Petition for Writ of Certiorari — Coulter v. Tennessee

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86 1660 APR 26 1967

NIOL, JR.

IN THE —

Supreme Court of the Gnited States

OCTOBER TERM, 1986

Mary LUCILLE COULTER,

Petitioner,

Vv.

STATE OF TENNESSEE, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BARRY GOLDSTEIN*

806 15th Street, N.W.

Suite 940

Washington, D.C. 20005

(202) 638-3278

ROBERT BELTON

c/o Harvard Law School

Cambridge, Massachusetts 02138

(617) 495-3124

JULIUS LEVONNE CHAMBERS

CHARLES STEPHEN RALSTON

ERIC SCHNAPPER

99 Hudson Street

Sixteenth Floor

New York, New York 10013

Attorneys for Petitioner Coulter.

*(Counsel of Record)

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

i. Did the court of appeals err in

holding that under the fee-shifting

provision in Title VII of the Civil

Rights Act of 1964 an attorney must

receive less than the market rate for his

or her services if the appellate court

believes a merely competent attorney

could have been hired for less?

a. Did the court of appeais err in

applying an arbitrary percentage limit on

the number of compensable hours, 3% of

the hours devoted to other issues, spent

in collecting fees pursuant to the fee-

shifting provision of Title VII?

_3~. Did the court of appeals adopt

a standard of review which conflicts with

this Court's standard requiring a

"concise but olen explanation for a fee

award when it affirmed a significant

reduction in a request for attorney's

fees merely because it did "not believe

the District Court acted arbitrarily or

irrationally?"

ot Sue

PARTIES

The parties are the plaintiff, Mary

Lucille Coulter, and the defendants,

State of Tennessee, Department of

Transportation of the State of Tennessee,

Department of Personnel of the State of

Tennessee, and Darrell D. Akins,

Commissioner of the Department of

Personnel.

-iii-

Table of Contents

m1 ee es Sat ree

Opinions Below... csccccccsescseses

a ar oes ag is lg we et ae Oe

oe i, a a ae

STATEMENT OF CASE.... 1. eee eeeeees

A. The Successful Represen-

tation of Ms. Coulter by

Attorneys Belton and

PS 4s ere ee ee ee

Ee ee eae ee a ee

REASONS FOR GRANTING THE WRIT....

THE SIXTH CIRCUIT'S DECISION

CONFLICTS WITH DECISIONS OF

OTHER APPELLATE COURTS WITH

RESPECT TO THE DETERMINATION

-iv-

rr.

rit.

OF HOURLY RATES AND COMPENSA-

i Se ee ee eee

A. MOUPAY BACGS... ccc cesves

B. Compensable Hours......

THE SIXTH CIRCUIT DECISION

CONFLICTS WITH THIS COURT'S

STANDARDS FOR DETERMINING

"REASONABLE" ATTORNEY'S

FEES AND RAISES IMPORTANT

QUESTIONS FOR THE APPLICA-

TION OF MORE THAN 100

STATUTES PROVIDING FOR

ATTORNEY'S FEES TO PREVAIL-

es ee eee

THE SIXTH CIRCUIT FAILED TO

PROVIDE THE NECESSARY CAREFUL

REVIEW OF ATTORNEY'S FEES

DECISIONS REQUIRED BY HENSLEY

GF Ds er ces eceeereee esses

CONGR. a 6 < 6X6 RES Sirk bh re

-VvV~-

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) .

Bazemore v. Friday, 92 L.Ed.2d

315 (1986) ... cc ecees

Bhandari v. First National

Bank of Commerce, 808 F.2d

1082 (5th Cir. 1987)

Black Grievance Committee v.

Philadelphia Electric Co.,

802 F.2d 648 (3d Cir.

1986)..

Blum v. Stenson, 465 U.S. 886

(1984) 2. cc cecccvees

Brantley v. Surles, 804 F.2d

321 (5th Cir. 1986) .

City of Detroit v. Grinnell

Corp., 495 F.2d 448 (2d

Cir. 1974) ..cccevees

City of Riverside v. Rivera,

91 L.Ed.2d 466 (1986)

-vi-

Pages

29-30

passim

29, 51

28,37,

Cases Pages

Cunningham v. City of

McKeesport, 807'F.2d 49

Cae ee 6 Oe) bn 86 rere eee es 58

Daly v. Hill, 790 F.2d 1071

(4th Cir. 1966) ..ccccccosess 51

Green v. Francis, 705 F.2d 846

oo Ok ee) ae ee ee 11

Griggs v. Duke Power Co., 401

U.S. 626 (372) secvsccvcscece 6

Hensley v. Eckerhart, 461 U.S.

Se ee es ee ke passim

In re Nucorp Energy, Inc.,

764 F.2d.655 (9th Cir. 1985). 36

Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714

CERES) 0h o8 Kee eee oe 6 oe eR RO 29-30,

Johnson v. State of Mississippi,

606 F.2d 635 (5th Cir. 1979). 35

Jones v. MacMillan Bloedel

Containers, Inc., 685 F.2d

fg el. ee 35

Kelley v. Metropolitan County

Board of Education, 773 F.2d

677 (1968) (en banc) ....ccce 11

-vii-

Cases: Pages

Laffey v. Northwest Airlines,

Inc., 746 F.2d4 (D.C. Cir.

1984) (en banc), cert.

denied, 469 U.S. 1181

Te shueeeneeseuedaccieceoees 18, 24

Lenard v. Argento, 808 F.2d

1242 (7th Cir. 19867) ........ a7, =

Lenihan v. City of New York,

640 F.Supp. 822 (S.D.N.Y.

SOO) Cedeeeeveeeeeeedtsassens 27-28

Lovell v. City of Kankakee,

783 F.2d 95 (7th Cir. 1986).. 35

Lund v. Affleck, 578 F.2d 75

Coe ees Os sn tteseeaeees’ 35

Marcia v. Pagan, 698 F.2d 38

CGE JOSS) ches Het vac eteseae 24

Mayson v. Pierce, 806 F.2d 1556

(ZACH Civ. ISST) wesevvcoscece 19, 32

Nisby v. Commissioners Court of

Johnson County, 798 F.2d 134

(Sth GaF. I9GS) ee ccveccsvins 29, 58

Pawlak v. Greenawald, 713 F.2d

972 (3d Cir. 1983), cert.

denied, 104 S. Ct. 707

of. 5 are Teer rr ee ee ee ee 25, 45

-vilii-

Cases: Pages

Pennsylvania v. Delaware Valley

Citizens Council, 92 L.Ed.2d

4S3G (IGGS) sacccesevccecces 17,47,

49-50

Prandini v. National Tea Co.,

585 F.2d 47 (3d Cir. 1978)... 34

Ramos v. Lamm, 713 F.2d 546

CGC Gar. BERR) se cee seweece 26

Sims v. Jefferson Downs Racing

Association, 778 F.2d 1068

(StR Cir. 1966) cccccomesece 30

Southeast Legal Defense Group

v. Adams, 657 F.2d 1118 (9th

Oe | errr Tre eee eee eee 35

Stanford Daily v. Zurcher,

64 F.R.D. 680 (N.D. Cal.

EDTE) cevcccceseccvvesesescece 45

White v. City of Richmond,

713 F.2d 458 (9th Cir.

RE an 6:00 cake hehe WSS 606068 26

Wildman v. Lerner Stores Corp.,

771 F.2d 605 (ist Cir. 1985). 24, 51

Other Authorities:

ae UeBG ss B SRRSER) cian eas 00s

Title VII of the Civil Rights

Act of 1964 (as amended

1972), 42 U.S.C. §§ 2000e

OF: DW. kv bce we kesh bw ewes bee's

S. Rep. No. 94-1011 (1976)

H.R. Rep. No. 94-1558 (1976)

J. Jones, W. Murphy, and

R. Belton, Cases and

Materials on Discrimi-

nation in Employment

COUR OG. Wt BOO) «ec eeevswcs

-xXx-—

Pages

passim

No.

IN THE

UNITED STATES SUPREME COURT

October Term, 1986

MARY LUCILLE COULTER,

Petitioner,

STATE OF TENNESSEE, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner Mary Lucille Coulter

prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Sixth Circuit

entered on October 29, 1986.

OPINIONS BELOW

The decision of the court of appeals

is reported at 805 F.2d 146 and is set

out at pp. 5a-40a of the Appendix. The

order denying rehearing, which is not

reported, is set out at pp. ila-2a. The

district court's agreed memorandum of

decision of August 3, 1984, which is not

reported, is set out at pp. 50a-56a of

the Appendix. The district court's

memorandum of decision, which is also not

reported, regarding the award of

attorney's fees, dated November 5, 1984,

is set out at pp. 41a-48a.

JURISDICTION

The judgment of the court of appeals

was entered on October 29, 1986. A

timely petition for rehearing and

suggestion for rehearing en banc was

denied by an evenly divided court on

December 18, 1986. on March 9, 1987,

Justice Scalia entered an order extending

the time for filing this petition until

April 17, 1987. Jurisdiction of the

Court is invoked under 28 U.S.C. §

1254(1).

STATUTE INVOLVED

Section 706(k) of Title VII of the

1964 Civil Rights Act, 42 U.S.C. § 2000e-

5(k), provides:

In any action or

proceeding under this

title 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.

STATEMENT OF THE CASE

A. The Successful Representation

of Ms. Coulter by Attorneys

Belton and Arthur.

Plaintiff Coulter received a

determination from the Equal Employment -

Opportunity Commission that there is ne

reasonable cause to believe that her

discrimination charge was true. Sixth

Circuit App. s47..* After receiving the

adverse determination Ms. Coulter

requested an attorney, Aleta Arthur, to

tis6 « géedi action on her behalf

alleging that the Department of

. "Sixth Circuit App." refers to

the appendix which was filed before the

United States Court of Appeals for the

Sixth Circuit in the appeal of this case.

Transportation of the State of Tennessee

intentionally discriminated against her

on the basis of her gender in violation

of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., when she

was denied a promotion to the position of

Regional Office Manager.

Ms. Arthur had never "tried an

employment case." Therefore, she agreed

to the representation of Ms. Coulter only

after Robert Belton consented to serve as

co-counsel. Sixth Circuit App. 202. Mr.

Belton, has more than twenty years of

fair employment litigation experience,

taught equal employment law at Vanderbilt

Law School when Ms. Arthur was a student

at the school, and has "been involved in

more than 250 employment discrimination

cases throughout the United States as

chief counsel or co-counsel [including]

Griggs v. Duke Power Co., 401 U.S. 424

(1971) [and] Albemarle Paper Co. v.

Moody, 422 U.S. 406 (1975)....* Six*h

Circuit App. 129.2

The plaintiff's proof of

intentional discrimination was

established in a carefully developed

manner which reflected Mr. Belton's

experience. The issue was focused by the

filing of a summary judgment motion which

"showed that his client had made out a

prima facie employment discrimination

case and that the state had failed to

come forward with a valid reason for the

failure to promote the plaintiff...."

—

. Mr. Belton has authored

numerous law review articles about the

fair employment laws, and recently co-

authored a textbook on employment

discrimination litigation. J. Jones,

W. Murphy, and R. Belton, Cases and

Materials on Discrimination in Employment

(Sth ed. West 1987).

App. 25a. As a result of the motion the

state had to file an amended pleading "to

allege a justification." Id. Having

ascertained the asserted legitimate

nondiscriminatory reason the plaintiff

filed discovery, interrogatories,

requests for admission, and depositions,

which progressively narrowed the question

and permitted the plaintiff "to show that

the justification the state advanced was

a pretext." Id.

| the discovery "Mr.

