Petition — City of St. Louis v. Firefighters Institute for Racial Equality

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82-1599 fies rar

No. | MAR 25 1963

Pa taeda, STEVAS,

IN THE | od

Supreme Court of the United States

OcTOBER TERM, 1982

City OF St. Louis, etc., ef al.,

Petitioners,

vs.

FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY,

etc., ef al., and UNiTED STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

-~

JAMES J. WILSON

City Counselor

THOMAS J. Ray

ROBERT H. DierkeERr, JR.*

Associate City Counselors

Room 314 City Hall

St. Louis, Missouri 63103

(314) 622-3361

Attorneys for Petitioners

March, 1983

*Denotes Counsel of Record

oe avian

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED

Whether courts of appeals have jurisdiction under 42

U.S.C. §§1988 or 2000e-5 to grant or deny attorney’s fees

for services on appeal to a prevailing party in an employ-

ment discrimination case?

Whether courts of appeals, consonant with the standards

of 42 U.S.C. §§1988 or 2000e-5, can summarily grant or

deny attorney’s fees for services on appeal to a prevailing

party in an employment discrimination case?

PARTIES BELOW

The parties in the court of appeals were as follows:

Appellants - Firefighters Institute for Racial Equality, a cor-

poration; George Baker; Robert D. Morgan; Robert Grady;

Sherman George; George Redford Turner; Lawrence L. Britt;

Vernon Ammons; Wendell H. Goins; Charles Gay; George E.

Horne; William L. Young; Daniel S. Austin; Robert Anderson;

John H. Harvey; Joseph P. Hughes; Eugene Staton; Preston

Sims, each individually and on behalf of al! other persons

similarly situated.

Appellees - The City of St. Louis, Missouri, a municipal cor-

poration; Division of Fire & Fire Pvevention; Department of

Public Safety, City of St. Louis, Missouri; Frank C. Cummings

in his capacity as Acting Chairman of the Civil Service Commis-

sion of City of St. Louis, Missouri; Fred Gould, in his capacity

as member of the Civil Service Commission, City of St. Louis,

Missouri; Charles Marino, in his capacity as Director, Depart-

ment of Public Safety, City of St. Louis, Missouri.

United States of America.

The City of St. Louis and its officers will be referred to as

“*petitioners’’; respondents will be referred to as ‘‘FIRE’’ and

“the United States’’ respectively.

TABLE OF CONTENTS

Page

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Statutory Provisions and Rule Involved .............. 2

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Reasons for Granting the Petition .............6..0005 5

1. The Petition Ought to Be Granted Because the

Questions Presented Are Important Questions of

Federal Practice and Procedure Concerning At-

torney’s Fees Which Must Be Settled by this Court. 6

II. The Petition Ought to Be Granted Because

the Questions Presented Have Been Addressed In-

consistently by the Various Courts of Appeals and

an Exercise of This Court’s Power of Supervision

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Appendix:

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CE Gib ecseucsaseeesternccceceuenvenns A-4

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PANO ere ate Cree ee A-14

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TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)... 6,9

Aware Woman Clinic v. City of Cocoa Beach, 629 F.2d

POs SUE sp nen bi ccs cadabasa va Keuewus 10,11

Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980)........ ll

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

Std cccde wal peas na eee EVAR eee spas eas 9,10

Consolidated Freightways Co. v. Kassel, 450 U.S. 1039,

poe 5 ey tt eee 9,10

David v. Travisono, 621 F.2d 464 (Ist Cir. 1980)....... 11

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

other grounds, 437 U.S. 678 (1978)... ... 666. a ee

Glidden v. Zdanok, 370 U.S. 530 (1962) ...........65.

Gresham Park Community Organization v. Howell, 652

Pe EE Ns EUUED viccccrceccceccccccees

Hastings v. Maine-Endwell Central School Dist., 676 F.

le AARP ee re rer re eerie

Hughes v. Rowe, U.S. , 101 S.Ct. 173 (1980) .

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

ee ee

Lane v. Mayor, City of Cheyenne, 620 F.2d 235 (10th Cir.

aaa tase hN 1444446646000 0400000.

Liddell v. Bd. of Education, 667 F.2d 646 (8th Cir.), cert.

denied sub nom. Caldwell v. State of Missouri, 454

Be ENED vicccvcucccdscececsscnvececes

McCulloch v. Sociedad Nacional, 372 U.S. 10(1963)...

McManama v. Lukhard, 616 F.2d 727 (4th Cir. 1980) ..

Mitchell v. Maurer, 293 U.S. 237 (1934) ..........006.

Mitchell v. Mid-Continent Spring Co., 583 F.2d 275 (6th

a oath ot seeks 6400804054 00-500008

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400

ee ence u dt ouee take nesab ess eeae-s

Northcross v. Bd. of Ed. of Memphis, 611 F.2d 624 (6th

Cir. 1979), cert. denied, 447 U.S. 911 (1980) ......

10

vi

Obin v. District No. 9, 1.A.M., 651 F.2d 574 (8th Cir.

i a rr 7

Perkins v. Standard Oil Co., 399 U.S. 222 (1970) ...... 8,11

Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir.

eee leah Sew. liebe ahs kk ee oes a's 4 7

Suzuki v. Yuen, 678 F.2d 761 (9th Cir. 1982) .......... 10

White v. New Hampshire Dept. of Employment Security,

U.S. FoR) vl) > ee 6,7,10

Vasquez v. Fleming, 617 F.2d 334 (3d Cir. 1980) ....... 10

Verzosa v. Merrill Lynch, etc., 589 F.2d 974 (9th Cir.

ee eats gaa lh as whew <oudie-eienc es sas 11

Statutes and Rules:

UIE Se bckcecds cheese snccsncsevesase 2

fe SSE PETITE ereE UTTER ER Eee 7

IE Fa eho tees cdctscccsdeareccctccsccns 7

EEE Sask aGbeeebnsdcovedstsecrecccecses 7

ID SG Sanu eedesseveneetcncscvccsscoss 2

CE OSs Uae se cekenedecteedcdevecesnes 1]

ET PACE Dh naa c evens snsercapevacesecaas 3

EE cn cco shins dae nessvensevdrccave''s 3

Ee ES caw ake cenonctvavescanveeses 2,6,7,8,9,10,11

vii

SE SN aicacdicesacresdaekiedereedntes i

RE OED Ce vob ss is ccdivheresteresteeres 2,7

Ses SD sac bnveckasncarsesssaenceces 2,6,8,9,11

Rate 87, Bi Cor. LOCH RM unc icc cccecessccaes 3,5,7,9,10

Rule 14(g), Sth Cir. LOCH Rwles ... cc ccccccccscvecees 11

GE COE TNO BT BE occ ck dv cctccccccsnesecess 10

we Eek . PPPPenerererrreerer Tyrer 10

A bribe es cacsivectavissasctsasees 7

Other Authorities:

110 Cong.Rec. 6534, 12724, 13668, 14214 (1964)....... 7

Senate Report No. 94-1011, 5 U.S. Code, Cong. & Ad-

min. News 5908 (94th Cong. 1976) ...........05. 7

15 C. Wright, A. Miller and E. Cooper, Federal Practice

and Procedure §3901 (1976). .............000085 7

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1982

City Or St. Louis, etc., ef ai.,

Petitioners,

VS.

