Opposition Brief — Evans v. City of Evanston

ee

| FILED

Zz) APR 8 92

No. 91-1211 THE CLERK

In The

Supreme Court of the United States

@ctober Derm, 1991

Petitioner,

CHARLENE EVANS,

CITY OF EVANSTON AND DIRECTOR OF PERSONNEL,

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JACK M. SIEGEL

10 South Wacker Drive

Suite 4000

Chicago, Illinois 60606

312/715-4677

Attorney for Respondent

ARMI®e

Legal Copies of America (312) 332-2764

i

QUESTIONS PRESENTED FOR REVIEW

A correct statement of the questions presented for review

is as follows:

1.

Was there an abuse of discretion on the part of the trial

court in denying an enhancement or multiplier of plaintiffs’

attorneys’ fees to be paid by defendants in a Title VII

employment class action?

Was there an abuse of discretion by the trial court in refusing

to award attorneys’ fees from a common fund in a Title

VII case when an award of fees payable by the Defendants

had been made?

Are Plaintiffs who unsuccessfully appeal a portion of a Title

VII case entitled to Fees for services in defending a Cross-

Appeal when the cause is remanded with respect to the

issue raised by the Cross-Appellant and the plaintiffs fail

to receive any benefits from their original appeal?

Can a trial court apply an across-the-board reduction of

attorneys’ fees in a Title VII action?

ii

INDEX

QUESTIONS PRESENTED FOR REVIEW .............c.ccccceseeseeseees i

STAT ERMEIRINE cecssncasensessnsrsteecissionmmnsaenininbiansinstastanidimmunianaatavannnns 1

REASONS FOR DENYING THE WRIT .............:0000000+ wnennanneel 4

A CONTINGENCY MULTIPLIER IS

NOT WARRAIT EIR? cccsccsesssrssesnrnionsnisesssiannbaiinsmenosencksnssecaseeteensesd 5

THE PLAINTIFFS WERE NOT THE PREVAILING PARTY

ON THE FURBT APPEAL, wccesssccsccasesscesssesssonssssccnscesssvensocssnusvensess 8

THE EXERCISE OF DISCRETION .00........:ccscsssessesrseesemeennens 10

TABLE OF CASES

Pages

Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) .........ssccccessseeeeeseees 5

Blum v. Stenson, 465 U.S. 886, 79 L.Ed.2d 891 (1984) ................. 5

Boeing Co. v. van Gemert, 444 U.S. 472 (1980) .......ssssesessseseseseeees 8

Buian v. Boughard, 687 F.2d 859 (6th Cir. 1982) ........-sssscsseernes 10

Copeland v. Marshall, 641 F.2d 888, 903 (D.C. Cir. 1980)

SII isi censssisaiinneciestbnanbennaunesbbbeonaannoonseatachsevabasenevens 12

Daggett v. Kimmelman, 811 F.2d 793, 797-98 (3rd Cit. 1987) ....12

Dague v. City of Burlington, 935 F.2d 1343 (2nd Cir. 1991) ........ 7

Davis v. Locke, 936 F.2d 1208 (11th Cir. 1991) ............cccesseeeeeeees 7

Fadhl v. City of San Francisco, 859 F.2d 649 (9th Cir. 1988) ..... 7

Fishman v. Clancy, 763 F.2d 485, 491 (1st Cir. 1985) ................ 11

Gilbert v. Little Rock, 867 F.2d 1063 ...........ssccsscsssesseereeseeeseereeeeees 7

Goodsen v. City of Atlanta, 763 F.2d 1381, 1390

GE GI MOMENI ~ crscucencsadocenesniiescancesonssesscsonnssscesnesensonssnsnescsessescces 11

Hagee v. Bauer, 827 F.2d 101, 111 (7th Cir. 1987) .........ceseeeeeees 6

Hanrahan v, Hampton, 446 U.S. 754, 758,

Be PT CUMIN cinicsciscssnsssccoccensscrsesenscersosssosecvsenessosnvenesoes 10

Hensley v. Eckerhart, 461 U.S. 424, 436, 76 L.Ed.2d

RI ras siceccndnsimentdantonenbiuishviiadicabakiahnbenninnnnscenansees 6, 9, 11, 12

