Petition for Writ of Certiorari — McWherter v. Brooks

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SUPREME COuRT, U Se. Suprame Court, U.S.

(0% PG. 4g54e 1490. FILED

MAR 9 1987

TEN kistininniinnes

JOSEPH F. SPANIOL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1986

fa)

THE GOVERNOR AND ATTORNEY GENERAL

OF THE STATE OF TENNESSEE,

Petitioners,

vs.

LEONARD M. BROOKS, M.D.,

‘ Respondent.

ra’

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

fay

W. J. Mrcuaet Copy

Attorney General and Reporter

State of Tennessee

JoHN Knox WaLKuP

Chief Deputy Attorney General

Frank J. SCANLON

Deputy Attorney General

450 James Robertson Parkway ~

Nashville, Tennessee 37219

(615) 741-1963

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

‘

, -

bd %

.»

‘

QUESTION PRESENTED

In determining an attorney’s fee award under 42

U.S.C. § 1988 or comparable statutes, must the District

Court consider the ‘‘contingeney factor’’ or ‘‘risk’’ under-

taken by plaintiff’s counsel as a basis for upwardly ad-

justing the fee?

TABLE OF CONTENTS

QUESTION PRESENTED

OPINIONS BELOW

JURISDICTION .

STATUTORY PROVISION INVOLVED

STATEMENT OF THE CASE

REASON FOR GRANTING THE WRIT:

THE COURT SHOULD DECIDE THIS CASE

IN TANDEM WITH PENNSYLVANIA, ET AL.

V. DELAWART VALLEY CITIZENS’ COUN-

CIL FOR CLEAN AIR, 8.Ct. NO. 85-5, DECID-

ED IN PART, — U.S. —, RELEVANT ISSUE

REARGUED OCTOBER 15, 1986, WHICH PRE-

SENTS AN ISSUE IDENTICAL TO BOTH

CASES, IN ORDER TO ENSURE THAT THE

SIXTH CIRCUIT DECISION WILL NOT ES-

CAPE THE IMPACT OF THE COURT’S ULTI-

MATE RULING ON THE COMMON, IDENTI-

OAL ISSUS. occa

APPENDIX — eee eeu

age

ow bo bo _ eee

iil

TABLE OF AUTHORITIES

Cases CITED:

Brooks v. Alexander, No. 85-6114 (6th Cir. Dee.

A eat nye etna ean 5, 6, 7

Brooks v. Alexander, No. 79-3065 (M.D. Tenn.

Sept. 13, 1984) (Memorandum and Order award-

ing Attorney’s Fees) 5, 6, 7

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983) 4

Louisville Black Police Officers Org. v. City of

Lowsville, 700 F.2d 268 (6th Cir. 1983) 5

Northcross v. Board of Educ., 611 F.2d 624 (6th

Cir. 1979) 5

Pennsylvania, et al. v. Delaware Valley Citizens’

Council For Clean Air, S.Ct. No. 85-5, decided in

part, — U.S. —, relevant issue reargued October

OR ERSTE RENE elas Rie IAN ea Oe eS 6, 7,8

Statutes CITED:

FEDERAL:

28 U.S.C. § 1254(1) 2

cc ceinaaasbsammencans 2.3, 7

42 U.S.C. § 7604(d) 6

STaTE:

T.C.A. § 39-4-201(¢) (2) ....... 3

In The

Supreme Court of the United States

October Term, 1986

fa)

THE GOVERNOR AND ATTORNEY GENERAL

OF THE STATE OF TENNESSEE,

Petitioners,

VS.

LEONARD M. BROOKS, M.D.,

Respondent.

ray

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ty.

The petitioners, the Governor and Attorney General

of the State of Tennessee, respectfully request that a Writ

of Certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Sixth Cireuit

entered in this proceeding on December 9, 1985.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Sixth Cireuit in this cause, which has not been

designated for publication, is reprinted in the Appendix

at Al. The Sixth Cireuit Opinion reviews an Opinion of

the United States District Court for the Middle District

of Tennessee, also unreported, which is reprinted in the

Appendix at AQ.

ray

JURISDICTION

The Judgment of the United States Court of Appeals

for the Sixth Circuit was entered on December 9, 1986 and

this Petition for Certiorari was timely filed within ninety

(90) days of that date. This Court’s jurisdiction is in-

voked pursuant to 28 U.S.C. § 1254(1). \

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1988 provides:

- The jurisdiction in civil and criminal matters

conferred on the district courts by the provisions of

this Title, and of Title ‘CIVIL RIGHTS’, and of Title

‘CRIMES,’ for the protection of all persons in the

United States in their civil rights, and for their vin-

dieation, shall be exercised and enforced in conformity

with the laws of the United States, so far as such laws

are suitable to carry the same into effect; but in all

cases where they are not adapted to the object, or are

deficient in the provisions necessary to furnish suit-

able remedies and punish offenses against law, the

common law, as modified and changed by the consti-

tution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be

extended to and govern the said courts in the trial and

disposition of the cause, and, if it is of a criminal

nature, in the infliction of punishment on the party

found guilty. In any action or proceeding to enforce

a provision of sections 1981, 1982, 1983, 1985, and

1986 of this title, title IX of Public Law 92-318, or

title VI of the Civil Rights Act of 1964, the court, in

its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee

as part of the costs. (Emphasis supplied).

