N.A.A.C.P. v. City of Evergreen, Ala.

• Decision Date: 27 February 1987
• Docket Number: No. 86-7008,86-7008
• Parties: 42 Empl. Prac. Dec. P 36,932 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, a/k/a NAACP; and Hall, Leroy, Jr., Plaintiffs-Appellants, v. The CITY OF EVERGREEN, ALABAMA, a municipal corporation; Tuggle, O.B., individually and as mayor of the City of Evergreen, Alabama; and the Evergreen Housing Board and Authority, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1332

812 F.2d 1332

42 Empl. Prac. Dec. P 36,932

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE a/k/a NAACP; and Hall, Leroy, Jr., Plaintiffs-Appellants, v. The CITY OF EVERGREEN, ALABAMA, a municipal corporation Tuggle, O.B., individually and as mayor of the City of Evergreen, Alabama; and the Evergreen Housing Board and Authority, Defendants-Appellees.

No. 86-7008.

United States Court of Appeals, Eleventh Circuit.

Feb. 27, 1987.

Donald V. Watkins, Montgomery, Ala., for plaintiffs-appellants.

Tommy Chapman, Evergreen, Ala., for City of Evergreen, Ala., a municipal.

Appeal from the United States District Court for the Southern District of Alabama.

Before FAY and JOHNSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

Appellant, National Association for the Advancement of Colored People ("NAACP"), appeals from an award of attorney's fees in its favor against Appellees, City of Evergreen and its Mayor ("City") ¹, alleging that the district court abused its discretion in reducing the amount of the award requested. We vacate the award and remand for reconsideration in light of this opinion.

I. FACTS

This appeal is the latest phase of litigation filed in May 1979 pursuant to 42 U.S.C.A. Sec. 2000e et seq. and 42 U.S.C.A. Secs. 1981, 1983 and 1985(3), alleging discrimination in the hiring and promotional practices of the City of Evergreen. In a previous appeal, this Court reversed the denial of injunctive relief by the district court and remanded with instructions that the district court fashion an appropriate decree enjoining discriminatory employment practices. NAACP v. City of Evergreen, 693 F.2d 1367, 1370-71 (11th Cir.1982). ²

On January 17, 1983, the district court entered an order pursuant to this Court's mandate enjoining the City of Evergreen from engaging in racially discriminatory employment practices and ordering the City "to publish notices of job vacancies, job descriptions, and objective, job verified guidelines for selection of employees for the various city agencies and departments." On November 19, 1984, the NAACP filed a motion for further relief and a contempt citation alleging that the Evergreen Police Department engaged in a policy and practice of hiring white employees over equally or better qualified black employees in order to maintain an artificial ratio of black to white police officers in violation of the January 17, 1983 Order. The motion also alleged that the City's failure to desegregate the Conecuh-Monroe Counties Gas Board violated the Fourteenth Amendment. The motion sought a contempt citation, a monetary fine, a new preliminary and permanent injunction requiring the City to desegregate the Gas Board, and an award of costs and reasonable attorney's fees. The NAACP also claimed that the City had violated the January 17, 1983 Order in that it had failed to advertise the positions of Police Chief and City Clerk, that job descriptions for each full-time City position were not written and/or published, and that the guidelines for the selection of City employees were not published.

The district court found that the NAACP was entitled to issuance of a contempt citation, injunctive relief and an award of costs and attorney's fees under 42 U.S.C.A. Sec. 1988 because the failure to advertise all job openings and to publish written job guidelines violated the January 17, 1983 Order, but that the NAACP had failed to make out a prima facie case of hiring discrimination in the police department and that its claim regarding failure to desegregate the Gas Board should have been brought against the Gas Board instead of the City. The district court issued an order requiring the City, within 60 days, to

publish written job descriptions for each full time job offered ...; publish minimum job qualifications needed for each said position; publish written personnel procedures governing the entire selection process for each position; develop written interview and rating forms to be maintained in the applicant's personnel file; keep applications for positions for a minimum of three (3) years; and advertise each and every full time position for two (2) consecutive weeks in a newspaper of general circulation in Conecuh County.