Hewitt v. Helms, 42 U.S. 755, 96 L.Ed.2d 654 (1987) ...........:00+ a

Kelly uv. Matlack, 903 F.2d 978 ............scsssserscsrssereessessesessnssonseess 7

Kelly v. Metro County Board of Education, 773 F.2d 677 ......... 10

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) .......cccesesseseeeeeneees 7

Laffery v. Northwest Airlines, Inc., 746 F.2d 4, 27-29 (1984) ...... 6

Lattimore v. Olman Construction, 868 F.2d 437

I I oo ce sasccsenelannuibpnsiinesinnetnnmnshenssetnsensnnsanpusnsened 8,9

Leroy v. City of Houston, 831 F.2d 576 ........c:ccccceseeeseereeeeeeneneneeees 7

iv

Page

Lynch v. City of Milwaukee, 747 F.2d 423, 428

Ee re ee I tehetit cident pteeisendeteddcdinssebeinces 12

McKinnon v. City of Berwyn, 750 F.2d 1383, 1392-93

(, kt EAP ae RETIREE Ser ee ALS, ee ee 6, 11

Moore v. City of Des Moines, 767 F.2d 343,

346 (8th Cir. 1985), cert. denied 88 L.Ed.2d 781 (1986) .......... 11

New York Assn. for Retarded Children v. Metropolitan

District Commission, 847 F.2d 12, 15-17 (1st Cir. 1988) ........ 12

Norman v. Housing Authority, 836 F.2d 1292, 1306

I I ce cshcdalinnibsienainmmaiannel 6

Pennsylvania v. Delaware Valley Citizens Council,

478 U.S. 546, 92 L.Ed.2d 439 (1984) ............ccccccccccscssssscscsecccerees 6

Pennsylvania v. Delaware Valley Citizens Council,

483 U.S. 711, 728, 97 L.Ed.2d 585 (1987) .............::scccceceeeees 5, 6, 7

Perotti v. Seiter, 935 F.2d 761, 765 (6th Cir. 1991) .......... ousenannanatns 7

Riverside v. Rivera, 477 U.S. 561 (1986) ............cccceceeeeeeseeceeseeeees 11

Rode v. Dellaciprete, 892 F.2d 1117 (1990) ......... ce ceeeeseeeeeeeeeee 12

Sims v. Jefferson Downs Racing Assn., 778 F.2d 1068 ............. 13

Spell v. McDaniel, 852 F.2d 762 (4th Cir. 1988)... eee 7

Texas State Teachers v. Garland Independent School

Fe a Be IE eetciiticdintreitesindinicesitistnanlinndasnciskassiniinn: 9

Texas Teachers v. Garland Independent School District,

489 U.S. 782, 101 L.Ed.2d. 866 (1988) .......cccccccccsesccccscscscccccseoesd 6

Ustrak v. Fairman, 852 F.2d 983 (7th Cir. 1988) ..................eeeeee 10

Wards Cove Packing Co. v. Antonio, 109 S.Ct. 2115 (19839) ........ 2

Webb v. Dwyer County Board of Education,

ee Gn EEE secaitanchennmneecatibeiintténiansaseciansn iciadalacieseaidaetastcileedh 11

Women’s Serve, P.C. v. Thon, 645 F.2d 649 (8th Cir. 1981) ....... 10

Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989) ................. 7

No. 91-1211

In The

Supreme Court of the United States

@ctober Term, 1951

CHARLENE EVANS, Petitioner,

v.

CITY OF EVANSTON AND DIRECTOR OF PERSONNEL,

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Respondents, City of Evanston and Director of Person-

nel, City of Evanston, respectfully pray that the Petition for Writ

of Certiorari to the United States Court of Appeals for the Seventh

Circuit be denied.

