Rainey v. Jackson State College, 74-2621

• Decision Date: 02 May 1977
• Docket Number: No. 74-2621,74-2621
• Citation: 551 F.2d 672
• Parties: Kenneth T. RAINEY, Plaintiff-Appellant Cross Appellee, v. JACKSON STATE COLLEGE et al., etc., Defendants-Appellees Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 672

551 F.2d 672

Kenneth T. RAINEY, Plaintiff-Appellant Cross Appellee, v. JACKSON STATE COLLEGE et al., etc., Defendants-Appellees Cross Appellants.

No. 74-2621.

United States Court of Appeals Fifth Circuit.

May 2, 1977.

A. Spencer Gilbert, III, Barry H. Powell, Jackson, Miss., for Kenneth T. Rainey.

A. F. Summer, Atty. Gen., Ed Davis Noble, Jr., William A. Allain, Asst. Attys. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg, Miss., for Jackson State College et al.

Appeals from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, GODBOLD and HILL, Circuit Judges.

GODBOLD, Circuit Judge:

This appeal is an outgrowth of our earlier decisions in Rainey v. Jackson State College, 435 F.2d 1031 (CA5 1970) ("Rainey I ") and Rainey v. Jackson State College, 481 F.2d 347 (CA5 1973) ("Rainey II "). In Rainey II we held that plaintiff was entitled to an award of attorneys' fees and remanded the case to the district court for it to make an award. After an evidentiary hearing the district court awarded fees of $1,750. Plaintiff appeals on the ground that the award is inadequate and that the district court used incorrect standards in setting it. Defendants cross-appeal, contending that no attorneys' fees should be awarded. We agree with plaintiff, vacate the judgment of the district court, and remand the case with directions to enter a judgment awarding plaintiff attorneys' fees of $11,182.50.

It is necessary to set out the history of this prolonged litigation in order to understand why the district court award was inadequate. Plaintiff-appellant Rainey filed this suit in 1970, under 42 U.S.C. § 1983, alleging that his contract to teach at Jackson State College for the academic year 1970-71 had been terminated by the defendants ¹ because of his exercise of his First Amendment right of free speech. Specifically, plaintiff alleged that he was dismissed because he had testified as an expert witness on behalf of persons under criminal charges of obscenity arising from exhibition of the motion picture "The Fox."

September 16, 1970, after a hearing, the district court dismissed Rainey's complaint for lack of subject matter jurisdiction. On September 18 plaintiff applied to this court for an injunction pending appeal, to prevent his dismissal pending a hearing before this court. The motion was granted September 21. The defendants did not reinstate Rainey to his teaching position but rather insisted that the order of this court only required that his salary be paid (also the college gave him the opportunity to do research). Plaintiff had to come back to this court for further relief, and on September 28, we entered another order requiring that he be reinstated to the type of teaching duties and responsibilities contemplated in his contract with Jackson State.

Rainey's appeal from the district court's dismissal order was heard by this court on November 18, 1970. Our opinion was handed down December 22, 1970. We held that the district court had erred in dismissing the suit and remanded the case for further proceedings. We left our injunction in effect until plaintiff could ask the district court for injunctive relief pending the trial in that court on the merits. Rainey I, 435 F.2d 1031 (CA5 1970).

After remand plaintiff moved in the district court for injunctive relief, but the record does not show that any action was taken on the motion, with the result that Rainey continued to teach throughout the 1970-71 year (ending May 31, 1971) under the authority of the injunction which this court had issued. After the end of that academic year, Rainey amended his complaint to allege that he had been deprived of a non-contractual right to teach during the summer 1971 session and the 1971-72 academic year. The suit was tried on the merits of this amended complaint in January 1972. The jury returned special verdicts in favor of defendants with respect to both the 1970-71 academic year and the succeeding period. Thus, in effect, the jury held that Rainey had not been discharged in 1970 for exercise of his rights of free speech, nor had he been improperly denied employment for the summer of 1971 and the 1971-72 school year.

Plaintiff filed a motion in the district court asking that notwithstanding the jury verdict the court enter a judgment in his favor (a "judgment n. o. v."). Plaintiff had claimed to be entitled to attorneys' fees, but since the judgment for defendants was left in effect no fees were awarded.

