E.E.O.C. v. Strasburger, Price, Kelton, Martin and Unis, 78-1613

• Decision Date: 02 October 1980
• Docket Number: No. 78-1613,78-1613
• Citation: 626 F.2d 1272
• Parties: 24 Fair Empl.Prac.Cas. 1279, 24 Empl. Prac. Dec. P 31,284 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Southern Methodist University Association of Women Law Students, Lawyer A, Lawyer B, Lawyer C and Lawyer D, on behalf of themselves, the women members of the Association, and all women situated similarly to the women members of the Association and to Lawyer A, Lawyer B, Lawyer C and Lawyer D, and Neil Cogan, Plaintiffs-Intervenors-Appellants, v. STRASBURGER, PRICE, KELTON, MARTIN AND UNIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1272

626 F.2d 1272

24 Fair Empl.Prac.Cas. 1279,

24 Empl. Prac. Dec. P 31,284

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff Southern Methodist University Association of Women Law Students, Lawyer A, Lawyer B, Lawyer C and Lawyer D, on behalf of themselves, the women members of the Association and all women situated similarly to the women members of the Association and to Lawyer A, Lawyer B, Lawyer C and Lawyer D, and Neil Cogan, Plaintiffs-Intervenors-Appellants, v. STRASBURGER, PRICE, KELTON, MARTIN AND UNIS, Defendant-Appellee.

No. 78-1613.

United States Court of Appeals Fifth Circuit.

Oct. 2, 1980.

Neil H. Cogan, pro se and for plaintiffs-intervenors.

Smith, Smith, Dunlap & Canterbury, George C. Dunlap, Bowen L. Florsheim, Dallas, Tex., for Strasburger, Price, Kelton, Martin and Unis.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, GODBOLD and TATE, Circuit Judges.

GODBOLD, Circuit Judge:

Plaintiffs-intervenors challenge as inadequate an award to them of $2500 attorney fees in this civil rights action.

This suit was filed December 9, 1976, by the Equal Employment Opportunity Commission against Strasburger, Price, Kelton, Martin & Unis, a Dallas, Texas law firm, alleging sex discrimination against females in the hiring of attorneys and summer interns, in violation of Title VII of the Civil Rights Act of 1964, as amended. ¹ Shortly thereafter, in December 1976, a petition to intervene was filed by the Southern Methodist University Association of Women Law Students, which sought to intervene on its own behalf and as representative of a class and of unidentified individuals (including the members of the Association). Defendant opposed the intervention. In March 1977 an amended motion to intervene was filed in which four individuals identified only as Lawyers A, B, C and D were added as potential intervenors (on their own behalf and as representatives of a class and of other unidentified persons). The amended motion to intervene was granted in May 1977 as to both the Association and the lawyers, but the order granting the motion required that in intervening Lawyers A-D must use their given names.

The putative intervenors did not file the necessary pleadings to become formal parties until November 2, 1977. In the interim they were seeking protective orders that would permit the identities of Lawyers A-D to remain undisclosed; also, for the same reason they filed an interlocutory appeal from the order permitting intervention. During this period the defendants sought to depose the putative intervenors, who took the position that they were not subject to discovery procedures because they were not formal parties. In late September, with trial upcoming, the district judge ordered the Association and Lawyers A-D to file their complaint in intervention by October 5. On October 6 the parties agreed that a protective order would be entered limiting the disclosure of the identities of Lawyers A-D to a small number of lawyers. The trial was postponed to December 5. The terms of a protective order were agreed upon on November 2, and on that date the complaint in intervention was filed and the putative intervenors became parties for the first time. Later the interlocutory appeal to this court was dismissed.

In late November, approximately a week before the trial date, the parties entered into a settlement agreement that was later approved by the court. The settlement agreement was ordered sealed. We have examined it, and we refer to its terms only to the extent necessary for a determination of the case before us. The agreement provided substantial relief for the intervenors. EEOC and the defendant law firm were each to bear its own costs. Attorney fees, if any, were to be set by the district judge. The case was dismissed. Pursuant to the settlement agreement, and after hearing, the district judge entered an order awarding attorney fees of $2500 to the intervenors. The intervenors appealed, asserting that the award is inadequate. ²

