Petition for Writ of Certiorari — International Union of Operating Engineers, Local 18 v. Murphy

, Supreme Court, U.S.

OK « oi FILED

i

SO- 150% DEC 27 1985

N O. JOSEPH F. SPANIOL, JR.

CLERK

In the Supreme Court of the United States

October Term, 1985

INTERNATIONAL UNION OF' OPERATING

ENGINEERS, LOCAL 18, et al.,

Petitioners,

VS.

WILLIAM F. MURPHY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

WILLIAM FAapDEL, Counsel of Record

FRANCES M. Gore’, On Brief

WULIGER, Fade, & BEYER

1340 Sumner Court

The Brownell Building

Cleveland, Ohio 44115

(216) 781-7777

Counsel for Petitioners

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED

1. Whether the Sixth Circuit incorrectly affirmed

the district court decision to award attorney fees without

considering any factors in calculating the fees beyond the

hours submitted and reasonable rate, in direct conflict

with decisions in every other circuit and with prior deci-

sions of this Court, as interpreted by a majority of the

circuits?

2. Whether the Sixth Circuit’s attorney fees decision,

relying on statutory fee cases, disregarded the essential

differences between fees based on the common benefit ratio-

nale and statutory fee awards, and thus conflicts with

this Court’s prior common benefit opinions?

3. Whether the Sixth Circuit erroneously affirmed

the district court’s abuse of discretion in direct conflict

with cases in every other circuit and with prior decisions

of this Court by awarding over $133,000 in attorney fees

under the common benefit rationale, although by con-

tract the plaintiff owed no fees to his private attorney

or to his Legal Aid attorney, resulting in the plaintiff

incurring no costs of the litigation to be spread propor-

tionately amongst the membership of the ciass allegedly

benefitting from the litigation?

II

LIST OF PARTIES TO PROCEEDINGS BELOW

WILLIAM F, MURPHY: Plaintiff-Appellee/Cross-

Appellant

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 18, JOHN

POSSEHL, CHARLES RUTHERFORD,

JOHN FRANK, FRANK MILLER, and

S. A. BLAIR: Defendants-Appellants/Cross-

Appellees

poet

‘ TABLE OF CONTENTS

me

ee. -. yo» | SRE

LIST OF PARTIES TO PROCEEDINGS BELOW. ........

pe ge ty yy |. ee

SINE IIIIEIIINIE sictssciincehsnvencctcbnenseceteseemisosiunsneginseennensssesses

Esch nat eesehdarannnstnanasnstnsnsnnnasssevensensunes

A. July 18, 1978 Decision Of The District Court

B. October 14, 1982 Post-Judgment Memorandum

| __ERTSaee eeeeeN

C. Appeal And Cross-Appeal To The Sixth Cir-

i andi caanieasialisesecbiapiptiriomiaedisuichbnaadnhndepenictahenanasnannsaees

REASONS FOR GRANTING THE WRIT ........................

EI sc cnnncakchnnesssassainineihissninesossasiniincesscnsen

Il. THE SIXTH CIRCUIT INCORRECTLY AF-

FIRMED THE DISTRICT COURT DECISION

TO AWARD ATTORNEY FEES WITHOUT

CONSIDERING ANY FACTORS IN CALCU-

LATING THE FEES BEYOND THE HOURS

SUBMITTED AND REASONABLE RATE, IN

DIRECT CONFLICT WITH DECISIONS IN

EVERY OTHER CIRCUIT AND WITH PRIOR

DECISIONS OF THIS COURT, AS INTER-

PRETED BY A MAJORITY OF THE CIR-

CUITS aoe ecncounasenn-seneuenssecsenuvecsnennensnnunenss

A. The Sixth Circuit Incorrectly Relied On

Northcross, An Opinion Unprecedented

Among The Circuits And Directiy Con-

flicting With The Positions Of Every

Other Circuit .. Lo T= EC ee eT

IV

B. The Sixth Circuit’s Attorney Fees Holding

Conflicts With Prior Decisions Of The Su-

preme Court, As Interpreted By A Ma-

Santi Gr Te SIRE citrine 18

Ill. THE SIXTH CIRCUIT'S ATTORNEY FEES

DECISIONS, RELYING ON STATUTORY

FEE CASES, DISREGARDED THE ESSEN-

TIAL DIFFERENCES BETWEEN FEES

BASED ON THE COMMON BENEFIT RA-

TIONALE AND STATUTORY FEE AWARDS,

AND THUS CONFLICTS WITH THIS

COURTS PRIOR COMMON BENEFIT

CIE REIT esicnnsesasnsietnnsnsanitimnniniviiatainmiepihigcmhiemnsitien 20

IV. THE SIXTH CIRCUIT ERRONEOUSLY AF-

FIRMED THE DISTRICT COURT’S ABUSE

OF DISCRETION IN DIRECT CONFLICT

WITH CASES IN EVERY OTHER CIRCUIT

AND WITH PRIOR DECISIONS OF THIS

COURT BY AWARDING OVER $133,000 IN

ATTORNEY FEES UNDER THE COMMON

BENEFIT RATIONALE, ALTHOUGH BY

CONTRACT THE PLAINTIFF OWED NO

FEES TO HIS PRIVATE ATTORNEY OR TO

HIS LEGAL AID ATTORNEY RESULTING

IN THE PLAINTIFF INCURRING NO COSTS

OF THE LITIGATION TO BE SPREAD PRO-

PORTIONATELY AMONGST THE MEM-

BERSHIP OF THE CLASS ALLEGEDLY

BENEFITTING FROM THE LITIGATION .... 26

MTT <secideiassasncigientisalisepsipiniieubinciahainitennthabdbinnaiiaivbeinindicin 30

APPENDIX (Under separate cover) —

Opinion, Findings of Fact and Conclusions of Law

of the United States District Court (July 18,

1978) A-l

Vv

Post-Judgment Memorandum Opinion and Order of

the United States District Court (October 14,

| eee A-377

Opinion of the United States Court of Appeals for

the Sixth Circuit ............... .A-466

Supplemental Brief of Plaintiff-Appellee /Cross-

pS Per ennee , A-507

Supplemental Affidavit in Support of Plaintiff's Re-

ee A-509

Reply to Defendants’ Brief in Opposition to Plain-

tiff’s Motion For Counsel Fees, p. 11 .................... A-517

Statutes Involved:

29 U.S.C. § 411(a)(1), (2) and (5) ............. A-504

3 USC. $42 .q...... esniicnnadl A-505

42 U.S.C. § 1988 A-505

TABLE OF AUTHORITIES

Cases

Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240 (1975) 9, 21, 24, 25, 29

Bagby v. Beal 606 F.2d 411 (3d Cir. 1979) .................... 15

Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir. 1978) 12

Blum v. Stenson, ........ USS. ........, 79 L. Ed. 2d 891, 104

Be, GR, CIR) wenicnncinnticinisinsascsstninsnsntoncteniaininneniiachininiiatiail 8, 23, 24

Bonner v. Coughlin, 657 F.2d 931 (7th Cir. 1981) ........ 13

Brady v. Hartford Fire Ins. Co., 610 F. Supp. 735 (D.C.

Md. 1985) 12, 19

Brewer v. Southern Union Co., 607 F. Supp. 1511 (D.C.

Cae. BIE) ccvsessnscitsncnssssisicnnnsstinenintcccianiniiaeitnipcannniainncnipmnbaistileinns 14, 19

Brewster v. Pike, 608 F. Supp. 1163 (D.C. Va. 1985) .... 12

VI

City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d

BN RIE ii cernicsscicteiniataibitenctbaeaumniil ses. 15

City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir.

OE SLR Ne EA CT RE bes eta 15

City of McKeesport v. Cunningham, 753 F.2d 262 (3d

Cir. 1985), petition for cert. filed, No. 84-1798 ........ 7-8, 18

City of Riverside v. Rivera, 763 F.2d 1580 (9th Cir.

1985), cert. granted, No. 85-224 uu... eee eeeeeees 7,9, 18

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980)

I EDs oaiscccessiartintissicesnnsctsntneinhaceiiininntiitiatiniascl 14, 15, 29

Copper Liquor, Inc. v. Adolph Chere Co., 624 F.2d 575

GRIND SG IPENED ‘scntanachideacscionceensnvelntats sinndsinsatiamasiansi 12, 13

Cornist v. Richland Parish School Board, 495 F.2d 189

(5th Cir. 1974), modified, 517 F.2d 1032 (5th Cir.

SE) ecnereansenieneannencsnaniahintienajanetesiiataninnhinbiaihineaabaaiaitite 25

Curry v. Block, 608 F. Supp. 1407 (D.C. Ga. 1985) ....14, 19

Davis v. West Community Hosp., 755 F.2d 455 (5th Cir.

1985) .13, 20

Easley v. Anheuser-Busch, Inc., 758 F.2d 251 (8th Cir.

