1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0186P (6th Cir.)

File Name: 04a0186p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

RITA SANDERS GEIER;

PATRICK J. GILPIN; ERNEST

TERRELL; HAROLD SWEATT;

PHILLIP SWEATT, Individually

and as Next Friend of Phillip

Sweatt; CITIZENS AND

RESIDENTS OF THE STATE OF

TENNESSEE; CITIZENS OF THE

UNITED STATES,

Plaintiffs-Appellants,

v.

DON SUNDQUIST, et al.,

Defendants-Appellees.

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No. 02-6400

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 68-05077—Thomas A. Wiseman, Jr., District Judge.

Argued: April 27, 2004

Decided and Filed: June 18, 2004 

2 Geier, et al. v. Sundquist, et al. No. 02-6400

*

The Honorable S. Arthur Spiegel, United States District Judge for

the Southern District of Ohio, sitting by designation. 

Before: COLE and COOK, Circuit Judges; SPIEGEL,

District Judge.*

_________________

COUNSEL

ARGUED: Lewis R. Donelson III, BAKER, DONELSON,

BEARMAN & CALDWELL, Memphis, Tennessee, for

Appellants. Richard F. Haglund III, OFFICE OF THE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellees. ON BRIEF: George E. Barrett, Edmund L.

Carey,Jr., BARRETT, JOHNSTON & PARSLEY,Nashville,

Tennessee, for Appellants. Kathleen A. Eyler, OFFICE OF

THE ATTORNEY GENERAL, Nashville, Tennessee, for

Appellees.

COLE, J., delivered the opinion of the court, in which

SPIEGEL, D. J., joined. COOK, J. (pp. 23-25), delivered a

separate dissenting opinion.

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. Appellants, the Geier

Plaintiffs, appeal the district court’s judgment awarding them

$376,587.50 in attorneys’ fees pursuant to 42 U.S.C. § 1988

for legal services performed in connection with this civil

rights action – ongoing for the past thirty-six years – which

led to the desegregation of Tennessee’s public higher

education system. The Geier Plaintiffs contend that the

district court abused its discretion in: (1) declining to award

fees pursuant to the “common fund”/“common benefit”

method; (2) setting a lodestar rate of $250 per hour where the
No. 02-6400 Geier, et al. v. Sundquist, et al. 3

Geier Plaintiffs had requested and submitted market data

supporting an hourly rate of $400; and (3) considering the

Johnson factors legally unavailable for establishing and

enhancing the lodestar figure. We find no abuse of discretion

in the district court’s declining to use the “common fund”/

“common benefit” method for calculating attorneys’ fees.

However, because of errors in the district court’s analyses

concerning the appropriate hourly rate and the Geier

Plaintiffs’ entitlement to an upward adjustment of the fee

award, we vacate the fee award and remand this case to the

district court for further proceedings consistent with this

opinion. 

I. BACKGROUND

This action, which was filed in 1968, concerns the

desegregation of Tennessee’s public universities. The facts

and lengthy history of this litigation have been set forth in the

prior opinions of this Court and the district court. See Geier

v. Sundquist, 94 F.3d 644 (6th Cir. 1996); Geier v.

Richardson, 871 F. 2d 1310 (6th Cir. 1989); Geier v.

Alexander, 801 F.2d 799 (6th Cir. 1986); Geier v. Alexander,

593 F. Supp. 1263 (M.D. Tenn. 1984); Geier v. University of

Tennessee, 597 F.2d 1056 (6th Cir.), cert. denied, 444 U.S.

886 (1979); Geier v. Blanton, 427 F. Supp. 644 (M.D. Tenn.

1977); Geier v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972);

and Sanders v. Ellington, 288 F. Supp. 937 (M.D. Tenn.

1968). Because, however, the matter before us benefits from

an appreciation of the history and magnitude of this action,

we set forth the case’s background here. 

In 1968, several African-Americans (the “Geier Plaintiffs”)

sued the Governor of Tennessee, the University of Tennessee

(“UT”), Tennessee A & I State University, and various

Tennessee educational agencies and officials to enjoin UT

from expanding its program at a non-degree-granting

educational institution in Nashville. The complaint alleged

that any expansion of UT Nashville would affect the efforts

of Tennessee State University (“TSU”), a predominantly

4 Geier, et al. v. Sundquist, et al. No. 02-6400

African-American institution, to desegregate its student body

and faculty. The United States intervened as a plaintiff in

1968, requesting more expansive relief sought by the original

plaintiffs. The United States asked the court to “order the

State defendants to present a plan calculated to produce

meaningful desegregation of the public universities in

Tennessee.” Sanders, 288 F. Supp. at 939. The case soon

became the vehicle for the desegregation of state-affiliated

colleges and universities throughout Tennessee. In 1973, a

group of parents, teachers, and faculty members were allowed

to intervene (“Richardson Intervenors”). In 1983, the district

court allowed another group of African-American and white

TSU faculty members and students to intervene (“McGinnis

Intervenors”). Also in 1983, the district court permitted the

TSU Alumni Association to appear as amicus curiae. 