Belton prepared extensive stipulations of

fact, based in major part on answers to

previous interrogatories he had prepared,

and an able trial brief. His

conceptualization of the case and his

stipulations and brief contributed to a

successful outcome...." App. 26a-27a.

At trial plaintiff Coulter did not

i i i

present a single witness but rather

relied upon the written work,

stipulations and pre-trial brief,

prepared by Mr. Belton. The defendants

presented three witnesses, App. 5la, and

the trial lasted "less than half a day,"

App. 43a.

"At the conclusion of the

presentation of the defendants' case, the

Court ruled from the bench ... that the

plaintiff had carried her burden of

proving ... that defendants had

discriminated against the plaintiff on

the basis of her sex, in violation of

Title VII of the Civil Rights Act of

1964." 5la-52a. The court ordered the

promotion of Ms. Coulter to a managerial

position, the payment of back pay and the

award of "comp time." App. 53a-54a.

B. The Award of Attorney's Fees.

Mr. Belton submitted a petition

for fees requesting compensation for

185.59 hours at an hourly rate of $110

per hour for 1982 and $125 per hour for

1983 and 1984.% Sixth Circuit App. 124-

25. Belton submitted precise time

records and six affidavits supporting the

reasonableness of his request for fees.

For example, Mr. Lawrence Ashe who

regularly represents defendant companies

in employment discrimination cases in the

Federal Courts in Tennessee testified

that "Belton has been a pioneer and a

leading specialist in the field of

employment discrimination [, that he] is

one of a literal handful of the most

3 The defendants settled any

claim by Ms. Coulter for fees for the

professional services of Ms. Arthur.

App. 55a.

highly-regarded employment discrimination

attorneys for plaintiffs in the United

States," and that Belton's requested

rates "are entirely consistent with what

I would expect to see paid in Nashville

for an attorney of ... Belton's

reputation and accomplishments...." Id.

166-67. 4

4 Mr. Barnett, who has practiced

in Nashville, Tennessee, for 30 years,

testified that he is “intimately

familiar" with the fees charged by

lawyers in employment discrimination,

civil rights, and related types of cases

and that Belton's request for "fees [is]

reasonable and certainly represent[(s] the

prevailing market rate in this community

{and] is below some Nashville lawyers'

fee schedule for this or similar type of

work." Sixth Circuit App. 161-62.

Leroy D. Clark, a law professor

at Catholic University School of Law, who

served as General Counsel of the Equal

Employment Opportunity Commission from

1978 to 1980 testified that he "supported

the grant of tenure [by Vanderbilt Law

School to Belton] on the grounds that he

was one of the most consistent scholarly

contributors in th[{e] area of" fair

employment law. Id. 153-54. The other

a ee Nee

The only counter-evidence

submitted by Tennessee was an affidavit

of a state official stating that

Tennessee paid counsel representing

Tennessee less than the hourly rate

requested by Belton, Sixth Circuit App.

189-90. In its brief Tennessee

represented that it had “agreed to pay

three affiants similarly testified about

the reasonableness of the fee requests or

Mr. Belton's experience or both. Id.

139-51; 158-60.

Moreover, in other decisions

the Sixth Circuit has recognized that the

rates requested by Mr. Belton were

reasonable for an experienced attorney.

Kelley v. Metropolitan County Board of

Education, 773 F.2d 677, 683 (1985) (en

banc) (An attorney in Nashville who is

skilled and experienced in civil rights

work is entitled to "a minimum rate of

$120 per hour"); Green v. Francis, 705

F.2d 846, 850 (6th Cir. 1983) ("Two

reputable members of the Nashville,

Tennessee bar filed affidavits

stat{ing] that it is not unusual among

leading members of the Nashville Bar to

charge a fee ranging from $150 to $200

per hour for both office and courtroom work.")

tient

(Ms. Arthur]" an hourly rate of $85 per

hour and "({tjJo set a higher rate of

compensation" for Mr. Belton “would

create a windfall" for him. Sixth

Circuit App. 181.

The district court reduced Mr.

Belton's requested fee by about 40% from

approximately $22,000 to $14,000. App.

43a, 49a. The district court refused to

compensate Mr. Belton for approximately

30% or 56 of the 185 hours for which

compensation was requested because the

court concluded that the request was

"inordinate," "unreasonable," "must be

duplicate{ ]}" hours, less time was

"sufficient" or the work was "a motion in

futility." App. 44a-47a.

Moreover, the court reduced the

hourly rate requested for 1982 from $110

to $85 per hour’ and for 1983 and 1984

from $125 per hour to $110 per ..our

because the court "find[{s] this is a

reasonable fee per hour for the services

rendered...." App. 47a. The court made

neither findings in support of this

conclusion nor reference to Belton's

5 In part, the court reduced the

hourly rate of $110 per hour requested

for the 4.25 hours expended in 1982 to

$85 per hour because Belton had filed a

petition in another case requesting an

hourly rate of $85 for work performed in

1982. App. 42a, 47a. Mr. Belton

requested $85 per hour in the pertinent

case on the basis of a benchmark for

hourly rates set by the district court in

that case in 1980. Belton had requested

$100 per hour for time performed prior to

1980 but the court only awarded him $75

per hour based on evidence submitted by

the State under a "“cost-plus" theory.

Since the Supreme Court did not reject

this theory until 1984, Blum v. Stenson,

465 U.S. 886, Belton did not challenge

the rate set earlier in the case. Sixth

Circuit App. 207.

undisputed evidence about the applicable

market rate in Nashville.

The Sixth Circuit affirmed the

district court's reduction of Belton's

requested hourly rate and number of

compensable hours except for the 16.75

hours claimed for the presentation of the

motion for summary judgment. ® As to

hourly rates the Sixth Circuit announced

a novel legal rule limiting the hourly

rate awarded a highly experienced,

renowned plaintiff's attorney to that

commanded in the market place by an

iii. merely competent attorney.

App. lla-12a, 16a-18a.

6 The Sixth Circuit rejected the

conclusion that the motion for summary

judgment was "a motion in futility,"

because "this particular ... motion

advanced Mr. Belton's case and was a

factor in winning." App. 25a.

The Sixth Circuit announced a

second novel legal principle in reducing

Mr. Belton's claim from 13 hours to 5

hours for compensation for work done

litigating for attorney's fees. Without

questioning the accuracy! of Mr. Belton's

expenditure of 13 hours in collecting his

attorney's fees, the appellate court

imposed an arbitrary numerical limit on

the amount of compensable time in

litigating the issue of fees:

In the absence of unusual

circumstances, the hours

allowed for preparing and

litigating the attorney fee

case should not exceed 3% of

the hours in the main case when

the issue is submitted on th:

papers without a trial and

should not exceed 5% of the

hours in the main case when a

trial is necessary.

7 The issue concerning

compensable hours did not “involve

padding,misrepresentation, or dishonest

accounting." App. 2la.

App. 23a-24a.

The Sixth Circuit also upheld

the district court's refusal to

compensate Belton for 31 of the 62 hours

for which he requested compensation for

preparing the stipulations, the pretrial

brief and for trial preparation because

it did "not believe the District Court

acted arbitrarily or irrationally...."

App. 26a.

The Sixth Circuit denied

Coulter's petition for rehearing en banc.

App. la-2a.

REASONS FOR GRANTING THE WRIT

This case presents critically

—

important legal questions about the

proper implementation of the fee-shifting

statutes. The issues are so important

8 The standards for applying the

attorney's fee provisions in civil rights

cases "are generally applicable in ail

because the significant 40% reduction

ordered by the Sixth Circuit in the

plaintiff's fee request was not based on

the particular facts of this litigation

but resulted form.two novel legal

principles which conflict with this

Court's rulings and with the decisions of

other courts of appeals.

In Hensley v. Eckerhart, 461 U.S.

424 (1983), and Blum v. Stenson, 465 U.S.

886 (1984), the Court established

cases in which Congress has authorized an

award of fees to a ‘prevailing party.'"

Hensley v. Eckerhart, 461 U.S. 424, 433

n.7 (1983). Last Term the standards

adopted for civil rights cases were

applied to § 304 of the Clean Air Act

and, in doing so, the Court observed that

"[t]here are over 100 separate statutes

providing for the award of attorney's

fees [which] although these provisions

cover a wide variety of ... causes of

action, the bench mark of the award under

nearly all of these statutes is that the

attorney fees must be ‘'reasonable.'"

Pennsylvania v. Delaware Valiey Citizens

Council, 92 L.Ed.2d 439, 453-54 (1986).

guidelines for the determination of

attorney's fees. These guidelines have

not resulted in the anticipated

uniformity and predictability of

attorney's fees decisions.

First, the lower courts are in sharp

conflict and disarray over the proper

method for determining a reasonable

hourly rate which is the linchpin for the

calculation of attorney's fees. See,

Hensley v. Eckerhart, 461 U.S. at 433.9

The Sixth Circuit relies not upon the

hourly rate in the market place for

highly experienced attorneys but rather

establishes a lower rate for those

9 The lower courts have developed

conflicting positions since "the Supreme

Court has not set out the method by which

district courts are to determine the

hourly rate of attorneys working for

profit." Laffey v. Northwest Airlines,

146 F.2d 4, 16 (D.C. Cir. 1984) (en

banc), cert. denied, 469 U.S. 1181

(1985).

attorneys if there are ™™@}mpetent

attorneys "in the region [who] normally"

receive a lower rate. App. lila. At

least six other circuits have adopted a

market-based approach in conflict with

the Sixth Circuit's rule. However, these

circuits have adopted five different and

conflicting approaches for establishing

the market rate. One of these

approaches, the "narrow market" rule of

the Eleventh Circuit, may undercut the

effective see keantetven of the fee

statutes — as the Sixth Circuit's

rule, 19 Section I, a:

10 In Mayson v. Pierce, 806 F.2d

1556, 1556 (1987), the Eleventh Circuit

approved the payment of fees to a

plaintiff's attorney at a lower rate than

that attorney usually earned when

representing companies because Title VII

plaintiffs cannot afford highly paid

attorneys in the market place.

By rejecting the Court's command

that fees “are to be calculated according

to the prevailing market rate," Blum v.

Stenson, 465 U.S. at 895, the Sixth

Circuit makes attorneys fees proceedings

more subjective and unpredictable since

the readily obtainable evidence of the

prevailing market rate for an attorney's

services is not determinative. Moreover,

the Sixth Circuit's decision will drive

experienced counsel away from the

representation of civil rights

plaintiffs. Highly experienced attorneys

or members of law firms or organizations

with a national practice have a strong

economic incentive to steer clear of

cases within the Sixth Circuit and to

select cases within the three circuits

which depend upon the billing rate of an

attorney to establish reasonable fees.

Section II, infra.

Second, in conflict with five

circuits, the Sixth Circuit limits the

compensable hours for litigation spent in

the collection of fees to a flat

percentage, 3%, of the hours devoted to

other issues. Section I, B, infra. By

rejecting the presumption that a

prevailing plaintiff's attorney will

"normally" receive compensation for "all

hours reasonably expended," Hensley, 461

U.S. at 435, the Sixth Circuit undermines

the incentive for attorneys to represent

civil rights plaintiffs because there is

the expectation that they will receive

compensation for all their work which was

reasonably performed. Section II, infra.

Third, in conflict with the Hensley

and Blum requirement and the practices of

other appellate courts, the Sixth Circuit

did not require the district court to

provide a "clear explanation" for its

award of fees. By upholding the award

even though the lower court made no

findings to supports its conclusory

statements, the Sixth Circuit failed to

ensure that the purposes of the fee

statute were satisfied. Section III,

infra.