STATEMENT OF THE CASE

On September 13, 1984, the United States District

Court forthe Middle District of Tennessee awarded the

respondent, Leonard Brooks, M.D., $30,298.87 in attor-

ney’s fees and expenses in this cause under 42 U.S.C.

§ 1988.! Dr. Brooks’ fee award was predicated on his sue-

cessful challenge to the constitutionality of a provision of

Tennessee’s abortion law.?, The fee awarded by the Dis-

trict Court was limited to a ‘‘loadstar’’ figure, or the num-

ber of hours spent multiplied by a reasonable hourly rate.

The figure also included reasonable expenses. The Dis-

trict Court declined Dr. Brooks’ request that the fee be

, Dr. Brooks had petitioned the District Court for $187,620.97

for counsel fees and expenses in the District Court litigation.

The Court, however, reduced this to the $30,298.87 actually

awarded. The District Court further denied Dr. Brooks’ request

for $62,538.75 for attorney’s fees in ancillary state administrative

proceedings involving his medical license.

: The statute in question, T.C.A. § 39-4-201(c)(2), prohibited

abortions from being performed outside of a licensed hospital

after the first trimester of pregnancy.

upwardly adjusted. The Court did so solely on the basis

of the manner in which Dr. Brooks obtained his status as

a prevailing party.

Indeed, Dr. Brooks’ success in the ease, which was

filed in 1979, came in a curious fashion. After a brief pe-

riod of discovery in early 1980 and several trial contin-

uances, the case was put on the Court’s ‘‘retired docket’’.

That action was taken when it became apparent to the par-

ties and the Court that the constitutionality of the Ten-

nessee statute in question would likely be resolved by an

action then-pending before the Sixth Cireuit Court of Ap-

peals. Eventually, the Sixth Circuit case was decided by

this Court. In City of Akron v. Akron Center for Repro-

ductive Health, 462 U.S. 416 (1983), this Court ruled as

unconstitutional an ordinance of the City of Akron, Ohio

which contained a restriction identical to the Temnessee

Code provision challenged by Dr. Brooks. Based on the

Akron ease, the District Court, upon a motion for judg-

ment on the pleadings, ruled the Tennessee statute uncon-

stitutional. Except for that Motion and the aforemen-

tioned period of discovery, there was no other substantial

activity in the District Court.

In light of the progression of the case, the District

Court found an upward adjustment of the loadstar figure

to be inappropriate. In the words of the Court:

It is the opinion of this Court, in accordance with the

purpose of the Fee Awards Act, that the cireumstances

of this case do not merit an upward adjustment. Plain-

tiff’s suecess was predicated not upon his own abil-

ity and endeavor as this issue wound its way to vie-

tory before the Supreme Court but rather hinged or

the outcome of another case with the identical issue.

See Akron Center for Reproductive Health, Inc. v.

City of Akron, — U.S. —, 103 S.Ct. 2481 (1983). To

permit plaintiff to recover an upwardly adjusted fee

based on the success of the plaintiff’s attorneys in

Akron is not warranted. Indeed, fortuity is not an

element to consider when contemplating an upward

adjustment.

Brooks v. Alexander, No. 79-3065 (M. D. Tenn. Sept. 13,

1984) (Memorandum and Order awarding attorney’s fees),

slip op. p. 8 (A16).

Dr. Brooks appealed the District Court’s fee award

to the United States Court of Appeals for the Sixth Cir-

cuit on November 27, 1985. Dr. Brooks challenged the

award as being inadequate on several grounds. The Court

of Appeals rejected Dr. Brooks’ arguments in all respects

except one. The Court of Appeals ruled that the District

Court, in denying an upward adjustment, erred in not con-

sidering the ‘‘risk’’ undertaken by Dr. Brooks’ counsel

and the unpopularity of the case. Brooks v. Alexander,

No. 85-6114 (6th Cir. Dee. 9, 1986), slip op. p. 4 (A5). The

Court predicated its ruling on several well established Sixth

Cireuit opinions. See, Louisville Black Police Officers Org.

v. City of Louisville, 700 F.2d 268 (6th Cir. 1983) and

Northcross v. Board of Educ., 611 F.2d 624 (6th Cir. 1979) ;

cert. denied, 447 U.S. 911 (1980). The Court of Appeals

concluded :

We find that the District Court failed to exercise

its discretion to consider plaintiff’s claim for an up-

ward adjustment in the hourly rate awarded and re-

mand the case with direction to consider the eontin-

gency factor. "

Brooks v. Alexander, supra, slip op. p. 7 (AQ).

ray

REASON FOR GRANTING THE WRIT

THE COURT SHOULD DECIDE THIS

CASE IN TANDEM WITH PENNSYLVANIA,

ET AL. V. DELAWARE VALLEY CITIZENS’

COUNCIL FOR CLEAN AIR, S.CT. NO. 85-5,

DECIDED IN PART, — U.S. —, RELEVANT

ISSUE REARGUED OCTOBER 15, 1986,

WHICH PRESENT AN ISSUE IDENTICAL TO

BOTH CASES, IN ORDER TO ENSURE THAT

THE SIXTH CIRCUIT DECISION WILL NOT

ESCAPE THE IMPACT OF THE COURT’S UL-

TIMATE RULING ON THE COMMON IDENTI-

CAL ISSUE.

This Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit presents the

identical issue which the Court will decide in Pennsylvania

et al. v. Delaware Valley Citizens’ Council For Clean Arr,

S.Ct. No. 85-5, decided in part, — U.S. —, relevant issue

reargued October 15, 1986. In the Delaware Valley Cite-

zens’ ease, the Court is reviewing a decision of the United

States Court of Appeals for the Third Cireuit which pre-

sents the sole issue of ‘‘risk of loss’’ as an appropriate

basis to upwardly adjust an attorney’s fee award under

§ 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d).?

By agreeing to review the Sixth Circuit decision, this

Court will prevent the Brooks v. Alexander decision, supra,

; The Court has previously rendered one opinion in this case

in which it decided two other attorney’s fee questions under 42

U.S.C. § 7604(d). See Pennsylvania, et al. v. Delaware Valley

Citizens’ Council For Clean Air, — U.S. — (1986). The Court,

at that time, was of the view that the issue presented in the case

regarding “risk of loss’ as a basis for an upward adjustment of

a fee award required further argument. The case was therefore

restored to the argument docket on that issue alone. Id. at —.

The case was argued to the Court on October 15, 1986.

from becoming final.* This will ensure that this Court’s

eventual ruling on the question common to both Delaware

Valley Citizens’ and the Sixth Cirecuit’s Brooks v. Alezx-

ander decision will apply to the Sixth Cireuit case. Not

only will the equal application of the resolution of this

important issue be beneficial to the parties in this case,

but to other litigants and Courts in the Sixth Cireuit.

fay

‘ To this end, simultaneously with filing this Petition, the

petitioners are filing a motion in the District Court requesting

that it stay all further proceedings in this matter until such time

as this Court decides this Petition and/or the Delaware Valley

Citizens’ case.

CONCLUSION

For reasons set forth above, the petitioners respect-

fully request that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of Ap-

peals for the Sixth Circuit entered December 9, 1986, to

determine whether the ‘‘contingency factor’’ or ‘‘risk’’

is a proper basis for upwardly adjusting a fee award un-

der 42 U.S.C. § 1988. The petitioners further request the

Court to decide this case in tandem with Pennsylvania,

et al. v. Delaware Citizens’ Council For Clean Air, S.Ct.

No. 85-5, decided in part, — U.S. —, relevant issue rear-

gqued October 15, 1986.

Respeetfully submitted,

W. J. Micnaret Copy

Attorney General and Reporter

State of Tennessee

Joun Knox WaLkup

Chief Deputy Attorney General

Frank J. SCANLON

Deputy Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219-5025

(615) 741-1963

Attorneys for Petitioners

APPENDIX

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations.

Please see Rule 24 before citing in a proceeding in a court

in the Sixth Circuit. If cited, a copy must be served on

other parties and the Court. .

This notice is to be prominently displayed if this decision

is reproduced.

No. 85-6114

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEONARD J. BROOKS, M.D.,

Plaintiff-A ppellant,

v. On Appeal from the

United States District

LAMAR ALEXANDER, Governor Court for the Middle

of the State of Tennessee, and District of Tennessee.

WILLIAM LEECH, Attorney

General of the State of Tennessee,

Defendants-Appellees.

(Filed December 9, 1986)

BEFORE: KENNEDY and NORRIS, Circuit Judges;

and CONTIHE, Senior Circuit Judge.

PER CURIAM. Plaintiff Dr. Leonard Brooks

(‘‘plaintiff’’) appeals the amount of the District Court’s

award of attorney’s fees for time spent before the District

Court and the Court’s denial of attorney’s fees for time

spent in state administrative proceedings. Plaintiff claims

that the award by the District Court for the Middle Dis-

trict of Tennessee was inadequate to provide a fully com-

pensable fee because the Court refused to upwardly adjust

the hourly fee to compensate for the contingency risk and

unpopularity of the cause, and refused to adjust the litiga-

tion expenses for inflation. Plaintiff also claims that he

is entitled to attorney’s fees for the time spent in state

administrative proceedings.. We reverse and remand the

District Court decision refusing to upwardly adjust the

hourly rate, and affirm the Court’s judgment in all other

respects.

In September of 1978 the Tennessee Board of Medical

Examiners brought an action against plaintiff, a licensed

Tennessee physician. The Board sought to revoke plain-

tiff’s medical license on the ground, among others, that he

had performed second-trimester abortions outside of hos-

pitals, in violation of what is now T.C.A. § 39-4-201(e) (2).

Plaintiff asserted that the statute was unconstitutional.

After a full hearing. however, the Board entered an order

revoking plaintiff’s license. Plaintiff appealed the deei-

sion to the Davidson County Chancery Court, which ulti-

mately remanded the case to the Board in light of the

Supreme Court’s decision in Akron v. Akron Center for

Reproductive Health, 462 U.S. 416 (1983).

Plaintiff also filed an action pursuant to 42 U.S.C.

§ 1983 to have the Tennessee statute declared unconstitu-

tional. Shortly before trial, because Akron v. Akron Center

for Reproductive Health was pending, the trial date was

postponed. In 1983, the Supreme Court ruled in favor of

the position of plaintiff. The District Court then granted

;

summary judgment in favor of plaintiff and declared him

the prevailing party for purposes of section 1988.

