Marion v. Barrier
Opinion of the Court
This case raises two issues concerning an award of attorney’s fees under 42 U.S.C. § 1988: (1) whether a district court is required to enhance an award of attorney’s fees when the fee arrangement between the attorney and client is contingent on success; and (2) whether a district court may limit attorney’s fees to an amount based on the hours spent by the attorney working on the issues on which his client ultimately prevailed. We conclude that the court below did not abuse its discretion by failing to enhance the attorney’s fee award because of the contingency fee arrangement between appellant and his attorney. Rather, the district court’s balancing of that factor against other Johnson criteria and its conclusion that on balance these factors were “neutral” was within the scope of its discretion. We are also in agreement with the district court that the time devoted by an attorney to issues on which his client did not prevail may be excluded from the calculation of attorney’s fees under section 1988.
In 1976 appellant, who was employed by the City of Tallahassee, was suspended from his job for five days for “figurative conduct, language, and statements to and before safety inspectors and other employees.” Appellant was informed at the time that his behavior constituted a “major offense” under the City’s personnel rules and regulations and that commission of a second offense within that category would result in his dismissal. In 1977, the City terminated his employment, informing him that the reasons for his dismissal were “insubordination and use of City vehicle for personal services.” After receiving a more detailed description of the charges, appellant decided to challenge the City’s decision
Appellant challenges the attorney’s fee award as inadequate on two grounds. First, appellant argues that the district court erred by giving “no apparent effect” to factor six of the Johnson criteria: “Whether the fee is fixed or contingent.” See Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir. 1974)
Second, appellant argues that' the district court erred in limiting the fee award to compensation for work on successful issues. The Fifth Circuit has clearly approved the method of computing attorney’s fees that limits compensation to “work performed on the issues on which [the attorney] was successful.” Familias Unidas v. Briscoe, 619 F.2d 391, 406 (5th Cir. 1980); Hardy v. Porter, 613 F.2d 112, 114 (5th Cir. 1980). See also Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981) [en banc]. “However, the mere fact that the litigants did not succeed in obtaining a judgment on all of the claims asserted does not mean that time spent pursuing these claims should automatically be disallowed.” Id. For example, where evidence gathered in preparing an unsuccessful issue may also have been relevant to the successful claim, compensation should be provided for the time spent gathering that evidence, Hardy v. Porter, supra. In determining reasonable compensation, “the court must consider the relationship of the claims that resulted in judgment with the claims that were rejected and the contribution, if any, made to success by the investigation and prosecution of the entire case.” Jones v. Diamond, supra at 1382. The issues involved in this case were fairly discrete, and the transcript of the hearing on the attorney’s fees issue indicates that the trial judge viewed them as separable.
AFFIRMED.
. Appellees do not here challenge the district court’s determination that appellant “prevailed” for purposes of entitlement to attorney’s fees under § 1988. To be considered the “prevailing party,” litigants need not obtain favorable resolution of every issue raised, see Robinson v. Kimbrough, 652 F.2d 458, 466-67 (5th Cir. 1981), nor obtain all the relief they have requested, e.g., Knighton v. Watkins, 616 F.2d 795, 799 (5th Cir. 1980). Moreover, the Fifth Circuit has recognized that preliminary relief alone may serve to make a plaintiff the “prevailing party” where the relief so obtained was the primary relief sought. See Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980), cert. denied, 451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855 (1981), and cases cited therein.
. The Eleventh Circuit, in the en banc case of Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir., 1981) adopted as precedent the decisions of the former Fifth Circuit.
Although decided prior to enactment of the Civil Rights Attorneys’ Fees Awards Act of 1976, Pub.L. No. 94-559, § 2, 90 Stat. 2641, which authorized attorney’s fees awards in Civil Rights Act suits, Johnson dealt with a similar attorney’s fee provision in the federal employment discrimination legislation. Title VII of the Civil Rights Act of 1964, § 706(k), 42 U.S.C. § 2000e-5(k). The guidelines set forth in Johnson have since been applied by courts to attorney’s fee awards under a wide range of statutes, not limited to the civil rights context. See, e.g., Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575 (5th Cir. 1980) (antitrust); Matter of First Colonial Corp. of America, 544 F.2d 1291, 1298-99 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977) (bankruptcy); Miller v. Mackey International, Inc., 515 F.2d 241, 242 (5th Cir. 1975) (securities); Ward v. Kelly, 515 F.2d 908, 912 (5th Cir. 1975) (school desegregation); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976) (labor).
. The court’s specific discussion of factor six stated only that “[a]lthough he is unable to locate the contract, plaintiff’s attorney testified that he believes the arrangement with plaintiff was for a 40 to 50 percent contingent fee or attorneys’ fees awarded by the court, which
. The district court listed the contingency fee factor (Johnson factor 6) as one of a group of five factors that had “little appreciable impact on the fee analysis” and were “on balance, neutral.” The court’s findings on three of those factors ((2) novelty and difficulty of issues; (4) preclusion of other employment; and (10) desirability of case) would have supported a decrease in the award.
. At the hearing, the judge stated:
I’m not talking about a case where the issues are all scrambled in and the evidence as to one really flops into the other issue. I’m not talking about those. Here in this case you seem to have either a bifurcated situation or one that there, in fact, could have been two lawsuits; one was a procedural due process, and the other was the issue of damages or justification.
* * * * * *
I think clearly the Court has discretion on when a party moves along after summary judgment and prevails on the remaining issues in the case____ [T]he legal result [would be] that the attorney would be entitled to be compensated for the time reasonably invested in pursuing the case to its end, because, in effect, at the end, plaintiff prevails on most of the issues in the case.... But here you prevailed on procedural due process, and the rest of the time was spent preparing for trial on the issue of damages, as I see it.
Transcript of Attorney’s Fees Hearing at 60, 61.
Reference
- Full Case Name
- Robert D. MARION v. Charles P. BARRIER, individually and as an agent and employee of the City of Tallahassee, Daniel A. Kleman, individually and as City Manager of the City of Tallahassee, and the City of Tallahassee, Florida
- Cited By
- 15 cases
- Status
- Published