Petition for Writ of Certiorari — Gumbhir v. Curators of the University of Missouri

f Supreme Court, U.S

FILED

981085 JNS~ 1%

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1998

*

ASHOK K. GUMBHIR,

Pita .

Petitioner

THE CURATORS OF THE UNIVERSITY OF MISSOURI

ROBERT W. PIEPHO AND R. LEE EVANS,

Respondents

e —

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

S

PETITION FOR A WRIT OF CERTIORARI

”

Ketty L. McCLetLANpD

(Counsel of Record)

JOHN KiRKLIN

Conway L. Hawn

(On the Petition)

McCiettanp Law Firm, P.C.

The Flagship Building

200 Westwoods Drive

Liberty, Missouri 64068-1170

(816) 781-0002

Attorneys for Petitioner

Ashok K. Gumbhir

COCKLE LAW BRIEF PRINTING CO., (800) 22

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Did the Eighth Circuit Court of Appeals properly

abandon this Court’s accepted lodestar approach to cal-

culating a reasonable federal statutory attorney’s fee

award, in a case in which the petitioner recovered signifi-

cant monetary damages, in favor of a billing judgment or

proportionality approach that is keyed to the monetary

recovery that the plaintiff’s attorney purportedly could

have reasonably expected to obtain at the outset of the

representation?

2. Did the Eighth Circuit Court of Appeals properly

deny altogether, without any explanation or analysis,

petitioner’s application for a reasonable award of Title

VII appellate attorney’s fees and costs for his successful

defense of each and every issue appealed by the respon-

dents’ in this case?

TABLE OF CONTENTS

Page

QUESTIONS PRESEING GE? » s0ccssieanuss¥sesseseeue i

TABLE OF CONTEINGED 6. 0ss ecsvcsvecussveseseesens ii

TABLE OF AUTHORING fs 5 0eneedaeeeeee eee iil

OPINIONS BELOW ... occ sivas ven eeeeee see i

BASIS FOR FURISUMC BON bo sc05 cecces cee aren eee 2

STATUTE ENVOUN ERY? oy uxt screens sheen 2

STATEMENT OF @9e CAGE. 6. cosscevereeese ees 3

REASONS FOR GRANTING THE PETITION ....... 7

THE COURT SHOULD RESOLVE THE CONFLICT

AMONG THE COURTS OF APPEALS AND WITH

THE PRECEDENTS OF THIS COURT CONCERN-

ING THE CALCULATION OF REASONABLE

STATUTORY ATTORNEY’S FEE AWARDS FOR

PREVAILING PARTIES AWARDED MORE THAN

NOMINAL DAMAGED « 064s0canvuteestieier uses 7

THE COURT SHOULD REVERSE THE EIGHTH

CIRCUIT’S COMPLETE DENIAL OF APPELLATE

ATTORNEY’S FEES AND COSTS, WITHOUT

EXPLANATION, FOR PETITIONER’S SUCCESS-

FUL DEFENSE OF EACH AND EVERY ISSUE

APPEALED BY THE RESPONDENTS IN THIS

CASE 2 cn cec vanes to san ee eee 23

ili

TABLE OF AUTHORITIES

Page

Cases CITED:

Adams v. Rivera, 13 F.Supp.2d 550 (S.D.N.Y. 1998) .... 19

Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir.

ee eo Civ wana a deb beeeeet bees oc vax 13

Alexander v. Gerhardt Enters., Inc., 40 F.3d 187 ‘7th

oe ee ks ode bone ce becelecewa 16

Blanchard v. Bergeron, 489 U.S. 87 (1989)............ 7

Building Serv. Local 47 Cleaning Contractors v.

Grandview, 46 F.3d 1392 (6th Cir. 1995)............ 14

Carroll v. Wolpoff & Abramson, 53 F.3d 626 (4th Cir.

CREE UNE b44ud e000 000400000dccebhevint vee. 13, 14

Ti Clcei etal eeweunwadersaunees se eek yeceees 24

City of Burlington v. Dague, 112 S.Ct. 2638 (1992) .... 22

City of Riverside v. Rivera, 477 U.S. 561 (1986)

PAPC hEeN sy EVKSVAS ehh soot scoe eae e se 9, 10, 18, 25

Connolly v. National School Bus Service, Inc., 992

waar. Boe CED. TM. 1996)... 2.2... cee cee 18

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) .... 21

Cullens v. Department of Transportation, 29 F.3d 1489

rises sade Se ayes ae vhs sks x cade 18

Cullens v. Georgia Department of Transportation, 827

oD | 17

Duckworth v. Whisenant, 97 F.3d 1393 (11th Cir.

TABLE OF AUTHORITIES - Continued

Page

Dunlap-McCuller v. Riese Org., 980 F.2d 153 (2d Cir.

Pes fa5 400s cesucena yess send aw Asari beeen hasan 13

Estate of Borst v. O'Brien, 979 F.2d 511 (7th Cir.

SPT ey err er rrr Pre rrr rT? 17

Farrar v. Hobby, 506 U.S. 103 (1992) ............. passim

Hensley v. Eckerhart, 461 U.S. 424 (1983) ...7, 21, 22, 24, 25

Hyde v. Small, 123 F.3d 583 (7th Cir. 1997)........ 15, 16

Jaffee v. Redmond, 142 ¥.3d 409 (7th Cir. 1988) ....... 16

Johnson v. Eaton, 80 F.3d 148 (5th Cir. 1996)......... 14

Johnson v. Georgia Highway Express, Inc., 488 F.2d

oo ke re rer rrr rrr errr rer 21

Kimbrew v. Evansville Police Department, 867

PSenp. S16 C.D. Und. TOPE) 2. ccccscesvsccwewases 19

Krewson v. City of Quincy, 74 F.3d 15 (1996) ......... 10

McDonnell v. Miller Oil Co., Inc., 134 F.3d 638 (4th

Pere errr rT erie rr ceeee foe wer 13

McKenzie v. Cooper, Levins & Pastko, Inc., 990 F.2d

REGS CAPT Cie BIG E o ceeds ccen + ghovwaueseonndays 18

Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir.

BREE vives outcedunenns ks CVANe OEE RSEE SabRES to ree 14

Morales v. City of San Rafael, 96 F.3d 359 (9th Cir.

SOR os ik s cc os vv cs Oe erat ee es 17

eee | OH RR es ee 19

Morris v. City of Atlanta, 861 F.Supp. 1079 (N.D.

ahs SN oka ndevenedbces ibuntaduere se eeee cree 20

PORTS

TABLE OF AUTHORITIES - Continued

Page

Newhouse v. McCormick & Co., 130 F.3d 302 (8th

yr Pee ee re role we TD ae ee 24

Orchano v. Advanced Recovery, Inc., 107 F.3d 94 (2d

eg EE Ore Fenny err Peery tet Mot bngnias 12

Patterson v. Johnson, 790 F.2d 712 (8th Cir. 1986)..... 24

Pennsylvania v. Delaware Valley Citizens’ Council for

Clen Al, 478 US. 306 (1906). «2. ccc ecccccsvcens 8, 21

Purtle v. Eldridge Auto Sales, 91 F.3d 797 (6th Cir.

SO cnnccnendienss Sin deans erase einer abeveneeeen ol 15

Quaratino v. Tiffany & Co., 129 F.3d 702 (2d Cir.

ite sr niknee cg ealy hack ek eae ey ae eae etek ee 11, 12

Rainey v. Philadelphia Housing Authority, 832

Soe. Hie Gees SU CG cscs cena deebanstuece 20

Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848

ee Te prt ee 10

Simpson v. Sheahan, 104 F.3d 998 (7th Cir. 1997) ..... 16

Stacy v. Stroud, 845 F.Supp. 1135 (S.D. W.Va. 1993) .... 19

TCI of Illinois, Inc., v. Carpenter, 849 F.Supp. 326

aes. Te TPO bonny nnn yenndsbariessst alee 20

Trevino v. Gates, 888 F.Supp. 1509 (C.D. Cal. 1995) .... 19

Washington v. Philadelphia County Court of Common

Pleas, 9 BS TOSt (36 Cle. THO) o- ececcccsccccens 13

STATUTES CITED:

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er ee a re ee ta tr, ate Se a eae ee 3

BS tom 2 eee ree Se AR

42 U.S.C. § 2000e-5(k) 2, 8, 9, 21

Court Rutes Cit

Fed. R \pp ee ccc when secestisensdinsieweeut 7

v1

TABLE OF AUTHORITIES - Continued

OPINIONS BELOW

Petitioner, Ashok K. Gumbhir, respectfully prays that

a writ of certiorari issue to review (1) the decision and

order of the United States Court of Appeals for the Eighth

Circuit filed on October 7, 1998, that replaced this Court's

accepted lodestar approach to calculating the award of

statutory attorney’s fees and costs with the billing judg-

ment or proportionality approach, and (2) the order of the

Eighth Circuit Court of Appeals filed on November 13,

1998, completely denying, without explanation, peti-

tioner’s request for an award of reasonable appellate attor-

ney’s fees and costs for his successful defense of each and

every issue appealed by the respondents in this case.

