# Amicus Curiae Brief — Blanchard v. Bergeron

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 87

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1429%3A6. Public record. Not legal advice.