Amicus Curiae Brief — Blanchard v. Bergeron

Vy ——

No. 87-1485 _~

+ —

In the

Supreme Court of the United States

OCTOBER TERM, 1988

ARTHUR J. BLANCHARD,

Petitioner,

VERSUS

JAMES BERGERON, et ai.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN SUPPORT OF PETITIONER FOR AMICI

CURIAE ADVOCACY CENTER FOR ELDERLY AND

DISABLED, APPELLATE ADVOCACY PROGRAM,

BLS LEGAL SERVICES, CORP., INSTITUTE FOR

PUBLIC REPRESENTATION, LOUISIANA TRIAL

LAWYERS ASSOCIATION, JAMES GREEN, JAMES

KELLOGG, AND GERALD LOPEZ

M. DAVID GELFAND*

TERRY E. ALLBRITTON

Appellate Advocacy Program

Tulane Law School

6801 Freret Street

New Orleans, LA 70118

(504) 865-5995

Counsel for Amici Curize

* Counsel of Record

A B Letter Service, Inc., 327 Chartres St... New Orleans, La. (504) 581-5555

TABLE OF CONTENTS

Page

Table of Contents... ..cceceenececes i

Table of Authorities............... iii

Tnterest CF AMIGL.ccccccccccccesece 1

Summary Of Argument.......eeeeeeees 3

Argument.....ceees TEEEEETELELELELE 7

I. TREATING A CONTINGENCY FEE

CONTRACT AS AN AUTOMATIC CAP IN

CIVIL RIGHTS LITIGATION IS

CONTRARY TO CONGRESSIONAL

INTENT, INCONSISTENT WITH

DECISIONS OF THIS AND OTHER

COURTS, AND AGAINST PUBLIC

POLICY. wc ccccccccccccccssscsecs

A. The Decision Below is

Contrary to the

Congressional Intent and

Purposes Behind the Civil

Rights Attorney's Fees

Awards Act and the Civil

RAIGNES ASES. cccccccccccccces

B. The Decision Below is

Inconsistent with the

Decisions of this Court

and is Totally Contrary to

Rulings of the Other

Courts of Appeals...........

i

C. Applying the Approach of TABLE OF AUTHORITIES

the Court Below to the

Award of Attorney's Fees CASES PAGE

Would Have Severe |

Detrimental Consequences...... 20

Abrams v. Baylor College of Medicine,

805 F.2d 523 (5th Cir.1986)......... 38

II. FEES FOR LAW STUDENTS, LAW CLERKS,

AND PARALEGALS ARE APPROPRIATE

DESIRABLE, AND NECESSARY IN CIVIL Allen v. United States Steel Corp.,

RIGHTS DEPTORB ccceeee eee es eeseese 28 665 F.2d 689 (5th Cir. A9B2) cccccccce 33

A. This Issue, Raised Only

Ambiguously By the Court of Blanchard v. Bergeron,

Appeals, Should Not Form the S3i F.24 S63 (Sth Cir.1987)...cccccce 16,18,

Basis for Action By This 28

COMM cc cece e ee eeeeesessesesseses 28

B. The Award of Fees for Legal Blum v. Stenson,

Support Personnel is in 465 U.S. 886 CEOSE) ccocccccccccce eevee 21,25,

Accordance with Legislative 47

History and We]1-Established

Caselaw under 8 1988 and Other Bogosian v. Gulf Oil Corp.,

Fee Shifting Provisions....... 35 621 F. Supp. 27 (E.D. Pa. 1985)...... 31

Cc. Separate Billing for Legal |

Support Personnel Keeps the Level Brantley v. Surles,

of Fee Awards Reasonable, and is 804 F.2d 321 (5th Cir. 1986) wccccccce 13

Especially Necessary in Civil

Rights Litigation........+++++ 39

City of Detroit v. Grinnell Corp.,

CONCLUBION. ccccccccccccccsecssece 48 495 F.2d 448 (2d Cir. 1974) we ceeecces 30

ii City of Riverside v. Rivera,

477 U.S. S61 (1966) .ccccccccccesvvecce 10,11,

passim

iii

City of Springfield v. Kibbe,

107 §.Ge-« 1114 (1987) . ce eee reeveesees 34

Concorde Limousines, Inc. v. Moloney

Coachbuilders, Inc., 835 F.2d 541

(5th Cir. 1987). cc ee cee ener eresesees 30,33

Cooper v. Singer,

719 F.2d 1496 (10th Cir 1983)........ 13,17,

26,27

Copeland v. Marshall,

641 F.2d 880 (D.C. Cir. 1980)......++. 42

Copper Liquor, Inc. v. Adolf Coors Co.,

624 F.2d 575 (5th Cir. 1980)......... 13

Dependahl v. Falstaff Brewing Corp.,

496 F. Supp. 215 (E.D. Mo. 1980),

aff'd, 653 F.2d 1208 (8th Cir.),

cert. denied, 454 U.S.968(1981)...... 31

DiGennaro v. Bowen,

666 F. Supp. 426 (E.D.N.Y. 1987)....- 46

Evans v. Jeff D.,

475 U.S. 717 (1986) ..-eeeeees weETtTt 24

Fleet Inv. Co. v. Rogers,

620 F.2d 792 (10th Cir. 1980)........ 12

iv

|

|

|

Garmong v. Montgomery County,

668 F. Supp. 1000 (S.D. Tex 1987)....

Hamner v.

769 F.2d 1404 (9th Cir.

Rios,

Heiar v. Crawford County,

746 F.2d 1190 (7th Cir.

cert. denied, 472 U.S.