The district court found that six years elapsed after Brown

v. Board of Education, 347 U.S. 483 (1954), before racial

requirements for admission to Tennessee’s publicuniversities

and colleges were abolished. Although all of the state’s

public higher education institutions had non-discriminatory

open door admissions by 1968, the district court found that

“the dual system of education created originally by law has

not been effectively dismantled.” Sanders, 288 F. Supp. at

940. Relying on Green v. County School Board, 391 U.S.

430 (1968), the district court stated that it was “convinced

that there is an affirmative duty imposed upon the State by the

Fourteenth Amendment to the Constitution of the United

States to dismantle the dual system of higher education which

presently exists in Tennessee.” Id. at 942. The court then

ordered Defendants to submit a plan “designed to effect such

desegregation of the higher educational institutions in

Tennessee, with particular attention to Tennessee A & I State

University, as to indicate the dismantling of the dual system

now existing.” Id. Defendants did not appeal.

Defendants submitted a plan to the court that relied

primarily on the efforts of predominantly white institutions to

expand efforts to recruit black students and faculty. The plan
No. 02-6400 Geier, et al. v. Sundquist, et al. 5

called for TSU to recruit white students and faculty and to

develop and publicize academic programs that would attract

white as well as black students from the Nashville area. The

Geier Plaintiffs and the United States filed objections to the

plan, and, after a hearing, the district court found that the plan

lacked specificity. Instead of disapproving the plan, however,

the district court directed Defendants to file a report showing

what had been done to implement each component of the

plan.

Defendants’ report showed some progress in attracting

African-American students to the formerly all-white

institutions, but little improvement in the number of black

faculty at those schools, and virtually no progress in

desegregating TSU. The Geier Plaintiffs filed a motion for

further relief, contending that the plan and report failed to

offer a scheme for dismantling the dual system of public

higher education, as ordered by the court. While that motion

was being considered by the district court, a new report

showed that TSU remained 99.7% African-American and that

its entering class in the fall of 1970 was 99.9% AfricanAmerican. The district court found that so long as TSU

remained overwhelmingly black, it could not be said that

Defendants had dismantled the dual system or that they were

“in any realistic sense, on their way toward doing so.” Geier

v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972). 

The district court found that an “open door policy, coupled

with good faith recruiting efforts . . . is sufficient as a basic

requirement” for desegregating institutions of public higher

education. Id. at 580 (emphasis in original). However, the

court held, where this basic requirement fails to eliminate

identifiably “white” and “black” institutions, something more

is required. Defendants were ordered to present another plan

to the court by March 15, 1972, that would provide for

substantial desegregation of the TSU faculty and ensure a

substantial white presence on the TSU campus. Id. at 581.

6 Geier, et al. v. Sundquist, et al. No. 02-6400

In the subsequent years, Defendants submitted several

plans, and the district court ordered that some courses and

fields of study be offered exclusively at UT Nashville.

Eventually, all of the plaintiffs, including the United States,

proposed a merger of TSU and UT Nashville, with TSU as

the surviving institution. The district court held a month-long

evidentiary hearing on this proposal in 1976. After

considering voluminous records and testimony, the district

court found steady, but slow progress in attracting black

students and faculty to the formerly-white institutions, but, as

before, little or no progress in converting TSU from a onerace university. The court concluded that the plans applied in

the course of the eight years that the litigation had been active

had not worked and showed no prospect of working. The

court therefore ordered the merger of TSU and UT Nashville

into a single institution under the state’s Board of Regents.

The district court chose this “drastic remedy” because “the

State’s actions have been egregious examples of

constitutional violations.” Geier v. Blanton, 427 F. Supp.

644, 660 (M.D. Tenn. 1977). 

In affirming the district court, Geier v. University of

Tennessee, 597 F. 2d 1056 (6th Cir.), cert. denied, 444 U.S.

886 (1979), we held that the pronouncement in Green v.

County School Board of an affirmative duty to remove all

vestiges of state-imposed segregation applies to public higher

education as well as to education at lower levels. Geier, 597

F.2d at 1065 (“[T]he state’s duty is as exacting to eliminate

the vestiges of state-imposed segregation in higher education

as in elementary and secondary school systems; it is only the

means of eliminating segregation which differ.”) (quotation

and citation omitted)). We also held that the district court’s

factual findings were not clearly erroneous, id. at 1067, and

that the remedy ordered was within the traditional bounds of

equitable relief. Id. at 1068.
No. 02-6400 Geier, et al. v. Sundquist, et al. 7

A. The 1984 Settlement

The history of the litigation to this point illustrates the

arduous path along which the original parties and Defendants

traveled before they entered a stipulation of settlement

(“Settlement”) on September 25, 1984. Geier v. Alexander,

593 F. Supp. 1263 (M.D. Tenn. 1984), aff’d, 801 F.2d 799

(6th Cir. 1986). All of the parties, except for the United

States, agreed to the comprehensive Settlement requiring

Defendants to implement numerous new desegregation

programs throughout Tennessee’s systemof higher education,

including: (1) attempting to obtain a student body at TSU that

is 50% white; (2) assuring that changes in admissions policies

do not have an adverse racial impact; and (3) actively

recruiting African-American faculty and administrative staff

for Tennessee’s predominantly white institutions. The

Settlement also established a monitoring committee and

provided for the resolution of disputes among the parties.

