Johnson v. University College of University of Alabama in Birmingham

• Citation: 706 F.2d 1205
• Decision Date: 10 June 1983
• Docket Number: No. 81-7860,81-7860
• Parties: 31 Fair Empl.Prac.Cas. 1744, 77 A.L.R.Fed. 259, 32 Empl. Prac. Dec. P 33,732 Martha JOHNSON and Delores J. Ceballos, etc., Plaintiffs-Appellants, v. UNIVERSITY COLLEGE OF the UNIVERSITY OF ALABAMA IN BIRMINGHAM; George W. Campbell, etc. et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1205

706 F.2d 1205

31 Fair Empl.Prac.Cas. 1744, 77 A.L.R.Fed. 259,

32 Empl. Prac. Dec. P 33,732

Martha JOHNSON and Delores J. Ceballos, etc., Plaintiffs-Appellants, v. UNIVERSITY COLLEGE OF the UNIVERSITY OF ALABAMA IN

BIRMINGHAM; George W. Campbell, etc. et al.,

Defendants-Appellees.

No. 81-7860.

United States Court of Appeals, Eleventh Circuit.

June 10, 1983.

Susan W. Reeves, Edward Still, Birmingham, Ala., Blacksher, Menefee & Stein, James U. Blacksher, Larry T. Menefee, Mobile, Ala., for plaintiffs-appellants.

Bradley, Arant, Rose & White, James P. Alexander, Linda Friedman, Ms. Ian Leonard, Univ. of Ala. in B'ham, Birmingham, Ala., for defendants-appellees.

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

Before RONEY and CLARK, Circuit Judges, and TUTTLE, Senior Judge.

RONEY, Circuit Judge:

This is another in a series of civil rights actions in which the appeal concerns solely the award of attorney's fees under Title VII, 42 U.S.C.A. Sec. 2000e-5(k), and the Civil Rights Attorneys Fees Awards Act of 1976, 42 U.S.C.A. Sec. 1988, not the merits of the lawsuit. Two weeks prior to the scheduled trial in this employment discrimination class action, the named parties filed a proposed consent decree which the district court accepted. The consent decree acknowledged defendants' obligation to pay plaintiffs' fees, and pledged that the parties would try to negotiate the proper amount. When these efforts proved futile, plaintiffs, in accord with the decree, filed a motion for fees with the court. Discovery, motions to compel and quash, a two-day hearing, and a fight over the terms of an offer of judgment ensued. Finally, nearly one year after the consent decree was filed, the district court awarded interim fees of $50,000. A year later in its final disposition of the fee issue, it awarded an additional $8,183.67, bringing the total award to $58,183.67, an amount which reflected reductions in the hourly rate, hours worked, and litigation expenses that plaintiffs' counsel claimed. Pursuant to Fed.R.Civ.P. 68, the district court assessed costs against plaintiffs because the fee award was less than the amount defendants offered prior to the fee hearing.

Plaintiffs have appealed both the amount of the attorney's fees award and the assessment of costs. We reverse and remand for reconsideration of both. The ensuing discussion considers seriatim the numerous issues raised by this appeal.

I. Denial of Fees for Time Spent Litigating Fees

In completely denying plaintiffs' fees for time spent litigating the fee question after the consent decree, the district court followed two rationales. First, the court construed the consent decree, which provided that "[i]n determining attorney's fees the court will be guided by principles outlined by the Fifth Circuit [in] Johnson v. Georgia Highway Express, [Inc.], 488 F.2d 714 ( [5th Cir.] 1974)," as precluding fees for time litigating fees because Johnson did not contemplate the award of such fees. This is simply a misreading of Johnson. That case concerned the factors a court should consider in determining the proper amount of an award. It did not concern the stages of litigation for which any attorney's fees may be awarded. Thus the consent decree's reference to Johnson, we believe, had nothing to do with the propriety of awarding fees for litigating over fees. Such an award is authorized by the case law, Johnson v. Mississippi, 606 F.2d 635, 637-39 (5th Cir.1979), and plaintiffs did not waive this right.

The second ground given by the district court for denying any award of fees for time spent litigating the fees question, in essence that plaintiffs were completely to blame for the additional litigation, is not supported by the record or the law. Defendants did not make an offer of judgment until nearly eight months after the consent decree became final. Plaintiffs were entitled to a hearing to resolve any disputed issue of fact. King v. McCord, 621 F.2d 205, 206 (5th Cir.1980). Assuming their claim was in good faith, which cannot be denied on this record, they cannot be penalized for exercising that right.

