Norman v. Housing Authority of City of Montgomery, 87-7763

• Decision Date: 01 February 1988
• Docket Number: No. 87-7763,87-7763
• Citation: 836 F.2d 1292
• Parties: , 24 Fed. R. Evid. Serv. 771 Mattie NORMAN, Clara Marshall, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. The HOUSING AUTHORITY OF the CITY OF MONTGOMERY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1292

836 F.2d 1292

10 Fed.R.Serv.3d 810, 24 Fed. R. Evid. Serv. 771

Mattie NORMAN, Clara Marshall, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. The HOUSING AUTHORITY OF the CITY OF MONTGOMERY, et al Defendants-Appellees.

No. 87-7763.

United States Court of Appeals Eleventh Circuit.

Feb. 1, 1988.

Vanzetta Penn McPherson, Montgomery, Ala., for plaintiffs-appellants.

Michael S. Jackson, Montgomery, Ala., for defendants-appellees.

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

Before FAY, Circuit Judge, HENDERSON ^*, Senior Circuit Judge, and FORRESTER ^**, District Judge.

FORRESTER, District Judge:

In this case we are asked to consider whether this court has lost jurisdiction to entertain an appeal of an award of attorney's fees and, also, we are asked to review the amount of that award.

I. HISTORY OF THE APPEAL

This class action challenging the Housing Authority's practice of overcharging public housing tenants for rent by failing to provide adequate utility allowances for gas and electric service was resolved by a consent order and judgment. The consent order entitled the tenants to approximately $1 million in damages for previous overcharges, to be paid over a period of years rather than in a lump sum, and a reduction in gas utility allowances for twenty-one months after the consent order.

Following the district court's entry of the consent order and judgment the tenants filed a motion for trial counsel and fee counsel fees. The court awarded fees on September 26, 1986. In the September 26 order the court did not reserve any issues for further consideration and did not address the tenants' request for reasonable fees for their fee counsel.

On October 6, 1986 the tenants moved for reconsideration of the September 26 order. The motion for reconsideration included a paragraph noting the court's failure to address the issue of fee counsel fees and requesting that such fees be awarded. The court denied the tenants' motion for reconsideration on October 9, 1986 but requested further briefing and documentation on the fee counsel fees issue. On November 6, the tenants filed a notice of appeal of the district court's October 9 order. On November 10, the district court awarded the tenants' fee counsel $1,046.32 as a reasonable fee. The November 10 order, which left no issues pending in the case, was not appealed.

II. DISCUSSION OF JURISDICTION

A threshold question is whether this court has jurisdiction of the appeal in this case, since the district court's October 9 order is not a final order under the express terms of 28 U.S.C. Sec. 1291 or Federal Rule of Civil Procedure 54(b) and is not an appealable interlocutory order under 28 U.S.C. Sec. 1292(b). ¹ Even if the October 9 This court has noted that the holding in Bank South "may be incorrect," Robinson v. Tanner, 798 F.2d 1378, 1384 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987), because the finding of appellate jurisdiction in Bank South was not necessarily compelled by holdings of previous cases. Those previous cases held that a premature notice of appeal from an order that is otherwise immediately appealable is cured by a subsequent final judgment, but that a premature notice of appeal from an interlocutory order that is not immediately appealable is not cured by a subsequent final judgment. Compare Jetco Electronic Industries v. Gardiner, 473 F.2d 1228 (5th Cir.1973), with United States v. Taylor, 632 F.2d 530 (5th Cir.1980). See also Robinson, 798 F.2d at 1385 (summarizing the holdings of Jetco and Taylor ). However, the court in Robinson also noted that the finding of appellate jurisdiction in Bank South was also not necessarily foreclosed by the previous cases since "the rules governing attorney's fees case are sui generis in many respects." 798 F.2d at 1384. Bank South, as the only case applying the jurisdictional principles of Jetco and Taylor in the attorney's fees situation, is controlling law until overruled by an en banc court, see Bonner v. City v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), and this court therefore does have jurisdiction of this appeal. Accord, Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160 (5th Cir.1984).