= THE SIzxzTB CIRCUIT'S DECISION

CONFLICTS WITH DECISIONS OF OTHER

APPELLATE COURTS WITH RESPECT TO THE

DETERMINATION OF HOURLY RATES AND

COMPENSABLE HOURS.

A. Hourly Rates.

In Coulter the Sixth Circuit

implements the Hensley-Blum standard for

determining attorney's fees in a manner

which squarely conflicts with the

implementation by the other circuits.

Contrary to the Sixth Circuit, the other

circuits determine the appropriate hourly

- 22

rate based upon the market rate for the

services of the attorney who requests the

fees.

In the Sixth Circuit a highly

experienced lawyer will not be awarded

his customary hourly rate if there are

merely competent attorneys "in the region

[who] normally receive" a lower rate and

whom the court determines might have

litigated the case. App. lla. While the

Sixth Circuit explicitly rejected

reliance _" the billing rate of the

plaintiff's attorney, the District of

Columbia, First and Third Circuits just

as explicitly have relied upon the

billing rate.

The District of Columbia Circuit has

ruled that "(flor lawyers engaged in

customary private practice ... the market

place has set [the] value" for their

services. Laffey v. Northwest Airlines,

Inc., 746 F.2d at 18. The billing rate

of attorneys “reflects the training,

background, and previously demonstrated

skill of the individual attorney in

relation to other lawyers in that

community." Id. In applying the billing

rate rule, the First Circuit concluded

that "({sjkill and experience [are a

litigator's] stock-in-trade" and a

district court properly "paid his asking

pric@.c«cs” Wildman v. Lerner Stores

Corp., 771 F.2d 605, 610-11 (1985);+*?

see also, Black Grievance Committee v.

11 The First Circuit extended the

billing rate rule to apply to the

"outside specialist's ordinary rate."

Marcia v. Pagan, 698 F.2d 38, 40 (1983).

"If the courts (without cause) award fees

at less than that rate, they will tend to

prevent those in smaller communities from

obtaining the experienced legal counsel

they may need, contrary to the policy

behind awards of attorneys' fees to

prevailing parties."

0d A moot > tial

Philadelphia Electric Co., 802 F.2d 648,

652 (3d Cir. 1986); Pawlak v. Greenawald,

713 F.2d 972, 979 (3d Cir. 1983), cert.

denied, 104 S. Ct. 707 (1984).

While the circuits other than the

Sixth Circuit join in applying a market-

based approach to the determination of an

appropriate hourly rate, there are

conflicts among the circuits as to the

proper market-based approach.

Two circuits, the Ninth and Tenth,

expressly reject any primary reliance

placed upon the "billing rate" for

determining a reasonable hourly rate.

The Ninth Circuit approved the

calculation of an hourly rate "based upon

that which private counsel of similar

experience, reputation, and skill could

command in cases of similar complexity in

the community" and the rejection of

reliance upon "the counsel's customary

hourly rate," White v. City of Richmond,

713 F.2d 458, 460-61 (1983). The Tenth

Circuit joined the Ninth Circuit in

determining that "(t]he hourly rate

should be based on the lawyer's skill and

experience in civil rights or analogous

litigation" and that a counsel's

“customary rate would be [a] relevant but

not conclusive factor." Ramos v. Lamm,

713 F.2d 546, 555 (1983).

Although it has not expressly

rejected primary reliance upon the

billing rate of an attorney, the Second

Circuit also calculates a reasonable rate

for an attorney by a comparison with "the

hourly amount to which attorneys of the

skill in the area would typically be

entitled for a given type of work...."

City of Detroit v. Grinnell Corp., 495

F.2d 448, 471 (2d Cir. 1974); see also,

Lenihan v. City of New York, 640 F. Supp.

822, 827 (S.D.N.Y. 1986).

As does the "billing rate"

rule, the “similar skill" rule guides the

courts to the adoption of the market rate

for the services of the attorney who

requests the award. Unlike the Coulter

“competent attorney" standard both the

"billing rate" and "similar skill" rules

focus upon the specific experience and

skill of the petitioning attorney

although in any given case the rules may

lead to quite different results.

By relying upon contingency

arrangements the Seventh Circuit adopts

yet another market-based rule. Lenard v.

Argento, 808 F.2d 1242, 1247-48 (1987).

Since some types of civil rights cases,

like "tort cases," are “conventionally

and satisfactorily handled on a

contingent basis ... the fee set in the

contingent fee contract would have been

presumptively adequate to attract

competent counsel." aa, @t i267. In

circumstances where the contingency

arrangements usually relied upon in the

mirket place can "induce" competent

counsel to represent civil rights

plaintiffs, then the courts should permit

the market place to work and adopt a

contingency rather than lodestar approach

to the calculation of reasonable fees.

Id. at 1247-48.12

The Fifth Circuit follows yet

another market-based rule although a

12 The Seventh Circuit stated that

the "contingency rule" adopted in Lenard

is not inconsistent with City of

Riverside v. Rivera, 91 L.Ed.2d 466

(1986) since no Justice "suggested that

the terms of ... a [contingency] contract

were irrelevant...." Lenard, 808 F.2d at

1248.

panel of the court recently stated, that

the "Fifth Circuit law on the status of

{the application of] Johnson [v. Georgia

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

1974), to calculate reasonable attorney's

fees] is in disarray." Bhandari v. First

National Bank of Commerce, 808 F.2d 1082,

1104 (5th Cir. 1987). The Fifth Circuit

has held that Blum and Hensley "did not

abrogate the requirement that district

courts must consider the twelve factors

set down in Johnson." Brantley v.

Surles, 804 F.2d 321, 325 (1986). The

court has reversed an award of attorney's

fees based on a "lodestar" calculation

because "the district court did not

evaluate specificaliy the applicability

of each of the Johnson factors." Nisby

v. Commissioners Court of Johnson County,

798 F.2d 134, 137 (1986). However, in

another decision this strict Johnson rule

was not applied, Brantley v. Surles,

supra, and in at least one opinion the

court appeared to apply the "similar

skill" rule, Sims v. Jefferson Downs

Racing Association, 778 F.2d 1068, 1084

(1985). The circuit recently remanded an

attorney fee issue to a district court to

"make of this muddle what it can."

Bhandari v. First National Bank of

Commerce, 808 F.2d at 1105.

A shared characteristic of the

"billing rete," “similar s@miil, ”

"contingency," and "Johnson" rules which

the courts have applied after Blum and

Hensley is that the rules seek to apply

market rates for civil rights cases

comparable to rates in other types of

equally complex Federal litigation.13

Recently, the Eleventh Circuit has

disagreed by adopting a “narrow market"

rule. The court approved the payment of

an hourly rate to a plaintiff's attorney

which was lower than the rate which that

attorney "normally" charged when

defending management clients in Title VII

cases. The court approved a "narrow

market" rule focused on the "market" for

plaintiffs' attorneys because although

"it might be reasonable to charge a

management client $120 an hour in a Title

VII case, the same lawyer would charge an

individual Title VII plaintiff $75 an

13 In so doing the circuits are

following the congressional mandate that

"the amount of fees awarded ... be

governed by the same standards which

prevail in other types of equally complex

Federal litigation, such as antitrust

cases...." S$. Rep. No. 94-1011, »o. 6

(1976), quoted in Hensley, 461 U.S. at

430 n. 4.

hour because the individual would not

likely be able to bear the expense of a

loss if a significantly higher rate were

charged." Mayson v. Pierce, 806 F.2d at

1557.

Although in part a market-based

rule, the Mayson standard like the one in

Coulter will serve to drive experienced

attorneys away from the representation of

civil rights grievants. In effect, the

Eleventh Circuit has ruled that courts

should issue smaller fee awards for

lawyers with poor clients than for

lawyers with wealthy clients. The fee

statutes were intended to remove this

type of financial barrier to the judicial

process. In any event, the confusion

caused by the conflicts between the

"competent attorney" rule of -the Sixth

Circuit and the market-based rules of the

other circuits and among the five market-

based rules requires this Court's

attention.

B. Compensable Hours.

Unlike the multifaceted

conflict among the circuits over the

proper calculation of a reasonable hourly

rate, the conflict between the Sixth

Circuit's decision in Coulter and the

other circuits over the determination of

compensable hours is one-dimensional.

The Sixth céieutt adopted a fixed-

percentage rule that "({i]n the absence of

unusual circumstances" a plaintiff's

attorney may be compensated for

litigating the attorney's fee issue for

hours which do "not exceed 3% of the

hours in the main case when the issue is

submitted on the papers [or] 5% of the

hours in the main case when a trial is

necessary." App. 23a-24a. Every other

appellate court which has considered the

issue has rejected any different

treatment for the compensation of an

attorney's time spent litigating the

entitlement to attorney's fees.

The adoption of an arbitrary

rule like the Coulter rule for limiting

compensation for fee litigation has been

rejected by the other circuits because

such a rule plainly conflicts with the

purpose of providing attorney's fees to

prevailing parties. If attorneys are not

compensated for time spent on fee

litigation they "may become wary about

taking Title VII cases...." Prandini v.

National Tea Co., 585 F.2d 47, 54 (3d

Cir. 1978). "It should be inconsistent

with the purpose of the Fees Act to

dilute a fees award by refusing to

compensate the attorney for the time

reasonably spent in establishing and

negotiating his rightful claim to the

fee." Lund v. Affleck, 587 F.2d 75, 77

tiet Gir. i876). The Fifth, Seventh,

Eighth and Ninth Circuits explicitly rely

upon the rule announced in Lund that time

devoted to collecting fees must be

compensated for in the same manner as

time spent on other issues. Johnson v.

State of Mississippi, 606 F.2d 635, 638

(5th Cir. 1979); Lovell v. City of

Kankakee, 783 F.2d 95, 97 (7th Cir.

1986); Jones v. MacMillan Bloedel

Containers, Inc., 685 F.2d 236, 239 (8th

Cir. 1982); Southeast Legal Defense Group

v. Adams, 657 F.2d 1118, 1126 (9th Cir.

1981).

Until the decision in Coulter,

the appellate courts have uniformly

determined that the district court's

"discretion [for awarding compensation

for fee litigation] must be exercised in

light of the same considerations that

affect the lodestar determination."

Black Grievance Committee v. Philadelphia

Electric Co., 802 F.2d at 657; see also,

In re Nucorp Energy, Inc., 764 F.2d 655,

660 (Sth Cir. 1985). The Coulter rule

limiting the number of compensable hours

by an arbitrary percentage figure is in

direct conflict with calculation of fees

by the other circuits.

II. THE SIXTH CIRCUIT DECISION CONFLICTS

WITH THIS COURT'S STANDARDS FOR

DETERMINING "REASONABLE" ATTORNEY'S

FEES AND RAISES IMPORTANT QUESTIONS

FOR THE APPLICATION OF MORE THAN 100

STATUTES PROVIDING FOR ATTORNEY'S

FEES TO PREVAILING PARTIES.

By rejecting this Court's lodestar

method?* for calculating attorney's fees,

the Sixth Circuit in Coulter undermines

"lt]he purpose of [the fee provision] to

ensure ‘effective access to the judicial

process' for persons with civil rights

grievances." Hensley v. Eckerhart, 461

U.S. at 429, quoting H.R. Rep. No. 94-

3886, @- 4 €2ee ee s The proper

implementation of the lodestar approach

depends upon the (1) application of a

"market rate" for services, (2)

céeabebet ten for “reasonably expended"

hours, (3) use of objective and readily

ascertainable evidence, and (4) the

14 "The most useful starting point

for determining the amount of a

reasonable fee is the number of hours

reasonably expended on the litigation

multiplied by a reasonable hourly rate."

Hensley, 461 U.S. at 433. "This figure,

commonly referred to as the ‘'lodestar,'

is presumed to be the reasonable fee...."