FIREFIGHTERS INSTITUTE FoR RACIAL EQUALITY,

etc., ef al., and UNitep STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Come now the City of St. Louis and certain of its officers,

petitioners herein, and respectfully pray that a writ of certiorari

be issued to review the judgment and order of the United States

Court of Appeals for the Eighth Circuit entered in this case on

February 8, 1983.

OPINIONS BELOW

The orders and opinions of the district court and the court of

appeals giving rise to this petition are not reported and are

reproduced in appendices A - E. Other opinions in the long

history of this case are reported at 410 F.Supp. 948, amended,

418 F.Supp. 383, rev’d in part, 549 F.2d 506, cert. denied, 434

U.S. 819, appeal after remand, 588 F.2d 235, cert. denied, 443

U.S. 904, on remand, 470 F.Supp. 1281, vacated, 616 F.2d 350,

cert. denied, 452 U.S. 938.

on

JURISDICTION

The judgment of the court of appeals affirming the district

court on the merits was entered December 28, 1982; the order

and judgment denying attorney’s fees to petitioners was entered

February 8, 1983. No petition for rehearing was filed. This peti-

tion is filed within ninety days after December 28, 1982 or

February 8, 1983. 28 U.S.C. §2101. The jurisdiction of the

Supreme Court is invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS AND RULE INVOLVED

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. §2000e-5(j) and (k), provides as follows:

(j) Any civil action brought under this section and any

proceedings brought under subsection (i) of this section

shall be subject to appeal as provided in sections 1291 and

1292, Title 28.

(k) In any action or proceeding under this subchapter the

court, in its discretion, may allow the prevailing party,

other than the Commission or the United States, a

reasonable attorney’s fee as part of the costs, and the

Commission and the United States shall be liable for costs

the same as a private person.

The Civil Rights Attorney’s Fees Award Act, 42 U.S.C.

§1988, provides in pertinent part:

In any action or proceeding tu enforce a provision of

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

IX of Public Law 92-318, or title VI of the Civil Rights Act

of 1964, the court, in its discretion, may allow the rrevail-

ing party, other than the United States, a reasonable at-

torney’s fee as part of the costs.

Rule 17, 8th Cir. Local Rules, provides:

—

Rule 17: Attorney’s Fees

(a) In any case in which attorney’s fees are recoverable

under the law applicable to that case, a motion for at-

torney’s fees shall be filed with the clerk, with proof of ser-

vice, within 14 days after the entry of judgment. Objec-

tions to an allowance of fees must be filed within 10 days

after service on the party against whom the award of at-

torney’s fees is sought.

(b) On the court’s own motion or at the request of the

prevailing party, a motion for attorney’s fees on appeal

may be remanded to the district court or administrative

agency for appropriate hearing and determination.

(c) On its own motion the court may grant an allowance

of reasonable attorney’s fees to a prevailing party in ap-

propriate cases.

(d) The clerk shall prepare and certify an award of at-

torney’s fees granted by the court for insertion in the man-

date. The issuance of the mandate shall not be delayed for

an award of attorney’s fees. If the mandate has been issued

before tinal determination of a motion for an award of at-

torney’s fees, the award, and any amendments thereto,

shall be added to the mandate upon request by the clerk of

the court of appeals to the clerk of the district court.

STATEMENT OF THE CASE

This litigation involves two suits brought initially in 1974

under Title VII and 42 U.S.C. §§1981 and 1983, alleging that

petitioners had engaged in a pattern of discrimination against

blacks in hiring and promotion in the St. Louis Fire Depart-

ment. The prior history of the litigation is set out in the opinions

of the court of appeals, 549 F.2d 506 (8th Cir. 1977); 588 F.2d

235 (8th Cir. 1978); and 616 F.2d 350 (8th Cir. 1980). A fourth

aa

appeal was decided in 1981, the opinion being unpublished. No.

80-1934 (8th Cir. 1981).

The court of appeals, in its 1980 opinion, 616 F.2d 350, held

that a fire captain selection procedure used by petitioners had

an adverse impact on blacks and had not been shown to be job-

related. As an interim procedure and to make up for the absence

of blacks in the first promotions from the challenged examina-

tion, the court directed that the City promote immediately to

the rank of captain the eight blacks who scored highest on the

assessment center, which it held was the most job related por-

tion of the examination. Subsequent promotions, up to a total

of sixty promotions, were to be made on a ratio of one black for

each two whites. 616 F.2d 350, 364.

The mandate was filed in the district court on April 29, 1980.

The uncontradicted evidence of record is that on May 6 and 7,

1980, counsel for petitioners contacted counsel for the United

States and the private plaintiffs (FIRE, et ai.) and indicated that

the Fire Department would pass over Albert Bell, the black

firefighter who ranked eighth on the assessment center. The

reason given by the City for passing over Mr. Bell, who had

received a suspension on April 25, 1980, was his disciplinary

record. In May, 1980, the City promoted forty persons to the

rank of fire captain in accordance with the mandate of the court

of appeals. These included 19 black firefighters, eight of whom

were given effective promotion dates of April 30, 1979.

After motion of the United States, filed May 19, 1980, the

district court entered an order on June 17, 1980 implementing

the mandate of the court of appeals, and providing inter alia,

that petitioners promote ‘‘those eight blacks receiving the

highest scores on the Assessment Center portion of the 1979 Fire

Captain examination, if otherwise still qualified for

promotion’’. No objection to that Order, or to any aspect of the

City’s prior implementation of the Order (e.g., the passing over

of Albert Bell) was filed by the respondents FIRE, et al.

