Vaughn v. Westinghouse Elec. Corp., LR-C-74-215.

• Decision Date: 25 November 1981
• Docket Number: No. LR-C-74-215.,LR-C-74-215.
• Citation: 526 F. Supp. 1165
• Parties: Christine VAUGHN, Plaintiff, v. WESTINGHOUSE ELECTRIC CORP., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

526 F. Supp. 1165

Christine VAUGHN, Plaintiff, v. WESTINGHOUSE ELECTRIC CORP., Defendant.

No. LR-C-74-215.

United States District Court, E. D. Arkansas, W. D.

November 25, 1981.

John Walker, Zimmery Crutcher, Jr., Little Rock, Ark., Clyde E. Murphy, New York City, for plaintiff.

James Moore, Tucker Raney, Walter Paulsen, Friday, Eldredge & Clark, Little Rock, Ark., for defendant.

OPINION ON ATTORNEYS' FEES

ARNOLD, Circuit Judge.

On September 30, 1981, this Court filed its opinion on remand, finding that defendant had disqualified the plaintiff Christine Vaughn as a sealex operator in part because of her race. Vaughn v. Westinghouse Electric Corp., 523 F.Supp. 368 (E.D.Ark. 1981). The Court directed counsel for plaintiff to file, on or before October 15, 1981, a memorandum, supported by affidavit, setting forth her position as to back pay and attorneys' fees. Defendant was given until October 30, 1981, to reply. The times for both sides' submissions were subsequently extended, and the last filing was made on November 4, 1981. The Court has already held that plaintiff is entitled to an award of attorneys' fees. The question to be decided is the amount.

I.

Before discussing the fee award, it is appropriate to deal with the question of back pay. The sum of $1,696.25 has already been awarded, representing back pay to and including May 30, 1979. Plaintiff states (Memorandum of Mr. Crutcher, October 14, 1981, p. 2) that "counsel for defendant has agreed to provide ... information" as to back-pay entitlement since that first computation was made. No such information has been provided. The Court is therefore not in a position to make a specific monetary award for back pay that has accrued since May 30, 1979. The judgment will therefore simply award plaintiff $1,696.25, plus interest at the rate of ten per centum per annum from and after May 30, 1979, until payment is made. The judgment will also recite that plaintiff is entitled to recover an additional sum equal to the difference between her actual earnings at Westinghouse, and what she would have earned as a sealex operator. This amount of money will continue to run until plaintiff is reinstated as a sealex operator, or until she is offered reinstatement and refuses it. The fact that the amount of back pay, to a degree, will thus remain open to computation will not impair the finality of this Court's judgment, in my opinion. There will almost always be some such loose end in cases awarding back pay.¹

II.

Defendant first asserts that only time spent by plaintiff's counsel after remand from the Supreme Court and the Court of Appeals should be considered. It claims that three categories of services, for various reasons, cannot now be considered for compensation. The contested categories are (1) services rendered by counsel for plaintiff before this Court's first judgment was entered in 1979; (2) services rendered by counsel for plaintiff-appellee on the defendant's unsuccessful appeal to the Court of Appeals; and (3) services rendered by counsel for plaintiff-respondent in attempting to defeat defendant's partially successful petition for certiorari in the Supreme Court. For the reasons that follow, this Court is of the opinion that all of these contested categories of legal services remain compensable.

A.

Westinghouse first points out that counsel for plaintiff did not ask this Court for an award of attorneys' fees for services rendered in this Court until many months had elapsed after the entry of judgment in May of 1979. In fact, no request for fees, other than a pro forma prayer for relief in the complaint, was made until after this Court's judgment had been affirmed by the Court of Appeals. At that point defendant objected to any award, asserting that the request was untimely because (1) it had not been made within ten days of the entry of judgment, as required by Fed.R.Civ.P. 59 for motions to alter or amend a judgment, and (2) it was not accompanied by any statement of reasons sufficient to qualify it for extraordinary relief under Fed.R.Civ.P. 60(b). Counsel for plaintiff countered with an affidavit to the effect that one of this Court's law clerks had advised him that it was all right to wait to file his request for an allowance of fees. The law clerk involved filed his own affidavit, stating that no such advice had been given, whereupon this Court, feeling that it would give at least the appearance of impropriety for it to sit in judgment on the credibility of one of its own employees, recused itself. The case was then reassigned to another judge for a ruling on the then-pending question of attorneys' fees. In the meantime, however, defendant was prosecuting its petition for certiorari in the Supreme Court, which petition was ultimately granted. The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to that Court for reconsideration. The Court of Appeals, in turn, as recounted in this Court's previous opinion on remand, remanded the case to this Court. At that point the undersigned judge took charge of the case again, believing that the timeliness issue had become moot, thus removing any necessity for me to decide whether to take my law clerk's word against counsel's.