“The plan embodied in the [Settlement] was the culmination

of long hours and days of negotiations in which all parties,

including the United States, participated.” Geier, 801 F.2d at

802.

But the struggle to desegregate Tennessee’s system of

higher education continued. Shortly after the district court

approved the Settlement, the United States filed a

memorandum challenging many of the programs contained in

the Settlement. The district court rejected the Government’s

arguments and the Government appealed to this Court, Geier

v. Alexander, 801 F.2d 799 (1988), challenging only that part

of the Settlement that established a pre-professional program

pursuant to which seventy-five qualified African-American

sophomores would be selected each year and guaranteed

admission to one of the state’ professional schools upon

completing his or her undergraduate work and satisfying the

relevant school’s admissions standards. The Government

argued that this constituted a “racial quota” system, but this

Court rejected that argument and affirmed the district court’s

judgment authorizing the Settlement. 

8 Geier, et al. v. Sundquist, et al. No. 02-6400

Next ensued a request for interim attorneys’ fees by the

individual plaintiffs and state defendants, who claimed that

they were the “prevailing parties” within the meaning of

42 U.S.C. § 1988 after the United States intervened in this

suit, sought relief beyond the injunction requested by the

private parties, and then challenged the Settlement entered

into between the parties and approved by the district court,

requiring both the private plaintiffs and Defendants to defend

the Settlement’s terms. The district court awarded attorneys’

fees against the United States to the Geier Plaintiffs and the

state. The United States appealed and we vacated the award.

Geier v. Richardson, 881 F.2d 1075, No. 88-5155, 1989 WL

90761 (6th Cir. Aug. 11, 1989).

B. The 2001 Consent Decree

In 1994, the state moved to vacate the 1984 Settlement and

terminate the litigation based, in part, on a change in the law

stemming from the Supreme Court’s decision in United States

v. Fordice, 505 U.S. 717 (1992), which addressed

Mississippi’s dual system of public higher education. In

1996, again relying on Fordice, Defendants moved for a

judgment on the pleadings. The district court did not rule on

the motion to vacate, and it eventually denied the state’s

motion for judgment on the pleadings. 

Ultimately, in January of 2000, the parties entered

voluntary mediation. Once again, the parties devoted

substantial time to considering the state of racial equality in

Tennessee’s system of higher education. In January 2001, the

parties entered into a Consent Decree, Geier v. Sundquist, 128

F. Supp. 2d 519 (M.D. Tenn. 2001), which states, in part:

In dismantling the vestiges of the former dual system, it

is the parties’ intention to create an education system that

enhances the increased enrollment of African American

students at the predominantly white institutions and that

likewise enhances the enrollment of white students at the

State’s predominantly black institution. To achieve this
No. 02-6400 Geier, et al. v. Sundquist, et al. 9

1

Although the court’s opinion also determined a fee award for the

Richardson Intervenors, the state ultimately reached an agreement with

them and paid their attorneys’ fees.

goal, the parties are committed to maintaining

educational institutions that are committed to

desegregation and to reaching out to all residents of this

State regardless of race. It is also the intention of the

parties that employment and promotion decisions within

the State’s system of higher education be made in an

environment unfettered by the discriminatorypractices of

the old dual system. The goal is to increase the presence

of other-race faculty, staff, and administrators on the

campuses of the State’s colleges and universities.

128 F. Supp. 2d at 521.

C. Attorneys’ Fees

Pursuant to the 2001 Consent Decree, the Geier Plaintiffs,

the Richardson Intervenors, and the McGinnis Intervenors

filed applications for attorneys’ fees with the Tennessee

Attorney General. The McGinnis Intervernors reached an

agreement with the state and were paid attorneys’ fees in June

2001. However, unable to agree on an award amount with the

state, the Geier Plaintiffs and Richardson Intervenors filed

their applications for attorneys’ fees with the federal district

court. They requested a hearing concerning the fee

applications, but the district court deemed it unnecessary.

On September 27, 2002, the district court issued an Opinion

and Order concerning the attorneys’ fees, awarding the Geier

Plaintiffs’ $376,587.50, although they had requested

$5,000,000. Geier v. Sundquist, 227 F. Supp. 2d 881 (M.D.