=

On March 15, 1982, FIRE filed a motion for contempt and

execution of judgment alleging that the City improperly delayed

the promotion of Albert Bell and denied him backpay and

seniority by passing him over for another black candidate in

May 1980; and that the City was in violation of the order requir-

ing one black promoted for each two whites. Appendix F. By

that time, the City had promoted, in addition to the eight blacks

receiving retroactive appointments, 45 persons, including fif-

teen blacks.

The district court denied FIRE’s original motion after confer-

ring with counsel on May 19, 1982. Appendix D. FIRE filed a

motion for rehearing on July 8, 1982, alleging no new facts. Ap-

pendix G. Another hearing was scheduled, at which the parties

presented stipulated facts. Appendix H. At the time of the mo-

tion for rehearing, the City had promoted 48 persons, of whom

sixteen were black. On August 11, 1982, the district court again

denied the motion for contempt. Appendix C. FIRE appealed;

the court of appeals summarily affirmed. Appendix B.

Because the record indicated beyond doubt that the peti-

tioners had fully complied with applicable court orders, peti-

tioners moved the court of appeals for an award of attorney’s

fees for services on appeal, in conformity to 8th Cir. Rule 17.

Appendix I. The court of appeals denied the motion without

comment or explanation. Appendix A.

_

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

1, THE PETITION OUGHT TO BE GRANTED BECAUSE

THE QUESTIONS PRESENTED ARE IMPORTANT QUES-

TIONS OF FEDERAL PRACTICE AND PROCEDURE

CONCERNING ATTORNEY’S FEES WHICH MUST BE

SETTLED BY THIS COURT.

Although the amount of money at issue in the instant case is

insignificant, the questions raised by the proceedings below are

important and recurring. This Court has had occasion to wrestle

with many questions involving attorney’s fees under the Civil

Rights Act of 1964, see, e.g., Newman v. Piggie Park Enter-

prises, Inc., 390 U.S. 400 (1968); Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975); and under 42 U.S.C. §1988, see,

e.g., ‘Vhite v. New Hampshire Dept. of Employment Security,

—___.. U.S. —__., 102 S.Ct. 1162 (1982). However, the Court has

not yet addressed the proper role of the courts of appeals in

granting attorney's fees for services on appeal under 42 U.S.C.

§§1988 and 2000e-5(k). Petitioners submit that the time to do so

has come.

The critical question, of course, is whether the courts of ap-

peals enjoy any jurisdiction to pass upon motions for attorney's

fees for appellate services, as an original matter, at all.' The

statutes in question, §1988 and §2000e-5(k), both refer only to

“the court’’, The sparse legislative history strongly suggests that

' This question was not raised by petitioners in the court of appeals,

but this does not affect this petition, for two reasons: (1) Rule 17, 8th

Cir. Local Rules, clearly indicates that the court of appeals considered

that it had jurisdiction concerning fees, so that any attempt to raise

the issue below would have been futile; and (more importantly) (2) the

question is a jurisdictional question, and it is fundamental that such

questions can be raised at any time. See, ¢.g., McCulloch v. Sociedad

Nacional, 372 U.S. 10 (1963); Mitchell v. Maurer, 293 U.S. 237

(1934); cf. Glidden Co. v. Zdanok, 370 U.S. 530 (1962).

—, Pe

Congress had in mind only the district courts in enacting these

attorney's fees provisions. See 110 Cong.Rec. 6534, 12724,

13668, 14214 (1964); Senate Report No. 94-1011, 5 U.S. Code,

Cong. & Admin. News 5908 (94th Cong. 1976). The idea that

the courts of appeals could rule, as an original matter, on mo-

tions for attorney’s fees is at odds with the provisions of 42

U.S.C. §2000e-5(j), which does nothing to enlarge appellate

jurisdiction defined by 28 U.S.C. §§1291 and 1292.

It is axiomatic that the courts of appeals are courts of limited

jurisdiction. See generally, 15 C. Wright, A. Miller & E.

Cooper, Federal Practice and Procedure §3901 (1976). Their

jurisdictional grants are found, in general, in 28 U.S.C. §§1291,

1292 and 1651. Nothing in any of these statutes confers jurisdic-

tion on the courts of appeals to entertain and pass upon applica-

tions for attorney's fees. As this Court recently recognized in

White v. New Hampshire Dept. of Employment Security,

supra, a request for attorney's fees raises issues collateral to the

main cause of action. Fees for services on appeal (as with fees

for services in the district courts) are not merely ‘‘costs’’ under

Rule 39, F.R.A.P. Such fee requests require an inquiry separate

from the decisions on the merits, and their award is uniquely

separable from the issues to be decided on appeal. Cf. White,

supra, 102 §.Ct. 1166; Obin v. District No. 9, 1L.A.M., 651 F.2d

574 (8th Cir. 1981). Grant or deniai of fees nearly always re-

quires an evidentiary hearing and factual findings, see, e.g.,

Mitchell vy. Mid-Continent Spring Co., 583 F.2d 275 (6th Cir.

1978), cert. denied, 441 U.S. 972 (1979); Prandini v. National

Tea Co., 557 F.2d 1015 (3d Cir. 1978); Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (Sth Cir. 1974). The ap-

pellate courts are ill-equipped to undertake the inquiry into the

issue of attorney's fees. As Justice REHNQUIST has noted in

another context, ‘‘The decision whether to award attorney's

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

district courts, who are intimately familiar with the course of

the litigation.’’ Hughes v. Rowe, _. U.S, —__., 101 S.Ct. 173,

183 (1980) (dissenting opinion). Petitioners submit that this

statement is correct as a matter of law, and should be adopted

by this Court to preclude disposition of fee requests by courts of

appeals.

Doubtless it will be argued that recognition of appellate

jurisdiction in the matter of fees for services on appeal under

§§1988 and 2000e-5(k) is required by considerations of judicial

economy. To be sure, there is a risk that an endless circle of

remands and appeals could be generated by the appellate courts’

inability to address appellate fee questions. The short answer to

this problem is that it is for Congi ss to prescribe appellate

jurisdiction, and the problem can only be addressed by Con-

gress. However, careful consideration leads one to conclude

that the risk is trivial that determined, disgruntled litigants, aided

by unethical counsel, will initiate endless series of remands and

appeals on appellate fee issues. Indeed, in the case at bar, there

has been one instance in which the court of appeals did not ad-

dress attorney's fees on appeal, and the matter was resolved by

the district court on remand without further ado - even though

this case has been protracted and hard fought in the extreme.