The Court remains persuaded that the timeliness issue asserted by defendant is no longer in the case. The Supreme Court has vacated the judgment of the Court of Appeals affirming this Court's original judgment, and the order of the Court of Appeals in effect does the same thing to this Court's May, 1979 decision. Thus, there will be no final judgment until this Court again enters judgment as a result of the proceedings on remand. Even if defendant were right in its contention that the request for attorneys' fees must be made within the time prescribed in Rule 59, the request in the instant case, which has been made before the entry of judgment on remand, would not be untimely. In addition, the law in this Circuit has now become clear that the Rule 59 ten-day time limit does not apply to requests for attorneys' fees in this kind of case. In Obin v. District No. 9 of the International Association of Machinists and Aerospace Workers, 651 F.2d 574 (8th Cir. 1981), the Court of Appeals, disagreeing with the First Circuit's ruling in White v. New Hampshire Department of Employment Security, 629 F.2d 697 (1st Cir. 1980), cert. granted, 451 U.S. 982, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981), held that attorneys' fees are allowed as part of the award of costs to a prevailing party. Accordingly, the rule in this Circuit is that the Rule 59 time limit does not apply to such requests, and that, in fact, there is no fixed time limit on an application for an award of attorneys' fees. This Court is bound by Obin. Defendant's position that this Court should not at this time consider an award of fees for services rendered before its first judgment was entered must therefore be rejected.

B.

The next category of fees contested relates to services rendered on the appeal from this Court to the Court of Appeals. The opinion of the Court of Appeals does not mention the question of fees, and the mandate makes an allowance of costs without referring to the subject. Counsel for plaintiff claim that they asked for fees in their brief in the Court of Appeals. Defendant counters that, if this is true, the opinion of the Court of Appeals, by not mentioning the subject, must be taken to have denied plaintiff's request. Defendant also notes that, in general, it is for the Court of Appeals, not a district court, to award fees for services rendered by counsel on appeal. See Cleverly v. Western Electric Co., 594 F.2d 638 (8th Cir. 1979).

The Court is not persuaded by these arguments. At the time of the Court of Appeals' opinion in this case, there was a good deal of confusion as to the proper procedure and time limits applicable to requests for attorneys' fees. Whether the judges who sat on the appeal ever consciously considered the question of attorneys' fees, cannot now be determined, but it seems extremely unlikely to me that they actually considered the question and decided to make no award. Probably they did not actively consider the issue at all, and counsel for plaintiff can properly be faulted for not specifically bringing the matter to the attention of the Court of Appeals by way of post-judgment affidavit. That is the presently customary and preferred procedure. In the present posture of the case, though, either this Court must make an award of fees for counsel's successful defense of defendant's appeal, or no award will be made, because the Court of Appeals' mandate has long since come down (for the second time), and that Court no longer has jurisdiction of the case. It would not be possible for counsel to apply now to the Court of Appeals for an allowance of fees for services rendered on the appeal during 1979 and 1980. The Court believes that the remedial purposes of Title VII would best be served by considering what award of fees is reasonable and proper, instead of rejecting the request altogether. This treatment of the matter seems more in accord with the spirit of the Obin opinion. The result is one with which this Court is not completely comfortable, but it seems to be the best solution now available.

C.

Finally, defendant asserts that this Court should not award any fees for services performed by counsel for plaintiff in the Supreme Court. In that Court, of course, if there was a prevailing party, it was defendant, because defendant's petition for certiorari was granted, and the judgment of the Court of Appeals was vacated. Defendant points out, in addition, that the mandate of the Supreme Court awards to it $200 in costs, another indication that it was regarded by the Supreme Court as the prevailing party on the petition for certiorari.² Again, this Court must disagree with defendant, though its position is not wholly without merit. The question of who is the...