Tenn. 2002).1 The district court used the lodestar method for

calculating the fee award and concluded that $250 per hour

was a reasonable hourly fee. It then determined that counsel

for the Geier Plaintiffs should be compensated for 1432.55

10 Geier, et al. v. Sundquist, et al. No. 02-6400

hours, which included 416 hours of undocumented time.

Counsel urged the court to consider the so-called “Johnson

factors,” listed in Johnson v. Georgia Highway Exp., Inc., 488

F.2d 714 (5th Cir. 1974), either as bearing upon the lodestar

amount or an enhancement thereof. But, for reasons that will

be described in more detail below, the district court fixed the

lodestar at $250 and deemed any enhancement legally

unwarranted.

The Geier Plaintiffs’ fee award – which covers the period

between June 1987 and January 2001 – is the subject of this

appeal. Pursuant to the 1984 Settlement, they received

$85,000 in interim attorneys’ fees in 1988; that is the only fee

the Geier Plaintiffs have received to date.

II. ANALYSIS

We review a district court’s award of attorneys’ fees for

abuse of discretion. Perotti v. Seiter, 935 F.2d 761, 763

(1991). “An abuse of discretion exists when the district court

applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.”

First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th

Cir. 1993).

A. Common Fund/Common Benefit Method

The Geier Plaintiffs’ first claim on appeal is that the district

court abused its discretion in declining to use the “common

fund”/“common benefit” method (hereinafter “common

fund”) for determining attorneys’ fees. Like the lodestar

method, the common fund method is an exception to the

general “American rule” that litigants pay their own

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:

The doctrine rests on the perception that persons who

obtain the benefit of a lawsuit without contributing to its
No. 02-6400 Geier, et al. v. Sundquist, et al. 11

cost are unjustly enriched at the successful litigant’s

expense. Jurisdiction over the fund involved in the

litigation allows a court to prevent this inequity by

assessing the attorneys’ fees against the entire fund, thus

spreading fees proportionately among those benefitted by

the suit.

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980)

(citations omitted). In order for a class to recover attorneys’

fees pursuant to the common fund doctrine: (1) the class of

people benefitted by the lawsuit must be small in number and

easily identifiable; (2) the benefits must be traceable with

some accuracy; and (3) there must be reason for confidence

that the costs can in fact be shifted with some exactitude to

those benefitting. Aleyska Pipeline Serv. Co. v. Wilderness

Soc’y, 421 U.S. 240, 247 (1975). The Supreme Court has

stated that “[t]hose characteristics are not present where

litigants simply vindicate a general social grievance.”

Boeing, 444 U.S. at 478. The criteria are met, however,

“when each member of a certified class has an undisputed and

mathematically ascertainable claim to part of a lump-sum

judgment recovered on his behalf.” Id. As such, the common

fund method is often used to determine attorneys’ fees in

class action securities cases, see, e.g., Boeing, 444 U.S. 472,

and suits by union members against their unions, see, e.g.,

Hall v. Cole, 412 U.S. 1 (1973).

It was not an abuse of discretion for the district court to

decline to use the common fund method in this case. In

addition to the doctrine being inapplicable where litigants are

vindicating a social grievance, the doctrine is inappropriate

here because there is simply no fund. The benefit provided to

the plaintiff class – the desegregation of Tennessee’s system

of higher education – is not pecuniary in any conventional

way and did not result in the creation of a fund to be divvied

up among the plaintiffs, as is the case in common fund cases.

Although (as the Geier Plaintiffs urge) the benefits attained

could perhaps be measured as pecuniary – in the sense that a

dollar value could be assigned to the cost of the remedial

12 Geier, et al. v. Sundquist, et al. No. 02-6400

measures – transposing the action’s social value into

monetary value is imprecise, and more importantly, still

leaves us without a fund. The money designated by

Tennessee for the remedial programs goes to fund the

programs, not to pay the plaintiffs. Moreover, applying the

Aleyska factors, described above, the common fund method

is unworkable here: the class of persons benefitted by this

lawsuit is not at all small or manageable. Rather, according

to the 2001 Consent Decree, the class includes “all residents

of this State,” Geier, 128 F. Supp. 2d at 521. As such, the

class is not easily identifiable and the benefits could not be

traced with any accuracy.