In sum, the courts of appeals simply do not possess jurisdic-

tion and are not equipped to hear and determine applications

for attorney's fees for services on appeal under 42 U.S.C,

§§1988 and 2000e-5(k). The only course open when fees are to

be awarded for services on appeal is to remand the case to the

district court. See, e.g., Northcross v. Bd. of Ed. of Memphis,

611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980);

cf. Perkins v. Standard Oil Co., 399 U.S, 222 (1970). Certiorari

should therefore be granted in this case to correct the judgment

of the court of appeals.

Assuming that the courts of appeals do enjoy jurisdiction to

grant fees for appellate services under 42 U.S.C. 9§1988 and

2000e-5(k), the serious question remains of how that jurisdic-

~~

tion shall be exercised. Rule 17, 8th Cir. Local Rules, is a

paradigm of the procedure in that court of appeals: sometimes

fees are granted summarily by the court of appeals itself, with or

without evidentiary materials, see, ¢.g., 588 F.2d 235, 243;

sometimes fees are denied summarily, with or without eviden-

tiary materials, see, in addition to the instant case, Liddell v.

Bd. of Education, 667 F.2d 646 (8th Cir.), cert. denied sub

nom. Caldwell v. State of Missouri, 454 U.S. 1081 (1981); Con-

solidated Freightways Co. v. Kassel, 450 U.S. 1039, — U.S.

—__.» 102 S.Ct. 1496 (1982) (cert. dismissed as improvidently

granted). There is reason to believe that the practice in other cir-

cuits is nearly as confused as that in the Eighth Circuit. Clearly

this situation should not continue.

Assuming that §§1988 and 2000e-5(k) confer jurisdiction and

discretion on the courts of appeals to make any awards of fees,

surely the statutes did not confer such discretion unfettered by

meaningful standards. In a related context, this Court has noted

that invocation of judicial discretion by Congress requires a

‘principled application of standards’’ consistent with statutory

purposes and not ‘equity [which] varies like the Chancellor's

foot.’ '’ Albermarle Paper Co. v. Moody, supra, 422 U.S, 417.

Eighth Circuit Rule 17 exemplifies the inability of appellate

courts to deal adequately with fee applications, and the need for

remand of such issues to the district court. Nevertheless, assum-

ing the appellate courts can and should deal with such matters in

the first instance, Rule 17 does not comport with the standards

which ordinarily govern fee proceedings under §§1988 and

2000e-5(k). The manner in which the court of appeals has dealt

with the fee application in this and other cases, though in accord

with its Rule 17, does not demonstrate a ‘‘principled application

of standards’’; rather, it smacks of caprice. At a minimum,

litigants - especially defendants who prevail on appeal, who are

subject to a different fee-award standard than plaintiffs, see

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), are

a

entitled to a reasoned explanation of a denial of fees; and ap-

pellate courts should not award fees sua sponte, without factual

predicate. Cf. Johnson v. Georgia Highway Express, Inc.,

supra. Obviously, only this Court is in a position to provide

definite guidance to the courts of appeals in this regard,’ as the

Court has done for the district courts, e.g., White v. New

Hampshire Dept. of Employment Security, supra; Chris-

tiansburg Garment Co. v. EEOC, supra; Newman vy. Piggie

Park Enterprises, Inc., supra. Certiorari should issue to address

these important questions of federal practice and procedure.

Cf. Supreme Court Rule 17.1(a) and (c).

Il. THE PETITION OUGHT TO BE GRANTED

BECAUSE THE QUESTIONS PRESENTED HAVE BEEN

ADDRESSED INCONSISTENTLY BY THE VARIOUS

COURTS OF APPEALS AND AN EXERCISE OF THIS

COURT'S POWER OF SUPERVISION IS WARRANTED.

As noted above, Eighth Circuit Rule 17 epitomizes the

haphazard approach to appellate fee awards obtaining in nearly

all the circuits. The Third, Fifth, and Ninth Circuits have ap-

parently addressed the jurisdictional question and have held

that the courts 0. appeals do have jurisdiction to grant or deny

fees, at least under 42 U.S.C. §1988. See Vasquez v. Fleming,

617 F.2d 334 (3d Cir. 1980); Aware Woman Clinic vy. City of

Cocoa Beach, 629 F.2d 1146 (Sth Cir. 1980); Suzuki v. Yuen.

678 F.2d 761 (9h Cir. 1982). The Eighth Circuit belongs to this

company. Finney v. Hutto, 548 F.2d 740, 743 (8th Cir. 1977),

aff'd on other grounds, 437 U.S. 678 (1978). The First, Second,

Fourth, Sixth, Seventh and Tenth Circuits apparently view the

discretion to award attorney’s fees, including fees for services

on appeal, to be vested by statute in the district courts, and ac-

*> Summary denial of attorney's fees to prevailing parties has

troubled this Court before, although the Court eventually chose not to

address the matter. Consolidated Freightways v. Kassel, supra.

cordingly these courts of appeals regularly remand fee ques-

tions. See David v. Travisono, 621 F.2d 464 (Ist Cir. 1980);

Hastings v. Maine-Endwell Central School Dist., 676 F.2d 893

(2d Cir. 1982); McManama vy. Lukhard, 616 F.2d 727 (4th Cir.

1980); Northcross v. Bd. of Ed. of Memphis, supra; Bond v.

Stanton, 630 F.2d 1231 (7th Cir. 1980); Lane v. Mayor, City of

Cheyenne, 620 F.2d 235 (10th Cir. 1980).

Like the court of appeals in the instant case, those courts

which have expressed the view that appellate fees can be awarded

by the appellate courts are not consistent in their approach.

Summary awards, summary denials, and remands to the district

court to determine appellate fees have been seen in these cir-

cuits, although no other circuit has gone so far as to codify this

catch-as-catch-can approach in a local rule.’ See, e.g., Aware

Woman Clinic v. City of Cocoa Beach, supra; Gresham Park

Community Organization v. Howell, 652 F.2d 1227 (Sth Cir.

1981); Verzosa v. Merrill Lyach, etc., 589 F.2d 974 (9th Cir.

1978).

This Court has itself indicated a preference for determination

of attorney's fees questions by the district courts. Perkins v.

Standard Oil Co., supra. Considerations of fairness, judicial

economy and jurisdiction demand that this Court define the

role of appellate courts in deciding applications for appellate

fees under §§1988 and 2000e-5(k) and provide uniform

guidelines to be followed in the event appellate courts do have

the jurisdiction to grant or deny such fees in the first instance.