1985) .13, 19

Furtado v. Bishop, 635 F.2d 915 (1st Cir. 1980) ........ 14,15

Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 (ist Cir.

BBOE) icines. pibeiadbidsenini 14, 16-17, 19

Hall v. Cole, 412 U.S. 1 (1973) ................c..c.000 9, 21, 22, 25, 28

Hart v. Bourque, 608 F. Supp. 1091 (D.C. Mass. 1985) 15,19

Hensley v. Eckerhart, 461 U.S. 424 (1983) -.0000000..... passim

Hoitt v. Vitek, 495 F.2d 219 (1st Cir. 1974) 0... 25

Hummel vw. Brennan, 83 F.R.D. 141 (E.D. Pa. 1979) ........ 15

In re Mid-Atlantic Toyota Anti-trust Litigation, 605 F.

er re 12

Incarcerated Men of Allen County Jail v. Fair, 507

fe rey ee 28, 29

VII

Inmates of Allegheny County Jail v. Pierce, 716 F.2d

Ee HEED rttbicincssenncnstesicesincncdechitiabinitiaieleabibeses 15, 20

Institutionalized Juveniles v. Sec. of Pub. Wel., 758 F.

- § gi in 3 : SaRenmnee 15, 19, 20

IUOE, Local 18 v. NLRB, 496 F.2d 1308 (6th Cir. 1974) 4

IUOE, Local 18 v. NLRB, 555 F.2d 552 (6th Cir. 1977) 4

Jacquette v. Black Hawk County, Iowa, 710 F.2d 455

ge | ee 13

Johnson v. Georgia Highway — 488 F.2d 714

CURR es TED sepinncpicncorncttansiencnesiasinininnnitelenisinat einen passim

Jones v. Central Soya Co., Inc., 148 F.2d 586 (11th

Cir. 1984) ..14, 19

Jones v. MacMillan Bloedel Caatelane, Inc., 685 F.2d

Se Se Es | ND saeeittctcccnpenstattlenictsieninintnccinactnivniiinn 13

Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) ............ 25

Ladies Ctr., Nebraska, Inc. v. Thone, 645 F.2d 645 (8th

SOO: DITID: ceseseiceterrrenencsttionseninninenienncenceninisionenaiutienentishitinianans 13

Laffey v. Northwest Airlines, Inc., 746 F2d 4 (DC.

Cir. 1984) 15, 19

Lindy Brothers Builders, Inc. of Philadelphia v. Ameri-

can Radiator & Standard Sanitary Corp., 487 F.2d

161 (3d Cir. 1973) 12

Lindy Brothers Builders, Inc. of Philadelphia v. a—_

can Radiator & Standard Sanitary Corp., 540 F.2d

OD Ce Ga, BD hectetensitetencinseternrnenisenninncenvinsiiitinn ar ae

Louisville Black Police Officers v. City of Louisville,

700 F.2d 268 (6th Cir. 1983) -.............. . 16

Love v. Mayor of Cheyenne, 620 Fod 235 (10th Cir.

OG) esecveenscinnnecsnnceniinmsetenninieaentnannasnamnniinisitinahaieiiniain as 29

Lynch v. City of Milwaukee, 747 F.2d 423 (7th Cir.

OE cecnseisncinecrsennesnsnesenanissinnttnesincennsanimemanhsiiemiaiianniiinianentnnnii 13, 19

Mandhare v. LaFargue Elementary School, 605 F. Supp.

238 (E.D. La. 1985) 13

Vill

Marion v. Barrier, 694 F.2d 27) (1 th Cir. 1982) -...... 14

McCann v. Coughlin, 698 F.2d 1. (2d Cir. 1983) ........ 12

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) :...9, 21,

25, 28

Moore v. Jas. H. Matthews & Co., 682 F.2d 830 (9th

ee IG ceashcesntnnecinecinsceesicnsiioniepiennnsensenitmeaciatinaitigei minibar 13

Murphy v. International Union of Operating Engineers,

Local 18, et al., 99 L.R.R.M. 2074 (N.D. Ohio 1978) 5, 23

National Ass’n of Concerned Veterans v. Secretary of

Defense, 675 F.2d 1319 (D.C. Cir. 1982) -...0.0.... 17

New York Ass’n For Retarded Children v. Carey, 711

> Bh By Ee | ow ee ee 17

Northcross v. Board of Education of h..‘2phis City

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

ED SE ORS CUED eieeniviccniciccnscnntrceenepial 8, 15, 16, 18, 19, 24

Ohio-Sealy Mattress Manuf. Co., et al. v. Sealy, Inc.,

et al., Case Nos. 84-2886 and 84-2926 (7th Cir. Oct.

21, 1985) .. 19

Palmigiano v. Garrahy, 616 F.2d 598 (1st Cir.), cert.

denied, 449 U.S. 839 (1980) ~........................-c..ccco0.0. 29

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983) -.......... 13, 17,

19, 29

Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978) .... 29

Segal v. Gilbert Color Systems, Inc., 746 F.2d 78 (1st

Se STE ettcinmresims” sesssaieisunestencansncesehriihantielcnicecbinlenaddahisnni 14, 19

Shimman v. International Union of Operating Engi-

neers, Local 18, 744 F.2d 1226 (6th Cir. 1984) (en

banc), cert. denied, 105 S. Ct. 1191 (1985) ....6, 21, 23, 25

Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977) ... 14

State of Ill. v. Sangamo Const. Co., 657 F.2d 855 (7th

Rene. CI “aicvastscmaseiarisncelsbessibibisiliiiathiiteincnaesteidicetiabanisonions 13

Stewart v. Lubbock County, Tex., 767 F.2d 153 (5th

Se nen 13, 19

Xx

Stewart v. Rhodes, 656 F.2d 1216 (6th Cir. 1981),

cert. denied, 455 U.S. 991 (1982) 2.0... cette eeees 16

Summit Valley Industries v. Local 112, United Brother-

hood of Carpenters, 456 U.S. 717 (1982) ................... 21

Torres v. Sachs, 538 F.2d 10 (2d Cir. 1978) ................ 29

Tusa v. Omaha Auto Auction, Inc., 712 F.2d 1248 (8th

Cir. 1983) : 19, 20

Varner v. Century Finance Co., Inc., 738 F.2d 1143

CRT SAUD. TID cednnserneisnnnitntiidinciennintiions 14

Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th

Cir. 1974), cert. denied, 425 U.S. 997 (1976) ........ 13

Watford v. Heckler, 765 F.2d 1562 (11th Cir. 1985) ....14, 19,

20

White v. City of Richmond, 713 F.2d 458 (9th Cir.

SIND. cevewincncenninsititpiainitaninniinhaemniiitiancaaianinn ..13, 19

Wilderness Society v. Morton, “495 F.2d 1026 (D.C. Cir.

1974), reversed sub nom., Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240 (1975) ........ 25

Williams v. Thomas, 692 F.2d 1032 (5th Cir. 1982), cert.

denied, 462 U.S. 1133 (1983) a 13

Yates v. Mobile County Personnel Bd., 719 F.2d 1530

(11th Cir. 1983) 7 sajaasaiadiiailasil 14, 19

Statutes

BD TEE: STD weseetisrncetnittierevincnnnetonse paisa 2,7

BD Tres Ge cakcncteetineitiinnrniniiintiainmein 1, 2, 3, 6,7

TR BG eset iciecvetestenesranicenenccinininreensicnciontonentnsnstesssiittile 1,7

De Ne ED eiiiecterrtncidenteeeneeeneadann 2, 3,7

Ts te IE, escent seninnennsepneetnneinnindaanaaa 2,3, 4, 7

29 U.S.C. § 523 ........... Siihibantipbdisaaccaiisanndteesejiasedaiites 2,7

/ Bis ' eG Beene ickeetaalimackoieipatesannimunanictediie 2,4, 7

29 U.S.C. § 530 ... L ooiacndiecebtpaiaiiiiiaindegeidpimenaiadaieti 2, 3,7

ee BE Kiccietncasitttcntree eae 2,4

Ce Tits. © ee ON) cece ereticenniannomae 2, 4, 6, 7, 23

Oy Rain. So EE ceccetenrcriencctans EERE eT ae nO passim

Other Sources

Code of Professional Responsibility, Disciplinary Rule

SPOUT . scissrbieteensinneiniansisiataabeshenobediieesiaaammsebes sienaiahabspiacnaetes 13

Berger, Court Awarded Attorneys’ Fees: What is

‘Reasonable’?, 126 U.PENN.LAW REv. 281 (1977) .... 29

Report of the Third Circuit Task Force on Court

Awarded Attorney Fees, dated October 8, 1985, con-

Cele WA: FFE Fane BO a ticenccplncintcnncteteneetineiaecdenn 12, 24

Petitioners, International Union of Operating Engi-

neers, Local 18 respectfully request that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Sixth Circuit entered in

this proceeding on September 30, 1985.