On September 13, 1984, the District Court awarded

plaintiff attorney’s fees in the amount of $30,293.87 for

time spent in that Court. The Court severed the issue of

fees for time spent in ancillary proceedings, however, be-

cause the Supreme Court had granted certiorari in a case

addressing that precise issue. Webb v. County Bd. of

Educ., 471 U.S. 234, 105 S. Ct. 1923 (1985), aff’g 715 F.2d

254 (6th Cir. 1983). On November 15, 1985, the District

Court denied plaintiff’s request for attorney’s fees for

the state administrative and state court proceedings based

on the Supreme Court’s decision in Webb. Plaintiff ap-

peals from these orders. 3

TIMELINESS OF APPEAL

’ We reject defendant’s claim that plaintiff’s appeal is

untimely. Defendant claims that the District Court’s

initial order awarding plaintiff attorney’s fees in the

amount of approximately $30,000 was a final decision be-

cause the Court had severed the issue of fees for ancillary

proceedings. If it were a final decision, plaintiff would

have been obligated to file his appeal by December 12, or

thirty days following the November 13 decision awarding

interest. Fed. R. Civ. P. 4(a)(1). Plaintiff did file a notice

of appeal on December 12, but then moved to dismiss the

appeal as premature. His motion was granted. On Novem-

ber 26, 1985, he filed a notice of appeal from both the

September, 1984 and the November, 1985 orders.

The District Coury severed the claim for fees arising

from the ancillary proceedings and issued an initial order

granting plaintiff attorney’s fees for time spent before it.

It is clear that the District Court judge intended to ad-

dress the ease again, because he postponed his decision on

the separate issue of fees for the ancillary proceedings for ,

a later date. As the Supreme Court stated in United States

v. F. & M. Schaefer Brewing Co., 356 U.S. 227 (1958), an

order in final when it ‘‘clearly evidences the judge’s inten-

tion that it shall be his final act in the case.’’ Id. at 232.

At the time of the initial order a portion of plaintiff’s claim

for attorney’s fees was still pending. We find that the

District Court’s order granting plaintiff attorney’s fees

for time spent before that Court was not a final judgment

and we therefore hold that plaintiff’s appeal is timely.

FEES AND EXPENSES AWARDED FOR

TIME IN DISTRICT COURT

The determination of the extent to which attorney’s

fees will be awarded pursuant to section 1988 is within the

broad discretion of the trial court judge. An appellate

court will not reverse or remand an award of fees or denial

of costs unless it is clear that the district court abused its

discretion. See Blum v. Stenson, 465 U.S. 886 (1984) ;

Hensley v. Eckerhart, 461 U.S. 424 (1983) ; Lowsville Black

Police Officers Org. v. City of Louisville, 700 F.2d 268 (6th

Cir. 1983); Northcross v. Board of Educ., 611 F.2d 624 (6th

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

fees in an amount less than that requested, the trial court

cree RAEN Hepner en ore

nen ———-_

must provide ‘‘some explanation of the reasoning used to

exclude those hours which were cut, and some description

of the findings which were relied upon to find that expenses

and billing rates were excessive.’’ Northcross, 611 F.2d at

62°

—— sr sr

The parties in this case agreed to the reasonableness

of basic hourly rates for each of plaintiff’s attorneys.

Plaintiff claims, however, that the District Court abused

its diseretion by refusing to grant an upward adjustment

in these hourly rates. We find that the District Court

failed to exercise its discretion in accordance with degisions

of this Court. In Northcross v. Board of Educ., this Court

stated that ‘‘[i]n many cases [the routine hourly rate] is

not ‘reasonable,’ because it does not take into account

special circumstances, such as unusual time constraint, or

an unusually unpopular cause, which affect the market

value of the services rendered.’’ Northcross, 611 F.2d at

638. The Court further stated that “ [p]erhaps the most

significant factor in these cases which at times renders the

routine hourly fee unreasonably low is the fact that the

award is contingent upon success.’’ Jd. In Louisville Black

Police Officers, this Court did make it clear that it did not

‘“‘intend to require district courts to so adjust whenever

the circumstances referred to in that decision exist in a

particular case.’’ 700 F.2d at 280. It emphasized that ‘‘the

district court judge who presided over a case is in the

best position to evaluate the reasonableness of fee requests,

both in terms of the number of hours spent and a reason-

able hourly rate of compensation.’’ Jd. at 274. Thus, while

any upward adjustment is within the discretion of the

district court, the court must exercise that discretion by

considering the contingency factor.

It does not appear that the District Court addressed

the contingency or unpopularity factors. In holding that

the facts of this case did not warrant an upward adjust-

ment of the hourly rates, the Court stated that ‘‘[p]lain-

tiff’s suecess was predicated not upon his own ability aml

endeavor as this issue wound its way to victory before the

Supreme Court but rather hinged on the outcome of another

ease with the identical issue.’’ Joint Appendix at 153. This

finding disposes of any claim of an upward adjustment for

outstanding results. However, the fact that plaintiff’s suc-

cess did not hinge on the ability of his own attorney does

not change the significant risk assumed by the attorney

when he accepted and prepared the case. The District

Court was obligated to consider whether the contingency

risk warranted an upward adjustment. The Court’s fail-

ure to exercise its discretion (or if exercised, to explain its

“yeasoning) was inconsistent with its duties as spelled out

in Northcross and Lov.isville Black Police Officers. We

remand the case to the District Court with direction to con-

sider whether the contingency risk assumed by plaintiff’s

attorney and the unpopularity of the cause warrant an

upward adjustment of the hourly rate.