The decision and order of the Eighth Circuit filed

October 7, 1998, is reported at 157 F.3d 1141 (8th Cir.

1998). This decision is reproduced in the Appendices to

this Petition beginning at App. 1. Tne pertinent judgment

and order of the district court that was reviewed by the

Eighth Circuit in this case is unreported, and is repro-

duced in the Appendices to this Petition beginning at

App. 13.

The order of the Eighth Circuit completely denying

petitioner’s application for an award of appellate attor-

ney’s fees and costs for the successful defense of his

merits victory in the district court is unreported, and is

reproduced in the Appendixes to this Petition beginning

at App. 12. The Eighth Circuit’s unreported order deny-

ing the Petition for Rehearing and Suggestion for Rehear-

ing En Banc of that decision was issued on December 28,

1998, and is reproduced in the Appendices to this Petition

at App. 19.

BASIS FOR JURISDICTION

The Eighth Circuit’s decision and order concerning

the district court’s award of statutory attorney’s fees in

this case was filed on October 7, 1998. The Eighth Circuit’s

order denying petitioner’s application for appellate attor-

ney’s fees and costs was filed on November 13, 1998. The

Eighth Circuit’s order denying petitioner’s Petition for

Rehearing and Suggestion for Rehearing En Banc of its

November 13, 1998, order was filed on December 28, 1998.

The statutory provision conferring jurisdiction on

this Court to review the Eighth Circuit’s decision and

orders by Writ of Certiorari is 28 U.S.C. Sec. 1254(1).

+

STATUTE INVOLVED

The petitioner’s application for an award of statutory

attorney’s fees for prevailing on the merits in the district

court and for an award of appellate attorney’s fees for

successfully defending on appeal his merits victory in the

district court were made pursuant to the fee-shifting pro-

vision of Title VII of the 1964 Civil Rights Act, 42 U.S.C.

Sec. 2000e-5(k), which provides that:

(k) Attorney’s fee; liability of Commission

and United States for costs

In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing

party, other than the Commission or the United States, a

reasonable attorney’s fee (including expert fees) as part of

the costs, and the Commission and the United States shall

be liable for costs the same as a private person.

”

et RT RO

STATEMENT OF THE CASE

Petitioner instituted this action against The Curators

of the University of Missouri, Robert W. Piepho, and R.

Lee Evans under Title VII of the Civil Rights Act of 1964,

as amended (“Title VII”), the Age Discrimination in

Employment Act (“ADEA”), the Americans with Disabil-

ities Act (“ADA”), 42 U.S.C. Sec. 1983, and state law

asserting claims of employment discrimination, violation

of his First Amendment rights in the workplace, and

defamation. Petitioner succeeded on his Title VII retalia-

tion claim and ultimately was awarded $4,432.20 in lost

wages and benefits and $4,432.20 in a prospective salary

increase. As the prevailing party in the litigation, peti-

tioner applied in the district court for an award of Title

VII statutory attorney’s fees of $458,263.57, representing a

ten percent (10%) reduction of the initial fee request to

account for the district court’s finding of partial success

in the case, together with a request for $46,576.98 in

recoverable costs.

The attorney’s fees and costs requested by the peti-

tioner were a direct result of the Stalingrad defense con-

ducted by the respondents throughout the litigation of

the case, including the respondents’ vigorous attempts to

retrieve through costly evidentiary hearings purported

attorney-client privileged documents that they had at

first voluntarily released to the petitioner. Moreover, the

attorney’s fees and costs requested by the petitioner were

unfortunately exacerbated by a mistrial and the subse-

quent recusal by the first district court judge in this case.

Nonetheless, despite these extenuating circumstances

of which the petitioner had no control, the district court

filed a decision on October 22, 1997, and granted peti-

tioner only $110,000.00 in attorney’s fees and $15,000.00

in costs, reasoning, among other things, that petitioner’s

attorneys expended some unnecessary hours on the liti-

gation. However, the district court failed to provide any

explanation as to how the alleged deficiencies translated

into the particular attorney’s fee awarded, which repre-

sented only twenty-four percent (24%) of the fee the

petitioner requested, even after a self-imposed ten per-

cent (10%) reduction.

On appeal, the Eighth Circuit, in a decision filed on

October 7, 1998, and reported at 157 F.3d 1141 (8th Cir.

1998), further reduced the attorney’s fee awarded by the

district court to a mere $46,750.00, only slightly more

than ten percent (10%) of the adjusted fee requested by

the petitioner, while upholding the costs award of

$15,000.00. The Eighth Circuit reached this result by com-

pletely abandoning the traditional and presumptively

correct lodestar amount of reasonably expended hou.s

times reasonable hourly rates in favor of a highly subjec-

tive billing judgment or proportionality approach keyed

to the amount of money damages petitioner’s attorney

purportedly might have expected to recover at the outset

of the litigation. The Eighth Circuit rationalized this new

approach to determining reasonable statutory attorney’s

fee awards as follows:

In determining what hours were reasonably

expended in this case, the district court properly

examined whether particular claimed hours

were unreasonable and the question of limited

success. But it overlooked another aspect of

reasonableness — the question whether the

requested fee award when based upon hours

allegedly expended exceeds the amount that

could ever be reasonable for a case of this

nature.

(App. at 9). Application of this non-lodestar based billing

judgment or proportionality approach to the quantifica-

tion of a reasonable statutory attorney's fee in this case

led the Eighth Circuit along what can only be charac-

terized as a convoluted, tortured path of subjective and

impressionistic reasoning in arriving at a “reasonable”

fee award that contrasts dramatically with the simplicity,

logic, and ease of administration of the lodestar

approach.

The Eighth Circuit, beginning with the observation

that the petitioner’s counsel asked the jury for lost salary

damages of $20,832.00 and an additional unspecified

amount for emotional distress, proceeded by tour de force

to the arbitrary and simplistic conclusion that “counsel

knew from the outset that this case involved only a

relatively modest claim for compensatory damages, per-

haps $50,000.00 to $75,000.00 at most.” (App. at 9). Then,

without any analysis of the elements or aspects of the

litigation that might legitimately have accounted for the

number of hours expended by petitioner’s counsel on the

litigation and the concomitant size of the fee request

(such as the strenuousness of the resistance put up by the

respondents’ in opposing petitioner’s legal claims), the

Eighth Circuit stated that “it was not reasonable for an

attorney to run up a bill of $450,000.00 to $500,000.00 to

litigate this type of damage claim,” and proceeded from

there to the arbitrary, inexplicable conclusion that “if the

jury in this case had awarded Gumbhir the full amount he

requested in closing argument, a reasonable fee could not

have exceeded $110,000.00, the amount awarded by the

district court for Gumbhir’s far more limited success.” Id.

In a footnote, however, the Eighth Circuit conceded

the possibility “that the case as framed by Gumbhir could

not have been effectively litigated to a fully tried conclu-

sion for this amount of attorney time.” (App. at 10, n.1).

Nevertheless, the Eighth Circuit, without analysis, appar-

ent reflection or any attempt at squaring its reasoning

with the traditional lodestar approach to fee calculation

mandated by this Court, simply concluded that “compe-

tent attorneys are adept at finding ways of litigating cases

so that the time expended is reasonably related to the

amount at issue,” or, alternatively, that the underlying

dispute between the parties was trivial and personal and

somehow should have been resolved without resort to the

courts at all. Id. The Eighth Circuit went on to state that

“liJf an award of $110,000.00 would have been appropri-

ate had Gumbhir been fully successful, the actual award

must be substantially reduced because of his very limited

success.” (App. at 10). The Eighth Circuit therefore hap-

hazardly imposed a pro rata reduction of 42.5 percent -

the relationship between the $8,846.40 petitioner recov-

ered in damages and the $20,832.00 in lost salary dam-

ages he requested - on the $110,000.00 that the court

adjudged the case was “worth” even at best, yielding an

attorney's fee award of $46,750.00, together with the

$15,000.00 in costs awarded by the district court. (App. at

11).

Thereafter, petitioner moved for an award of reason-

able statutory attorney’s fees and costs for successfully

defending on appeal the retaliation verdict and compen-

satory damages award that he had won in the district

court. Cryptically, and without any explanation, the

Eighth Circuit flatly denied the request in toto, in a three-

line decision dated November 13, 1998, stating simply

that “[a]fter consideration of the court, appellee’s

motions for an award of costs pursuant to F.R.A.P. 39 and

for an award of attorneys’ fees are denied.” (App. at 12).

