Johnson v. Georgia Highway Express, Inc.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: THORNBERRY, AINSWORTH and RONEY, Circuit
• Citation: Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 7 FEP Cases 1 (5th Cir. 1974)
• Decision Date: 21 January 1974
• Docket Number: No. 72-3294.,72-3294.
• Parties: Richard JOHNSON, Jr., and Frank Hill, Plaintiffs-Appellants-Cross Appellees, v. GEORGIA HIGHWAY EXPRESS, INC., Defendant-Appellee-Cross Appellant.

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.

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 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 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 the non-experienced attorneys representing plaintiff. Yet, the award was supposedly considered in light of the Atlanta community practices. The District Court order leaves unexplained the disallowance of between 239.5 to 299.5 of the 659.5 hours claimed. Whether they reflected duplicated effort among the attorneys, improperly charged hours, time deemed unessential, or were merely overlooked is not answered in the order.

It is for these reasons that we must remand to the District Court for reconsideration in light of the following guidelines:

(1) The time and labor required. Although hours claimed or spent on a case should not be the sole basis for determining a fee, Electronics Capital Corp. v. Sheperd, 439 F.2d 692 (5th Cir. 1971), they are a necessary ingredient to be considered. The trial judge should weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities. If more than one attorney is involved, the possibility of duplication of effort along with the proper utilization of time should be scrutinized. The time of two or three lawyers in a courtroom or conference when one would do, may obviously be discounted. It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.

(2) The novelty and difficulty of the questions. Cases of first impression generally require more time and effort on the attorney's part. Although this greater expenditure of time in research and preparation is an investment by counsel in obtaining knowledge which...