                order was not final, however, this court's previous decisions establish that the district court's subsequent order terminating the litigation cured any prematurity in the appeal.    See Bank South Leasing, Inc. v. Williams, 778 F.2d 704 (11th Cir.1985).  In Bank South, this court held that a notice of appeal filed after judgment was rendered but before the attorney's fees issue was decided was premature, but found that a subsequent order deciding the attorney's fees issue cured the premature notice.    Id. at 705, citing Rivers v. Washington County Board of Education, 770 F.2d 1010, 1011 (11th Cir.1985);  Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982)
                

III. ATTORNEY'S FEES

A. THE RECORD BELOW.

This case began as a class action with Mrs. Norman representing about 3,000 present and future tenants of the Montgomery Housing Authority in seeking relief for utility allowances in the computation of rents charged by the authority. It is represented that under federal law there is a limit on the total amount of money which a tenant must pay for both rent and utilities. The regulations governing this computation changed in the early 1980's, as did utility charges, and yet the Authority had done nothing to make adjustments in rents as of the filing of this lawsuit.

Counsel for the class were two attorneys from the Alabama Legal Services Corporation. For some time that public law agency had received complaints from tenants. Finally, Mrs. Norman determined to bring suit. The Housing Authority's attorney learned of the possibility that suit was contemplated and offered to settle the matter. The record does not reflect the relationship of this offer to the adjustments which were finally obtained.

The Legal Services attorneys decided to file suit rather than continue to negotiate in part because they believed that it would be easier to get HUD's concurrence if litigation were pending. The record does not reflect the basis for this assessment. HUD was not a party to the lawsuit. The case proceeded through very limited discovery, a fully-contested class certification hearing, a motion for partial summary judgment A number of similar suits had previously been filed in other districts and several had been resolved successfully by the time this action was brought. The Legal Services attorneys apparently had access to some of the pleadings and discovery materials from the other suits. Additionally, they had access to an expert who had been used in other suits. There was very little question about the class's entitlement to some relief. There were questions concerning the timing and dimension of that relief.

filed by the Authority which was successful in having the case dismissed as to six parties and as to one theory, a consent decree, a motion by the Authority to avoid the consent decree, and finally the award of attorney's fees.

Plaintiffs/appellants contend that the economic value of the consent decree could be between $1.5 and $2 million, in addition to obtaining proper future computation of utility allowances. The initial attorney's fees request was for 394 hours at $125 an hour for a total of $49,250 enhanced by a multiple of two for a net total of $98,500. The district court awarded $11,855. Appellants contend that the district court calculated an hourly rate which did not reflect the special skill of counsel and improperly used as evidence of market rate the charges of members of old-line well-established general law firms in the City of Montgomery. With reference to the rates utilized by the district court, appellants contend that the court erred in reducing the hourly rate to a "bookkeeper" rate for some of the time and that the use of a bookkeeper rate does not account for the legal and analytical skills required to apply the statute to the facts.

Appellants generally contend with reference to deductions made by the court from the amount of hours claimed that the court failed to provide a concise but clear explanation of its reasons, and that the deduction of the hours spent for settlement and duplication of effort by attorneys was improper. Appellants further contend that the court erred in not conducting an evidentiary hearing to resolve disputes of fact concerning the reasonableness of the rates and hours. Finally, appellants fault the district court for not enhancing the award because of the contingency of recovery, the quality of representation provided and delay in the receipt of attorney's fees.

The district court concluded that lawyers in "old-line" firms earn between $65 and $90 an hour in the Montgomery area and that $75 an hour was a reasonable rate for the two attorneys involved in this case. Further, the district court determined through its own experience that $35 per hour was a reasonable rate for bookkeeping services. The court further reasoned that the case necessarily involved a tremendous amount of bookkeeping, because of the number of class members, and established thirty of the hours expended in discovery efforts as being primarily bookkeeping work.

The court deducted all time claimed for post-settlement administration as it found no authority for allowing such an award. The court found that appellants' counsel's claim for eighty-four hours for the taking of two depositions and the preparation for one planned deposition was excessive by twenty-eight hours. The court deducted twenty hours claimed by appellants' attorneys for work done during the pleading stage, finding that there was duplication of effort by the two attorneys.

Appellants' attorneys contended that they spent ninety-seven hours in reaching a settlement. The court considered...