Geier v. Sundquist ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Geier, et al. v. Sundquist, et al. No. 02-6400
ELECTRONIC CITATION: 2004 FED App. 0186P (6th Cir.)
File Name: 04a0186p.06 Before: COLE and COOK, Circuit Judges; SPIEGEL,
District Judge.*
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT COUNSEL
_________________
ARGUED: Lewis R. Donelson III, BAKER, DONELSON,
RITA SANDERS GEIER; X BEARMAN & CALDWELL, Memphis, Tennessee, for
- Appellants. Richard F. Haglund III, OFFICE OF THE
PATRICK J. GILPIN ; ERNEST ATTORNEY GENERAL, Nashville, Tennessee, for
TERRELL ; HAROLD SWEATT; -
- No. 02-6400 Appellees. ON BRIEF: George E. Barrett, Edmund L.
PHILLIP SWEATT, Individually - Carey, Jr., BARRETT, JOHNSTON & PARSLEY, Nashville,
and as Next Friend of Phillip > Tennessee, for Appellants. Kathleen A. Eyler, OFFICE OF
, THE ATTORNEY GENERAL, Nashville, Tennessee, for
Sweatt; CITIZENS AND -
RESIDENTS OF THE STATE OF Appellees.
-
TENNESSEE; CITIZENS OF THE - COLE, J., delivered the opinion of the court, in which
UNITED STATES , - SPIEGEL, D. J., joined. COOK, J. (pp. 23-25), delivered a
Plaintiffs-Appellants, - separate dissenting opinion.
-
- _________________
v. -
- OPINION
DON SUNDQ UIST , et al., - _________________
Defendants-Appellees. -
- R. GUY COLE, JR., Circuit Judge. Appellants, the Geier
N Plaintiffs, appeal the district court’s judgment awarding them
$376,587.50 in attorneys’ fees pursuant to 42 U.S.C. § 1988
Appeal from the United States District Court for legal services performed in connection with this civil
for the Middle District of Tennessee at Nashville. rights action – ongoing for the past thirty-six years – which
No. 68-05077—Thomas A. Wiseman, Jr., District Judge. led to the desegregation of Tennessee’s public higher
education system. The Geier Plaintiffs contend that the
Argued: April 27, 2004 district court abused its discretion in: (1) declining to award
fees pursuant to the “common fund”/“common benefit”
Decided and Filed: June 18, 2004 method; (2) setting a lodestar rate of $250 per hour where the
*
The Honorable S. Arthur Spiegel, United States District Judge for
the So uthern District o f Ohio , sitting by de signation.
1
No. 02-6400 Geier, et al. v. Sundquist, et al. 3 4 Geier, et al. v. Sundquist, et al. No. 02-6400
Geier Plaintiffs had requested and submitted market data African-American institution, to desegregate its student body
supporting an hourly rate of $400; and (3) considering the and faculty. The United States intervened as a plaintiff in
Johnson factors legally unavailable for establishing and 1968, requesting more expansive relief sought by the original
enhancing the lodestar figure. We find no abuse of discretion plaintiffs. The United States asked the court to “order the
in the district court’s declining to use the “common fund”/ State defendants to present a plan calculated to produce
“common benefit” method for calculating attorneys’ fees. meaningful desegregation of the public universities in
However, because of errors in the district court’s analyses Tennessee.” Sanders, 288 F. Supp. at 939. The case soon
concerning the appropriate hourly rate and the Geier became the vehicle for the desegregation of state-affiliated
Plaintiffs’ entitlement to an upward adjustment of the fee colleges and universities throughout Tennessee. In 1973, a
award, we vacate the fee award and remand this case to the group of parents, teachers, and faculty members were allowed
district court for further proceedings consistent with this to intervene (“Richardson Intervenors”). In 1983, the district
opinion. court allowed another group of African-American and white
TSU faculty members and students to intervene (“McGinnis
I. BACKGROUND Intervenors”). Also in 1983, the district court permitted the
TSU Alumni Association to appear as amicus curiae.
This action, which was filed in 1968, concerns the
desegregation of Tennessee’s public universities. The facts The district court found that six years elapsed after Brown
and lengthy history of this litigation have been set forth in the v. Board of Education, 347 U.S. 483 (1954), before racial
prior opinions of this Court and the district court. See Geier requirements for admission to Tennessee’s public universities
v. Sundquist, 94 F.3d 644 (6th Cir. 1996); Geier v. and colleges were abolished. Although all of the state’s
Richardson, 871 F.2d 1310 (6th Cir. 1989); Geier v. public higher education institutions had non-discriminatory
Alexander, 801 F.2d 799 (6th Cir. 1986); Geier v. Alexander, open door admissions by 1968, the district court found that
593 F. Supp. 1263 (M.D. Tenn. 1984); Geier v. University of “the dual system of education created originally by law has
Tennessee, 597 F.2d 1056 (6th Cir.), cert. denied, 444 U.S. not been effectively dismantled.” Sanders, 288 F. Supp. at
886 (1979); Geier v. Blanton, 427 F. Supp. 644 (M.D. Tenn. 940. Relying on Green v. County School Board, 391 U.S.
