# Opposition Brief — Evans v. City of Evanston

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1219

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0100%3A2. Public record. Not legal advice.