Accordingly, certiorari should issue in this case.

’ The Ninth Circuit provides, Local Rule 14(g), for filing of ap-

plications for fees on appeal, but the rule does not resemble that in the

Eighth Circuit. Some circuits have adopted rules applicable to the

Equal Access to Justice Act, 28 U.S.C. §2412.

—

CONCLUSION

For the foregoing reasons, certiorari should issue to review

and correct the decision below, preferably by ultimately

vacating the order of the court of appeals with instructions to

remand the issue of fees to the district court.

Respectfully submitted,

JAMES J. WILSON

City Counselor

THOMAS J. RAY

ROBERT H. DIERKER, JR.*

Associate City Counselors

MARK LAWSON**

Room 314 City Hall

St. Louis, Missouri 63103

(314) 622-3361

Attorneys for Petitioners

March, 1983

*Denotes Counsel of Record

**L_aw student certified under

Rule 13, V.A.M.R.

APPENDIX TABLE OF CONTENTS

Page

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DUNN Sa GNSG4s Rab RSOANY Ss scKetboveecesoecys A-2

PVE UUAGENEAR i udbbaVebeebeaeaveerereces A-4

PE SECC UCAs CORP REED SReenceressebdicsecees A-6

SSL ClAARCLG LEGS sc hebGb469 6eb6¢0 0800006 A-7

PCL ciowea ee bus wows 666800 sossceeeerees A-9

ECT CE aides eoes cheb ewasdesecttenecevess A-12

Sa A-14

CSC US IU eG sae acs bE teehee eos 0 sees 008 A-21

— *

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1982

No. 82-2093

Firefighters Institute for Racial Equality, etc., et al.,

Appellants,

VS.

The City of St. Louis, Missouri, etc., et al.,

Appellees.

Appeal from the United States District Court

for the Eastern District of Missouri

It is now here ordered by the Court that appell: es will recover

the sum of $23.10 for the costs of reproducing briefs from ap-

pellants.

It is further ordered that appellees’ motion for attorneys’ fees

is denied by the Court.

February 8, 1983

oe

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-2093

Firefighters Institute for Racial Equality, a corporation;

George Baker; Robert D. Morgan; Robert Grady;

Sherman George; George Redford Turner; Lawrence L. Britt;

Vernon Ammons; Wendell H. Goins; Charles Gay; George E.

Horne; William L. Young; Daniel S. Austin; Robert Anderson;

John H. Harvey; Joseph P. Hughes; Eugene Stanton;

Preston Sims, each individually and on behalf of all other

persons similarly situated,

Appellants,

Vv.

The City of St. Louis, Missouri, a municipal corporation;

Division of Fire & Fire Prevention; Department of Public

Safety, City of St. Louis, Missouri; Frank C. Cummings in his

capacity as Acting Chairman of the Civil Service Commission

of City of St. Louis, Missouri; Fred Gould, in his capacity

as a member of the Civil Service Commission, City of St. Louis,

Missouri; Charles Marino, in his capacity as Director,

Department of Public Safety, City of St. Louis, Missouri,

Appellees.

Appeal from the United States District Court

for the Eastern District of Missouri

Filed: December 28, 1982

— =

Before HEANEY, ROSS and FAGG, Circuit Judges.

Order

The Firefighters Institute for Racial Equality appeals from an

order of the district court refusing to hold the City of St. Louis

in contempt for allegedly refusing to comply with this Court’s

mandate regarding promotions to the rank of fire captain in the

St. Louis Fire Department. See Firefighters Institute, etc. v. City

of St. Louis, 616 F.2G 350 (8th Cir. 1980), cert. denied, 452 U.S.

938 (1981).

Aftei a careful review of the briefs and record, we affirm the

judgment of the district court; it is based on findings of fact

which are not clearly erroneous and no error of law appears. See

8th Cir. R. 14.

A true copy.

Attest:

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

1/21/83

ons ill eae

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 74 - 30 C (2)

Firefighters Institute for Racial Equality, et al.,

Plaintiffs,

vs.

City of St. Louis, Missouri, et al.,

Defendants.

No. 74 - 200 C (2)

United States of America,

Plaintiff,

VS.

City of St. Louis, et al.,

Defendants.

Order

(Filed August 12, 1982)

Based upon the hearing in this Court on August 11, 1982, the

stipulation of the parties filed here, and the statements of

counsel,

IT IS HEREBY ORDERED that the motion of the defendant

City of St. Louis to modify this Court’s Order dated February

24, 1982 be and is denied as moot.

—*

IT IS FURTHER ORDERED that the motion of the plaintiff

F.I.R.E. for an order of contempt and execution of judgment

be and is denied.

/s/ John F. Nangle

UNITED STATES DISTRICT

JUDGE

Dated: August 12, 1982.

—-

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 74 - 30 C (2)

No. 74 - 200 C (2)

F.I.R.E., et al.,

Plaintiffs,

Vs.

City of St. Louis, et al.,

Defendants.

Order

(Filed May 24, 1982)

IT IS HEREBY ORDERED that the motion of the plaintiffs

for an order of contempt and execution of judgment be and is

denied pursuant to the record made in open court on May 19,

1982.

/s/ John F. Nangle

UNITED STATES DISTRICT

JUDGE

Dated: May 24, 1982.

— %. po

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 74 C 30 (2)

Firefighters Institute for Racial Equality, et al.,

Plaintiffs,

vs.

City of St. Louis, Missouri, et al.,

Defendants.

No. 74 C 200 (2)

United States of America,

Plaintiff,

Vs.

City of St. Louis, et al.,

Defendants.

Order

(Filed June 17, 1980)

Pursuant to the mandate of the United States Court of Ap-

peals for the Eighth Circuit, and upon motions of the parties,

IT IS HEREBY ORDERED, ADJUDGED and DECREED

that:

1. Defendants City of St. Louis, et al. shall immediately ap-

point to the position of Fire Captain those eight black

firefighters who received the highest scores on the assessment

—_

center portion of the 1979 Fire Captain examination and are

otherwise still qualified. These persons shall have seniority, and

shall receive all benefits, including back pay and fringe benefits,

due and owing them as if they had been apr dinted to the rank of

Fire Captain on April 30, 1979.