City of Riverside v. Rivera, 91 L. Ed. 2d

at 476.

inclusion of the relevant factors for

determining reasonable fees. The Coulter

decision conflicts with each of these

four principles.

i. In order to assure "effective

access" to the judicial process the Court

determined that reasonable attorney's

fees "are to be calculated according to

the prevailing market rate." Blum v.

Stenson, 465 U.S. at 895.15 By holding

that an hourly rate should be set without

regard to the particular skill and

15 "As nearly as possible, market

standards should prevail, for that is the

best way of ensuring that competent

counsel will be available to all persons

with bona fide civil rights claims. This

means that judges awarding fees must make

certain that attorneys are paid by the.

full market value that their efforts

would receive on the open market in non-

civil-rights cases...." (Emphasis

added), Hensley, 461 U.S. at 447

(Brennan, J., joined by Marshall,

Blackmun, and Stevens, JJ., concurring in

part and dissenting in part).

experience of the lawyer requesting fees

and to limit compensable hours by a flat

percentage figure, the Sixth Circuit

fails to provide compensation at a full

market rate.

If as determined by the Sixth

Circuit, fee awards do not compensate

experienced attorneys at the rates which

their experience commands in the market

place, lawyers in civil rights cases will

increasingly be inexperienced or less

cometenk .: Less effective representation

will ill-serve the victims of illegal

discrimination and param overburden the

courts with inefficiently presented

litigation.

The greater the experience and

skill of an attorney the greater the

potential loss in compensation in the

representation of civil rights

plaintiffs. The Sixth Circuit "competent

attorney" rule either discourages the

experienced attorneys from championing

civil rights plaintiffs or directs those

attorneys to take cases within the

circuits which recognize the market value

for their services.1§

Moreover, the Coulter rule

discourages efficient litigation. If an

experienced attorney such as Belton

16 The Coulter rule is a greater

disincentive for lawyers to take a civil

rights case than the proportionality rule

rejected by the Court for that reason in

City of Riverside v. Rivera. At least

with the proportionality rule there is

the potential for a recovery in excess of

normal billing rates. A plaintiff may

recover a significant sum which, if the

attorney received a contingency fee,

might result in an effective hourly rate

in excess of the attorney's customary

billing rate. But the Coulter rule

provides no opportunity for an enhanced

billing rate -- only the possibility that

a court would order compensation

according to a reduced hourly billing

rate.

guides a novice such as Ms. Arthur

through the development of a case, he

risks the court determining, as the

Coulter court did, that the junior

attorney could have done the case alone.

Under the Coulter rule it is not in the

economic interest of a senior attorney to

agree to assist a junior attorney or to

associate a junior attorney on a case.

The senior attorney is better advised to

proceed alone in order that the court may

not point to the work of some more junior

lawyer as a basis for reducing the hourly

rate. By departing from the market-rate

approach the Sixth Circuit has created

anomalous economic incentives which spur

an attorney to make rational economic

decisions for himself which contradict

the efficient operation of litigation.

Ze Equally as important to the

application of "the full market rate" for

ensuring the availability of effective

counsel is the assurance that a

prevailing plaintiff's attorneys

"C{njormally [will receive compensation

for] all hours reasonably expended on the

S2¢igetiee.«..* Hensley, 461 U.S. at

435. Rather than following this "normal"

rule of full compensation, the Sixth

Circuit created a presumption that, as a

general matter, attorneys will not be

compensated for all their hours which

they spend litigating an entitlement to

fees.

In the absence

o f unusual

circumstances, the

hours allowed for

preparing and

litigating tase

attorney fee case

should not exceed 3%

of the hours in the

main case when the

issue is submitted on

the papers without a

trial and should not

exceed 5% of the

hours in the main

case when a trial is

necessary.

App. 23a-24a. The Sixth Circuit provided

no analytical justification for

establishing the cut off at 3% or 5%.

However, the appellate court was

forthright in stating that the motivation

for this rule was the "obvious inadequacy

in the ‘lodestar' method of calculations"

App. 10a -- an unusual lower court

criticism of a recently adopted Supreme

———

Court standard.1?

The Sixth Circuit's arbitrary

3% rule limiting a plaintiff's attorney's

compensable hours creates a substantial

obstacle in the way of lawyers seeking

fees and will make it "less likely

lawyers will [agree] to undertake the

risk of representing civil rights

plaintiffs...." Hensley, 461 U.S. at 456

17 During the 13 hours which he

spent preparing his fee request Professor

Belton obtained or developed the evidence

Supporting the request for fees, six

affidavits from other attorneys and his

Own affidavit and list of hours,

memorandum in support of the request, and

a motion for judicial notice. The

defendants prepared a twenty-page

"Response" to the request. Sixth Circuit

App. 176-95. Unless an arbitrary

standard -- such as the 3% rule -- is

used, it is difficult to justify a

conclusion that Belton requested

compensation for an "excessive" number of

hours.

(Brennan, et al., 3s) .18 "CI]f attorneys

are required to litigate for their fees

but are not compensated for the time

spent on such litigation, their effective

rates will be reduced correspondingly.

Attorneys may become wary about taking

Title VII cases, civil rights cases, or

other cases for which attorneys fees are

statutorily authorized." Pawlak v.

Greenawald, 713 F.2d at 973.

3. By establishing the lodestar

approach to the determination of

attorney's fees the Court intended to

18 The Court observed in Hensley,

461 U.S. at 430 that the Senate Report

for the Civil Rights ATtorney's Fees

Awards Act of 1976, S. Rep. No. 94-1011,

p. 6 (1976), refers to three district

court cases which correctly determined an

award of reasonable fees. In one of

these decisions, Stanford Daily v.

Zurcher, 64 F.R.D. 680, 683-84 (N.D. Cal.

1974), the court ruled that the refusal

to award fees for services related to

collection would improperly dilute the

initial award.

limit the extent of litigation over fee

claims and to encourage the settlement of

such claims. Hensley, 461 U.S. at 437;

Blum, 465 U.S. at 902 n. 19. The

Hensley, lodestar approach “provides an

objective basis on which to make an

initial estimate of the value of a

lawyer's services." 461 U.S. at 433.

Reliance on an objective and predictable

standard which depends on easily

available evidence serves the twin goals

of limiting litigation and promoting

settlement .19

19 On the other hand, the Court

rejected the adoption of the twelve-

factor analysis for determining fees

initially set forth in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th

Cir. 1974), because it "gave very little

actual guidance" to lower courts" and by

"([sletting attorney's fees by reference

to a series of sometimes subjective

factors placed unlimited discretion in

trial judges and produced disparate

results." Pennsylvania v. Delaware

Valley Citizens, 92 L.Ed.2d at 455.

However, the Sixth Circuit

rejected the objectivity and discipline

gained by a reliance on the market place.

The Sixth Circuit's "competent" attorney

rule depends not upon objective evidence

but on a court's subjective assessment

made at the end of a trial that a less

senior or experienced attorney could have

successfully litigated the case. If the

court so finds, it may then pay one

attorney, who successfully prosecuted the

action, at the market rate of some other

attorney who, as in Coulter, is

significantly less experienced and

skilled. The Sixth Circuit's approach is

an invitation to subjective retrospective

judgments which can only lead to widely

disparate fee awards.

The Sixth Circuit standard for

awarding reasonable attorney's fees

raises the subjectivity and lowers the

predictability of the process and thus

complicates fee litigation and lessens

settlement opportunities. The lower

court's standard creates an "artificial,

judge-made doctrine" which relies upon

subjective assessments and replaces the

"straightforward command" for reasonable

fees with "a Frankenstein's monster

leaving waste and confusion (not to

mention circuit splits) in its wake [and]

increases the delay, uncertainty, and

expense of bringing a civil rights

case...." Hensley, 461 U.S. at 455-56

(Brennan, et al., JJ.)

4. The Sixth Circuit opinion

conflicts with the basic premise of the

Court's standard that the lodestar is

presumed to be the reasonable fee because

that "figure includes most, if not all,

of the relevant factors comprising a

‘'reasonable' attorney's fee...."

Pennsylvania v. Delaware Valley Citizens'

Council for Clean Air, 92 L. Ed. 2d at

457.29 But the Coulter "competent

attorney" rule does not include

consideration for the "skill" or

"experience" of the plaintiff's attorney.

Nor does the Coulter flat percentage rule

limiting compensable hours account for

the "novelty" or "“complexit," of issues.

20 For example, since "(t]he

special skill and experience of counsel

should be reflected in the reasonableness

of the hourly rate" and "(t]he novelty

and complexity of the issues presumably

{are) fully reflected in the number of

billable hours," it is not appropriate as

a general matter to consider these

factors when "determining whether to

increase the basic fee award." Blum v.

Stenson, 465 U.S. at 898; see also,

Pennsylvania v. Delaware Valley Citizens'

Council for Clean Air, 92 L. Ed. 2d at

456.

If, for example, the "lodestar"

hourly rate is pegged at the market rate

for the services of a highly skilled

attorney then "it is unnecessary to

enhance the fee for superior

performance...." Pennsylvania v.

Delaware Valley Citizens Council, 92

L.Ed.2d at 457. But the Coulter rule

does not set the hourly rate at the

market value for the services of a highly

skilled lawyer. Without an enhancement

of the hourly rate there is no adequate

compensation for the services of a highly

skilled attorney under the Coulter

rule.

21 Other lower courts understand

the relationship of the proper lodestar

calculation with a limitation on the

consideration of factors for enhancement.

For example, the First Circuit

interpreted Blum as providing "that

‘quality of representation' is generally

reflected in the reasonable hourly rate"

but that "skill and experience as a

III. THE SIXTH CIRCUIT FAILED TO PROVIDE

THE NECESSARY CAREFUL REVIEW OF

ATTORNEY'S FEES DECISIONS REQUIRED BY

HENSLEY AND _BLUM.

While indicating that "{a] request

for attorney's fees should not result in

a second major litigation," the Court has

stressed that it “remains important

for the district court to provide a

concise but clear explanation of its

reasons for the fee award" in order that

the appellate courts may ensure that the

awards are consistent with the important

purposes of the fee statutes. Hensley v.

Eckerhart, 461 U.S. at 437. Accordingly,

even though the lower court "findings [in

Hensley] represent{ed] a commendable

litigator are [the plaintiff's lawyer]

stock-in-trade and [the lawyer should be]

paid his ... price." Wildman v. Lerner

Stores Corp., 771 F.2d at 610-11; see

also, Daly v. Hill, 790 F.2d 1071, 1078

(4th Cir. 1986); Brantley v. Surles, 804

F.2d at 325.

effort to explain the fee award," the

Supreme Court remanded the issue of

reasonable fees for further consideration

and possible findings. 461 U.S. at 438.

In Blum the Court held that the

conclusory statements of the lower courts

were inadequate to support the award of

fees. 465 U.S. at 898.

In approving the refusal to

compensate Belton for more than 20% of

his time, the Sixth Circuit failed to

exercise proper appellate review of the

conclusory findings of the lower court.

For example, the lower court ruled that

the number of hours for which

compensation was sought was

"unreasonable," that an "inordinate" time

was spent on "a simple lawsuit," and that

50% of the hours requested for trial

preparation was "sufficient time." The

Sixth Circuit affirmed the lower court

because it did not "exercise [its]

discretion and expertise on this mixed

question of law and fact in an arbitrary

or unfair way." App. 27a.