The jurisdiction of the district court was invoked

under 28 U.S.C. Secs. 1331, 1343(a), and 1367. The juris-

diction of the Eighth Circuit was invoked under 28 U.S.C

Sec. 1291.

¢

REASONS FOR GRANTING THE PETITION

THE COURT SHOULD RESOLVE THE CONFLICT

AMONG THE COURTS OF APPEALS AND WITH THE

PRECEDENTS OF THIS COURT CONCERNING THE

CALCULATION OF REASONABLE STATUTORY

ATTORNEY’S FEE AWARDS FOR PREVAILING PAR-

TIES AWARDED MORE THAN NOMINAL DAMAGES

In this case, the Eighth Circuit forthrightly aban-

doned the lodestar approach to determining a reasonable

attorney’s fee award to the prevailing party pursuant to

federal fee-shifting statutes. The Eighth Circuit’s decision

circumvents this Court’s prior holdings that the starting

point for the determination of a reasonable attorney’s fee

award is the calculation of the lodestar amount. See

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar

approach has been described by this Court as “the center-

piece of attorney’s fee awards.” Blanchard v. Bergeron, 489

U.S. 87 (1989). Nevertheless, the Eighth Circuit has now

substituted for the lodestar approach a rule, appro-

priately termed the “billing judgment” or “propor-

tionality” rule, by which a requested statutory fee is

adjudged “reasonable” only if it is rationally related or

proportional, in the highly subjective opinion of the

deciding court, to the monetary recovery that the plain-

tiff’s attorney purportedly could have anticipated the

case would yield at the outset of the representation.

Applying this new approach to statutory fee quan-

tification, the Eighth Circuit awarded petitioner a statutory

attorney’s fee far below the amount that would have been

yielded by application of the lodestar approach, based on

an assertedly “overlooked . . . aspect of reasonableness -

the question whether the requested fee award when based

upon hours allegedly expended exceeds the amount that

could ever be reasonable for a case of this nature.” (App.

at 9). Thus, this case presents the highly important ques-

tion (one that has produced disparate outcomes among

federal district courts and appellate circuits and which

collides headlong with the established statutory attorney’s

fee precedent of this Court) concerning the degree to

which there continues to exist a “strong presumption” that

the lodestar approach represents a reasonable attorney’s

fee award under federal fee-shifting statutes such as 42

U.S.C. Sec. 1988 and 42 U.S.C. Sec. 2000e-5(k). See Pennsyl-

vania v. Delaware Valley Citizens’ Council for Clean Air, 478

U.S. 546, 565 (1986).

The only exception to the lodestar presumption is in

the narrow band of cases in which, under the principle

established in Farrar v. Hobby, 506 U.S. 103 (1992), the

plaintiff recovers only a nominal damage award, and no

compensatory damages. In only those limited circum-

stances may the lodestar approach be disregarded and,

a

instead, no attorney’s fees or a low fee be awarded. Id.

The Eighth Circuit in the case at hand has now attempted

to expand the exceptions to the use of the lodestar

approach by its use of the so-called billing judgment or

proportionality approach.

The Eighth Circuit’s new approach to determine a

Statutory attorney’s fee award, however, is in direct con-

flict with this Court’s ruling in City of Riverside v. Rivera,

477 U.S. 561 (1986), that neither the contingent fee model

utilized in private tort litigation nor a rule of propor-

tionality between the statutory attorney’s fee and the

amount of money damages recovered by the plaintiff is

appropriately applied in the determination of reasonable

statutory attorney’s fees pursuant to 42 U.S.C. Sec. 1988,

42 U.S.C. Sec. 2000e-5(k), and other similarly worded

federal fee-shifting statutes.

Since this Court’s decision in Farrar v. Hobby was

rendered, vast confusion has pervaded the lower courts

concerning how to apply that decision, with some courts

extending the fee-nullification or fee-limitation principles

of Farrar beyond the case in which the plaintiff has recov-

ered only nominal damages and no compensatory dam-

ages to the case, as here, where the plaintiff has recovered

compensatory monetary damages in a significant albeit

relatively modest amount. The crucial question presented

by the instant case is whether the lodestar approach may

properly be abandoned and replaced by what has been

termed the billing judgment or proportionality approach,

in cases in which the plaintiff, as here, has recovered

significant compensatory money damages and not

merely, as in Farrar itself, only nominal damages in light

of this Court’s decision in Rivera broadly disapproving of

10

a strict rule of proportionality between the attorney’s fee

award and the plaintiff's money damage award.

The lower district courts and appellate circuits are

sharply divided on this question and have provided dif-

ferent answers that require this Court’s authoritative res-

olution of the issue. The First, Second, Third, Seventh,

Ninth, and Eleventh Circuits have calculated statutory

attorney’s fee awards on the basis of the lodestar

approach in cases of small monetary recoveries. The Fifth

Circuit Court of Appeals has generated inconsistent deci-

sions concerning whether a non-lodestar approach is

appropriate in calculating a statutory fee award in cases

in which the plaintiffs have won only small or modest

damage awards. The Fourth Circuit, like the Eighth Cir-

cuit in the instant case, has approved the granting of a

low statutory fee award in cases of modest damage recov-

eries without employing the lodestar methodology.

Accordingly, as dramatically demonstrated by a more

complete discussion of these conflicting precedents

below, there is an urgent need for this Court to assume

jurisdiction over the instant case that squarely frames the

issue of whether this Court’s precedents permit a non-

lodestar calculated attorney’s fee award that is artificially

made proportional to a modest damage award in a case.

The First Circuit in Rodriguez-Hernandez v. Miranda-

Velez, 132 F.3d 848, 859 (1st Cir. 1998), stated generally,

citing Rivera, that “[w]hile it is true that plaintiff’s fee

request was more than twice the damages awarded, the

Supreme Court has held that the size of the verdict does

not bar the recovery of large attorney’s fees awards.”

Similarly, in Krewson v. City of Quincy, 74 F.3d 15, 18

(.996), the court, again citing Rivera, held that “courts in

i aa aia

11

this circuit have held that in federal civil rights cases a fee

award is not limited by the size of the recovery but may,

in appropriate circumstances, greatly exceed it,” includ-

ing cases of small damage recoveries by the plaintiff.

In Quaratino v. Tiffany & Co. 129 F.3d 702 (2d Cir.

1997), the Second Circuit Court of Appeals, in a case in

which the plaintiff recovered a total of $158,145.00 in

compensatory and punitive damages on her Title VII

retaliation claim, reviewed the district court’s decision

not to award the plaintiff the calculated lodestar fee

award of $124,645.18 and instead to award fees in the

amount of one-half of the plaintiff's money damages

recovered, or $79,072.50, under the so-called “billing

judgment” approach. Under the billing judgment

approach applied by the district court, “an attorney’s

requested fee would be judged ‘reasonable’ if it were

rationally related to the monetary recovery that the attor-

ney could have anticipated ex ante,” so that the district

court “would have had Quaratino’s attorney estimate ex

ante the total possible financial recovery in the case (the

court forecast a ‘very generous’ maximum of $200,000.00),

discount that amount for the ‘substantial’ risk of no

recovery, and proceed to expend time on the case only up

to the time value of an appropriate fraction of that

expected recovery.” 129 F.3d at 707. This is precisely the

rationale that was adopted by the Eighth Circuit in arti-

ficially capping the maximum possible statutory fee

recovery in Gumbhir, based upon the reasoning that the

district court there should have taken into account “the

question whether the requested fee award when based on

hours allegedly expended exceeds the amount that could

ever be reasonable for a case of this nature.” (App. at 9).

12

a

The Second Circuit panel in Quaratino rejected the

district court’s billing judgment approach, stating that

were it to adopt that approach, “wherein an attorney

would dedicate time to a civil rights case only in propor-

tion to the expected monetary relief,” it would contra-

vene that court’s own prior precedents as well as the

legislative intent of fee-shifting statutes in civil rights

litigation “by relinking the effectiveness of a civil rights

plaintiff’s legal representation to the dollar value of her

claim.” 129 F.3d at 707. The Second Circuit panel also

found that the district court’s billing judgment approach

was not saved by its “proposed exception, which would

allow fees out of line with monetary recovery in ‘a case

where a new legal principle of importance in the field of

civil rights’ or an ‘issue[] . . . of overarching societal

importance’ is involved. [citation omitted].” Id. The Sec-

ond Circuit panel explained that “[c]ongress enacted fee-

shifting statutes to compensate ‘private attorney|[s] gen-

eral’ and thereby to encourage private enforcement of

civil rights statutes, to the benefit of the public as a

whole,” and that the “public interest in private civil

rights enforcement is not limited to those cases that push

the legal envelope; it is perhaps most meaningfully

served by the day-to-day private enforcement of these

rights, which secures compliance and deters future viola-

tions.” Id. Finally, the Second Circuit panel made clear its

position that the fee-limiting or fee-nullifying principles

of Farrar v. Hobby are “limited to the context where the

plaintiff only nominally ‘wins’ at trial — which is just the

circumstance in which this Court has since applied it.” Id.

at 708. See, e.g., Orchano v. Advanced Recovery, Inc., 107

F.3d 94, 100 (2d Cir. 1997) (“We do not regard Farrar as

13

altering the requirement that the district court calculate a

lodestar and make findings explaining its adjustments to

that figure where the jury has found that the plaintiff

suffered actual injury and awarded him compensation for

that injury.”); Dunlap-McCuller v. Riese Org., 980 F.2d 153,

160 (2d Cir. 1992) (observing that “this Court has consis-

tently rejected the notion that an award of attorney’s fees

be proportional to the amount of damages recovered”).

