Petition for Writ of Certiorari — Nash v. Houston Civic Center

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Suprome Court, US.

BY= 1627 FILLED

MAR !4 1986

F. SPANIOL, JR,

in —

IN THE SUPREME COURT OF THE UNITED STATES

No.

OCTOBER TERM, 1988

CLA YBORN E. NASH, AND

GORDON R. COOPER, II

A ppellants

\V.

CITY OF HOUSTON CIVIC CENTER

Appellees

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Gordon R. Cooper, I

Counsel for A ppellant

COOPER & COOPER

4103 La Branch Street

Houston, Texas 77004

Of Counsel:

Yvonne M. Williams

COOPER & COOPER

Attorneys at Law

| e Ba

QUESTIONS PRESENTED FOR REVIEW

(1) -Whether Attorney fees awarded for a prevailing

Title VIL plaintiff at trial level, may be reversed and

abated by the appeals court when the judgment for the

plaintiff is affirmed?

(2) Whether the doctrine of law of the case should

apply to attorney fee awards to prevailing Title VU

plaintiff's once an appeals panel has affirmed the

plaintiff's successful ruling while reversing the attorneys’

fee award.

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

CLAYBORN E. NASH, AND

GORDON R. COOPER, I

A ppellants

CITY OF HOUSTON CIVIC CENTER

A ppellees

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Honorable Chief Justice And Associate Justices

of the Supreme Court of the United States:

Gordon R. Cooper, II respectfully prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit filed

December 9, 1987.

CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel of record for Appellant,

Gardon R. Cooper, I, certifies that the following list of

persons have an interest in the outcome of this case.

CITY OF HOUSTON CIVIC CENTER

A ppellees

GORDON R. COOPER, I

COOPER & COOPER

Attorneys at Law

DAVID T. LOPEZ

Attorney at Law

Respectful'v Vi / L

GORDON R. COOPER,1I

COOPER & COOPER

4103 La Branch Street

Houston, Texas 77004

(7 13) 630-0030

TABLE OF CONTENTS Page

Questions presented for review ... i.

Certificate of Interested Parties... iL

Index of Authorities......... iiiiv,v

Opinions Below ......eese0. 2-3

Jurisdiction ...ccccccccces 3

Statutes Involved .......eee0- Vv

Statement of the Case........ 4-9

ArgumentsIandIL.......... 9, 19

COnGhmion «cc ccccccscses 23

APDONGICOE i ccc cc ccccsves 32

IN DEX OF AUTHORITIES

CASES

Anderson v. Morris,

658 F. 2d 246 (4th Cir. 1981)... cece eee 17

City of Riverside v. Rivera, US. ,41FEP

Cages 65 (1950)... cccccccces 12

Conway v. Chemical Leaman Tank Lines, Inc.

644 F. 2d 1059 (Sth Cir. 1981)....... 21

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

i-~ | eee 17

Dickinson v. Auto Center Manufacturing Co., 733 F. 2d

TOpe Cork Gi TeO Ss) oc cecesceeess 21

In re First Colonial Corp. of A merica,

544 F. 2d 1291 (5th Cir. 1977)... eeeees 17

Gekas v. Attorney Registration and Disciplinary

Com mission, 793 F. 2d 846 (7th Cir. 1986)

(per CUFAM) ..cccccccs seaee 22

Hennigan v. Ouachita Parish School Bd., 749 F. 2d

1148 (5th Cir. 1985)... ceee 10

Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933,

76 L. Ed. 2d 40 (1983) ...-.06. 11

Johnson v. Georgia Highway Express, Inc.,

488 F. 2d 714 (5th Cir. 1974)..... 11

Jordon v. United States Department of Justice,

691 F. 2d514 (D.C. Cir. 1982)..... 18

Leroy v. City of Houston, 648 F. Supp 537

Geos SOM THEE) cb cebvedsn 16

Lynch v. City of Milwaukee, 747 F. 2d 423

Tue Gis VN sesenkawkoes 22

Morrow v. Dillard, 580 F. 2d 1284

c. t- Pee perer er 21

Nash v. City of Houston Civic Center,

800 F. 2d 491 (Sth Cir. 1985)....... 25

Pennsylvania v. Delaware Valley Citizen's

Council For Clean Air, Ua» , 068. Ct.

3088, 92 L. Ed. 2d 439 (1986)........ 22

Schwartz v. N MS Industries, Inc., 575 F. 2d 553

Cad CH. WO as ceeeexscnces 20

Todd Shipyards Corp. v. Auto Transportation, 5.A.,

: *955) ~«

i. ahieeeneee? —

*st.8 “a # °

hie vw ae a a A 42 ce ms o~

La] uLle Vv. Murtha, 37 | Pe 2d “cv Stn Vir. Ji

*eeeeeeeeneeneeaeenensneeneee G

ad . 4 * = 5 A oe -

Zabkowicz v. West Bend, F. 2d , 40 FEP Cases

14374 [Tew ms souk’

; i wee | 1yS0) *ereeeee © *

STATUTES INVOLVED

fT)

‘

<>)

‘x

OPINIONS BELOW

District Cowt Memorandum Opinion and Final

Judgment, dated April 30, 1985 in favor of Plaintiff

Class, is printed at Appendix A, and is not officially

reported.

Fifth Circuit Court of Appeals judgment reversing

and remanding is reported at 800 F. 2d 491, (5th Cir.

1986), reh. and reh. en banc denied, 805 F. 2d 1030 (Sth

Cir. 1986).

District Court Memorandum and Order of

Dismissal, dated April 13, 1987 is printed at Appendix B

and is not reported.

District Couwt Memorandum and Order for

reimbursement of interim attorneys fees, dated June 10,

1987, is printed at Appendix C and is not officially

reported.

ifth Circuit Court of Appeals judgment affirming

Nash v. City of Houston Civic Center, 800 F. 2d 491 (5th

Cir.), reh’g denied, 805 F.2d 1030 (Sth Cir. 1986), dated

December 9, 1987 Gummary Calendar), is printed at

Appendix D and is not officially reported.

Fifth Circuit Court of Appeals judgment denying

petition for rehearing, dated January 5, 1988, is printed

at Appendix E and is not officially reported.

JURISDICTION

'¢

The date of the Judgment of the Fifth Circuit

ppeals sought to be reviewed is December 9,

“>

1987 which is also the date of entry. Jurisdiction of this

. to % Dad snl sa rc +4 Sc hi

court is invoked under 25 Ua.L. SECLION 'c5o%\!/-

STATEMENT OF THE CASE

These plaintiffs brought a class action in 1979

alleging racial discrimination on the part of their

employer, the City of Houston Civic Center Parking

Division (City) in violation of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. 2000e et seq. and the Civil

Rights Act of 1866, 42 U.S.C. 1981. On April 30, 1985

the Trial Court entered a final judgment with an

accompanying memorandum granting relief to the class

members and attormmeys fees for their respective

attorneys, Gordon R. Cooper, II and David T. Lopez.

Gordon R. Cooper, IT was attorney in charge of the

class of plaintiffs involving Clayborn E. Nash and Alvin

Moore. Immediately prior to the trial, David T. Lopez

was appointed by the court to represent a number of the

class members while Mr. Cooper remained attorney of

record for Plaintiffs Nash and and Moore.

The trial court awarded $76,875.00 in attorneys

fees to Mr. Cooper and $10,205.00 in attorneys fees to

Mr. Lopez. Plaintiff Clayborn E. Nash was awarded

$58,285.47 in back pay and reinstatement. Plaintiff

Alvin Moore was awarded $22,550 in back pay.

NS ee Se ee ee ee

(A ppendix A)

The City filed notice of appeal on May 29, 1985.

On appeal Mr. Lopez represented the majority of the

class including Mr. Moore. Mr. Cooper continued to

represent Mr. Nash on appeaL On July 10, 1985, the

City filed a Motion to Stay Judgment which was denied

on September 4, 1985.

Qn September 24, 1986, the Fifth Circuit in Nash

v. City of Houston Civic Center, 800 F. 2d 491 (5th Cir.

1986) affirmed in part and reversed in part holding as

follows:

The judgment of the district court against

the City and in favor of the plaintiff class,

Clayborn Nash and Ronnie Blount is reversed,

and those claims are dismissed. The order of

injunction is vacated. The denial of the

petition for intervention by Charlotte Dudley

and Quida Sanderson is affirmed. The

judgment in favor of Alvin Moore against the

City is affirmed. Id., at 492.