OPINIONS BEL(¢ ,/

The opinion of the United States Court of Appeals

for the Sixth Circuit is unreported and is reprinted at

A-466 of the Appendix to this Petition. The opinion of

the United States District Court for the Northern District

of Ohio, dated July 18, 1978, is reported at 99 L.R.R.M.

2074 (N.D. Ohio 1978) and is reprinted at A-1 of the Ap-

pendix to this Petition. The October 14, 1982 opinion of

the United States District Court is unreported and is re-

printed at A-377 of the Appendix.

JURISDICTION

The judgment sought to be reviewed by this Petition

was rendered and entered on September 30, 1985. This

Petition for Certiorari is filed within ninety days of that

date. The Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

Because of their lergth, the following statutes are

set forth verbatim in the Appendix, A-504-A-505:

29 U.S.C. 8§ 411(a) (1), (2), (5)

29 U.S.C. § 412

42 U.S.C. § 1988

STATEMENT OF THE CASE

This action was initiated by William Murphy

{“Murphy”] against Local 18 of the International Union

of Operating Engineers [“‘Local 18” or “Union’’], President

Charles Rutherford, Business Manager John Possehl,-Vice-

President John Frank, Conductor Frank Miller and the

Chairman of the Election Committee, S. S. Blair. In his

original Complaint filed in December, 1973, Murphy alleged

that the defendants had violated his rights under Title I

of the Labor-Management Reporting and Disclosure Act,

29 U.S.C. § 411 [“LMRDA”].

At the conclusion of the plaintiff’s case, the plaintiff

successfully moved to amend his complaint adding allega-

tions under the Civil Rights Act of 1866 and 1871, 42

U.S.C. §§ 1981 and 1985(3). At the end of trial, Murphy

was further permitted to amend his Complaint, adding a

number of claims under §§ 481(c), 501, 529, 530 and 523

of the LMRDA, two claims under § 301 of the Labor-

Management Relations Act, 29 U.S.C. § 185 [“LMRA”],

and a number of pendent claims under Ohio law.

On July 18, 1978, the district court issued findings

of fact and conclusicns of law. The court entered judg-

ment in favor of defendants Rutherford, Blair and Miller.

The court also dismissed most of the allegations against

defendants Local 18, Possehl and Frank, while imposing

liability under some portions of the Amended Complaint.

On October 14, 1982, the court issued a supplemental

decision modifying its earlier judgment concerning puni-

tive damages and deciding various motions for costs and

attorney’s fees.

3

A. July 18, 1978 Decision Of The District Court

The district court held that Local 18 did not violate

§ 411 (a) (1) or (5) of the LMRDA, stating that Murphy

had failed to show improper refusal on behalf of Local 18

to accept his phone service as a substitute in the referral

process; failed to show that the Union improperly refused

him access to referral lists; failed to prove discrimination

in the right to vote, to nominate candidates, or to speak

at meetings; and failed to show that the Union improperly

denied him access to the Union’s newsletter, the Buckeye

Engineer.

Murphy also failed to show that the Union improp-

erly conducted elections. Murphy’s allegations in this

regard, characterized as § 411 violations, were rejected

by the district court even when considering those charges

properly before the court under § 481(c).’ Similarly,

Murphy’s claims under §§ 501 and 530 of the LMRDA

were deemed to be beyond the jurisdiction of the court.

The court further rejected Murphy’s claim that he had

a right to copy membership lists.

At the heart of Murphy’s charges was the denial of

a “full and fair hearing” guaranteed by § 411(a) (5) (c)

of the LMRDA, occurring during his intra-Union trial

for theft of an election control list. The district court

rejected Murphy’s claims that the trial and subsequent

suspension were contrived to preclude Murphy’s candidacy

for Union office and rejected each of Murphy’s challenges

to the pretrial procedures and rulings connected with

such trial.

The district court characterized Murphy’s intra-Union

trial as “orderly and efficient” rejecting Murphy’s claims

1. Some of these allegations fell within the exclusive juris-

diction of the Department of Labor.

4

of evidentiary impropriety and found that the sentence

imposed was not excessive. Although the court found

that the defendants had “manipulated” the composition

of Murphy’s jury, it concluded that § 529 of the LMRDA

had not been violated.

Despite the Sixth Circuit Court of Appeals’ previous

rulings to the contrary in IUOE, Local 18 v. NLRB, 496

F.2d 1308 (6th Cir. 1974) and IUOE, Local 18 v. NLRB,

555 F.2d 552 (6th Cir. 1977), the district court agreed

with Murphy’s contentions that the Union had unlawfully

refused to re-register Murphy’s work card and that the

Union had unlawfully failed to reinstate Murphy at the

end of his suspension.

With regard to Murphy’s civil rights claims, the dis-

trict court rejected Murphy’s claimed violation of 42

U.S.C. § 1981, while it held defendants Frank and Possehl

jointly and severally liable for conspiring to violate

Murphy’s civil rights under 42 U.S.C. § 1985(3) and held

Local 18 “vicariously liable” for the “conspiracy”.

The district court rejected the bulk of Murphy’s pen-

dent claims against the defendants under Ohio law, in-

cluding claims of abuse of process and defamation. The

court further ruled that Murphy’s allegations of malicious

interference with contractual and associational rights were

included within his claim for breach of contract. Although

the district court held that there was no breach of contract

in Murphy’s trial for theft of the election control list,

the court did find a breach of contract with Murphy

through discrimination in employment referrals. The

court also found against the defendants for assault and

battery. and civil conspiracy. Although the court found

Murphy’s claims under § 501 to be improper, it entered

but then vacated judgment against Possehl] for violation

of his common law fiduciary duties.

5

On the basis of the foregoing, the district court

awarded Murphy compensatory damages in the amount

of $10,000, as well as punitive damages in the amounts of

$30,000 against Possehl, $20,000 against Frank, and $150,000

against Local 18. The court then vacated the award

against Possehl, who had passed away subsequent to the

end of trial but prior to the entry of judgment. The

district court deferred execution of the judgment and

offered to consider vacating the punitives against Frank

and Local 18, provided that Frank agree not to be a Union

officer for five years and provided that Local 18 submit

a plan to the court to maintain open and accessible chan-

nels of communication to all candidates for Union office.

The court also ordered injunctive relief against the

defendants, while deferring its ruling on the propriety

of attorney fees. Three out of four of the court’s rulings

with respect to injunctive relief were limited to Murphy

himself, and did not benefit other members. These in-

cluded the obligation to expunge Murphy’s record, to

refrain from interfering with Murphy’s exercise of LMRDA

rights, and to refrain from discriminating against Murphy

in the referral system.’

B. October 14, 1982 Post-Judgment Memorandum

Opinion And Order

In its post-judgment opinion, the district court vacated

its punitive damage award against Frank because he

agreed not to seek or hold Union office for five years.

The punitive damage award against Local 18 was also

vacated upon the Union’s voluntary submission of a plan

to make its decision-making and referrals more democratic

2. Murphy v. International Union of Operating Engineers,

Local 18, et al., 99 L.R.R.M. 2074 (N.D. Ohio 1978), A-1.

6

in nature. The court also denied Murphy’s motion to

tax as costs the fees of his expert witness. The court

further awarded attorney fees against Local 18 based on

the Civil Rights Attorneys’ Fees Act of 1976, 42 U.S.C.

§ 1988 and based on the “bad faith” and “common benefit”

exceptions to the American Rule on attorney fees. The

fees were in the amount totaling $33,107.50 for work

performed by Legal Aid attorney Stege and $100,232.50

for work performed by private attorney Ruben. The

court denied Murphy’s request to have his expert witness

fees taxed as costs, taxing $1,821.46 to defendants for

other costs.

C. Appeal And Cross-Appeal To The Sixth Circuit

Local 18 appealed the district court’s judgment, ar-

guing that the court erroneously found common law and

statutory violations. The Union also challenged as erro-

neous the award of attorney fees and the excessiveness

of the amount awarded.

Murphy cross-appealed, claiming that the district

court erroneously vacated its award of punitive damages

and should have taxed his expert witness fees as cosis.

Murphy further challenged the district court’s determina-

tion that the Union’s refusal to provide access to the

Union newspaper was in violation of 29 U.S.C. § 411.

The Sixth Circuit Court of Appeals, on September 30,

1985, affirmed the outcome of the district court’s opinion,

although on different bases. The appeals court agreed

with the Union that Murphy’s § 1985(3) claim was barred

by the en banc decision in Shimman v. International Union

of Operating Engineers, Local 18, 744 F.2d 1226 (6th Cir.

1984), cert. denied, 105 S. Ct. 1191 (1985). Regarding

the other claims raised in Murphy’s Amended Complaint,

7

under §§ 481(c), 501, 523, 529 and 530 of the LMRDA

and § 185 of the LMRA, the Sixth Circuit found merito-

rious the claims made by the Union, but determined that

the district court opinion could be affirmed solely upon

findings of liability under §§ 411 and 412 of the LMRDA.