Henry v. Webermeier,

738 F.2d 188 (7th Cir.

Hensley v. Eckerhart,

424 TRE 666660660666 066686

461 U.S.

Jacobs v. Mancuso,

825 F.2d 559 (lst Cir.

1965S) ccccceoce

1984),

1027 (1985)...

SUES) cocccscoser

SOS TT) ccoccceces

Johnson v. Georgia Highway Express,

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

Jones v. Armstrong Cork Co.,

630 F.2d 324 (5th Cir.

SPO ecccccces

Jordan v. United States Dep't of

Justice,

1982)..

691 F.2d 514 (D.C.

Cir.

45

19,24

32

30,39

25,42

30,41

16,17,

40,41

33

31,32,

46

| Paul v. Davis

Keith v. Volpe | .

833 F.2d 850 (9th Cir. 1987) ~.ceeeseces 31 . 424 U.S. 693 cree 666066606 604068 0% 22

Pennsylvania v. Delaware Valley

i '

Kerr v. Quinn, Citizens' Council for Clean Air,

692 F 2a 875 (2d cir. 1982) ~..ceevevees 25 107 S.ct. 3078 TPP oebeseesesessece + rr

' 4

Pharr v. Hous. Auth.,

Lamphere v. Brown University, 704 F.2d 1216 (llth Cir. 1983)....... 18,19

610 F.2d 46 (lst Cir. 1979)....eeeee+- 38

Quesada v. Thomason,

Lewis v. Coughlin 850 F.2d 537 (9th Cir. 1988)......... 11,12,

. ,

801 F.2d 570 (2d Cir. 1986)...-e-eeee0- 13

) Richardson v. Byrd,

v. Mississippi 709 F.2d 1016 (5th Cir.), cert.

heutoteon a. SUMMER te co cceveccssesns 36 denied, 464 U.S. 1009 (1983)......... 33

i Ramos v. Lamn,

meet Y- enusaueas 24,32 713 F.2d 546 (10th Cir. 1983)........ 31,36

ht Club, Inc. v. Carey | Roe v. City of Chicago,

Ok. Oe cer 32 ; 586 F. Supp. 513 (N.D. Ill. 1984).... 38

ee

thcross v. Bd. of Educ. of Memphis City Sargeant v. Sharp,

"Ganenle, 611 F.2d 624 (6th Cir. 1979), 579 F.2d 645 (lst Cir. 1978)......... 1°

cert. denied, 447 U.S. 911 (1980)..... 30

Sellers v. Delgado Community College,

839 F.2d 1132 (Sth Cir. 1988)........ 23

vi

vii

Sisco v. J.S. Alberici Constr. Co., Other Page

733 F.2d 55 (8th Cir. 1984) .cccccceee 113,43

Senate Report No. 94-1011,

South Carolina v. Baker, in 1976 U.S. CODE CONG. & ADMIN.

108 Be 279 (1987) . cc ccccccccveeese 36 NEWS i + in ee ee eh bbe ein one 8,9

*-e @ @e@# @ € , ,

36,44

Sullivan v. Crown Paper Bd. Co., S. Nahmod, Civil Rights and Civil

719 F.2d 667 (3d Cir. 1983).......... 12,17, Liberties Litigation (2d ed. 1986 &

26 Supp. DTT eee ehbSEbEOS be eeundeacec 16

Tucker v. Phyfer,

819 F.2d 1030 (llth Cir. 1987)....... 19

Ursic v. Bethlehem Mines,

719 F.2d 670 (3d Cir. 1983).......2.24+ 42

Vaughns v. Bd. of Educ. of Prince

George's County, 770 F.2d 1244

(4th Cir. 1985) ~cccccceccceccsccesecs 30

Walters v. Atlanta,

803 F.2d 1135 (llth Cir. 1986)....... 19,31

Statutes Page

43 0.8.€. B 1903 (IOSB).cccccccccccses 7 ix

42 U.S.C. $ 1988 (1982).............+. 1,5,

viii

INTEREST OF AMICI

The Advocacy Center for the Elderly

and the Disabled is a nonprofit legal

organization that provides legal

services to disabled individuals

throughout Louisiana. The Center

regularly seeks attorney's fee awards in

cases under 8 504 of the Rehabilitation

Act and under the Education é£>r All

Handicapped Children Act of 1975, Pub.

L. No. 94-142. The Appellate Advocacy

Program is a clinical program of Tulane

Law School. The Program will regularly

seek court awarded attorney's fees for

appellate work performed by its faculty

and enrolled students. The BLS Legal

Services Corp. is a corporate entity

under which Brooklyn Law School's

clinical programs operate. The

Corporation has regularly sought and

received court-awarded fees for work

performed by students enrolled in the

Law School's clinical programs. The

Institute for Public Representation is a

clinical program at the Georgetown

University Law Center. The Institute

has sought and received court-awarded

attorney's fees for work performed in

civil rights and Freedom of Information

Act litigation by its staff attorneys

and law students enrolled in its

clinical progran.

James Green, James Kellogg, and

Gerald Lopez are attorneys who regularly

represent civil rights and civil

liberties clients in federal courts in

Louisiana, Florida, New York,

California, and other parts of the

Nation.

SUMMARY OF ARGUMENT

I. The Fifth Circuit panel's use of a

contingency fee agreement as an

automatic upper cap on the fees awarded

under § 1988 is contrary to

Congressional intent, inconsistent with

the decision of this and other Courts,

and would have severe negative

repercussions.

Many civil rights cases address

viclations of constitutional rights

which are non-pecuniary in nature and

which do not produce large damages

awards. Limiting plaintiffs' recovery

of attorney's fees to a percentage of

these small awards would make it

difficult for many citizens to vindicate

their civil rights.