The district court also ordered the NAACP to submit affidavits showing time spent on issues with regard to which it had prevailed at a rate comparable to the rates commonly charged in the area. The affidavit submitted by the NAACP's attorney showed 74.7 hours of work (68.7 out of court and 6.0 in court) spent on the litigation and requested attorney's fees in the amount of $13,446.00 (representing an hourly rate of $120.00 per hour, enhanced by 50% to $180.00 per hour) and costs in the amount of $737.15. The fee application was not opposed by the City.

On December 17, 1985, the district court entered an order awarding $900.00 in attorney's fees and $682.15 in costs. This award represented 10 hours of attorney time at $90.00 per hour, with no enhancement, and disallowance of $55.00 in copying costs. The NAACP then filed this appeal alleging that the reduction of the amount of attorney's fees and costs constituted an abuse of the district court's discretion and requesting that this Court increase the amount to that originally requested ($14,183.15) plus the NAACP's attorney's fees and costs incurred in this appeal.

II. DISCUSSION

The district court's award of attorney's fees must be upheld unless there is a clear abuse of discretion. Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1356 (11th Cir.1983). The NAACP argues that the district court abused its discretion in reducing the hours and rate requested by the NAACP, in denying its request for enhancement, and in disallowing $55.00 of requested costs.

Initially we note that a district court does not abuse its discretion simply by reducing the amount of an unopposed fee award. A trial judge cannot substitute his own judgment for uncontradicted evidence, without explanation and record support, but he does not have to accept uncontradicted evidence if there is a reason for rejecting it. King v. McCord, 707 F.2d 466, 468 (11th Cir.1983) (King II) (disallowance of hours for unsuccessful claims); accord, Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1137 (11th Cir.1984) (reduction of requested hourly rate); Claiborne v. Illinois Central R.R., 583 F.2d 143, 155 (5th Cir.1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979) (disallowance of estimated hours). Therefore, to determine whether the district court abused its discretion by reducing the amount of the NAACP's award, we must focus on the explanation of the reduction given by the district court and the existence of record support for the district court's determination.

A. Reduction of Hours

The district court's reduction of the hours contained in the affidavit was based on its determination that the only prevailing claim in this case was the claim that the City was in contempt of the January 17, 1983 Order because of failure to publish notices of job vacancies and job descriptions for all full-time City positions and failure to publish objective, job verified guidelines for the selection of City employees. The district court found that the time spent on this prevailing claim was separable from time spent on the unsuccessful claims and, therefore, disallowed time spent on the unsuccessful claims. ³

Time spent on unsuccessful claims that are not related to successful claims should be excluded in considering the amount of a reasonable attorney's fee. Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983). However, the district court's opinion fails to relate this legal principle to the actual reduction in hours made. When a district court finds the number of hours excessive, it should explain which hours are disallowed and why an award of fees for those hours would be improper. Hill v. Seaboard Coast Line R. Co., 767 F.2d 771, 775 (11th Cir.1985). The affidavit of the NAACP's attorney states that the entire 74.7 hours included represents time spent on issues with regard to which the NAACP prevailed, "e.g., the issuance of a contempt citation, injunctive relief and an award of costs, including attorney's fees," and that "[s]pecifically excluded from the affidavit is time spent on the issue relating to the Conecuh-Monroe Counties Gas Board." The district court's rationale for reducing this amount is that "work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved" and that "plaintiff's purposes could have been accomplished with approximately ten (10) hours of preparation." Implicit in this statement is a finding that the affidavit contained time expended on unsuccessful and separable claims. However, the district court does not indicate which unsuccessful claims were included, nor does it point to the hours that are attributable to those claims. ⁴ In fact, the district court gives no basis for its determination that ten hours was a reasonable amount of time, other than its statement that the prevailing claim was established by the NAACP's first witness.

A prerequisite for our review of an attorney's fee award is that the district court's opinion must have explained the reasons for the award with "sufficient clarity to enable an appellate court to intelligently review the award." King v. McCord, 621 F.2d 205, 205 (5th Cir.1980) (King I ); accord, Marable v. Walker, 704 F.2d 1219, 1222 (11th Cir.1983). The district court's rationale for reduction of the hours claimed in this case by 64.7 hours clearly lacks the requisite clarity.

When an opinion lacks the requisite clarity, the normal course is for this Court to vacate the award and remand for reconsideration and clarification. We follow that course in this case, but in doing so we also find that the district court's determination that ten hours was a reasonable amount of time to...