Cheatwood v. S. Central Bell Telephone & Telegraph, 303 F. Supp. 754 (M.D.Ala) Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970) Lea v. Cone Mills Corp. 438 F.2d 86 (4th Cir. 1971) Miller v. Amusement Enterprises, 426 F.2d 534 (5th Cir. 1970) Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) Papermakers & Paperworkers, Local 18, 301 F.Supp. 905 (E.D. La 1969) Quarles v. Philip Morris, Inc., 297 F.Supp. 505 (E.D. Va 1968) Richards v. Griffiths Mills, 300 F. Supp. 338 (D. Oregon 1969) Robinson v. Lorillard Corp. 444 F.2d 791 (4th Cir. 1971) Sanders v. Russell 401 F.2d 341 (5th Cir. 1968) Weeks v. Southern Bell Telephone & Telegraph Co., 277 F. Supp. 117 (1967, D.C. Ga) reversed and remanded 408 F.2d 228 STATEMENT OF THE ISSUE The issue in this case is whether the District Court's orders of July 1 and December 1, 1971, directing the defendant to pay certain sums to Mrs. Sylvia Roberts (a) failed to comply with the statutory purpose of section 706 (k) of the Civil Rights Act of 1964; (b) failed to award a "reasonable" attorney's fee to Mrs. Roberts in light of the work she accomplished in this case, and (c) should be amended to increase the attorney's fee to at least $40 per hour plus $6,000.00 for the result accomplished. STATEMENT OF THE CASE The defandant, Southern Bell Telephone and Telegraph Company, in 1966 denied a job as switchman to Mrs. Lorena W. Weeks, solely because of her sex. Mrs. Weeks, through court-appointed counsel, filed Civil Action No. 443 against the company in the U.S. District Court, Southern District of Georgia, Swainsboro Division, charging violation of Title VII of the Civil Rights Act of 1964 and seeking both the job and back pay. The District Court dismissed her suit in November 1967. 277 F. Supp. 117. Her court appointed lawyer declined to handle the appeal. Lacking funds to appeal, Mrs. Weeks requested aid from the National Organization for Women, and with its help retained Mrs. Sylvia Roberts to work on her case. Mrs. Roberts entered her appearance in February 1968 and continuously represnted Mrs. Weeks during the next four years. This Court reversed the District Court in March 1969 (408 F.2d 228) and upon remand, Mrs. Roberts represented Mrs. Weeks in the District Court proceedings which eventually required the company to employ Mrs. Weeks in the job she sought and pay her back pay and related claims totalling over $31,490.00. Mrs. Roberts claimed counsel fees at $40 per hour for the 585 hours she worked in this case, plus $6,000 as a fixed fee for obtaining the important and far-reaching interpretation of Title VII which will greatly aid thousands of victims of discrimination, i.e. a total counsel fee of $29,400. In its orders of July 1 and December 1, 1971, the District Court directed the defendant to pay to Mrs. Roberts the following sums: Counsel fees-$15,000.00, Expenses$1,546.34.1 The District Court's award of counsel fees is a lump sum, and does not indicate its relationship to compensation per hour or to the fixed fee claimed by Mrs. Roberts. If the award included the $6,000. fixed fee, the balance of $9,000. is equivalent to not quite $15.40 per hour. If the award does not include that fixed fee, the compensation for her entire work would be equivalent to not quite $25.50 per hour. ARGUMENT There is no question here that Mrs. Roberts, as attorney for the prevailing party, is entitled to a reasonable attorney's fee as part of the court costs assessed against the defendant. Section 706 (k) of the Civil Rights Act of 1964, 42 U.S. Code 2000e-5 (k), states: "In any action or proceeding under this title, the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ." The legislative history shows that this provision was added to the bill to promote the policy of encouraging the vindication of meritorious claims, 1 The expenses item is not questioned in this appeal. particularly by persons of limited means. Statement of Senator Humphrey, 110 Cong. Rec. 12724. Title VII authorizes the Equal Employment Opportunity Commission to try to abate employment discrimination, but only by means of concilition and persuasion. Title VII also authorizes the Attorney General to file suits to abate discrimination in employment, but only in "pattern" and "practice" circumstances and within the limits of the Justice Department's personnel capability. Thus, the basic enforcement mechanism provided in Title VII is by court suits brought by private persons who have been subjected to discrimination in employment on the basis of race, color, religion, sex, or national origin. Most job holders and job seekers subjected to such discrimination do not have much money to hire skilled lawyers to vindicate their rights. It is therefore apparent that the provision authorizing the payment of counsel fees to attorneys who successfully handle their cases would substantially encourage, and in many cases be crucial to their ability to obtain adequate legal assistance. Such attorneys are, in essence, acting as "private attorneys general furthering the national policy against discrimination" and when they prevail will ordinarily be awarded an attorney's fee. Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968); Sanders v. Russell, 401 F. 2d 241, 255, (5th Cir. (1968); Miller v. Amusement Enterprises, 426 F. 2d 534, 536-37 (5th Cir. 1970); Robinson v. Lorilliard Corp. 444 F. 2d 791 (4th Cir. 1971); Lea v. Cone Mills Corp. 438 F. 2d 86 (4th Cir. 1971); Quarles v. Phillip Morris, Inc. 297 F. Supp 505, 521 (E.D. Va 1968); Clark v. American Marine Corp., 304 F. Supp 603, 611 (E.D. La 1969); Cheatwood v. South Central Bell Tel & Tel Co. 303 F. Supp 754, 760 (M.D. Ala 1969); Richards v. Griffiths Mills 300 F. Supp 338, 341 (D. Oregon 1969); United States v. Papermakers and Paperworkers, Local, 189, 301 F. Supp 905, 925 (E.D. La 1969). The issue before this Court, therefore, is whether the attorneyt's fee awarded to Mrs. Roberts is a "reasonable" attorney's fee within the contemplation of Section 706(k) of the 1964 Civil Rights Act and in light of the efforts, results and other factors of Mrs. Roberts work in this case. A broad guideline for ascertaining what is a "reasonable attorney's fee" is provided in the Code of Professional Responsibility adopted by the American Bar Association in 1969.2 Disciplinary Rule 2-106(b) states, in part: ... Factors to be considered as guides in determining the reasonableness of a fee include the following: "(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. "(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. "(3) the fee customarily charged in the locality for similar legal services. "(4) the amount involved and the results obtained. "(5) the time limitations imposed by the client or by the circumstances. “(6) the nature and length of the professional relationship with the client. "(7) the experience, reputation, and ability of the lawyer or lawyers performing the services. "(8) whether the fee is fixed or contingent." The District Court's Opinion and Order of July 1, 1971, shows that it considered only some of these factors. For example, of the factors mentioned in paragraph (1) above, the District Court largely restricted itself to considering testimony by lawyers about the reasonable fee for the work on the appeal. Lawyers from Atlanta and Louisiana cited $40. per hour as a reasonable fee, whereas two Savannah lawyers cited figures from $2,500. to $6,000. for the total appellate work. Neither of the Savannah lawyers cited any basis for their figures. Compare Clark v. American Marine Corp. 320 F. Supp 709 (E.D. La. 1970) which awarded attorneys' fees of $20,000 for 580 hours of work, i.e., almost $34.50 per hour. Although the District Court stated that it considered Mrs. Roberts' briefs and her itemization of activities, and likewise the "extent of the difficulty of Many jurisdictions have, by Court Rule, decreed that the ABA's Code of Professional Responsibility as amended by the Court, "shall be the standard governing the practice of law" in that jurisdiction. e.g. Rule X, Rules of District of Columbia Court of Appeals governing the bar of the District of Columbia, effective April 1, 1972. the appeal and the subsequent efforts on remand", the District Court neither cited nor discussed the nature of the legal issues, the novelty of the law and facts involved in this rapidly developing field of civil rights litigation, the benefits to the numerous thousands of men and women whose employment would be affected by the precedent achieved in this litigation, or the importance of thee public policy vindicated by the litigation. Nor did the Court refer to factors such as are mentioned in paragraph (2) that Mrs. Roberts' fight against a large employer might adversely affect her ability to secure legal business from large employers; or in paragraph (5)-the deadlines she had to meet; or paragraph (6)—the four years she devoted to the service of her client; or paragraph (7)—the extensive experience, fine reputation, and proven