This Court has rejected the argument

that statutory fee awards should be

modeled after contingency fee

agreements. Likewise, the great weight

of authority among the Courts of

Appeals, including the Fifth Circuit,

discounts the use of contingency fee

agreements in awarding statutory fees.

Imposition of an automatic

contingency fee cap weuld be unfair to

plaintiffs, by allowing defendants'

attorneys to litigate tenaciously over

small damages awards, while plaintiffs’

attorney's fees would be limited to a

percentage of those damages awards. The

cap would also represent a windfall, not

intended by Congress, to defendants in

those cases most likely to result in a

monetary award to plaintiffs. The fee

cap would also force the parties to

focus too heavily upon increasing the

size of damages awards, rather than upon

obtaining the most effective declaratory

or injunctive relief.

II. The panel below also was

incorrect in suggesting that it could

not award separate compensation for

paralegals and law clerks. This Court

should not base a decision with

potentially broad implications upon the

panel's ambiguous statement.

This Court and ten of the Courts of

Appeals have approved separate

compensation for legal support personnel

and the Congressional intent behind §

1988 is clear. Under 8 1988, civil

rights plaintiffs are to be treated the

same as the fee-paying clients of

traditional law firms conducting complex

federal litigation.

Separate compensation for legal

support personnel, at an hourly rate

lower than that appropriate for members

of the bar, is a traditional practice

which keeps down the cost of legal

representation. Separate compensation

is especially necessary in enforcing

civil rights. To conduct this important

litigation, law firms, public interest

organizations, and law school clinical

education programs often must rely

heavily on legal support personnel.

Separate compensation for legal support

personnel should therefore be upheld for

civil rights plaintiffs.

et EC A —_—

ARGUMENT

I. TREATING A CONTINGENCY FEE CONTRACT

AS AN AUTOMATIC CAP IN CIVIL RIGHTS

LITIGATION IS CONTRARY TO

CONGRESSIONAL INTENT, INCONSISTENT

WITH DECISIONS OF THIS AND OTHER

COURTS, AND AGAINST PUBLIC POLICY.

A. The Decision Below is Contrary

to the Congressional Intent and

Purposes Behind the Civil Rights

Attorney's Fees Awards Act and

the Civil Rights Acts.

The Civil Rights Attorney's Fees

Awards Act of 1976 provides that "[ijn

any action or proceeding to enforce

(various civil rights acts, including 42

U.S.c. § 1983}, the court, in its

discretion, may allow the prevailing

party, other than the United States, a

reasonable attorney's fee as part of the

costs." 42 U.s.c. 8 1988.

Fee shifting provisions have been

utilized repeatedly by Congress, in

recognition that "private attorneys

general" must undertake much of the

enforcement of the underlying laws. See

Report of the Senate Judiciary

Committee, S.Rep. No 1011, 94th Cong.,

2d Sess. 4, reprinted in 1976 U.S. CODE

CONG. & ADMIN. NEWS 5908, 5912

(hereinafter "Senate Report"). It is

clear that Congress intended a direct

linkage between the enforcement of civil

rights laws and the availability of fee

awards: “fee awards are an integral part

of the remedies necessary to obtain

(full) compliance” with civil rights

laws. Id. at 5 (emphasis added).

Statutory fee shifting is especially

necessary for the enforcement of civil

rights laws.

If private citizens are to be able

to assert their civil rights, and

if those who violate the Naticn's

fundamental iaws are not to proceed

with impunity, then citizens must

have the opportunity to recover

what it cost them to vindicate

these rights in court.

Id. at 2. Fee shifting is essential to

achieving the goals of the

Reconstruction Era civil rights acts:

compensating the victims of civil rights

violations; requiring violators of

constitutional rights to pay for their

violations; and deterring subsequent

unconstitutional acts. "If our civil

rights laws are not to become mere

hollow pronouncements which the average

citizen cannot enforce, we must maintain

the traditionally effective remedy of

fee shifting." Senate Report, p.6.

The instant case involves individual

police misconduct, for which the jury

awarded compensatory and punitive

damages. This is precisely the

situation in which this Court has

found the imposition of damages,

including attorney's fees, to be the

appropriate remedy. "(Tjhe damages a

plaintiff recovers contributes

significantly to the deterrence of civil

rights violations in the future... .-

This deterrent effect is particularly

evident in the area of individual police

misconduct, where injunctive relief

generally is unavailable." City of

Riverside v. Rivera, 477 U.S. 561, 575

(1986) (citation omitted).

Many civil rights cases, however, do

net produce large damages awards. Many

result in only injunctive or declaratory

relief or nominal damages. Hence, this

Court has explicitly rejected any rule

of proportionality (between the relief

obtained and the fees awarded) because

such a rule “would make it difficult, if

10

not impossible, for individuals with

meritorious civil rights claims but

relatively small potential damages to

obtain redress from the courts... .

Congress determined that it would be

necessary to compensate lawyers for all

time reasonably expended." Rivera, 477

U.S. at 578 (relying upon House Report,

Senate Report, and Senate remarks on 8

1988).

Not surprisingly, therefore, the

Courts of Appeals have determined that

treating a contingency fee contract as a

ceiling on statutory attorney's fee

awards “would run counter to the

intention of Congress to encourage

successful civil rights litigation."

Sisco v. J.S. Alberici Constr. Co., 733

F.2d 55, 57 (8th Cir. 1984). Accord

Quesada v. Thomason, 850 F.2d 537,

11

540-41 (9th Cir. 1988) (specifically

rejecting the Fifth Circuit's approach

in the instant case). See also Fleet

Inv. Co. v- Rogers, 620 F.2d 792, 793

(10th Cir. 1980) (fees in odometer

rollback case); Sullivan v. Crown Paper

Bd. Co., 719 F.2d 667, 669 (3d Cir.