STATEMENT

The original case which gave rise to the fee appeal was a

civil action arising under Title VII of the Civil Rights Act of

1964. The Plaintiff, Charlene Evans, was a representative of a

class challenging the firefighters physical agility test adminis-

tered by the City of Evanston in 1983. She brought this action

on her own behalf and on behalf of the class consisting of females

who applied for the position of firefighter in the City in 1983

and failed the physical agility test. The case was tried in April

of 1988. The trial court found that the job analysis met the

minimum standards for performing a firefighters job analysis

(App. 41). It further found that the Evanston physical agility

test was content valid (App. 43). The court, however, found that

the cut-off score chosen by Evanston was unjustified (App. 46).

r 2

In crafting the remedy the trial court held that it had

considerable discretion to devise appropriate relief. It prohibited

the city from using the physical agility test in any way that

unlawfully discriminated against firefighter applicants, but using

the test at issue was permissible if the court approved in advance

the establishment of a cut-off score (App. 46). The court also

ordered the award of back pay to be distributed on an aliquot

basis. It refused any further equitable relief.

The City of Evanston determined not to appeal. The plain-

tiffs, however, filed an appeal challenging the lack of the equitable

relief. The City then cross-appealed challenging the finding of

liability. The Seventh Circuit affirmed the trial court’s finding

that the test was valid. The court found that the trial judge had

awarded “a tiny amount of back pay”, which amount had not

been challenged. The Seventh Circuit found that the additional ©

* relief sought was not required as a matter of law. That portion

of the trial judge’s order finding that the cut-off score was not

justified was vacated in light of Wards Cove Packing Co. v.

Antonio, 109 S.Ct. 2115 (1989) (App. 53).

On remand the City offered further evidence in support of

a cut-off score and the trial court entered an order establishing

a cut-off score. The plaintiffs did not appeal the cut-off score.

The attorney for the plaintiffs then filed a fee petition. The court

informed counsel that its practice was to examine at the request

of the defendants, specific areas of the plaintiffs’ counsel’s work

and to apply the findings made there to the remaining hours

claimed (App: 16). The plaintiffs’ counsel made no objection to

this technique. The court explained that the sampling procedure

operates on the reasonable premise that a lawyer’s billing and

work habits and practices are in fact habits and practices which

will uniformly apply to all of the lawyer’s work (App. 16).

The trial court found that sixty one hours to prepare findings

of fact was somewhat excessive and found that 35 hours was

the maximum amount a reasonable attorney would have had

to spend to prepare them. With respect to the motion for summary

judgment, the court found that 78 hours was excessive for a

motion which was not successful, but constituted a reasonable

step in the litigation. The trial court regarded a total of 63 hours

to be an appropriate expenditure for the time to prepare the motion

‘

3

(App. 17). The trial court found that 70 percent of the total hours

claimed in these two areas was reasonable and applied the 70

percent figure to the hours requested which were 260 hours for

principal counsel and 74 hours for associate counsel (App. 17).

The Defendants’ counsel spent 193 hours on the trial (App. 17).

Plaintiffs’ counsel contended they deserved a multiplier to

compensate for risk and contingency. The Defendants said there

ought to be a downward adjustment because of the lack of success

since the Plaintiffs gained so little and lost on two major issues

they raised (i.e., validity of the test and scope of relief). The court

found that the positions offset each other (App. 17). The court

found that while the Plaintiffs achieved something of value to

themselves and to future applicants, and there was reason to

encourage counsel to take such cases, on the other hand much

of the effort was wasted and no incentive (but rather a disin-

centive) is needed for such efforts. The trial court then concluded

that neither an upward nor downward adjustment is required

and in the exercise of his discretion found neither adjustment

ought to be made (App. 17). The trial court refused to award

any fees for the hours spent on appeal because the Plaintiff did

not prevail on any issue in the appeal (App. 16). It should be

noted that there was not a 70 percent across the board reduction

in total time, but rather a 30 percent reduction in total time.

The Court awarded fees of $200 an hour for principal counsel

and $120 an hour for associate counsel.

On the fee appeal, at issue here, the Seventh Circuit found

that all the Plaintiffs received on appeal was a reversal and

remand on the one issue on which they had achieved success

in the district court-(App. 4). The court noted that a civil rights

plaintiff who, having won a judgment in the district court, appeals

seeking a greater victory and fails in his appeal would be hard

pressed to demonstrate his entitlement to his attorneys’ fees on

appeal even though he remains the prevailing party in the

underlying litigation (App. 4). The court concluded that the

Plaintiffs’ counsel won in part in the district court, but did “fail

utterly” on appeal.