Because the appeals court rejected Murphy’s § 1985(3)

cause of action, attorney fees could not be justified under

42 U.S.C. § 1988. The court also determined that Murphy

was not entitled to fees under the “bad faith” theory,

but found the “common benefit” theory to apply. The

court further held that the award of attorney fees was

not excessive.

The Sixth Circuit denied each of Murphy’s claims made

on cross-appeal.

Petitioner Union now seeks review before this Court

of the September 30, 1985 judgment of the Sixth Circuit

Court of Appeals, with regard to the award of attorney

fees and the excessiveness of the amount awarded.

REASONS FOR GRANTING THE WRIT

I. INTRODUCTION

A decision by the Supreme Court is necessary to

correct a substantial conflict among the circuits concerning

the application of the common benefit equitable exception

to the American Rule on attorney fees, as well as the

factors to be applied in conferring a fee award under a

non-punitive equitable exception. This case addresses an

additional facet of the attorney fees calculation questions

to be considered by this Court in City of Riverside v.

Rivera, 763 F.2d 1580 (9th Cir. 1985), cert. granted, No.

85-224, and City of McKeesport v. Cunningham, 753 F.2d

8

262 (3d Cir. 1985), petition for cert. filed, No. 84-1793.

The conflicts and errors created by the Sixth Circuit in

the present case are summarized below.

First, the Sixth Circuit erroneously failed to consider

any factors beyond the hours submitted and a reasonable

rate in computing fees awarded under the “common ben-

efit” rationale, in direct conflict with a majority of the

circuits. Furthermore, the Sixth Circuit has construed

this Court’s decisions in the statutory fee cases Hensley

v. Eckerhart, 461 U.S. 424 (1983) and Blum v. Stenson,

lanaieen US. ......... 79 L. Ed. 2d 891, 104 S. Ct. ....... (1984),

as warranting its failure to consider such essential factors

in computing fees awarded under the “common benefit”

rationale and as failing to disapprove of a similar approach

taken in Northcross v. Board of Education of Memphis

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

447 U.S. 911 (1980), another statutory fee case. This

position conflicts with prior decisions of this Supreme

Court, as interpreted by a majority of the other circuits.

Second, in awarding attorney fees under the “com-

mon benefit” theory the Sixth Circuit failed to consider

that “common benefit” awards subsume a rationale dis-

tinct from that present in statutory fee cases, thus re-

quiring an additional determination or consideration as

to the proportionate share of the costs incurred by the

plaintiff in obtaining the benefit conferred. While this

Court has addressed certain aspects of calculating stat-

utory fee awards pursuant to 42 U.S.C. § 1988, and re-

cently agreed to determine whether additional factors

should be considered in City of Riverside v. Rivera,

3. In Rivera, this Court will consider the Cisproportionality

of the attorney fee award as compared to the plaintiff’s recovery.

(Continued on following page)

9

this Court has not addressed whether the same factors

must be applied in common benefit cases.

Third, the Sixth Circuit’s decision that there could

be an award of over $100,000 in attorney fees for work

performed by the plaintiff's private attorney and over

$33,000 in fees for work performed by his Legal Aid

attorney, under the “common benefit” equitable exception

to the American Rule, although by agreement the plain-

tiff owed no fees to his private attorney or to his Legal

Aid attorney, is contrary to decisions in every other cir-

cuit and to this Court’s decisions in Mills v. Electric Auto-

Lite Co., 396 U.S. 375 (1970); Hall v. Cole, 412 US. 1

(1973); and Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975).

Il. THE SIXTH CIRCUIT INCORRECTLY AF-

FIRMED THE DISTRICT COURT DECISION TO

AWARD ATTORNEY FEES WITHOUT CONSID-

ERING ANY FACTORS IN CALCULATING THE

FEES BEYOND THE HOURS SUBMITTED AND

REASONABLE RATE, IN DIRECT CONFLICT

WITH DECISIONS IN EVERY OTHER CIRCUIT

AND WITH PRIOR DECISIONS OF THIS COURT,

AS INTERPRETED BY A MAJORITY OF THE

CIRCUITS.

In its Post-Judgment Memorandum Opinion and

Order, the district court in the present case awarded

Footnote continued—

Such disproportionality also exists in the present case. Murphy

recovered $10,000 in compensatory damages plus an amount in

back wages which is anticipated to be less than $30,000, although

yet to be determined by the district court. The injunctive relief

granted was largely personal to Murphy. Nonetheless, there was

an award of attorney fees in excess of $133,000.

10

$33,107.50 for work performed by Mr. Stege and $100,232.50

for work performed by Mr. Ruben, for every minute of

time they submitted.‘ The only reduction in the amount

of fees requested by respondent's attorneys, was the dis-

trict court’s reduction in Mr. Ruben’s hourly rate of $85

per hour for the years 1975-1976. The court reduced

Ruben’s rate to $80 per hour.

In making its award, the district court refused to

adjust the attorney fees assessed to reflect any duplicative

time between the attorneys’ pre-litigation and non-litiga-

tion time, any time spent litigating unsuccessful claims,

or the failure to submit contemporaneously kept and pre-

pared time records. In non-litigation time, labeled as

“office” time, attorney Stege submitted 341 hours and

attorney Ruben submiited 1030 hours. Litigation time,

including depositions, was assessed at 141 hours for attor-

ney Stege and 204.5 hours for attorney Ruben. No con-

sideration was given to assessing different rates for office

time as opposed to litigation time. The district court

also failed to adjust for clear duplication between the

attorneys in office time, as well as trial preparation and

trial appearances.

Furthermore, both the district court and the Sixth

Circuit Court of Appeals refused to apply any factors

beyond the basic “lodestar” consideration of hours spent

multiplied by a reasonable hourly rate. This approach

conflicts with decisions in every other circuit.

4. The district court’s attorney fee award, was based in

part on 42 U.S.C. § 1988 and the bad faith exception to the

American Rule. The Sixth Circuit negated the statutory fee

basis by rejecting Murphy’s § 1983 claims and the bad faith fee

basis by holding that there was no bad faith during the course

of the litigation. Murphy, Nos. 82-3702 and 82-3747, at pp. 22,

26. A-487, A-491. 7

11

A. The Sixth Circuit Incorrectly Relied On North-

cross, An Opinion Unprecedented Among The

Circuits And Directly Conflicting With The

Positions Of Every Other Circuit

There is no uniform approach for calculating fair

and reasonable attorney fees under either a statutory

award of fees or fees awarded on an equitable basis.

However, the approach taken by the Sixth Circuit is

contrary to any other circuit’s approach. One approach

is best illustrated by the Fifth Circuit case, Johnson v.

Georgia Highway Express,° and cases following the John-

son approach.

Under Johnson, 12 factors must be at least considered

by the district court before an award of attorney fees

can be made. These include: (1) the time and labor

required; (2) the novelty and difficulty of the issues;

(3) the legal skill required to perform the legal services;

(4) the preclusion of other employment due to the accep-

tance of the case; (5) the customary fee; (6) the contin-

gent or fixed nature of the fee;’ (7) the time limitations

imposed by the client or the case; (8) the amount involved

and the results obtained; (9) the experience, reputation,

and ability of the attorneys; (10) the undesirability of

the case; (11) the nature of the professional relationship

with the client; and (12) awards in similar cases. Under

Johnson, the number of hours and the reasonable hourly

rate have no more significance than any of the other

factors.

5. 488 F.2d 714 (Sth Cir. 1974).

6. Had the nature of the fee agreement in the instant case

been examined, the court would have been cognizant that there

was no attorney fee liability on behalf of the plaintiff, to either

his Legal Aid Society attorney or his private attorney, to be

spread proportionately among the members of the group ben-

efitting from the litigation.

oOo

12

A second approach to awarding reasonable fees is

the “lodestar” analysis first articulated in Lindy Brothers

Builders, Inc. of Philadelphia v. American Radiator &

Standard Sanitary 87 F.2d 161 (3d Cir. 1973)

(“Lindy I’) and Linu, 1. thers Builders, Inc, of Philadel-

phia v. American Radiator & Standard Sanitary Corp.,

540 F.2d 102 (3d Cir. 1976) (“Lindy II’). The “lodestar”

is composed of the number of hours reasonably expended

on the case multiplied by a reasonable hourly rate. Under

the strictest “lodestar” approach the “lodestar” figure may

be adjusted upward or downward in rare instances to

reflect only the contingent nature of success and/or the

quality of work performed. The basic lodestar approach

articulated by the Third Circuit, has been criticized by

the Third Circuit, among others, and has been modified.’

Another method of calculating fees combines the

lodestar method with the Johnson factors. The lodestar

calculation is a starting point for calculating the fees.