1983) (age discrimination in employment

case, relying upon legislative intent

behind § 1988).

B. The Decision Below is

Inconsistent with the Decisions

of This Court and is Totally

Contrary to Rulings of the Other

Courts of Appeals.

As elaborated in Petitioner's Brief,

the other Courts of Appeals have

rejected the approach taken by the Fifth

Circuit panel in the instant case. See,

e.g., Quesada, 850 F.2d at 541 (“We

12

- a TS

conclude that the purposes of section

1988, recent Supreme Court cases, and

our own precedents do not support this

understanding.") (footnote omitted) ;

Lewis v. Coughlin, 801 F.2d 570, 575 (2d

Cir. 1986); Sisco, 733 F.2d at 56-57;

Cooper v. Singer, 719 F.2d 1496, 1503

(10th Cir. 1983) (en banc); Sargeant v.

Sharp, 579 F.2d 645, 649 (lst Cir.

1978).

1. Even other Fifth Circuit panels

ee differ with the panel in the

nstant case. See, e.g., Brantley v.

eat: 804 F.2d 321, 326-27 (5th Cir.

+ Copper Liquor, Inc. v. Adolf Coors

ae F.2d 575, 583 n.14 (5th Cir.

13

Imposition of an automatic cap on

attorney's fees based upon a contingency

fee arrangement also is inconsistent

with this Court's decision in City of

Riverside v. Rivera, 477 U.S. 561

(1986). There, this Court roundly

rejected the argument advanced by

petitioners and the Solicitor General

"that fee awards in damages cases should

be modeled upon the contingent fee

arrangements commonly used in personal

injury litigation." Id. at 573.

Justice Brennan's opinion for a

plurality of 4 members of the current

Court demonstrated that such an approach

“would seriovsly undermine Congress'

purpose in enacting 8 1988," id. at 576,

because such contingency fee

arrangements "would often not encourage

lawyers to accept civil rights cases,

14

which frequently involve substantial

expenditures of time and effort but

produce only small monetary recoveries."

Id. at 577. Justice Powell agreed:

It is clear from the legislative

history that 1988 was enacted

because existing fee arrangements

were thought not to provide an

adequate incentive to lawyers

particularly to represent plaintiffs

in unpopular civil rights cases. I

therefore find petitioners' asserted

analogy to personal injury claims

unpersuasive in this context.

Id. at 586 (Powell, J., concurring in

judgment). Though insisting upon

reasonableness in fee awards, even the

dissent in Rivera announced: "I agree

with the plurality that the importation

of the contingent-fee model to govern

fee awards under § 1988 is not warranted

by the terms and legislative history of

the statute." Id. at 595 (Rehnquist,

J., dissenting). See generally S.

15

Nahmod, Civil Rights and Civil Liberties

Litigation # 1:25 (2a ed. 1986 & Supp.

1987).

The court below sought support for

its novel approach by quoting one

sentence of dictum from Johnson v.

Georgia Highway Express, Inc., 488 F.2d

714, 718 (5th Cir. 1974). See Blanchard

v. Bergeron, 831 F.2d 563, 564 (5th Cir.

1987). The court below plucked, out of

context, a portion of the discussion of

one single factor (of the 12 analyzed by

Johnson). That court then applied that

sentence in a wooden fashion to

foreclose any statutory award above the

contingency agreement level. Yet, the

remainder of the Johnson opinion, the

legislative history of the subsequent

Attorney's Fees Awards Act, and recent

judicial decisions all repeatedly stress

16

flexibility in determining the

reasonableness of the fee award. Hence,

it is not surprising that the Fifth

Circuit panel's overly strict, "one

dimensional" approach has been

specifically rejected by other courts.

See, e.g., Cooper, 719 F.2d at 1500-03;

Sullivan, 719 F.2d at 669.

Even if the dictum from Johnson were

now considered persuasive, it could, at

most, suggest treating a contingency

agreement as but one among several

relevant factors (as the district court

in this case did, see Pet. for Cert. at

13A), rather than as an automatic,

absolute cap on attorney's fees (as the

Fifth Circuit panel did). See, e.g.,

Rivera, 477 U.S. at 574; Sullivan, 719

F.2d at 669 ("At its clearest, the

legislative mandate would therefore have

17

courts consider the existence of a

contingency arrangement, while not

allowing such consideration to thwart

the enforcement of the substantive

statutory rights that gave rise to the

fee award provision."). As Justice

White recently wrote for a plurality

this Court: "At most, therefore, Johnson

suggests that the nature of the fee

contract between the client and his

attorney should be taken into account

when determining the reasonableness of a

fee award. ..." Pennsylvania v.

Delaware Valley Citizens' Council for

Clean Air, 107 S.Ct. 3078, 3085 (1987).

The court below also cited Pharr v.

Hous. Auth., 704 F.2d 1216 (llth Cir.

1983), as support for its novel

approach. See Blanchard, 831 F.2d at

564. However, in Pharr, the Eleventh

18

Circuit actually used the attorney-

client contract as a basis for

increasing the fee award. See Pharr,

704 F.2d at 1218. See also Hamner v.

Rios, 769 F.2d 1404, 1409 (9th Cir.

1985) (so interpreting Pharr).

Furthermore, the Eleventh Circuit

subsequently refused to allow the

determination of a reasonable statutory

fee to be governed solely by contingency

contracts. See Walters v. Atlanta, 803

F.2d 1135, 1152-53 (llth Cir. 1986).

The court there felt that separate

calculation of the statutory fee award

more accurately reflected this Court's

rulings. See generally Tucker vy.

Phyfer, 819 F.2d 1030, 1035-36 n.7 (llth

Cir. 1987).

