Carol Conklin v. Leo E. Lovely Joe W. Wakeley and John Huss

Bеfore KEITH, MILBURN and NORRIS, Judges. Circuit MILBURN, Judge. Circuit Plaintiff-appellee Carol Conklin filed an action under 42 U.S.C. 1985(3) §§ against defendants-appellants alleging that she was discharged position from her county employee because activities and in violation of her First rights. Amendment After court overruled the defendants’ motion for a summary judgment, the case proceeded trial, and a jury verdict was rendered in favor of the in which she was $40,000.00 awarded in compensatory dam- ages for back wages. Subsequently, the district court ordered reinstat- ed and awarded attorneys' fees against the defendants under 42 U.S.C. 1988. For follow, reasons we affirm the dis- trict with respect court all issues raised Huss, exception Lovely privately had the defendants with attorneys’ remand the issue discussed the termination on fees. We November findings (testimony as to the Tr. at attorneys’ Lovely). fees for 1980. T. risk-multiplier necessity of amount and Borchers, Equalization Bill Director of case. County, also testified in Crawford tiff’s behalf. He stated that after he I. discharge, plaintiff's learned of he asked why Lovely plaintiff Lovely was fired. County, Crawford hired Plaintiff was replied nothing 1977, that there was he could do (“the July County”), Michigan it, high- later, about as the decision came from a plaintiff was years clerk. Two laid authority him. T. Tr. er than at 160. in June subsequently rehired off but was time, plaintiff as- At that was of 1980. Plaintiff claimed she was terminated be- shift,” working for “split half-time signed a political support for cause of her a Demo- (“Love- Lovely County Clerk Leo defendant crat, defendants, however, Mr. Davis. County half-time for defendant ly”) and plaintiff poor fired for contended was Wakeley (“Wakeley”). Joseph Treasurer performance. work employee of plaintiff At no time 1981, 26, plaintiff On March filed an ac- (“Huss”). Huss defendant John claiming her tion in the district court First spring and summer of During the rights and Fourteenth Amendment election. Defendants County held an the United Constitution violat- States Lovely ran for re-election and Wakeley and ed, recovery that she was entitled to and Lovely as Wakeley and ran won.1 Both under 42 U.S.C. 1983. Joined as defend- § for Defendant Huss ran Republicans. employers, plaintiff’s ants were former Prosecuting Attorney County office of Wakeley. Lovely joined and were Mr. Also incumbent, against Alton Davis. Mr. Huss, recently Prosecuting elected Attor- Democrat, Davis, eventually defeat- ney, for and the Board Commissioners Huss, Republican. who also ran as ed Later, by County.2 leave of district court, complaint and plaintiff amended her campaigning for was active Plaintiff (1) grounds recovery: added as for U.S. sticker on her placed Davis. She Mr. 1985(3), liability on imposes which and other- C. supporting Mr. Davis automobile deprive any person of conspiring those participated campaign openly wise laws; equal protection of alleged Toussaint against Huss. Plaintiff defendant activities, Cross and Blue Shield Michi- of her she was at Blue that as a result (1980), 579, 292 Huss, 408 Mich. N.W.2d “paybacks gan, are point one told in Mi- establishes a cause of action which hell.” terminated in viola- chigan employees plaintiff was dis- On December rights. tion their contractual charged position. testified from her She filing responded by a motion Defendants telephone calls that that she received two summary judgment on each evening, Wakeley one from for one from three claims. The Wakeley, plaintiff tiff’s Lovely. T. Tr. at 819. plaintiff’s as to