Once the lodestar figure is determined, the Johnson fac-

tors are applied in order to adjust the lodestar calculation

upward or downward.’ Even courts following a stricter

7. See, for example, Report of the Third Circuit Task Force

on Court Awarded Attorney Fees dated October 8, 1985, con-

tained in 771 F.2d No. 2.

8. Second Circuit: McCann v. Coughlin, 698 F.2d 112 (2d

Cir. 1983).

Fourth Circuit: Barber v. Kimbrell’s, Inc., 577 F.2d 216

(4th Cir. 1978) (The award of attorney fees under the Truth in

Lending Act was vacated because the court did not analyze the

twelve Johnson factors); In re Mid-Atlantic Toyota Anti-trust

Litigation, 605 F. Supp. 440 (D. Md. 1984); Brewster v. Pike, 608

F. Supp. 1163 (D.C. Va. 1985); Brady v. Hartford Fire Ins. Co.,

610 F. Supp. 735 (D.C. Md. 1985) (Hensley requires that upon

determining lodestar amount the Johnson factors are to be ap-

plied).

Fifth Circuit: Copper Liquor, Inc. v. Adolph Coors Co.,

624 F.2d 575 (5th Cir. 1980) (Three-part analysis to be used:

(Continued on following page)

13

Footnote continued—

first the two lodestar factors are to be determined and multiplied,

and then the Johnson factors must be applied to determine

whether to adjust that amount); Williams v. Thomas, 692 F.2d

1032 (5th Cir. 1982) (award of attorney fees under § 1988 re-

quires the district court to engage in the three-part analysis of

Copper Liquor, including consideration of Johnson factors); Davis

v. West Community Hosp., 755 F.2d 455 (5th Cir. 1985) (Attorney

fees award under § 1988 must include the analysis under Hensley

v. Eckerhart and award remanded to consider extent of success

subsequent to the appeal); Stewart v. Lubbock County, Tez.,

767 F.2d 153 (5th Cir, 1985) (Standards enunciated in Hensley

include consideration of Johnson factors); Mandhare v. LaFargue

Elementary School, 605 F. Supp. 238 (E.D. La. 1985).

Seventh Circuit: Bonner v. Coughlin, 657 F.2d 931 (7th

Cir. 1981) (In determining the amount of attorney fees to be

awarded under § 1988, the eight factors set forth in the Code of

Professional Responsibility, Disciplinary Rule 2-106 must be

considered, as well as other factors); State of Ill. v. Sangamo

Const. Co., 657 F.2d 855 (7th Cir. 1981) (The district court must

consider the lodestar amount and then may adjust that amount

upon a consideration of factors listed in Waters v. Wisconsin Steel

Works, 502 F.2d 1309, 1322 (7th Cir. 1974), cert. denied, 425 U.S.

997 (1976) which are basically same as Johnson factors); Lynch

v. City of Milwaukee, 747 F.2d 423 (7th Cir. 1984) (In § 1988

action, under Hensley the Johnson factors considered to determine

“reasonableness” in lodestar or applied upon determination of

lodestar).

Eighth Circuit: The following cases require that the John-

son factors be considered in order to determine whether the basic

lodestar amount should be adjusted: Ladies Ctr., Nebraska, Inc.

v. Thone, 645 F.2d 645 (8th Cir. 1981) (§ 1988 fee award):

Jaquette v. Black Hawk County, Iowa, 710 F.2d 455 (8th Cir.

1983) (§ 1988 fee award); and Easley v. Anheuser-Busch, Inc.,

758 F.2d 251 (8th Cir. 1985) (The Johnson guidelines adopted

by this court must be considered either in the initial calculation

of the reasonableness of the lodestar amounts or in determining

whether to adjust the lodestar figure); Jones v. MacMillan

Bloedel Containers, Inc., 685 F.2d 236 (8th Cir. 1982).

Ninth Circuit: Moore v. Jas. H. Matthews & Co., 682 F.2d

830, 839-840 (9th Cir, 1982) (The award of attorney fees under

the Sherman Anti-Trust Act must entail consideration of amount

of time spent on unsuccessful claims, as well as a “blending” of

the lodestar calculation and the Johnson/Kerr factors); White

v. City of Richmond, 713 F.2d 458 (9th Cir. 1983).

Tenth Circuit: Ramos v. Lamm, 713 F.2d 546 (10th Cir.

1983) (As in Hensley, starting point in statutory fee determina-

tion is the lodestar figure, distinguishing “raw” time from “bill-

able” time, considering duplication and amounts listed for spe-

(Continued cn following page)

14

lodestar approach have applied other factors bearing on

the fee award, as set forth in the margin.°

Footnote continued—

cific tasks, contemporaneous time records and results obtained

as well as other Johnson factors); Brewer v. Southern Union Co.,

607 F. Supp. 1511 (D.C. Colo. 1984) (Extensive review of the

method of calculating attorney fees, lending support for using

lodestar calculation as the starting point and the Johnson factors

are considered and sometimes applied to adjust the lodestar

amount).

Eleventh Circuit: Marion v. Barrier, 694 F.2d 229 (11th

Cir. 1982) (Johnson factors upheld and are to be balanced in

§ 1988 case); Yates v. Mobile County Personnel Bd., 719 F.2d

1530 (11th Cir. 1983) (In determining attorney fees under § 1988,

the extent of success is crucial and factors must be considered in

addition to reasonable hourly rate and reasonable fees); Jones v.

Central Soya Co., Inc., 748 F.2d 586 (11th Cir. 1984) (In age dis-

crimination case, the determination of the reasonableness of

lodestar figure, must include a review of the Johnson factors) ;

Varner v. Century Finance Co., Inc., 738 F.2d 1143 (11th Cir.

1984) (A district court award in attorney fees under Truth in

Lending Act, must consider Johnson factors that are litigated) ;

Watford v. Heckler, 765 F.2d 1562 (llth Cir. 1985) (The lode-

star determination is a reasonable starting point in determining

fees under the Equal Access to Justice Act, and the other Johnson

factors must be considered to determine whether there must be

an adjustment to the lodestar, citing Hensley at 433-34, Jones

at 588-89, and Varner at 1148); Curry v. Block, 608 F. Supp.

1407 (D.C. Ga. 1985).

9. First Circuit: Furtado v. Bishop, 635 F.2d 915 (1st Cir.

1980) (Two steps to the analysis involve determining the

“lodestar” and adjusting that amount to reflect the contingent

nature of the fee, delay in payment, quality of representation,

exceptional results obtained, and other factors enunciated in the

Copeland case); Souza v. Southworth, 564 F.2d 609 (1st Cir.

1977) (District court incorrectly multiplied numbers of hours

by market rate without regard to significance or complexity of

the litigation and with the incorrect assumption that every hour

was billable at the same rate); Segal v. Gilbert Color Systems, Inc.,

746 F.2d 78 (list Cir. 1984) (Once the lodestar is determined, it

may be adjusted as delineated in the Furtado and Copeiand cases) ;

Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984) (The

“lodestar” is merely a “point of reference’ obtained by consid-

ering number of hours actually spent less any duplicative, un-

productive, excessive, or otherwise unnecessary hours, as well

as the type of work performed, who performed it, the expertise

required and when it was undertaken. That amount is then

(Continued on following page)

15

In the present case both the district court and the

Sixth Circuit Court of Appeals relied on the Sixth Circuit

case, Northcross v. Board of Education of Memphis City

Schools,° as support for refusing to apply any factors

beyond the basic lodestar calculation. The Sixth Circuit

in Northcross established guidelines for awarding attorney

fees pursuant to the Civil Rights Attorney’s Fees Awards

Act of 1976.1. The Northcross court decided that once

the prevailing party was determined:

. . . [t]hey are entitled to recover attorneys’ fees

for ‘all time reasonably spent on a matter’. The fact

that some of that time was spent in pursuing issues

or research which was ultimately unproductive, re-

Footnote continued—

adjusted by the factors enumerated in Furtado and Copeland);

Hart v. Bourque, 608 F. Supp. 1091 (D.C. Mass. 1985).

Second Circuit: City of Detroit v. Grinnell Corp., 560 F.2d

1093 (2d Cir. 1977).

Third Circuit: Bagby v. Beal, 606 F.2d 411, 416 (3d Cir.

1979) (In § 1988 fees case, to determine reasonableness of award,

Johnson factors must be considered); Inmates of Allegheny County

Jail v. Pierce, 716 F.2d 177 (3d Cir. 1983) (Hensley requires an

evaluation of the interrelationship between successful and unsuc-

cessful claims and thus the extent of success and amount of the fee

award); Institutionalized Juveniles v. Sec. of Pub. Wel., 758

F.2d 897 (3d Cir. 1985); Hummel v. Brennan, 83 F.R.D. 141 (E.D.

Pa. 1979) (Attorney fees awarded, based on Hall v. Cole by

determining lodestar and then applying nine factors found in

City of Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir.

1974).)

D.C. Circuit: Copeland v. Marshall, 641 F.2d 886 (D.C.