ability she showed in the handling of this case. Oddly, although the District Court received testimony from both Georgia and Louisiana lawyers that the fee customarily charged in the locality for similar services was $40 per hour, it chose to disregard such testimony in fixing the fee at a substantially lesser level. Thus, it can harly be said that the District Court gave much consideration to paragraph (3) of the ABA Code mentioned above. Paragraph (8) of the ABA Code relates to whether the fee is fixed or contingent. The District Court noted that the Act authorizes an attorney's fee "only to the prevailing party" and concluded: ". . . hence, the fee has some of the attributes of a contingent fee arrangement." This cryptic conclusion is puzz ing. If th Court meant that the fee should be measured by the amount of the client's recovery, as is generally true in contingent fee arrangements customary in ordinary tort actions, and arrived at $15,000 as being almost 50 percent of the monies received by Mrs. Weeks, we submit that the District Court totally misconstrued the purpose of paragraph (8), and erroneously misapplied it to reduce the amount of Mrs. Roberts' fee. The contingent nature of a fee is a reason for awarding a larger, not a smaller, fee to a lawyer. In any event, because of the nature and widespread consequences of civil rights litigation, we submit that there is hardly any case, and certainly this is not such a case, in which the attorney's fee should be measured by, or not related to, the amount of money recovered by the client. Most importantly, the District Court ignored the very purpose of Section 706 (k) of the 1964 Civil Rights Act-namely, to encourage the successful prosecution of litigation against the discriminations outlawed by Title VII. If lawyers know they can earn a reasonable compensation in the difficult kind of litigation typil in civil rights suits, more good lawyers will become experts in this field a handle such cases with greater likelihood of success. If employers who disc mnate know that they will be sued, probably lose, and have to pay out s. stantial money, it is far more likely that the Equal Employment Opportunity Commission will be able to conciliate more of its cases, and thus reduce the load on the courts. Indeed, the probability of successful litigation against discriminating employers will do more to encourage employers to stop discriminating than will any panegyrics of good intentions (whether sermons, speeches, statutes, dictums, or other exhortations) which lack enforcement. In short, the "reasonable attorney's fee" contemplated by Section 706(k) must be one which fully compensates the attorney not only for his time and expense, but also reflects the high degree of skill needed in handling civil rights cases, the importance of the national policy vindicated by the attorny's legal work, the widespread effect of the results produced, and the purpose of encouraging the abatement of the invidious discrimination outlawed by Title VII. It is "the duty of the courts to make sure the Act works". Culpepper v. Reynolds Metals Co., 421 F. 2d 888, 891 (CA 5, 1970). One of the ways to make the Act work is to apply section 706 (k) liberally to insure that victims of discrimination will have lawyers to prosecute their meritorious claims. Thus, the "reasonable attorney's fee" must be one which is fully competitive with fees the attorney could earn in cases of equal difficulty, novelty, and (in some places) unpopularity. Then, and only then, will the lawyers for the poor and disadvantaged be able to prepare and litigate as thoroughly as the lawyers representing large employers. The evidence in this case shows that Mrs. Roberts met and handled with great ability new and difficult questions involving the first application of Title VII in a sex discrimination suit. She undertook her work in the face of an adverse decision in the District Court, thus having a greater burden than would be entailed at the level of an uncommitted court of first instance. Civil rights litigation is complex and difficult, and demands a wide variety of skills. The precedents were scanty. The necessary research on the legislative purpose was handicapped by the spotty legislative history of Title VII and inadequate hearing records. The litigation would affect the lives of untold numbers of middle income working women. The search for analogies in the law required re-examination of the whole nationwide bulk of so-called "protective" laws