1977); Geier v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972); 430 (1968), the district court stated that it was “convinced
and Sanders v. Ellington, 288 F. Supp. 937 (M.D. Tenn. that there is an affirmative duty imposed upon the State by the
1968). Because, however, the matter before us benefits from Fourteenth Amendment to the Constitution of the United
an appreciation of the history and magnitude of this action, States to dismantle the dual system of higher education which
we set forth the case’s background here. presently exists in Tennessee.” Id. at 942. The court then
ordered Defendants to submit a plan “designed to effect such
In 1968, several African-Americans (the “Geier Plaintiffs”) desegregation of the higher educational institutions in
sued the Governor of Tennessee, the University of Tennessee Tennessee, with particular attention to Tennessee A & I State
(“UT”), Tennessee A & I State University, and various University, as to indicate the dismantling of the dual system
Tennessee educational agencies and officials to enjoin UT now existing.” Id. Defendants did not appeal.
from expanding its program at a non-degree-granting
educational institution in Nashville. The complaint alleged Defendants submitted a plan to the court that relied
that any expansion of UT Nashville would affect the efforts primarily on the efforts of predominantly white institutions to
of Tennessee State University (“TSU”), a predominantly expand efforts to recruit black students and faculty. The plan
No. 02-6400 Geier, et al. v. Sundquist, et al. 5 6 Geier, et al. v. Sundquist, et al. No. 02-6400
called for TSU to recruit white students and faculty and to In the subsequent years, Defendants submitted several
develop and publicize academic programs that would attract plans, and the district court ordered that some courses and
white as well as black students from the Nashville area. The fields of study be offered exclusively at UT Nashville.
Geier Plaintiffs and the United States filed objections to the Eventually, all of the plaintiffs, including the United States,
plan, and, after a hearing, the district court found that the plan proposed a merger of TSU and UT Nashville, with TSU as
lacked specificity. Instead of disapproving the plan, however, the surviving institution. The district court held a month-long
the district court directed Defendants to file a report showing evidentiary hearing on this proposal in 1976. After
what had been done to implement each component of the considering voluminous records and testimony, the district
plan. court found steady, but slow progress in attracting black
students and faculty to the formerly-white institutions, but, as
Defendants’ report showed some progress in attracting before, little or no progress in converting TSU from a one-
African-American students to the formerly all-white race university. The court concluded that the plans applied in
institutions, but little improvement in the number of black the course of the eight years that the litigation had been active
faculty at those schools, and virtually no progress in had not worked and showed no prospect of working. The
desegregating TSU. The Geier Plaintiffs filed a motion for court therefore ordered the merger of TSU and UT Nashville
further relief, contending that the plan and report failed to into a single institution under the state’s Board of Regents.
offer a scheme for dismantling the dual system of public The district court chose this “drastic remedy” because “the
higher education, as ordered by the court. While that motion State’s actions have been egregious examples of
was being considered by the district court, a new report constitutional violations.” Geier v. Blanton, 427 F. Supp.
showed that TSU remained 99.7% African-American and that 644, 660 (M.D. Tenn. 1977).
its entering class in the fall of 1970 was 99.9% African-
American. The district court found that so long as TSU In affirming the district court, Geier v. University of
remained overwhelmingly black, it could not be said that Tennessee, 597 F.2d 1056 (6th Cir.), cert. denied, 444 U.S.
Defendants had dismantled the dual system or that they were 886 (1979), we held that the pronouncement in Green v.
“in any realistic sense, on their way toward doing so.” Geier County School Board of an affirmative duty to remove all
v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972). vestiges of state-imposed segregation applies to public higher
education as well as to education at lower levels. Geier, 597
The district court found that an “open door policy, coupled F.2d at 1065 (“[T]he state’s duty is as exacting to eliminate
with good faith recruiting efforts . . . is sufficient as a basic the vestiges of state-imposed segregation in higher education
requirement” for desegregating institutions of public higher as in elementary and secondary school systems; it is only the
education. Id. at 580 (emphasis in original). However, the means of eliminating segregation which differ.”) (quotation
court held, where this basic requirement fails to eliminate and citation omitted)). We also held that the district court’s
identifiably “white” and “black” institutions, something more factual findings were not clearly erroneous, id. at 1067, and
is required. Defendants were ordered to present another plan that the remedy ordered was within the traditional bounds of
to the court by March 15, 1972, that would provide for equitable relief. Id. at 1068.
substantial desegregation of the TSU faculty and ensure a
substantial white presence on the TSU campus. Id. at 581.
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A. The 1984 Settlement Next ensued a request for interim attorneys’ fees by the
individual plaintiffs and state defendants, who claimed that
The history of the litigation to this point illustrates the they were the “prevailing parties” within the meaning of
arduous path along which the original parties and Defendants 42 U.S.C. § 1988 after the United States intervened in this
traveled before they entered a stipulation of settlement suit, sought relief beyond the injunction requested by the
(“Settlement”) on September 25, 1984. Geier v. Alexander, private parties, and then challenged the Settlement entered
593 F. Supp. 1263 (M.D. Tenn. 1984), aff’d, 801 F.2d 799 into between the parties and approved by the district court,
(6th Cir. 1986). All of the parties, except for the United requiring both the private plaintiffs and Defendants to defend
States, agreed to the comprehensive Settlement requiring the Settlement’s terms. The district court awarded attorneys’
Defendants to implement numerous new desegregation fees against the United States to the Geier Plaintiffs and the
programs throughout Tennessee’s system of higher education, state. The United States appealed and we vacated the award.