The Third Circuit in Washington v. Philadelphia County

Court of Common Pleas, 89 F.3d 1031, 1041-42 (3d Cir.

1996), reiterated that “a court may not diminish counsel

fees in a section 1983 action to maintain some relation

between the fees and the damages awarded.” See also

Abrams v. Lightolier, Inc., 50 F.3d 1204, 1222 (3d Cir. 1995)

(concluding that the accepted principle that the fee award

may exceed the plaintiff's damage award was not abro-

gated by Farrar, interpreted as applying a non-lodestar

fee approach only to cases in which nominal damages are

recovered by the plaintiff).

By contrast, the Fourth Circuit in Carroll v. Wolpoff &

Abramson, 53 F.3d 626 (4th Cir. 1995), invoking Farrar,

declined to approve a statutory fee in the lodestar

amount in a case of a small monetary recovery and

upheld a nominal fee award of $500 for the plaintiff who

won $50 in statutory damages under the Fair Debt Collec-

tion Act. In rejecting the need to calculate the fee based

on the lodestar approach, the Fourth Circuit held that “it

was entirely proper for the district court to view as the

salient measure of her success in the underlying litigation

the small amount of damages she recovered from the

opposing party for its technical statutory violation.” Id. at

630. Subsequently, in McDonnell v. Miller Oil Co., Inc., 134

14

F.3d 638, 641 (4th Cir. 1998), the Fourth Circuit, citing

Carroll approvingly, stated bluntly that “[i]n accounting

for the plaintiff’s limited success, a court should examine

‘the size of the proposed attorney’s fee . . . award in

comparison with the total damage award.’ [citation omit-

ted |”

The Fifth Circuit has not spoken with a single voice

concerning the propriety of abandoning a lodestar-

calculated statutory attorney’s fee award in a case in

which small or modest money damages have been recov-

ered by the plaintiff. Thus, in Johnson v. Eaton, 80 F.3d 148

(Sth Cir. 1996), the Fifth Circuit approved a lodestar-

calculated fee award for the plaintiff who recovered $500

in punitive damages for defendant’s violations of the Fair

Debt Collection Practices Act after requesting only $4,000

in damages, distinguishing Farrar as a case involving the

recovery of only nominal damages of one dollar after

demanding $17 million from the defendants. Id. at 152.

On the other hand, more recently, in Migris v. Pearle

Vision, Inc., 135 F.3d 1041, 1048 (5th Cir. 1998), the Fifth

Circuit ruled that the district court had abused its discre-

tion in awarding Title VII fees “over six and one-half

times the amount of damages awarded,” in this case

damages of $12,233.32, noting also that the plaintiff

“sought over twenty-six times the damages actually

awarded,” and concluding that “these ratios are simply

too large to allow the fee award to stand.”

The Sixth Circuit in Building Serv. Local 47 Cleaning

Contractors v. Grandview, 46 F.3d 1392, 1402 (6th Cir. 1995),

adopted the rule in ERISA cases, as in civil rights cases,

that “there is no requirement that the amount of an award

of attorney's fees [there $70,185.95] be proportional to the

15

amount of the underlying award of damages [there

$25,598.91].” In Purtle v. Eldridge Auto Sales, 92 F.3d 797,

802 (6th Cir. 1996), the Sixth Circuit sustained a lodestar-

calculated attorney’s fee award of $5,444.05 for the plain-

tiff’s recovery of $1,000 in statutory damages under the

Truth in Lending Act, stating that “[t]he attorney’s fees

are not limited by the amount of Purtle’s recovery.”

In Hyde v. Small, 123 F.3d 583 (7th Cir. 1997), the

Seventh Circuit, in an opinion authored by Chief Judge

Posner, presented an eloquent disquisition opposing

departure from the use of the ordinary lodestar approach

to calculating a statutory attorney’s fee award in cases

involving “routine” constitutional violations and small

damages recoveries. In that case, $500 in compensatory

damages for the defendant police officers’ unconstitu-

tional false arrest of the plaintiff. Chief Judge Posner

began by observing that since in Farrar the plaintiff

obtained only nominal damages of one dollar, “[f]rom a

practical standpoint it was as if Farrar had lost, in which

event, the law was and is clear, he could not obtain any

award of fees.” Id. at 584-85. Chief Judge Posner pro-

ceeded to explain why a lodestar-calculated fee should be

awarded in a case finding a “routine” constitutional vio-

lation and providing only a small money damages recov-

ery:

The district court based its decision to award no

fees on the small size of the verdict and the fact

that the case broke no new ground in the law of

police misconduct that, although unconstitu-

tional, is neither harmful enough to support a

large award of compensatory damages nor mali-

cious enough to justify an award of punitive

damages is, as practical matter, beyond the

16

reach of the law. It is impossible, unless there is

an expectation of a fee award (and often not

then), to interest a competent lawyer in bringing

a suit in federal court to recover a small amount

of damages unless the plaintiff is a rich person

willing to finance the suit out of his own pocket

rather than by means of a contingent fee con-

tract, the normal way in which tort suits are

financed in this country. Yet the cumulative

effect of petty violations of the Constitution

arising out of the interactions between the

police (and other public officers) and the citi-

zenry on the values protected by the Constitu-

tion may not be petty, and if this is right, then

the mere fact that a suit does not result in a

large award of damages or the breaking of new

constitutional ground is not a good ground for

refusing to award any attorney’s fees.

Id. at 585.

At the same time, Chief Judge Posner acknowledged

that this reasoning was in tension with the result in

Simpson v. Sheahan, 104 F.3d 998, 1001 (7th Cir. 1997),

where a Seventh Circuit panel upheld the district court’s

use of a “non-lodestar, Farrar-type of analysis” in award-

ing a “low” § 1988 fee award to the plaintiff who won a

$140 money damages award that was “minimal in dam-

ages sought.” Most Seventh Circuit decisions, however,

are in accord with the principles articulated in Hyde. See

Jaffee v. Redmond, 142 F.3d 409, 417 n.3 (7th Cir. 1988)

(stating generally, citing Rivera, that the “seeming dispro-

portion between the fees sought by Jaffee’s attorney’s and

the damages awarded to Jaffee is, standing alone, not

dispositive”); Alexander v. Gerhard Enters., Inc., 40 F.3d

187, 194 (7th Cir. 1994) (upholding a $59,580.87 Title VII

17

fee award when the plaintiff recovered only $10,000 in

back wages); Estate of Borst v. O’Brien, 979 F.2d 511, 516-17

(7th Cir. 1992) (upholding a § 1988 fee award 47 times

greater than the damage award in an excessive police

force case, observing that “[w]Je have repeatedly

held ... that an attorney’s fee award need not be propor-

tionate to the damage recovery for his suspension by the

defendant sheriff without due process, noting that “Sec-

tion 1988 helps to discourage petty larceny”).

The Ninth Circuit in Morales v. City of San Rafael, 96

F.3d 359 (9th Cir. 1996), reversed the district court’s

award of an arbitrarily low statutory fee in a case in

which the plaintiff recovered $17,500 in compensatory

damages, noting that the district court was “[s]eemingly

trying to avoid a figure ‘too much more’ than the dam-

tl

ages award,” “[i]nstead of following the practice courts

are generally required to follow when calculating attor-

ney’s fees in civil rights cases — i.e. computing a lodestar

figure and then, if necessary, making adjustments to that

figure based upon reasonableness factors.” Id. at 362. In

so ruling, the Ninth Circuit confined Farrar to its holding,

namely, “that ‘nominal damages’ cases in which the relie!

is de minimis are exempted from the general require-

ments that govern the calculation of attorney’s fees,

including the requirement that a lodestar first be calcu-

lated.” fd.