With respect to the 30 percent reduction, the Seventh Circuit

concluded that the sampling technique was reasonable and that

Plaintiffs’ counsel had been given ample warning of the method

cm es nn LT

4

and a chance to respond (App. 7) The Court found that the district

court explained how it arrived at the number of hours it identified

as reasonable and the number it identified was in the range

of reasonable estimates and therefore the trial court was well

within its discretion (App. 8).

With respect to the fee enhancement for a contingency the

Circuit Court agreed with the district court’s view that the lodestar

figure is the center piece of fee awards and that contingency

enhancements above the lodestar are appropriate only in cases

of exceptional success. The court agreed with the district court

that this was not a case in which the Plaintiffs enjoyed excep-

tional success. The Plaintiffs lost on one of their two Title VII

claims and the district court denied them the relief they sought,

employment as firefighters in Evanston, opting instead for the

more limited remedy of damages. Given the incomplete victory

the Plaintiffs obtained in the district court, the circuit court could

safely say that the district court did not abuse its discretion in

concluding that no enhancement in the fee awarded was

appropriate (App. 9). With respect to a share in the damages

recovered, the court noted that no common fund recovery is

allowable where the prevailing private plaintiff may obtain fees

from the government. The focus on damages would contradict

Congress’ purpose in providing for fee shifting in these cases.

The court concluded that the District Court was correct to rule

it was unnecessary to allow both a recovery from the Defendants

and the common fund in this case (App. 11). The petition for

rehearing en banc was denied (App. 15).

REASONS FOR DENYING THE WRIT

In this case both the trial court and the Seventh Circuit

carefully analyzed the existing law with respect to the award

of attorneys’ fees in Title VII cases. This case represented a

minimal victory for the Plaintiffs. The principal objectives of

the Plaintiffs was to invalidate the physical agility test as applied

to female applicants for firefighters positions and to secure

employment for females who had failed the physical agility test.

The Plaintiffs failed in both respects. As a result of this case,

the City of Evanston has a valid firefighters physical agility

test which it may apply to both male and female applicants.

It further has a cut-off score which has been validated by the

— el

5

district court. Evanston achieved a major victory. Moreover, the

Plaintiffs’ attorneys have not gone unrewarded. They have in

fact received more than $58,000 for their efforts.

The attempt to secure fees for an appeal which utterly failed

is highly presumptuous. Not only did the Plaintiffs fail to secure

the relief they sought, but the only point on which they had

originally prevailed was vacated. While the Plaintiffs were in

fact the nominal prevailing parties because they received what

the Circuit Court characterized as “a tiny amount of back pay”

(App. 53), the appeal failed to gain any additional relief. As we

shall demonstrate below, the Seventh Circuit's opinion was

consistent with the decisions of this court and the other circuits

which have considered the question. The sampling technique used

by the trial court has also been recognized by this court as an

appropriate measure of determining reasonable attorneys’ fees.

The trial court, as the circuit court noted, carefully explained

the basis upon which he arrived at the reasonable number of

hours to be expended in this case. Clearly there was no abuse

of discretion.

Thus, the decision of the Seventh Circuit was well-founded

based upon repeated decisions of this court and the prevailing

law. No reason exists for granting the writ.

A CONTINGENCY MULTIPLIER IS NOT WARRANTED

The Court of Appeals, as did the trial court, denied the

Plaintiffs’ attorneys request for a fee enhancement for contin-

gency. The district court rejected counsel’s request for an

enhancement above the lodestar figure because of the limited

success plaintiffs enjoyed. The Court of Appeals agreed with the

district court’s view thet the lodestar figure is the “centerpiece

of fee awards” Blanchard v. Bergeron, 489 U.S. 87, 94 (1989),

and that contingency enhancements above the lodestar figure

are appropriate only in cases of exceptional success. The Court

of Appeals also specifically cited the plurality opinion of Justice

White in Pennsylvania v. Delaware Valley Citizens Council, 483

US. 711, 728 (1987).