including: (1) attempting to obtain a student body at TSU that Geier v. Richardson, 881 F.2d 1075, No. 88-5155, 1989 WL
is 50% white; (2) assuring that changes in admissions policies 90761 (6th Cir. Aug. 11, 1989).
do not have an adverse racial impact; and (3) actively
recruiting African-American faculty and administrative staff B. The 2001 Consent Decree
for Tennessee’s predominantly white institutions. The
Settlement also established a monitoring committee and In 1994, the state moved to vacate the 1984 Settlement and
provided for the resolution of disputes among the parties. terminate the litigation based, in part, on a change in the law
“The plan embodied in the [Settlement] was the culmination stemming from the Supreme Court’s decision in United States
of long hours and days of negotiations in which all parties, v. Fordice, 505 U.S. 717 (1992), which addressed
including the United States, participated.” Geier, 801 F.2d at Mississippi’s dual system of public higher education. In
802. 1996, again relying on Fordice, Defendants moved for a
judgment on the pleadings. The district court did not rule on
But the struggle to desegregate Tennessee’s system of the motion to vacate, and it eventually denied the state’s
higher education continued. Shortly after the district court motion for judgment on the pleadings.
approved the Settlement, the United States filed a
memorandum challenging many of the programs contained in Ultimately, in January of 2000, the parties entered
the Settlement. The district court rejected the Government’s voluntary mediation. Once again, the parties devoted
arguments and the Government appealed to this Court, Geier substantial time to considering the state of racial equality in
v. Alexander, 801 F.2d 799 (1988), challenging only that part Tennessee’s system of higher education. In January 2001, the
of the Settlement that established a pre-professional program parties entered into a Consent Decree, Geier v. Sundquist, 128
pursuant to which seventy-five qualified African-American F. Supp. 2d 519 (M.D. Tenn. 2001), which states, in part:
sophomores would be selected each year and guaranteed
admission to one of the state’ professional schools upon In dismantling the vestiges of the former dual system, it
completing his or her undergraduate work and satisfying the is the parties’ intention to create an education system that
relevant school’s admissions standards. The Government enhances the increased enrollment of African American
argued that this constituted a “racial quota” system, but this students at the predominantly white institutions and that
Court rejected that argument and affirmed the district court’s likewise enhances the enrollment of white students at the
judgment authorizing the Settlement. State’s predominantly black institution. To achieve this
No. 02-6400 Geier, et al. v. Sundquist, et al. 9 10 Geier, et al. v. Sundquist, et al. No. 02-6400
goal, the parties are committed to maintaining hours, which included 416 hours of undocumented time.
educational institutions that are committed to Counsel urged the court to consider the so-called “Johnson
desegregation and to reaching out to all residents of this factors,” listed in Johnson v. Georgia Highway Exp., Inc., 488
State regardless of race. It is also the intention of the F.2d 714 (5th Cir. 1974), either as bearing upon the lodestar
parties that employment and promotion decisions within amount or an enhancement thereof. But, for reasons that will
the State’s system of higher education be made in an be described in more detail below, the district court fixed the
environment unfettered by the discriminatory practices of lodestar at $250 and deemed any enhancement legally
the old dual system. The goal is to increase the presence unwarranted.
of other-race faculty, staff, and administrators on the
campuses of the State’s colleges and universities. The Geier Plaintiffs’ fee award – which covers the period
between June 1987 and January 2001 – is the subject of this
128 F. Supp. 2d at 521. appeal. Pursuant to the 1984 Settlement, they received
$85,000 in interim attorneys’ fees in 1988; that is the only fee
C. Attorneys’ Fees the Geier Plaintiffs have received to date.
Pursuant to the 2001 Consent Decree, the Geier Plaintiffs, II. ANALYSIS
the Richardson Intervenors, and the McGinnis Intervenors
filed applications for attorneys’ fees with the Tennessee We review a district court’s award of attorneys’ fees for
Attorney General. The McGinnis Intervernors reached an abuse of discretion. Perotti v. Seiter, 935 F.2d 761, 763
agreement with the state and were paid attorneys’ fees in June (1991). “An abuse of discretion exists when the district court
2001. However, unable to agree on an award amount with the applies the wrong legal standard, misapplies the correct legal
state, the Geier Plaintiffs and Richardson Intervenors filed standard, or relies on clearly erroneous findings of fact.”
their applications for attorneys’ fees with the federal district First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th
court. They requested a hearing concerning the fee Cir. 1993).
applications, but the district court deemed it unnecessary.
