IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 72-1075 LORENA W. WEEKS, APPELLANT, V8. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, APPELLEE MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF FOR THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE AS AMICUS CURIAE MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE The National Association for the Advancement of Colored People respectfully moves this Court for leave to file the attached brief amicus curiae in this case for the reasons set forth below. INTEREST OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE The National Association for the Advancement of Colored People (hereinafter "NAACP") has historically sought redress through the courts for acts of discrimination based upon race. In the critical areas of employment discrimination, the major vehicle for obtaining relief is Title VII of the Civil Rights Act of 1964. Of vital practical importance in the maintenance of any litigation effort under Title VII is the expectation of the award of attorneys' fees which provides the only hope for attorneys to have a viable practice in representing plaintiffs in employment discrimination suits. As one of the major institutional sources of funding for this important and increasingly specialized work, the NAACP is painfully aware of the small number of qualified attorneys and the limited resources available for bringing such suits. In the suits where they have been directly involved, the NAACP and other civil rights organizations provide sustaining funds for attorneys to carry on the litigation, but have not compensated the attorneys for their time. If these attorneys cannot look to full compensation and sympathetic treatment from the courts in setting attorneys fees, it will inevitably mean that the NAACP's efforts will be curtailed and that the quality and number of attorneys available to do such work will be seriously diminished. The decision of the court below denies full and adequate compensation to a successful Title VII attorney and thereby has an adverse impact on the expectation of all Title VII attorneys of obtaining adequate fees for the performing of this vitally important work in the public interest. Indeed, by granting an attorneys' fee at less than the minimal rates for routine work by attorneys in the geographic areas where the case was heard, that court denigrated the importance of Title VII work and discouraged attorney from representing Title VII plaintiffs. Thus, the decision of the court below is inimical to the public interests in ending employment discrimination, as well as to the interests of persons represented by the NAACP and to the programs for eliminating employment discrimination carried on by the NAACP. QUESTION PRESENTED Whether the District Court's award of counsel fees at a rate less than the prevailing minimum hourly rate for routine legal work was "reasonable" within the meaning of Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (k). STATEMENT OF THE CASE This case arises on appeal by the plaintiff from an Order entered on July 1, 1971, by the United States District Court for the Southern District of Georgia awarding counsel fees amounting to $25.64 per hour to Ms. Sylvia Roberts. The history of this appeal begins on November 9, 1967, with the District Court's entry of judgment in favor of the defendant on the merits of the original law suit. See Weeks v. Southern Bell Telephone & Telegraph Co., 277 F.Supp. 117 (S.D. Ga. 1967). At that time the court-appointed trial counsel requested and received permission to withdraw from the case. Ms. Roberts, graduate of Tulane College of Law, former law clerk to the Chief Justice of the Supreme Court of Louisiana, and skilled attorney of ten years experience in private practice, stepped into the breach. Starting with an unfamiliar record and difficult legal issues of first impression, Ms. Roberts succeeded in establishing the merit of her client's case to this Court's satisfaction. The decision in Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969), reversed the District Court, remanded for the determination of appropriate relief, and instantly became a landmark decision in the interpretation of the "bona fide occupational qualification" exception contained in Section 703 (e) (1), 42 U.S.C. § 2000e-2(e)(1). After the case was remanded, further extensive work was required before a settlement decree was entered awarding Ms. Roberts' client the job she had initially sought as well as $31,497.68 in back pay. In weighing how much to award as counsel fees, the District Court had before it documentation showing that 585 hours had been invested in the case subsequent to withdrawal of the original counsel, that $40 per hour is a reasonable rate of compensation for the type of work involved, that relevant minimum fees set for routine work include $35 for the state of Georgia where the action was brought, $30 for the state of Louisiana, and $35 for the area of East Baton Rouge where Ms. Roberts practices law. Yet despite this evidence and further evidence of Ms. Roberts' qualifications, of the significance and difficulty of the case, and of the importance of the victory to Ms. Weeks, only $15,000 was awarded as counsel fees-a rate of $25.64 per hour. DISCUSSION An award of counsel fecs is not "reasonable” within the meaning of Section 706(k) if it does not compensate the plaintiff's attorney at a rate which substantially exceeds the prevailing hourly rate for routine legal work. Although Title VII of the Civil Rights Act of 1964 makes specific provision for the award of counsel fees in appropriate cases, the statutory language standing alone gives little guidance as to when an award should be made or what amount might be appropriate : In any action or proceeding under this Title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs * * * Section 706(k), 42 U.S.C. § 2000e-5 (k). However, court decisions have constricted this apparently broad discretion. In Newman v. Piggie Park Enterprises, 390 U.S.C. 400 (1968), the Supreme Court, construing virtually identical statutory language, stated that: "one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless circumstances would render such an award unjust." 