The lower court's exercise of

discretion does not pass muster simply

because the court did not act arbitrarily

or unfairly. The appellate court must

insure that the district court exercised

its discretion "'in light of the large

objectives'" of the fee statutes because

"when Congress invokes the Chancellor's

conscience to further svenseondent

legislative purposes, what is required is

the principled application of standards

consistent with these purposes and not

'equity [which] varies like the

Chancellor's foot.'" Albemarle Paper Co.

v. Moody, 422 U.S. at 417 (citations and

footnote omitted). A court's reliance on

conclusory statements to deny

compensation for a significant portion of

the time expended by a plaintiff's

attorney thwarts the purpose of the fee-

shifting statutes "to ensure effective

access to the judicial process,'"

Hensley, 461 U.S. at 429. Appellate

courts must review district court awards

more closely than did the Sixth Circuit

in Coulter, in order to assure that

"'wjhere a plaintiff has obtained

excellent results, his attorney should

recover a fully compensatory fee." Id.

at 435.

If the Coulter decision stands a

lower court may simply render an

incantation that the time for which an

attorney requests compensation was

"unreasonable" or “inordinate” in order

to reduce significantly the award. This

Court did not permit a lower court to

increase a fee-award by asserting

conclusory reasons, such as the "far

reaching significance [of the relief] to

a large class of people" or the "novelty"

or “complexity” of the litigation. Blum

v. Stenson, 465 U.S. at 898. Similarly,

lower courts should not be permitted as

the Coulter court did to reduce awards by

equally conclusory statements. 22

22 The failure of the appellate

court to require a more careful analysis

and findings from the district court is

emphasized by the fact that, as this

Court found with respect to another

district court's findings in another

Title VII case, Bazemore v. Friday, 92 L.

Ed. 2d 315, 333 n.15 (1986), “certain

conclusions of the District Court are

inexplicable in light of the record."

First, on three occasions the

lower court stated that Coulter "was a

simple case," App. 43a, 45a-46a, but

failed to explain this conclusion in

light of several undisputed facts: (a)

the EEOC found that an "{e]xamination of

the evidence indicates there is not

reasonable cause to believe" that

Coulter's charge of discrimination was

true, Sixth Circuit App. 117: (b)

Tennessee maintained that it had not

discriminated against Coulter through

trial; and (c) Coulter had to prove that

she was denied a promotion because of

intentional gender discrimination based

solely upon circumstantial evidence since

there was no "smoking gun" evidence.

Second, the district determined

that "Mr. Belton does not have any more

ability as far as trial of this type of

case is concerned than Mrs. Arthur"

despite the indisputably far greater

experience of Belton than Arthur. Third,

the lower court stated that "[t]his is

not a paper lawsuit," App. 45a, even

though the plaintiff did not present a

single trial witness but rather relied

upon documents, stipulations, exhibits

and a pre-trial brief, which Mr. Belton

prepared.

Fourth, the lower court

The decisions of other circuits

stand in strong contrast to the failure

of the Sixth Circuit in Coulter to

evaluate whether the district court

properly exercised its discretion

consistent with the purposes of the fee

statutes. The Third Circuit reversed a

district court decision similar to the

decision in Coulter because "the findings

of the district court purporting to

justify a reduction in the fee request

are not specific and lack the evidentiary

basis to counter the uncontradicted

affidavit of plaintiff's counsel

detailing the hours expended and the

asserted that some of Mr. Belton's hours

"must be duplicates," App. 45a, of Ms.

Arthur's hours, despite the fact that no

list of Ms. Arthur's hours or itemization

of her services was even presented to the

district court. Fifth, the lower court

failed to evaluate the substantial

evidence submitted by Mr. Belton on the

market rate for attorneys.

billing rate." Cunningham v. City of

McKeesport, 807 F.2d 49, 52 (3d Cir.

1986). The Seventh Circuit concluded

that it "cannot sustain a substantial

award of attorney's fees on the basis of

so skimpy an opinion as [the] district

court wrote." Lenard v. Argento, 808

F.2d at 1247; see also, Nisby v.

Commissioners Court of Johnson County,

798 F.2d at 137.

CONCLUSION

In order to resolve conflicts

between the circuits on important issues

regarding the implementation of fee-

shifting statutes, to correct a serious

misapplication of this Court's

standards for establishing reasonable

fees, and to provide guidance about the

proper measure of a "reasonable hourly

rate," the Court should grant the

petition for a writ of certiorari to

review the judgment of the Sixth Circuit.

Respectfully submitted,

BARRY GOLDSTEIN*

806 15th Street, N.W.

Suite 940

Washington, D.C. 20005

(202) 638-3278

ROBERT BELTON

c\o Harvard Law School

Cambridge, MA 02138

(617) 495-3124

JULIUS LeVonne CHAMBERS

CHARLES STEPHEN RALSTON

ERIC SCHNAPPER

99 Hudson Street

Sixteenth Floor

New York, New York 10013

Attorneys for Petitioner

Coulter.

*(Counsel of Record)

APPENDIX

Sees

Order, denial of petition for

rehearing en banc (Decem-

EO ee es eee eee

Judgment of the Court of Appeals

[opener ey SUD ctcre rece ceecs

Opinion of the Court of Appeals

(October 29, 1986), 805 F.2d

146 eoeee#ee#eese#ese?#* cee £82 82 eer eae eweterese 8 @

Opinion of the District Court

on the award of attorney's

fees (November 5, 1984) ........

Order of the District Court

Srweeee GS, 1966) .ccccsvvvcecs

Agreed Memorandum of the District

Court (Auguet 3, 1984) ...ccceee

Order of the District Court

(August 3, 1964) 2c cvcccvcccvsee

No. 85-5109

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARY LUCILLE COULTER, )

Plaintiff-Appellant, )

Vv. ORDER

STATE OF TENNESSEE, et al.,

Defendants-Appellees.

BEFORE: LIVELY, Chief Judge, MERRITT and

WELLFORD, Circuit

Judges

The Court having received a petition

for rehearing en banc, and the petition

having been circulated not only to the

original panel members but also to all

other active judges of this Court, and no

judge of this Court having requested a

vote on the suggestion for rehearing en

banc, the petition for rehearing has been

referred to the original hearing panel.

The panel has further reviewed the

petition for rehearing and concludes that

the issues raised in the petition were

fully considered upon the original

submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT .

/s/

John P. Hehman, Clerk

Pop ErTE aaa

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 85-5109

MARY LUCILLE COULTER,

Plainciff-Appellant,

Vv.

STATE OF TENNESSEE, et al.,

Defendants-Appellees.

Before: LIVELY, Chief Judge; MERRITT and

WELLFORD, Circuit Judges.

JUDGMENT

ON APPEAL from the United

States District Court for the Middle

District of Tennessee.

THIS CAUSE came on to be heard

on the record from the said District

Court and was argued by counsel.

ON CONSIDERATION WHEREOF, It is

now here ordered and adjudged by this

court that the judgment of the said

District Court in this case be and the

same is hereby affirmed in part, reversed

in part and the case is remanded for

further proceedings consistent with this

opinion.

Each party is to bear its own

costs on appeal.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

/s/

Clerk

MARY LUCILLE COULTER

Plaintiff-Appellant,

Vv.

STATE OF TENNESSEE; Department

of Transportation of the State

of Tennessee, Department of

Personnel of the State of

Tennessee; and Darrell D. Akins,

Commissioner of the Depart-

ment of Personnel,

Defendants-Appellees.

No. 85-5109.

United States Court of Appeals,

Sixth Circuit

Argued Jan. 17, 1986.

Decided Oct. 29, 1986.

Before LIVELY, Chief Judge, and MERRITT

and WELLFORD, Circuit Judges.

MERRITT, Circuit Judge.

This is an attorney fee appeal

arising from a Title VII case. Robert

Belton, a Vanderbilt University law

professor who teaches in the employment

discrimination field, was associated by

another lawyer as co-counsel for a

plaintiff who ultimately won her case.

Mr. Belton challenges the District

Court's order reducing his separate

attorney fee award against the losing

defendants from $22,532 to $14,167. The

appeal raises significant issues

respecting the applicable hourly rate to

be used under the "lodestar" approach to

attorney's fees* and the approach to be

1 The rate-times-hours method of

calculation, often referred to as the

"lodestar" method, has been approved, in

modified form, though not mandated, by

the Supreme Court. See Pennsylvania v.

Delaware Valley Citizens' Council for

Clean Air, U.S. , 196 S.Ct. 3088,

92 L.Ed.2d 439 (1986); Hensley v.

Eckerhart, 461 U.S. 424, 433, 103 S.Ct.

1933, 1939, 78 &.864.26 40 (3989) ;

Northcross v. Board of Education, 611

F.2d 624, 636 (6th Cir. 1979). See also

Report of Third Circuit Task Force, Court

Awarded Attorney Fees, 108 F.R.D. 237

(1985), for criticism of this method and

followed in measuring excessive hours.

FACTUAL BACKGROUND

Aleta Arthur and Robert Belton

represented plaintiff Coulter in a Title

VII sex discrimination suit against the

State of Tennessee and certain Tennessee

agencies and officials. District Judge

Morton ruled in favor of plaintiff on the

issue of liability. The parties by

agreement then submitted a consent order

which disposed of all the remedial

issues, cies plaintiff a promotion and

a small amount of compensation, awarded

Ms. Arthur $13,621.25 in attorney's fees

at the rate of $85 an hour, and reserved

the question of attorney's fees due Mr.

Belton for later determination.

Mr. Belton subsequently petitioned

the District Court for an attorney fee

recommendations for improvement.

award of $22,532.90 calculated on a total

of 185.59 hours worked at rates of $110

per hour for services rendered during

1982 (4.25 hours) and at $125 per hour

for 1983 (60.92 hours) and 1984 (120.42

hours). Judge Morton reduced the hourly

rate to $85 for 1982 and $110 for 1983

and 1984, and he refused to award Mr.

Belton a fee for 55.83 hours, which he

considered unreasonably expended. Taking

these reductions into account, Judge

Morton ordered the defendants to pay Mr.

Belton attorney's fees in the amount of

$14,167.35. Judge Morton found that Ms.

Arthur was the "lead" lawyer, a seasoned

and effective trial lawyer, who conducted

all of the trial and all the deposition

examinations. Mr. Belton assisted in

legal research and conceptualization of

the case and in the review of documents

and preparation of court papers. Judge

Morton characterized the case as

"simple," “tried in less than half a

day," and "decided from the bench."

HOURLY RATES

In adopting some 131 attorney fee

shifting statutes, @ including the civil

rights statute applicable here, 42 U.S.C.

§ 2000e-5(k) (1982) (awarding

“reasonable” fees to prevailing parties

in the "discreticn" of the court),

Congress intended to provide an economic

incentive for the legal profession to’try

meritorious cases defining and enforcing

statutory policies and constitutional

rights in a variety of fields of legal

practice. Congress did not intend that

lawyers, already a relatively well off

2 9 Att'y Fee Awards Reporter 2-3

(1986) (See Appendix A).

professional class, receive excess

compensation or incentives beyond the

amount necessary to cause competent legal

work to be performed in these fields.

Legislative history speaks of "fees which

are adequate to attract competent

counsel, but which do not produce

windfalls," S.Rep. No. 94-1011, p. 6

(1976), U.S. Code Cong. & Admin. News

1976, pp. 5908, 5913, and cautions

against allowing. the statute to be used

as a "relief fund for lawyers," 122 Cong.

Rec. 33314 (1976) (remarks of Sen.

Kennedy) .? The statutes use the words

3 These quotations are from the

legislative history of 42 U.S.C. § 1988,

the Civil Rights Attorney's Fees Awards

Act of 1976. However, this provision was

patterned in part on Title VII's attorney

fee provision, which is involved in this

case. See Hensley v. Eckerhart, 461 U.S.

