs’ objec-

tion and memorandum in

support of objection, received

June 25

Analysis of Plaintiffe’ Reply

Brief and attached exhibits,

received June 25

Preparation for and pre-trial

conference, June 25

Analysis of defendants’ pro-

posed findings of fact and

conclusions of law, received

July 3

Analysis of plaintiffs’

posed findings of fact ‘tok

conclusions of law

— of plaintiffs’ infor-

memorandum and

— received July 26

None

25

3

15

75

15

Analysis of District Court's

findings of fact and conclu-

sions of law, filed July 31

Analysis of plaintiffs’ mo-

tion for early decision, re-

ceived August 3

Preparation of intervenors’

motion for clarification and

for injunctive relief, exhibits

to motion, and memorandum

in support of motion, filed

20 August 14

2.5 1

75

75

2.5 2

10

* Italicized entries indicate those in which identical times are billed.

1 Petitioners’ assume the difference is the result of a misplaced decimal

point.

2 See note 1, supra.

PARKER ENTRY

TIME WINFIELD ENTRY

TIME

66.

67.

70.

71.

72.

73.

74.

ae 3 § plaintiffs’ mem-

orandum response and

pee anti received August

23

Analysis of defendants’ mem-

orandum in response, received

August 27

Analysis of plaintiff's Juris-

dictional Statement in U.S.

Supreme Court, received Oc-

tober 6, 1979

Analysis of appellants’ mo-

2 for expedited considera-

on

Preparation of Motion to Af-

firm of Private Appellees,

Eddie Thomas, Sr., et al in

U.S. Supreme Court, filed

November 26

Analysis of Motion of the

United States to Affirm in

US. Supreme Court, re-

ceived Dec. 3

Analysis of appellants’ Brief

Opposing Motions to Affirm

in U.S. Supreme Court, re-

ceived Dec. 31

Preparation of this Affidavit

TOTAL

* Italicized entries indicate those in which identical times are billed.

381.05

——

Analysis of plaintiffe’ mem-

orandum in response and

attachments, received August

23

Analysis of defendants’ mem-

orandum in response, received

August 27

Analysis of plaintiff's Juris-

dictional Statement in U.S.

Supreme Court, received Oc-

tober 6, 1979

None

Preparation of Motion to Af-

firm of Private Appellees,

Eddie Thomas, Sr., et al. in

U.S. Supreme Court, filed

November 26

Analysis of Motion of the

United States to Affirm in

US. Supreme Court, re-

ceived Dec, 3

Analysis of appellants’ Brief

Opposing Motions to Affirm

in US. Supreme Court, re-

ceived Dec. 31

None

Meeting with clients, June

1978-Feb. 1980

TOTAL

1

191.35

—=