In its order awarding the attorney's fee, the district court noted that the attorney for the intervenors had testified that he had expended in this case 236.91 hours on behalf of the intervenors. ³ The district court did not make a precise finding that the attorney's figure of 236.91 hours was accepted as a credible raw figure. The court, however, either impliedly accepted this figure or assumed for purposes of discussion that it was correct; it is clear that its decision is not based upon a theory that 236.91 hours is an incorrect raw figure. ⁴

The findings of the district court that are critical in this appeal go to matters other than the gross amount of time spent or allocated. The court found that the principal responsibility for the prosecution of the suit was upon EEOC and that the benefits resulting to the intervenors were primarily brought about by EEOC's efforts rather than those of counsel for the intervenors. It found that the discovery efforts of intervenors were sparse and sketchy and that they relied on EEOC's prosecution of the case. The court noted that prior to the intervenors becoming formal parties in November they had conducted no formal discovery, and that after becoming parties they had filed interrogatories but that the information sought could have been obtained from similar interrogatories previously filed by EEOC and answered by the defendants. After becoming parties but before settlement, the intervenors took 15-20 hours of depositions. The district court found that records of the defendant were made available to EEOC and that counsel for the intervenors had the opportunity to examine them as early as June 1977 but that he examined neither the original records nor the copies in the possession of EEOC. The intervenors wished to use law students to examine the records rather than having their counsel examine them. Defendant objected to this as a breach of the confidentiality of their records and suggested that the intervenors rely upon the examination by EEOC. The district judge agreed that the use of law students was inappropriate. The commission conducted the examination and the intervenors relied thereon. We cannot say that the district court was plainly erroneous in making the foregoing findings.

The position of appellants is that before they became parties on November 2 they were "jointly litigating" the case with EEOC, and that all time spent before November 2 must be considered in assessing an attorney's fee award. While the district court made no specific finding, it is clear that it attached little significance to much of the pre-November 2 time. We cannot say that this approach is wrong. Unquestionably a considerable part of counsel's time before November 2 was spent in the dispute over whether the putative intervenors had to reveal the identity of Lawyers A-D in order to intervene. Until November 2 it was not settled that the putative intervenors would ever become parties, because they were not willing to comply with the condition precedent of revealing the names of the anonymous lawyers. ⁵ We cannot say that as a matter of law the calculus for an award must include time spent by counsel in attempting to support the terms and conditions on which his clients will intervene in a case filed by someone else. In SMU v. Wynne and Jaffe, 599 F.2d 707 (5th Cir. 1979), one of the cases filed by intervenors' counsel against other Dallas law firms, this court rejected the contention of the intervenors therein that they were entitled to keep their identities confidential.

Intervenors also included in their claim work done during March 1977 in preparing a letter to the district judge supporting the EEOC in resisting defendant's motion to dismiss. We are not certain that a judge can properly include in an attorney's fee award compensation for efforts of a non-party in support of the position of a party, but it is certain that the judge is not required to include it.

Without question, counsel for intervenors has undertaken a difficult cause, one hardly popular with the Dallas bar. He is partly responsible for a result beneficial to his clients. The case has been hard-fought with intense feeling on both sides, and neither side has made the pathway easy for the other side. However, some of the fervor of the cause has crept unduly into arguments made to us on appeal. The intervenors' approach is that they are absolutely entitled to an attorney's fee award calculated upon the 236.91 hours their attorney referred to, and at the hourly rate that he stated was usual for him, ⁶ and any award less than this is a "reduction" of their attorney's "fee" to $10.55 per hour. Appellants assert that this "reduction" was imposed by a judge unsympathetic to the work of lawyers in civil rights cases and as "punishment" for counsel's representation of an unpopular cause against a prominent law firm. They describe the award as a "gratuity for work the district court would rather not have had done," ⁷ and argue that in setting the award the judge should have considered that their counsel was "responsible" for bringing the suit although EEOC filed it. These arguments misconceive many of the principles governing awards of fees, they are not supported by the record in this case, and we reject them. Intervenors sharply criticize the district judge as neither understanding nor sympathetic to their argument that Lawyers A-D must be permitted to remain anonymous; as it turned out, the judge was correct. SMU v. Wynne and Jaffe, supra.

Intervenors say that the district judge discriminated against their attorney because he is a law teacher rather than a full time practitioner and thereby penalizes all law teachers who serve as counsel in public interest litigation. This argument springs from the district judge's inquiring whether counsel had the overhead expense of a law office and, finding that he did not, noting this fact...