A. Common Fund/Common Benefit Method
On September 27, 2002, the district court issued an Opinion
and Order concerning the attorneys’ fees, awarding the Geier The Geier Plaintiffs’ first claim on appeal is that the district
Plaintiffs’ $376,587.50, although they had requested court abused its discretion in declining to use the “common
$5,000,000. Geier v. Sundquist, 227 F. Supp. 2d 881 (M.D. fund”/“common benefit” method (hereinafter “common
Tenn. 2002).1 The district court used the lodestar method for fund”) for determining attorneys’ fees. Like the lodestar
calculating the fee award and concluded that $250 per hour method, the common fund method is an exception to the
was a reasonable hourly fee. It then determined that counsel general “American rule” that litigants pay their own
for the Geier Plaintiffs should be compensated for 1432.55 attorneys’ fees. It is employed where a lawyer recovers a
common fund for the benefit of persons in addition to those
he formally represents. As the Supreme Court has explained:
1 The doctrine rests on the perception that persons who
Although the court’s opinion also determined a fee award for the
Richardson Intervenors, the state ultima tely reached an agreement with obtain the benefit of a lawsuit without contributing to its
them and paid their attorneys’ fees.
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cost are unjustly enriched at the successful litigant’s measures – transposing the action’s social value into
expense. Jurisdiction over the fund involved in the monetary value is imprecise, and more importantly, still
litigation allows a court to prevent this inequity by leaves us without a fund. The money designated by
assessing the attorneys’ fees against the entire fund, thus Tennessee for the remedial programs goes to fund the
spreading fees proportionately among those benefitted by programs, not to pay the plaintiffs. Moreover, applying the
the suit. Aleyska factors, described above, the common fund method
is unworkable here: the class of persons benefitted by this
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) lawsuit is not at all small or manageable. Rather, according
(citations omitted). In order for a class to recover attorneys’ to the 2001 Consent Decree, the class includes “all residents
fees pursuant to the common fund doctrine: (1) the class of of this State,” Geier, 128 F. Supp. 2d at 521. As such, the
people benefitted by the lawsuit must be small in number and class is not easily identifiable and the benefits could not be
easily identifiable; (2) the benefits must be traceable with traced with any accuracy.
some accuracy; and (3) there must be reason for confidence
that the costs can in fact be shifted with some exactitude to B. Reasonable Hourly Rate
those benefitting. Aleyska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240, 247 (1975). The Supreme Court has Having declined to use the common fund doctrine for
stated that “[t]hose characteristics are not present where calculating attorneys’ fees, the district court instead used the
litigants simply vindicate a general social grievance.” lodestar approach whereby the court multiplies a reasonable
Boeing, 444 U.S. at 478. The criteria are met, however, hourly rate by the proven number of hours reasonably
“when each member of a certified class has an undisputed and expended on the case by counsel. Adcock-Ladd v. Secretary
mathematically ascertainable claim to part of a lump-sum of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). “The primary
judgment recovered on his behalf.” Id. As such, the common concern in an attorney fee case is that the fee awarded be
fund method is often used to determine attorneys’ fees in reasonable, that is, one that is adequately compensatory to
class action securities cases, see, e.g., Boeing, 444 U.S. 472, attract competent counsel yet which avoids producing a
and suits by union members against their unions, see, e.g., windfall for lawyers.” Reed v. Rhodes, 179 F.3d 453, 471
Hall v. Cole, 412 U.S. 1 (1973). (6th Cir. 1999) (citing Blum v. Stenson, 465 U.S. 886, 893,
897 (1984). To arrive at a reasonable hourly rate, courts use
It was not an abuse of discretion for the district court to as a guideline the prevailing market rate, defined as the rate
decline to use the common fund method in this case. In that lawyers of comparable skill and experience can
addition to the doctrine being inapplicable where litigants are reasonably expect to command within the venue of the court
vindicating a social grievance, the doctrine is inappropriate of record. Adock-Ladd, 227 F.3d at 350. The Geier
here because there is simply no fund. The benefit provided to Plaintiffs contend that the district court abused its discretion
the plaintiff class – the desegregation of Tennessee’s system in finding $250 a reasonable hourly rate when they had both
of higher education – is not pecuniary in any conventional requested $400 per hour and submitted evidence that $400
way and did not result in the creation of a fund to be divvied was the reasonable hourly rate for lawyers of skill and
up among the plaintiffs, as is the case in common fund cases. experience comparable to George E. Barrett, the Geier
Although (as the Geier Plaintiffs urge) the benefits attained Plaintiffs’ lead counsel, litigating a civil rights action of this
could perhaps be measured as pecuniary – in the sense that a scale.
dollar value could be assigned to the cost of the remedial
No. 02-6400 Geier, et al. v. Sundquist, et al. 13 14 Geier, et al. v. Sundquist, et al. No. 02-6400
We recognize that deference is to be given to a district We also note that the district court determined that $250 per
court’s determination of a reasonable attorneys’ fee. hour was the appropriate hourly rate for the McGinnis
Nonetheless, it remains important for the district court to Intervenors’ counsel, Messrs. Norris and Weatherly. The
provide an adequate explanation of the reasons for its award Geier Plaintiffs argued that they were more experienced and
and the manner in which that award was determined. Hensley more active in the litigation than the intervenors’ counsel, and
v. Eckerhart, 461 U.S. 424, 437 (1983) (“it remains important that therefore, they are entitled to a higher hourly rate. We
for the district court . . . to provide a concise but clear find this argument sensible. According to the record, Norris
explanation of its reasons for the fee award.”). At times, we and Weatherly are less experienced than Mr. Barrett, and both
have found an abuse of discretion where a district court fails were paid at lower hourly rates earlier in this lawsuit. See
to explain its reasoning adequately or to consider the Geier 227 F. Supp. 2d at 883 (explaining that, in 1987, Norris
competing arguments of the parties. See Moore v. City of was paid $90 per hour; Dinkins $125 per hour; and Barrett
Paducah, 790 F.2d 557 (6th Cir. 1986). $150 per hour). Furthermore, by Mr. Norris’s own
admission, in a letter to Mr. Barrett dated February 2, 2001,
Here, in determining the reasonable hourly rate, the district he and Weatherly played a less “global” role in this action
court appears to have relied almost exclusively on market data through the years.