19

C. Applying the Approach of the

Court Below to the Award of

Attorney's Fees Would Have

Severe Detrimental Consequences.

In addition to the negative

implications for each of the

Congressional purposes discussed in Part

IA, above, adoption of the Fifth Circuit

panel's approach would be severely

unfair to the parties involved in civil

rights litigation.

Salaried public interest litigators,

working for such organizations as the

American Civil Liberties Union, Pacific

Legal Foundation, Mountain States Legal

Foundation, law school clinics, or Legal

Services Corporations often do not

charge their clients any fees at all.

Yet, this Court and lower courts have

repeatedly, and correctly, ruled that

such nonprofit legal services

20

organizations are nonetheless entitled

to statutory fees, calculated by the

usual method (lodestar plus multiplier.

where appropriate). See, e.g., Blum v.

Stenson, 465 U.S. 886, 896-97 (1984).

See also pp. 47-48 of this Brief, below.

The courts have repeatedly rejected any

suggestion that a contract in which the

client is not charged for the legal

representation can serve as an absolute

ceiling for fees. Likewise, a

contingency fee agreement should not be

utilized as) the court below did, i.e. to

award less than the "reasonable" fee

allowed by 8 1988. See generally

Quesada, 850 F.2d at 542-43.

Contingency fee agreements may be

entered into for reasons unrelated to

the anticipated size of a damages award.

A plaintiff may have a state law tort

21

claim pendent to a civil rights claim;

such tied claims are common in cases

involving individual police misconduct,

like the instant case. In these cases,

a contingency agreement could be more

appropriate for the tort claim, as there

probably would be no state fee shifting

provision. The plaintiff could lose on

the civil rights claim, but prevail on

the state tort claim. See Paul v.

Davis, 424 U.S. 693, 699-701 (1976).

The contingency fee agreement covering

the tort claim would provide the only

vehicle for the impecunious plaintiff to

pay his or her legal costs.

Furthermore, the client and attorney

could well intend that the contingency

agreement govern only the tort claim.

They would then rely on § 1988 to govern

the civil rights claim. See Quesada,

22

_

_—— ~~ —

850 F.2d at 542 ("The attorney signs the

[contingency] agreement knowing that

statutory attorneys' fees will be

available.") This acknowledgment that 3

1988 applies to the civil rights claim

would in no way be contrary to the

Congressional goal of enforcing the

civil rights laws. Indeed, such a

bifurcated arrangement as to fees would

keep down the cost of private civil

rights enforcement, and would not

produce a windfall to plaintiffs.

If the approach of the panel below

were adopted, the result would be

illogical and unfair. The Fifth Circuit

has ruled that the fee contract is not

binding upon the trial court, or

defendants, if it involves more than a

“reasonable fee." See Sellers v.

Delgado Community College, 839 F.2d

23

1132, 1141 (5th Cir. 1988). See also

Hamner, 769 F.2d at 1407-10. Further,

under decisions of this Court, the

contract would be abrogated, in whole or

in part, if plaintiffs have rejected a

Rule 68 settlement offer prior to a

trial which produces less relief, see

Marek v. Chesny, 473 U.S. 1 (1984), or

if defendants have made an offer

requiring a fee waiver. See Evans v.

Jeff D., 475 U.S. 717 (1986). If the

decision in the instant case were

allowed to stand, a contingency fee

agreement would be controlling in civil

rights litigation in but a single

situation. The contract could be used

to limit attorney's fees only when

plaintiffs prevail with a small damages

award. Yet, this is precisely the

situation where statutory fees have been

24

ee ee Sen ve

deemed most appropriate. See Rivera,

477 U.S. at 577; id. at 585-86 (Powell,

J., concurring); Kerr v. Quinn, 692 F.2d

875, 877 (2d Cir. 1982); Senate Report,

pp. 2, 5, 6.

The court below is incorrect in

believing that its decision is necessary

to prevent a windfall to plaintiff.

First, any possible windfall would be

prevented by a district court's

calculation of "a reasonable attorney's

fee" under the standards articulated by

this Court in Hensley v. Eckerhart, 461

U.S. 424 (1983), Blum, Rivera, and other

cases. These standards permit only the

award of fees which accurately reflect

the fair value of legal services on

successful claims.

Second, any perceived danger of

double recovery by plaintiff's attorney

25

can be avoided by the procedure and

judicial orders employed by the Third

Circuit and other Courts of Appeals in

similar contingency contract cases. See

Cooper v. Singer, 719 F.2d 1496, 1504,

1506-07 (10th Cir. 1983) (en banc);

Sullivan vy. Crown Paper Bd. Co., 719

F.2d 667, 669-70 (3d Cir. 1983).

Indeed, the unique approach imposed by

the court below actually gives a

windfall to defendants (who have

violated plaintiff's constitutional

rights), based upon nothing more than

the mere fortuity of the particular

arrangement, between plaintiff and his

or her attorney, to which the defendant

is not a party. See Quesada, 850 F.2d

at 543; Sullivan, 719 F.2d at 669 ("Such

a result would also frustrate the

legislative policy objective that the

26

—_ _ - — vy

5 Cm ell

——

fee itself serve as a disincentive to

future discriminatory conduct.")

Third, it would also be severely

unfair for defendants' lawyers, who are

usually paid on a non-contingent basis,

to litigate tenaciously on the merits of

the constitutional claims and on the fee

award issues, anticipating that

plaintiff's attorney could not obtain

any more than a specified proportion of

a small damages award. See Rivera, 477

U.S. at 589-81 n.11l.

Finally, the approach of the court

below would force the parties in civil

rights cases to focus upon increasing

the size of damages awards, rather than

upon obtaining the most effective

declaratory or injunctive relief. See

Quesada, 850 F.2d at 542; Cooper, 719

F.2d at 1503.