2. Defendants City of St. Louis, et al. shall fill all existing and

future vacancies, up to a maximum of sixty (60), on the basis of

one black appointment for each two white appointments. The

determination of whether vacancies exist shall be made by the

defendant City of St. Louis. For purposes of making these ap-

pointments, the remaining black and white candidates who

completed the assessment center portion of the 1979 Fire Cap-

tain examination, if otherwise still qualified, shall be ranked

separately by race on the basis of their score on the assessment

center, and appointments made in order of their ranks on those

lists.

3. Ifthe defendant City of St. Louis or the Intervenors wish to

present additional evidence relating to the validity of the 1979

Fire Captain examination, they shall present to the Court and to

all parties, within twenty days of this date, a detailed outline of

such evidence, including a summary of all evidence, copies of

reports of experts, copies of exhibits, and memorandum of law

on the issues raised by the additional evidence. All parties shall

have twenty days in which to respond, after which time this

Court will rule on whether additional evidence will be accepted.

4. A hearing be and is set for June 23, 1980 at 9:30 a.m., or as

soon thereafter as this matter may be heard, on plaintiff's re-

quest for attorneys’ fees.

/s/ John F. Nangle

UNITED STATES DISTRICT

JUDGE

Dated: June 17, 1980.

—_

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Cause No. 74 C 30 (2)

Firefighters Institute for Racial Equality, et al.,

Plaintiffs,

Vs.

City of St. Louis, Missouri, et al.,

Defendants.

Cause No, 74-200 C (2)

United States of America,

Plaintiff,

VS,

City of St. Louis, et al.,

Defendant.

Motion For Order Of Contempt And Execution Of Judgment

Comes now Plaintiffs, Firefighters Institute for Racial

Equality, et al, (F.1.R.E.) and for its motion for order of con-

tempt and execution of judgment states:

1. That plaintiff F.1.R.E. motions the court on behalf of its

collective membership and specifically on behalf of Albert Bell

and Raymond Henderson, black firefighters who are aggrieved

by defendant City’s failure to follow the directives of the United

States Court of Appeals, 8th Circuit decision as reported at 616

F.2d 350.

— A-10 —

2. That on or about January 17, 1980, judgment was rendered

by the United States Court of Appeals, 8th Circuit, (616 F.2d

350, 364) wherein, inter alia, the Court of Appeals ordered the

District Court to ‘‘order the City of St. Louis to properly ap-

point to the position of fire captain those eight black firefighters

who received the highest scores on the assessment center portion

of the examination, with effective promotion dates of April 30,

1979.’ The City was to further ‘‘fill the first additional 30

vacancies as they occurr. St. Louis must fill these vacancies on

the basis of one black firefighter for each two white firefighters

that are promoted to the position of fire captain.”’

3. That in the case of Albert Bell, a black firefighter who

scored among the top eight black firefighters as denominated in

the Court’s opinion aforementioned, he was arbitrarily and

capriciously passed over for promotion and another black

firefighter with a lower score than his was substituted for Bell

and promoted effective April 30, 1979, with benefits and

seniority as per the Court's opinion in this cause.

4. That Albert Bell was subsequently promoted to the rank of

captain effective November 2, 1980, but was denied the benefits

and seniority as per the Court’s opinion in this cause.

5. That Albert Bell has suffered substantial loss of income

and seniority by the failure of the City of St. Louis to promote

him in accord with the Court’s opinion as aforementioned.

6. That in the case of Raymond Henderson, a black

firefighter, he was scheduled to be promoted in October, 1981

when he was certified as eligible for promotion by defendant’s

Department of Personnel. According to the captain’s eligibility

list as of January, 1980. (Plaintiff’s exhibit A attached hereto)

Henderson should have been promoted in accord with the Court

of Appeals order requiring the promotion of one black

firefighter for each two white firefighters (F.1.R.E. VS. CITY,

616 F.2d 350, 364). However, he was passed over in order that

— Ail —

another firefighter by the name of Ken Danley could be pro-

moted and be allowed to retire as an officer.

7. That Raymond Henderson was caused to suffer and does

suffer substantial and irreparable harm that can only be

remedied by his immediate promotion to the rank of captain

with attendant back pay and seniority.

/s/ Albert J. Bell

/s/ Raymond Henderson

STATE OF MISSOURI

SS

CITY OF ST, LOUIS

I, Charles E. Kirksey, Jr. a notary public, do hereby certify

that on the 12th day ef March, 1982, personally appeared

before me, Albert Bell and Raymond Henderson, who being by

me first duly sworn, declared that they are the persons who signed

the foregoing document and that the statements therein contain-

ed are true.

/s/ CHARLES E. KIRKSEY, JR.

NOTARY PUBLIC

My commission expires

6-24-83

/s/ CHARLES E. KIRKSEY, JR.

BELL, HARRIS,

KIRKSEY & THOMAS

3920 Lindell Blvd.

St. Louis, MO 63108

533-1776

Attorneys for Plaintiffs

— A-12 —

APPENDIX G

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 74-30C(2)

No. 74-200C(2)

F.1.R.E., et al.,

Plaintiffs,

VS.

City of St. Louis, et al.,

Defendants.

Motion For Rehearing For Order Of Contempt

And Execution Of Judgment

Come now Plaintiffs, Firefighter’s Institute for Racial

Equality (F.I.R.E.), et al and for his motion for rehearing

states:

1. That on or about May 19, 1981 counsel for plaintiffs and

representatives of the defendants appeared before Honorable

John F. Nangle, District Judge, for an informal hearing on

Plaintiffs’ Motion for an Order of Contempt and Execution of

Judgment filed on or about March 13, 1982.

2. That Plaintiffs are entitled to a rehearing on their original

motion for the reason that the trial court failed to consider in

the case of Albert Bell that the representations of counsel for

Defendants were inconsequential in considered vis-a-vis the dic-

tates of the United States Court of Appeals, Eighth Circuit deci-

sion as reported at 616 F2d 350 which provided the only frame-

work for the administration of the promotion of black and

white firefighters to the rank of captain.

— A-13 —

3. That on or about May 26, 1982 counsel for Plaintiff,

F.I.R.E., met personally with David Lang, former attorney for

F.I.R.E., and questioned him relative to whether or not he

made the statements alleged by counsels for defendants herein.

Attorney Lang could not remember whether or not he had ac-

tually made such alleged statements but whether he did or not is

of no consequence for if he had in fact made such statements he

did so without authority either from Plaintiff, F.1.R.E., or

from the Court of Appeals. In this counsel’s reading of the deci-

sion rendered by the Court of Appeals, there is no provision for

the modification or arbitrary and capricious alteration of the

terms of what appears to be a very well though out opinion.