In Rainey II, 481 F.2d 347 (CA5 1973), this court held that the district court should have granted Rainey a judgment n. o. v. in his favor on his claim for the academic year 1970-71. We recognized that his claim of a right to teach during that period, and to be paid for such services, had been partially mooted since he had taught under the authority of the injunction which this court had entered, and he had been paid. However, the issue of defendants' liability to Rainey with respect to the 1970-71 period remained partly unsettled because of the question of whether he was entitled to an award of attorneys' fees.

In Rainey II we also held, with respect to Rainey's claims for periods after the 1970-71 academic year, that there was sufficient evidence for the jury to find that the refusal to offer him employment was not based on his exercise of protected First Amendment rights.

The opinion in Rainey II attempted to give some guidance to the district court concerning a proper award of fees. First, our opinion recognized that part of the work done by counsel on the second appeal related to the unsuccessful claims for periods after the end of the 1970-71 school year, and to this extent we held that plaintiff was not entitled to fees. However, it had been necessary for plaintiff to take the second appeal for other reasons. It was the means through which he could continue to try to establish the validity of his original position with respect to the 1970-71 year i. e., that his contract had been terminated because of his exercise of First Amendment rights, and to establish a right to attorneys' fees. We concluded that for work done on the second appeal fees should be awarded on the basis of one-half of a full fee. ²

On remand from Rainey II, the plaintiff filed a written schedule by his lead attorney purporting to show the time counsel had spent on the case, broken down by hours and days. It showed 251 hours of work from the filing of suit through the first appeal and 165 hours devoted to the second appeal. ³ Plaintiff also presented testimony by experienced and highly regarded attorneys from Jackson that the minimum fee for an attorney's services performed in the Southern District of Mississippi is $35 per hour. This testimony was not controverted.

We discuss below the various factors which must be weighed in making an award of attorneys' fees, as set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974). At this point, it is sufficient to say that several of these factors are affected by the merits of Rainey's claim that he had been terminated because of his exercise of rights of free speech guaranteed by the First Amendment. Our opinion in Rainey II considered and made findings on the merits and entered a judgment sustaining Rainey's claim that his termination of employment was unconstitutional. 481 F.2d at 349-50: "(The) facts make out . . . a clear case of impermissibly freighting plaintiff's contract with a deprivation of the First Amendment right to free speech." 481 F.2d at 350. Also, our opinion spelled out these underlying facts. Plaintiff had a contract to teach at Jackson State for 1970-71. The contract was "withdrawn" or broken for the sole reason that it was discovered that the previous year, while he was teaching in another institution, Rainey had testified as an expert witness for the defense in an obscenity trial. The defense was successful, and Rainey received widespread publicity. A member of the Board of Trustees heard of his having testified and brought this to the attention of other trustees, which in turn caused the president of Jackson State to "withdraw" Rainey's contract. The trustees and the president then engaged in a series of explanations and reasons for their actions, some of which were pretexts, and all of which collapsed when a trustee testified on deposition and at trial that the testimony at the obscenity trial and the resulting publicity was the reason for "withdrawing" Rainey's contract. We held that "(T)he lack of a defense on the part of defendants (was) apparent." Id. Moreover, we held that defendants were guilty of "unreasonable and obdurate obstinacy."

With this history in mind we turn to decision. The defendants have cross-appealed on the ground that the Eleventh Amendment to the United States Constitution barred any award of attorneys' fees against the state. This contention has been overtaken by two events. The first is the Supreme Court's decision in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). In Fitzpatrick the Court held that Congress pursuant to its enforcement authority under § 5 of the Fourteenth Amendment may authorize the award of damages and fees against a state in spite of the Eleventh Amendment. The second is the enactment of the Civil Rights Attorney's Fees Awards Act of 1976 (Pub.L.No.94-559, amending 42 U.S.C. § 1988). As amended 42 U.S.C. § 1988 now provides that

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, (chapter 38 of Title 20,) or in any civil action or proceeding, by or on behalf of the United States of America, to enforce or charging a violation of, a provision of the United States Internal Revenue Code, or (subchapter V of chapter 21 of this title,) the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

The...