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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0700%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 930

## Text

eee

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
CE SEL dN ca bdvedseubeecaavaoneeeyes i
fk ES PERTENE TENT TET TET TPT err eee ii
PERE EE «5-65 00 44) 100s (Reka ranseeorteutsere iii
ee IED ka.s 50.0 50:04 04044000 440 d4aRs ee iv
SL ou3 sss sasecre cc ebatseeeranabeesken 1
PTs saa cxnbenaresues eee eh baa ee humane 2
Statutory Provisions and Rule Involved .............. 2
I OE GN Siva c 60.5 6.600 bs os 00 09440005005 3
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
Ee PN ib cb d0sc0c as ceaebulieertas e008 10

CI i cca cbx4 540 000k00 kee beadidbcae eens 12

Appendix:
oS err eTeeT TT TTR TEE TET Eee A-1
SEE bo winceerccdrecdebetesbervecesess> A-2
CE Gib ecseucsaseeesternccceceuenvenns A-4
PN wp ecpeccdbcaceveetbeues ceneesasds A-6
PE es uvewkvassescchus vaeat haan cceyes A-7
PE avcuvscderav iris sacsekeekusnrcnes A-9
EGE oo wi delesa awa aceedbae cake ctaers A-12
PANO ere ate Cree ee A-14
PER Sc userepinsesies ses ae eaeKedaasenwe A-21

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 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
PEI ccPEVIASCERGRD RESO RCE SS pedderecncness A-l
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. ]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0700%3A1. Public record. Not legal advice.