In Cullens v. Georgia Department of Transportation, 827

F.Supp. 756, 763-65 (M.D. Ga. 1993), the district court

limited the plaintiffs’ non-lodestar calculated fee award

to three times the value of their underlying monetary

recovery of no more than $13,000, relying on an inter-

pretation of Farrar as seeming “to signal a shift in

18

emphasis by the Supreme Court from a pure vindication

model for assessing the value of the services of a private

attorney general, toward a ‘value added’ model,” which

“invites a cost benefit analysis” and “encourages an attor-

ney to proportion the effort to the size of the compens-

able wrong.” The Eleventh Circuit reversed, ruling that

“{ujlse of the multiplier as a sole or dominant criterion is

inconsistent with the Supreme Court’s rejection of pro-

portionality of damages as a basis for a fee award.”

Cullens v. Department of Transportation, 29 F.3d 1489,

1493-94 (11th Cir. 1994). In McKenzie v. Cooper, Levins &

Pastko, Inc., 990 F.2d 1183, 1185 (11th Cir. 1993), the court,

although with some misgivings, upheld a lodestar-calcu-

lated Title VII fee award of nearly $100,000 in a case in

which the plaintiff's recovery was $9,000. The court in

Duckworth v. Whisenant, 97 F.3d 1397, n.3 (11th Cir. 1996),

citing Rivera, stated that the law does not permit “award

of fees under § 1988 based upon a pure proportion of the

amount of the civil rights plaintiff’s recovery,” observing

further that “[nJeither would such a calculation be appro-

priate in light of the importance of Plaintiff’s perse-

verance in this litigation, which may be credited with

forcing a needed examination of the disciplinary process

in the DeKalb County Sheriff’s Office.”

District court decisions as well are divided in their

treatment of the question of whether the lodestar

approach may be discarded and a low or no statutory

attorney’s fee awarded in cases in which the monetary

damage recovery is low or modest and the lodestar-

calculated fee would be significantly greater than the

damages recovered. Compare Connolly v. National School

Bus Service, Inc., 992 F.Supp. 1032, 1036 (N.D. Ill. 1998)

19

(lodestar method applied where, although $10,000 settle-

ment amount was “moderate, it was not tremendously

out of proportion to the demand and it is above the

nominal amounts courts have considered de minimis”);

Morimanno v. Taco Bell, 979 F.Supp. 791, 795 (N.D. Ind.

1997) (court concludes that it need not reach the Farrar

analysis at all because the compensatory damages awards

to the plaintiffs totalling $10,300 are not nominal, and

therefore the lodestar approach to fee calculation should

be applied); Trevino v. Gates, 888 F.Supp. 1509, 1516 (C.D.

Cal. 1995) (concluding that plaintiff who recovered a low

award of $1 in compensatory damages and $9,109 in

punitive damages in police excessive force case was enti-

tled to a lodestar-calculated fee award because of the

public policy and deterrence implications of the verdict);

Stacy v. Stroud, 845 FSupp. 1135, 1139 (S.D. W.Va. 1993)

(utilizing lodestar approach in calculating statutory attor-

ney’s fee award where plaintiff’s recovery of more than

$4,000 in damages for prison officials’ deliberate indif-

ference to his medical needs “cannot be characterized as

technical, nominal, or de minimis” and the suit implicated

important public concerns) with Adams v. Rivera, 13

F.Supp.2d 550, 552-53 (S.D.N.Y. 1998) (concluding that

plaintiff’s “ ‘victory’ does not qualify for an award of

attorney's fees,” “when ‘[p]laintiff sought nearly $1.5 mil-

lion in compensatory and punitive damages and received

only $1,080 in compensatory damages, an arnount that

cannot be considered ‘significant’ on any fair analysis of

this case”); Kimbrew v. Evansville Police Department, 867

F.Supp. 818, 831-32 (S.D. Ind. 1994) (denying all statutory

attorney’s fees under Farrar to plaintiff who obtained $1

in nominal damages and $2,500 in punitive damages for

20

defendant police officers’ Fourth Amendment violations

when plaintiff “sought only to redress a private wrong”);

Morris v. City of Atlanta, 861 F.Supp. 1079, 1084-85 (N.D.

Ga. 1993) (denying attorney’s fees to plaintiff who recov-

ered small damages award of $157 and sought much

more in damages and equitable relief and did not vindi-

cate an important public purpose, so that the victory was

only de minimis within the meaning of Farrar); TCI of

Illinois, Inc. v. Carpenter, 849 F.Supp. 326, 327-28 (N.D. Ill.

1994) (awarding only low, non-lodestar calculated attor-

ney’s fees of three times the amount of the low damages

award of $420 obtained by the plaintiff cable television

company, noting that although the plaintiff's damages

recovery “may not be ‘nominal damages’ in the absolute

sense of a token recovery, it is certainly nominal in rela-

tion to the financial sights ... set... in bringing this

action”); Rainey v. Philadelphia Housing Authority, 832

F.Supp. 127, 131 (E.D. Pa. 1993) (reducing the plaintiff’s

lodestar fee by 60 percent, citing Farrar, when plaintiff

recovered only $3,072 in money damages, finding that it

was not reasonable “for counsel to be awarded a lodestar

more than four times the sum of his client’s actual recov-

ery’).

In light of these confusing, contradictory and incon-

sistent holdings, it is important for this Court to review

the decision of the Eighth Circuit in this case both

because of the split among, and sometimes within, the

circuit courts on the question of whether the lodestar

approach may be replaced in cases of modest damages

award recoveries by the new billing judgment or propor-

tionality approach — an approach that conflicts with exis-

ting statutory fee precedents of this Court. The Eighth

21

Circuit’s approach in this case substitutes for the predic-

tability and uniformity of the lodestar approach a meth-

odology, as dramatically illustrated by the Eighth

Circuit’s analysis in this case, that is highly subjective,

arbitrary, and impressionistic.

The legislative history of 42 U.S.C. § 1988, 42 U.S.C.

§ 2000e-5(k), and other similarly worded federal fee-

shifting statutes that authorize the award of a “reason-

able attorney’s fee” to the prevailing party in the litiga-

tion provides little guidance concerning the proper

standards for quantifying the amount of a reasonable fee,

referring only to the twelve (12) factors enunciated in

Johnson v. Georgia Highway Express, Inc. 488 F.2d 714,

717-19 (5th Cir. 1974). However, the unquantified Johnson

approach proved to be less than satisfactory, because, as

observed by one court, “[s]limply to articulate those

twelve factors . . . does not itself conjure up a reasonable

dollar figure in the mind of the district judge. A formula

is necessary to translate the relevant factors into terms of

dollars and cents.” Copeland v. Marshall, 641 F.2d 880, 890

(D.C. Cir. 1980) (en banc). This Court itself noted that the

“major fault’ of the Johnson analysis” “was that it gave

very little actual guidance to District Courts.” Pennsylva-

nia v. Delaware Valley Citizens’ Council, 478 U.S. 546,

563-564 (1986).

The same fault and lack of clear guidance inheres in

the highly subjective and impressionistic billing judg-

ment or proportionality approach adopted by the Eighth

Circuit in this case, when it is utilized to replace the

lodestar method that this Court unequivocally adopted in

Hensley v. Eckerhart, 461 U.S. 424 (1983), as the acceptable

22

and reliable methodology for calculating reasonable stat-

utory attorney’s fee awards. Since adopting the lodestar

methodology as a predictable and easily administered

approach to calculating reasonable statutory attorney’s

fees, this Court has emphasized that the “lodestar figure

has .. . become the guiding light of our fee-shifting

jurisprudence” and that there exists a “strong presump-

tion that the lodestar represents the ‘reasonable’ fee,”

noting the “interest in ready administrability that has

underlain our adoption of the lodestar approach. . . and

the related interest in avoiding burdensome satellite liti-

gation.” City of Burlington v. Dague, 112 S.Ct. 2638, 2643,

2644 (1992). These highly valued virtues of the lodestar

approach are dissipated when it is replaced, as the Eighth

Circuit has done in this case, by the billing judgment or

proportionality approach in cases where the plaintiff has

won more than mere nominal damages, with the inevita-

ble effect of making “the setting of fees more complex

and arbitrary, hence more unpredictable, and hence more

litigable.” Id. at 2643 (referring in that case to the use of

contingency enhancements to the lodestar figure).

Finally, in reducing the petitioner’s fee award for

partial success through the utilization of a “pro rata

reduction[ ] based upon the relationship between dam-

ages requested and damages awarded,” 157 F.3d at 1147,

the Eighth Circuit flouted the principle established by

this Court in Hensley v. Eckerhart, 461 U.S. 424, 435 n.11

(1983), rejecting as a methodology for reducing the lode-

star amount for the prevailing plaintiff’s partial success

in the litigation a “mathematical approach,” akin to the

approach employed in this case, “comparing the total

23

number of issues in the case with those actually prevailed

upon.”