The law is absolutely clear that multipliers are not favored

and are to be awarded only for exceptional success. Blum uv.

_--

6

Stenson, 465 U.S. 886, 79 L.Ed.2d 891 (1984); Pennsylvania v.

Delaware Valley Citizens Council, 483 U.S. 711, 97 L.Ed.2d 585

(1987); Pennsylvania v. Delaware Valley Citizens Council, 478

U.S. 546, 92 L.Ed.2d 439 (1984); Hensley v. Eckerhart, 461 U.S.

424, 76 L.Ed.2d 40 (1983).

Upward adjustments in Title VII cases are justified and

permissible only in exceptional cases. Laffery v. Northwest

Airlines, Inc., 746 F.2d 4, 27-29 (1984); Norman v. Housing

Authority, 836 F.2d 1292, 1306 (11th Cir. 1988); McKinnon v.

City of Berwyn, 750 F.2d 1383, 1392-93 (7th Cir. 1984); Hagee

v. Bauer, 827 F.2d 101, 111 (7th Cir. 1987).

In the case of Texas Teachers v. Garland Independent School

District, 489 U.S. 782, 101 L.Ed.2d. 866 (1989) this court cited

Hensley for the proposition that the district court had discretion

to arrive at a reasonable fee award when success as here was

limited. In that case, this court said “In such a case, we indicated

that ‘the most critical factor is the degree of success obtained’.”

The trial court in light of the limited success denied both

the Plaintiffs’ attorneys request for an enhancement and the

Defendants’ request for a reduction based upon lack of success.

The Court of Appeals in concluding that this case was not one

in which the Plaintiffs enjoyed exceptional success found that

the District Court did not abuse its discretion in concluding that

no enhancement in fees awarded Plaintiffs’ counsel was approp-

riate (App. 9).

There is nothing in Pennsylvania v.Delaware Valley Citizens

Council (IT), 483 U.S. 711 (1987) which mandates a contingency

multiplier. Given the most favorable treatment of Justice

O’Connor’s concurring views, the most that can be said is that

consideration of a contingency in setting a reasonable fee is

permissible. But in that area, the discretion of the trial judge

as affirmed by the Court of Appeals must be respected. As four

members of the court in the plurality opinion indicated, however,

multipliers or other enhancement of a reasonable lodestar fee

for assuming risk is impermissible under fee shifting statutes.

The Plaintiffs’ contention in their petition that there is

substantial confusion among the lower Federal courts which

7

requires a consideration by this Court simply is not true. Plaintiffs

concede that the most recent decision on this matter was King

v. Palmer, 950 F.2d 771 (D.C. Cir. 1991). In that case, the majority

of the court in an en banc decision specifically held that a

reasonable lodestar fee awarded under Federal fee shifting

statutes could not be enhanced to compensate the prevailing party

for initial risk of loss. Contrary to the petitioner’s contention,

that view is totally consistent with Delaware Valley (II) and

the numerous cases construing that opinion.

The cases cited by the petitioner as supporting an enhance-

ment for a contingency, of course, do not require a contingency

enhancement. In the case of Fadhi v. City of San Francisco,

859 F.2d 649 (9th Cir. 1988) the court was merely affirming a

trial court’s determination with respect to fees. In Dague v. City

of Burlington, 935 F.2d 1343 (2nd Cir. 1991) the Second Circuit

specifically disagreed that Justice O’Connor’s view in Delaware

Valley II was controlling, 935 F.2d 1360. In Kelly v. Matlack,

903 F.2d 978, the Third Circuit in an age discrimination case

held there should be no enhancement for the contingency factor

over the lodestar and that there was no abuse of discretion in

refusing an enhancement for contingency. In the case of Spell

v. McDaniel, 852 F.2d 762 (4th Cir. 1988) the Fourth Circuit

rejected a plea for enhancement beyond the lodestar. In the case

of Leroy v. City of Houston, 831 F.2d 576 the Fifth Circuit rejected

an enhancement beyond the lodestar after reviewing Delaware

Valley and Justice O’Connor’s concurring opinion. In the case

of Perotti v. Seiter, 935 F.2d 761 (6th Cir. 1991) the Sixth Circuit

remanded back the case after a multiplier had been awarded

and held that Delaware Vailey did not provide guidance 935

F.2d 765. In the case of Gilbert v. Little Rock, 867 F.2d 1063,

the court reduced an enhancement approved by the district court.