testified, grаnted defendants’ motion the reason stated when asked the motion overruled termination, you, I claim but “I can’t tell but Toussaint her 42 U.S.C. Lovely stated, plaintiff’s “I claims under as you.” to fire Id. 1985(3). does 1983 and Plaintiff you, you’re just fired.” Id. at can’t tell §§ as to summary judgment order appeal further showed 319-20. The evidence Lovely 2. At the close of 1. Defendants had been 1947, respective- positions court since 1972 and a directed verdict. The district their moved for Evidently, Lovely ly. has since re- only defendant to the Board as motion Lovely County See T. Tr. at 36. tired as Clerk. County does not Commissioners. thirty-four years as testified and, ruling, accordingly, Board appeal Clerk, deputy clerk he appеal. party is not a to this discharged. T. Tr. at 40. ever her claim. Defendants Toussaint as to any material fact and the moving they summary judgment party were entitled to entitled to as a matter of plaintiff's on all of 56(c). claims. law. Fed.R.Civ.P. The Supreme Court has recently stated: “The inquiry [is] August Trial commenced on whether the presents evidence a sufficient trial, During objected to the disagreement require submission to the testimony of Ms. Money, Beth a former jury or whether it is so one-sided that one Huss, employee of defendant who claimed party prevail must as a matter of law.” was also discharged she in retaliation for Inc., Anderson v. Liberty Lobby, support for opponent, hеr Huss’ Mr. Davis. 2505, 2512, 106 S.Ct. L.Ed.2d court, however, The district found the testi- mony admissible. Defendants also at- Burns, tempted Elrod v. to offer they allege evidence that (1976), plaintiffs bears on L.Ed.2d mitigate failure to the United damages, States but the district nonpoli- court Court held that a excluded cymaking employee appeal may this evidence. The defendants not be these terminated solely rulings. grounds on the evidentiary political affiliation. terminations, Such Court rea jury The returned August its verdict on soned, “severely political restrict belief and 19, By interrogatories, written 372, association.” Id. at 96 S.Ct. at 2689. jury (1) found as follows: that defendant has, however, It patronage been held that Lovely discharged plaintiff because of her dismissals are constitutionally permissible political support Davis, (2) for Mr. that where, hiring “the authority can demon Wakeley discharged defendant plaintiff be- party strate that affiliation is appropri an of her support cause for Mr. requirement ate perform the effective Davis, (3) that conspired defendant Huss public ance of the office involved.” Branti together with Wakeley either or Lovely to Finkel, 507, 518, 100 1287, S.Ct. discharge plaintiff for her support of Mr. 1295, (1980). 63 L.Ed.2d 574 Additionally, Davis, that had sustained if employee discharged is because of compensatory damages for back wages in expression which public concern, is not of a $40,000.00. the amount of The district there is no First Amendment violation. judgment against court entered the defend- Myers, 138, Connick v. 461 U.S. 103 S.Ct. 20, August ants on 1684, (1983). 75 L.Ed.2d 708 Defendants judgment moved for notwith- An claiming individual he or she has been standing (JNOV), the verdict arguing that discharged in violation of the First and judgment against great weight Fourteenth must, Amendments of the raising evidence and again the afore- discharge show her was caused her evidentiary mentioned issues. The district political activities. Healthy See Mt. City court denied the motion. Plaintiff's attor- Board Doyle, Education v. 429 U.S. ney made motions for costs ‍‌​​​​‌‌‌​​​​​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍and attorneys’ 274, In fees under 42 U.S.C. 1988 and for rein- Mt. Healthy, the adopted a test for statement of plaintiff to posi- her former determining whether an employee’s dis- granted tion. The district plaintiff’s court charge was causally related to his or her motions. political activity. The Court stated tiff must show her constitutionally-protect- II. activity ed was a “substantial” or “motivat- A. ing” factor behind the decision to termi- Defendants first that their nate. Id. at 97 S.Ct. at 576. summary motion for plain present case, In the tiff’s claim under section 1983 should have that genuine failed to has raise a granted. been disagree. We issue point. on this question of what A motion for summary judgment should actually plaintiff’s motivated discharge be where genuine there no may, course, issue be determined circum- Rosaly Ignacio, evidence. under Fed.R.Evid. stantial See 403. As will be seen (1st Cir.1979) (“We below, 593 F.2d ac- we conclude that this testimony was knowledge circumstantial evidence Further, admissible. we hold dis- discriminatory be used to show motive permissibly trict court relied on Ms. Mon- case.”). In patronage in a dismissal ey’s affidavit to the same effect in overrul- case, hold that there we ing defendants’ for summary judg- motion presented to the district court sufficient ment. evidence, although admittedly circumstan- Our conclusion that defendants’ motion tial, patronage genu- of a dismissal that a summary judgment properly over ine issue of fact was raised. ruled