4. In the case of Raymond Henderson, the court has failed to

properly interpret the language of the United States Court of

Appeals, Eighth Circuit decision as reported at 616 F2d, 350,

364 which requires that one black firefighter shall be promoted

to fill fire captain vacancies for each two white firefighters that

are promoted. At present the City is in the posture of having

promoted three white firefighters and has only promoted one

black firefighter.

WHEREFORE, Plaintiffs pray this court reconsider its ruling

of May 19, 1982 and rehear plaintiff’s original Motion for

Order of Contempt and Execution of Judgment.

Respectfully submitted,

BELL, HARRIS, KIRKSEY & THOMAS

/s/ CHARLES E. KIRKSEY, JR.

3920 Lindell

St. Louis, MO 63108

533-1776

Attorney for Plaintiff, F.1.R.E.

[JURAT OMITTED.]

— brid —

APPENDIX H

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No, 74-30 C (2)

No. 74-200 C (2)

F.I.R.E., et al.,

Plaintiffs,

VS.

City of St. Louis, et al.,

Defendants.

Stipulation Of Fact For

Purposes Of Motion For Contempt

1. Albert Bell ranked number 8 on the assessment center list

pursuant to which fire captain promotions were to be made

under the mandate of the Court of Appeals.

2. Albert Bell was passed over for promotion by the City in

May, 1980, notwithstanding his rank on the assessment center

list.

3. If called to testify, Robert H. Dierker, Jr., counsel for the

City, would testify that on May 6, 1980, he had a telephone con-

versation with Gerald George, counsel for the government, and

on May 7, 1980, had a telephone conversation with David Lang,

counsel for F.1.R.E., in which he informed Messrs George and

Lang that the City intended to pass over Mr. Bell for promotion

in May of 1980, on the ground that Mr. Bell’s disciplinary

record did not warrant his promotion.

~ A-i3 =

4. Mr. Bell was promoted to the rank of fire captain on

November 2, 1980.

5. If called to testify, Chief Kamprad would testify that he in-

terviewed Mr. Bell in May, 1980, and advised Mr. Bell that he

was being passed over for promotion and further advised him

that if his record improved, he would be promoted at a later

date.

6. If called, witnesses for the City would testify that the at-

tached Exhibits A and B accurately reflect Albert Bell’s

disciplinary record and the record of his suspension ending

May, 1980.

7. If called to testify, Albert Bell will testify that he was, in

May, 1980, one of the top eight black firefighters on the assess-

inent center portion of the test and that he was passed over a

promotion due to representations by his supervisor that he was a

disciplinary problem, and that he was subsequently promoted to

the rank of fire captain on November 2, 1980. He will further

testify that in July, 1980, he wrote Mr. Duffe of the City of St.

Louis Personnel Department, a letter requesting a civil service

hearing to contest the fact that he was passed over for promo-

tion pursuant to the Eighth Circuit Court of Appeals’ order

respecting promotion of black firefighters within the City of St.

Louis Fire Department. (Letter attached as Exhibit C hereto.)

8. The attached Exhibit D reflects all captains by race pro-

moted since May, 1980 pursuant to orders of this Court, in-

cluding date of their promotions.

9. Raymond Henderson was promoted to fire captain effec-

tive July 11, 1982.

[SIGNATURES OMITTED.]

[EXHIBITS A, B AND C TO THE STIPULATION,

CONCERNING THE DISCIPLINARY RECORD OF

ALBERT BELL, ARE OMITTED.]

— A-16 —

EXHIBIT D

Captains Promoted May, 1980

Name

PPV rr PP Yr

— — =

wn =— ©

BPP FOV SHrr >

McPherson, Wallace E.

Davis, John N.

Glover, Alvoyd D.

George, Roy R.

Wade, Larry E.

Bates, Charles H.

Sayless, Lawrence

Whitaker, Robert III

Cook, Jerome

. Kahn, Wardell

. Moore, Corneiius

. Logan, Roland E.

. Moore, Marcellars C.

14.

. Jackson, Leroy

. Jones Jr., William

. Washington, Tuner G. Jr.

. Hammond, Raymond E.

. Grady, Robert

McDaniels, Herschel J.

Ortbals, Ralph H.

Frericks, Leonard E.

Kobler, Ronald W.

Cassidy, Robert J.

Maguire, Charles M.

Gillman, Thomas C.

Pollihan, Roger D.

Lammert, Martin P.

Salamie, Ralph J.

10. Carden, Richard P.

Race

SSststeststestststste wrowwrwwnwrwrwrwrnwnwrwcowoce

ll.

12.

13.

14,

15.

16.

17.

18.

19.

20.

21.

= Al? —

Plumlee, Marion R.

Vail, John L.

Proctor, Charles W.

Bohnerkamp, Richard T.

Brown, James L.

Pikesley, Donald F.

O'Neill, John J.

Schnur, Gary L.

Pollihan, Michael J.

Lindsay, Burual W.

Smith, James G.

Sesceteseesees

Note: The First Eight Blacks Named Above Were Promoted

Effective April 30, 1979.

October 31, 1980

Mrs. Dorothy Whalen

Register, City of St. Louis

Room 206, City Hall

Dear Mrs. Whalen:

This is to inform you that the men listed below have been pro-

moted to the rank of Fire Captain. The effective date is

November 2, 1980 at the bi-weekly rate of $851.89.

Please administer the official oath to them.

Sincerely,

/s/ Chas. Kamprad

Chief of the Department

Albert Bell* 6060 North Pointe

Frank Schaper 6957 Hillsland

63147

63109

— A-18 —

Harland Cupp 3725 Primm 63123

Ronald Bell* 5673 Cates 63112

George Hunt 5725 Milentz 63109

Gerald Noel 4918 Eichelberger 63109

CRK/iam

STOP FIRES BEFORE THEY START

*= BLACK

November 26, 1980

Mrs. Dorothy Whalen

Register, City of St. Louis

Room 206, City Hall

Dear Mrs. Whalen:

This is to inform you that the men listed below have been pro-

moted to the rank of Fire Captain. The effective date is

November 30, 1980 at the bi-weekly rate of $851.89.

Please adminisier the cfficial oath to them.

Sincerely,

Chas. Kamprad

Fire Chief

Jesse Terrel!* 4728 Wren 63120

Charles Moser 6531 Wise 63139

David Hodge 601 Loga 63147

CK/bb

— A-19 —

March 6, 1981

Mrs. Dorothy Whalen

Register, City of St. Louis

Room 206, City Hall

Dear Mrs. Whalen:

This is to inform you that the men listed below have been pro-

moted to the rank of Fire Captain. The bi-weekly rate is

$851.89.