provided by Defendants, citing to local awards of
approximately $250 per hour in civil rights cases. (The court In short, the district court’s order contains no explanation
also purported to rely on its own judicial experience, noting: of how – or even if – it accounted for the Geier Plaintiffs’
“My recollection is not what it once was, but I cannot recall competing information concerning the prevailing market rate.
ever awarding a fee in excess of $250 per hour.” Geier, 227 Absent some indication of how the district court’s discretion
F. Supp. 2d at 886.). While this data is informative, the was exercised, we have no way of knowing whether that
district court never mentioned that the Geier Plaintiffs’ discretion was abused. See Chalmers v. City of Los Angeles,
counsel requested $400 per hour, and the court never 796 F.2d 1205 (9th Cir. 1986) (vacating award of attorneys’
discussed any of the evidence submitted by the Geier fees and remanding where district court’s opinion
Plaintiffs supporting a $400 per hour rate. Attorney Lewis R. insufficiently explained how it arrived at the fee amount). We
Donelson, of Nashville, Memphis, and Knoxville’s Baker, are, therefore, unable to affirm the decision below.
Donelson law firm, submitted an affidavit stating that a $450
hourly rate for Mr. Barrett was “fair and reasonable [and] not Accordingly, the hourly rate determination as to the Geier
an uncommon rate for leading attorneys in Tennessee at this Plaintiffs is vacated and we remand this matter for further
time,” and that Mr. Barrett “is certainly the leading expert on review based upon the market data of record, including the
civil rights desegregation cases.” There were similar Geier Plaintiffs’ submissions.
affidavits – attesting to the reasonableness of a $400 or $450
hourly fee – from five other attorneys. In addition, the Geier C. The Johnson Factors
Plaintiffs point to the $400 per hour rate awarded attorneys in
Craft v. Vanderbilt University, a federal class action from the The Geier Plaintiffs’ last claim on appeal is that the district
Middle District of Tennessee alleging civil rights violations court abused its discretion in failing to consider the
in connection with a 1940s medical experiment in which Johnson factors as bearing on the initial lodestar figure and
pregnant women unknowingly ingested radioactive iron any enhancement thereof. The Supreme Court has repeatedly
isotope. stated that “[t]he primary concern in an attorney fee case is
No. 02-6400 Geier, et al. v. Sundquist, et al. 15 16 Geier, et al. v. Sundquist, et al. No. 02-6400
that the fee award be reasonable.” Blum v. Stenson, 465 U.S. by failing to consider an upward adjustment of the lodestar
886, 893 (1984). As already discussed, the first step in figure. To help explain why this is so, we set forth, in
determining a reasonable fee in a lodestar case is to multiply relevant part, the district court’s analysis on this point. The
the number of hours reasonably expended on the litigation by district court stated:
a reasonable hourly rate. Once the lodestar figure is
established, the trial court is permitted to consider other Counsel urges the Court to consider the Johnson factors
factors, and to adjust the award upward or downward to . . . either as bearing upon the lodestar amount or an
achieve a reasonable result. Hensley v. Eckerhart, 461 U.S. enhancement thereof. . . . [The district court here lists
424, 434 (1983). In considering any adjustment, the Supreme the Johnson factors]. . . .
Court has cited with approval the twelve factors listed in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, The one factor in Johnson that the Supreme Court felt
717-19 (5th Cir. 1974). Hensley, 461 U.S. at 430 n. 3, 434 n. may be still available is that of “risk.” When the case
9. Those factors are: was filed in 1968, there was substantial risk that the
outcome might be unfavorable. Although Brown v.
(1) the time and labor required; (2) the novelty and Board had been decided 14 years before, this case
difficulty of the question; (3) the skill requisite to involved higher education and the law was unsettled.
perform the legal service properly; (4) the preclusion of Risk was removed after Judge Gray’s early decisions,
other employment by the attorney due to acceptance of and certainly was finally removed after the Stipulation of
the case; (5) the customary fee; (6) whether the fee is Settlement in 1984. Thereafter, the case only required
fixed or contingent; (7) time limitations imposed by the monitoring for compliance. A flurry of activity in the
client or the circumstances; (8) the amount involved and case arose when the state sought dismissal under the
the results obtained; (9) the experience, reputation, and decision in Fordice. When Attorney General Paul
ability of the attorney; (10) the “undesirability” of the Summers took office and indicated a desire to settle the
case; (11) the nature and length of the professional case, and initiated mediation, good will and innovative
relationship with the client; and (12) awards in similar efforts on the part of all counsel and parties resulted in
cases. the Consent Decree. Therefore, under the teaching of
[Pennsylvania v. Delaware Valley Citizens’ Council for
Johnson, 488 F.2d at 717-19. The Supreme Court, however, Clear Air, 478 U.S. 546 (1986) no enhancement is
has limited the application of the Johnson factors, noting that warranted and the Court fixes the lodestar at $250 per
“many of these factors usually are subsumed within the initial hour.
calculation of hours reasonably expended at a reasonable
hourly rate.” Hensley, 461 U.S. at 434 n. 9. Geier, 227 F. Supp. 2d at 886-87 (emphasis in original).