on sup section 1983 claim plaintiff in exempla- this case had an ports our view that defendants’ motion for ry employment record. Tr. at T. 88. She JNOV was also A denied.4 mo reprimanded was never or criticized for her JNOV, tion for like one for a directed ver although work at the time she was dis- dict', granted if, should be “reasonable charged, probationary employ- she was a minds could come to a conclusion ee.3 She had worked against the non-movant.” Littlejohn v. past, good and her work habits were Rose, cert. Indeed, supervisors. to her known after layoff she was rehired (1986). making L.Ed.2d 570 this deter Lovely. mination, weight “neither the credibility or Also, the statement from defendant Huss of the evidence should be considered.” Id. “paybacks are hell” is evidence of аn In the we hold that a reason improper motive. Defendants contend this jury plaintiff. able could found for have the statement made in the unrelated con- was holding testimony This is based on the negotiations. of plaintiff, text labor The which been has noted above and was however, argued, evidently jury the presented at trial the district court. agreed, that this statement referred to the Viewing light this evidence in the most treatment would receive for her plaintiff, supports plain favorable to the it support opponent, of Huss’ Mr. Davis. theory discharge tiff’s that her was moti testimony There is also the of Ms. Beth political activity. her by vated Money she, too, which indicаtes that was discharged for her The activities. B. argue testimony also should have been excluded as irrelevant summary judgment should have been under Fed.R.Evid. 401. Defendants also in defendants’ favor on probative that the value of the testi- 1985(3). mony outweighed by prejudicial claim under 42 U.S.C. Section effect 1985(3) part: and therefore should excluded have been states relevant (1986), probationary We note that her status 91 L.Ed.2d 202 which is identical to the employee negate does not her constitutional pri- standard for a motion for ‘“The JNOV. protection under the First or Fourteenth mary difference between the two motions is — McPherson, Amendments. See Rankin v. judgment procedural; summary motions are U.S.—, 2891, 2896, 107 S.Ct. L.Ed.2d usually made before the trial and decided on (1987) ("Even though [plaintiff] merely a evidence, documentary while directed verdict probationary employee, though and even she motions are made at trial and decided on the discharged any could have been for reason ... essence, evidence that has been admitted.' In she nonetheless be entitled to reinstate though, inquiry the under each is the same: discharged exercising she ment if presents whether the evidence a sufficient dis- right expression.”). constitutional to freedom of agreement require jury to a or submission Sindermann, 593, Perry See also 408 U.S. party it is must whether so one-sided that one 2694, prevail as a of S.Ct. at 2512 matter law.” Id. 106 Restaurants, (quoting Bill Johnson's Inc. v. Recently Supreme the Court has stated that NLRB, 731, 11, 2161, summary 461 U.S. 745 n. 103 S.Ct. the standard for "mirrors" (1983)) (citation verdict, 2171 n. omitted). L.Ed.2d 277 the standard for directed Anderson v. Inc., Liberty Lobby, 477 U.S. 106 S.Ct. If persons any two or more State or In Carpenters, plaintiffs the claimed Territory conspire purpose ... that the of defendants conspired against their rights under depriving, directly either or the indirectly, First Amendment of free association and were any person persons plaintiffs or of liable to class of the un- der 1985(3). section laws, equal protection equal of the or of Plaintiffs em- ployees of a construction company that privileges and immunities under regularly hired nonunion workers. laws; any of ... case conspiracy [and] company contracted with Department section, set in this if one forth or more of the Army perform certain construc- do, persons engaged or therein cause to tion Arthur, work in Port Texas. When done, any be act in furtherance of the company started their work in Port object conspiracy, of whereby such an- Arthur, several of the company’s nonunion injured person other is in his property, or employees were threatened union by work- deprived having or exercising any ers. On January plaintiffs’ right privilege or of a citizen the Unit- nonunion employеes were assaulted and States, party ed injured or so de- beaten on job site. They brought an prived may action for the recov- against action the union local as well as ery damages occasioned inju- such several claiming individuals a conspiracy ry deprivation, against or any one or among existed deprive defendants to more of conspirators. plaintiffs of their First rights. Amendment Carpenters, United Bhd Local 610 The Court of Appeals for the Fifth Cir- Scott, cuit agreed existed, that a conspiracy (1983), L.Ed.2d found that the conspiracy was aimed at held that proved four elements be must depriving plaintiffs’ employ- nonunion 1985(3). to succeed undеr section ees of their First Amendment association These are: rights. The court held no state action was (1) conspiracy; purpose necessary impose liability under section depriving, either directly or indirectly, 1985(3). Additionally, the court held sec- any person or persons class of of the 1985(3) tion to conspira- restricted equal protection laws, of the equal or of cies motivated racial animus. privileges and immunities under the Supreme The Court Carpen- reversed. laws; (3) an act in furtherance of the ters, 830, 463 at U.S. 103 S.Ct. at 3357. conspiracy; (4) whereby person is ei- The Court noted that there were two injured ther in person his or property or grounds First, for its dеcision. the Su- deprived any right of privilege or of a preme Court rejected the of appeals’ court citizen of the United States. holding that no state involvement was nec- 828-29, 103 Id. at (constru S.Ct. at 3355-56 essary to 1985(3) make out a section claim ing 88, v. 403 Breckenridge, U.S. 830, the circumstances. Id. at 103 Griffin 1790, 91 (1971)). S.Ct. The S.Ct. at 3357. The Court by reasoned very terms, do not its defendants raise an issue incorporated with the and as by the first, third, elements, Amendment, and fourth Fourteenth but the First Amend- only prohibits that the ment element having second has not been actions met state present involvement. element, case. This The Court second concluded that wholly private conspiracies argue, only “not must tо violate the have as First protections Amendment purpose deprivation its are not ac- ‘equal of protec 1985(3). tionable 833, under section laws, tion Id. at equal of the or of privileges . 103 S.Ct. at 3358. but also by racial, must be motivated ‘some perhaps class-based, or otherwise invidious Second, Supreme Court held section ly discriminatory animus behind the con 1985(3) does not reach conspiracies “moti- ” spiracy.’ Carpenters, 829, U.S. at by vated bias towards others account of on views_” 103 S.Ct. 3356 (quoting at Griffin, 403 U.S. their economic at Id. at 1798). 91 S.Ct. at S.Ct. at (emphasis original). It plaintiffs’ employ- nonunion found that L.Ed. only (1975). Therefore, an economic class Cameron is con- ees constituted 2d 258 by protected not section trolling present hence were in the case. 1985(3). recognized Court post-Carpen recognize We other circuits appeals had held the section reach- court 1985(3) ters have restricted section to con “conspiracies other than those motivated es spiracies directed towards racial classes. bias, yet racial stated it “did ...” Smith, Grimes v. (7th See 776 F.2d 1359 835, 103 view. Id. at S.Ct. at affirm” ‍‌​​​​‌‌‌​​​​​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍that Reardon, Cir.1985); Brown 770 F.2d 896 (10th Cir.1985); Harrison v. KVAT Food 1985(3) section was intended to Whether Management, 766 F.2d 155 (4th Cir.1985). other than racial animus We, however, is anything reach writing are not on a clean Supreme question” which the a “close slate, opеrate but under the familiar rule Carpenters did not answer. Id. at Court panel that one court not over at Defendants prior panel rule the decision of a unless an 1985(3) argue section ex- present action inconsistent decision the United States only conspiracies with a racial tends Supreme requires modification. Sal Court view, re- their animus. our Services, Secretary Health & Human mi Carpenters misplaced. That liance on (6th Cir.1985). 4 F.2d As 77 proposition for the case can be cited Carpenters open question, leaves we 1985(3) conspir- not reach that section does Cameron, accordingly are bound on economic by bias based acies motivated hold that court denied 3360. In views. Id. 103 S.Ct. at summary defendants’ motion fact, itself limited 1985(3) section claim.5 if holding by stating: “Even this section that even if sum- conspiracies reach must be construed to mary judgment should not been have any organization or on ac- aimed at class granted, plain- their motion for JNOV on activities, political or count of its views conspiracy tiff’s claim should have been convincing support no ... we find one reason- because there was but legislative history proposition able conclusion as to the verdict: no con- to reach con- provision was intended the defendants. spiracy existed between on еco- spiracies motivated based [bias the district court’s denial of We affirm supplied). Id. (emphasis nomic views].” defendants’ motion JNOV. In the claims the together taken lead us to the Two facts conspiracy against her was on her based jury could conclusion that reasonable Carpenters Admittedly, views. conspiracy deprive found a existed legitimacy raises doubts about (i.e., position in similar plaintiff and those Carpenters claims, not re- tiffs but does the Demo- county employees supporting plaintiffs either on its facts or ject claims candidate) Amendment of their First cratic holding. in its First, testimony Beth rights. of Ms. has, expressly ac- This circuit being she Money that Huss tоld her was plaintiffs interpretation of section cepted political activity of her because terminated Brock, 1985(3). Cameron In motive, by or least de- an intent shows that, Cir.1973), (6th held we Huss, engage patronage in dis- fendant 1985(3)’sprotection clearly de- reaches “§ missals. po- classes, supporters such as fined Huss, Second, Wakeley and the fact that (emphasis litical candidate.” Id. at 610 express City Lovely together pur- met for the also Glasson v. See supplied).

Louisville, (6th discussing Cir.), pose plaintiff’s termination cert. F.2d discharged politi- reject Lovely plaintiff of her because We note that even if we were to Huss, summary judgment support on the other on for Mr. Davis. court’s denial of cal hand, district claim, conspirator. 1985(3) implicated only plaintiffs this would was section Hence, hinges liability jury on the liability defendant Huss’ of defendant Huss. The affect conspiracy interrogatories Wakeley claim. found and witten that, plaintiff had “pay- ing after Huss told employee protected and thus was from hell,” T. backs are see Tr. at and that type of discharge. It therefore rea- Lovely both indicated they soned testimony her was relevant to de- requested discharge plaintiff, were see fendants’ motive Balancing or intent. T. Tr. at 319-20 and is sufficient to testimony’s probative against value its jury allow a that a conclude cоnspiracy effect, prejudicial the district court also against plaintiff existed on account of her concluded it should be excluded under Accordingly, views. we think the Fed.R.Evid. 403. jury was not unreasonable so conclud- We hold that testimony of Beth Mon ing. ey was admitted the district court. We opinion intimate no as to wheth

C. er she policymaking was a employee who appeal The defendants could have been dismissed the basis of ruling testimony court's of Ms. political affiliation. “The determination of Money Beth Money admissible. status as a policymaker many cases hired in secretary June 1980 as a in the presents question.” difficult factual County Prosecuting Attornеy’s office. She Nekolny Painter, primarily worked Mr. F.2d Davis and in actively campaigned 1980 elections cert. be half of Mr. Davis. (1982). 72 L.Ed.2d 139 conclusion, however, Such a is not neces After victory, his election defendant sary to finding admissibility. Huss Money discussed her with continued employment Prosecutor’s of- The district Money’s court reasoned that According fice. Money, Huss told her patronage discharge would be relevant to he did not working want for him be- defendants’ motive or intent in engaging in cause Money supported opponent. had his patronage agree. dismissals. We This Money testified, “he way told me that one conclusion irrespective remains of whether other, mаtter, or the it didn’t I that would Money could constitutionally herself be dis- working not be for him because I did not charged. support him.” T. Tr. at 514. appears plaintiff it testimony Money performed similar, both mainly should have been excluded as irrelevant. tasks, secretarial and both were covered Money, ‍‌​​​​‌‌‌​​​​​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍Fed.R.Evid. 401. they argue, was bargaining agreement collective a policymaking employee who could be County. both and Mon- constitutionally discharged politi- based on ey were hired and fired at approximately cal Finkel, affiliations. See Branti v. time, the same campaigned both against view, defendant Money Because Huss. In our subject pa- tronage dismissаls, argue, and Money sufficiently such com- dismissal was irrelevant to the parable defendants’ that defendants’ motive or intent in intent or in discharging plaintiff. motive discharging one would be relevant to their Defendants also any event motive and discharging intent in the other.6 the testimony’s prejudicial effect out- Further, we conclude the district court weighed probative its value and thus see, acted well discretion, within e.g., should have been excluded Fed.R. Tager, (6th United States v. 788 F.2d 349 Evid. 403. Cir.1986), in concluding Money’s that testi- mony, decidedly district court while prejudicial concluded that the tes- dam- timony because, view, aging defendants, relevant to is admissible under Money confidential, was not a pоlicymak- Fed.R.Evid. 403. Additionally, Money’s we conclude that testi- as the district court found. mony 404(b) was admissible under Fed.R.Evid.