390 U.S. at 402. Of controlling importance to the case at hand is the reason given by the unanimous Newman Court for its holding: 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 under Title II. 390 U.S. at 402 (footnotes omitted). The lower courts have recognized that the Newman holding controls actions under Title VII as well since the same considerations of public policy favor the institution of suits under that Title. See e.g., Robinson v. Lorillard Corporation, 444 F.2d 791 (4th Cir. 1971); Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971); Clark v. American Marine Corporation, 320 F. Supp. 709 (E.D. La. In the words of the Robinson court, under Title VII, as under Title II of the Civil Rights Act of 1964, attorneys' fees are to be imposed not only to penalize defendants for pursuing frivolous arguments, but to encourage individuals to vindicate the strongly expressed congressional policy against racial discrimination. The appropriate standard, therefore, is that expressed by the Supreme Court in Newman v. Piggie Park Enterprises ***. 444 F.2d at 804. 1970), aff'd per curiam, 437 F.2d 959 (5th Cir. 1971). However, if the ambitious and noble goal of Title VII is to be fulfilled, the provision in Section 706 (k) for award of "reasonable" attorneys' fees can only be construed as requiring that, as a minimum, where an award of fees is appropriate, the amount computed on an hourly basis must substantially exceed the prevailing hourly rate for routine legal work. Any lesser standard will serve as a serious impediment to the enforcement of Title VII, for two reasons. First, potential civil rights litigants have found it difficult to obtain counsel to represent them, because of the novelty and unpopularity of their cause. As the Supreme Court has noted in one case, Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. N.A.A.C.P. v. Button, 371 U.S. 415, 443 (1963). The problem has also previously been recognized by this Court: "It is no overstatement that in Mississippi and the South generally negroes with civil rights claims or defenses have often found securing representation difficult." Sanders v. Russell, 401 F.2d 241, 245 (5th Cir. 1968). The present case, of course, involves discrimination on the basis of sex rather than race. However, Section 706 (k) makes no distinctions among the five prohibited types of discrimination; this case will necessarily be an important precedent for suits against discriminatory practices based on race, color, religion, and national origin as well as sex. Moreover, at least in the absence of a substantial retainer, attorneys have proved no more anxious to champion the rights of women than the rights of blacks. For example, in both Edmonds v. E. I. duPont de Nemours & Co., 315 F. Supp. 523 (D. Kan. 1970), and Petete v. Consolidated Freightways, Inc., 313 F. Supp. 1271 (N.D. Tex. 1970), plaintiffs alleging discrimination on the basis of sex found it impossible to secure counsel even through the District Court in each case concluded that the plaintiff's claim was not lacking in merit. Second, Title VII suits are extremely risky financial ventures for attorneys. This is because they are brought on behalf of working people who do not have the financial resources to hire attorneys and support complex litigation. Thus, attorneys can expect no compensation if they lose and must invest their time and money in the hope that they will be adequately compensated by the court if they succeed. If plaintiffs' attorneys must bear these risks of loss and still receive only minimum or even subminimum fees for their work when they win, there is almost no financial incentive in representing plaintiffs in such litigation. Moreover, in recent years, the growing complexity of Title VII litigation, combined with the employment by defendants of counsel of the highest ability and reputation, has increased the need for a high quality plaintiffs' Title VII bar. Without adequate assurance from the courts that plaintiffs' attorneys can receive compensation commensurate with the levels of skills involved, the hope of developing such a plaintiffs' bar vanishes and with it any chance that the litigation of Title VII suits will be anything but a "David and Goliath" battle. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969). Under these circumstances, a rule assuring an award of no more than the minimum hourly rate for routine work will seriously inhibit the enforcement of Title VII and is not "reasonable" within the meaning of Section 706 (k). An award of less than the minimum is patently inadequate and clearly unreasonable. 2 See also Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971), where this Court recognized that the congressional policy against discrimination embodied in 42 U.S.C. § 1982 requires that the Newman standard be applied in cases arising under that provision despite the absence of any mention of counsel fees in the statute. It is possible and necessary for the Congress to enact legislation which prohibits and provides the means of terminating the most serious types of discrimination. This H.R. 7152, as amended, would achieve in a number of related areas. *** It would prohibit discrimination in employment * * *. H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963), 1964 U.S. Code Cong, and Admin. News 2391, 2393-2394. 