Accordingly, for the reasons set forth above, this

Court should assume jurisdiction over this case and cor-

rect the Eighth Circuit’s flawed and unwarranted

approach to calculating a reasonable statutory attorney’s

fees and ultimately reverse and remand the Eighth Cir-

cuit’s October 7, 1998 decision to require a recalculation

of attorney’s fees and costs in this action consistent with

this Court’s lodestar approach to calculating statutory

attorney’s fees.

THE COURT SHOULD REVERSE THE EIGHTH CIR-

CUIT’S COMPLETE DENIAL OF APPELLATE ATTOR-

NEY’S FEES AND COS73, WITHOUT EXPLANATION,

FOR PETITIONER’S SUCCESSFUL DEFENSE OF

EACH AND EVERY ISSUE APPEALED BY THE

RESPONDENTS IN THIS CASE

After finding that certain contentions raised on

appeal by the respondents were “frivolous,” the Eighth

Circuit contradictorily denied the petitioner’s application

for attorney’s fees and costs incurred in successfully

defending against the respondents’ numerous appeals

(App. at 4 and 12). In denying altogether petitioner’s

application for an award of reasonable appellate attor-

ney’s fees for his successful defense of each of the respon-

dents’ appeals of the petitioner’s favorable merits

judgment and compensatory damages award in the dis-

trict court, without any explanation or analysis what-

soever, the Eighth Circuit violated basic principles that

are well-established in jurisprudence of awarding statu-

tory attorney’s fees for successfully defending in toto on

24

appeal a favorable merits judgment won in the district

court. These same principles require that an adequate

explanation be provided by the court for its determina-

tion of a statutory fee award, or, as in this case, the denial

of all fees.

It is well-settled that the plaintiff-appellee who has

established his prevailing party status in the district court

by winning a favorable judgment on the merits, as did

the petitioner here by obtaining a verdict that the respon-

dents unlawfully retaliated against him in violation of

Title VII and the recovery of more than $8,000 in compen-

satory damages for back pay and a prospective salary

increase, who then successfully defends that favorable

judgment on appeal, is entitled to an award of reasonable

statutory attorney’s fees for the work of his counsel on

the appeal. See e.g., Newhouse v. McCormick & Co., 130 F.3d

302, 304 (8th Cir. 1997); Chalmers v. City of L.A., 796 F.2d

1205, 1213 (9th Cir. 1986); Patterson v. Johnson, 790 F.2d

712, 713 (8th Cir. 1986). It is equally firmly established

that a court’s reduction, or as here denial of a request for

statutory attorney’s fees is subject to reversal and remand

if the court fails “to provide a concise but clear explana-

tion of its reasons for the fee award.” Hensley v. Eckerhart,

461 U.S. 424, 437 (1983). The Eighth Circuit in this case

failed to conform to either of these clear requirements its

decision denying, without any explanation, all appellate

attorney’s fees to petitioner for his completely successful

defense on appeal of his merits victory in the district

court. Therefore, this Court should grant certiorari on this

question and reverse and remand the Eighth Circuit's

November 13, 1998 order with directions that it make a

25

reasonable appellate attorney’s fee award and provide an

explanation for the resulting award.

e

CONCLUSION

The decision by the Eighth Circuit in this action is in

direct conflict with not only decisions in other courts of

appeals, but also with this Court’s decision in City of

Riverside v. Rivera, 477 U.S. 561 (1986). Granting this Peti-

tion would allow this Court the opportunity to resolve

the conflicting decisions rendered by the courts of

appeals regarding the propriety of abandoning the lode-

star approach in cases in which the plaintiff has recov-

ered more than merely nominal money damages, in favor

of a highly subjective approach that sets a statutory fee

award based on principles of proportionality that, as in

this case, is substantially less than the amount that would

have been yielded by the reasonable-hours-times-reason-

able-rates lodestar methodology. Moreover, by granting

this Petition, the Court would have the opportunity to

correct the inconsistency with this Court’s Hensley v.

Eckerhart, 461 U.S. 424 (1983) decision created by the

Eighth Circuit’s complete denial, without explanation, of

all appellate attorney’s fees to the petitioner who suc-

cessfully defended each and every issue appealed by the

respondents in this action. Accordingly, for the reasons

set forth herein, the petitioner respectfully prays that this

Court grant this Petition for Writ of Certiorari, and ulti-

mately reverse the decisions rendered by the Eighth Cir-

cuit at issue herein and remand such decision to the

Eighth Circuit for reconsideration in light of this Court’s

findings

Respectfully submitted,

Ketty L. McCLeLLAND

(Counsel of Record)

JOHN KiIRKLIN

Conway L. Hawn

(On the Petition)

McCLeELLAND Law Firm, P.C.

The Flagship Building

200 Westwoods Drive

Liberty, Missouri 64068-1170

(816) 781-0002

A - , ; 4 4 7+

Attorneys for Petitioner

Ashok K. Gumbhir

App. 1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

Nos. 97-3066; 97-3122; 97-3832:

97-4221; 97-4369; 97-4370

Ashok K. Gumbhir, as

Plaintiff-Appellee /

Cross-Appellant, Appeals from the

* United States

V. * District Court for

* the Western

* District of

* Missouri

Defendant-Appellant/ *

Cross-Appellee, *

Curators of the University of

Missouri,

Robert W. Piepho; R. Lee Evans,

Cross-Appellees. *

Submitted: May 14, 1998

Filed: October 7, 1998

Before BEAM, LOKEN, and MURPHY, Circuit Judges.

LOKEN, Circuit Judge.

After years of bitter feuding within the University of

Missouri at Kansas City’s School of Pharmacy (UMKC),

App. 2

Professor Ashok Gumbhir commenced this action against

UMKC, Pharmacy Dean Robert Piepho, and Professor R.

Lee Evans, alleging employment discrimination, violation

of Gumbhir’s First Amendment rights in the work place,

and defamation. The district court granted summary

judgment dismissing Gumbhir’s defamation and § 1983

First Amendment claims. After a trial, the jury returned a

verdict for UMKC on Gumbhir’s claims of race, national

origin, and disability discrimination. The jury awarded

Gumbhir $4,432.20 in lost wages and benefits on his Title

VII retaliation claim, and the court entered judgment on

this verdict. Gumbhir then moved for sweeping injunc-

tive relief, prospective equitable monetary relief, and an

award of $535,000 in attorneys’ fees and costs. The court

denied injunctive relief, granted a prospective salary

increase of $4,432.20 consistent with the jury’s verdict,

and awarded $110,000 in attorneys’ fees. Both sides

appeal. We reduce the award of attorneys’ fees and other-

wise affirm.

I. The Jury’s Finding of Retaliation Discrimination.

The jury found that Gumbhir was the victim of

unlawful retaliation and awarded him $4,423.20 in “lost

wages and benefits through the date of this verdict.” On

appeal, UMKC argues it is entitled to judgment as a

matter of law on this claim. We view the evidence in the

light most favorable to the jury’s verdict, giving Gumbhir

as prevailing party the benefit of all inferences that may

reasonably be drawn from that evidence. See Kim v. Nash

Finch Co., 123 F.3d 1046, 1057-58 (8th Cir. 1997).

App. 3

The lengthy trial exposed a rather incredible

sequence of petty, venomous exchanges between the main

protagonists, Professor Gumbhir on the one hand, and

Dean Piepho and Professor Evans on the other, an

unprofessional spate of communications that would not

be tolerated in a well-functioning work place and that

should have been beneath the dignity and intelligence of

the seemingly well-educated combatants. On appeal,

UMKC’s opening brief spends twenty pages marshalling

this distasteful evidence to show that Gumbhir was the

villain, while Gumbhir’s opening brief responds with

twenty-five pages intended to paint Piepho, Evans, and

other UMKC supervisors as the black hats. Most of this is

irrelevant to the issues on appeal, a waste of our time and

a strong indication the case has been massively over-

lawyered. We will spare the reader a tedious review of

these background facts and move directly to the evidence

we view as critical to Gumbhir’s claim of unlawful retal-

lation

A claim of retaliation discrimination requires proof

that the employee engaged in protected activity, that the

employer took adverse employment action against him,

and that there was a causal connection between the two.

See Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir.

1998). Beginning in December 1991, an otherwise dis-

gruntled Gumbhir made a series of complaints to Piepho

and the Vice Provost of Affirmative Action about ethnic

slurs by Evans, about an Associate Dean’s unfavorable

comment concerning immigrants working in the United

States, and about what Gumbhir perceived as a racially

biased environment in the School of Pharmacy. Gumbhir

received substantially below average salary increases the

App. 4

next three times the School of Pharmacy gave such

increases. UMKC argues Gumbhir’s complaints about

ethnic discrimination were not protected activity, and

denying him salary increases was not adverse employ-

ment action. These contentions are frivolous. See Davis v.