16s | ! |

The only relief upheld by the Fifth Circuit was that

granted to plaintiff Moore. In an almost unprecedented

act the Circuit then reversed the attorneys fees awarded

for Moore's trial counsel, Mr. Cooper and implicitly

precluded award of attorneys fees to Mr. Moore's

appellate counsel, Mr. Lopez:

The record convinces us that only trivial

effort was expended by counsel on Moore's

personal claims and that remand for

consideration of attorney's fees for this cause

is unwarranted. If affidavits to the contrary

are presented on Motion for rehearing, they

will be considered. Id., at 497.

Mr. Cooper then filed a Motion for Rehearing on

attorneys fees accompanied by an affidavit showing that

of the 512 attorney hours expended in his representations

of the class, some 128 hours of same were expended in

representations of plaintiff Moore. (Appendix F) For

these services, Mr. Cooper requested attorneys fees.

Mr. Lopez also requested a rehearing in behalf of two

other individuals and a Motion for Rehearing en banc in

behalf of the class.

On November 5, 1986 in a per curiam decision, the

5th Circuit summarily denied all Motions. (805 F. 2d

1030)

This litigation was reopened by the trial court on

December 19, 1986 per the 5th Circuit Court of Appeals

judgment on September 24, which issued a mandate on

November 17, 1986, affirming in part, reversing in part,

and remanding to the District Court for further

proceedings. Nash at 497.

After holding a status conference the trial court

ordered all Motions regarding attorneys fees to be filed

by April 11, 1987.

Attorney Cooper filed a second Motion for

attorneys fees on April 9, 1987 with the trial court. On

April 13, 1987, the court entered an order of dismissal by

concluding it lacked jurisdiction to rule on attorney's

fees since the 5th Circuit opinion stated "remand for

consideration of attorney's fees..... is unwarranted."

(A ppendix B)

While the appeal was pending of the original

judgment, the trial court in addition to denying

defendant City's Motion staying injunctive relief,

granted a Motion staying money payments to the class

and ordered attorneys’ fees to be paid to Mr. Cooper and

Mr. Lopez for services before the triaL Mr. Cooper was

paid $15,000.00, a portion of the attorneys fees awarded

to him by the trial court, and Mr. Lopez was paid $10,

127.78 as the full attorney's fees and costs as awarded by

the trial court.

On April 10, 1987, Defendant City filed a Motion

for Reimbursement of Interim attorney's fees, citing in

its Motion the Fifth Circuit's language that consideration

of attorneys fees is unwarranted. Accordingly, the City

argued that the judgment being final, all attorneys fees

awards should be reimbursed to the City.

Mr. Lopez agreed in principle to reimburse the

defendant for the interim award but without prejudice to

his seeking fees for the appeal (wherein he represented

Moore) and for pursuing allegations of retaliation against

the class members.

On May 29, 1987, the trial Court ordered a

conference and therein made separate rulings on Msgs

Cooper and Lopez attorney fee awards. Regarding Mr.

Lopez, the court denied Mr. Lopez's Motion for an offset

of $6,000, on June 10, 1987.

The trial Court granted the City’s Motion for

Reimbursement and ordered Mr. Cooper to pay the city

reimbursement of $15,000. (Appendix G)

Mr. Cooper filed a Notice of Appeal to the Fifth

Circuit from the order denying his attorney's fees on

May 29, 1987. On June 5, 1987, Mr. Cooper filed a

Motion and Memorandum to Reconsider Judgment on

attorneys’ fees with the trial Court.

On June 17, 1987, the trial court again rejected

Mr. Cooper's attorneys fees request. (Appendix H) On

his last appeal to the Fifth Circuit, he was again denied

as of December 9, 1987.

L WHETHER ATTORNEY FEES AWARDED FOR A

PREVAILING TITLE VIL PLAINTIFF AT TRIAL LEVEL

MAY BE REVERSED AND ABATED BY THE APPEALS

COURT WHEN THE JUDGMENT FOR THE PLAINTIFF

IS AFFIRMED?

After over eight (8) years of litigating a successful

class action suit for damages arising from discrimination

in employment claims, then counsel for the class of

plaintiffs, Gordon R. Cooper, IL, was presented with the

reality that no attorneys fees will be forthcoming for his

services. Although the trial court amply awarded

attorneys fees, the appeals court reversed the majority

of the courts opinion taking with it any and all

entitlement to attorneys fees while affirming one

plaintiff's damages award of $22,500.00.

To date, the attorney is to receive no

compensation for his services, while he was given

$15,000.00 in interim fees, the district court has since

ordered reimbursement of the entire amount to

defendant City. The purpose of Civil Rights Litigation is

to assure plaintiff's equal access to courts by providing

for attorney fee awards when successful; to not provide

attorneys fees in such cases serves as a chilling affect to

Title VIL plaintiff litigants.

The Fifth Circuit Court of Appeals erred in

denying attorneys fees for the representation of the

successful plaintiff, Alvin Moore, who was represented

by Mr. Cooper at the trial leveL

The Fifth Circuit did not apply the proper legal

analysis in its decision denying fees, ignoring Hensley v.

Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40

(1983) and its own Johnson v. Georgia Highway Express,

Inc., 488 F. 24714 (Sth Cir. 1974). The Court stated:

"The record convinces us that only trivial

effort was expended by counsel on Moore's

personal claims and that remand for

consideration of attorneys’ fees isolated for

this cause is unwarranted. If affidavits to

the contrary are presented on Motion for

Rehearing, they will be considered". Nash,

800 F. 2d at 497.

The facts herein are analogous to those in Hensley

v. Eckerhart, 461 U.S. 424 (1983). This matter involved

representation of a class of plaintiffs who were

ultimately unsuccessful on appeal, but for one. In

Hensley, supra, this court wrote of one plaintiff which

prevailed on one of several claims but recognized the

need to note attorney hours expended on unsuccesful

claims. This Court cites Hensley in City of Riverside v.

Rivera,

U.S. 41 FEP Cases 65, 67, (1986), to

wit:

"In (some) cases the plaintiff's claims for

relief will involve a common core of facts or

will be based on related legal theories. Much

of counsel's time will be devoted generally to

the Litigation as a whole, making it difficult

to divide the hours expended on a claim -by-

claim basis. Such a lawsuit cannot be viewed

as series of discrete claims. Instead the

district court should focus on the significance

of the overall relief obtained by the plaintiff

in relation to the hours reasonably expended

on the Litigation. Id. at 435, 31 FEP Cases,

at 1173 = 1174.

This court went on to explain the Hensley emphasis

to mean, "(w)here a plaintiff has obtained excellent

results, his attorney should recover a fully compensatory

fee; and that the fee award should not be reduced simply

because the plaintiff failed to prevail on every

contention raised in the lawsuit." Ibid.

The requirement of Hensley was met by Mr.

Cooper. Hensley stated that the amount of a reasonable

fee is the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate. Id. at

433.

Riverside, supra, gives further guidance in

interpreting Hensley. The Fifth Circuit discounted

wholly, the trial court's assessment of fees and on

petitioners’ Motion for Rehearing, where the affidavit of

attorney hours was prepared and presented, the court

drew legal conclusions and facts totally contrary to the

record. Nash, 800 F. 2d at 497. Riverside explains:

Hensley stated that a fee applicant should

"exercise ‘billing judgment’ with respect to

hours worked." 461 U.S., at 437, 31 FEP

Cases, at 1174. Petitioners maintain that

respondents failed to exercise "billing

judgment" in this case, since they sought

compensation for all time spent litigating

this case. We think this argument misreads

the mandate of Hensley. Hensley requires a

fee applicant to exercise "billing judgment"

not because he should necessarily be

compensated for less than the actual number

of hours spent litigating a case, but because

the hours he does seek compensation for must

be reasonable. "Counsel for the prevailing

party should make a good-faith effort to

exclude from a fee request hours that are

excessive, redundant, or otherwise

unnecessary..." Id., at 434, 31 FEP cases,

at 1173. In this case, the District Court

found that the number of hours expended by

respondents’ was reasonable. Thus, Counsel

did, in fact, exercise the “billing judgment”

recom mended in Hensley.

Hensley also stated that a fee applicant

should "maintain billing time records in a

manner that ee a reviewing court to

identify distinct claims". Id., at 437, 31 FEP

: Cases, at 1174. Petitioners submit that the

time records submitted by respondents

attorneys made it difficult for the District

Court to identify and separate distinct

claims. The District Court, however, does

not appear to have shared this view. In any

event while it is true that some of the

disputed time records do not identify the

precise claims worked on at the time, we find

this lapse unimportant, in light of the

District Court’s finding that all of

the District Court awarded fees to Mr. Cooper as

attomney for the class in the amount of $76,875.00.

reversed all but Mr. Moore's award.

been granted fees. Mr. Coopers’ fees as trial counsel

has been denied. And Mr. Lopez fees as appellant

counsel have also been denied. See Appendix E, the

judgment denying Mr. Lopez’ petition for rehearing.

If the inquiry was “billing judgment", then such was

never addressed. Nor were the factors in Johnson

discussed. Furthermore, the appellate court did not fully

address the issue of Mr. Cooper’s time expended on the

"prevailing party's” claim versus the time expended on

the class plaintiff's claims, as is the standard in such

cases.

In Hennigan v. Ouachita Parish School Bd, 749 F.

24 1148 (5th Cir. 1985) the court wrote:

", . . (T)he first element that must be

established by a plaintiff claiming prevailing

party status is whether, as a practical

matter, the plaintiff's goal was achieved...

"TTA &® 4465

. awe ~ Bp’:

Clearly, plaintiff Moore was a prevailing party; in

fact, he was the only prevailing party in the entire class

plaintiffs. In Leroy v. City of Houston, 648 F. Supp.

537 (S.D. Tex. 1986), Judge McDonald delineated the

nalysis for awarding fees viz. Johnson:

It (the Fifth Circuit)... . has instructed

district courts to first ascertain the nature

and extent of the services supplied by the

attomey from a statement showing the

number of hours worked and an explanation

of how these hours were spent. The court

should next determine the customary hourly

rate of compensation. These are essentially

Johnson facts 1 and 5. The court should then

multiply the number of hours reasonably

expended by the customary hourly rate to

determine an initial amount for the fee

award. Finally, the court should adjust the

fee on the basis of the other factors, briefly

explaining how they affected the award. In

re First Colonial Corp. of America, 544 F.

2d 1291, 1298-1300 (5th Cir. 1977). See also

Copper Liquor, Inc. v. Adolph Coors Co., 624

F. 2d 575, 581-84 (5th Cir. 1980). Anderson

v. Morris, 658 F. 2d 246, 249 (4th Cir. 1981).

Leroy at 546. The Court in Leroy concluded that

"although the Supreme Court has reshuffled the Johnson

factors somewhat, the factors are still alive and well". Id

at 547.

While the Leroy case discussed fees pursuant to the

Civil Rights Attorneys Fees A wards Act of 1976, 42 U.S.

(1988), the same analysis is applicable to Title VIL The

Supreme Court has applied the same standards to both

section 2000e - 5(K) and section 1988. Hensley, 461 U.S.

at 433 n.7.

To deny attorneys fees in this matter sends a

chilling effect to civil rights litigants and promotes an

unconscionable legal precedent. "Generally, attorneys’

fees are awarded to such plaintiffs in Title VII actions as

a matter of course, ‘unless special circumstances would

make such an award unjust." (cite omitted). Zabkowicz

v. West Bend F. 2d. ,» 40 FEP Cases 1171, at

1177. (7th Cir. 1986).

"See also Jordon v. United States Department of

Justice, 691 F. 24514, 518 (D.C. Cir. 1982) (noting that

a "(t)otal denial of requested fees... is a stringent

sanction, to be reserved for only in very limited

circu mstances")." Zabkowicz, at 1179. The Zabkowicz

court left the determination of a reasonable fee to the

district court. Id. at 1179.

The district court made its award of fees to Mr.

Cooper with all evidence before it at the time. Query

then, the validity of the Fifth Circuit, sua sponte,

denying appropriate fees to counsel with only a cursory

mention of "trival effort expended by Counsel" for the

only prevailing party (Mr. Moore). Such a ruling without

the appropriate legal analysis must be reversed. This

matter is not such a severe nature that time expended on

the prevailing party's behalf should be sanctioned by the

denial of fees.

IL WHETHER THE DOCTRINE OF LAW OF THE

CASE SHOULD APPLY TO ATTORNEY FEE AWARDS

TO PREVAILING TITLE VIL PLAINTIFF'S ONCE AN

APPEALS PANEL HAS AFFIRMED THE PLAINTIFF'S

SUCCESSFUL RULING WHILE REVERSING THE

ATTORNEYS' FEE AWARD.

Upon reconsideration by the trial court of counsel's

fee awards, that court denied same stating:

Upon review of the appellate decision in this

case, however, the Court has determined that

it lacks jurisdiction to rule on the

{

es]

pending Motion. The appellate opinion

clearly states that "remand for consideration

of attorney's fees... is unwarranted."

(A ppendix C)

The district Court apparently felt constrained by this

language to act although the 5th Circuit has added...

"(Df affidavits to the contrary are presented on Motion

for Rehearing, they will be considered". Nash, at 497.

On the third appeal by Mr. Cooper for attorneys

fees, the Fifth Circuit denied same "both on the merits

and pursuant to the law of the case doctrine", citing

Schwartz v. N MS Industries, Inc., 575 F. 2d 553 (5th Cir.

1978). Nash, Cooper and Lopez v. City of Houston Civic

Center, No. 87-2723 Summary Calendar, December 9,

1987, Fifth Circuit. (Appendix D)

The allegation of decision on the merits were

addressed above. The law of the case doctrine will be

addressed at this time.

The law of the case doctrine should have no

applicability to attorney fee awards in civil rights

litigation. As it has been currently developed in the

Fifth Circuit, the doctrine "generally precludes

reexamination of issues of law or fact decided on appeal,

either by the district court on remand or by the

appellate court itself on a subsequent appeal". Dickinson

v. Auto Center Manufacturing Co., 733 F. 2d 1092, 1096

(Sth Cir. 1983); Conway v. Chemical Leaman Tanklines,

Inc. 644 F. 2d 1059, 1061 (Sth Cir. 1981); Todd Shipyards

Corp. v. Auto Transportation, S.A., 763 F. 2d 745, 750

(5th Cir. 1985).

These are exceptions wherein the doctrine does not

apply:

(1) when a subsequent trial produces

substantially different evidence,

(2) when a controlling authority has made

contrary decision of the law applicable to the issues, or

(3) the prior decision was clearly

erronerous and would work an injustice. Morrow v.

Dillard, 580 F. 2d 1284, 1292 (Sth Cir. 1978); White v.

Murtha, 377 F. 2d 428, 432 (5th Cir. 1967).

Applying the above exceptions to the matter

herein, exceptions number two and three would be proper

grounds not to apply the doctrine. The ruling was clearly

erroneous and does work an unjustice; furthermore,

controlling authority has made contrary decisions of the

law applicable to the issues herein. See discussion in

ee ON FTO aU UR OO EE

section I above. Note also the Seventh Circuit's decision

in Tomazzoli v. Sheedy, 804 F. 2d 93, 97 (7th Cir. 1986):

"Once established an appellate court should

not disturb a district courts’ fee award unless

the court commits an error of law in the

computation or has abused its discretion in

calculating the amount. Lynch v. City of

Milwaukee, 747 F. 2d 423, 426 (7th Cir.

1984); see also Pennsylvania v. Delaware

Valley Citizen's Council For Clean Air,

US. , 106 S. Ct. 3088, 3100, 92 L. Ed. 2d

439 (1986) (Blackman, J., concurring in part

and dissenting in part) (" the proper standard

of review of an attorney fee award is abuse

of discretion"). Hensley, 461 U.S. at 433. (Our

em phasis)

Tomazzoli at 97. "The method of calculating a fee

award rests within (the district court's) sound

discretion". Gekas v. Attorney Registration and

Disciplinary Commision, 793 F. 2d 846, 851 (7th Cir.

1986) (per curiam). Tomazzoli, at 97.

In the first Nash appeal, 800 F. 2d at 497, the Fifth

Circuit does not address a standard of review viz. the

denial of fees. It simply does so in a conclusionary

manner. There is no mention or inquiry on the process

utilized by the trial court to arrive at the fees awards.

And finally, there is no reference made to abuse of

discretion. The ruling was therefore clearly erroneous.

The law of the case doctrine does not belong in

disputes concerning legal fees in civil rights litigation.

There is ample precedent and guidance in the setting of

fees (to the few successful litigants) in this area of our

jurisprudence. Assuming, in arguendo that this doctrine

should apply, its exceptions are available and should have

been applied to the matter herein.

CONCLUSION

The issues presented by the instant case are

significant. The denial of attorney fee awards to

successful civil rights litigants is a grave and

unconscionable precedent for this area of our

jurisprudence. The Fifth Circuit Court of Appeals’

decision is directly in conflict with decisions in the

Seventh Circuit Court of Appeals on this issue. For the

foregoing reasons a writ of certiorari should issue to

review the judgment, opinion and related rulings of the

Fifth Circuit Court of Appeals.

Respectfully submitted,

COOPER & COOPER

4103 La Branch

Houston, Texas 77004

(7 13) 630-0030

72a LLE

GORDON R. COOPER, I

ATTORNEY PROSE

Of Counsel

Yvonne M. Williams

COOPER & COOPER

Attorney at Law

CERTIFICATE OF SERVICE

I hereby certify that three true and correct copies

of the foregoing Petition for Writ of Certiorari has been

mailed to all Attomeys of Record on this the /6*@day

LIVE

GORDONR.COOPER,I ,

of March, 1988.

AFFIDAVIT

STATE OF TEXAS '

COUNTY OF HARRIS #

BEFORE ME, the undersigned authority, on this

day personally appeared GORDON R. COOPER, JI,

known to me to be a credible person competent in all

respects to make this affidavit, and who, being by me

Sworn upon oath, stated:

Iam a member of the Bar of the Supreme Court of

the United States, and I was the attorney of record for

the appellant in the matter of Clayborn Nash and Gordon

R. Cooper, II v. City of Houston Civic Center.

On the 8th day of March 1988, I deposited into the

United States Mail with first class postage prepaid and

properly addressed to the Clerk of the Supreme Court,

within the time allowed for filing, The Petition for Writ

of Certiorari to the United States Cowt of Appeals for

the Fifth Circuit pursuant to USSC Rule 28. 2,

This Petition for Writ of Certiorari is presently

non-conforming and is one copy. A conforming Petition

in forty (40) copies pursuant to the Rules of the Supreme

Court of the United States will be mailed accordingly

within five days.

SIGNED this __ day of , 1988.

signed

GORDON R. COOPER,I

SWORN AND SUBSCRIBED TO BEFORE ME on

this 8th day of March, 1988

N otorized

Notary Public for

The State of TE X AS

MY COMMISSION EXPIRES:

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CLAYBORN E. NASH

VS. # CIVIL ACTION NO.

* H-79-832

CITY OF HOUSTON # Consolidated with C.A.

CIVIC CENTER; ETAL. * H-81-1471

# -81-2500

5 3

H-8 1-2596

MEMORANDUM OPINION

The Plaintiffs brought this class action alleging

racial discrimination on the part of their employer, the

"the City") in violation of Title VIL of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seq. and the Civil Rights

Act of 1866, 42 U.S.C. section 1981. This action was

bifurcated for trial on the issues of liability and relief.

In light of the Court's holding after the trial regarding

liability issues and after conducting a hearing on the

issues relating to relief, the Court makes the following

Findings of Fact and Conclusions of Law.

FIN DINGS OF FACT

Clayborn Nash, the first named Plaintiff, Mled a

charge of unlawful discharge and racial discrimination

with the Equal Employment Opportunity Com mission

(hereinafter the "EEOC) on May 2, 1977. Upon receipt

of notice of his right to sue, he instituted this suit which

was later consolidated with similar suits flled by Alvin

Moore, Ann Jackson and others. Class certification was

granted, limited to those Title VII claims which could

have been the subject of a timely EEOC charge on or

before May 2, 1977 and those Section 1981 claims which

arose during the two years preceding the filing of thi

lawsuit.

The class consists of those black employees wh

are or were classified as part-time parking attendents,

who worked 50 weeks consecutively and averaged at

least 40 hours per week at any time during the relevant

The Court finds that the discriminatory actions

taken by the City in classifying the class members as

part-time when they actually worked on a full-time basis

deprived the Plaintiffs of substantial employment

pportunities and economic benefits. Because of this

part-time status, the Plaintiffs were deprived of civil

service status, vacation time, sick leave, merit

increased, longevity pay, pension benefits, and job

transfers.

The City saved considerable amounts of money by

classifying the class members as part-time employees,

while working them as they would any full-time

employee.

Based on the evidence presented by the parties,

and by agreement of the parties, the Court finds that the

members of the class were deprived of back pay in the

amounts set forth below:

CG eo ar

Class Members Payment Due

~ ~ “ .

Moses Adams $ 2,731.18

a7 ~ Ar nn

Danny Allen 2,256.42

_ av a cc nn

veorge A LE” 2,855.40

Okoli Bennett )

Romie J. Blount 12,697.19

Jerry L. Buckley 8

~ - — 4

Vaivin Re .iay

3,144.14

Allen Connerly 2,643.10

Barbara Flanagain 77 1.78

G. W. Garrett s

Walter Garrett 17,166.68

a i ee

sit

Riley Gilliam

Albert J. Hamilton

Dorothy Lee Harris

Robert E. Holden, Jr.

C.V. Hunt

Ann Marie Jackson

Clifton Jackson

Kenneth Jackson

Lonnie Johnson

Vincent Johnson

Margie Lewis

Mable J. Moore

Curtis Joe Porter

Leo Porter

’ 2 rT D

Naymond D. Roach

ee | Sa ‘2

-iarence Robinson

ermuce washington

Leonard M. Williams

-”

_ ine © } ] : na 4 ; lal

setting forth their hours expended on this case ar

hourly rates. The Defendant

s OVW

Nm © ft)

yw Dp?) j 7

Ihe attorney for the P lai have filed a

expended and the hourly rates are reasonable. The court

finds that Mr. Gordon R. Cooper, ID has expended 512.5

hours at $150.00 per hour on this case. Mr. David T.

Lopez has expended 66.7 hours at $150.00 per hour and

his associated Murray E. Malakoff devoted two hours at

$100.00 per hour on Plaintiff's case. In addition, Mr.

Lopez has incurred $322.78 in costs related to this

lawsuit. The court finds these hours, rates and costs to

de reasonable.

The Court now turns to the claims of the individual

Piaintiffs.

Clayborn E. Nash

Nash was unlawfully terminated on April 14, 1977.

Since his termination, Nash has sought other employment

but has devoted the majority of his time to managing his

Own business. Nash owned his own business while

employed by the City but he employed contract workers

to perform much of the work involved in the business,

From April 14, 1977 to the present, Nash has

worked in his own business approximately six hours a

day, five days a week, fifty-two weeks a year. The

uncontested evidence proves that Nash ears

approximately $4.00 an hour.

The Court finds that Nash has saved approximately

$6,240.00 a year by performing the work he would have

had to hire contract workers to perform had he not been

employed and able to personally work in his business.

The uncontroverted evidence proves the City's

unlawfully termination of Nash deprived him of the

following:

Back Pay $ 89,862.90

Vacation Pay 4,960.16

Sick Pay 7,976.43

Longevity Pay 1,692.00

Holiday pay 3,97 3.98

TOTAL: 108,465.47

The Court finds that Nash earned approximately

$50,150.00 over the past eight years by working in his

Own business and that Plaintiff's damages should be

reduced accordingly.

Alvin Moore

In 1976 Moore became the Parking Superintendent

for the Civic Center Parking Garage.

Moore did not approve the termination of Nash and

Ree RE RRR Ee See

so testifed in January 1980 by deposition and in the trial

of the Nash consolidated cases.

Moore applied for the position of Parking Garage

Manager; however, Carl McCullough was hired for the

position on April 14, 1980 in place of Moore.

Moore was qualified for the position of Manager of

the Parking Garage but the Court finds he was denied

such position in retaliation for giving testimony in

support of Nash's claim.

McCullough resigned effective June 10, 1983. This

Manager’s position remained unfilled until it was

abolished along with a second Manager's position

effective January 17, 1984 as part of a layoff in the

Civic Center Department and a general reorganization.