27

II. FEES FOR LAW STUDENTS, LAW CLERKS,

AND PARALEGALS ARE APPROPRIATE,

DESIRABLE, AND NECESSARY IN CIVIL

RIGHTS ACTIONS.

A. This Issue, Raised Only

Ambiguously By the Court of

Appeals, Should Not Form the

Basis for Action By This Court.

After holding that a contingency

fee arrangement constituted an automatic

cap on the statutory award of attorney's

fees under 2 1988, see Part I above, the

panel below compounded its error by

disallowing any award for legal support

personnel -- law students, law clerks,

and paralegals. The panel stated:

"Moreover, any hours 'billed' by law

clerks or paralegals would also

naturally be included within the

contingency fee." Blanchard v.

Bergeron, 831 F.2d 563, 564 (5th Cir.

1987). The panel offered no support for

28

ee

|

;

this ambiguous statement.

The issue of separate compensation

for legal support personnel was not

briefed below; the Record regarding i*

is scant at best. It is unclear what

result the panel below would have

reached had there been no contingency

fee agreement in effect. As a result,

this issue has not been given any

independent consideration apart from its

entanglement with the contingency fee

issue.

Amici respectfully submit that

this Court should not speculate on the

meaning of the Court of Appeals’

language, particularly since this issue

comes before this Court in such an usual

posture. This Court should not

necessarily assume that the Fifth

Circuit has adopted a position which

29

apparently diverges radically from the

overwhelming weight of the caselaw.

This Court and at least ten Courts of

Appeals, including the Fifth Circuit,

have allowed separate compensation for

legal support personnel. pee, e.g.,

City of Riverside v. Rivera, 477 U.S.

561, 565, 581 (1986); Jacobs vy. Mancuso,

825 F.2d 559, 563 (lst Cir. 1987); City

of Detroit v. Grinnell Corp., 495 F.2d

448 (2d Cir. 1974); Vaughns v. Bd. of

Educ. of Prince George's County, 770

F.2d 1244, 1245 (4th Cir. 1985);

Concorde Limousines, Inc. vy. Maloney

Coachbuilders, Inc., 835 F.2d 541, 547

n.25 (5th Cir. 1987); Northcross v. Bd.

of Educ. of Memphis City Schools, 611

F.2d 624, 639 (6th Cir. 1979), cert.,

denied, 447 U.S. 911 (1980); Henry v.

Webermeier, 738 F.2d 188, 192 (7th Cir.

30

ee ——————

1984); Dependahl v. Falstaff Brewing

Corp., 496 F. Supp 215 (E.D. Mo. 1980),

aff'd, 653 F.2d 1208 (8th Cir.), cert.

denied, 454 U.S. 968 (1981); Keith v.

Volpe, 833 F.2d 850, 859, 860 (9th Cir.

1987); Walters v. City of Atlanta, 803

F.2d. 1135, 1151 (llth Cir. 1986);

Jordan v. United States Dep't of

Justice, 691 F.2d 514, 522-23 (D.c. Cir.

1982). See also Bogosian v. Gulf Oil

Corp., 621 F. Supp. 27 (E.D. Pa. 1985).

Cf. Ramos v. Lamm, 713 F.2d 546, 558

(10th Cir. 1983) (separately compensable

only if not included in attorney's

hourly rate).

This Court should not reach out to

address this issue in a case with such a

scant Record and in such an ambiguous

posture. Disposition by this Court of

the instant 8 1988 case would have a

31

very broad impact. The caselaw on fee

shifting provisions has developed by

courts liberally borrowing theories and

rules of recovery from one fee shifting

provision to apply to other, similar

provisions. See, e.g., Pennsylvania v.

Delaware Valley Citizens' Council for

Slean Air, 107 S.Ct. 3078 (1987) (Clean

Air Act); Ma.ek v. Chesny, 473 U.S. l,

14, 43 (1985) (Brennan, J., dissenting)

(collecting over 100 fee shifting

provisions); New York Gaslight Club,

Inc. v. Carey, 447 U.S. 54, 70 n.9

(1980) (comparing Title VII to 8 1988);

Heiar v. Crawford County, 746 F.2d 1190,

1203 (7th Cir. 1984) ("age

discrimination cases commonly cite

section 1988 cases on fee questions") ;

Jordan, 691 F.2d 514 (Freedom of

Information Act). Any action in this

32

ae ee ee ee eee

Ne 8 hes Oe in a NE dct ~~

eee pee” tN bh me <

area of the law by this Court should be

founded on more than an ambiguous

statement by a panel aberrational even

from its own Circuit's prior holdings. *

Whether or not this Court upholds

the panel's decision that contingency

fee agreements do serve as an automatic

cap on statutory fees, the issue of fees

for legal support personnel would not be

affected. If this Court were to affirm

the panel below on the contingency fee

2. See, e.g., Richardson v. Byrd,

709 F.2d 1016, 1023 (5th Cir.), cert.

denied, 464 U.S. 1009 (1983); Allen v.

United States Steel Corp., 665 F.2d 689,

697 (Sth Cir. 1982) ("paralegal expenses

are not ‘'costs' within the meaning of

Rule 54(d) [but] are separately

recoverable only as part of a prevailing

party's award for attorney's fees");

Jones v. Armstrong Cork Co., 630 F.2d

324, 325 n.1 (5th Cir. 1980). See also

Concorde Limousines, 835 F.2d at 547

n.25 (Wisdom, J.).