Since we are vacating the lodestar figure in light of the Although the district court quoted from that part of
hourly rate issue discussed in Part II, Section B. above, there Delaware Valley indicating that “adjustments of the lodestar
is no reason to address, at this time, the Geier Plaintiffs’ figure are still permissible” in “rare” and “exceptional” cases,
contention that the district court failed to consider the 478 U.S. at 565, the court never discussed whether this is
Johnson factors in establishing that initial figure. However, such a special case. Instead, the district court stated that none
we agree with the Geier Plaintiffs that the district court erred of the Johnson factors are legally available as bearing on an
No. 02-6400 Geier, et al. v. Sundquist, et al. 17 18 Geier, et al. v. Sundquist, et al. No. 02-6400
upward adjustment, except for “risk.” The court then Of the factor pertaining to the quality of counsel’s
determined that there was no risk level in this case after the representation, the Supreme Court stated in Blum that it is
1984 Settlement (a questionable conclusion in light of the “generally . . . reflected in the reasonable hourly rate,”
state’s efforts to dismiss the case in 1994, resulting in although it may still justify an upward adjustment “in the rare
protracted litigation and negotiations resulting in a new case where the fee applicant offers specific evidence to show
Consent Decree in 2001; but this is not pressing to the issue that the quality of service rendered was superior to that one
now before us), and that therefore, “no enhancement [of the reasonably should expect in light of the hourly rates charged
lodestar] is warranted.” Geier, 227 F. Supp. 2d at 887. and that the success was ‘exceptional’.” Blum, 465 U.S. at
899. Similarly, with respect to the factor pertaining to the
Unfortunately, that analysis was not correct. The Supreme “results obtained,” the Supreme Court stated that it “generally
Court has emphasized that, although application of the will be subsumed within other factors used to calculate a
Johnson factors is limited, upward adjustments are reasonable fee” and “normally should not provide an
permissible in certain “rare” and “exceptional” cases. independent basis for increasing the fee award.” Id. at 900.
Pennsylvania v. Delaware Valley Citizens’ Council for Clean But the Supreme Court was careful to stress that it was not
Air, 478 U.S. 546, 564 (1986). We also note that the blanketly precluding consideration of “results obtained,” but
Supreme Court has not had occasion to individually address rather establishing a presumption that that factor is included
each of the factors; it has only provided specific guidance in the initial lodestar figure but may still be considered as part
concerning some of them. In its clearest pronouncement of an upward adjustment in exceptional cases: “[W]e reiterate
concerning the Johnson factors, the Supreme Court held that what was said in Hensley: ‘where a plaintiff has obtained
neither the complexity nor novelty of the issues in a case is an excellent results, his attorney should recover a fully
appropriate factor in determining whether to increase the compensatory fee. Normally this will encompass all hours
basic fee award. Blum, 465 U.S. at 898-99. With respect to reasonably expended on the litigation, and indeed in some
risk – that is, the risk of not prevailing in the litigation – the cases of exceptional success an enhancement award may be
Supreme Court has held this factor applicable only where the justified.” Id. at 901 (quoting Hensley, 461 U.S. at 435).
trial court specifically finds that the case is one of the Lastly, to underscore its point that certain Johnson factors –
“exceptional” cases in which an upward adjustment is including the “results obtained” – are applicable to a trial
appropriate and that there was real risk of not prevailing in the court’s consideration of an upward adjustment in exceptional
case. Pennsylvania v. Delaware Valley Citizens’ Council for cases, the Supreme Court explicitly reject[ed] petitioner’s
Clean Air, 483 U.S. 711, 730-31 (1987). In addition, as a argument that an upward adjustment to an attorney’s fee is
general rule, the upward adjustment for risk may be no more never appropriate under § 1988. Id. at 901.
than one third of the lodestar, and “[a]ny additional
adjustment [for risk] would require the most exacting The last Supreme Court case to consider the Johnson
justification.” Id. at 730. Because the “rare” and factors in any depth reaffirmed Blum. In Pennsylvania v.
“exceptional” determination must precede any risk analysis, Delaware Valley Citizens’ Council for Clean Air, 478 U.S.
the district court here was not even permitted to reach the risk 546, 565 (1986) (hereinafter “Delaware Valley”), the
analysis, having never considered whether this case is one of Supreme Court noted that factors such as “the special skill
the rare and exceptional ones meriting an upward adjustment. and experience of counsel,” the “quality of representation,”
and the “results obtained” from the litigation “are presumably
fully reflected in the lodestar amount, and thus cannot serve
No. 02-6400 Geier, et al. v. Sundquist, et al. 19 20 Geier, et al. v. Sundquist, et al. No. 02-6400
as independent bases for increasing the basic fee award.” the same as applying it, particularly where the court has
Again, however, the Supreme Court stated that “upward overlooked several of the most important elements of the
adjustments of the lodestar figure are still permissible” and standard – in this case, the continuing permissibility of
are proper “in certain ‘rare’ and ‘exceptional’ cases.” Id. at upward adjustments in exceptional cases and the relevance of
565 (quoting Blum, 465 U.S. at 898-901). In Delaware certain Johnson factors to that adjustment.