City of Sioux City, 115 F.3d 1365, 1369 (8th Cir. 1997);

Smith v. St. Louis University, 109 F.3d 1261, 1266 (8th Cir.

1997).

The critical issue is whether there was sufficient evi-

dence of a causal connection between Gumbhir’s pro-

tected activity of complaining about racial and ethnic

discrimination, and UMKC’s adverse salary actions. The

district court properly instructed the jury that to prove

his claim of unlawful retaliation, Gumbhir “must prove

by the greater weight of the evidence that [UMKC] took

action against plaintiff for exercising his rights to object

to race or national origin or disability discrimination.”

The sufficiency issue is close because UMKC presented

strong evidence of legitimate non-discriminatory reasons

for its salary actions. But giving the verdict the deference

to which it is entitled, we conclude the evidence was

sufficient to permit the jury reasonably to infer that

UMKC’s adverse salary actions were motivated at least in

part by an intent to retaliate for Gumbhir’s protected

activity. Accordingly, the district court’s judgment on the

jury verdict dated May 15, 1997, must be affirmed.

II. The Grant of a Prospective Salary Increase.

The district court granted Gumbhir equitable relief in

the form of a prospective pay increase of $4,423.20, an

amount equal to the back pay the jury awarded to the

App. 5

date of its verdict. It is often appropriate to grant a

prospective salary adjustment, or some other form of

“front pay,” in an employment discrimination case. We

review the grant or denial of such equitable relief under

the abuse of discretion standard. See Newhouse v. McCor-

mick & Co., 110 F.3d 635, 643 (8th Cir. 1997).

At trial UMKC sought to introduce evidence that

Gumbhir double-billed the University for certain consult-

ing trips, behaved inappropriately to female students,

and secretly managed an HMO in Texas. The district

court excluded this evidence. On appeal, UMKC does not

challenge these evidentiary rulings. Instead, it argues the

court abused its discretion by awarding Gumbhir equita-

ble relief without considering this evidence of employee

wrongdoing and unclean hands, citing McKennon v.

Nashville Banner Publishing Company, 513 U.S. 352, 361

(1995), and Gibson v. Mohawk Rubber Company, 695 F.2d

1093 (8th Cir. 1982). We disagree. While those opinions

stress the importance of considering all relevant circum-

stances in awarding equitable relief, including employee

wrongdoing, neither case involved evidence that had

been excluded at trial. Indeed, our decision in Gibson

emphasized that a post-trial decision regarding equitable

relief may not be based upon findings that conflict with

those made by the jury. 695 F.2d at 1101. Thus, the district

court did not abuse its discretion in declining to consider

in fashioning equitable relief evidence it had excluded

from the jury’s consideration at trial. The award of a

prospective salary increase is consistent with the jury’s

back pay verdict and must be affirmed.

App. 6

III. The Dismissal of Gumbhir’s § 1983 Claims.

Count III of the fifty-one-page Third Amended Com-

plaint asserted claims under 42 U.S.C. § 1983 against

UMKC and the individual defendants. One claim is that

defendants violated Gumbhir’s First Amendment rights

by punishing him for opposing unlawful discrimination

and speaking out on matters of general academic con-

cern. The district court granted summary judgment dis-

missing Count III. On appeal, Gumbhir argues that

genuine issues of material fact preclude summary judg-

ment on his First Amendment § 1983 claim. We review

the grant of summary judgment de novo.

It is well settled that UMKC “cannot condition public

employment on a basis that infringes the employee's

constitutionally protected interest in freedom of expres-

sion.” Connick v. Myers, 461 U.S. 138, 142 (1983). The

district court concluded Gumbhir had not spoken out on

matters of public concern; that if he did it was to deni-

grate his academic colleagues, not to benefit the public;

and that he presented no evidence his criticism of Piepho

and Evans was a substantial factor in any adverse

employment actions. This was the proper legal standard.

See Pickering v. Board of Educ., 391 U.S. 563, 568-73 (1968);

Bausworth v. Hazelwood Sch. Dist., 986 F.2d 1197, 1198 (8th

Cir. 1993). After careful review of the summary judgment

record, we agree with the district court’s conclusions and

affirm the dismissal of Gumbhir’s § 1983 claims.

IV. The Defamation Claim.

In 1992, Gumbhir refused to teach some of his

assigned courses. The School of Pharmacy issued him a

App. 7

letter of censure in December 1993, which became a basis

for his state law claim of defamation. The district court

dismissed this claim on the ground that dissemination of

the letter within the UMKC community was not the req-

uisite publication as that element of the tort was con-

strued in Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc

1996) (“communications between officers of the same cor-

poration in the due and regular course of the corporate

business, or between different offices of the same corpo-

ration, are not publications to third persons”).

Gumbhir argues the district court misapplied Rice

because there is evidence the letter was distributed to the

entire School of Pharmacy faculty, and “[dJefamatory

statements made by company officers or supervisors to

non-supervisory employees constitute a publication for

purposes of a defamation action.” Rice, 919 S.W.2d at 243.

However, even assuming other faculty members were

non-supervisory employees for purposes of this rule,

Missouri courts recognize a qualified privilege, to be

determined by the court as a matter of law, for a good

faith communication “in which the person making the

communication has an interest or in reference to which he

has a duty, and to a person having a corresponding

Id. at 244. Internal communications

””

interest or duty.

related to the solving of personnel problems are entitled

to this privilege. See Blake v. May Dept. Stores Co., 882

S.W.2d 688, 690 (Mo. App. 1994); Lovelace v. Long John

Silver's, Inc., 841 S.W.2d 682, 685 (Mo. App. 1992). Having

reviewed the summary judgment record de novo, we

conclude the district court correctly applied Rice. The

dismissal of Gumbhir’s defamation claim is affirmed.

App. 8

V. The Award of Attorneys’ Fees.

Gumbhir initially requested an award of $488,960.25

in attorneys’ fees and $45,909.55 in costs. The district

court advised that it would reduce this request because of

limited success and invited Gumbhir to brief the issue

further. Gumbhir then urged the court to award

$458,263.57 in attorney’s fees and $46,576.98 in costs. The

court reduced the award to $110,000 in attorneys’ fees

and $15,000 in costs. The court cited four categories of

unreasonable billing claims and also concluded that

Gumbhir had achieved very limited success in the litiga-

tion because only three of nine claims survived summary

judgment, retaliation was not his major claim, he received

only a fraction of the compensatory damages sought and

no punitive damages, and he was denied the wide-rang-

ing equitable relief requested. Both sides appeal this rul-

ing.

UMKC argues Gumbhir is entitled to no fee because

of his “inexcusable behavior.” We reject this attempt to

reargue the adverse jury verdict on retaliation. Gumbhir

was a “prevailing party” entitled to some fee. The ques-

tion is how much. See Warner v. Independent Sch. Dist. No.

625, 134 F.3d 1333, 1336 (8th Cir.), petition for cert. filed, 66

U.S.L.W. 3800 (U.S. Jun. 4, 1998).

Gumbhir urges us to grant the fees and costs he

requested. His amended fee petition was based upon

attorney hours allegedly spent on the litigation and what

he claimed were reasonable hourly rates, reduced by ten

percent because of the district court’s finding of limited

success. “The most useful starting point for determining

the amount of a reasonable fee is the number of hours

———————L< Ll

App. 9

reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424,

433 (1983); see City of Riverside v. Rivera, 477 U.S. 561, 569

n. 4 (1986). In determining what hours were reasonably

expended in this case, the district court properly exam-

ined whether particular claimed hours were unreasonable

and the question of limited success. But it overlooked

another aspect of reasonableness — the question whether

the requested fee award when based upon hours

allegedly expended exceeds the amount that could ever

be reasonable for a case of this nature. This question is

relevant because attorneys “should not be permitted to

run up bills that are greatly disproportionate to the ulti-

mate benefits that may be reasonably attainable.” Cope-

land v. Marshall, 641 F.2d 880, 908 (D.C. Cir. 1980) (en

banc) (MacKinnon, J., concurring).

In his closing argument to the jury, counsel for

Gumbhir requested lost salary damages of $20,832 plus

an unspecified amount for emotional distress. A lawyer

who does not urge the jury to award a specific amount

for emotional distress damages, and whose remaining

claim for compensatory damages is $20,832, cannot

expect that the jury will award substantial emotional

distress damages. In other words, counsel knew from the

outset that this case involved only a relatively modest

claim for compensatory damages, perhaps $50,000 to

$75,000 at most. It was not reasonable for an attorney to

run up a bill of $450,000 to $500,000 to litigate this type of

damage claim. We conclude that if the jury in this case

has awarded Gumbhir the full amount he requested in

closing argument, a reasonable fee could not have

exceeded $110,000, the amount awarded by the district

App. 10

court for Gumbhir’s far more limited success.! This was

not a case with broad civil rights implications. It was a

damage action for injury suffered from a rancorous

employment dispute that degenerated into unlawful

racial or ethnic retaliation.