The Court finds that had Moore been awarded the

position of Manager of the Parking Garage in place of

McCullough, he would not have resigned the position but

would have continued in such position until the Manager’s

position was ultimately eliminated by the reorganization

effective January 17, 1984.

The Court finds that Moore suffered a loss of

‘7

salary from Arpil 14, 1980 to January 17, 1984 by being

denied the Manager’s position. During this time frame

Moore earned a bi-weekly salary ranging from $677.60 to

$849.80. On the other hand McCullough during this same

time earned a bi-weekly salary ranging from $692.40 to

$1111.30. If Moore had been assigned the Manager’s

position, he would have received approximately

22,550.00 more than his earnings as a Superintendent

from Arpil 14, 1980 to January 17, 1984, and is entitled

to damages in this amount.

Romie Blount

af 4

On January 7, 1981 Blount filed an EEOC claim

alleging racial discrimination. On January 31, 1981 his

hours were reduced without any explanation. Blount’s

protests earned him the status of troublemaker. On

September 16, 1981 he was fired from supposed in

subordination and refusal to work where assigned.

Blount appealed his dismissal to the director of

CivilService. One month after his discharge Blount was

rehired by the City of Houston at a higher rate of pay in

the Public Works Department. His permanent personnel

records do not credit him with the seven years of prior

service during which he was improperly classified as a

part-time worker.

The Cow finds that as a result of the retaliatory

conduct of the Defendant, Blount underwent harassment

and hardship for more than eight months resulting, by his

uncontroverted testimony, in stress and depression

because of the precipitous loss of income of himself and

his family, loss of sleep and headaches. Therefore, in

addition to damages awarded him as a class meember (in

the sum of $12,697.19), Plaintiff is entitled to $6,350.00

in compensatory claim.

There was no credible evidence presented

sufficient te support a finding that the entry in Blount’s

personnel file of prior discharge for insubordination

prevented him from being promoted in the Public Works

Depart ment.

CONCLUSION OF LAW

"The Court has juridsiction of this case pursuant to

42 U.S.C. section 2000e-5 (f) (3) and 28 U.S.C. section

1331.

This Court has previously concluded that the facts

of this case support a finding of discrimination by the

Defendant under both the adverse impact and disparate

_ treatment models.

The Plaintiffs are entitled to recover back pay

awards which completely redress the economic injury

which has resulted from the unlawful discrimination.

Frank v. Bowman Transporation Co., 424 U.S. 747 (1976);

Rasimas v. Michigan Dept. of Mertal Health, 32 FEP

Cases 688 (6th Cir. 1983). The Court therefore

concludes that the class members are entitled to recover

the amounts set forth above in the Findings of Fact.

In addition to other back pay, all class members

shall be credited with all pension rights due Group B

members under Art. 6243g, Tex. Rev. Civ. Stat., as of

May 2, 1975 or their date of hire, whichever is later.

Equitable awards of back pay under Title VIL can be

denied only for reasons which, if generally applied, would

not frustrate the statutes’s purpose. Albemarle Paper

Co. v. Moody, 422 U.S. 405 (1975). The statute provides

in pertinent part: "Interim earnings or amounts earnable

A - 11

with reasonable diligence by the person or persons

discriminated against shall operate to reduce the back

pay otherwise allowable."42 U.S.C. Section 2000e-5(g).

1 See Findings of Fact and Conclusions of Law dated

March 1, 1984 entered by this Court after a trial on the

liability issues.

Nash argues that his back pay should not be

reduced by the amount earned working for his own

business because he owned such business while working

for the City. Howard v. University of Southem

Mississippi, 30 F. E. E. 1614 (S.D. Miss. 1980). However

the evidence proves Nash hired agents to maintain his

business while he was employed by the City and after

Nash was fired he operated the business himself. "Ifa

Supplemental or moonlight job is one that the

discrimatee cannot perform when he wins his new

position, the supplemental job is necessarily temporary,

provisional or ‘interim'." Bing v. Roadway Express, Inc.,

485 F. 2d 441, 454 (1973). The Court concludes that

Nash's earnings in running his own business are "interim

earnings" and as such shall be deducted from his back

pay award. Accordingly, Nash's total back pay of

$108,465.47 shall be reduced by $50,180.00 of "interim

earnings"; therefore, Nash is entitled to a total of

$58,285.47 in back pay.

In addition to an award of back pay, Nash is

cee RER ERE eee fe |

- F

entitled to reinstatement as a full-time parking

attendant. Franks v. Bowman Transporation Co., 424

U.S. 727 (1976).

Since Moore was unlawfully denied the promotion

to Manager position in retaliation for his testimony in

support of Nash's claim. Moore is entitled to the

difference in pay he received and the pay that

McCullough received up to January 17, 1984, when the

position was ultimately eliminated. Martinez v. El Paso

County, 710 F. 2d 1102 (5th Cir. 1983). Moore

presented no evidence to show he was qualified for a

Manager's position under the reorganization plan and the

Court concludes he would have been demoted when the

Parking Manager's position was eliminated. Accordingly,

Moore is entitled to recover back pay in the amount of

$22,550.00. This will make him whole, as if he had been

hired for the Manager’s position then demoted during the

layoff and reorganization.

Blount claims he is entitled to compensatory

damages pursuant to’ the Court's holding that the

Defendant has violated 42 U.S.C. section 1981. "An

A - 14

individual who establishes a cause of action under

section 1981 is entitled to both equitable and legal

relief, including compensatory and, under certain

circumstances, punitive damages." Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 460 (1975).

"Specifying such damages will always be difficult, but

they must be at least an amount which will assure the

plaintiff that personal rights are not likely to be

disregarded and that they can be truly vindicated in the

courts." Halperin v. Kissinger, 606 F. 2d 1192, 1208

(D.C. Cir. 1979(, aff'd by an equally divided ct., 452 U.S.

713 (1981).

The Plaintiff's own evidence is sufficient to

support compensatory damages for emotional distress.

Williams v. Transworld Airlines, Inc., 660 F. 2d 1267,

1273 (8th Cir. 1971). Based on Blount's uncontroverted

testimony, the Court concludes that an award of

compensatory damages for anxiety and emotional

distress is appropriate in the amount of $6,350.00.

The Court concludes there is no evidence to

support Blount’s contention that he was denied a

A - 15

promotion in the Public Works Department because of

the entry in his personnel records that he had been

discharged by the City for insubordination. However,

the Court concludes Blount is entitled to have the

personnel records corrected to delete any mention of his

discharge and any break in service.

The Plaintiffs are entitled to post-judgment

interest at the rate provided by law. 28 U.S.C. section

1961.

Prevailing Plaintiffs in a Title VIL case are entitled

to recover attorney fees and taxable costs. New York

Gaslieht Club, Inc. v. Carey, 447 U.S. 54 (1980); Johnson

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

1974). Having evaluated the Plaintiffs’ attorney fees

according to the 12 Johnson factors, the Court concludes

that such uncontested amounts are reasonable.

Accordingly, Plaintiffs are entitled to recover

$76,875.00 attomeys fees for services rendered by

Gordon R. Cooper, ID and are entitled to $10,205.00

attorney's fes and $322./8 costs for services rendered by

David T. Lopez.

In addition to monetary awards, prevailing Title VI

Plaintiffs are entitled to appropriate injunctive relief.

Absent clear and convincing proof that there is no

reasonable probability of further noncompliance with the

law, a grant of injunctive relief is mandatory. James v.

Stockham Valves & Fitting Co., 559 F. 2d 310, 354 (5th

Cir. 1977). There is no such clear proof regarding future

noncompliance in this case, and therefore we must

hereby permanently enjoin the Defendant from denying

to any employee in the Civic Center Parking Division the

Same status, benefits, and privileges generally accorded

to its employees, including, but not limited to those in

its ordinances and procedures related to civil service,

compensation policies, including those providing for

longevity pay; employment benefits, including sick leave

and vacation; pension and insurance benefits; and

personnel policies, including those related to promotion

and transfer. Further, Defendant is permanently

enjoined from establishing or maintaining any ordinance,

policy or procedure with respect to the hours of work,

rates of pay, and terms and conditions of employment of

employees in the Civic Center Parking Division which is

inferior to that generally applicable to employees of the

City of Houston covered by the ordinances relating to

civil service, or which discriminates against, limits,

segregates or classifies employees of the Civic Center

Parking Division in any way which would deprive or tend

to deprive them of employment opportunities or

otherwise adversely affect their status as employees.

The Court concludes that the Plaintiffs are not

entitled to any further relief, based upon their Title VI

or section 1981 claims, other than that which has been

set forth above.

Done in Houston, Texas, this 30th day of April,

1985.

/s/ JAMES DEANDA

James DeAnda

United States District Judge

UNITED STATES DSTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CLAYBORN E. NASH #

VS. # CIVIL ACTION NO.

® H-79-832

CITY OF HOUSTON ® Consolidated with C.A.

CIVIC CENTER; ET AL. # HO1-1471

# H-81-2500

® H- 81-2596

FINAL JUDGEMENT

This action came on before the Court for trial on

issues relating to liability and hearing on the issues

relating to relief, and the issues having been duly tried

and heard, and a decision having been duly rendered, it is

ORDERED AND ADJUDGEB:

That the City of Houston be and hereby is

permanently enjoined from denying to any employee in

the Civic Center Parking Division the same status,

benefits, and privileges generally accorded to its

employees, including, but not limited to those in its

ordinances and procedures related to civil service,

compensation policies including those providing for

longevity pay, employment benefits including sick leave

and vacation, insurance benefits, and personnel policies

including those related to promotion and transfer.

Further that the City of Houston is permanently

enjoined from establishing or maintaining any ordinance,

policy or procedure with respect to the hours of work,

rates of pay, and terms and conditions of employment or

employees in the Civic Center Parking Division which is

inferior to that generally applicable to employees of the

City of Houston covered by the ordinances relating to

civil service, or which discriminates against, limits,

segregartes or classifies employees of the Civic Center

Parking Division in any way which would deprive or tend

to deprive them of employment opportunities or

otherwise adversely affect their status as employees.

That members of the class as defined by the Court

recover from the City of Houston back pay as set forth

below:

Class Members Payment Due

Moses Adams $ 2,731.18

Danny Allen 2,286.42

George Allen 2,855.40

Okoli Bennett 9,963.24

Romie J. Blount 12,697.19

Jerry L. Buckley

Calvin E. Clay

Allen Connerly

Barbara F lanagain

G. W. Garrett

Walter Garrett

Riley Gilliam

Albert J. Hamilton

Dorothy Lee Harris

Robert E. Holden, Jr.

C.V. Hunt

Ann Marie Jackson

Clifton Jackson

Kenneth Jackson

Lonnie Johnson

Vincent Johnson

Margie Lewis

Mabie J. Moore

Curtis Joe Porter

Leo Porter

Naymond D. Roach

Clarence Robinson

Raymond A. Rymer

Michael E. Sherman

Eddie Sims

Debbie S mith

Jeffery 0. Taylor

Jessie G. Taylor

Joe D. Teagle

Lonnie T eagle

Bernice Washington

Leonard M. Williams

8,288.43

3,144.14

2,643.10

77 1.78

9,943.24

17,166.68

3,086.06

17,166.68

5,787.73

14,863.14

3,614.51

13,683.68

10,660.19

2,112.48

7,221.61

2,168.75

4,569.90

1,703.17

oOo~ ft

12,174.29

606.06

14,793.21

570.77

eo oe AB ee = ee ee ee ee oe ee

——_ -- a

A - 21

That the total amount back pay Clayborn E. Nash

shall recover from the City of Houston is $58,285.47. In

addition, the City of Houston shall reinstate Clayborn E.

Nash to the position of full-time parking attendant.

That Alvin Moore recover from the City of

Houston back pay in the amount of $22,550.00.

That Romie Blount recover from the City of

Houston in addition to the back pay awarded above,

compensatory damages in the amount of $6,350.00.

Furthermore, the City of Houston shall correct Blount's

personnel records to delete any mention of his discharge

and any break in service.

All class members shall be credited with all

pension rights due Group B members under Article

6243g, Tex. Rev. Civ. Stat., as of May 2, 1975, or their

date of hire, whichever is later.

That Plaintiffs recover from the City of Houston

attorneys’ fees and costs as set forth below:

Attorney's Fees of Gardon R. Cooper, I. $76,875.00

Attorney's Fees of David T. Lopez $10,205.00

Cost incurred by David T. Lopez 322.78

That Plaintiffs are entitled to post-judgment

interest on all of the above at the rate of 9.15 per

annum.

All taxable costs are hereby assessed against the

Defendant City of Houston.

Let execution issue on all the above.

This is a Final Judgment.

Done in Houston, Texas, this 30th day of April,

1985.

/s/ JAMES DEANDA

James DeAnda

United States District Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CLAYBORN E. NASH *

VS. * CIVIL ACTION NO.

* H-79-832

CITY OF HOUSTON * Consolidated with C.A.

CIVIC CENTER;ETAL. * H-81-1471

# -81-2500

# H-81-2596

MEMORANDUM AND ORDER OF DISMISSAL

On March 11, 1987, the Court ordered all motions

regarding attorney's fees filed by April 11, 1987. On

April 9, 1987, counsel for Plaintiff Moore filed his

second motion for attorneys'’s fees. Upon review of the

appellate decision in this case, however, the Court has

determined that it lacks jurisdiction to rule on the

pending motion. The appellate opinion clearly states

that "remand for consideration for attorney's fees... is

unwarranted.”

The court of appeals reversed and ordered

dismisse. the claims of the plaintiff class, Nash and

Blount. The court vacated the injunction. The court

affirmed the denial of the petition for intervention and

the judgment entered the favor of Moore. All issues

having been resolved, the Court.

ORDERS this case DISMISSED WITH PREJUDICE.

DONE In Houston, Texas, this 13th day of April

1987.

/s/ JAMES DEANDA

James DeAnda

United States District Judge

SSSESRERSRERE REE Eee ee

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CLAYBORN E. NASH *

ET AL. *

* :

VS. * CIVIL ACTION NO.

* H-79-832

CITY OF HOUSTON * Consolidated with C.A.

CIVIC CENTER; ET AL. ® H-81-1471

® H-81-2500

® H-81-2596

MEMORANDUM AND ORDER

Pending before the Ccurt is Defendant City of

Houston's motion for reimbursement of prepaid

attorney's fees and Mr. Lopez's counter-motion for an

offset. Mr. Lopez seeks an offset of $6,000.00, that

amount representing attorney's fees expended on

Plaintiff Moore's case on appeal

Due to post-trial conflicts between trial counsel

and class members, the Court appointed Mr. Lopez

before entering a final judgment. Mr. Lopez

subsequently represented all Plaintiffs on appeal. Mr.

Lopez argued and prevailed on Plaintiff Moore's claim on

appeaL Thus, the Court would be inclined to grant Mr.

Lopez's motion for an offset.

The Court, however, has concluded that it must

deny Mr. Lopez's motion. First, even though Plaintiff

Moore prevailed on appeal, the court of appeals taxed all

costs against the plaintiffs in its September 24, 1986,

judgment.

Second, the appellate decision states that "(t)he

recard convinces us that only trival effort was expended

by counsel on Moore's personal claim and that remand

for attorney's fees. . . is unwarranted." The appellate

court's language fails to distinguish between the various

counsel for the plaintiffs. The statement also fails to

distinguish between counsel's efforts in the trial court

and on appeaL Thus, the Court finds that this language

preludes granting Mr. Lopez's motion.

Thus, the Court Orders Mr. Lopez's motion for an

offset is DENIED. The Court further

ORDERS Defendants’ motion for reimbursement is

tak

GRANTED in its entirety.

DONE in Houston, Texas, this 10th day of June ,

1987.

/s/ JAMES DEANDA

James DeAnda

United States District Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-2723

(Sum mary Calendar)

CLAYBORN E. NASH, Plaintiff,

GORDON R. COOPER, II and

DAVID T. LOPEZ,

versus A ppellants,

CITY OF HOUSTON CIVIC CENTER

Defendant-

Appellee.

Appeals from the United States District Court

for the Southern District of Texas

(C A-H-79-832)

(December 9, 1987)

before POLITZ, JOHNSON and HIGGINBOTHAM, Circuit

Judges.