424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7,

76 L.Ed.2d 40 (1983); Hanrahan v.

Hampton, 446 U.S. 754, 758 n. 4, 1900

S.Ct. 1987, 1989 n. 4, 64 L.Ed. 2d 670

10a

"reasonable" fees, not "liberal" fees.

Such fees are different from the prices

charged to well-to-do clients by the most

noted lawyers and renowned firms in a

region. Under these statutes a renowned

lawyer who customarily receives $250 an

hour in a field in which competent and

experienced lawyers in the region

normally receive $85 an hour should be

compensated at the lower rate.* We

(1980). We.consider the legislative

history of § 1988 to be indicative of

congressional intent relative to § 2000e-

5(k). For further discussion of this

legislative history, see Hensley v.

Eckerhart, 461 U.S. at 429-30, 444-46,

103 S.Ct. at 1945-46.

4 "These statutes were not

designed as a form of economic relief to

improve the financial lot of attorneys,

nor were they intended to replicate

exactly the fee an attorney could earn

through a private fee arrangement with

his client. Instead, the aim of such

statutes was to enable private parties to

obtain legal help in seeking redress for

injuries resulting from the actual or

threatened violation of specific federal

lla

therefore apply the principle that hourly

rate for fee awards should not exceed the

market rates necessary to encourage

competent lawyers to undertake the

laws. Hence, if plaintiffs, such as

Delaware Valley, find it possible to

engage a lawyer based on the statutory

assurance that he will be paid a

"reasonable fee," the purpose behind the

fee-sharing statute has been satisfied.

Moreover, when an attorney

first accepts a case and agrees to

represent the client, he obligates

himself to perform to the best of his

ability and to produce the best possible

results commensurate with his skill and

his client's interests. Calculating the

fee award in a manner that accounts for

these factors, either in determining the

reasonable number of hours expended on

the litigation or in setting the

reasonable hourly rate, thus adequately

compensates the attorney, and leaves very

little room for enhancing the award based

on his post-engagement performance. In

short, the lodestar figure includes most,

if not all, of the relevant factors

comprising a “reasonable" attorney's fee,

and it is unnecessary to enhance the fee

for superior performance in order to

serve the statutory purpose of enabling

plaintiffs to secure legal assistance."

Pennsylvania v. Delaware Valley Citizen's

Council, supra, n. 1, 106 S.Ct. at 3098-99.

i2a

representation in question.

Mr. Belton requested that his fee be

calculated on an hourly rate of $100 per

hour for services rendered in 1982 and

$125 per hour in 1983 and 1984. Judge

Morton reduced the hourly rates to $85

for 1982 and $110 for 1983 and 1984 as

reasonably reflecting the prevailing

market rates for lawyers in this field in

Nashville, Tennessee, the community in

which both Mr. Belton and Ms. Arthur

practice. |

This finding is supported by the

fact that Mr. Belton requested and was

awarded fees based on an $85 rate for

services rendered in 1982 in another

Title VII action before Judge Morton.

Perkins v. State Board of Education, No.

77-3552 (M.D. Tenn. March 11, 1983)

{available on WESTLAW, DCTU database].

13a

Mr. Belton argues that his hourly rate

was low in Per’ :ins because Perkins was

decided before the Supreme Court's

decision in Blum v. Stenson, 465 U.S.

886, 104 $.Ct. 1541, 79 L.Ed.2d 891

(1984), and did not use the "market rate"

theory the Court espoused in Blum. In

Blum the Court rejected the argument that

attorney fee awards for nonprofit counsel

should be calculated in a cost-based

method and should be lower than fees

calculated under a market rate theory for

private “for profit" counsel.

Mr. Belton's argument implies that his

fees in Perkins were lower because they

reflected his lower cost of practicing

law resulting from his free access to

office space and law library resources at

Vanderbilt Law School.

This argument is not valid. In an

l4a

earlier opinion in Perkins, Judge Morton

did note the argument that Mr. Belton's

fee should be lower because he was a law

professor, but the judge awarded fees

"based on prevailing rates in the area."

"It is true," he said, "that one of the

underlying factors in setting the rate

may be overhead, but to the recipient

thereof the components have no

pertinency. The plaintiff is entitled to

recover fees based on their reasonable

worth, i.e., market value." Perkins v.

State Board of Education, No. 77-3552

slip op. at 3-4 (M.D. Tenn. Nov. 4,

1980). The text of Judge Morton's orders

undermines Mr. Belton's assertion that

his fee was not calculated based o1

market rate as required by Blum. In

addition, in Perkins Judge Morton awarded

Richard Manson, a Nashville attorney in

15a

private practice, a fee calculated at a

rate of $75 per hour for 1982.

The reduction in Mr. Belton's rates

is also supported by the fact that in

this case Ms. Arthur requested an

attorney fee calculated at the rate of

$85 per hour for all three years. The

parties agree that under the consent

order Ms. Arthur was paid $85 per hour

for all of the work she did. Mr. Belton

argues that this reference to Ms.

Arthur's rate constitutes the admission

of a "settlement ... to reduce the amount

of a claim" in contravention of Rule 408

of the Federal Rules of Evidence.

Belton's Brief at 18-19. Rule 408 does

prohibit the admission of "({e]vidence of

accepting ... valuable consideration

in compromising ... a claim which was

disputed as to either validity or amount,

16a

to prove liability for or invalidity

of the claim or its amount." However,

the rule allows the admission of such

evidence for other purposes. In this

case, reference to the settlement is for

the statistical purpose of establishing

the market rate prevailing in Nashville

for the sort of legal services rendered

by Mr. Belton. Laying the settlement

aside, record evidence establishes that

Ms. Arthur, described by Judge Morton as

an "excellent" and highly effective trial

lawyer in Nashville, sought $85 per hour

for her services in the same Title VII

case. The reduced figures reasonably

reflect the market rate in Nashville at

the time the services were rendered, the

rates necessary to hire competent lawyer

to undertake the work in question in

accordance with the principle stated

17a

above that “fee awards should not exceed

the market rates necessary to encourage

competent lawyers to undertake the

representation in question."

HOURS EXPENDED

The second issue -- the

reasonableness of the hours claimed by

Mr. Belton -- illustrates an obvious

inadequacy in the “lodestar" method of

calculation. The rates-times-hours

approach is a sufficient standard when

there is no problem about the hours of

service performed, but it does not solve

the problem of excessive hours. See

Report of Third Circuit Task Force, 108

F.R.D. 237, 247-49 (1985). Hours spent

in court and at depositions can be

verified and reviewed. Hours spent in

reviewing records, talking to other

lawyers or experts, preparing legal

18a

documents and the like cannot be fully

verified and require the court to trust

the lawyer's word that the hours claimed

represent necessary work actually

performed. Depending on the situation,

the lawyer may have strong economic

incentives to spend too many hours on a

piece of work or to exaggerate the number

of hours spent or the necessity or

importance of the work. Similarly, it is

often difficult to assess the need for

two lempeee at a deposition, an

interview, or a trial.

Mr. Belton requested fees for 185.59

hours. Judge Morton cut out 55 hours.

The District Judge eliminated as

excessive or unnecessary 8 of the 13

hours claimed for preparing his fee

request; all of the 16.75 hours claimed

for preparing, filing, and arguing what

19a

the District Judge characterized as a

"futile" summary judgment motion; 22 of

the 44 hours in preparing the

stipulations and the pretrial brief; and

9 of 18 hours claimed for trial

preparation.

Three very different kinds of issues

can arise concerning excessive hours:

(1) factual questions about whether the

lawyer actually worked the hours claimed

or is padding the account; (2) legal

questions about whether the work

performed is sufficiently related to the

points on which the client prevailed as

to be compensable; and (3) mixed

questions about whether the lawyer used

poor judgment in spending too many hours

On some part of the case or by

unnecessarily duplicating the work of co-

counsel. On the first type of factual

20a

question we apply the clearly erroneous -

standard. On the second we determine

whether the District Court erred. On the

third concerning billing judgment we look

to see whether the District Court, based

on experience and the record in the case,

misapplied the reasonable billing

practices of the profession.

On the question of excessive hours

we have three issues, none of which

involve a question of padding,

atacteasemetns ten. or dishonest:

accounting. The first question involves

the time spent in preparing and

presenting the attorney fee petition and

accompanying documentation after the

civil rights case was over. The second

involves preparation of the summary

judgment motion. Both raise legal

questions of compensability. The third

21a

involves the preparation of documents and

raises a question of billing judgment.

Preparation of Fee Application.--

Although time spent in preparing,

presenting, and trying attorney fee

applications is compensable; some

guidelines and limitations must be placed

on the size of these fees. Otherwise the

prosnect of large fees later on may

discourage early settlement of cases by

rewarding protracted litigation of both

the civil rights case and the attorney

fee case.

The cases from this and other

circuits uniformly hold that a lawyer

should receive a fee for preparing and

successfully litigating the attorney fee

case after the original case is over,

although in the private market place,

lawyers do not usually charge, and

22a

clients do not usually pay, for the time

it takes lawyers to calculate their fees.

See cases collected and discussed in In

re Nucorp Energy, Inc., 764 F.2d 655, 660

(9th Cir. 1985). The legislative intent

behind attorney fee statutes, however,

was to encourage lawyers to bring

successful civil rights cases, not

successful attorney fee cases. The

attorney fee case is not the case

Congress expressed its intent to

encourage; and in order to be included,

it must ride piggyback on the civil

rights case.

Judge Morton struck the right

balance. He limited these hours to

approximately 3% of the hours allowed in

the main case. In the absence of unusual

circumstances, the hours allowed for

preparing and litigating the attorney fee

23a

case should not exceed 3% of the hours in

the main case when the issue is submitted

on the papers without a trial and should

not exceed 5% of the hours in the main

case when a trial is necessary. Such

guidelines and limitations are necessary

to insure that the compensation from the

attorney fee case will not be out of

proportion to the main case and encourage

protracted litigation.

Summary Judgment Motion. -- On

summary judgment motions and other

similar motions that go to a particular

issue in a case, the question should be

whether the person seeking compensation

prevailed on the motion or in the end

prevailed on the issue raised in the

motion in part as a result of the motion.

This particular summary judgment motion

advanced Mr. Belton's case and was a

24a

factor in winning. His summary judgment

motion showed that his client had made

out a prima facie employment

discrimination case and that the state

had failed to plead or otherwise come

forward with a valid reason for the

failure to promote the plaintiff as

rebuttal to the prima facie case. As a

result of the motion the state amended

its pleading to allege a justification,

and Ms. Arthur and Mr. Belton were then

able to show that the justification the

state advanced was a pretext. Thus, Mr.

Belton's summary judgment motion narrowed

the issue in the case and helped his

client win at the trial. The 16 hours or

2 days Mr. Belton spent on this motion

should be allowed.

25a

Preparation of Stipulations,

Pretrial Brief, and for Trial. -- When

the issue is a question of the lawyer's

judgment in billing for a particular

number of hours on a piece of work, we

must depend in larger measure on the

fairness of the District Court in

assessing the needs of the case. Under

the circumstances presented here, we do

not believe the District Court acted

arbitrarily or irrationally in reducing

the pretrial preparation hours from 62 to

31. Ms. Arthur was lead trial counsel

and conducted the trial itself. Mr.

Belton prepared extensive stipulations of

fact, based in major part on answers to

previous interrogatories he had prepared,

and an able trial brief. His

conceptualization of the case and his

stipulations and brief contributed to a

26a

successful outcome, but we defer to the

view of the trial judge that 31 hours or

approximately 4 working days was

sufficient for these tasks. Judges will

differ on questions of this kind, but our

own experience as lawyers and judges

tells us that the District Judge has not

exercised his discretion and expertise on

ied question of law and fact in an

arbitrary or unfair way. Judge Morton

gave Mr. Belton credit for all of the

more than 3 days time he spent at the

depositions and short trial conducted,

altogether by Ms. Arthur. He did so on

the theory that multiple representation

can be productive. But there is also the

danger of duplication, a waste of

resources which is difficult to measure.