If an award of $110,000 would have been appropriate

had Gumbhir been fully successful, the actual award

must be substantially reduced because of his very limited

success. “[T]he most critical factor in determining the

reasonableness of a fee award is the degree of success

obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992).

Gumbhir did not succeed on his claims for institutional

equitable relief. He prevailed on only one of his personal

damage claims. The jury awarded him $4,423.20 of the

$20,832 in quantifiable damages he requested, and the

court awarded an additional $4,423.20 in the form of a

prospective pay increase. Although pro rata fee reduc-

tions based upon the relationship between damages

1 It might be argued that the case as framed by. Gumbhir

could not have been effectively litigated to a fully tried

conclusion for this amount of attorney time. One response to

that contention is that competent attorneys are adept at finding

ways of litigating cases so that the time expended is reasonably

related to the amount at issue. Another response is that of the

court in Scheriff v. Beck, 452 F.Supp. 1254, 1261 (D. Colo. 1978):

The dispute here is personal. The relatively small

sums awarded by the jury indicate that in the general

scheme of things, the affair was minor and should

never have happened. Good sense among intelligent,

if unfriendly, people should have prevailed. The

argument should have been resolved within the

community or in some forum other than the courts

[and] that it did not is unfortunate.

App. 11

requested and damages awarded are often inappropriate,

we conclude that this approach is if anything a generous

method of determining the appropriate reduction for lim-

ited success in this case. The total damages awarded

Gumbhir were $8,846.40 or 42.5% of the lost salary dam-

ages he requested. Therefore, a reasonable attorneys’ fee

award cannot exceed 42.5% of $110,000, or $46,750.

The district court’s attorneys’ fee award is reduced to

$46,750. As so modified, the judgment of the district court .

is affirmed, including its award of $15,000 in costs.

A true copy.

Attest.

CLERK U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

App. 12

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 97-3066 /3122/3832/4221/4369/4370WMKC

Askok K. Gumbhir, Dr.,

an Appeal from the

Appetite! 10 Rees United States District

Court for the

Western District of

Missouri

V.

The Curators of the

University of Missouri,

Se oe oe oe ae Or

Appellant/Cross-Appellee,

After consideration of the court, appellee’s motions

for an award of costs pursuant to F.R.A.P. 39 and for an

award of attorneys’ fees are denied.

November 13, 1998

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

App. 13

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

ASHOK K. GUMBHIR,

Plaintiff, Case No.

)

)

)

vs. ) 95-0531-CV-W-3

CURATORS OF THE )

UNIVERSITY OF )

MISSOURL

)

)

et al.,

Defendants.

FINAL ORDER GRANTING IN PART AND

DENYING PART PLAINTIFF’S MOTION FOR

EQUITABLE RELIEF, ATTORNEY FEES AND COSTS

(Filed Oct. 22, 1997)

On September 22, 1997, the Court issued an Order

that, inter alia, required Plaintiff to “file suggestions as to

how best to reduce the lodestar in order to reflect his

limited success in this case.” Order at 8. In order to

provide Plaintiff a clearer picture as to the precise nature

of his success, the Court provided an advance ruling with

respect to his request for various forms of equitable relief.

This is intended to be a final order that disposes of all of

Plaintiff’s post-verdict requests for relief.

I. EQUITABLE RELIEF

The matter of equitable relief was discussed in depth

in the September 22 Order, and that discussion is incorpo-

rated as part of this Order. To summarize, all of Plaintiff’s

requests for equitable relief were denied except his

App. 14

request for an increase in his annual salary. Plaintiff’s

annual salary is to be increased by $4,423.20 commencing

from the date of the verdict.

Il. ATTORNEY FEES AND COSTS

In its September 22 Order, the Court acknowledged

that Plaintiff was a prevailing party at trial and was

therefore to some award of attorney fees and costs. The

Court acknowledged the many arguments raised by

Defendants regarding Plaintiff’s calculation of the lode-

star, but deferred consideration of those issues until

Plaintiff had an opportunity to make some effort to “dis-

count” the lodestar based on his degree of success as

suggested by cases including Hensley v. Eckerhart, 461 U.S.

424 (1983), Parton v. GTE North, Inc., 971 F.2d 150 (8th Cir.

1992). H.J. Inc. v. Flygt Corp., 925 F.2d 257 (8th Cir. 1991);

and Catlett v. Missouri Highway & Transp. Comm'n, 828

F.2d 1260, 1270 (8th Cir. 1987).

With respect to the lodestar’s calculation, the Court

believes that there is some credence in many of Defen-

dant’s contentions. Specifically, the Court agrees that:

1. Time spent unsuccessfully attempting to seal por-

tions of the record were easily calculable and should have

been (but were not) left out of the lodestar’s calculation.

2. Much attorney time was spent on clerical, secre-

tarial or administrative matters that should have been

billed at a lower rate than that normally associated with

the particular attorney’s normal rate for providing legal

services.

App. 15

3. Many entries are impossible to assess, as they

state simply, for instance, “Telephone conference with”

and the remainder of the entry has been redacted.

4. The Court believes the billing rate for Conway L.

Hawn to be above the prevailing rate in this market for

an attorney with his experience and background.!

The Court also believes that, once an appropriate

lodestar is ascertained, a further reduction is necessary to

reflect the degree of Plaintiff’s success. Plaintiff’s sugges-

tion that he receive 90% of his award is untenable; his

explanation fails to take into account that (1) retaliation

was not his “major” claim; Plaintiff had a variety of

“major” claims, of which only one was retaliation, (2)

Plaintiff raised nine causes of action, of which only three

survived summary judgment, (3) he received less than he

sought in terms of compensation, and did not receive

punitive damages as requested, and (4) he sought wide-

ranging equitable relief, but received far less than he

requested.?

1 It is somewhat interesting to note that, to support his

billing rate, Mr. Hawn’s affidavit lists his work on this case as

part of his experience. Obviously, his work on this case could

not have been a factor in establishing his billing rate for this

case.

2 Interestingly, Plaintiff invites the Court to consider

positions taken during settlement negotiations — despite his

earlier insistence that Defendant acted improperly by raising

the issue and the Court’s clear declaration that it was not

considering “the nature, conduct, or contents of settlement

discussions.” September 22, Order at 2 n.1.

App. 16

After considering the issues outlined above, the

Court concludes that an appropriate fee award is

$110,000, an appropriate award of costs is $15,000.

Il. CONCLUSION

In accordance with the above, it is hereby ordered

that:

1. Defendant increase Plaintiff’s annual salary by

$4,423.20 commencing from the date of the verdict in this

case.

2. Defendant shall pay Plaintiff the sum of one hun-

dred ten thousand dollars ($110,000.00) for his attorney

fees in this case.

3. Defendant shall pay Plaintiff the sum of fifteen

thousand dollars ($15,000.00) for his costs incurred in this

case.

4. In all other respects, Plaintiff’s request for equita-

ble relief is denied.

IT IS SO ORDERED.

/s/ Ortrie D. Smith

ORTRIE D. SMITH, JUDGE

UNITED STATES DISTRICT

COURT

DATE 10/21/97

App. 17

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

ASHOK K. GUMBHIR,

Plaintiff, JUDGMENT IN A

CIVIL CASE

V.

CURATORS OF THE

UNIVERSITY OF

MISSOURI, ET AL.,

(Filed Oct. 22, 1997)

CASE NUMBER:

95-0531-CV-W-3

{ ] Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

[X} Decision by Court. This action came to trial or

hearing before the Court. The issues have been

considered and a decision has been rendered.

IT IS ORDERED AND ADIUDGED 1) Defendant

increase Plaintiff’s annual salary by $4,423.20 commenc-

ing from the date of the verdict in this case.

2. Defendant shall pay Plaintiff the sum of one hun-

dred ten thousand dollars ($110,000.00) for his attorney

fees in this case.

3. Defendant shall pay plaintiff the sum of fifteen

thousand dollars ($15,000 90) for his costs incurred in this

case.

4. Inall other respects, Plaintiff's request for equita-

ble relief is denied

Entered On Oct. 22, 1997

October 22, 1997 R.F. Connor

ltée \ ag,

S Eva Will-Fees

App. 19

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 97-3066/3122/3832/4221/4369/4370WMKC

Ashok K. Gumbhir, Dr., .

* Order Denying Petition

* for Rehearing and for

V. * Rehearing En Banc

Appellee,

7

Curators of the

University of Missouri,

.

Appellant, *

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

December 28, 1998

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit