1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0186P (6th C ir.) File Name: 04a01 86p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R ITA S ANDE RS G EIER ; P ATRICK J. G ILPIN ; E RNEST T ERRELL ; H AROLD S WEATT ; P HILL IP S WEATT , Ind

ividually and as Ne xt Friend o f Phillip Sweatt; C ITI ZENS AND R ESIDENTS OF THE S TATE OF T ENNESSEE ; C ITI ZENS OF THE U NITED S TATES , Plaintiffs- Appellant s,

v.

D ON S UNDQ UIST , et al., Defenda nts-Appe llees. X - - - -
> , - - - - - - - - - - - - N 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, e t al. v. Sun dquist, et al. No. 02-6400

* The Honorable S. Art hur Spiege l, Uni ted Stat es D ist ric t Ju dge f

or the So uthern District o f Ohio , sitting by de signatio n. Bef ore : C OLE a nd C OOK , C irc ui t J udg es; SP IEGE L,

District Judge. *

_________________ COUNSEL

ARGUED: Lewi s R . Do nel son III, BAKER, DONELSON, BEARM AN & CALDWEL L, Memphis, Tennessee, for Ap pellants. Richard F. Haglund I II , OFFICE OF TH E A TTORNEY GENERAL, Nashville, Tenne ssee, fo r Appellee s. ON BRI EF: George E. Barr ett, Edm und L. Ca re y, Jr., BARRETT, JOHNSTON & PARS LEY, Nashville
, Tennessee, for Appellants. Ka thleen A. Eyler, OF FICE OF THE ATTORNEY GENERAL, Nashville, Te nnessee, for Appellee s. COLE, J., delivered the opinion of t he court, in which SP IEGE L, D. J., joined. COOK, J. (pp. 23-25), delivered a separate dissenting opinion.

_________________ OPINION

_________________ R. GUY COLE, JR., Circuit Judge. Appellants, the Geier Plaintiff s, appeal the district

court’s judgment

awarding them $376,587.50 inattorneys’ f ees pursuant to 42 U.S.C. § 1988 for leg al service s perfor

med in con

nection w

ith this civil rightsaction – ongoing for the past thi rty-six y ears – which l ed to the desegregation of Te nnessee’s public hi ghe r educ ation system. The Geier Plaintiffs contend that the districtcourt abused its di scr etion in: (1) declining to award fees pursuant to the “co mm on fund” /“common

benefit ” method; (2) setting a lodestar rate of $250 per hour where theNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 3

Geier Plaintiff s had req uested a nd submit

ted market d

ata supporting an hourly ra

te of $400; and (3) conside ring the Johnson factors leg a lly unavailable for establishing and enhancing

the lodestar figure. We find no abuse of discretion inthe district court’s decl inin g to use the “common fund”/ “commonbenefit” method for calculating at torne ys’ fees. However, because of errors in the district court’s anal yses conce rning the appropriate hourly rate and the Geier Plaintiff s’ entitleme

nt to an upward adju stment of t h e fee award, we vacate the fee awa rd and rem and this case to the districtcourt for furthe

r proce edings c onsi sten t with this opinion.

I. BACKGROUND

This action , whic h was filed in 1968, concerns the desegregation

of Tennessee’s public universities. T he facts and lengthy history

of this litig ation hav e been se t forth in the prior opinions of this Court and the d istric t court. See Geier

v. S undquis t , 94 F.3d 6 44 (6th Cir . 1996); Geier v. Richardson
, 871 F. 2d 1 310 (6th Cir . 1989); Geier v. Alexander
, 801 F.2d 799 (6th Cir. 1986); Geier v. Alexander
, 593 F. Supp. 1263 (M.D. Tenn. 198 4); Geier v. University of Tennessee , 597 F.2d 1056 (6th Cir.), c ert . 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). Becau se, howe

ver, the matter be fore us b enefits

from
ana p preciation of the history and magnitude of this action, we set forth the case’s backg round here.

In1968, s everal African-America ns (the “Geier Plaintiffs”) sued the Governor

of Tennessee, the University of Tennessee (“UT”), Tenne sse e A & I State Univer sity, and various Te nnesse e educational agencies and off icials to enjoin UT fromexpanding

its prog

ram a t a n on-degree-gr

anting educational instituti on in Nashville. The complaint alleged that any expansion of UT Nas hville wou ld affe ct the ef

forts
o f T ennesse e State Un

iversity (“TSU”) , a predominantly 4 Geier, e t al. v. Sun dquist, et al. No. 02-6400

African-American

institution , to desegregate its student body
an d faculty. The

United States intervened as a plaintiff i n 1968, requestingmore expansive relief sought by the original plaintiff s. The United States asked the court to “order the S tate defendants to present a plan calculated to produc e mean ingful deseg

regat ion of the

public uni

versitie s in Tennessee.” Sanders , 288 F. Supp. at 939. The ca se so on beca me the vehicle for the desegregation of state-affiliated colleges and un i versities throughout Tennessee. I n 1973, a group of parents, teachers, and fac ulty members were

allowed to intervene (“Richardson I ntervenors”). In 1983, the district court allowed another group of Africa n-American and

white TSU faculty members and students to

interve ne (“Mc Ginnis In t ervenors”). Also in 1983, the district court permitted the TSU Alumni Association to appear as amicus curiae.

The district court found that six years elapse d after Brown

v. Board o

f Educat ion , 347 U.S. 483 (1954), before racial require ments for admis sion to Ten nessee’ s public uni versities and colleges were abolished. Although a l l of the state’s public higher education institutions had non-discriminatory opendoor admission s by 19 68, the district court found that “the dual system of educa tion created originally

by law has notbeen effectively

dismantled.” Sanders
, 288 F. Supp. at 940. Relying on Green v . County Sc

hool 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 Fourtee nth Amendment to the Constitution of the United States to dismantle the dual system of higher education

which pre sently exists in Tennessee.” Id. at 942. The court the n ordered Defend ants to submit

a plan “designed to effect suc h desegregation

of the hig

her educ ational in stitu

tio ns in Tennessee, with

particular attention to Tennessee A & I Stat e Un iv er si ty, as to indicate the dismantling of the dualsystem now existing.” Id. Defend ants did no t appeal

. Defend ants submitteda plan to the court that relied primaril y onthe eff orts of pr edominan tly white inst

itutions to expand efforts to recruit black

studentsand faculty. T

he planNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 5

called for TSU to recruit white stude nts and f aculty and to deve lop a nd pub liciz e 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, a fter a h earing, the district court found that the plan lacked specificity. Instead of disapproving the plan, however, the district court directed Defendants to file a repor t showing what had been do n e to implement each component of the plan.

Defend ants’ report showed some progress in at tracting African-American

stude n ts to the formerly all-white institution s, but little improvement in the number of black faculty at those s chools, a

nd virtu all y no

progre ss in desegregating

TSU. The Geie r Plaintiffs filed a motion for further relief, contending that the p lan a nd repor t failed t o offer a scheme

for dis mantl ing the d

ual system of pu

blic higher education, as ordered

by the court. While that motion
was being considered by the district court, a new report showed that TSU r

emained 99.7% Af rican- Americ an

and that its entering class in the fall of 1970 was 99.9% AfricanAmerican. The district court found tha t so long a s TSU remained ove rwhelm ingly blac

k, it could not be said that Defend ants had dismantled the dual system or that they were “in any rea listic sense, on their way towa rd doing so.” Geier v. Dunn , 337 F. Supp. 573 (M.D. Tenn. 1972).

The district court

fo un d t ha t a n “ op en do or po li cy, coupled with good fa ith recr uiting e fforts . . . is suffic ient as a basic requirement ” for desegrega ting institutions of public higher education. Id. at 580 (em phas is in original). However, the court held, whe

re th is ba sic requ

irement f ails to eli minate identifia bly “white” and “bla ck” instit utions, something more is required. Defend

ants were ordered to present another plan to the court by Mar

ch 15, 1972, that wou ld prov ide for substantial desegregation of the TSU fa culty and ensure

a substantial white presence on the TSU campus. Id. at 581. 6 Geier, e t al. v. Sun dquist, et al. No. 02-6400

Inthe subsequent yea

rs, Defendants submitted several plans, and the d i strict court ordered that some courses and fields of study be offe

red exclusively at UT

N ashville. Ev en tu al ly, all of the plaintiff s, including

the Unite d States, propose d a merger of TSU and UT Nashville, with TSU as the surviving institution. The district court held a month-long evidentiary

hearing on this p roposal in 1976. After
cons ider ing voluminous records and testimony, the district court found ste ady , but s low progress in attracting black studentsand fac

ulty to the formerly-white institutions, but, as before, little or no progress in convert ing TSU from a onerace university. The cour

t concluded that the plans applied i n the course of the eight ye ars that the litigation had been active hadno t worked and showed no prospect of working. T h e court therefore ordere d the mer ger of TSU and UT

Nashville into a single

institution

under the

state’s B oard of R

egents

. T he district court chose this “drastic remedy ” because “ th e State’ s actions have been egre gious exa mples o f constitutional violati ons. ” Geier v. Blanton , 427 F. Supp. 644, 660 (M.D. Tenn. 1977).

Inaffirmi

ng the d istrict c o urt, Geier v. University of Tennessee , 5 97 F. 2d 1056 (6th Cir.), cert. denied, 444 U.S. 886 (1979), we held tha t the pronouncement in Green v. County School Bo ard

of an af firmativ e duty

t o remove

all vestiges of state-imposed segrega tion applies to public higher education as well a s to educati on at lowe r levels. Geier , 597 F.2d at 1065 (“ [T]he state ’s duty is as exac ting to e liminate the vestiges of state-imposed segregationinhigher education
as in elementary a

nd secondary

school systems; it is only the
means of eliminating segrega tion which diff

er. ”) (quotation and citation omitted)). We also held that the district court’s factual findings were not clearly erroneous, id. at 1067, an d that the remedy or

dered was within the traditional bounds of equitable relief. Id. at 1068.No. 02-6400 Geier, e t al. v. Sun dquist, et al. 7

A. The 1984 Se

ttlement

The history

of the liti gation t

o this point i llustr ates the arduous path along which the original parties and Def

endants traveled before they

entered a stipulation

of settlement (“Settlement”) on September 2 5, 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 Stat es, agreed to the comprehensive Settlement re quiri n g Defend ants to i mpl ement numerous new desegreg ation progra ms through

out Tenne ssee’s system of higher edu cation, inclu ding: (1) atte

mpting 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) act ively recruitingAfrican-American faculty and administrative staff for Tennessee’s predo min antly white institutions. The Settlementals o established a monitoring committee and provided for the r esolution of dispute s among t

he parti es. “The plan embodied in the [Settlement] was the culmination of long hou rs and da ys o f nego tiations in

which all

parties, including the United States, participated.” Geier , 801 F.2d at 802.

But the struggle to d eseg regate Tennessee’s sy stem of higher education cont inue d. Shortly after the district cour t approved the Settle

me nt, th e United States filed a memorandum

challenging many

of the progra

ms contained in the Settlement. The district court rejected the Government’s argume nts and the G overnme

nt appea led 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 se

venty -five qu alified A frican -Ame rica n sophomores would be selected each y ear and guarantee d admission to one of the state’ professional schoo ls upon completing his or her undergradua te work and

satisfying

the

r eleva ntschool’s admissions standards. The Government
ar gued that this c onstituted

a “rac ial quota

” sy stem, but thi s Courtrejected that argument and af firmed the district court’s judgment authorizing the Settlement. 8 Geier, e t al. v. Sun dquist, et al. No. 02-6400

Next ensued a request for inter im att or neys’ fe es by the individual plaintiff

s and stat e defen dants, wh o claimed th a t they were the “ pr evailing parties” within the meaning of 42 U.S.C. § 198 8 after

the Unite d States i ntervened in this suit, sought r

elief be yon d the injunction re quest ed by the private par ties, and then challenged the Settlement entered into betwee

n the par tie s a nd appro ved by

the distri ct court , requiringboth the private plaintiffs and Defendants to defend the Settlemen

t’s terms . The distr

ict cour t awarde d attorne

ys’ fees agains t the Unite d 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. 88-5 155, 1 989 WL 90761 (6th Cir. Aug. 11, 1989).

B. The 2001 Consent Decree

In1994, the state moved to vacate the 1984 Settlement and terminat e the litigati on based , in part, on a cha nge in the law
s temmingfrom the Supreme Court’s decision in United States

v. Fordice , 505 U.S. 717 (1992) , w hich addressed Mississippi’s dual system of p ubl ic h igh er e duc ati on. In 1996, again rely

ing on Fordic e , Defendants moved for a judgment on the pleadings. The district c ourt did not rule on the motion to vacate, and it even tua lly denied the state’s motion for judgment on the pleadings.

Ul ti ma te ly, in January

o f 2000, the parties entered voluntary mediation. Once again, the parties devoted subst an tial time to con sidering the state of raci al equal ity i

n Tennessee’s system of highe r education. In January

2001, the parties entered into a

Consent Decree, Geier v. Sundquist , 128 F. Supp. 2 d 519 (M.D . Tenn. 20 01), whic h states, in part:

Indismantling the vestiges of the former d ual system, it is the parties’ intention to create an education

system that enhances the increased enrollment of African Ame rican studentsat the predominantly white institutions and that likewise enhances the enrollme

nt of white

studentsat the State’s predominantly black institution. To achie ve thisNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 9

1 Although the court’s opinion also determined a fee award for the Richa rdson Interve nors, t he state ultima tely reac hed an agr eem ent with them and paid their attorneys’ fees. goal, the parties are committed to maintaining educational institut ions tha t are committed t o desegregation

and to re aching

out to all residen ts of this State regardless of race . It is also the intention of the parties that

employment and

promotion

decision s within the State’s sy

stem of hig

her educ ation be ma de in an environment

unfettered by

the di scriminatory pra ctices of the old dual system. The g oal is to increase the presence of other-r ace fa culty , st a ff, and administrators on the campuse s of the Sta

te’s coll eges a

nd universities. 128 F. Supp. 2d at 521.

C. Attorneys’ Fees

Pursuant to the 2001 ConsentDecree, the Geie r Plaintif fs, the Richardson Intervenors, a nd the McGinnis Intervenors filed applications for attorney s’ fees with the Tenn esse e Attorney Genera l. The McGinnis I

nterve rnors reached an agreement

with the state and

were paid attorneys’ fees in June 2001. Howeve

r, unable to agree on an awar

d amount with the state, th e Geier Plaintiffs and Richardson I ntervenors filed their applications for attorney s’ fees with the federal district court. They re quested a hearing concer n ing the fee ap pl ic at io ns , b ut th e d is tr ic t c ou rt de em ed it un ne ce ss ar y.
OnSeptembe

r 27, 2002 , th e district court issued an Opinion and Order concerning the attorne ys’ fee s, awarding

the Geier Plaintiff s’ $376,587. 50, althou gh they had requ

este d $5,000,000. Geier v. Sundquist
, 227 F. Supp. 2d

881 (M.D. Tenn. 2002). 1 The district court used the lodestar method for calculatingth e fee award and concluded that $250 pe r hour
was a reasonable hourly

fee. It then

determined that counsel for the Geier Plaintiffs should be compens ate d for 1432.55 10 Geier, e t al. v. Sun dquist, et al. No. 02-6400

hours, whichinc luded 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 enhanceme

nt there of. But, for rea sons that w ill be describ ed in

more detail below, the district court fixed the lodestar at $250 and de eme d any enhanc ement legally unwarranted.

The G eier Plaintiffs’ fee award – which cove rs the period between June 1987 and January 2001 – is the sub ject of th is appeal. Purs uant to the 1984 Settlement, they rec eived $85,000 in interim attorneys’ fe es in 1988; thatis the only fee the Geier Plaintiffs have received to date.

II. ANALY SIS

We review a district court’s award of attorne y s’ fee s for abuseof discretion. Perotti v. Seiter , 935 F.2d 761, 763 (1991). “An abuse of

discretionexists when the district court applies the wrong legal

standard, misapplies the correct legal stan dard, or relies on clearly erroneous findings of fact

. ” First Tech. Safety Sys., Inc. v. Depinet , 11 F.3d 6 41, 647 (6 th Cir. 1993).

A. Common Fun d/Common Benefit Method

The Geier Plaintiff s’ first c laim on ap

peal is that the district court abused its discretion in decl i ning to use the “common fund”/“common

benefit” method (hereinafter “c ommon fund”) for d etermi ning attorney s’ fees. Like the lodestar method, the comm o n fund method is an exception to the general “American rule” that litigants pay their own attorne ys’ fees. I

t is e mp lo ye d where

a lawy er rec overs a co mmon fund for the benefit of persons in addition to thos e he formally repr

esents. As the Supreme Court has explained:

The doctrine rests on the perception that persons who obtain the benefit of

a lawsuit wi

thout cont ributing to itsNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 11

cost are unju stly

enriche d at the su

ccessf u l litigant’s expe nse. Jurisdiction over the fund involved in the litigationallows a court to p revent this inequity by assessing the attor

ney s’ fees against theentire fund, thus spreading fe es pr op or ti on at el y among tho se benefitted by the suit. Boeing Co. v. Van Ge mert , 444 U.S. 472, 478 (1980) (citations omitted). In order for a cl ass to recov er attor ney s’ fees pursuant to the common fund doctrine: (1) the cl ass of people benefitted by

the lawsuit must be small in number and easily identifia ble; (2) t he bene fits mu st be trac eable with
some accuracy ; and (3) there must be rea son for confidence that the costs can in fa ct be shif ted with some exactit

ude to those benefitting. Aleyska Pipeline Ser v. Co. v. W

ildernes s Soc’y , 421 U.S. 240, 247 ( 1975). T he Supreme Court has stated that “[t]hos e chara

cteristi cs a

r e not present where litigant s si mply vindicate a g eneral social grievance .” Boeing , 444 U.S. at 478. The criteria are met, however, “when each member of a certified class has an undisputed and mathemat ically ascert ainable claim to pa rt of a lump-sum judgment recovered on his behalf.” Id. As such, the common fund method is o ften use d to deter mine attor

ney s’ fees

in class action

securities cases, see, e.g., Boeing, 444 U.S. 472, and suits by union members ag ai nst th eir unions, see, e.g., Hall v. Col

e , 412 U.S. 1 (1973).

It was not an abuse of discre tion forthe distri ct court to decline t o use th e co mm on f und met hod in th is cas e. In addition to the doctrine be ing inap plicable where li tigants are vindicating a soc ial g rievanc e, the doc trine is inappropr

iate here because

there is s imply

no fund. The benefit

provided to the plaintiff

class – the desegregation of Te

nnessee’s syste

m of hi gher edu cation – is not pecuniary in any conventional way and did not result in the creation of a fund to be divvied up among the plain

tiffs, as is the ca se in commo

n fund ca ses. Alth ough (as th e Geier Plaintiffs urge) the bene fits attained could perhaps be measured

as pecun iary – in the se

nse that a dollar value could be assigned to the cost of the rem edial 12 Geier, e t al. v. Sun dquist, et al. No. 02-6400

measures – transpo sing the action’ s social v alue into monetary value is im

precis e, an d more impo rtantly , still leaves us without a

fund. The money desig nated by Tennessee for the r

emedial p

rogra ms g oes to fund the p rogram s, not to pay the plaintiffs. Moreove r, applying

the Aleyska factors, described above, the commo n fund method is unworka

ble here : the clas s of pers ons bene fitt ed by t his lawsuit is not at all small or manageab l e. Rather, according to the 2001 Consent Decree, the clas s includes “all res idents of this State,” Geier , 128 F. Supp. 2d at 521. As such, the class is not easily identifiable and the be nefits could not be tr ac ed wi th an y ac cu ra cy.
B. Reasonable

Hourly Rate Havingdecline d to use the common fu

nd doctr in e for calculatingattorneys’ f

ees, the district court instead used the lodestar approach whereby

the court multiplies a

reasona ble hourly rate by the pr

o ve n number o f hours r easonab ly expended on the case by

counsel. Adcock-Ladd

v. Secre tary of Treasury , 227 F.3d 343, 349 (6th Cir. 2000). “The primary
conce rn in an a ttorney fee case is that the fee awarded be reasonable, that is, one that is adequately c ompens at ory to attract compete n t coun sel yet wh ich av oids produ cing a windfall for lawye

rs.” Re ed v. Rhodes , 179 F.3d 453, 471 (6thCir. 1999) (citi ng Blum v. Stenson , 465 U.S. 886, 893, 897 (1984). To arrive at

a reasonable hou

rly rate, c ourts use
as a guide line t he prev aili ng m ar ket rate , define d as the r ate that lawy ers of c omparab le skil l an d experience can
reasona bly expect to c ommand wit

hin the venue of the court of record. Adock-Ladd , 227 F.3d at 350. The Geier Plaintiffs contend that the district c ourt abus ed its discretion in finding $250 a re asonable

hourly rate whe n they had both requested $400 per hour and submitted evidenc e that $400

was the re asonable

hourly rate f

or lawyer

s of skill and experience comparable to Geo rge E. Barrett, the Geier Plaintiff s’ lead c ounsel, li

tigating a civil rights action

of this scale.No. 02-6400 Geier, e t al. v. Sun dquist, et al. 13

We recognize that deference is to be give n to a d istrict court’s determination of a reasonable attorney s’ fe e. Non etheles s, it remain s importan t for the d

istrict c ourt to provide an adeq

uate explanation of the r

easons f or its award and the manner in which that award was determined. Hensley

v. Eckerh art , 461 U.S. 424, 437 (1983) (“it remains important for the district court . . . to provide a concise but clea r explanation of its reasons for the fee aw ard.”) . At times, we have found an abuse of discretion where a district court fa

ils to explain its r

easo ning ad equately or to c onsider 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 r

elied alm ost exclusiv ely

on marke t data provided by Defe

ndants, ci tin g to local awards of approxima

tely $250 per hour in civil rights cases. (The court also purported to rely on its own judicial expe rience , not ing: “My recollection is not what it onc e wa s, but I cannot r ecall
ever awardi ng a fee in excess of $250 per hour.” Geier , 227 F. Supp. 2d at 886.). While this da ta is in formative, the districtcourt never men tioned tha t the Geie

r Plaintif fs’
cou nsel request

ed $400 pe

r hour, a

nd the cou

rt n eve r discussed any of the ev

idence s ubmitted by

th e Geier Plaintiffs supporting a $400 per hour rate. At torney Lewis R. Donelson, of Nashville, Memphis, and K noxville ’s Baker, Donelsonlaw firm, submitted an affidavit stating that a $450 hourly rate for Mr. Barre

tt was “f air and reasonable [and] not
an uncomm

on rate f or leadi ng attor ney s in Tenne ssee at th

is time,” and

that Mr. B arrett “ is certainly the le ading expert on civilrights d

esegr egati on cas es.” There were similar affida vits – attesting to the reasonableness of a $400 or $450 hourly fee – from five other

attorne ys. In addition, the Geier Plaintiffs point to the

$400 per hour rat e awar ded attor ney s in Craft v. Vande rbilt Univ ersity , a federalclass action from the MiddleDistrict o f Tenne ssee alle ging c ivil righ ts violations inconnec tion with a

1940s medi cal e xperime nt in which pre gnantwomen unknowingly ingested radioactive iron isotope. 14 Geier, e t al. v. Sun dquist, et al. No. 02-6400

We also note that the district court determined that $250 per hour wa s the appr

opriate hourly rate for the McG

innis Inte rvenors ’ co unsel , Messrs. Norris and Weatherly . The Geier Plaintiffs argued that they were more experienced and
more active in the litigation than the inter venors’ counsel, and that there fore , they a

re en title d to a high er ho

urly rate . We find this argument sens i ble. Acc ording t o the rec ord, Nor

ris and Weatherly ar

e less experienced

than Mr. B arrett, and both
were paid at lower

ho ur ly r ates earlier in this lawsuit. See Geier 227 F. Supp. 2d at 883 (explaining that, in 1987, Norris
was paid $90 p er hour; Dinkins $1 25 per ho ur; and B arrett $150 per hour). Furthermore, by Mr. Norri s’s ow n admis sion, in a letter to Mr. Barrett dated Febr uary 2, 2001 , he and Weatherly play

ed a less “global” role in thi s action through the y ears.
In short, the district court’s order contains no explanation of how – or even if – it accounted for the Geier Plai ntiffs’ competing information co nc erning the prevailing market r ate. Absent some indication of how the district court’s discretion
was exe rcis ed, we have no way of knowing whether that discretionwas abused. See Chalm ers v. City of Los Angeles
, 796 F.2d 1205 (9th Cir. 1986) (vacat ing awa rd of attorneys’ fees and remanding

w here district court’s opinion insuffic iently

explained

how it arri ved a t the f ee a mount ). We are, therefore, unable to aff irm the decision below.

Ac co rd in gl y, the hourly rate de termination as to the Geier Plaintif f s is vacated and we remand this matter for fur ther

r eview based upon the market data of record, including the Geier Pla intiffs’ submissions

. C. The Johnson Fa ctors
The Geier Pla

intiffs’ last

claim on appeal is that the district court abused it s d i scretion in failing to consider the Johnson factors as bearing on the initial lodestar fig ure a n d any enhancement thereof. The Supreme Court has r

epeate dly stated that “[t]he

primary concer n in an att

orney fee ca se isNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 15

that the fee award be reasona

ble.” Blum v. Stenson , 465 U.S. 886, 89 3 ( 1984). As

alread y di scussed, the first

step in determining a reasonable fee in a lodes tar cas e is to multiply the number of hours reasonably expended on the litigation by
a reaso nable hou

rly rate. On

ce the lo destar f

igure i s established
, th e trial court is permitted to consider other factor s, and to adjust the award upward o rdownwar d to achi eve a reasonable result. Hensley v. Ecke rhart , 461 U.S. 424, 434 (1983). In considering any adjustmen

t, the Supr

eme Courthas cited with approval the twel ve f actors li sted in Johnson v. Georgia Highway E xpress, 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 lab orrequired; (2) the novelty and dif ficult y of the que stion; (3)the skill r equisite t o perform the legal service properly ; (4) the preclusion of other employment by

the attorney due

to accep ta nce of the case; ( 5) the cu stomary 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 at torney ; (10) the

“undesi rability” of the case; (11) t he nat ure and lengt h of t he professional relation ship with the cl ie nt; and (12) awards in similar
cases.
Johnson
, 488 F.2d at 717-19. The Supre me Court, however, has limitedthe application of the Johnson factors, noting that “many of these factors usually are subsumed within the initial calculation

of hours r

easo na bly expended

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

Since we are va cat ing the lodestar figure in light of the hourly rate issue di scussed in Part II, Section B. above, there is no reason to address, at this time, t he Geier Plaintiff s’ contentionthat the district cour t failed to consider the Johnson factor s in

establishing that initial figure. However,
we agree with theGeier Plaintiffs that the district court erred 16 Geier, e t al. v. Sun dquist, et al. No. 02-6400

by failing to consider an upward adju stment of the lodestar f i gure. To help explain why this is so, w e set for

th, in relevant part, the district court’s analy sis on t his point. The district c ourt state d:

Counsel urges the Courtto consider the Johnson factors

. . . either as be arin g upon the lodestar amount or an enhancement

thereof. . . . [The district c ourt her e lists the Johnson factors]. . . .

The one factor in Johnson that the Supreme Cour t felt may be still available is that of “risk.” When the case was filed in 1968, t here w as substantial risk that the
ou tcomemight be unfavorable. Although Bro wn v

. Board had been decided

1 4 ye ars bef

ore, this case involved higher e duca tion and the law was unsettled. Risk was remov ed a fter Judg e Gray ’s early decision s, and certainly wa s finally removed a fter the Stipulationof Settlementin 1984. The re after, the case only required monitoring for co mpliance. A flurry of activity in the
ca se arose when the state sought dismissal under the decisionin Fordice . When Attorney Gener al Paul Summers took office and indicated a desire to settle the case, and initiated mediation, goo d w ill and innovative efforts on the part of all counsel and parties res u lted in the Conse nt Dec ree. Therefore, under the teaching of [ Pennsylv ania v. Delawa re Valley

Citizens’ Council for Clear Air , 478 U. S. 546 (1986 ) no enha ncement is warranted and th e Court fixes the lodestar at $250 per hour.

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

Alth ough t he district court quoted from that part of Delaware Valleyindicating that “adjustments of the lodestar figure are still

permissib le” in “r

are” a nd “exceptional” c ases, 478 U.S. at 565, the court never discussed whethe rthis is sucha special case. I

nstead, the district court

stated that none of the Johnson fa ctors a

re legally available as bearing on anNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 17

upward adjustmen

t, except f

or “risk .” The c ourt th e n determined

that there wa s no risk level in this case after the 1984 Settlement (a question abl e conclusion in light of the state’s efforts

to dismiss th e case i

n1994, resulting

in protracted

litigation and

n egotiations resulting in a new ConsentDecre e in 2001; b ut this is not pressing to the issue

n ow before

us), and t hat ther efore, “no enha

ncement [ of th e lodestar] is warranted.” Geier , 227 F. Supp. 2d at 887

. Un fo rt un at el y, that analysis was not correct. The Supre

me Co ur thas emphasized that, although application of the Johnson factors is limited, upward adjustments are permissib le in certa

in “rar e” and “ exceptional” cas es. Pennsylv ania v. Delaware Valley

Citizens’ Council for

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

has not ha

d occasi on to individua

lly a ddress each of the factors; it has only pr ovided specifi c guidance concerni ng some of them. In its clearest pronounc ement concerning

the Johnson factors, the Supreme Court held that neither the complexity nor novelty of the issue s in

a case is an appropr iate factor in det ermin ing whethe r to increase the basic fee award. Blum
, 465 U.S. a t 898-99. Wi

th respe ct to risk – that is, the risk of not prevailing in the litigation – the Supreme Courthas held this factor applicable only whe

re the trial court specifically

finds tha t the ca se is one of the “excepti onal”cases in

which an

upward a

djustment i s appropr iate and that there was real risk of not prevailing in the
case. Pennsylvania v. Delaware Valley Citizens’ C

ouncil for Clean Air , 483 U.S. 711, 730-31 (1987). In a ddition, a s a general rule, the upward adjustment for risk may be no more thanone third of the lodestar, and “[a]ny additional adjustment[for risk] would requ ire the mo st

exact ing justification.” I

d. at 730. Because the “rare ” and “excepti onal”determination must precede any risk ana ly s is, the district court

here was not even permitted to reach the risk analy sis, having never considered whethe r this case is one of the rare and exceptional ones me riting a n upward adjustmen

t. 18 Geier, e t al. v. Sun dquist, 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 “gene rally . . . refl ected

in the reasonable hourly rate,” altho ugh it may

still justify an upward adjustment “in the rare
casewhere the fee applicant offers specific evidence

to show that the quality of servic e rendered was superior to that one
reasona bly should expect in light of the hourly ra

tes charged and that the success was ‘except ional’.” Blum , 465 U.S. at 899. Similarly, w ith respect to the factor pertaining to the “results obtained,” the Supreme

Court stat

ed that it “ gener

ally will be subsumed w

ithin other

factor s used to c alculate a reasona ble fee” and “normally should not provide an independent

basis for increas ing the fee award.” Id. at 900. But the Supreme Court was careful to stress that it was not blanketl y precluding consideration of “results obtained,” but rather establishing a presumption that that factor is included inthe initial lodestar

figure but may

still be considered as part of an upwar d adjustme

nt in excep ti onal cases: “ [W]e reiter ate what was s aid in Hensley : ‘where a plaintiff has obtained excellent result s, his attor ney should re cover a

fully compensatory

fee. Normally

this will enco mpas s all hours
reasona bly expended on the litigati on, and in deed in some cases of exceptiona l suc cess an enhancement award may be justified.” Id. at 901 (quot ing Hensley , 461 U.S. a t 4 3 5). Las tl y, to underscore its point that certain Johnson factor s

– including the “re sults o btained” – 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 ad

justment to

an att orney ’s fee is never appropriate under § 1988. Id. at 901.

The last Supreme Court case to conside r the J ohnson factors in any depth rea

ffirmed Blum . In P en nsylvania v. Delaware Valley Citizens’ Coun c il for Clean Air, 478 U.S. 546, 565 (1986) (hereinafter “ Delawa re Valley ”), the Supreme Court not ed t hat fac tors such as “the s pecial s kill and ex pe ri en ce of

co un se l, ” t he “q ua li ty o f repr esentation,” and the “re sults obtai

ned” fr om the litig ation “a

re pres umably fully reflected in the lodestar amount, and thus can not serveNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 19

as independent bases for increasing the basic fee award.” Again, however , the Supre me Court st

ated tha t “upw ard adjustmen

ts of the lodestar figure are still permissible” and
are prop er “in

certain ‘rare’ and ‘e

xceptional’ cases.” Id. at 565 (quot ing Blum, 465 U.S. a t 898-9 01). In Delaware Valley
, the Supreme Court does not purport to expand Blum inany way

. Accordingly , we must construe its statement that certain Jo h nson factors “cannot serve as independe nt bases for increasing

the basic fee award,” id.
, not in isolation or as precluding use of

those factors altogether, but rather in lig ht of (1) the statements that precede it – namely that the name d factors are “presumably” reflected in the lodestar

fee, but not certainly so; (2)

the statements that follow it, reiterating that upward adjustmen

ts are pe

rmissible in “rare” and “excepti o nal” cases; and (3) Blum , the case that that portion of Delaware Valley is summari zing, whi ch prese rved the use of the “results obtained” a

n d the “quality of re

presentation” for an upward adjus tm ent analysis in those “ra re” 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 performe d. Moreover, as we have explained , it is not the case, a s the distr

ict c ourt believed
, that all of the Johnson factors are no longer availab le as bearing on an adjustment of the lodestar fig ure. Certain factors – such as the “results obtained” – a re still releva nt, following the predicate determination that the case is one of the rare and exception a l ones meriting an upward adjustmen

t. Becau se the district

court applied the wrong lega l standard to the upw ard adju stment ana lys is – and also seemed to imply, in error, that upwar d adjustments are no longer even permissib le – we find

an abuse of d iscretion. First Tech. Safety Sys. , 11 F.3d at 647 (“An abuse of discretion ex ist s when the district court applies the wrong legal standa rd. . . .”).

Nor are we satisfied that the district court enga ged in the proper legal analy sis simply because it quote d from the germane part of Delaware Valley . To cite a standard is not 20 Geier, e t al. v. Sun dquist, et al. No. 02-6400

the same as ap plying it, particularly whe re the court has overlooked

several of the most important elements of the standard – in this ca se, the c ontinuing permi ssibi lity of upward adjustments in exceptional cases and the relevance of certain Johnson factors to that adjustment.

The Geier Plaintiffs have ass erted th at this is one of those “rare” and “exce ptional” cases meriting an upward adj ustmen t of the lodestar figure. The appropria te leg al analysis begins with consideration of

that question. As detailed in Part I of this opinion, the magni

tude of th

is case is for midable in
numerous respects

. The legal principles advanced by the Geier Plaintiffs were pathbreaking and of g reat social imp ort. It was in this case that this Court first held that there was an affirmative duty

to remove

all vestig es of state-imposed segregation

in institutions of public higher educati on, just

as there was such

an oblig ati on at lowe

r educa tional lev els. Plaintiffs have l itigated – successfully – for thirty-six y

ears agains tcontinuous state opposition and contrary judicia l prec edents outside this Circuit, and they have sec ure d injunctive relief

– valued at approximately $320 million – in progra ms affec ting 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 hig her education. See Decl. of David Williams, II, Vice Cha

ncellor for Student Life and Universi ty Affa i rs and Ge

neral Cou

nsel and U

niversity Secretary , Vanderbilt University ¶ ¶ 6-14. (JA 554-56.) Defend ants had argued that a good

faith, open door policy of admissions satisfie d the req uiremen ts of the F ourteen

th Amendment

for rac ial equa

lity in public institutions of higher education. Their argument was based on an inter pretation of the outcome of a civil rights action in A labama, in which a federal district court denied the plaintiffs injunctive re lief concerning

state off icials’ p lans to expa

nd a prev iously white campus near a historically black college in Mon

t go me ry, Alabama. The U.S. Su

preme Cou

rt had sum

marily affirmed. See Alabama St

ateTeachers Ass’n v. Alabama Pub. Sch. andNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 21

Coll. Auth. , 289 F. Supp. 784, 787 (M.D. Ala. 1968), aff’ d 393 U.S . 400 (1969) (hereinafter “ ASTA” ). The op inion in ASTA and the Suprem e C ourt’s su mmary affirma nce led s ome to believe that an op en door p olicy alone wa s suffici ent to remedy de jure segregation in higher

education. It wa s Geier that steere d t he 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 c ourt s that open door policies wer e insufficient (and, on their own, ineffective) to achieve deseg regat ed sy stems of public higher educati on in the South. See Declaration s of Da vid Williams, II (JA 554- 557) and Rita Sanders Geie r (JA 510-5 17). Thos e effor ts included lawsuits brought

in Virginia, Alabama , Mississipp i, and Louisiana. I

n the Virginia case, Norris v. St ate Counc il of Higher Ed

uc. for Vir

ginia , 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 d efe ndants tha t a state could disc

harge its du ty to di sm an tl e a pr ev io us ly de jure segre gated syst

em simply

by d eclarin g open e nrollment

. The exceptional nature and national signific ance of

this
casewas fu

rt her exemp lified in 1 997, when the U.S. Department

of Justice’s Civil Rights Division cel e brated i ts fortieth anni versary . Speakers included members of Congre ss, the U.S. Att orney Ge neral, Department of Justice officia ls, 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

– descri bed in Par t I above – render this a “rar

e” and “ exceptional” cas e. Havin g held that this
caseis exceptional within the meaning of Blum and Johnson
, anupward adjustment is permissible and we remand t o the districtcourt for the particularized appl ic ation of f actors – including “ re sults obtained” – bearing on the amount of any upward a djustment. 22 Geier, e t al. v. Sun dquist, et al. No. 02-6400