B. Reasonable Hourly Rate

Having declined to use the common fund doctrine for

calculating attorneys’ fees, the district court instead used the

lodestar approach whereby the court multiplies a reasonable

hourly rate by the proven number of hours reasonably

expended on the case by counsel. Adcock-Ladd v. Secretary

of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). “The primary

concern in an attorney fee case is that the fee awarded be

reasonable, that is, one that is adequately compensatory to

attract competent counsel yet which avoids producing a

windfall for lawyers.” Reed v. Rhodes, 179 F.3d 453, 471

(6th Cir. 1999) (citing Blum v. Stenson, 465 U.S. 886, 893,

897 (1984). To arrive at a reasonable hourly rate, courts use

as a guideline the prevailing market rate, defined as the rate

that lawyers of comparable skill and experience can

reasonably expect to command within the venue of the court

of record. Adock-Ladd, 227 F.3d at 350. The Geier

Plaintiffs contend that the district court abused its discretion

in finding $250 a reasonable hourly rate when they had both

requested $400 per hour and submitted evidence that $400

was the reasonable hourly rate for lawyers of skill and

experience comparable to George E. Barrett, the Geier

Plaintiffs’ lead counsel, litigating a civil rights action of this

scale. 
No. 02-6400 Geier, et al. v. Sundquist, et al. 13

We recognize that deference is to be given to a district

court’s determination of a reasonable attorneys’ fee.

Nonetheless, it remains important for the district court to

provide an adequate explanation of the reasons for its award

and the manner in which that award was determined. Hensley

v. Eckerhart, 461 U.S. 424, 437 (1983) (“it remains important

for the district court . . . to provide a concise but clear

explanation of its reasons for the fee award.”). At times, we

have found an abuse of discretion where a district court fails

to explain its reasoning adequately or to consider the

competing arguments of the parties. See Moore v. City of

Paducah, 790 F.2d 557 (6th Cir. 1986). 

Here, in determining the reasonable hourly rate, the district

court appears to have relied almost exclusively on market data

provided by Defendants, citing to local awards of

approximately $250 per hour in civil rights cases. (The court

also purported to rely on its own judicial experience, noting:

“My recollection is not what it once was, but I cannot recall

ever awarding a fee in excess of $250 per hour.” Geier, 227

F. Supp. 2d at 886.). While this data is informative, the

district court never mentioned that the Geier Plaintiffs’

counsel requested $400 per hour, and the court never

discussed any of the evidence submitted by the Geier

Plaintiffs supporting a $400 per hour rate. Attorney Lewis R.

Donelson, of Nashville, Memphis, and Knoxville’s Baker,

Donelson law firm, submitted an affidavit stating that a $450

hourly rate for Mr. Barrett was “fair and reasonable [and] not

an uncommon rate for leading attorneys in Tennessee at this

time,” and that Mr. Barrett “is certainly the leading expert on

civil rights desegregation cases.” There were similar

affidavits – attesting to the reasonableness of a $400 or $450

hourly fee – from five other attorneys. In addition, the Geier

Plaintiffs point to the $400 per hour rate awarded attorneys in

Craft v. Vanderbilt University, a federal class action from the

Middle District of Tennessee alleging civil rights violations

in connection with a 1940s medical experiment in which

pregnant women unknowingly ingested radioactive iron

isotope. 

14 Geier, et al. v. Sundquist, et al. No. 02-6400

We also note that the district court determined that $250 per

hour was the appropriate hourly rate for the McGinnis

Intervenors’ counsel, Messrs. Norris and Weatherly. The

Geier Plaintiffs argued that they were more experienced and

more active in the litigation than the intervenors’ counsel, and

that therefore, they are entitled to a higher hourly rate. We

find this argument sensible. According to the record, Norris

and Weatherly are less experienced than Mr. Barrett, and both

were paid at lower hourly rates earlier in this lawsuit. See

Geier 227 F. Supp. 2d at 883 (explaining that, in 1987, Norris

was paid $90 per hour; Dinkins $125 per hour; and Barrett

$150 per hour). Furthermore, by Mr. Norris’s own

admission, in a letter to Mr. Barrett dated February 2, 2001,

he and Weatherly played a less “global” role in this action

through the years.

In short, the district court’s order contains no explanation

of how – or even if – it accounted for the Geier Plaintiffs’

competing information concerning the prevailing market rate.

Absent some indication of how the district court’s discretion

was exercised, we have no way of knowing whether that

discretion was abused. See Chalmers v. City of Los Angeles,

796 F.2d 1205 (9th Cir. 1986) (vacating award of attorneys’

fees and remanding where district court’s opinion

insufficiently explained how it arrived at the fee amount). We

are, therefore, unable to affirm the decision below. 

Accordingly, the hourly rate determination as to the Geier

Plaintiffs is vacated and we remand this matter for further

review based upon the market data of record, including the

Geier Plaintiffs’ submissions.

C. The Johnson Factors

The Geier Plaintiffs’ last claim on appeal is that the district

court abused its discretion in failing to consider the

Johnson factors as bearing on the initial lodestar figure and

any enhancement thereof. The Supreme Court has repeatedly

stated that “[t]he primary concern in an attorney fee case is
No. 02-6400 Geier, et al. v. Sundquist, et al. 15

that the fee award be reasonable.” Blum v. Stenson, 465 U.S.