33

agreement issue, there would be no need

to address the issue of separate

compensation for legal support

personnel. If the Court reverses the

decision below, Amici respectfully urge

that the case be remanded to the Court

of Appeals for the Fifth Circuit so that

a concrete Record may be developed on

this and other issues. Cf. Delaware

Valley Citizens' Council, 107 S.Ct. at

3089-91 (O'Connor, J., concurring in the

judgment) (district court must examine

relevant legal market in awarding fees).

Postponement of adjudication of this

issue until properly developed would be

entirely consistent with the prudential

concerns repeatedly expressed by this

Court. See City of Springfield v.

Kibbe, 107 S.Ct. 1114, 1116 (1987)

(dismissing writ of certiorari as

—

NE les 2 ed ed ed eed

improvidently granted); City of

Riverside v. Rivera, 477 U.S. 561, 581

(1986) (Powell, J., concurring).

B. The Award of Fees for Legal

Support Personnel is in

Accordance with Legislative

History and ~~ gy

Caselaw Under 1988 and Other

Fee Shifting Provisions.

If this Court decides to rule on

the issue of separate compensation for

legal support personnel, Amici

respectfully suggest that there can be

but one conclusion -- that separate

compensation is necessary to meet the

goals of 8 1988 and the underlying civil

rights laws.

The Report of the Senate Judiciary

Committee which accompanied the passage

of the Civil Rights Attorney's Fees

Awards Act of 1976 stated plainly: "In

35

computing the fee, counsel for

prevailing parties should be paid, as is

traditional with attorneys compensated

by a fee-paying client, ‘for all time

reasonably expended on a matter'."

Senate Report, p.6 (citation omitted).

Separate compensation for

non-lawyers who have some legal training

(e.g. paralegals, law clerks, law

students) is an "increasingly widespread

custom" in the legal community.

Ramos v. Lamm, 713 F.2d 546, 558-59

(loth Cir. 1983).° For example, it is

3. This Court has recognized that

custom in its exercise of original

jurisdiction, by awarding such separate

compensation for support personnel to

its Special Masters. See, e.g., South

Carolina v. Baker, 108 S. Ct. 279

(1987). See also Louisiana v.

Mississippi, 466 U.S. 921 (1984)

(Burger, C.J., dissenting).

well-known that private law firms hire

36

ea re ee

law students as summer associates. The

time spent on a legal matter by these

"associates" is, of course, billed to

the firm's fee-paying clients.

Increasingly, law students also are

employed and their time billed, during

the academic year, by private law firms

of all sizes. Both practices serve the

legal profession's need for an

apprenticeship progran.

As noted by Petitioner, many courts

have either explicitly addressed the

desirability of separate billing or

have, by awarding such fees, implicitly

endorsed then. See Brief for

Petitioner 16-17, 19. In those few

civil rights cases where fees for legal

support personnel have been denied, the

courts have not found such awards to be

37

per se unreasonable. Rather, the courts

have determined that other factors

militated against such an award in

particular cases.

Indeed, even the rationale of the

few cases that disallow support

personnel fees -- that those fees are

built into the particular attorney's

high hourly billing rate -- has been

4. See, Abrams v. Baylor

College of Medicine, 805 F.2d 528, 535

(Sth Cir. 1986) ("the cost of the

services of support personnel -- such as

paralegals -- was encompassed within the

relatively high hourly billing rate

awarded for the time of the plaintiffs'

attorneys"); Lamphere v. Brown

University, 610 F.2d 46, 48 (lst Cir.

1979) (denying additional fees to

attorneys beyond what paralegals had

already received from attorneys as

payment in the case); Roe v. City of

, 586 F. Supp. 513 (N.D. Ill.

1984) (included in attorney's billing

rates).

38

criticized:

It is impossible to believe that

Congress would have wanted

prevailing parties to get back

their lawyers' .. . expenses . ,

which are included in overhead and

therefore billed as part of the

lawyer's hourly rate... . but not

the expenses .. . often billed

separately to the client.

Henry v. Webermeier, 738 F.2d 188, 192

(7th Cir. 1984) (Posner, J.).

C. Separate Billing for Legal

Support Personnel Keeps the Level

of Fee Awards Reasonable, and is

Especially Necessary in Civil

Rights Litigation.

As noted above, separate

compensation for legal support personnel

is widespread throughout the legal

profession. Much of the work involved

in providing effective legal

representation can be, and is, performed

not by lawyers but by personnel with

specialized legal training: law students

39

in clinical education programs; law

clerks, in both legal service

organizations and private law firms; and

paralegals, who do time-consuming, but

vital, legal research, investigation,

and factual development. Separate

billing is a responsible billing

practice which keeps down the costs of

legal representation, both for the

traditional fee-paying client and for

clients who hope to utilize fee shifting

provisions in pursuing their claims.

The Fifth Circuit itself has

specifically addressed the issue of

separate compensation for legal support

personnel, in the very case on which the

panel below relied -- Johnson v. Georgia

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

Cir. 1974). The Fifth Circuit stated:

It is appropriate to distinguish

between legal work, in the strict

40

ee te Oe Oe

sense, and investigation, clerical

work, compilation of facts and

statistics and other work which can

often be accomplished by

non-lawyers but which a lawyer may

do because he has no other help

available. Such non-legal work may

command a lesser rate.

Id. at 717 (emphasis added). Johnson

recognized (as have many other cases

since) that litigation involves many

tasks which need not be performed by an

attorney, but which nevertheless must be

performed. These tasks, of course, are

to be compensated at lesser rates, as

Johnson suggests, and as other cases

have required. This separate

compensation, however, does constitute

"fees" within the meaning of 8 1988.

The use of support personnel "is to be

encouraged by separate compensation in

order to reduce the time of more

expensive counsel." Jacobs v. Mancuso,

41

825 F.2d 559, 563 (lst Cir. 1987). See

also Ursic v. Bethlehem Mines, 719 F.2d

670, 677 (3d Cir. 1983).