Please administer the Official oat!: to them.

Sincerely,

Chas. Kamprad,

Fire Chief

William Conley 4656 Varrelmann 63116 — Effective 3-8-81

Harvey S. Weber* 8624 Riverview 63147 Effective 3-8-81

James R. Lorentz 7366 Sharp 63116 Effective 5-3-81

CRK/iam

October 28, 1981

Mrs. Vera Braddy

Register, City of St. Louis

Room 209, City Hall

Dear Mrs. Braddy:

This is to inform you that Mr. Richard D. Shaw, 5633

Botanical, St. Louis, Missouri 63110, has been promoted to the

rank of Fire Captain effective November 1, 1981. The bi-weekly

rate is $945.60.

—_—*

Please administer the official oath.

Sincerely,

Chas. Kamprad

Fire Chief

CRK/iam

July 2, 1982

Mrs. Vera Braddy

Register, City of St. Louis

Room 118, City Hall

Dear Mrs. Braddy:

This is to inform you that the men listed below have been pro-

moted to the rank of Fire Captain effective July 11, 1982. The

bi-weekly rate is $945.60.

Please administer the official oath to them.

Sincerely,

Chas. Kamprad,

Fire Chief

Kenneth B. Danley 4514 Tholozan 63116

Raymond Henderson, Jr.* 5946 Floy 63147

John H. Pursley 6935 Lansdowne 63109

— A-21 —

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 81-1934

Firefighters Institute for Racial Equality, etc., et al.,

Appellants,

VS.

City of St. Louis, et al.,

Appellees.

Appeal from the United States District Court

for the Eastern District of Missouri

Motion For Award Of Attorneys’ Fees

Pursuant to 8th Circuit Rule 17, and 42 U.S.C. §1988, ap-

pellee City of St. Louis moves the Court to allow reasonable at-

torneys’ fees to the City of St. Louis for time expended in the

preparation and filing of the record and brief in the above-

referenced case.

In support of this motion, appellee City states that an award

of fees is appropriate under the standards set forth in Chris-

tiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). The ap-

peal in the instant case was clearly unreasonable and without

foundation, and amounted to little more than harassment of the

City and the District Court. Unless the Court wishes to

countenance such tactics on the part of appellants in the future,

an award of attorneys’ fees is eminently just and reasonable.

WHEREFORE, appellee City prays that the Court enter its

order awarding said appellee attorneys’ fees in the sum of

$315.00.

— A-22 —

Attached hereto are affidavits of counsel of record for ap-

pellee City.

JAMES J. WILSON, CITY COUNSELOR

By: /s/ Thomas J. Ray

Associate City Counselor

/s/ Robert H. Dierker, Jr.

Associate City Counselor

314 City Hall

St. Louis, Mo. 63103

622-3361

Attorneys for City of St. Louis

[CERTIFICATE OF SERVICE OMITTED.]

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 81-1934

Firefighters Institute for Racial Equality, etc., et al.,

Appellants,

vs.

City of St. Louis, et al.,

Appellees.

Appeal from the United States District Court

for the Eastern District of Missouri

Affidavit Of Robert H. Dierker, Jr,

In Support Of Award Of Attorneys’

Fees To Appellee City Of St. Louis

— A-23 —

Robert H. Dierker, Jr., being first duly sworn, upon his oath

does depose and says as follows:

1. lam an Associate City Counselor of the City of st. Louis, a

member of the bar of this Court since 1975 and a member of the

Missouri Bar since 1974. I am counsel of record for the City of

St. Louis, appellee in the above-captioned action.

2. The aggregate time I spent in regard to the above-captioned

case to date is 4 hours. The breakdown of the time on a daily

basis is as follows:

Date Time Spent (Hours) Description of Work

10/28/82 2 Review brief filed by

appellants; confer

with Tom Ray

11/12/82 2.0 Research and drafting

of brief of appellee

City

11/15/82 1.0 Review and finalize

brief

12/30/82 2 Preparation and

filing of motion for

attorneys’ fees

3. | am an experienced federal practitioner, having tried or

participated in the trial of numerous federal civil rights actions,

dealing with claims of employment discrimination. I also have

considerable experience in the defense of damage actions in

federal and state court, other than civil rights actions.

4. Based on past professional associations, | am familiar with

the fees prevailing in the St. Louis metropolitan area for

representation of clients in major federal lititgation. Based on

my knowledge, I respectfully suggest to the Court that a range

—s po

of $70 - $80 per hour is a reasonable charge for time expended in

the detense of my clients in this case.

In Witness Whereof, I have hereunto set my hand this 3 day

of January, 1983.

/s/ Robert H. Dierker, Jr.

{[JURAT OMITTED.]

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No, 81-1934

Firefighters Institute for Racial Equality, etc., et al.,

Appellants,

vs.

City of St. Louis, et al.,

Appellees.

Appeal from the United States District Court

for the Eastern District of Missouri

Affidavit Of Thomas J. Ray

In Support Of Award Of Attorneys’

Fees To Appellee City Of St. Louis

Thomas J. Ray, being first duly sworn, upon his oath does

depose and says as follows:

1. | am an Associate City Counselor of the City of St. Louis,

a member of the bar of this Court and of Missouri since 1975. I

am counsel of record for the City of St. Louis, appellee in the

above-captioned action.

om A ons

2. The aggregate time I spent in regard to the above-captioned

case to date is 1/2 hour. The breakdown of the time on a daily

basis is as follows:

Date Time Spent (Hours) Description of Work

10/28/82 .25 Review brief filed by

appellants;

11/15/82 .25 Review brief filed by

City

3. | am an experienced federal practitioner, having tried or

participated in the trial of numerous federal civil rights actions,

including claims of employment discrimination, I also have con-

siderable experience in the defense of damage actions in federal

and state court, other than civil rights actions.

4. Based on past professional associations, | am familiar with

the fees prevailing in the St. Louis metropolitan area for

representation of clients in major federal litigation. Based on

my knowledge, I respectfully suggest to the Court that a range

of $70 - $80 per hour is a reasonable charge for time expended in

the defense of my clients in this case.

In Witness Whereof, I have hereunto set my hand this 3 day

of January, 1983.

/s/ Thomas J. Ray

[JURAT OMITTED. ]