886, 893 (1984). As already discussed, the first step in

determining a reasonable fee in a lodestar case is to multiply

the number of hours reasonably expended on the litigation by

a reasonable hourly rate. Once the lodestar figure is

established, the trial court is permitted to consider other

factors, and to adjust the award upward or downward to

achieve a reasonable result. Hensley v. Eckerhart, 461 U.S.

424, 434 (1983). In considering any adjustment, the Supreme

Court has cited with approval the twelve factors listed in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,

717-19 (5th Cir. 1974). Hensley, 461 U.S. at 430 n. 3, 434 n.

9. Those factors are:

(1) the time and labor required; (2) the novelty and

difficulty of the question; (3) the skill requisite to

perform the legal service properly; (4) the preclusion of

other employment by the attorney due to acceptance of

the case; (5) the customary fee; (6) whether the fee is

fixed or contingent; (7) time limitations imposed by the

client or the circumstances; (8) the amount involved and

the results obtained; (9) the experience, reputation, and

ability of the attorney; (10) the “undesirability” of the

case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar

cases.

Johnson, 488 F.2d at 717-19. The Supreme Court, however,

has limited the application of the Johnson factors, noting that

“many of these factors usually are subsumed within the initial

calculation of hours reasonably expended at a reasonable

hourly rate.” Hensley, 461 U.S. at 434 n. 9. 

Since we are vacating the lodestar figure in light of the

hourly rate issue discussed in Part II, Section B. above, there

is no reason to address, at this time, the Geier Plaintiffs’

contention that the district court failed to consider the

Johnson factors in establishing that initial figure. However,

we agree with the Geier Plaintiffs that the district court erred

16 Geier, et al. v. Sundquist, et al. No. 02-6400

by failing to consider an upward adjustment of the lodestar

figure. To help explain why this is so, we set forth, in

relevant part, the district court’s analysis on this point. The

district court stated: 

Counsel urges the Court to consider the Johnson factors

. . . either as bearing upon the lodestar amount or an

enhancement thereof. . . . [The district court here lists

the Johnson factors]. . . .

The one factor in Johnson that the Supreme Court felt

may be still available is that of “risk.” When the case

was filed in 1968, there was substantial risk that the

outcome might be unfavorable. Although Brown v.

Board had been decided 14 years before, this case

involved higher education and the law was unsettled.

Risk was removed after Judge Gray’s early decisions,

and certainly was finally removed after the Stipulation of

Settlement in 1984. Thereafter, the case only required

monitoring for compliance. A flurry of activity in the

case arose when the state sought dismissal under the

decision in Fordice. When Attorney General Paul

Summers took office and indicated a desire to settle the

case, and initiated mediation, good will and innovative

efforts on the part of all counsel and parties resulted in

the Consent Decree. Therefore, under the teaching of

[Pennsylvania v. Delaware Valley Citizens’ Council for

Clear Air, 478 U.S. 546 (1986) no enhancement is

warranted and the Court fixes the lodestar at $250 per

hour.

Geier, 227 F. Supp. 2d at 886-87 (emphasis in original).

Although the district court quoted from that part of

Delaware Valley indicating that “adjustments of the lodestar

figure are still permissible” in “rare” and “exceptional” cases,

478 U.S. at 565, the court never discussed whether this is

such a special case. Instead, the district court stated that none

of the Johnson factors are legally available as bearing on an
No. 02-6400 Geier, et al. v. Sundquist, et al. 17

upward adjustment, except for “risk.” The court then

determined that there was no risk level in this case after the

1984 Settlement (a questionable conclusion in light of the

state’s efforts to dismiss the case in 1994, resulting in

protracted litigation and negotiations resulting in a new

Consent Decree in 2001; but this is not pressing to the issue

now before us), and that therefore, “no enhancement [of the

lodestar] is warranted.” Geier, 227 F. Supp. 2d at 887.

Unfortunately, that analysis was not correct. The Supreme

Court has emphasized that, although application of the

Johnson factors is limited, upward adjustments are

permissible in certain “rare” and “exceptional” cases.

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 478 U.S. 546, 564 (1986). We also note that the

Supreme Court has not had occasion to individually address

each of the factors; it has only provided specific guidance

concerning some of them. In its clearest pronouncement

concerning the Johnson factors, the Supreme Court held that

neither the complexity nor novelty of the issues in a case is an

appropriate factor in determining whether to increase the

basic fee award. Blum, 465 U.S. at 898-99. With respect to

risk – that is, the risk of not prevailing in the litigation – the

Supreme Court has held this factor applicable only where the

trial court specifically finds that the case is one of the

“exceptional” cases in which an upward adjustment is

appropriate and that there was real risk of not prevailing in the

case. Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 483 U.S. 711, 730-31 (1987). In addition, as a

general rule, the upward adjustment for risk may be no more

than one third of the lodestar, and “[a]ny additional

adjustment [for risk] would require the most exacting

justification.” Id. at 730. Because the “rare” and

“exceptional” determination must precede any risk analysis,

the district court here was not even permitted to reach the risk

analysis, having never considered whether this case is one of

the rare and exceptional ones meriting an upward adjustment.