In the case of Wulf v. City of Wichita, 883 F.2d 842 (10th Cir.

1989), the Tenth Circuit found that no risk factor enhancement

was appropriate despite the district court’s finding and remanded

the case back. The case of Davis v. Locke, 936 F.2d 1208 (11th

Cir. 1991) involved an enhancement which was justified by the

deterrent effect of such holding in a case which involved the

discipline of prison inmates.

seein

8

The Seventh Circuit properly held that no portion of a

common fund is available for attorneys’ fees because the private

plaintiffs were entitled to have their fees paid by the governmental

agency. There is nothing inconsistent with the policy underlying

the common fund doctrine when, as here, a specific statute is

involved. The case of Boeing Co. v. van Gemert, 444 U.S. 472

(1980) involved a class action suit. The question before this court

there was whether or not an award of attorneys’ fees should

be assessed against part of a judgment fund not claimed by

absentee class members as well as against the part claimed. The

court merely held that when a lawyer recovers a common fund

he is entitled to a reasonable attorneys’ fees from the fund as

a whole. The case, however, does not involve a statute which

as here specifically provides for an award of attorneys’ fees to

be paid by a losing party. Whatever else they may be, the class

clearly was not the losing party in this case. The losing party,

the City of Evanston, has paid the plaintiffs the fee determined

by the court. The decision of the Seventh Circuit in no way

discourages attorneys who might otherwise file Title VII class

actions. The statutory provision for attorneys’ fees fully com-

pensates attorneys who are successful in this matter. To argue

that somehow or other the failure to grant a contingency

multiplier would discourage such litigation is wholly without

merit.

THE PLAINTIFFS WERE NOT THE PREVAILING

PARTY ON THE FIRST APPEAL

We do not argue that the Plaintiffs are not the prevailing

party in this litigation. However, as the Seventh Circuit recog-

nized, the Plaintiffs gained absolutely nothing by virtue of the

appeal which resulted in vacating the only portion of the

judgment below upon which the Plaintiffs prevailed. Both the

trial court and the Seventh Circuit specifically held thr* fees

for the first appeal were inappropriate because the Plaintin’ did

not prevail on any issue on the appeal. Plaintiff simply did not

prevail in the defense of the cross-appeal. In fact they lost on

the only point on which they prevailed at trial because the portion

of the district court’s decision invalidating the scoring method

was vacated. The citation of Lattimore v. Olman Construction,

868 F.2d 437 (11th Cir. 1989) is without relevance. The court there

9

simply affirmed the district court which had made findings which

the court on review held were not clearly erroneous. All that

was involved in successive appeals in Lattimore was the

determination of the amount of the attorneys’ fees. In the appeal

for which the Plaintiffs’ counsel now seeks additional compen-

sation, substantive issues were raised and the Plaintiffs lost on

each of those issues. The decision of the Seventh Circuit and

the trial court in refusing to award fees for an appeal on which

the Plaintiffs’ failed to prevail on any aspect was not clearly

erroneous. Moreover, in Lattimore there had been an admission

that an enhancement was proper and the court of appeals there

merely affirmed the district court.

In this case the trial court and the Seventh Circuit specifically

held that fees for the first appeal were inappropriate because

the plaintiff did not prevail on any issue of the appeal.

The citation of Texas State Teachers v. Gariand Independent

School Dist., 109 S.Ct. 1486 (1989) is clearly not appropriate.

Justice O’Connor wrote the opinion in that case and indicated

that the standard to be applied in determining attorneys fees

was that set forth in Hensley v. Eckerhart, 461 U.S. 424 (1983).