4 Even where, as in the present case, a Title VII suit generates a financial recovery, such monies are in the nature of equitable restitution to plaintiff in order to make him whole (See Robinson v. Lorillard Corp., supra) and not a fund out of which plaintiff can or should be expected to pay attorneys' fees. Thus, the sole source of compensation to attorneys representing plaintiffs in Title VII suits is the court-awarded fee and it is the sole responsibility of the court to see to it that successful plaintiffs' attorneys are adequately compensated. 24-626 O-74-25 The issue raised here is essentially one of first impression, although several cases have given some consideration to the adequacy of counsel fee awards. In Culppper v. Reynolds Metals Co., 442 F.2d 1078 (5th Cir. 1971), an award of $1,500 was sustained. However, the decision does not indicate whether any evidence was presented as to either the number of hours worked or the prevailing rate for routine work. Clark v. American Marine Corp., 437 F.2d 959 (5th Cir. 1971), affirmed with a one paragraph per curiam opinion an award of $20,000 for 580 hours of work-an hourly rate of $34.48 in contrast to the prevailing minimum rate of $30 per hour for routine work. While it is asserted that this was not: "substantially" greater than the prevailing minimum, that issue was not presented to the court. The $20,000 award was $600 more than the plaintiffs' attorneys had requesed, and the appeal was taken by the defendant. The most recent decision on counsel fees also fails to discuss the standard set forth above, but effectively adopts the proposed standard by awarding $30,000 for 407 hours of legal work or roughly $75 per hour in a case where only injunctive relief was awarded the plaintiff. Rosenfeld v. Southern Pacific Co., F. Supp. 4 FEP Cases 72 (C.D. Calif. 1971). The District Court cites Massachusetts Mutual Life Insurance Co. v. Brock, 405 F.2d 429 (5th Cir. 1968), for the proposition that a court has broad discretion in seting counsel fees. In that case, however, this Court reversed and remanded the District Court's assessment of counsel fees on the specific ground that the award was in conflict with public policy: "The public interest which is inherent in bankruptcy matters must be considered in awarding fees." 405 F.2d at 432-433. The Court pointed out that, in contrast to ordinary litigation, the amount of a fee award in a bankruptcy case should be weighed against the impact on the debtor's estate to avoid excessively depleting the estate. In light of this policy the Court ordered "that the fees o be awarded counsel for the trustee shall not exceed $50.00 per hour ***." 405 F.2d at 435. Massachusetts Mutual Life Insurance Co. v. Brock is indeed an appropriate precedent to look to, and it points to reversal in this case. For public policy weighs equally heavy here, but on the other side of the balance. If $50 per hour is a reasonable attorney's fee in a bankruptcy suit where the public interest favors minimizing the impact of fees on a debtor's estate, $25.64 per hour is certainly not a reasonable attorney's fee in a Title VII action where public policy favors the institution of suits to eradicate prohibited discrimination in employment. When such traditional factors as Ms. Roberts' qualifications, the difficulty and complexity of the legal issues involved, and the result obtained for Ms. Weeks are added to the scales, there can be no question that the District Court's award is woefully inadequate. CONCLUSION For the foregoing reasons, it is respectfully submitted that Ms. Roberts is entitled to compensation at a rate higher than the $40 per hour which she has requested. To deny her the amount she seeks will be to substantially frustrate the "clear mandate from Congress that no longer will the United States tolerate this form of discrimination." Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970). Respectfully submitted, NATHANIEL JONES, General Counsel, The National Association for New York, N.Y. PAUL J. SPIEGELMAN, Washington, D.C. JAMES BEAT, Washington, D.C. Attorneys for Amicus. See Clark v. American Marine Corp., 320 F. Supp. 709, 712 (E.D. La. 1970). In the United States Court of Appeals for the Fifth Circuit No. 72-1075 MRS. LORENA W. WEEKS, PLAINTIFF, MRS. SYLVIA ROBERTS, Attorney for Mrs. Weeks, APPELLANT V. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, DEFENDANT-APPELLEE Appeal from Orders by United States District Court, Southern District of Georgia, Swainsboro Division concerning Attorney's Fees BRIEF AMICUS CURIAE OF NOW LEGAL DEFENSE AND EDUCATION FUND, INC. MRS. SYLVIA ROBERTS, (Attorney for Mrs. Weeks), APPELLANT V. SOUTHERN BELL TELEPHONE & TELEGRAPH CO., DEFENDANT-APPELLEE CERTIFICATE REQUIRED BY FIFTH CIRCUIT LOCAL RULE 13(A) The undersigned, counsel of record for Now Legal Defense and Education Fund, Inc., certifies that the following listed persons or parties have an interest in the outcome of this case. These representations are made in order that Judges of this Court may evaluate possible disqualification or recusal pursuant to Local Rule 13(a): 1. Mrs. Sylvia Roberts, the appellant, who seeks a larger award of attorney's fees. 2. Southern Bell Telephone & Telegraph Company, the appellee, who would pay whatever attorney's fee is awarded in his case. 3. The uncountable persons, unknown to counsel, whose rights in other cases may be affected by the precedent established in this case. PHINEAS INDRITZ, Statement of the Issue Statement of the Case Argument Conclusion TABLE OF CONTENTS Amicus Curiae. Table of Cases: Clark v. American Marine Corp. 304 F. Supp. 603, 611 (E.D.La 1969) on remand 320 F. Supp. 709 (E.D. La 1970) |