Where duplication of effort is a serious

problem, as in this case, the District

27a

Court may have to make across the board

reductions by reducing certain items by a

percentage figure, as Judge Morton did

here in reducing this item by 50%.

Accordingly, the decisions of the

District Court as to the hourly rate and

the hours allowed for the preparation of

the attorney fee case and the pretrial

stipulations and brief are affirmed. The

decision on the hours allowed on the

motion for summary judgment is reversed

and the case remanded to the District

Court to recalculate the fees to include

these hours.

WELLFORD, Circuit Judge, concurring

in part and dissenting in part.

I agree with Judge Merritt's well

considered opinion with respect to all

aspects of this fee controversy except

with that part dealing with the summary

28a

judgment motion. (Page 151.) Judge

Morten had first hand opportunity to

consider the role and significance of

this motion in making his ruling. In my

judgment, it had little to do with the

final outcome except perhaps to "narrow

the issue in the case" as found by Judge

Merritt. I would therefore on remand to

the district court allow that court to

determine on further consideration what

portion of the hours spent on the summary

judgment should be allowed to Mr. Belton

for his services after taking into

account the rationale expressed by this

court herein.

29a

APPENDIX A

Federal Statutes Authorizing the

Award of Attorney Fees

Act to Prevent Pollution from Ships, 3

U.S.C. § 1910(d)

Age Discrimination Act of 1975 (as

amended by Pub.L. 95-478, § 401) U.S.C.

§ 6104(e)

Age Discrimination in Employment Act of

1967, 29 U.S.C. § 626(b)

Agricultural Unfair Trade Practices, 7

U.S.C. § 2305(a), (c)

Alaska Native Claims Settlement Act, 43

U.S.C. § 1619 j

Alien Owners of Land, 48 U.S.C. § 1506

Atomic Energy Act of 1954, 42 U.S.C.

§ 2184

Bank Holding Company Act, 12 U.S.C.

§ 1975

Bankruptcy Act, 1 U.8.¢. §§ 309,

205(c)(12), 632, 641, 642, 643, 644,

1975

Bankruptcy Reform Act (Pub.L. 95-598), 11

U.S.C. §§ 303(i), 330(a), 363(n),

503(b)

30a

Black Lung Benefits Act, 30 U.S.C.

§ 932(a) :

Civil Rights Act of 1964, Title II, 42

U.S.C. § 2000a-3(b)

Civil Rights Act of 1964, Title VII, 42

U.S.C. § 2000e-5(k)

Civil Rights Attorney's Fees Awards Act

of 1976, 42 U.S.C. § 1988

Civil Service Reform Act of 1978 (Pub.L.

95-454, §§ 205, 702), 5 U.S.C.

§§ 5596(b)(1), 7701(g)

Clayton Act, 15 U.S.C. § 15

Clean Air Act (as amended by Pub.L. 95-

95), 42 U.S.C. §§ 7413(b), 7604(d),

7607(f), 7622(b)(2)(B), (e)(2)

Coal Mine Safety Act, 30 U.S.C.S § 938(c)

Coast Guard Act, 14 U.S.C. § 431(c)

Commodity Futures Trading Commission Act

of 1974, 7 U.S.C. § 18(f), (g)

Communications Act of 1934, 47 U.S.C.

§§ 206, 407

Condominium and Cooperative Abuse Relief

Act of 1980, 15 U.S.C. §§ 3608(d),

3609, 3611

Consumer Leasing Act, 15 U.S.C.

§ 1667b(a)

3ia

Consumer Product Safety Act, 15 U.S.C.

§§ 2060(c), 2060(f), 2072(a), 2073

Contract Disputes Act of 1978, 41 U.S.C.

§ 601 et seq.

Counsel's Liability for Excessive Costs,

28 U.S.C. § 1927

Criminal Code, 18 U.S.C. §§ 3006A(dqd),

3495

Deep Seabed Hard Mineral Resources Act

30 U.S.C. § 1427(c)

Deepwater Ports Act, 33 U.S.C. § 1515(d)

Economic Opportunity Act of 1964, 42

U.S.C § 2701 et seq.

Electronic Fund Transfer Act (Pub.L. 95-

630, Title XX), 15 U.S.C. § 1693m(a),

(f)

Employee Retirement Income Security Act,

29 U.S.C. § 1132(g)

Endangered Species Act, 16 U.S.C

§ 1540(g) (4)

Energy Policy and Conservation Act, 42

U.S.C. § 6305(d)

Energy Reorganization Act of 1974 (as

amended by Pub.L. 95-601), 42 U.S.C.

§§ 5851(b)(2)(B), (e)(2)

32a

Equal Access to Justice Act, 5 0.$.C.

§ 504, 28 U.S.C. § 2412 :

Equal Credit Opportunity Act, 15 U.S.C.

§ 1691e(d)

Ethics in Government Act of 1978 (Pub.L.

95-521, § 710(d)), 2 U.S.C. § 1692k

Fair Credit Reporting Act, 15 U.S.C.

§§ 168in, oO

Fair Debt Collection Practices Act

(Pub.L. 95-109, § 813-(a)), 3o Useses

§ 1692k

Fair Housing Act of 1968, 42 U.S.C.

§ 3612(c)

Fair Labor Standards Act, 29 U.S.C.

§ 216(b).

Federal Contested Electron Act, 2 6. 8.@.

§ 396

Federal Credit Union Act, 12 U.S.C.

§ 1786(0)

Federal Deposit Insurance Act, 12 U.S.C.

§ 1818(n)

Federal Employment Compensation for Work

Injuries, 5 U.S.C. § 8127

Federal Mine Safety and Health Act, 30

U.S.C. § 815(c)(3) (added by Pub.L. 95-

164), 30 U.S.C. § 938(c)

33a

Federal Power Act (as amended by Pub.L.

96-617, §$ 212)... 16 U.3.8. §. @2Z8ei-

(b) (2)

Federal Rules of Appellate Procedure,

App. Rule 38 (28 U.S.C.)

Federal Rules of Civil Procedure, App.

Rules 37, 56(g), (28 U.S.C.)

Federal Trade Commission Improvement Act,

15 U.S.C. §§ S7a(h) (1)

Federal Water Pollution Control Act

Amendment of 1972, 33 U.S.C. § 1365(d)

Fees and Costs, 28 U.S.C § 1912, § 1927

Foreign Intelligence Surveillance Act of

1978 (Pub.L. 95-511, § 110), 50 U.S.C.

§ 181.

Freedom of Information Act, 5 U.S.C.

§ 552(a) (4) (E)

Government in the Sunshine Act, 5 U.S.C.

§ 552(b) (i)

Guam Organic Act (Pub.L. 95-134, § 204),

48 U.S.C. § 1424c(f)

Hart-Scott-Rodino Antitrust Improvements

Act of i976, 16 U.3.G. $§ it8e(a)(2),

(d)(2), 26

Hobby Protection Act, 15 U.S.C. § 2102

Home Owners Loan Act of 1933, 12 U.S.C.

§ 1464(d) (8)

- \

34a

Housing and Community Development

Amendments of 1979 (Pub.L. 96-153,

§ 405), 15 U.S.C. § 1709

Indian Claims Commission Act, 26 U.8.C.

§§ 70n, 70V-3(a), (added by Pub.L. 95-

69)

Indian Contract Act, 25 U.S.C. §§ 81, 82,

82(a), 85

Indian Reorganization Act, 25 U.S.C.

§ 476

International Claims Settlement Act, 22

6.8.6. $6 262316). 2633(3), 1643p).

1642(m), 1643(k), 1644(1)

Interstate Commerce Act, 49 U.S.C.

§§ 11705(d)(3), 11708(c), 11710(b),

11711(d), 11711(e)

Japanese-American Evacuation Claims Act

of 1948, 50 U.S.C. App. § 1985

Jewelers Hall-Mark Act, 15 U.S.C.

§ 298(b), (c), (da)

IJury System Improvements Act of 1978

(Pub.L. 95-972, § 6), 28 U.S.C.

§ 1875(d) (2)

Labor-Management Reporting and Disclosure

Act of 1959, 29 U.S.C. §§ 431(c),

§01(b) —

Legal Services Corporation Act, 42 U.S.C.

§ 2996e(f)

35a

Longshoremen's and Harbor Workers'

Compensation Act, 33 U.S.C.

§§ 465, 399(e)(1), 928.

Magnuson-Moss Warranty Act, 15 U.S.C:

§ 2310(d) (2)

Marine Protection, Research, and

Sanctuaries Act, 33 U.S.C. 1415(g) (4)

Merchant Marine Act of 1936, 46 U.S.C.

§ 1227

Mexican-American Chamizal Convention Act

of 1946, 22 U.35.C. § 277d-21

Military Personnel and Civilian Employees

Claims Act of 1964, 31 U.S.C. § 243

Mobile Home Construction and Safety

Standards Act, 42 U.S.C. §§ 5412(b)

Motor Vehicle Information and Cost

Savings Act, 15 U.S.C. §§ 1918(a),

1989(a)

National Guard Act, 32 U.S.C. § 334

National Historic Preservation Act, 16

U.S.C. § 470W-4

National Housing Act, 12 U.S.C.

§ 1730(m) (3)

National Traffic and Motor Vehicle Safety

Act of 1966, 15 U.S.C. § 1400(b)

Natural Gas Pipeline Safety Act, 42

U.S.C. § 1686(e)

36a

Noise Control Act of 1972, 42 U.S.C.

§ 4911(d)

Norris-LaGuardia Act, 29 U.S.C. § 107(e)

Ocean Dumping Act, 33 U.S.C. § 1415(g) (4)

Ocean Thermal Energy Conservation Act of

1980, 42 U.S.C. § 9124(d)

Omnibus Crime Control and Safe Streets

Act of 1968, 42 U.S.C. § 3766(c) (4) (B)

Organized Crime Control Act of 1970, 18

U.S.C. § 1964(c)

Outer Continental Shelf Lands Act (as

amended by Pub.L. 95-372), 43 U.S.C.

§ 1349(a)(5), (b)(2)

Packers and Stockyards Act, 7 U.S.C.

§ 210(f) ©

Patent Infringement, 32 U.S.C. § 285

Perishable Agricultural Commodities Act,

7 U.S.C. § 499g(b), (Cc)

Petroleum Marketing Practices Act (Pub.

L. 95-297, § 105(d), 15 U.S.C.

§ 2805(d)(1), (3)

Plant Variety Act, 7 U.S.C. § 2565

Privacy Act, 5 U.S.C. § 552a(g)(2)(B),

(3)(B), (4)

Powerplant and Industrial Fuel Use Act of

1978, 42 U.S.C. § 8435(d)

37a

Public Utility Holding Company Act of

1935, 15 U.S.C. § 79g(d)(4), 79j(b) (2)

Public Utility Regulatory Polices Act of

1978 (Pub.L. 95-617, § 122), 16 U.S.C.

§ 2632(a)

Railroad Revitalization and Reform Act,

45 U.S.C. § 854(g)

Railroad Unemployment Insurance Act, 45

U.S.C. § 355(i)

Railway Labor Act, 45 U.S.C. 153(p)

Real Estate Settlement Procedures Act of

1974, 12 U.S.C. § 2607(d)

Rehabilitation Act of 1973 (as amended by

Pub.L. 95-602, § 120), 29 U.S.C.