PER CURIA M:*#

In Nash v. City of Houston Civic Center, 800 F. 2d

491 (5th.) reh'g denied, 805 F. 2d 1030 (1986), we

affirmed the judgment in favor of Alvin Moore but

reversed the judgment fora

#Local Rule 47.5 provides: "The publication of

Opinions have no precedential value and merely decide

y= 2

particular cases on the basis of well-settled principles of

law imposes needless expense on the public and burdens

on the legal profession." Pursuant to that Rule, the

court has determined that this opinion should not be

published.

elass and two other individuals. As to attorney's fees

relating to Moore, we observed:

that only trival effort was expended by counsel on

Moore's personal claim and that remand for

consideration of attorney's fees isolated for this

case is unwarranted. If affidavits to the contrary

are presented on rehearing, they will be

considered.

800 F. 2d at 497. Moore's trial counsel, Gordon R.

Cooper, II filed an affidavit seeking attorney's fees in a

petition for rehearing. Moore's appellate counsel, David

T. Lopez, filed a petition for panel and en banc rehearing

on behalf of the class but did not seek attorney's fees.

We denied all petitions.

800 F.2d 1030.

The trial court reopened the preceedings and

considered a motion by Cooper for attorney's fees and a

motion by the City of Houston for reimbursement of the

partial award of attorney's fees paid pending appeal

The trial court determined that our decision precluded

an award of fees to either Cooper or Lopez. Cooper and

Lopez appeal; we affirm.

Analysis

The language of our prior panel opinion is clear.

We determined that an award of attorney's fees to

Moore's attorneys was not in order, but we did not

forclose the possibility of reconsideration of that ruling.

We invited counsel if they differed with our resolution,

to file affidavits concerning attorney's fees in their

petitions for rehearing. Cooper chose to do so but after

reconsideration of the record, including his affidavit, we

declined to award attorney's fees. Lopez filed petitions

for rehearing for his clients but opted not to fille an

affidavit for attorneys’ fees.

Cooper maintains that he should be granted

attorney's fees for his efforts on behalf of Moore. We

previously rejected his application. 800 F. 2d at 497.

We do so again, both on the merits and pursuant to the

law of the case doctrine. Schwartz v. NMS Industries,

Inc., 575 F.2d 553 (5th Cir. 1978).

Lopez maintains that our prior decision does not

preclude his present claim. He seeks only a set-off of

$6,000, the stipulated value of his legal services on

appeal, against the amount the trial court ordered

reimbursed to the City of Houston. Lopez valiantly

argues that the services he provided on appeal, after

being appointed for the appellate work, does not come

within the reach of our prior mandate. Unfortunately

for counsel, the language of our holding is clear and it

manifestly embraces his claim. He should have accepted

the invitation of the prior panel and presented to it his

legal and equitable claims for attorney's fees. He did

not do so. That panel denied attorney's fees to Moore.

This panel may neither overrule nor ignore the ruling of

the prior panel; that is the exclusive prerogative of the

en banc court. We therefore must and do AFFIRM.

m™

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-2723

CLAYBORN E. NASH, Plaintiff,

GORDON R. COOPER,U and

DAVID T. LOPEZ,

versus A ppellants,

CITY OF HOUSTON CIVIC CENTER

Defendant-

A ppellee.

Appeals from the United States District Court

for the Southern District of Texas

ON PETITION FOR REHEARING

(JANUARY 5, 1988 )

Before POLITZ, JOHNSON and HIGGINBOTHAM,

Circuit Judges.

PER CURIAM:

IT S ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and

the same is hereby denied.

ENTERED FOR THE COURT:

/s/_ Henry A. Politz

United District Circuit Judge

AFFIDAVIT

STATE OF TEXAS

COUNTY OF HARRS

BEFORE ME, the undersigned authority, on this

day personally appeared GORDON R. COOPER,I, known

to me to be a credible person competent in all respects

to make this affidavit, and who, being by me swormm upon

oath, stated:

I was the attorney of record of for:

a. Plaintiff Ronnie Blount throughout the

trial phase of this cause;

b. Plaintiff Clayborn Nash throughout the

trial phase of this cause;

C. Plaintiff Alvin Moore throughout the

trial phase of this cause; and

d. Plaintiff Class throughout most of the

trial phase of this cause.

I filed a verified request for Attorney's fees

with the trial court regarding the time I

expended for the above-named Plaintiff's

(See Exhibit "A" attached herein). The total

number of hours expended in this case was

Five Hundred & Twelve (512).

That as a matter of practice, when 1 have

more than one named Plaintiff on a case, I

often use the name of the first named

Plaintiff to refer to the file/case or no

reference to Plaintiff but rather the service

performed on that particular file.

That with regards to the Request for

Attorney's fees which I filed with the trial

court, I liberally used the title "Nash" to

characterize the parties that I represented or

listed work performed.

That I expended at least one-fourth of the

Five Hundred & Twelve (512) hours that was

awarded to me by the trial court on Moore

resulting in One Hundred and Twenty-Eight

(128) hours attributable to Moore.

)

i ©

That I was not paid a retainer for attormey’'s

fees by any of the Plaintiffs.

Te That the information contained in the

preceding Motion for Rehearing and in this

Affidavit are true and correct.

signed Gordon R. Cooper, I

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CLAYBORN E. NASH #

ET AL. *

VS. * CIVIL ACTION NO.

* H-79-832

CITY OF HOUSTON #

CIVIC CENTER; ET AL. #

AFFIDAVIT

Iam an attorney licensed by the Supreme Court of

Texas on or about September 20, 1971, I am licensed to

practice before all Texas Courts, the United States

District Court for the Southern District of Texas, the

Fifth Circuit Court of Appeals, the United States

Supreme Court. The information contained in my

application for attorney fees is based on my time records

maintained on the Nash case since 1977 and they are

true and correct.

SIGNED this ___ day of , 1988.

signed

GORD . COOPER,

”

Notary Public for

he State of

»,

wet

04/20/T7

04/22/77

le) “ei

04/20/77

1977 - 1980

Initial Interview with Plaintiff

Earl Nash - Entered into employment

contract. 3 hours

Meeting with Plaintiff to further

determine cause of action - whether

class includable 2 hours

Research to determine applicable law

- to determine whether class is

certifiable 6 hours

Meeting with Plaintiff, drafting of

EEOC Charge and filing of the same

2 hours

Meeting with Potential class members -

to determine the use of the knowledge

in case 3 hours

Drafting Nash's Petition and review

for filing 3 hours

Reviewed Defendant's Answer

1 hour

Drafting and filing of Plaintiff's

First Interrogatories 5 hours

Review Special Order - Judge Seal

3 hour

Notice to depose Lowery and

Preparation for his deposition

2 hours

Review of Deposition change

z hour

08/28/79

09/79

12/11/79

01/07/80

01/14/80

4/25/80

4/28/80

4/29/84

5/1/80

5/3/80

5/8/80

5/19/80

Determining documents needed and

filing Request For Production of

Documents 2 hours

Joint Motion For Enlargement, Order

and filing 2 hours

Preparation for deposition and

Drafting Notice to depose 4 hours

Preparation of Nash deposition

3 hours

Motion For Enlargement of Time and

Order

Review discovery and defendant's

response to Plaintiff's First

Interrogatories 5 hours

Further review discovery; Defendant's

response to Plaintiff's First

Interrogatories 4 hours

Initial preparation - Motion to Certify

5 hours

Motion to Certify - Nash

6 hours

Motion to Certify - Prepare Exhibits

7 hours

Motion to Certify - Review and File

4 hours

Review of Defendant's First

Interrogatories and answering

3 hours

_ a

-_ _ eC

6/4/80

6/5/80

6/7/80

6/23/80

6/24/80

9/2/80

10/16/80

12/23/80

Review of Defendant's Response to

Plaintiff's Motion to Certify

3 hours

Further review of Defendant's Rule

23 - Motion response 1% hours

Review Defendant's response to

Plaintiff's Motion to Certify

6 hours

Nash's response to Defendant's

Interrogatories 3 hours

Filing answers to interrogatories

1 hour

Docket Call - Nash and attending

Conference (Seals) 2 hours

Meeting Walter Garrett - Re: Nash

case 3 hour

Prepare Class hearing 6 hours

Attended conference - Re:

Class questions 2 hours

01/21/81

01/22/81

02/06/81

02/20/81

02/16/81

02/17/81

02/18/81

04/2/81

1/92 /Q)

Vt/ Oo O/ Os

Ali /O}; /Q9

J / Ct/ 81

F - 8

1981

A mended Petition 3 hours

Filing A mended Petition 1 hour

Review Defendant's A mended Answer

20 min.

