Oliver v. Kalamazoo Bd. of Ed., 77-1038
Decision Date | 25 May 1978 |
Docket Number | No. 77-1038,77-1038 |
Citation | 576 F.2d 714 |
Parties | Michelle OLIVER et al., and the National Association for the Advancement of Colored People, Kalamazoo Branch, Plaintiffs-Appellees, v. KALAMAZOO BOARD OF EDUCATION et al., Defendants, State Board of Education and John W. Porter, Superintendent of Public Instruction, Defendants-Appellants. |
Court | U.S. Court of Appeals — Sixth Circuit |
Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Sol. Gen., Gerald F. Young, George L. McCargar, Jr., Asst. Attys. Gen., Lansing, Mich., for defendants-appellants.
Phillip L. Hummer, Kalamazoo, Mich., Richard A. Enslen, Howard & Howard, Kalamazoo, Mich., Nathaniel R. Jones, General Counsel, N.A.A.C.P., New York City, Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Armand Derfner, Epstein, McClain & Derfner, Charleston, S. C., for plaintiffs-appellees.
Before WEICK, CELEBREZZE and PECK, Circuit Judges.
This is an appeal by the Michigan State Board of Education and Superintendent of Public Instruction from an order of the district court that they pay plaintiffs' attorneys' fees in the amount of $357,029.50 arising from the litigation required to desegregate the Kalamazoo, Michigan, public schools. 1 The $357,029.50 amount was calculated by subtracting $150,037.50, paid by the Kalamazoo Board of Education pursuant to a settlement, from $507,067, the total attorneys' fees due according to the district court's figuring. The $507,067 amount was calculated by multiplying the number of hours 2 spent by each of the plaintiffs' attorneys by the hourly rate found to be reasonable 3 for each respective attorney and by further multiplying the amounts so calculated by a factor of two for the four principal plaintiffs' attorneys. 4 Without using this multiplier for these four attorneys, the total would have been $283,925, rather than $507,067. The multiplier was used at plaintiffs' request as a bonus to compensate the attorneys for vindicating important but often unpopular constitutional rights. The district court analogized to antitrust cases in which successful plaintiffs' attorneys often recover their normal hourly rate multiplied by some factor. The district court also ordered appellants to pay $15,000 for the volunteer paralegal services of one of the plaintiffs in the law suit.
We find that the district court abused its discretion in employing the multiplier to increase the attorneys' fees award. The applicable statute, 20 U.S.C. § 1617, only provides for the recovery of "a reasonable attorney's fee." 5 The use of the multiplier was without statutory authority. The antitrust cases relied upon by the district court are inapposite since there is usually a large monetary recovery in those cases. Plaintiffs here have cited no cases approving the use of a multiplier in school desegregation cases which seek injunctive relief. Attorneys' fees awards should be high enough to attract competent counsel yet not so high as to provide a windfall for them. Multiplying the number of hours properly spent times a reasonable hourly rate is sufficient to serve this goal.
The district court also abused its discretion in ordering appellants to pay $15,000 for the volunteer paralegal services of one of the plaintiffs. Any amount awarded to her should come out of the overall attorneys' fees award.
We do not address the issue of what expenses may be recovered from appellants since that amount has not yet been finally determined by the district court.
We hold that plaintiffs may recover a total attorneys' fees award of $283,925. The school board's settlement payment of $150,037.50 should be subtracted, leaving a total liability for appellants of $133,887.50.
We have reviewed the other issues raised by appellants and find them to be without merit.
The judgment of the district court is reversed and the cause is remanded for further proceedings consistent with this opinion. Each party will pay its own costs on appeal.
The award of attorneys' fees to counsel for the plaintiffs, assessed against the State Board of Education and John W. Porter, Superintendent of Public Instruction (State), which award we have found to be excessive, results in an average of $126.73 per hour on a total involvement of 4001 hours spent by the attorneys. 1
The attorneys for the plaintiffs would be compensated, if the award made by the District Judge is upheld, as follows:
Jones 115 hours at $180 per hour $ 20,700 Lucas 894 " 108 " 96,552. Hummer 1454 " 135 " 196,290. Enslen 1396 " 135 " 188,527. Weiner 132 " 35 " 4,620. Kemp 9 " 40 " 360. Geary 0.5 " 35 " 17.50 ----------- Total $507,066.50
The District Court had approved settlement of compensation at a rate of $50 an hour to be paid by the primary wrongdoer, Kalamazoo Board of Education (KBE), to plaintiffs' attorneys, and later assessed hourly rates of $108, $135, and $180 against the State for the same type of services. 2 This is difficult to understand. The attorneys for KBE had billed, and were paid by KBE, for their services at the rate of only $40 an hour.
The Court was obviously aware of and stated that "this fee award will draw upon public funds at a time when financial resources are especially dear." (A. 132). But the Court took that fact into account only in determining the multiplier, as the Court undoubtedly would have increased the multiplier if public funds had not been involved.
Under the Court's order, plaintiffs' counsel would receive twice the fair and reasonable value of their services, all of which is payable out of public funds. These attorneys would also receive more than twice the amount which they have received from the settlement with KBE, which settlement was approved by order of the Court. In my opinion these awards are not only excessive, but are unconscionable as well.
It should be noted further that in the present case none of counsel for the plaintiffs who were awarded the large sums of money, related the number of hours spent by him in the performance of specific services, such as time spent in office work, time spent in court, or time spent traveling.
In making the award the District Court dealt only with the total number of hours involved. The Court did not state the nature of the work performed during those hours, indicating only that it had observed plaintiffs' attorneys and knew about their input, as well as their staffs. I think that it is incumbent upon a court, when it is awarding large sums of the public's money for attorneys' fees, to make a detailed analysis of how the attorneys' time was spent. E. g., Keyes v. School Dist. No. 1, 439 F.Supp. 393 (D.Colo.1977). This analysis is necessary in order to provide a record in case appellate review becomes necessary.
Furthermore, I do not believe that attorneys should receive the same hourly rate, as was allowed here, for every type of service which they perform. Thus, for example, time spent traveling should not be compensated at the same hourly rate as time spent in court, or time spent in the office looking up law, or talking on the telephone.
Also, it is not understandable why the same services rendered by plaintiffs' counsel in the case should be compensated seventy-five percent by the State, and only twenty-five percent by KBE, which, as before stated, was the primary wrongdoer in the case. The Court's ruling as to assessing seventy-five percent against the State conflicted with a prior ruling which it made in a pretrial conference, conducted on July 7, 1975, where the Court stated:
Thus the Judge waited, as he stated some judges do, until the end of the case, to use his own words, and then "socked it to" the State by ordering it to pay 75% of the attorneys' fees, although he had ruled at the pretrial conference that only 25% would be assessed against...
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