Plaintiff also claims that the District Court should

have awarded him his expenses based on their current

value as opposed to the amounts actually expended. The

District Court rejected this claim because it found that

‘‘the applicants [had] been fairly compensated under the

circumstances of this case without the addition of a present

value-based calculation.’’ Joint Appendix at 154. This

Court has not awarded reimbursement of expenses based

on current value and we find no cases in other circuits

awarding reimbursement on that basis. We see no reason

to allow it here. We hold that plaintiff is not entitled to

recover the current value of expenses incurred and we

affirm the judgment of the District Court as it relates

to expenses.

ATTORNEY’S FEES FOR TIME SPENT

IN ANCILLARY PROCEEDINGS

Plaintiff claims that he is entitled to attorney’s fees

for the time spent in state administrative proceedings.

The District Court postponed its decision concerning this

claim until the Supreme Court had issued its decision in

Webb v. County Bd. of Educ. It then held, in accordance

with Webb, that plaintiff’s request for attorney’s fees must

be denied because ‘‘the medical administrative proceedings

in the present case as well as the subsequent appeal to state

court are ‘not any part of, the proceedings to enforce

§ 1983.’ ’’ Joint Appendix at 163. We agree with the Dis-

trict Court’s application of Webb and affirm its denial of

attorney’s fees for time spent in ancillary proceedings.

In Webb, the Board of Education of Dyer County,

Tennessee, terminated petitioner’s employment. The peti-

tioner contended at administrative proceedings that his con-

stitutional rights had been violated because his discharge

was racially motivated. The Board decided to adhere to its

termination decision and the petitioner brought an action

pursuant to section 1983. When he prevailed in the district

court, the court awarded attorney’s fees for the time spent

on the judicial proceedings, but denied fees for the time

spent on the administrative proceedings. This Court af-

firmed the district court decision and the Supreme Court

affirmed.

The Supreme Court noted first that under section

1988 a prevailing party may be granted attorney’s fees

arising from an ‘‘action or proceeding to enforce

[$ 1983].’’ Webb, 105 S. Ct. at 1928. It further noted

that, unlike Title VII litigation, ‘‘nothing in § 1983 re-

quires that a plaintiff exhaust his administrative remedies

before bringing a 4 1983 suit.’’ Jd. at 1927 (citing Smith

v. Robinson, 468 U.S. 992 (1984)). Section 1983 was found

to be an independent avenue of relief. The Court con-

tinued:

Administrative proceedings established to enforce

tenure rights created by state law simply are not any

part of the proceedings to enforce § 1983, and even

though the petitioner obtained relief from his dismissal

in the later civil rights action, he is not automatically

entitled to claim attorney’s fees for time spent in the

administrative process on this theory.

Id. at 1928. The Court did suggest that attorney’s fees

might be awarded for ‘‘any discrete portion of the work

product from the administrative proceedings [that] was

work that was both useful and of a type ordinarily neces-

sary to advance the civil rights litigation’’ in federal court.

Id. at 1929. The Court denied the petitioner’s claim for at-

torney’s fees because it found no indication that a discrete

portion of the attorney’s time in the administrative pro-

ceeding had further the section 1983 action.

The facts in the case before this Court are closely

analogous to those in Webb. We reject plaintiff’s claim

that because he was required to appear before the Board

of Medical Advisers the administrative proceeding was re-

quired for the section 1983 suit. The medical administra-

tive proceeding was no more a part of the section 1983 ac-

tion than was the administrative proceeding in Webd.

lurthermore, the District Court found, as did the Supreme

Court in Webb, that there was no ‘‘indication that the ad-

ministrative (or subsequent state judicial) proceedings had

the effect of advancing the federal civil rights litigation to

resolution.’’ Joint Appendix at 163. We affirm the Dis-

vo AQ

trict Court’s denial of plaintiff’s claim for attorney’s fees

for the time spent in ancillary proceedings.

CONCLUSION

We find that the District Court failed to exercise its

discretion to consider plaintiff’s claim for an upward ad-

justment in the hourly rate awarded and remand the ease

with direction to consider the contingency factor. We at-

firm the District Court’s decisions denying the current

value of expenses incurred and denying an award of fees

for time spent in proceedings ancillary to the section 1983

action.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF TENNESSEE,

NASHVILLE DIVISION

LEONARD J. BROOKS, M.D. )

)

VS. )

) DOCKET

LAMAR ALEXANDER, Governor ) NO. 79-3065

of the State of Tennessee, and )

WILLIAM LEECH, Attorney )

General of the State of )

Tennessee )

(Entered September 13, 1984)

MEMORANDUM

The plaintiff in this action, Dr. Leonard J. Brooks,

was declared the prevailing party in this civil rights ae-

tion on August 4, 1983. Pending in this ease is plaintiff’s

request for attorney fees pursuant to 42 U.S.C. § 1988.