Valley, the Supreme Court does not purport to expand Blum
in any way. Accordingly, we must construe its statement that The Geier Plaintiffs have asserted that this is one of those
certain Johnson factors “cannot serve as independent bases “rare” and “exceptional” cases meriting an upward adjustment
for increasing the basic fee award,” id., not in isolation or as of the lodestar figure. The appropriate legal analysis begins
precluding use of those factors altogether, but rather in light with consideration of that question. As detailed in Part I of
of (1) the statements that precede it – namely that the named this opinion, the magnitude of this case is formidable in
factors are “presumably” reflected in the lodestar fee, but not numerous respects. The legal principles advanced by the
certainly so; (2) the statements that follow it, reiterating that Geier Plaintiffs were pathbreaking and of great social import.
upward adjustments are permissible in “rare” and It was in this case that this Court first held that there was an
“exceptional” cases; and (3) Blum, the case that that portion affirmative duty to remove all vestiges of state-imposed
of Delaware Valley is summarizing, which preserved the use segregation in institutions of public higher education, just as
of the “results obtained” and the “quality of representation” there was such an obligation at lower educational levels.
for an upward adjustment analysis in those “rare” and Plaintiffs have litigated – successfully – for thirty-six years
“exceptional” cases. against continuous state opposition and contrary judicial
precedents outside this Circuit, and they have secured
Here, the district court neither found this case exceptional injunctive relief – valued at approximately $320 million – in
nor unexceptional – and as such, should not have even programs affecting all public institutions of higher education
reached the risk analysis that it performed. Moreover, as we in the state of Tennessee.
have explained, it is not the case, as the district court
believed, that all of the Johnson factors are no longer When this case was filed, it focused the federal judiciary on
available as bearing on an adjustment of the lodestar figure. the desegregation of public higher education. See Decl. of
Certain factors – such as the “results obtained” – are still David Williams, II, Vice Chancellor for Student Life and
relevant, following the predicate determination that the case University Affairs and General Counsel and University
is one of the rare and exceptional ones meriting an upward Secretary, Vanderbilt University ¶¶ 6-14. (JA 554-56.)
adjustment. Because the district court applied the wrong legal Defendants had argued that a good faith, open door policy of
standard to the upward adjustment analysis – and also seemed admissions satisfied the requirements of the Fourteenth
to imply, in error, that upward adjustments are no longer even Amendment for racial equality in public institutions of higher
permissible – we find an abuse of discretion. First Tech. education. Their argument was based on an interpretation of
Safety Sys., 11 F.3d at 647 (“An abuse of discretion exists the outcome of a civil rights action in Alabama, in which a
when the district court applies the wrong legal standard. . . .”). federal district court denied the plaintiffs injunctive relief
concerning state officials’ plans to expand a previously white
Nor are we satisfied that the district court engaged in the campus near a historically black college in Montgomery,
proper legal analysis simply because it quoted from the Alabama. The U.S. Supreme Court had summarily affirmed.
germane part of Delaware Valley. To cite a standard is not See Alabama State Teachers Ass’n v. Alabama Pub. Sch. and
No. 02-6400 Geier, et al. v. Sundquist, et al. 21 22 Geier, et al. v. Sundquist, et al. No. 02-6400
Coll. Auth., 289 F. Supp. 784, 787 (M.D. Ala. 1968), aff’d III. CONCLUSION
393 U.S. 400 (1969) (hereinafter “ASTA”). The opinion in
ASTA and the Supreme Court’s summary affirmance led some For the reasons set forth above, we VACATE the district
to believe that an open door policy alone was sufficient to court’s award of attorneys’ fees to the Geier Plaintiffs and
remedy de jure segregation in higher education. It was Geier REMAND for: (1) further explanation concerning the hourly
that steered the jurisprudence in a different direction and rate; (2) calculation of the lodestar figure; and
became the basis for concerted efforts by the Office of Civil (3) determination of any upward adjustment.
Rights of the Department of Education and the Department of
Justice’s Civil Rights Division to persuade courts that open
door policies were insufficient (and, on their own, ineffective)
to achieve desegregated systems of public higher education in
the South. See Declarations of David Williams, II (JA 554-
557) and Rita Sanders Geier (JA 510-517). Those efforts
included lawsuits brought in Virginia, Alabama, Mississippi,
and Louisiana. In the Virginia case, Norris v. State Council
of Higher Educ. for Virginia, 327 F. Supp. 1368 (E.D. Va.
1971), the court explicitly relied on the district court opinion
in Geier to reject arguments by the state defendants that a
state could discharge its duty to dismantle a previously de
jure segregated system simply by declaring open enrollment.
The exceptional nature and national significance of this
case was further exemplified in 1997, when the U.S.
Department of Justice’s Civil Rights Division celebrated its
fortieth anniversary. Speakers included members of
Congress, the U.S. Attorney General, Department of Justice
officials, and Rita Sanders Geier, the lead original plaintiff in
this action.