§ 794a(b)

Right to Financial Privacy Act of 1978

(Pub.L. 95-630 §§ 1117(a), 1118), 12

U.S.C. §§ 3417(a), 3418

Safe Drinking Water Act, 42 U.S.C.

§§ 300j-8(d), 9(1)(2)(B) (ii)

Securities Act of 1933, 15 U.S.C.

§ 77k(e)

Securities Exchange Act of 1934, 15

0.$.C. § Tre)

Securities Investor Protection Act, 15

U.S.C. § 7T8eee(b) (Pub.L. 95-283,

§ 7(b)(5))

38a

Servicemen's Group Life Insurance Act, 38

U.S.C. § 784(g)

Sex Discrimination Prohibition (Title IX

of Pub.L. 92-318), 20 U.S.C. § 1681 et

seq. See 42 U.S.C. § 1988

Social Security Act Amendments of 1965,

42 U.S.C. § 406

Solid Waste Disposal Act, 42 U.S.C.

§§ 6971(c), 6972(e)

State and Local Fiscal Assistance

Amendment of 1976, 31 U.S.C. § 1244(e)

Surface Mining Control and Reclamation

Act (Pub.L. 95-87), 30 U.S.C §§ 1270(d)

(f), 1275(e), 1293(c)

Tax Reform Act of 1976, 26 U.S.C.

§ 6110(1i)(2)

Toxic Substances Control Act, 15 U.S.C.

§§ 2605(c)(4)(A), 2618(d), 2619(c)(2),

2620(b)(4)(C), 2622(b) (2) (B)

Trademark Act, 15 U.S.C. § 1117

Trading With the Enemy Act, 50 U.S.C.

App. § 20

Trust Indenture Act, 15 U.S.C.

§ 77000(e), www(a)

Truth in Lending Act, 15 U.S.C.

§ 1640(a)

Unfair Competition Act, 15 U.S.C. § 72

Uniform Relocation Assistance and Real

39a

Uniform Relocation Assistance and Real

Property Acquisition Policies Act, 42

U.S.C. § 4654

United States as a Party, 28 U.S.C.

§ 2412

Veterans' Benefits Act, 38 U.S.C.

§ 3404(c)

Voting Rights Amendment of 1975, 42

U.S.C. § 19731(e)

War Hazards Compensation Act, 42 U.S.C.

§ 1714

Water Pollution Prevention and Control

Act, 33 U.S.C. §§ 1355(da), 1367(c)

Wire Interception Act, 18 U.S.C. § 2520

40a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MARY LOUCILLE CO'ILTER )

)

vs. ) NO. 3-83-0668

)

STATE OF TENNESSEE; )

DEPT. OF TRANSPORTATION, )

ET AL. )

MEMORANDUM

The leading trial attorney in this

case was Aleta G. Arthur, who has been

allowed a fee for her services at the

rate of $85 per hour and which resulted

in the allowance of a fee of $13,000.

Robert Belton, a member of the staff of

Vanderbilt University Law School, has

likewise filed a petition for services

rendered in said case and requested fees

4la

for services as follows:

for services rendered in 1982, $110

per hour;

for services rendered in 1983 and

1984, $125 per hour.

The first thing that strikes the

court as being unusual in this case is

that in the case of Perkins v. State

Board of Education, Case No. 77-3552,

Belton filed a petition and affidavit

with this court on October 15, 1984, in

which he indicated that for services

rendered in 1982, his fee was $85 per

hour and for 1983 and 1984 it was $120

per hour. It seems to the court when

affidavits are submitted in cases for

services rendered in the same period of

time they should at least be consistent.

This court will treat the attorney fee

petition accordingly.

42a

If there ever was a simple case

filed siten Title VII of the Civil Rights

Act, this is the case. The case was

tried in less than half a day, and the

court decided the case from the bench.

In the preparation of the case four

depositions were taken, and several form

interrogatories and requests for

admissions were filed. Mr. Belton has

asked for fees totaling $22,000, and the

lead counsel has requested and received a

fee of $13,000. The court is aware that

Mr. Belton is a competent attorney.

However, the court is likewise aware that

Mrs. Arthur is an excellent trial

attorney with years of experience as an

assistant United States Attorney and in

private practice. She has poise and

commands great respect in addition to

being an excellent attorney. Therefore,

43a

Mr. Belton does not have any more ability

as far as the trial of this type of case

is concerned than

Mrs. Arthur. The question is what is a

reasonable fee and what amount of time

was properly spent.

The first item that causes the court

some pause is that Mr. Belton claimed a

total of 16 hours and 45 minutes for the

preparation, filing and argument of a

motion for summary judgment. On the

face, it seems this is a Title VII case.

It would be a most unique case, one of

which this court is unaware, when a

motion for summary judgment would be

proper in a Title VII case. Mrs. Coulter

requested a hearing which was granted,

and the motion for summary judgment, its

preparation and argument and the hearing

thereof was a motion in futility. The

44a

court will not allow the fee for those

services to be charged against the

defendant. This is not a paper lawsuit.

Therefore 16 hours and 45 minutes will be

deleted from the total hours claimed.

In connection with the stipulation

of fact and pretrial conference,

Mr. Belton claimed 44 hours and 10

minutes. Keep in mind that a great

number of these hours must be dueplicates

(sic) of the hours claimed by Arthur, and

even without that being so, this is an

inordinate amount of time in connection

with a simple lawsuit in a matter in

which Belton is an expert in the field

and a professor handling the subject of

discrimination at Vanderbilt Law School.

The court will reduce those hours by 22

hours and 5 minutes.

45a

In connection with the depositions

taken, he claimed 20 hours and 5 minutes,

and the depositions were taken by Aleta

Arthur. As stated before, Aleta Arthur

is a perfectly competent trial attorney

and there was no need for Mr. Belton to

be present at the taking thereof.

However, the court will allow those hours

because Mrs. Arthur may have felt better

with someone holding her hand.

Another item is trial preparation,

18 hours. Mrs. Arthur had trial

preparation. The court feels that 9

hours is sufficient time for trial

preparation in a simple case of this

nature. Therefore, the court will delete

9 hours.

In connection with the application

for fee, Mr. Belton has listed

approximately 13 hours. Three hours are

46a

ee ee

claimed for research, drafting and

preparation of affidavits from Ashe and

Robinson. Another 3 hours are claimed in

connection with drafting and asking the

court to take judicial notice of certain

items, etc. The court is of the opinion

that this is unreasonable and therefore

reduces this amount to 5 hours.

The total number of hours claimed is

185.59. The total number of hours

deleted is 55.83.

In accordance with the memorandum

filed in the Perkins case, the court will

allow $85 per hour for the 4.25 hours

performed in 1982, the court finding that

this is a reasonable charge for the

services rendered at that time. As for

the hours in 1983 and 1984, a fee of $110

per hour will be allowed, the court

finding this a reasonable fee per hour

47a

for the services rendered in accordance

with Northcross v. Board of Education,

611 F.2d 624 (6th Cir. 1979), cert.

denied 447 U.S. 911, 100 S. Ct. 1999, 64

L. Ed. 2d 862 (1980), and Hensley v.

Eckerhart, 76 L. Ed. 2d 40 (1983).

Ls/

L. CLURE MORTON

SENIOR U. S. DISTRICT JUDGE

48a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TEN: ESSEE.

NASHVILLE DIVISION

MARY LOUCILLE COULTER

VS. NO. 3-83-0668

STATE OF TENNESSEE;

DEPT. OF TRANSPORTA-

TION, ET AL.

ORDER

In accordance with the memorandum

contemporaneously filed, it is ORDERED

that an attorney fee in the amount of

FOURTEEN THOUSAND ONE HUNDRED SIXTY-SEVEN

AND 35/100 ($14,167.35) DOLLARS be

awarded to Robert Belton, Esq.

Ls/

L. CLURE MORTON

SENIOR U. S. DISTRICT JUDGE

49a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MARY LUCILLE COULTER,

Plaintiff

vs. No. 3-83-

]

] 0668

]

] JUDGE L.

] CLURE MORTON

]

STATE OF TENNESSEE,

DEPARTMENT OF TRANSPOR-

TATION,et al.,

Defendants

AGREED MEMORANDUM

The plaintiff, Mary Lucille Coulter,

a female citizen of the United States,

filed this action for relief pursuant to

Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§ 2000e et

seq. The plaintiff is an employee of the

Department of Transportation of the State

of Tennessee ("Transportation"), and she

50a

alleged that Transportation and the other

defendants have discriminated and

continued to discriminate against her

because of her sex in rejecting her

application for a promotion to the

position of Regional Office Manager. The

plaintiff proceeded under the disparate

treatment theory of discrimination

established by the courts.

This case came on to be heard on

July 2, 1984. The plaintiff introduced

into eviduues the Stipulations of Fact

entered into between the parties and

rested her case. The defendant called as

witnesses James Phillip Davis, John Burke

and James Harper. At the conclusion of

the presentation of the defendants' case,

the Court ruled from the bench, on the

basis of the testimony of the witnesses,

statements of counsel, and the entire

5la

record in this cause, that the plaintiff

had carried her burden of proving by the

preponderance of the evidence that

defendants had discriminated against the

plaintiff on the basis of her sex, in

violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e, et seq., by failing to promote

her to the position of Regional Office

Manager within Transportation and that

she was entitled to appropriate relief.

United States Postal Services Board v.

Aikens, 103 S.Ct. 1478, 75 L.Ed.2d 403

(1983); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 101

$.ct. 1069, 67 L.B@.2a 207 (1961);

McDonnell Douglas v. Green, 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The parties have agreed to the

following relief to be accorded to the

§2a

plaintiff as the prevailing party in this

case:

The plaintiff shall be

promoted, as of August 1, 1984,

to the Peel. ts on of

Administrative Services

Assistant 3, the same position

held by Gilford Walker, and

shall be placed at the same

grade and pay level as Gilford

Walker. Due to a statewide

reclassification, the title

"Regional Office Manager" no

longer exists within the State

personnel system.

The defendants will pay to the

plaintiff as back pay, plus

interest, from July 1, 1982

through August 1, 1984, the sum

of One Thousand Three Hundred

53a

Fifty One Dollars and Ninety

Four Cents ($1,351.94), to be

paid to the plaintiff on

January 2, 1985.

The defendants will reimburse

the plaintiff for the following

expenses:

Filing fee $ 60.00

Deposition

costs 889.25

Xeroxing

expenses 340.85

Long distance

telephone 2.83

$1,292.63

The defendants shall credit the

plaintiff with 31.8 hours of

comp time for time spent

consulting with attorneys, at

depositions and in court in

connection with her case.

54a

S. The defendants shall pay to

Aleta G. Arthur her reasonable

attorney's fee of Thirteen

Thousand Six Hundred Twenty One

Dollars and Twenty Five Cents

($13,621.25).

The matter of reasonable attorney's

fees to be paid to plaintiff's other

counsel, Robert Belton, is reserved for

later determination by the Court.

55a

An appropriate order shall

entered.

/s/

L. CLURE MORTON

APPROVED FOR ENTRY:

/s/

ALETA G. ARTHUR

[s/

ROBERT BELTON

Ls/

MICHAEL L. PARSONS

56a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MARY LUCILLE COULTER

Plaintiff

vs. No. 3-83-0668

JUDGE L. CLURE

MORTON

STATE OF TENNESSEE,

DEPARTMENT OF TRANS-

]

PORTATION, et al. ]

]

Defendants

ORDER

In accordance with the Agreed

Memorandum, judgement is hereby entered

for the plaintiff, Mary Lucille Coulter,

and it is hereby ORDERED that she be

granted the relief set out therein.

/s/

L. CLURE MORTON

57a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.