II. Reduction by One-Third of "Reconstructed" Time

Pursuant to interrogatories and the district court's request for substantiation of time incurred, plaintiffs' counsel submitted contemporaneous billing records for the vast majority of hours worked. Attorney Reeves, however, did not have contemporaneous records for the 100 hours she claimed to have worked. According to her testimony at the hearing, she reached the 100-hour figure based on diary entries and work product found in her files. The district court cut the hours by one-third for failure to maintain contemporaneous records.

The district court did not have to accept Reeves' claim of 100 hours as true, just as it would not have had to do so if the assertion had been supported by contemporaneous billing records. However, while the burden to substantiate a fee is on plaintiff's counsel, see Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1371 (5th Cir.1979), Reeves' testimony and secondary documentation supports her claim. The lack of contemporaneous records does not justify an automatic reduction in the hours claimed. See Harkless v. Sweeny Independent School District, 608 F.2d 594, 597 (5th Cir.1979) (affirming award despite absence of time records).

III. Deletion of Time Spent by Out-of-Town Counsel Due to "Unnecessary Duplication"

The district court excluded some of the work time spent by defense counsel based on a finding "of unnecessary duplication of effort and time due to the association of the two attorneys from Mobile." The court also deleted all of the time incurred by the two attorneys traveling to Birmingham, the site of the trial litigation. The present limited finding and the existing record does not sustain this reduction. The district court has failed to specify any instances of duplicative effort, so it cannot be determined whether any reduction for duplication is warranted. See Tasby v Estes, 651 F.2d 287, 289-90 (5th Cir.1981) (quoting Northcross v. Board of Education, 611 F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980)).

The retaining of multiple attorneys in a significant, lengthy employment discrimination case such as this one is understandable and not a ground for reducing the hours claimed. The use in involved litigation of a team of attorneys who divide up the work is common today for both plaintiff and defense work. While Johnson recognizes the possibility of unnecessary duplication for which double compensation should not be granted, 488 F.2d at 717, a reduction is warranted only if the attorneys are unreasonably doing the same work. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation. Ward v. Kelly, 515 F.2d 908, 912 n. 11 (5th Cir.1975). See also Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1188 (11th Cir.1983).

Since plaintiffs had the right to retain more than one attorney, the exclusion of out-of-town counsel's travel time is proper only if it was unreasonable not to hire qualified local counsel. Cf. Dowdell, 698 F.2d at 1192 (travel expenses may be recoverable); McPherson v. School District # 186, 465 F.Supp. 749, 758 (S.D.Ill.1978) (compensating out-of-town counsel for travel time to litigation site but at lower rate). We note that "civil rights litigants may not be charged with selecting the nearest and cheapest attorney." Dowdell, 698 F.2d at 1192.

IV. Exclusion of Evidence (Restriction on Discovery) of Defendants' Fees and Expenses in this Case

Pursuant to a defense motion, the district court quashed a subpoena sought by plaintiffs requiring the defendants to produce all records showing the hours expended by counsel, expenses incurred, and fees paid. The court reasoned, among other things, that this defense information was irrelevant to the reasonable fees and hours of plaintiffs' counsel. The court reaffirmed its position at the evidentiary hearing, sustaining a defense objection to questions concerning the fees charged in this case by defense counsel. The court also refused to admit into evidence, except in regard to expenses, the billing statements of defense counsel in this case, which plaintiffs had obtained in related state litigation. Without objection, however, plaintiffs did inquire about the hourly rate billed by a lead defense counsel, John J. Coleman, Jr.

Without suggesting that it would have been error to admit such evidence, we cannot hold that the district court abused its discretion in quashing the subpoena or in sustaining the objection at the hearing in this case. This Court has questioned the relevance of the number of hours spent by defense counsel to a determination of the reasonable fee for plaintiffs' attorneys. Harkless v. Sweeny Independent School District, 608 F.2d at 598. The amount of hours that is needed by one side to prepare adequately may differ substantially from that for opposing counsel, since the nature of the work may vary dramatically. The case may have far greater precedential value to one side than the other. Mirabal v. General Motors Acceptance Corp., 576 F.2d 729, 731 (7th Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 699 (1978). With respect to the hourly rate, one side may employ far more experienced counsel. Of course, a district court might properly determine in a given case that these concerns merely go to the weight of the evidence, not to its admissibility or discoverability. See, e.g., Stastny v. Southern Bell Telephone & Telegraph Co., 458 F.Supp. 314, 318 (W.D.N.C.1978) (deeming fees and expenses of defense counsel relevant to determining reasonable award for plaintiffs' counsel), rev'd in part on other grounds, 628 F.2d 267 (4th Cir.1980). But we cannot...