Defendants also contend that DEFENDANTS’ ATTY: (1) Either to erroneously prohibited they were from show poor (2), has memory she or plaintiff questioning mitigation she is not being about honest. damages. This (Side relates to the district concluded). bar conference plaintiff’s corporate court’s exclusion of THE Objection COURT: sustained. and unemployment compensa tax returns at (emphasis J.A. 257-58 supplied). As a record, however,

tion. The establishes that general rule, unemployment benefits are defendants were allowed to introduce evi not deducted from pay back awards in an mitigation dence on and that trial de discharge unlawful case. See Rasimas v. fendants failed to tie this evidence to the Michigan Department Health, Mental mitigation issue. 714 F.2d cert. de nied, unemployment On the compensation (1984) L.Ed.2d (holding unemploy

question, appears it attorney defendants’ ment benefits never be deducted from did not seek to introduce the evidence for pay back case). award in a Title VII purpose showing a failure to miti- Hence, we conclude the prop gate following place: took as discussion erly excluded the evidence on lack of rele DEFENDANTS’ ATTY: grounds. vancy Conklin, Q. long you Ms. how did col- court committеd refusing no error in to unemployment compensation, lect impeachment allow evidence on a collateral ma’am? matter. A. it I believe was for about three permitted Defendants were to fully months. cross-examine about outside com- Q. see. I pensation, including wages, corpora- from a object PLAINTIFF’S ATTY: I would “Bisque tion named and Brush” which relevancy. operated founded and after her Response? THE COURT: discharge. were, however, Defendants prohibited by the district court from caus- ATTY: I DEFENDANTS’ believe it has ing corporate Bisque tax returns of answered, already been Your Honor. Brush to be admitted. The court ruled the Well, you very THE COURT: I’ll see tax returns thеmselves were not relevant quickly. you Would like to come to the under Fed.R.Evid. 401. J.A. at 266. The please. side bar ruling prohibited this (Side Bench; Bar Conference at the establishing them from failure miti- record) gate damages. you’re saying, What is it that it’s not an court’s decision to district exclude offset? evidence Fed.R.Evid. 401 should Right, PLAINTIFF’S ATTY: that’s what be reversed unless the decision is an abuse saying. I’m Wyers, discretion. See United States v. going DEFENDANTS’ ATTY: It (5th Cir.1977). In our credibility but she already has answer- view, the district court’s decision anyway. ed connection is not an abuse of discretion understand, THE COURT: So I I but and, further, were, if it even that would not mean what does that have do with ground be a for reversal because the court credibility? allowed full cross-examination of outside Well, go- DEFENDANTS’ ATTY: I compensation apart from the tax returns. ing to show that —our information D. longer she collected than and— THE COURT: But what does it that the district Defendants granting do—what case does it have with? court’s to do order reinstatement with What relevance—if it can’t be an offset improper restoration of benefits was: and, (2) relevance is it? impossible what for the defendants to ployers perform. The defendants first 231-33, with the county. Id. should not have been or- N.W.2d at reinstatement by the district court because it was dered appointment Under statutes similar to jury. jury, by the The awarded Clair, the one in discussed St. see Mich. speciаl