Cir. 1980) (en banc) (Although the Johnson factors are central to

any fee award, the lodestar is the starting point and it is adjusted

by contingent nature of success and quality of representation,

including the extent of success. Hours not included if spent on

non-productive time, time spent on unsuccessful claims, or

duplicative time); Laffey v. Northwest Airlines, Inc., 746 F.2d

4 (D.C. Cir. 1984).

10. 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911

(1980).

1l. 42 U.S.C. § 1988 (1976).

16

jected by the court, or mooted by intervening events

is wholly irrelevant. So long as the party has pre-

vailed on the case as a whole the district courts are

to allow compensation for hours expended on unsuc-

cessful research or litigation, unless the positions as-

serted are frivolous or in bad faith.”

The district court in the present case, based on Northcross,

stated:

Having reviewed the affidavits of attorneys Stege

and Ruben, this Court concludes that they neither

claimed unjustified hours nor duplicated each other’s

services. This Court will neither deduct hours for

cause nor arbitrarily deduct a small percentage of the

total hours for duplication of services. This Court

finds that the hours for which attorneys Stege and

Ruben are entitled to compensation are accurately

summarized in the above chart.’®

The chart referred to by the court merely listed the num-

ber of hours each attorney had devoted to “office” matters

and to “litigation”. The district court did not consider

applying different rates for office time, trial preparation

or litigation time. The court also failed to adjust for

clear duplication between the attorneys in office time,

duplicative trial preparation and briefs, as well as dupli-

cation in trial appearances. Proof of contemporaneous

time records was not required by the court."

12. 611 F.2d at 636. (Emphasis added.) See also, Stewart

v. Rhodes, 656 F.2d 1216 (6th Cir. 1981); Louisville Black Police

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

13. Post-Judgment Memorandum Opinion and Order, p. 19,

A-419, 420.

14. For examples of cases requiring contemporaneous time

records, see Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 (1st

(Continued on following page)

17

The Sixth Circuit, in the present case, did not condone

an award of attorney fees on either a statutory fee basis

or bad faith basis.° Instead, the Sixth Circuit condoned

the award of fees under the common benefit rationale,'®

citing the following language of this Court in Hensley

v. Eckerhart:

The district court also may consider other factors

identified in Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717-719 (CA5 1974), though it

should note that many of these factors usually are

subsumed within the initial calculation of hours rea-

sonably expended at a reasonable hourly rate. See

Copeland v. Marshali, 205 U.S. App.D.C. 390, 400,

641 F.2d 880, 890 (1989) (en banc).™’

Referring to the Johnson case, the Sixth Circuit further

stated:

In Northcross, the Sixth Circuit expressly rejected

this checklist approach to fee determinations. Instead

the Sixth Circuit held that a district court need only

consider the hours of service provided (and whether

those hours were reasonable under the circumstances)

and a reasonable rate of compensation. 611 F.2d at

636-39. The Sixth Circuit found that such an approach

Focinote continued—

Cir. 1984); New York Ass’n For Retarded Children v. Carey, 711

F.2d 1136, 1148 (2d Cir. 1983); Ramos v. Lamm, 713 F.2d 546, 553

(10th Cir. 1983); and National Ass’n of Concerned Veterans v.

Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982).

15. Murphy, Nos. 82-3702 and 82-3747, at pp. 21, n.7 and

22, A-486, A-487.

- 16. See infra, pp. 21-26.

17. Murphy, Nos. 82-3702 and 82-3747, at p. 24, A-489,

citing Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983).

18

‘will take into account all the relevant factors, and

will lead to a reasonable result’. Id. at 642.'*

Thus, under the Sixth Circuit approach, once the lodestar

amount is determined, the district court need only con-

sider whether the positions asserted are frivolous or in

bad faith. In so holding, the Sixth Circuit’s position is

contrary to that taken by every other circuit.’

The Court should take this opportunity to resolve

the conflict among the circuits and to clarify the factors

to be considered in making a reasonable and fair attorney

fee award under exceptions to the American Rule. The

existence of the conflict among the circuits and this Court’s

recent decision to review the factors involved with another

attorney fee award strongly suggests that the time is

ripe for a decision by this Supreme Court on this issue.

B. The Sixth Circuit’s Attorney Fees Holding

Conflicts With Prior Decisions Of The Supreme

Court, As Interpreted By A Majority Of The

Circuits

The Sixth Circuit stated in the present case, that

this Court’s decision in Hensley v. Eckerhart, 461 U.S. 424

(1983) neither approved the application of the Johnson

factors nor disapproved the Sixth Circuit approach in

Northcross. The Northcross court, followed in the present

case, opined that, “So long as the party has prevailed as

a whole the district courts are to allow compensation for

18. Murphy, Nos. 82-3702 and 82-3747, at p. 24, A-489.

19. See supra, pp. 12-15.

20. City of Riverside v. Rivera, 763 F.2d 1580 (9th Cir.

1985), cert. granted, No. 85-224. Also pending is a petition for

certiorari in City of McKeesport v. Cunningham, 753 F.2d 262

(3d Cir. 1985), petition for cert. filed, No. 84-1793.

19

hours expended on unsuccessful research or litigation,

unless the positions asserted are frivolous or in bad faith."

Contrary to the position taken by the Sixth Circuit,

a majority of the circuits have interpreted Hensley in

determining a reasonable fee award, as providing that

although such an award begins with the lodestar calcula-

tion, the lodestar does not end the analysis. Other factors

may, and in some cases must be considered, according to

this interpretation of Hensley,”* and the Johnson factors

may be used to modify the award.** In addition, the

21. 611 F.2d at 636.

22. Cases interpreting Hensley in this manner include:

First Circuit: Grendel’s Den, Inc. v. Larkin, 749 F.2d 945

(ist Cir. 1984); Segal v. Gilbert Color Systems, Inc., 746 F.2d 78

(ist Cir. 1984); Hart v. Bourque, 608 F. Supp 1091 (D.C. Mass.

1985).

Third Circuit: Institutionalized Juveniles v. Sec. of Pub.

Wel., 758 F.2d 897 (3d Cir. 1985).

Fourth Circuit: Brady v. Hartford Fire Ins. Co., 610 F.

Supp. 735 (D.C. Md. 1985).

Fifth Circuit: Stewart v. Lubbock County, Tex., 767 F.2d

153 (5th Cir. 1985).

Seventh Circuit: Ohio-Sealy Mattress Manuf. Co., et al. v.

Sealy, Inc., et al., Case Nos. 84-2886 and 84-2926 (7th Cir., Oct.

21, 1985); Lynch v. City of Milwaukee, 747 F.2d 423 (7th Cir.

1984).

Eighth Circuit: Tusa v. Qmaha Auto Auction, Inc., 712 F.2d

1248 (8th Cir. 1983); Easley v. Anheuser-Busch, Inc., 758 F.2d

251 (8th Cir. 1985).

Ninth Circuit: White v. City of Richmond, 713 F.2d 458

(9th Cir. 1983).

Tenth Circuit: Brewer v. Southern Union Co., 607 F. Supp.

1511 (D.C. Colo. 1984); Ramos v. Lamm, 713 F.2d 546 (10th

Cir. 1983).

Eleventh Circuit: Watford v. Heckler, 765 F.2d 1562 (1 th

Cir. 1985); Jones v. Central Soya Co., Inc., 748 F.2d 586 (lith

Cir. 1984); Yates v. Mobile County Personnel Bd., 719 F.2d 1530

(lith Cir. 1983); Curry v. Block, 608 F. Supp. 1407 (D.C. Ga.

1984).

D.C. Circuit: Laffey v. Northwest Airlines, Inc., 746 F.2d

4 (D.C. Cir. 1984).

23. See supra, footnote 9, p. 15.

20

Hensley case has been interpreted to require consideration

of the extent of plaintiff's success, in order to determine

whether reduction for partial success is in order.** To

the contrary, the Sixth Circuit in the present case refused

to read Hensley as requiring consideration of the “results

obtained” Johnson factor.”®

Further support for interpreting Hensley as approving

the application of the Johnson factors can be found in

footnote 8 of the concurring and dissenting op. ion of

Justices Brennan, Marshall, Blackmun and Stevens in

Hensley, where the Justices state that the court had ex-

pressly approved the Johnson factors.*®

III. THE SIXTH CIRCUIT’S ATTORNEY FEES DE-

CISION, RELYING ON STATUTORY FEE

CASES, DISREGARDED THE ESSENTIAL DIF-

FERENCES BETWEEN FEES BASED ON THE

COMMON BENEFIT RATIONALE AND STAT-

UTORY FEE AWARDS, AND THUS CONFLICTS

WITH THIS COURT’S PRIOR COMMON BENE-

FIT OPINIONS.