18 Geier, et al. v. Sundquist, et al. No. 02-6400

Of the factor pertaining to the quality of counsel’s

representation, the Supreme Court stated in Blum that it is

“generally . . . reflected in the reasonable hourly rate,”

although it may still justify an upward adjustment “in the rare

case where the fee applicant offers specific evidence to show

that the quality of service rendered was superior to that one

reasonably should expect in light of the hourly rates charged

and that the success was ‘exceptional’.” Blum, 465 U.S. at

899. Similarly, with respect to the factor pertaining to the

“results obtained,” the Supreme Court stated that it “generally

will be subsumed within other factors used to calculate a

reasonable fee” and “normally should not provide an

independent basis for increasing the fee award.” Id. at 900.

But the Supreme Court was careful to stress that it was not

blanketly precluding consideration of “results obtained,” but

rather establishing a presumption that that factor is included

in the initial lodestar figure but may still be considered as part

of an upward adjustment in exceptional cases: “[W]e reiterate

what was said in Hensley: ‘where a plaintiff has obtained

excellent results, his attorney should recover a fully

compensatory fee. Normally this will encompass all hours

reasonably expended on the litigation, and indeed in some

cases of exceptional success an enhancement award may be

justified.” Id. at 901 (quoting Hensley, 461 U.S. at 435).

Lastly, to underscore its point that certain Johnson factors –

including the “results obtained” – are applicable to a trial

court’s consideration of an upward adjustment in exceptional

cases, the Supreme Court explicitly reject[ed] petitioner’s

argument that an upward adjustment to an attorney’s fee is

never appropriate under § 1988. Id. at 901.

The last Supreme Court case to consider the Johnson

factors in any depth reaffirmed Blum. In Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 478 U.S.

546, 565 (1986) (hereinafter “Delaware Valley”), the

Supreme Court noted that factors such as “the special skill

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

as independent bases for increasing the basic fee award.”

Again, however, the Supreme Court stated that “upward

adjustments of the lodestar figure are still permissible” and

are proper “in certain ‘rare’ and ‘exceptional’ cases.” Id. at

565 (quoting Blum, 465 U.S. at 898-901). In Delaware

Valley, the Supreme Court does not purport to expand Blum

in any way. Accordingly, we must construe its statement that

certain Johnson factors “cannot serve as independent bases

for increasing the basic fee award,” id., not in isolation or as

precluding use of those factors altogether, but rather in light

of (1) the statements that precede it – namely that the named

factors are “presumably” reflected in the lodestar fee, but not

certainly so; (2) the statements that follow it, reiterating that

upward adjustments are permissible in “rare” and

“exceptional” cases; and (3) Blum, the case that that portion

of Delaware Valley is summarizing, which preserved the use

of the “results obtained” and the “quality of representation”

for an upward adjustment analysis in those “rare” and

“exceptional” cases. 

Here, the district court neither found this case exceptional

nor unexceptional – and as such, should not have even

reached the risk analysis that it performed. Moreover, as we

have explained, it is not the case, as the district court

believed, that all of the Johnson factors are no longer

available as bearing on an adjustment of the lodestar figure.

Certain factors – such as the “results obtained” – are still

relevant, following the predicate determination that the case

is one of the rare and exceptional ones meriting an upward

adjustment. Because the district court applied the wrong legal

standard to the upward adjustment analysis – and also seemed

to imply, in error, that upward adjustments are no longer even

permissible – we find an abuse of discretion. First Tech.

Safety Sys., 11 F.3d at 647 (“An abuse of discretion exists

when the district court applies the wrong legal standard. . . .”).

Nor are we satisfied that the district court engaged in the

proper legal analysis simply because it quoted from the

germane part of Delaware Valley. To cite a standard is not

20 Geier, et al. v. Sundquist, et al. No. 02-6400

the same as applying it, particularly where the court has

overlooked several of the most important elements of the

standard – in this case, the continuing permissibility of

upward adjustments in exceptional cases and the relevance of

certain Johnson factors to that adjustment. 

The Geier Plaintiffs have asserted that this is one of those

“rare” and “exceptional” cases meriting an upward adjustment

of the lodestar figure. The appropriate legal analysis begins

with consideration of that question. As detailed in Part I of

this opinion, the magnitude of this case is formidable in

numerous respects. The legal principles advanced by the

Geier Plaintiffs were pathbreaking and of great social import.

It was in this case that this Court first held that there was an

affirmative duty to remove all vestiges of state-imposed

segregation in institutions of public higher education, just as

there was such an obligation at lower educational levels.

Plaintiffs have litigated – successfully – for thirty-six years

against continuous state opposition and contrary judicial

precedents outside this Circuit, and they have secured

injunctive relief – valued at approximately $320 million – in

programs affecting all public institutions of higher education

in the state of Tennessee.