interrogatory, plain- found that the Comp.Laws 50.63, (1967 Ann. 48.37 & §§ $40,000.00. juror, tiff entitled to One was 1987 Supp.), county the clerk county and presumably foreperson, the specifically authority plain- treasurer have to reinstate on the wrote the verdict form that amount tiff though even the longer Board is no wages only.” plaintiff was for “back The defendant.7 reject We therefore defend- responds that reinstatement or future dam- argument, ants’ at least as it applies to ages requested by plaintiff were not the Lovely. defendants jury. from the E. during The record reveals that at no time The district court awarded plaintiff plaintiff the course of the trial did request attorneys’ $42,487.50 in fees the amount of damages. an of future award In her com under 42 U.S.C. 1988. Defendants plaint, § plaintiff request did the alternative this is award excessive. of reinstatement. relief Reinstatement is remedy, an equitable and the district court Along plaintiff’s attorney’s with motion awarding acted it fees, plaintiff's attorney, Donald Green- case. College See Ass’n spon, Professional filed affidavit which he stated County Community Educators El Paso that the total number expended of hours on (5th College, Cir.), cert. the case was The 259.75. district court reasonable, held that this amount was (1984) (“[Ojnce L.Ed.2d 186 plaintiff question defendants do not holding on discharge establishes his resulted appeal. attorney Plaintiff’s also stated constitutionally from impermissible mo his affidavit prevailing market tives, presumed he is to be entitled to rein rate in the relevant community was $75.00 statement.”). hour, per to $125.00 and that on individual cases, employment attorney’s Second, argue they defendants are with- own rate per hour. $75.00 The authority out to plaintiff. reinstate the attorney, however, tiff’s requested that his Board, Only the argue, which rate be enhanced per to hour $150.00 100% granted verdict, a directed has the compensate to contingent nature power appoint county employees. The case. The attor- rely Michigan on a Employment neys’ rate, at the noting, fees enhanced Rеlations Commission decision which held “plaintiff's counsel took the case on a con- county prosecutors joint are not employers tingency fee basis. both the law prosecuting assistant attorneys with the and the facts strongly disputed by the County but that the itself is defendants. court finds that $150.00 employer. decision, sole That as per hour is a reasonable rate.” J.A. at 18. plaintiff points brief, out in her has been Michigan overturned provides pre- U.S.C. that the Court. St. Clair Prosecutor vailing v. American party rights in a civil action Fed’r Employees, State Mich. recover attorneys’ reasonable Nor- fees. 388 N.W.2d 231 Clair, the mally, St. the lodestar method is utilized Michigan Supreme cоunty Court held that whereby the amount the fee deter- prosecutors, under their statutory authori- by multiplying mined the number of hours ty appoint deputies, authority do have expended reasonably the case appoint assistants and therefore are prevailing coem- Stenson, ‍‌​​​​‌‌‌​​​​​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍market rates. Blum v. argument, 7. At oral attorney deputies plaintiff defendants' ar- only ment of a secre- gued record, however, for the first time tary. that the defendants' statu- discloses that de- tory appointment authority apply does not deputy fendants prior viewed appoint- because it discharge. authorizes T. Tr. at 39.