The longstanding American Rule prohibiting an award

of attorney fees to a prevailing party in the absence of

24. See Inmates of Allegheny County Jail v. Pierce, 716

F.2d 177 (3d Cir. 1983); Institutionalized Juveniles v. Sec. of

Pub. Wel., 758 F.2d 897 (3d Cir. 1985) (The district court must,

under Hensley, consider the relationship between the extent of

success and the amount of the fee award); Davis v. West Com-

munity Hosp., 755 F.2d 455 (5th Cir. 1985) (Although the dis-

trict court properly considered the relationship between the

extent of success and the fee award, remanded in view of lesser

success after appeal); Tusa v. Omaha Auto Auction, Inc., 712

F.2d 1248 (8th Cir. 1983); Watford v. Heckler, 765 F.2d 1562

(11th Cir. 1985).

25. Murphy, Nos. 82-3702 and 82-3747, at pp. 23, 24,

A~-488, A-489.

26. 461 U.S. at 55.

21

a statute or contract providing for such an award, has

been regularly reaffirmed by the Supreme Court in nu-

merous decisions.”

Several narrow exceptions have been judicially carved

out of the American Rule, including the “bad faith”*s

exception and the “common benefit” exception. This

Court’s decision in Hall v. Cole, 412 U.S. 1 (1973) set

forth the present day formulation in LMRDA cases of

the “common benefit” exception recognized in Mills v.

Electric Auto-Lite Co., 396 U.S. 375 (1970).

In Mills, this Court extended the earlier “common

fund” rationale, under which one who initiates a lawsuit

resulting in the creation of or increase in a fund in which

others have a common interest, to allow reimbursement

from the fund for litigation expenses incurred. This

Court in Millis allowed an award of attorney fees to a

plaintiff whose litigation conferred a non-pecuniary ben-

efit on others, reasoning that the plaintiff’s lawsuit “[h]as

conferred a substantial benefit on the members of an

ascertainable class, and where the court’s jurisdiction over

the subject matter of the suit makes possible an award

that will operate to spread the costs proportionately among

them.’

27. Hensley v. Eckerhart, 461 U.S. 424 (1983); Summit

Valley Industries v. Local 112, United Brotherhood of Carpenters,

456 U.S. 717 (1982); Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975); and Mills v. Electric Auto-Lite Co.,

396 U.S. 375 (1970).

28. The Sixth Circuit in the present case rejected the dis-

trict court’s award of fees under the “bad faith” theory, citing

Shimman v. Internationai Union of Operating Engineers, Local

18, 744 F.2d 1226 (6th Cir. 1984) (en banc), cert. denied, 105

S.Ct. 1191 (1985) as allowing a “bad faith” award only for bad

faith during the course of the litigation. The “private attorney

general” exception was overruled by this Court in Alyeska Pipe-

line Service Co. v. Wilderness Society, 421 U.S. 240 (1975).

29. 396 U.S. at 393-94.

22

In Hall v. Cole,*® this Court held that the plaintiff,

by vindicating kis own right to free speech, rendered a

substantial service or “common benefit” to the Union as

an institution, and to all of its members. More specif-

ically, this Court provided for the common benefit excep-

tion where a plaintiff confers:

“Ta] substantial benefit on the members of an ascer-

tainable class, and where the court’s jurisdiction over

the subject matter of the suit makes possible an award

that will operate to spread the costs proportionately

among them.” Mills v. Electric Auto-Lite, supra,

at 393-394. ‘“Fee-shifting” is justified in these cases,

not because of any “bad faith” of the defendant but,

rather, because “[t]o allow the others to obtain full

benefit from the plaintiff's efforts without contrib-

uting equally to the litigation expenses would be to

enrich the others unjustly at the plaintiff's expense.”

Id., at 392; see also Fleischmann Distilling Corp.

v. Maier Brewing Co., supra, at 719, Trustees v.

Greenough, 105 U.S. 527, 532 (1882).*

The Sixth Circuit in the present case held that attor-

ney fees were only to be awarded under the common

benefit exception to the American Rule, rejecting the

bad faith and statutory fee bases.

Attorney fees would have also been precluded under

the common benefit rationale, if the Union had not vol-

untarily expended a great deal of time and money to

develop a new referral system plan. As a result of the

Union’s efforts, the district court vacated the punitive

damage award previously assessed against the Union.

30. 412 U.S. 1 (1973).

31. 412 U.S. at pp. 5-6 (Footnotes omitted.) (Emphasis

added. )

23

Had the Union instead chosen to pay the punitives, the

group would have not have been benefitted in the same

manner as Murphy and common benefit fees would have

been precluded under Shimman v. International Union

of Operating Engineers, Local 18.** Curiously, the vol-

untary action of the Union served to penalize the mem-

bership. This resulted from the Sixth Circuit’s incorrect

reliance on statutory fee cases, while at the same time

precluding recovery under § 1985 (3), without further con-

sideration as to the necessity for applying additional fac-

tors in common benefit fee award cases.

This Court has not directly considered whether its

decisions in Hensley v. Eckerhart** and Blum v. Stenson*

are applicable to common benefit cases, and whether addi-

tional factors must be considered in common benefit cases.

However, this Court has recognized the distinction be-

tween statutory fee cases and equitable fee cases.*

Unlike statutory fee cases which shift the attorney

fees to the unsuccessful litigant and calculate a reasonable

fee by measuring the amount of attorney time reasonably

expended, common benefit attorney fees must be calcu-

lated so as to spread proportionately among the member-

ship of the class benefitting from the plaintiff’s acts, the

plaintiff’s litigation expenses, in order to avoid unjust en-

richment on the part of those who benefitted at the plain-

tiff’s expense.** In cases decided under the equitable

doctrine, the parties paying the fee award are not before

32. 744 F.2d 1226 (6th Cir. 1984) (en banc), cert. denied,

105 S. Ct. 1191 (1985).

33. 461 U.S. 424 (1983).

34. ...... US. ......, 79 L. Ed. 2d 891, 104 S. Ct. ...... (1984).

35. Blum, 79 L. Ed. 2d at 903.

36. See supra, pp. 21, 22.

24

the court, as in statutory fee cases, necessitating a height-

ened fiduciary role by the judge on behalf of the benefi-

ciaries.*”

Public policy considerations in statutory fee cases are

distinct from common benefit cases. This Court in Alyeska

Pipeline Service Co. v. Wilderness Society, rejected the

application of an equitable basis for an attorney fee award

when a plaintiff acted as a “private attorney general”,

ruling that the authorization for such fee awards must

be granted by Congress.** In response to that ruling,

Congress enacted the Civil Rights Attorneys’ Fees Awards

Act of 1976.°° It has been stated that:

Civil rights plaintiffs with meritorious claims

“appear before the court cloaked in a mantle of public

interest.”’*°

Congress asserted that the public as a whole has an interest

in the vindication of civil rights. While in the past courts

used the common benefit exception to extend the American

37. See Blum, 79 L. Ed. 2d at 903 and Report of the Third

Circuit Task Force on Court Awarded Attorney Fees, dated

Oct. 8, 1985, contained at 771 F.2d No. 2 at p. 20 and at p. 25 the

following appears:

Upon reflection, the Task Force agreed that the funda-

mental differences between statutory fee and fund-in-court

cases should be recognized in the fee setting process. Treat-

ing these two categories of cases in variant ways to best

achieve their policy objectives appear sound especially in

light of footnote 16 of Justice Powell’s opinion in Blum v.

Stenson, quoted earlier. (Footnotes omitted.)

38. Northcross v. Board of Ed. of Memphis City Schools,

611 F.2d 624, 632 (6th Cir. 1979), cert. denied, 447 U.S. 911

(1980), citing Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975).

39. 42 U.S.C. § 1988 (1976); Hensley v. Eckerhart, 461 U.S.

at 56 (dissenting opinion).

40. Hensley, 461 U.S. at 57, citing H.R. Rep. No. 94-1558,

p. 6 (1976).

25

Rule further under the “private attorney general” theory

to award fees to plaintiffs vindicating important statutory

rights of the public as a whole,‘' such an approach was

rejected in Alyeska. Alyeska did, however, approve the

common benefit rationale applied in Mills and Hall, to

prevent unjust enrichment at the plaintiff's expense.

Clearly, in so holding, this Court recognized the distinction

in the rationale behind the two approaches.

In the present case, the same rationale used in stat-

utory fees cases wherein there is express Congressional

purpose for an award of fees was incorrectly applied to

a common benefit case with no consideration of additional

factors in calculating the amount of the fees. The Sixth

Circuit permitted the respondent to succeed as he would

have under the private attorney general theory, while

nonetheless designating the relief as that granted under

the common benefit rationale.” This merger was accom-

plished by the Sixth Circuit, contrary to this Court’s ratio-

nale in Alyeska, Mills and Hall. It is essential that this

Court clarify the Sixth Circuit’s fallacious determination.