When this case was filed, it focused the federal judiciary on

the desegregation of public higher education. See Decl. of

David Williams, II, Vice Chancellor for Student Life and

University Affairs and General Counsel and University

Secretary, Vanderbilt University ¶¶ 6-14. (JA 554-56.)

Defendants had argued that a good faith, open door policy of

admissions satisfied the requirements of the Fourteenth

Amendment for racial equality in public institutions of higher

education. Their argument was based on an interpretation of

the outcome of a civil rights action in Alabama, in which a

federal district court denied the plaintiffs injunctive relief

concerning state officials’ plans to expand a previously white

campus near a historically black college in Montgomery,

Alabama. The U.S. Supreme Court had summarily affirmed.

See Alabama State Teachers Ass’n v. Alabama Pub. Sch. and
No. 02-6400 Geier, et al. v. Sundquist, et al. 21

Coll. Auth., 289 F. Supp. 784, 787 (M.D. Ala. 1968), aff’d

393 U.S. 400 (1969) (hereinafter “ASTA”). The opinion in

ASTA and the SupremeCourt’s summary affirmance led some

to believe that an open door policy alone was sufficient to

remedy de jure segregation in higher education. It was Geier

that steered the jurisprudence in a different direction and

became the basis for concerted efforts by the Office of Civil

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.

22 Geier, et al. v. Sundquist, et al. No. 02-6400

III. CONCLUSION

For the reasons set forth above, we VACATE the district

court’s award of attorneys’ fees to the Geier Plaintiffs and

REMAND for: (1) further explanation concerning the hourly

rate; (2) calculation of the lodestar figure; and

(3) determination of any upward adjustment. 
No. 02-6400 Geier, et al. v. Sundquist, et al. 23

______________

DISSENT

______________

COOK, Circuit Judge, dissenting. Because I conclude that

the district court did not abuse its discretion in (1)

determining that $250 was a reasonable hourly rate for the

Geier plaintiffs’ counsel, and (2) refusing to apply an upward

adjustment to the lodestar amount, I respectfully dissent from

parts II.B and II.C of the majority’s opinion.

A. The Reasonable Hourly Rate

As the majority notes, a district court must provide a

“concise but clear explanation of its reasons for the fee

award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A

district court abuses its discretion when it “relies on clearly

erroneous findings of fact, or when it improperly applies the

law or uses an erroneous legal standard.” Adcock-Ladd v.

Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citation

omitted). This court may also find an abuse of discretion

“when [we are] firmly convinced that a mistake has been

made.” Id. at 349 (citation omitted). 

In determining the reasonable hourly rate for the Geier

plaintiffs’ counsel, the district court did not rely on clearly

erroneous findings of fact, improperly apply the law, or use

an erroneous legal standard. Instead, the district court used

the “prevailing market rates in the relevant community” to set

the reasonable hourly rate, surveying the hourly rates awarded

to highly experienced counsel in civil rights and class action

cases in Tennessee. Blum v. Stenson, 465 U.S. 886, 895

(1984) (holding that “‘reasonable fees’ under § 1988 are to be

calculated according to the prevailing market rates in the

relevant community”). Although the district court did not

expressly reject the Geier plaintiffs’ arguments supporting

their request for a $400 hourly rate, the district court’s

opinion reflects its rejection of the figure as exceeding the

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)

(“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

Tennessee for this type of work is $250 per hour.”). 

Citing Moore v. City of Paducah, 790 F.2d 557 (6th Cir.

1986), the majority infers an abuse of discretion from the

absence of explicit commentary in the district court’s opinion

about the competing arguments of the Geier plaintiffs. The

Moore court, however, defined abuse of discretion in the

context of a district court’s ruling on a motion to amend the

pleadings, and since that decision, this court has cited the

Moore definition only in that context. This court has not

previously held that a district court, having determined a

reasonable hourly fee using evidence of the prevailing market

rate in the relevant community, abused its discretion in failing

to explicitly discuss the arguments of one of the parties, and

we should not do so here. 

I conclude that under the highly deferential standard this

court applies in reviewing statutory fee awards, the district

court’s determination that $250 constitutes the reasonable

hourly rate for the Geier plaintiffs’ counsel was not an abuse

of discretion. Although discussing the Geier plaintiffs’

arguments in favor of a $400 hourly rate may have further

clarified the district court’s decision, the lack of such a

discussion does not leave me “firmly convinced that a

mistake has been made.” Adcock-Ladd, 227 F.3d at 349.

B. The Johnson Factors

The majority concludes that the district court misstated the

Supreme Court’s holding in Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 478 U.S. 546 (1986),

concerning a district court’s assessment of the Johnson factor

of “risk” when considering an upward adjustment. Geier, 227

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 factdriven.” 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 nonerroneous legal and factual basis for its decision, I would

affirm the fee award here. Because the majority does not, I

respectfully dissent.