This cause came on to be heard on August 14, 1984. The

A10

following represents the conclusions of this Court regard-

ing plaintiff’s attorney fees.

The complaint was filed February 8, 1979, challenging

the constitutionality of TENN. CODE ANN. § 39-301, ef

seq. Before the case could be tried, the Sixth Cireuit de-

cided Akron Center For Reproductive Health, Inc. v. City

of Akron, 651 F.2d 1198 (1981), directly on point against

plaintiff. Subsequently, ‘the Supreme Court granted cer-

tiorari in the Akron ease and ruled in favor of petitioners

and consequently in favor of the position of the plaintiff

in this action. — U.S. —, 103 S.Ct. 2481, 76 L.Ed.2d 687

(1983). This Court then granted judgment on the plead-

Plaintiff has filed affidavits wherein the time spent

on this lawsuit is reconstructed. Although contemporane-

ously maintained records were not consistently kept, plain-

tiff avers that the reconstruction adequately represents

the services which were performed. Plaintiff requests at-

torney fees in the following amounts:

A. SERVICES RENDERED IN UNITED STATES

DISTRICT COURT:

(1) 206.75 hours for attorney Bart Durham

at $125.00 per hour, totaling $25,843.75, plus

a 200 percent upward adjustment! for a to-

Oe Oe cedecnbiatonnacen a $77,531.25

: Plaintiff seeks an increase in hourly rates based on the

difficulty, probability of success and contingency basis of this

case. Although plaintiff requests an upward adjustment of 300%/o

to his hourly rate, the actual computed increase in plaintiff's

pleadings is only 200%. The Court's findings reflect this in-

advertency.

Oe I ee NT eee

pS atic iis

All

(2) 182.50 hours for attorney Vickey Verwey

at $90.00 per hour, totaling $11,925.00, plus

200 percent upward adjustment for a total of $35,775.00

(3) 4.5 hours for attorney Marion Wall at

$90.00 per hour, totaling $405.00, plus a 200

percent upward adjustment for a total of ..$ 1,215.00

(4) 64.0 hours for paralegal Anne Johnson

at $35.00 per hour, totaling $2,240.00, plus a”

200 percent upward adjustment for a total of

ee $ 6,720.00

(9) 1.0 hours for attorney Dick Dorris at

$90.00 per hour, totaling $90.00, plus a 200

percent upward adjustment for a total of .$ — 270.00

(6) Expenses totaling occ $ 3,520.97

SUBTOTAL $125,032.22

B. SERVICES RENDERED IN ANCILLARY PRO.

CEEDINGS :

(1) 91.5 hours for Bart Durham at $125.00

per hour, totaling $11,437.50, plus a 200 per-

cent upward adjustment for a total of $34,312.50

(2) 45.0 hours for attorney Stephanie Ashe

at $90.00 per hour, totaling $4,050.00, plus a

200 percent upward adjustment for a total

Oe eincameun ssinetiniecctaiiin winicccenisiedt ay OOOO

(3) 29.5 hours for Vickey Verwey at $90.00

per hour, totaling $2,655.00, plus a 200 per-

cent upward adjustment for a total of ... $ 7,965.00

(4) 40.0 hours for paralegal Tom Ware at

$39.00 per hour, totaling $1,400.00, plus a 200

percent upward adjustment for a total of ..4 4,200.00

Plaintiff seeks attorney fees for time spent in administra-

tive and state court proceedings.

| Al2

(5) Expenses totaling $ 975.25

SUBTOTAL $59,602.75

C. SERVICES RENDERED FOR PREPARATION OF

APPLICATION FOR ATTORNEY FEES

(1) 97.75 hours for Bart Durham at $125.00

per hour, totaling $12,218.75, plus a 200 per-

cent upward adjustment for a total of ........ $36,656.25

(2) 246.50 hours for Tom Ware at $35.00 per

hour, totaling $8,627.50, plus a 200 percent

upward adjustment for a total of ...............$25,882.90

SUBTOTAL $62,538.75

D. SUPPLEMENTAL REQUESTS FOR ATTORNEY

FEES?

(1) 22.65 hours for Bart Durham at $125.00

per hour, totaling $2,831.25, plus a 200 per-

cent upward adjustment for a total of $ 8,493.75

(2) 3.5 hours for attorney Dick Eason at

$90.00 per hour, totaling $315.00, plus a 200

percent upward adjustment for a total pee. $ 945.00

(3) 13.75 hours for attorney Roy Lucas at

$200.00 per hour, totaling $2,750.00, plus a

seventy-five percent upward adjustment for

Re AN accbincesenetieceiaten didbsicicde abommnaaiinteacianirel

(4) 5.25 hours for attorney Lynn Miller at

$125.00 per hour, totaling $656.25, plus a sev-

enty-five percent upward adjustment for a

SE Rea ne ines _eNekaee carne $ 1,148.44

4,812.50

3 These requests represent costs incurred since plaintiff's

initial motion for attorney fees was filed.