All of this, combined with the tenacity of the attorneys and
broad remedies obtained – described in Part I above – render
this a “rare” and “exceptional” case. Having held that this
case is exceptional within the meaning of Blum and Johnson,
an upward adjustment is permissible and we remand to the
district court for the particularized application of factors –
including “results obtained” – bearing on the amount of any
upward adjustment.
No. 02-6400 Geier, et al. v. Sundquist, et al. 23 24 Geier, et al. v. Sundquist, et al. No. 02-6400
______________ prevailing market rate in the relevant community. Geier v.
Sundquist, 227 F. Supp. 2d 881, 886 (M.D. Tenn. 2002)
DISSENT (“This Court therefore finds that the prevailing market rate
______________ that lawyers of comparable skill and experience can
reasonably expect to command within the Middle District of
COOK, Circuit Judge, dissenting. Because I conclude that Tennessee for this type of work is $250 per hour.”).
the district court did not abuse its discretion in (1)
determining that $250 was a reasonable hourly rate for the Citing Moore v. City of Paducah, 790 F.2d 557 (6th Cir.
Geier plaintiffs’ counsel, and (2) refusing to apply an upward 1986), the majority infers an abuse of discretion from the
adjustment to the lodestar amount, I respectfully dissent from absence of explicit commentary in the district court’s opinion
parts II.B and II.C of the majority’s opinion. about the competing arguments of the Geier plaintiffs. The
Moore court, however, defined abuse of discretion in the
A. The Reasonable Hourly Rate context of a district court’s ruling on a motion to amend the
pleadings, and since that decision, this court has cited the
As the majority notes, a district court must provide a Moore definition only in that context. This court has not
“concise but clear explanation of its reasons for the fee previously held that a district court, having determined a
award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A reasonable hourly fee using evidence of the prevailing market
district court abuses its discretion when it “relies on clearly rate in the relevant community, abused its discretion in failing
erroneous findings of fact, or when it improperly applies the to explicitly discuss the arguments of one of the parties, and
law or uses an erroneous legal standard.” Adcock-Ladd v. we should not do so here.
Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citation
omitted). This court may also find an abuse of discretion I conclude that under the highly deferential standard this
“when [we are] firmly convinced that a mistake has been court applies in reviewing statutory fee awards, the district
made.” Id. at 349 (citation omitted). court’s determination that $250 constitutes the reasonable
hourly rate for the Geier plaintiffs’ counsel was not an abuse
In determining the reasonable hourly rate for the Geier of discretion. Although discussing the Geier plaintiffs’
plaintiffs’ counsel, the district court did not rely on clearly arguments in favor of a $400 hourly rate may have further
erroneous findings of fact, improperly apply the law, or use clarified the district court’s decision, the lack of such a
an erroneous legal standard. Instead, the district court used discussion does not leave me “firmly convinced that a
the “prevailing market rates in the relevant community” to set mistake has been made.” Adcock-Ladd, 227 F.3d at 349.
the reasonable hourly rate, surveying the hourly rates awarded
to highly experienced counsel in civil rights and class action B. The Johnson Factors
cases in Tennessee. Blum v. Stenson, 465 U.S. 886, 895
(1984) (holding that “‘reasonable fees’ under § 1988 are to be The majority concludes that the district court misstated the
calculated according to the prevailing market rates in the Supreme Court’s holding in Pennsylvania v. Delaware Valley
relevant community”). Although the district court did not Citizens’ Council for Clean Air, 478 U.S. 546 (1986),
expressly reject the Geier plaintiffs’ arguments supporting concerning a district court’s assessment of the Johnson factor
their request for a $400 hourly rate, the district court’s of “risk” when considering an upward adjustment. Geier, 227
opinion reflects its rejection of the figure as exceeding the F. Supp. 2d at 887 (“[t]he one factor in Johnson that the
No. 02-6400 Geier, et al. v. Sundquist, et al. 25
Supreme Court felt may be still available is that of ‘risk’”).
I respectfully disagree, however, because when taken in
context, the district court’s opinion reflects an understanding
of the Supreme Court’s view in Delaware Valley regarding
risk analysis. Delaware Valley, 478 U.S. at 568 (leaving
unresolved “the question of upward adjustment, by way of
multipliers or enhancement of the lodestar, based on the
likelihood of success, or to put it another way, the risk of
loss”). The district court, in an extended quote from
Delaware Valley, acknowledged that a court’s determination
of the reasonable hourly rate most likely already accounts for
most, if not all, of the Johnson factors, with risk as the factor
remaining to be considered at the upward-adjustment stage of
the lodestar analysis.
The district court’s opinion details its reason for denying an
enhancement of the lodestar amount. Judge Wiseman
evaluated the risk here to be insufficient to warrant an upward
adjustment because the period for which the Geier plaintiffs’
counsel sought fees encompassed only “monitoring for
compliance,” with an occasional “flurry of activity.”
“Generally, the trial judge’s exercise of discretion in statutory
fee award cases is entitled to substantial deference, especially
when the rationale for the award was predominantly fact-
driven.” Adcock-Ladd, 227 F.3d at 349.
Given the substantial deference this court accords a district
court’s fee award when the district court provides a non-
erroneous legal and factual basis for its decision, I would
affirm the fee award here. Because the majority does not, I
respectfully dissent.