on women. This was, indeed, a "David-versus-Goliath" encounter, a single woman attorney subsisting in her own private practice but strengthened by her sense of justice, against an array of attorneys in powerful and prestigious law firms in the command and employ of one of the largest corporations of the South. Furthermore, it was apparent, both to Mrs. Roberts and Mrs. Weeks, that the requirements of prosecuting this vigorously contested case over the almost 4 years since Mrs. Roberts began her work, would preclude Mrs. Roberts, a capable attorney of years of experience and high standing in her profession, from other employment and particularly involve forfeiting opportunity to have large corporate employers as clients. Mrs. Roberts' claim of $40 per hour was based on the fees customarily charged in Georgia, the forum of the suit, and in Louisiana, the site of her practice, and the propriety of such charge was substantiated by expert witnesses. Indeed, we submit that the rate should have been greater than that customarily charged by attorneys, because her compensation was contingent on winning, her work involved novel and complex issues presented for the first time to an appellate court in the context of a broad based national statute, and her efforts resulted in a landmark ruling by this Court that will affect thousands of persons. This Court said, in Miller v. Amusement Enterprises, 426 F. 2d 534 (1970): "Congress did not intend that vindication of statutorily guaranteed rights would depend on the rare likelihood of economic resources in the private party (or class members) or the availability of legal assistance from charity-individual, collective, or organized. An enactment aimed at legislatively enhancing human rights and the dignity of man through equality of treatment would hardly be served by compelling victims to seek out charitable help." We urge that a "reasonable attorney's fee' in this case requires an award of at least the amount claimed by Mrs. Roberts, to-wit: $40 per hour, plus $6,000 fixed fee. Respectfully submitted. U.S. Court of Appeals for the Fifth Circuit No. 72-1075 MRS. LORENA WEEKS, PLAINTIFF-APPELLANT v. SOUTHERN BELL TELEPHONE & TELEGRAPH Co., DEFENDANT-APPELLEE Appeal from the U.S. District Court for the Southern District of Georgia— Brief Amicus Curiae of The Western Region, NAACP, The MexicanAmerican Legal Defense and Educational Fund, Inc., and The United Native Americans, Inc. Table of Authorities TABLE OF CONTENTS Statement of the Case and Summary of Argument Argument I. The order of the district court awards inadequate and unreasonable attorney's fees, thwarts the purpose of Title VII of the Civil Rights Act and should be reversed A. Purpose of the Attorney's fee provision B. The order below is unreasonable and inadequate C. Fees should be awarded in accordance with the adequate counsel for the public interest plan Conclusion Cases: TABLE OF AUTHORITIES Bowe v. Colgate-Palmolive Co., 416 F. 2d 711 (7th Cir. 1969) Columbian Nat. Life Ins. Co., v. Keyes, 138 F. 2d 382 (8th Cir. 1943), cert. den. 321 U.S. 765 (1944). First Nat. Bank of Fort Worth v. United States, 301 F. Supp. 667 Harris v. Chicago Great W. Ry., 197 F. 2d 829 (7th Cir. 1952) Miller v. Amusement Enterprises, Inc., 426 F. 2d 534 (5th Cir. 1970). Rosenfeld v. Southern Pacific Company, Civ. No. 67-1377-F, Find- Silver v. Rosenberg, 139 F. 2d 1020 (2d Cir. 1944). Weeks v. Southern Bell Tel. & Tel. Co., 408 F. 2d 228 (5th Cir. 1969). Statutes: 42 U.S.C. § 2000e et seq. 42 U.S.C. § 2000e-5 (k) Miscellaneous: Hornstein, Legal Therapeutics: The "Salvage" Factor in Counsel Fee Awards, 69 Harv. L. Rev. 658 (1956). Walker, Title VII: Complaint and Enforcement Procedures and Relief and Remedies, 7 B.C. Ind & Com. L. Rev. 495 (1966). STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT The award of attorney's fees to the prevailing party in litigation brought under the Civil Rights Act of 1964 is intended to encourage individuals injured by the prohibited discrimination to seek judicial relief. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968).1 1 Newman was a case brought under Title II of the 1964 Civil Rights Act, claiming discrimination in public accommodation because of race. It's reasoning has been extended to cases brought under Title VII, see. Jenkins v. United Gas. Corp., 400 F.2d 28 (5th Cir. 1968), and cases involving sex discrimination in employment. See, Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969). |