Johnson v. Georgia Highway Express, Inc., 72-3294.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTHORNBERRY, AINSWORTH and RONEY, Circuit
Citation488 F.2d 714
PartiesRichard JOHNSON, Jr., and Frank Hill, Plaintiffs-Appellants-Cross Appellees, v. GEORGIA HIGHWAY EXPRESS, INC., Defendant-Appellee-Cross Appellant.
Docket NumberNo. 72-3294.,72-3294.
Decision Date21 January 1974

488 F.2d 714 (1974)

Richard JOHNSON, Jr., and Frank Hill, Plaintiffs-Appellants-Cross Appellees,
v.
GEORGIA HIGHWAY EXPRESS, INC., Defendant-Appellee-Cross Appellant.

No. 72-3294.

United States Court of Appeals, Fifth Circuit.

January 21, 1974.


488 F.2d 715

Elizabeth Rindskopf, Howard Moore, Jr., Atlanta, Ga., Jack Greenberg, William L. Robinson, Morris J. Baller, Charles Stephen Ralston, New York City, for plaintiffs-appellants.

John W. Wilcox, Jr., Thomas M. Kuna, Atlanta, Ga., for defendant-appellee.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

The question on this appeal concerns the adequacy of attorneys' fees awarded by the District Court in a Title VII class action. Plaintiffs challenge as inadequate the $13,500.00 awarded for their alleged 659.5 billable hours accrued during more than four years of litigation. We are called upon to review the award and set appropriate standards to better enable District Courts to arrive at just compensation.

This "across-the-board" action to remedy employment discrimination made unlawful by Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., was filed February 27, 1968. On June 24, 1968, the District Court entered an order holding that the action could not be maintained as a class action, and upholding defendant's jury demand. Plaintiff took an interlocutory appeal, resulting in this Court's reversing the District Court on both issues. 417 F.2d 1122 (5th Cir. 1969).

On remand, the case proceeded to trial on the merits. After a three-day trial (Jan. 31-Feb. 3, 1972) the District Court entered a final order on March 2, 1972, finding a variety of discriminatory practices by defendant and granting class relief to plaintiffs. In that order, the court provided that an application for an award of attorneys' fees and costs pursuant to Section 706(k) of Title VII of the Civil Rights Act of 1964 would be entertained.

Pursuant to this ruling, plaintiffs requested an award of $30,145.50. In support of their request they submitted: (1) a schedule of fees based on the affidavits of counsel as to their time spent on this matter, in all 659.5 hours exclusive of trial time;1 (2) six affidavits from the five attorneys employed by plaintiffs in this action; (3) three exhibits showing in chronological order the daily time spent by three of the plaintiffs' attorneys; and (4) a memorandum of law in support of the motion.

After an appropriate hearing, the District Court filed its order on August 8, 1972, and made the following findings of fact with respect to attorneys' fees:

"1. A hearing on the matter of attorneys\' fees in the primary action in this case was held, and evidence presented by both parties, on June 9, 1972.
"2. With respect to the question of attorneys\' fees in the primary action, I find that reasonable attorneys\' fees, in the Atlanta, Georgia area, for the job performed for the plaintiffs RICHARD JOHNSON, JR. and FRANK HILL, are Thirteen Thousand Five Hundred Dollars ($13,500.00). The above amount in this finding is based, generally, on sixty (60) man days of work at Two Hundred
488 F.2d 716
Dollars ($200.00) per day, generally considered to consist of from six (6) to seven (7) productive hours, which amounts to Twelve Thousand Dollars ($12,000.00), and three (3) trial days for two attorneys at Two Hundred Fifty Dollars ($250.00) per trial day per attorney, or One Thousand Five Hundred Dollars ($1,500.00)."

The judgment of the District Court stated that

"The Defendant GEORGIA HIGHWAY EXPRESS, INC. shall pay to the Plaintiffs in the primary action in the present case reasonable attorneys\' fees in the amount of Thirteen Thousand Five Hundred Dollars ($13,500.00), based on what this Court has determined is reasonable in this locality for the job performed by legal counsel on behalf of the Plaintiffs. Given the experience of counsel for the Plaintiffs at the time these services were performed, the award of this Court is based on sixty (60) man days at the rate of Two Hundred Dollars ($200.00) per day, or Twelve Thousand Dollars ($12,000.00), and three (3) trial days for two (2) attorneys at the rate of Two Hundred Fifty Dollars ($250.00) per day per attorney, or One Thousand Five Hundred Dollars ($1,500.00).
"In making this award of reasonable attorneys\' fees to the Plaintiffs, I further note that I am aware of the accomplishments of some of the attorneys for the Plaintiffs. At the time when some of these services were rendered, however, they were rendered by attorneys who had been at the bar for only a relatively few years, and there is a relatively standard practice within the Atlanta, Georgia community with respect to the age and experience of attorneys and the compensation involved therein."

Plaintiffs appeal from this judgment. Defendant cross-appeals.

Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. A. § 2000e-5(k), provides that:

In any action or proceeding under this subchapter the Court, in its discretion, may allow the prevailing party . . . a reasonable attorney\'s fee as part of the cost of the litigation.

The purpose of this provision is to effectuate the congressional policy against racial discrimination. Clark v. American Marine Corp., 320 F.Supp. 709 (E. D.La.1970), aff'd, 437 F.2d 959 (5th Cir. 1971). In discussing a similar provision in Title II, the United States Supreme Court observed that

If the plaintiff obtains an injunction, he does so not for himself alone but also as a "private attorney general," vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys\' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief . . . .

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). This Court, as part of its obligation "to make sure that Title VII works,"2 has liberally applied the attorney's fees provision of Title VII, recognizing the importance of private enforcement of civil rights legislation. See Clark v. American Marine Corp., supra; Rowe v. G. M. Corp., 457 F.2d 348 (5th Cir. 1972); Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972); Lee v. Southern Home Sites Co., 444 F.2d 143 (5th Cir. 1971).

We are mindful that it is within the discretion of the District Court

488 F.2d 717
whether to award attorney's fees against a party. Weeks v. Southern Bell Tel. & Tel., 467 F.2d 95 (5th Cir. 1972); Culpepper v. Reynolds Metals Co., 442 F.2d 1078 (5th Cir. 1971). See 6 Moore, Federal Practice ¶ 54.77. This Court, however, may review the District Court's determination as to a reasonable fee. B-M-G Investment Co. v. Continental/Moss Gordin, Inc., 437 F.2d 892, 893 (5th Cir. 1971). It is under this authority that we undertake to review the award in this case

The reasonableness of the award is to be judged by the abuse of discretion standard of review. Weeks v. Southern Bell Tel. & Tel. Co., supra; Culpepper v. Reynolds Metals Co., supra. But in utilizing this standard we must carefully review the basis upon which the District Court made its award.

It is at this juncture that we have difficulty with the District Court order. The judgment does not elucidate the factors which contributed to the decision and upon which it was based. No correlation to the facts and figures submitted by the plaintiff is visible. Sixty work days were allotted by the Court with six to seven productive hours per day as the standard. Compensation was computed at $200 per day which averages out to between $28.57 and $33.33 per hour depending on which productivity scale is used. Neither of these figures match the minimum fee scale in Atlanta, Georgia.3 Furthermore, no differentiation was made by the District Court between the experienced and...

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6344 practice notes
  • Knutson v. Ag Processing, Inc., No. C01-3015-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 28, 2003
    ...a reasonable attorney fee, the district court should consider the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), though the court need not exhaustively address every factor.19 Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir.2001). The Eighth ......
  • LaFleur v. Wallace State Community College, Civil Action No. 94-D-747-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 18, 1996
    ...42 U.S.C. § 1988 and Title VII, to be determined in accordance with the criteria established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th An appropriate judgment will be entered in accordance with the memorandum opinion. JUDGMENT Pursuant to Rule 58 of the Federal Rules of......
  • In re Diaz, No. 6:02–bk–05591–ABB.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida
    • September 30, 2009
    ...B.R. 288] to the Debtor pursuant to the reasonableness criteria of 11 U.S.C. Section 330(a) and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–718 (5th Cir.1974).35 In re Omine, 2006 WL 319162 at *6; In re Omine, 329 B.R. at 349; In re Nibbelink, 403 B.R. at 122. The Debtor inc......
  • Davis v. Perry, Civil Nos. SA–11–CA–788–OLG–JES–XR, SA–11–CA–855–OLG–JES–XR.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • January 8, 2014
    ...using the twelve well-known Johnson factors. See, e.g., Saizan, 448 F.3d at 800 & n. 18 (citing Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974)). Plaintiffs do not seek an enhancement of the lodestar amount. This case involved complex, difficult, unsettled areas of la......
  • Request a trial to view additional results
6308 cases
  • Taylor v. Bank One, Texas, NA, Civ. A. No. H-90-3815.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 18, 1992
    ...determining the amount of attorney's fees, the Court will be guided by the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974). Plaintiffs are directed to submit a detailed affidavit with supporting documentation in accordance with the Johnson......
  • Knutson v. Ag Processing, Inc., No. C01-3015-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 28, 2003
    ...a reasonable attorney fee, the district court should consider the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), though the court need not exhaustively address every factor.19 Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir.2001). The Eighth ......
  • E. Associated Coal Corp. v. Dir., Office of Workers' Comp. Programs, Nos. 11–2038
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 31, 2013
    ...[BLBA]”). 5. Courts also have cited for consideration twelve factors originally articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974). These twelve factors are: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the ......
  • LaFleur v. Wallace State Community College, Civil Action No. 94-D-747-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 18, 1996
    ...42 U.S.C. § 1988 and Title VII, to be determined in accordance with the criteria established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th An appropriate judgment will be entered in accordance with the memorandum opinion. JUDGMENT Pursuant to Rule 58 of the Federal Rules of......
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2 books & journal articles
  • Fee-Shifting in Bankruptcy.
    • United States
    • American Bankruptcy Law Journal Vol. 95 Nbr. 4, December 2021
    • December 22, 2021
    ...filed). (70) See e.g., 42 U.S.C. [section] 1988; 42 U.S.C. [section] 3613(c)(Fair Housing Act); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974) (Title (71) 42 U.S.C. [section] 6972(e) (Resource Conservation and Recovery Act); see also Fallowfield Dev. Corp. v. St......
  • MURPHY'S LAW: FOR ATTORNEY'S FEES SHIFTING UNDER THE PLRA, EVERYTHING THAT COULD GO WRONG HAS GONE WRONG.
    • United States
    • Case Western Reserve Law Review Vol. 72 Nbr. 3, March 2022
    • March 22, 2022
    ...for determining the 'reasonableness' of a particular fee award. [The dominant] method ... involved consideration of 12 factors."). (125.) 488 F.2d 714 (126.) Delaware Valley, 478 U.S. at 562 (first citing H.R. REP. NO. 94-1558, at 8 (1976); and then citing S. REP. NO. 94-1011, at 6 (1976)).......

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