553 886, 888, 1541, 1543, noted, 104 S.Ct. however, U.S. the analysis under cases, 304(d) L.Ed.2d 891 In some how sеction is the same as that under 42 ever, attorney’s may fee the be to enhanced U.S.C. 1988. In Delaware Valley, § the contingent the reflect nature which upon Supreme Court directly confronted “the is- the case was taken. whether, Northcross v. sue when a prevails, [of] Board Education Memphis City attorney should or be awarded of of Schools, 611 F.2d 624 separate cert. compensation for assuming the being risk of not paid.” Id. 107 S.Ct. at (1980), L.Ed.2d this court stated: Justices, 3081. Four Chief Justice Kehn- quist, Powell, White, Justices Perhaps Scalia, significant the most and factor in felt the enhanced fee per- cases which at award was these times renders the not by mitted the attorneys’ hourly fеes unreasonably routine fee statute. low is Id. 107 S.Ct. at Blackmun, 3080-89. upon the fact the award is Justices contingent Brennan, Marshall, Stevens, however, and attorney’s An regular hourly success. concluded that an upward billing is upon expectation contingency based an of en- permissible hancement is win, payment, under lose or draw. If he or she the attor- neys’ fees statutes. Id. 107 paid victory, will be in the event S.Ct. at of 3091- 3102. Justice disagreed O’Connor adjusted upward rates will be with those to the plurality opinion and compensate attorney for the risk the concluded that is the attorneys’ fee statutes being paid up- of not do allow for accepting Some all. ward enhancement in rights statute, contingency under the cases civil those fee cases. She, Id. 107 S.Ct. strong in the at 3089. which facts are the how- and law ever, clear, felt that in the pose court, case before losing, little risk of the and the which only thirty-three involved attorney’s billing per normal rate will be ade- cent enhancement, the quate Others, district court compensation. had develop- proper findings made ing fact.8 She areas of law or where the stated: facts are strongly disputed, require will findings substan- Neither the nor the evidence upward tial adjustment compensate large indicate that the enhancements for risk. long the We also note that in a this сase necessary to attract com- complicated and only por- law suit ... counsel in the petent relevant communi- expended tion the time can ty. be reason- it is clear that the District ably regarded contingent; as once liabili- Court ‘legal’ based enhancement on ty is established the attorney assured unique is risks and risks to the case. The compensation establishing ap- for considerations used the District Court decree, propriate remedy, monitoring justify the enhancement—the ‘new recovering and contingency his fee. The case, novel issues’ raised is not part factor a ‘bonus’ but is of the the stubbornness of the defendants— compеnsation pre- reasonable to which a should already be reflected in the num- vailing party’s attorney is under expended entitled ber of hourly hours and the rate, again § and cannot be used to in- crease the fee award. Id. at 638. See also Kelley Metropoli- Educ., tan (citation Bd. omitted). 773 F.2d 677 Id. S.Ct. at 3091 n (6th Cir.1985). We present conclude that case the In Pennsylvania Valley Delaware considered the con- —Air, Citizens’ tingency case; Counsel Clean nature of the fee in this —, (1987), the district court did not make for attorneys’ brought motion fees specific findings required by factual 304(d) Act, section Air Clean both Valley. Northcross Delaware 7604(d). U.S.C. Accordingly, we remand to the district In the it is diffiсult determine If the amount which the stated in his exactly the enhancement awarded top affidavit was rate the relevant com- plaintiffs attorney's If court. rates normal ($125.00 hour) considered, munity per is then ($75.00 hour), per are as the benchmark taken the increase one of 20%. per $150.00 increase hour is of 100%. one findings

court on this issue of fact as necessity risk-multipli-

the amount and of a

er.

III. stated,

For we the reasons AFFIRM the respects all other than on fees attorneys’

the issue of under 42 U.S.C. 1988. We REMAND the case to the findings appro-

district court for as to the

priateness of attorneys’ of an enhancement

fees in the case. NORRIS, Judge,

ALAN E. Circuit

concurring.

Although agree I with what has been majority, I

said concur in affirming judgment against defendant John Huss

only because we bound are to follow the panel

decision of a of this court in Camer- Brock,

on v. 473 F.2d 608 though

even reasoning adherence to the upon majority

relied of the members Court in intervening ‍‌​​​​‌‌‌​​​​​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍opinion in Carpenters United Bhd.

Joiners, Scott, Local 610 v. U.S. appear compel

would contrary result. See, Smith, e.g., Grimes v. 776 F.2d 1359 (7th Cir.1985); Reardon, Brown v. (10th Cir.1985); F.2d 896 Harrison Inc., Food Management,

KVAT (4th Cir.1985). reservation, With this

then, I concur Judge opinion. Milburn’s DUDA, Plaintiff-Appellant,

Liesbeth

SECRETARY OF HEALTH AND SERVICES,

HUMAN

Defendant-Appellee.

No. 86-3877.

United States Appeals,

Sixth Circuit. (argued), Canton, Ohio, Robert G. Rubin plaintiff-appellant. Sept. Moore,

Carla D. Atty., Carolyn Asst. Cleveland, Ohio, Watts Allen (argued), defendant-appellee.

Case Details

Case Name: Carol Conklin v. Leo E. Lovely Joe W. Wakeley and John Huss

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 3, 1987

Citation: 834 F.2d 543

Docket Number: 86-1607

Court Abbreviation: 6th Cir.