Reviewed State's (?) Answer

Y2 hour

A mended Motion to Certify 3 hours

A mended Motion to Certify 5 hours

Filing of A mended Motion To Certify

1 hour

Meeting witnesses class hearing - Nash

4 hours

Preparing Class hearing 5 hours

Preparing Class hearing 4 7/2 hours

Preparing Class hearing 4 hours

Nash

Preparing and attending Class hearing

9 V2 hours

Preparing certification order

2 hours

Meeting with class members - Harris

and Blount - details; RE: Practices of

Defendant 3 hours

05/21/81

06/06/81

06/23/81

06/29/81

07/01/81

07 /04/81

08/12/81

09/21/81

09/23/81

09/24/81

10/02/81

10/19/81

10/3/81

Reviewing Evidentiary hearing on Rule

23, Motion and file to determin needed

discovery 6 hours

Detailed interview and drafting of

original petition (Moore) 5 hours

Reviewed Defendant's Motion to

dismiss and research position

2 hours

Response to Defendant's Motion

To Dismiss (Moore) 3 hours

Meeting with Fisher, et al- Nash

2 hours

Meeting with Nash Class members

2 V/2 hours

Analysis of discovery data - Nash

4 hours

Motion to Stay further proceedings -

Moore and filing 2 hours

Detailed meeting with Romie Blount

and review of material 5 hours

Romie Blount's petition 3 hours

Review of Defendant's Renewed

Motion to Dismiss Moore 2 hours

Response to Defendant's Renewed

Motion to Dismiss (Moore) 5 hours

Meeting with Blount, Garrett and

Nash - general preparation 2 hours

11/05/81

1/14/81

F - 10

Reviewed Defendant's Motion To

Dismiss (Blount) 3 hours

Response to Motion To Dismiss

(Blount) 5 hours

03/20/82

07/07/82

07/08/82

08/10/82

08/31/82

09/03/82

10/04/82

11/09/82

11/29/82

12/10/82

12/3/82

Fr = ki

1982

Review docket control order entered

March 10, 1982 to determine ability

to comply with same 1 hour

Review of discovery in file to

determine data needed for litigation

5 hours

Further review of discovery file

and preparation of Plaintiff's

Second Interrogatories 6 hours

Review of Defendant's response to

Plaintiff's Second Interrogatories a

and drafting Motion to Compel answer

to same and filing 3 Y2 hours

Motion ot Reconsider Order and filing

3 hours

Motion For Continuance, Order and

filing 17/2 hours

Preparing and attending conference

1//2 hours

Review of Nash, Blount and Moore and |

other pleadings to prepare unified

complaint 4 hours

Meeting - Garrett and Blount

RE: Consolidation Issue 1 hour

Nash unified petition - drafted

3 V2 hours

Nash unified complaint, reviewed

and filed 2 hours

Preparation For Deposition of

Blount and Moore 3 hours

Preparation and attending deposition

Blount and Moore 6 hours

01/25/83

02/07/83

02/08/83

03/01/83

0 3/08 3

1983

Meeting with Blount and Garrett

RE: Material they wanted revealed

and reviewed material in file

2 hours

Civic Center reviewing Records

3 hours

Civic Center meeting E mployees

RE: Record 2 hours

Docket Call 1 hour

Exhibit List and filed (est)

2 hours

Proposed Order to redefine

Class and filing (est) 2 hours

Preparation and meeting Atty.

Halsey RE: Nash 2 hours

Meeting Atty. Halsey -

Preparation for Trial 3 hours

Meeting Atty. Halsey -

Preparation of Trial 3 hours

Initial Preparation of Trial -

N ash 4 hours

Preparation of Trial - Nash

4 hours

Preparation and attending

Pre-Trial Conference 2 hours

04/25/83

04/27/83

04/29/83

5/22/22

~ A _ Wo

/>}; /R22

F- 14

Nash Trial Preparation 6 hours

Preparation and Filing - Proposed

Findings of Fact and Conclusion

of Law 5 hours

Trial Preparation - Rivew Witness

and testimony to be heard in trial

5 hours

Preparation and filing of Witness

List 2 hours

Trial Preparation - Nash 5 hours

Trial Preparation - Exchange

and filed Exhibit List 2 hours

Nash Trial Preparation 3 hours

Nash Trial Preparation 6 hours

Trial Preparation 7 hours

Trial Preparation

GRC 9-JSC7 lb hours

Rent oF Dro arat ~r

rial Dp

GRC O-JSC 6 l2 hours

Trial Preparation

-* - > ——

GRC 7-JSC7 14 hours

Trial P n tion

sTlai rreparatvion

GRC 9-JSC 3 l2 hours

lal rn Tor 4 > 1 :

ve 3

—_

05/26/83 Reorganization and Preparation

for the Trial 3 hours

06/1/83 Nash Trial Preparation 2 hours

06/12/83 Nash Trial Preparation

GRC4-JSC 2 6 hours

06/13/83 Preparation and Trial 9 hours

06/14/83 Preparation and Trial 8 hours

03/13/84

03/14/84

03/16/84

03/17/84

03/21/84

04/03/84

04/05/84

04/25/84

05/03/84

05/04/84

05/06/84

05/07/84

05/09/84

F - 16

1984

Review and Analysis - Nash opinion

3 hours

Review Records to determine class

members 6 hours

Determining class damages 3 hours

Meeting class members to determining

damages 2 Y2 hours

Meeting with Judge - RE: procedure

determining damages & attorneys fees

2 hours

Reviewing records to determine class

members 3 hours

Telephone conference with Fisher on

class language 3 2 hours

Nash Class clarification 3 hours

Determining class members -

Preparation and meeting with Fisher to

work on class language 4 hours

Meeting with Judge DeAnder

1 hour

Determining class memberships -

Notices Proposed damages - Nash

GRC6-JSC 6 12 hours

Filed with Proposed Class members

- proposed notification 1//2 hours

Nash class questions 2 hours

05/10/84

05/1/84

05/15/84

05/16/84

05/19/84

05/21/84

05/23/84

06/02/84

06/05/84

06/06/84

06/13/84

08/23/84

03/08/85

03/09/85

Preparation and meeting to

determine damages 8 hours

Determining damages 4 hours

Meeting with Moore to determine

damage 1 hour

Securing Order - Meeting with

Fisher 17/2 hours

Meeting with class members -

Cooper and Halsey 3 VY2/hours

Damage Analysis - Moore 2 2 hours

Notice Letter - Nash 2 hours

Meeting with class members

and other damages problems

GRC 3V2-JSC 3 V2 7 hours

Salary study Moore - McAllen

Preparation and Meeting with Nash

4 V2 hours

Preparation and Meeting

with Moore 1 V2 hours

Meeting with Fisher RE: Nash

damages 3 V2 hours

Meeting with Lopez RE: Nash

file 3 V2 hours

Preparation RE: Damage Hearing

4 hours

Preparation RE: Damage Hearing

2 hours

Meeting with Moore and Preparation

RE: Damage Hearing 2 hours

03/12/85 Preparation RE: Damage Hearing

l hour

03/13/85 Meeting with Nash and Preparation

E: Damage Hearing 2 hours

14/85 Attending Damage Hearing

estimated 3 hours

- )

| 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CLAYBORN E. NASH

ET AL.

VS. CIVIL ACTION NO.

H-79-832

CITY OF HOUSTON

CIVIC CENTER; ET AL.

me me a eK Oe

MEMORANDUM AND ORDER

Pending before the Court is Defendant City of

Houston's motion requesting the Court to order Gordon

Cooper to return attorney's fees paid pending appeaL

Mr. Cooper was awarded $76,875.00 in attorney's

fees after trial Defendant paid Mr. Cooper $15,000.00

of that amount while the case was on appeal The court

of appeals reversed this Court’s judgment on all but

Plaintiff Moore’s claim. Mr. Cooper sought attorney's

fees for Moore’s claim. On April 13, 1987, this Court

denied Mr. Cooper’ motion for attorney's fees, citing

language in the appellate opinion and finding that this

Court lacked ,risdiction to rule on Mr. Cooper’s motion.

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Mr. Cooper has subsequently failed to return the

attorney's fees to Defendant. The

GRANTS Defendant's motion for

- Cooper to pay Defendant $15,000.00

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

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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.