This Court has cautioned with

respect to fee shifting provisions:

"'In the private sector, “billing

judgment" is an important component in

fee setting. It is no less important

nere. Hours that are not properly

billed to one's client also are not

properly billed to one's adversary

pursuant to statutory authority.'"

Hensley v. Eckerhart, 461 U.S. 424, 434

(1983), quoting Copeland v. Marshall,

641 F.2d 880, 891 (D.C. Cir. 1980) (en

banc) (emphasis in original). See also

City of Riverside v. Rivera, 477 U.S.

561, 591 (186) (Rehnquist, J.,

dissenting) (statutory fees must be

determined according to "the traditional

42

PE la ile te a wa

billing practices in the profession [and

as) a fee that would have been deemed

reasonable if billed to affluent

plaintiffs by their own attorneys").

Separate compensation for legal

support personnel is a "traditional

billing practice," and is regularly

utilized by private law firms with their

fee-paying clients. This reasonable

practice helps reduce the cost of legal

representation for all concerned,

including defendants who must pay under

statutory fee shifting provisions,

including 8 1988. Congress plainly

intended that civil rights plaintiffs

utilize the private bar (with its normal

billing practices). Fee shifting

provisions enable "vigorous enforcement

of modern civil rights legislation,

while at the same time limiting the

43

growth of the enforcement bureaucracy."

Senate Report, p.4.

Civil rights cases often are quite

complicated. The Senate Judiciary

Committee compared civil rights actions

to "other types of equally complex

Federal litigation, such as antitrust."

Senate Report, p. 6. Separate

compensation in such complex litigation

is an exercise of sound billing judgment

which reduces the overall cost of

effective legal representation. It

serves the mandates of 8 1988 and of

this Court extremely well.

Furthermore, the use of legal

support personnel is, in many instances,

necessary, for the continuing existence

of nonprofit legal assistance or legal

defense organizations. Public interest

groups, nonprofit law firms, and legal

44

- a eed

D2 te eC ae 1 be

services organizations, with their lower

salary scales for attorneys, too often

are understaffed. Caseloads often are

extremely high. The use of attorneys to

perform paralegal or clerking tasks is a

poor use of limited professional time.

"The employment of [support personnel}

therefore serve[s] an economically

efficient purpose, allowing counsel more

time to pursue traditional strict legal

work." Garmong v. Montgomery County,

668 F. Supp. 1000, 1011 (S.D. Tex.

1987). Legal support personnel are

fundamental if those entities are to

continue their important work.

The clinical education programs at

the Nation's law schools, by definition,

also require the use of other

non-lawyers -- law students. There are

dozens of clinical education programs

45

utilizing (and teaching) law students in

actual litigation. The monies generated

by statutory fees often are essential to

the provision of clinical training and

to the continued development of the

civil rights bar. Fee awards to

clinical programs

may promote the availability of

lower-cost representation, with

salutary effects on the burden of

fee awards, on statutory efforts to

remove barriers to litigation of

meritorious claims, and on the

market forces encouraging

settlement in appropriate cases, as

well as on the quality of legal

education.

Jordan v. United States Dep't of

Justice, 691 F.2d 514, 524 (D.C. Cir.

1982). See also DiGennaro v. Bowen, 666

F. Supp. 426, 432 (E.D.N.Y¥Y. 1987) ("This

court has acknowledged ‘that students in

a clinical program recognized by this

circuit are entitled to an award in

46

Fe a ee)

appropriate circumstances'.").

Congress' intent in enacting 8 1988

is clear -- fee awards shouid be

calculated according to "market rates"

for attorneys engaged in traditional,

complicated federal litigation. In Blum

v. Stenson, 465 U.S. 886, 893-96 (1984),

this Court determined that nonprofit law

firms and public interest legal

organizations should not be treated

differently for purposes of calculating

fee awards. In Blum, this Court

specifically rejected the contention of

the U.S. Solicitor General that

statutory fees should be calculated on

an “actual cost" basis. Id. at 892-93,

895-96. Nor should these firms and

organizations be penalized for their

reliance on practices common in the

traditional bar -- the use of, and

47

separate compensation for, legal support

personnel.

The hourly rates for attorneys in

public interest groups are to be

measured against the "market" for

traditional, for-profit law firms. The

billing practices of public interest

groups also should be measured by the

legal profession's common billing

practices, which include separate

compensation for legal support

personnel.

CONCLUSION

The panel's decision in the instant

case is contrary to the mandates of this

Court, is radically divergent from

decisions of the other Courts of

Appeals, and ill serves the public

policy considerations underlying 42

48

)

|

:

|

u.S.c. § 1988. A contingency fee

agreement should not automatically

determine the level of fee that is

reasonable under § 1988; rather, courts

should apply the factors approved by

Congress when it passed 8 1988.

Furthermore, separate compensation for

legal support personnel is a traditional

practice in the legal profession,

maximizes the use of often-limited

professional time, and reduces the cost

of civil rights litigation.

For the above reasons, Amici, in

support of Petitioner Blanchard, urge

this Court to reverse the decision of

the Fifth Circuit, and remand for

49

further proceedings consistent with this

Court's instructions.

Respectfully submitted,

?

By: M. DAVID GELFAND

Appellate Advocacy Prfgram

Tulane Law School

6801 Freret Street

New Orleans, LA 70118

(504) 865-5995

Counsel of Record for Amici

Curiae

TERRY E. ALLBRITTON, of Counsel

The assistance provided by Alec Chang is

gratefully acknowledged.

50

4. & eas | ew fF + wa

Pie eee et