Nothing in Garland relates in any manner to requiring payment

of attorneys fees for an unsuccessful appeal. In the Texas

Teachers case, the court cited Hensley for the proposition that

the District Court had discretion to arrive at a reasonable fee

award when the success, as here, was limited. The court noted

that the District Court should exercise its discretion to arrive

at a reasonable fee award, either by attempting to identify specific

hours that should be eliminated or by simply reducing the award

to account for the limited success of the plaintiff. When as here,

no relief was granted on appeal, the party plaintiff is not the

prevailing party and is not entitled to attorneys’ fees. Hewitt

v. Helms, 42 U.S. 755, 96 L.Ed.2d 654 (1987). The plaintiffs received

absolutely nothing as a result of their appeal. In fact, the Court

of Appeals vacated the only portion of the order below in which

the plaintiffs could be said to have prevailed. Moreover, the appeal

was initiated by the plaintiffs. The City had determined not to

appeal and cross-appealed only because it was required to defend

the appeal.

10

In the case of Hanrahan vu, Hampton, 446 U.S. 754, 64 L.Ed.2d

670 (1980), the court specifically denied attorneys fees under 1988

to parties who obtained a reversal of a directed verdict and

remand for new trial on appeal. The court at page 758 in reversing

an order granting fees on appeal said

“The respondents have, of course not, prevailed on the

merits of any of their claims.”

A plaintiff-appellant who has prevailed in the District Court

but does not prevail on his appeal seeking greater success is

not entitled to appeal fees, where the court of appeals either

dismisses the appeal or affirms the judgment below. Buian v.

Boughard, 687 F.2d 859 (6th Cir. 1982); Women’s Serve, P.C. v.

Thon, 645 F.2d 649 (8th Cir. 1981). The appropriate test is whether

the party seeking compensation substantially prevailed at the

appellate level. Kelly v. Metro County Board of Education, 773

F.2d 677. In this case, the plaintiffs clearly did not prevail in

any manner at the appellate level.

In the case of Ustrak v. Fairman, 852 F.2d 983 (7th Cir.

1988), the court held that a civil rights plaintiff who having won

judgment in the District Court, appeals seeking a greater victory

and fails in his appeal, would be hard pressed to demonstrate

an entitlement to attorneys’ fees on appeal. As noted by the Court

of Appeals in its opinion of August 14, 1991, in this case the

plaintiffs’ counsel did “fail utterly” on appeal. (App. 5).

The statements in the petition which speculate upon what

a fee paying client would have done with respect to appealing

or defending a cross-appeal are without any foundation in the

record. The Seventh Circuit properly held that attorneys’ fees

could not be awarded from any source to the plaintiffs counsel

who failed utterly both in his appeal and in defending the cross

appeal. The Seventh Circuit’s decision is not at odds with this

Court’s definition of “prevailing party” nor is it in conflict with

the decisions of any other court.

THE EXERCISE OF DISCRETION

This court has repeatedly affirmed the proposition that the

award of attorney’s fees pursuant to subsection 1988 lies within

the sound discretion of the trial court and the court’s determi-

11

nation of this matter will not be disturbed unless clearly

erroneous. Riverside v. Rivera, 477 U.S. 561 (1986); Hensley v.

Eckerhart, 461 U.S. 424 (1983); Webb v. Dwyer County Board

of Education, 471 U.S. 234 (1985).

The Plaintiffs’ counsel now essentially urges that somehow

there was an abuse of discretion and that the trial court and

the Seventh Circuit failed to justify the reduction in the hours

claimed. The Seventh Circuit in its opinion carefully considered

the manner in which the trial court arrived at this reduction

(App. 5). The Seventh Circuit concluded that the sampling

technique employed by the district court was not arbitrary. The

Court of Appeals concluded that the method employed by the

district court was reasonable and the Plaintiffs’ counsel were

given ample warning of the method and the chance to respond

when it was applied to them (App. 7). The Seventh Circuit

concluded that because the district court explained how it arrived

at the number of hours it identified as reasonable and because

the number it identified was in the range of reasonable estimates,

it was well within the court’s discretion in fixing the allowable

number of hours (App. 8). A setting of attorneys’ fees as the

court noted is not an exact science. What is required is a

determination of whether there has been an abuse of discretion

in arriving at the final dollars_to be awarded. The Hensley case

sets forth criteria in determining the manner in which attorneys’

fees should be awarded. Clearly there was no abuse of discretion

here and the trial court’s findings were properly affirmed by the

Seventh Circuit. The trial court in fact explained the basis of

his 30 percent across the board reduction.