A138

(5) 24.25 hours for Tom Ware at $35.00

per hour, totaling $848.75, plus a 200 per-

cent upward adjustment for a total of ........... $ 2,546.25

(6) Expenses totaling ie SA ee SOSH Rn $ 325.00

SUBTOTAL $ 18,270.94

TOTAL $965,444.66

The Sixth Cireuit in Northcross v. Board of Education,

611 F.2d 624, 636-39 (6th Cir. 1979), cert. denied, 447 U.S.

911 (1980), established guidelines to be followed in eal-

culating reasonable attorney fees. These guidelines re-

quire consideration of the following factors: (1) hours

of service provided; (2) reasonable hourly rate; and (3)

costs and expenses. Each of these factors, including the

defendants’ objections to them, will be addressed. In

awarding fees, this Court is not compelled to accept all

hours claimed, but any reduction must be identified and

accompanied by the reason for disallowing the claim. Id.

at 636-37.

Initially, defendants object to plaintiff’s request for

attorney fees for time spent in administrative and state

proceedings. In Webb v. County Board of Education of

Dyer County, 715 F.2d 254, 256-59 (6th Cir. 1983), the

Sixth Cireuit held that the Civil Rights Attorney Fee

Awards Act does not allow an award of attorney fees for

services rendered in optional state administrative pro-

ceedings. Jd. at 257. The Supreme Court has granted

certiorari to the Sixth Cireuit in the Webb case, — U.S. —,

104 S.Ct. 1906 (Apr. 16, 1984) (No. 83-1360), and it is the

decision of this Court to sever the issue of attorney fees

maaan

Al4

regarding administrative and state proceedings until final

disposition of Webb.

Defendants have registered specific objections to the

amount of hours claimed for specific tasks performed.

Rather than pick out specific hours which appear excessive

or duplicative, this Court shall deduct a percentage of the

total hours to eliminate duplication and padding and to

compensate for plaintiff’s use of reconstructed time rec-

ords. See Northeross, 611 F.2d at 636-37; Kelley v. Metro-

politan Cty. Bd. of Ed. of Nashville, 558 F.Supp. 468,

477 (M.D. Tenn. 1983). A twenty percent reduction ap-

pears reasonable.

Defendants also object to plaintiff’s request for fees

for two consultants in this ease, attorneys Roy Lucas and

Lynn Miller. Although neither attorney has established

an attorney-client relationship with the plaintiff nor en-

tered an appearance in this cause, plaintiff asserts that

their proficiency in abortion litigation was both reasonable

and necessary to this action. This Court is not persuaded

by this contention under the circumstances of this case.

Although plaintiff’s counsel may recover fees for time

spent with consultants, the attorneys consulted in this case

may not seek fees where no notice of appearance was en-

tered.

The Court will now consider plaintiff’s request for at-

torney fees regarding plaintiff’s fee application. Plaintiff

is entitled to recover attorney fees for the time spent liti-

gating the fee issue itself. Northeross, 611 F.2d at 637;

Weisenberger v. Huecker, 593 F.2d 49, 53-54 (6th Cir. 1979).

In the present case, plaintiff claims 97.75 hours in attorney

fees and 246.50 hours in paralegal fees for preparing the

Al5

fee application. By plaintiff’s calculations, plaintiff’s

counsel is entitled to $74,848.75‘ in fees for preparing a fee

application for a case in which plaintiff seeks $125,032.22

for services rendered in this Court. This request is clearly

exeessive. Plaintif{’s five-page motion for attorney fees

for time spent in the United States District Court, accomi-

panied by an eight-page memorandum in support thereof,

is not indicative of the 394.65 man hours? alleged to have

been spent on this application. The Court is sensitive to the

time-consuming proposition of reconstructing time records

and preparing a fee application; however, plaintiff’s re-

quest cannot be characterized as reasonable under the cir-

cumstances of this case. Consequently, taking into account

the ‘‘relevant factors’’ enumerated in Northcross, 611 F.2d

at 642, it is this Court’s finding that plaintiff’s counsel

shall be compensated for twenty hours at the fair market

value of the attorney’s services plus forty hours of para-

legal work. See Smith v. Heath, 691 F.2d 220, 228 (6th Cir.

1982).

The Court will now turn to the issue of a reasonable

hourly rate for the services provided. Plaintiff seeks an

award of $125.00 per hour for the services of attorney Bart

Durham, $90.00 per hour for the services of attorney Vickey

Verwey, $90.00 per hour for the services of attorney Marion

Wall, $90.00 per hour for the service of attorney Dick

Davis, $90.00 per hour for the services of attorney Dick

‘ This figure represents the sum of plaintiff's initial request

for attorney fees for preparing the fee application ($62,538.75),

plus supplemental requests of counsel of record ($12,310.00).

: This figure represents the sum of hours represented by

plaintiff to have been expended in preparation of plaintiff's fee

application.

A16

Kason, $35.00 per hour for the services of paralegal Anne

Johnson and $35.00 per hour for the services of paralegal

‘l'om Ware. The level of compensation should represent

the fair market value of the services provided, and current

hourly rates will be applied to plaintiff’s request. Alley,

558 F.Supp. at 478. It is the finding of this Court that a

reasonable rate in this community for the services of Mr.

Durham is $90.00 per hour. Moreover, again applying the

factors set forth in Northcross, 611 F.2d at 638-39, this

Court concludes that a reasonable fee for attorneys Ver-

wey, Wall, Davis and Kason is $60.00 per hour. Paralegals

Johnson and Ware sliall be reimbursed at the rate of $25.00

per hour.