III. CONCL USION

For the reasons set forth above, w e VACATE the district court’s awar d of attorneys’ fees to the Geier Plaintiffs and REMAND for: (1)further explanation conce

rning the hourly rate ; (2) cal culation of the lodestar figure; an d (3) determination of any

upward adjustment.No. 02-6400 Geier, e t al. v. Sun dquist, et al. 23

______________ DISSENT

______________ COOK, Circuit Judge, dissenting. Because I conclude that the district c ourt did no t abuse its disc retion i n (1) determin in g that $250 was a reasonable hourly rate for the Geier plaintiff s’ counsel, and (2) refusing to apply an upward adjustmentto the lodes tar amou nt, I r espectf ully dissent from parts II .B and II .C of the majority’s opinion.

A. The Re asonable

Hourly Rate

As the majority no te s, a district court must provide a “concis e but clear explanation o f its reasons for the fee award.” Hensley

v. Ecke rhart , 461 U.S. 424, 437 (1983). A districtcourt a buses its d iscretion when it “

relies on clearly
erroneous findings of

fact, or when it improperly applies the law or uses an erroneous legal standa rd.” A dcock-Ladd v. Sec’y of Treasury , 227 F.3d 343, 349 (6th Cir. 2000) (citation omitted). This court may also find a n abuse of discretion “when [w e are] firmly convince d that a mistake has been made.” Id. at 349 (citation omitted).

Indetermining the reason able hourly rate f or the Geier plaintiff s’ counsel, the distri ct cour t did not re ly on clear ly
erroneous fi ndin gs of fa

ct, improp erly

apply the law, or use anerroneous legal standard. I nstead, the di strict court used the “prevailing

market rates in the relevant community” to se t the reasona

ble hourl y rate, survey

ing the hourly r

ates awarded to highly experienc ed counsel in civil rights and class action
cases in Tenne sse e. Blum v. Stenson , 465 U.S. 886, 895 (1984) (holding that “‘reasonable fee s’ under § 1988 are to be calculated

accord ing to the

prevail in g marke t rates in the relevant community”). Altho ugh the district court did not expressly reject the Geier plaintiffs’ arg ume nts supporting their request for a $400 hourly rate, the district court’s opinion reflects its rejection of the figure a s exceeding the 24 Geier, e t al. v. Sun dquist, et al. No. 02-6400

prevailingmarket rate in the rel evantcommunity. Geier v. Sundquist
, 227 F. Supp. 2d 881, 886 (M.D. Tenn. 2002) (“This Court ther

efore f inds that the preva

iling mar ket rate that lawy ers of c omparab le ski ll and experience can
reasona bly expect to command within the Middle District of Tennessee for this ty

pe of work is $250 per hour.”). Citing Moore v. City of Paducah , 790 F.2d 5 57 (6t h Cir. 1986), the majority infers a n abuse o f discretion from the absence of explicit commentary in the district court’s opinion about the compe

ting ar guments of the Geier plaintiffs. The Moore court, howe ver, defined abuse of discretion in the context of a district court’s ruling on a mot ion t o amend the ple adings, and since

that dec ision, this c ourt has c ited th e Moor e defini tion only in that context. This court has not previous ly

held t hat a d istr ict co urt, h aving d etermin ed a
reasona ble hourly fee

using evidence of the prevailing market ratein th e r el ev an t c om mu ni ty, abused its discretion in failing to explicitly

discuss th e argu

ments of one of

the parties, and we should not do so here.

Icon clu de that un

der the h ighly defere ntial stan dard this court ap plies in reviewing statutory fee awards, the district court’s determination that $250 c on stitutes th e reasonable hourly rate for the Geier plaintiffs’ counsel wa s not anabuse of discret ion. Althoug

h discussi

ng the G eier pla

intiffs’ arg uments in favor of a $400 hourly rate may ha

ve furt he r clarified the district co urt ’s decision, the lack of such a discussion does not leave me “firm

ly c onvinced

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 Citizen s ’ 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 theNo. 02-6400 Geier, e t al. v. Sun dquist, et al. 25

Supreme Court felt may be still availab le is that of ‘risk’”). I respectfully disa

gree, however, bec ause when taken i n context, the distri ct court ’s opinion reflects an understanding of the Supreme Court’s view in Delawar e Val ley regarding risk analysis. Delaware Valle y , 478 U.S. at 568 (leaving unresolved

“the que stion of upward ad justm ent, by way

of multipliers or enhancement of t he lodestar, based on the like liho od

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 rea sonable hourly

ratemost likely

already accounts for most, if not all, of the Johnson factor s, with ris k as the factor remainingto be considered at the upward-adjustment stage of the lodestar analy sis.

The district court’s opiniondetails its reason for denying

an enhancement

of the lod esta

r amount. Judge Wiseman evaluated the risk here to be insufficient to warrant an upward adjustmentbecause the period for which the

Geier pl aintiffs ’
couns el s ought fees encompassed only “monitoring for compliance,” with an occasional “flurry of act ivity .” “G en er al ly, the trial judge’s exercise of discretion in statutory fee award cases is entitledto substan tial defe rence, especia

lly

w hen the rationale for

the awa rd was pr

edominan tly factdriven.” Adcock-Ladd, 227 F.3d at 349.

Giventhe substa

ntial def erence this court accords a district court’s fee award when the district court provi des a n onerroneous le gal and

factua l basis for

its decisi on, I

would affirm the fee award here. B ecause the majorit y d oes not, I respectfully

dissent.