41. See Hoitt v. Vitek, 495 F.2d 219 (1st Cir. 1974); Cornist

v. Richland Parish School Board, 495 F.2d 189 (5th Cir. 1974),

modified, 517 F.2d 1032 (5th Cir. 1975); Knight v. Auciello, 453

F.2d 852 (ist Cir. 1972); Wilderness Society v. Morton, 495 F.2d

1026 (D.C. Cir. 1974), reversed sub nom., Alyeska Pipeline Ser-

vice Co. v. Wilderness Society, 421 U.S. 240 (1975).

42. As the Sixth Circuit stated in Shimman v. International

Union of Operating Engineers, Local 18, 744 F.2d 1226, 1235

n.13 (6th Cir. 1984), cert. denied, 105 S. Ct. 1191 (1985):

Society as a whole always benefits through general de-

terrence when the law is enforced. Allowing a fee award

based on such benefits, however, would come close to ac-

cepting the “private attorney general” rationale, which was

rejected by the Supreme Court in Alyeska. The common

benefit theory should not be allowed to merge into the pri-

vate attorney general approach. Saioskar v. Indiana Real

Estate Commission, 517 F.2d 696 (7th Cir.), cert. denied, 423

U.S. 928, 96 S. Ct. 276, 46 L. Ed. 2d 256 (1975). (Emphasis

added. )

26

IV. THE SIXTH CIRCUIT ERRONEOUSLY AF-

FIRMED THE DISTRICT COURT’S ABUSE OF

DISCRETION IN DIRECT CONFLICT WITH

CASES IN EVERY OTHER CIRCUIT AND

WITH PRIOR DECISIONS OF THIS COURT BY

AWARDING OVER $133,000 IN ATTORNEY

FEES UNDER THE ‘“‘COMMON BENEFIT” RA-

TIONALE, ALTHOUGH BY CONTRACT THE

PLAINTIFF OWED NO FEES TO HIS PRI-

VATE ATTORNEY OR TO HIS LEGAL AID

ATTORNEY RESULTING IN THE PLAIN-

TIFF INCURRING NO COSTS OF THE LITI-

GATION TO BE SPREAD PROPORTIONATELY

AMONGST THE MEMBERSHIP OF THE CLASS

ALLEGEDLY BENEFITTING FROM THE LIT-

IGATION.

In the instant case, the Sixth Circuit held that attor-

ney fees were properly awarded by the district court,

only under the common benefit exception to the American

Rule. The court thus rejected the district court’s award

of fees under the bad faith exception and under 42 U.S.C.

§ 1988. In placing its imprimatur on such a common

benefit award, the Sixth Circuit stated:

Here, on the other hand, without the award of

attorneys’ fees, Murphy will receive no punitive dam-

ages and only $10,000 and lost wages in compensatory

damages. Thus, without the attorneys’ fee award,

Murphy would suffer significant financial loss for lit-

igating a suit that resulted in substantial benefit to

the Union as a whole.

On these two bases we believe that the amount

of attorneys’ fee award in Murphy’s favor is fully

27

justified upon a “common benefit” theory.’ (Empha-

sis added.)

The appeals court apparently relied on Mr. Ruben’s

statement in his Supplemental Brief of Plaintiff-Appellee

Cross-Appellant at page 14:

In the instant proceeding Defendants seek to escape

from having to pay either punitive damages or coun-

sel fees, and unfairly shift the burden entirely to

Plaintiff Murphy to pay his attorneys out of the $10,000

compensatory damage award and whatever amount

of back pay the District Court may allow.“

The record in this case, establishes, however, that

respondent Murphy signed a power of attorney, granting

private attorney Ruben full decision making authority in

the instant action, and further stating:

In no event shall I be personally responsible for

attorneys’ fees or any other charges, costs and ex-

penses which may accrue in the course of litigation

or in the performance of any other service hereunder.

All charges, costs and other expenses will be

defrayed through subventions from the American

Civil Liberties Union and the Legal Aid Society of

Cleveland.

The attorneys were also authorized as follows:

To maintain a bank account for the deposit of

money damages and the remission of aforesaid fine

paid by myself.*

43. Murphy, Nos. 82-3702 and 82-3747, at p. 23, A-488.

44. Supplemental Brief of Plaintiff-Appellee/Cross-Appel-

lant, p. 14, A-507.

45. See Supplemental Affidavit in Support of Plaintiff's

Request For Counsel Fees, pp. 2, 3, A-509.

28

Based on the above agreement, the plaintiff below argued

that although Murphy had no financial obligation to his

attorneys, they were empowered to seek an award of

counsel fees and costs against the defendants. Mr. Ruben

distinguished himself from Legal Aid attorney Stege be-

cause he was not obligated to remit any fees awarded

to him.*®

The Sixth Circuit’s refusal to consider any factors in

addition to the number of hours spent multiplied by a

reasonable hourly rate, precluded the consideration of the

nature of the fee agreement between Murphy and his

attorneys. Thus, the award of attorney fees in the present

case, allowing attorney fees under the common benefit

rationale where the plaintiff owes no fees to his private

attorney is contrary to this Court’s previous decisions in

Mills v. Electric Auto-Lite Co.,7 and Hall v. Cole,** be-

cause this is not an instance in which the Union members

will be unjustly enriched at the plaintiff's expense. The

respondent did not cite below, and petitioner has been

unable to obtain, any case authorizing a common benefit

award of attorney fees to a plaintiff who owes no fees

to his private attorney. Thus, it is essential that this

Court clarify the unsupportable decision of the Sixth Cir-

cuit, which directly opposes this Court’s decisions.

The same reasoning applies to the award of attorney

fees to Legal Aid attorney Stege. The district court refused

to deny attorney fees to a Legal Aid Society attorney, citing

Incarcerated Men of Allen County Jail v. Fair,” a 1974 case

46. See Reply to Defendants’ Brief in Opposition to Plain-

tiff’s Motion For Counsel Fees, p. 11, A-517.

47. 396 U.S. 375 (1970).

48. 412 U.S. 1 (1973).

49. 507 F.2d 281 (6th Cir. 1974) (The court expressed

doubts as to the applicability of the “common benefit” theory to

the case). See Post Judgment Memorandum Opinion and Order,

p. 15, A-411, A-412.

29

brought pursuant to 42 U.S.C. § 1983 but decided prior to the

enactment of 42 U.S.C. § 1988, the Civil Rights Attorneys’

Fees Award Act of 1976 and prior to this Court’s rejection

of the “private attorney general” theory in Alyeska Pipe-

line Service Co. v. Wilderness Society. Incarcerated

Men is inapplicable to the instant case, because prevailing

plaintiffs in cases brought pursuant to 42 U.S.C. § 1983

are now entitled to congressionally mandated attorney

fees. The cases cited by the plaintiff below as supporting

a fee award to Legal Aid Society attorneys were all stat-

utory fee award cases.

Cases involving awards of attorney fees to Legal Aid

Society attorneys pursuant to statutes cannot be cited to

award fees under the common benefit rationale. While

in common benefit cases, the court must exercise its power

in a manner consistent with preventing unjust enrichment

to the detriment of the plaintiff, in statutory fee cases

attorney fees are awarded to further the congressional

purpose of promoting full enforcement of the substantive

rights upon which the fee awards are based.*' Awarding

fees under the common benefit rationale where a plaintiff

is not responsible for fees to his attorneys and without

a specific statute for such award, based on the benefit

50. 421 U.S. 240 (1975).

51. See Berger, Court Awarded Attorneys’ Fees: What is

‘Reasonable’?, 126 U.PENN.LAW REv. 281, 283 (1977). For cases

holding that in furtherance of the underlying legislative intent

of 42 U.S.C. § 1988, attorney fees for public interest attorneys and

private firm lawyers should be calculated the same, see Cope-

land v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en banc); Palmi-

giano v. Garrahy, 616 F.2d 598 (1st Cir.), cert. denied, 449 U‘S.

839 (1980); Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978);

Torres v. Sachs, 538 F.2d 10 (2d Cir. 1978); Love v. Mayor of

Cheyenne, 620 F.2d 235 (10th Cir. 1980); Ramos v. Lamm, 713

F.2d 546, 551 (10th Cir. 1983) (Senate Report accompanying

§ 1988 cited two cases requiring same calculations for private and

public interest attorneys).

30

conferred on the membership, would require a return

to the “private attorney general” exception to the Amer-

ican Rule already rejected by this Court in Alyeska,

A decision by this Court is essential to clarify this

misapplication of the statutory provisions allowing attor-

ney fees for Legal Aid Society attorneys to cases based

on the common benefit rationale.

CONCLUSION

Petitioner urges this Court to grant this petition, in

order to eliminate the conflicts and confusion created by

the Sixth Circuit’s attorney fees decision based on the

common benefit rationale.

Respectfully submitted,

WILLIAM FADEL, Counsel of Record

Frances M. Gore’, On Brief

WULIGER, FADEL & BEYER

1340 Sumner Court

The Brownell Building

Cleveland, Ohio 44115

(216) 781-7777

Counsel for Petitioners

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