The Court will now consider plaintiff’s contention that

he is entitled to an upward adjustment of his hourly fee

pursuant to Northcross, 611 F.2d at 638 (contingency, dif-

ficulty or unpopularity may justify an enhancement of the

award). See also Blum v. Stenson, — U.S. —, 104 S.Ct.

1541, 1548-50 (1984) ; [lensley v. Eckerhart, — U.S. —, 1038

S.Ct. 1933, 1940 (1983). It is the opinion of this Court,

in accordance with the purpose of the Fee Awards Act,

that the circumstances of this case do not merit an upward

adjustment. Plaintiff's suecess was predicated not upon

his own ability and endeavor as this issue wound its way

to victory before the Supreme Court but rather hinged on

the outcome of another case with the identical issue. See

Akron Center for Reproductive Health, Inc. v. City of

Akron, — U.S. —, 103 S.Ct. 2481 (1983). To permit plain-

tiff to recover an upwardly adjusted fee based on the suc-

cess of the plaintiff’s attorneys in Akron is not warranted.

Indeed, fortuity is not an element to consider when con-

templating an upward adjustment.

AP hasnt

ET Pt IIR we TIN

A17

The Court will now consider the third element of the

guidelines established in Northcross, costs and expenses.

611 I".2d at 639-40. Defendants object to reimbursement of

travel expenses at current costs of such travel.® In Louwis-_

ville Black Police Officers v. City of Louisville, 700 F.2d

268 (6th Cir. 1983), the Sixth Cireuit noted that North-

cross ‘‘does not mandatorily require the district court to

adjust for inflation in every fee award. Rather, in keeping

with the discretionary nature of fee awards, Northcross

required only that the district court in that case consider

whether the inflation of the intervening years must be taken

into account.’’ 700 F.2d at 274-75 (emphasis in original).

It is the opinion of this Court that the applicants have been

fairly compensated under the circumstances of this case

without the addition of a present value-based calculation.

See Louisville Black Police Officers, 700 F.2d at 175;

Northeross, 611 F.2d at 640 (district court must consider

the effect of inflation in its determination of award).

Consequently, plaintiff’s request for expenses are allowed

for the actual expenses incurred. Meal expenses incurred

are disallowed. Kelley, 558 F.Supp. at 479.

6 Plaintiff notes that ‘“[e]very case in the Middle District of

Tennessee has allowed current rates.” Plaintiff's Brief in Sup-

port of Motion for Attorney’s Fees for Time Spent in United

States District Court, at 5. In support of this proposition, plain-

tiff cites Kelley, 554 F.Supp. 468 and Mader v. Crowell, 506

F.Supp. 484 (M.D. Tenn. 1981). In Kelley, the court applied

current hourly rates for the services provided and did not ad-

dress the issue of current rates for expenses. 558 F.Supp. at

478-79. In Mader, plaintiff’s argument for an inflation increase

was rejected. 506 F.Supp. at 487. The Court would urge plain-

tiff to examine cited cases carefully before utilizing them as

authoritative.

A18

In accordanee with the above discussion, plaintiff is

entitled to recover attorney fees based on the following

calculations :

Bart Durham

206.75 hrs. (amount requested)

22.65 hrs. (supplemental request)

229.40 hrs.

less 45.88 hrs. (20% across the board reduction)

= 183.52 hrs.

4+ 20.00 hrs. (amount allowed for preparation of fee

= application)

203.52 hrs.

203.52 hrs. x $90/hr. = $18,316.80

Vickey Verway

132.50 hrs. (amount requested)

less 96.50 hrs. (20% aeross the board reduction)

= 106.00 hrs. |

106.00 hrs. x $60/hr. = $6,360.00

Marion Wall

4.5 hrs. (amount requested)

less 9 hrs. (20% across the board reduction)

— 3.6 hrs.

3.6 hrs. x $60/hr. == $216.00

Dick Eason

3.5 hrs. (amount requested)

less 7 hrs. (20% across the board reduction)

= 2.8 hrs.

2.8 hrs. x $60/hr. = $168.00

A19

Dick Dorris

1.0 hrs. (amount requested)

less -2 hr. (20% across the board reduction )

= 8 hr.

8 hr x $60/hr. — $48.00

Anne Johnson

64.0 hrs. (amount requested)

less 12.8 hrs. (20% across the board reduction)

== 61.2 hrs.

01.2 hrs. x $25/hr. $1,280.00

Tom Ware

24.25 hrs. (amount requested

less 4.85 hrs. (20% across the board reduction

= 19.40 hrs.

+ 40.00 hrs. (amount allowed for preparation of fee

application)

= 59.40 hrs.

09.50 hrs. x $25/hr. = $1,458.00

Durham $18,316.80

Verwey 6,360.00

Wall 216.00

HKason 168.00

Dorris 48.00

Johnson 1,280.00

Ware 1,485.00

27,873.80

Expenses + 2,420.07

$30,293.87

A20

Defendants will tender attorney fees to the plaintiff

in the amount of $30,293.87. An appropriate ORDER shall

enter.

This the 13th day of September, 1984.

/s/ John T. Nixon

UNITED STATES

DISTRICT JUDGE

Le ea ee

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.