In reviewing findings regarding the reasonableness of hours

claimed in the fee petition, the amount of the reduction, and

technique of arriving at the deduction, the Courts of Appeal give

substantial deference to the District Court’s fact finding discre-

tion. Moore v. City of Des Moines, 767 F.2d 343, 346 (8th Cir.

1985), cert. denied 88 L.Ed.2d 781 (1986); Goodsen v. City of

Atlanta, 763 F.2d 1381, 1390 (11th Cir. 1985); Fishman v. Clancy,

763 F.2d 485, 491 (1st Cir. 1985). In the case of McKinnon v.

City of Berwyn, 750 F.2d 1383 (7th Clr. 1984), the court noted

at 1393 that the District Judge

12

“Lived with this case through its life, observed the

lawyers in action, has long experience in civil rights

litigation and all in all has a better feel than we for

the reasonableness of the time put in by McKinnon’s

counsel.”

See also, Lynch v. City of Milwaukee, 747 F.2d 423, 428 and

Note 4 (7th Cir. 1984).

The technique of making an across the board percentage

reduction in total compensable hours as a practical means of

trimming fat from a fee application where claimed hours are

found to be excessive or duplicative in preference to performing

an item by item counting has received general acceptance by

the several circuits. Copeland v. Marshall, 641 F.2d 888, 903 (D.C.

Cir. 1980) (en banc); New York Assn. for Retarded Children v.

Metropolitan District Commission, 847 F.2d 12, 15-17 (1st Cir.

1988); Daggett v. Kimmelman, 811 F.2d 793, 797-98 (8rd Cit. 1987).

In Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40 (1983),

at 461 U.S. 436, this Court said with regard to making a

determination of hours that are excessive:

“There is no precise rule or formula for making these

determinations. The district court may attempt to

identify specific hours that should be eliminated, or

it may simply reduce the award to account for the

limited success. The court necessarily has discretion

in making this equitable judgment.”

Ekmination of unreasonable hours by a percentage reduction

of 30 percent, as was done in this case, was carefully explained

by the trial court. The determination to impose that across the

board reduction in time was well within the discretion of the

trial court. The across the board reduction in time was not

arbitrary and it did not punish efficiency.

In the case of Rode v. Dellaciprete, 892 F.2d 1117 (1990),

the court applied the criteria of abuse of discretion in its review.

It reviewed the findings under the clearly erroneous standard

and held that a contingency multiplier was granted only in rare

cases and a reduction in hours is to be reviewed in light of the

abuse of discretion test. The Rode case merely holds that the

13

District Court should explain how it arrived at the reduction.

In this case, the District Court clearly explained its conclusions

as to each of the two pleadings which were suggested for inquiry

pursuant to the court’s previous indication of how he would

determine the reasonableness of hours. The discussion of the

trial court in its memorandum opinion clearly satisfies the

requirement that the District Court provide a concise and clear

explanation of its reasons for the fee award. There clearly was

no abuse of discretion on the part of the trial court in its reduction

by 30 percent of the hours claimed particularly in light of the

limited success.

The case of Sims v. Jefferson Downs Racing Assn., 778 F.2d

1068 requires only an explanation by the trial court of the reasons

for reducing the number of hours. In that case, the court adopted

the standard of “results obtained” in adjusting the lodestar.

Unlike the case at bar, the trial court there did not set forth

any reasons for reducing the number of hours.

It is thus clear that the claim that the reduction in hours

here was arbitrary was without merit. This was not a case of

“eyeball reduction” without analysis but the result of careful study

based upon a reasonable method of determining whether the

hours claimed were excessive. There is no conflict in the decision

of the Seventh Circuit with the decisions of the other circuits

and of this court in its determination that the trial court did

not abuse its discretion in reducing the number of hours in a

logical and reasonable manner.

CONCLUSION

Based on the foregoing, it is respectfully submitted that the

petition for Writ of Certiorari should be denied.

JACK M. SIEGEL

10 South Wacker Drive

Suite 4000

Chicago, Illinois 60606

312/715-4677

Attorney for Respondent