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Soliman v. Ebasco Services Inc.

decided: June 30, 1987.


Appeal from denial of counsel fees of $15,000 sought under 42 U.S.C. § 2000e-5(k) (1982) and from amount of prejudgment interest awarded on a jury verdict of $5400 in the United States District Court for the Southern District of New York (Griesa, J.). Appeal dismissed with sanctions imposed against plaintiff's attorney.

Author: Cardamone

Before: LUMBARD, MESKILL, and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Having won a small victory in the district court, plaintiff's lawyer decided to take this appeal from the denial of counsel fees and the amount of prejudgment interest awarded. In this endeavor he has heedlessly submitted a mishmash of letters, instruments, pleadings, affidavits, and documents - many irrelevant and some improper - most of which are inappropriate for a lawyer considering his client's best interests. Plainly, not all adverse rulings in the district court warrant an appeal and, more pointedly, as our holding in this case makes clear, a lawyer should look carefully before jumping to the conclusion that his interests are also his client's.


This appeal is from the denial of counsel fees and the partial denial of prejudgment interest awarded plaintiff Amina Soliman in her Title VII employment discrimination action. Plaintiff instituted this action under the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1982), after her employment with Ebasco Services Incorporated was terminated on November 30, 1979. Before bringing suit Ms. Soliman had filed charges with the Equal Employment Opportunity Commission (EEOC) and had sought an injunction requiring Ebasco to reinstate her. Because she moved in 1980 from New Orleans, Louisiana - where she had been employed by Ebasco -to Denver, Colorado the injunction was denied. Later, plaintiff moved to New Jersey and while there obtained a "Right to Sue Letter" on February 7, 1985. In April 1985, five and a half years after her employment had been terminated, plaintiff filed her complaint in the United States District Court for the Southern District of New York ( Griesa, J.).

The action was tried before a jury and resulted in a December 12, 1986 verdict for Ms. Soliman in the amount of $5400. During the trial she claimed that she had been denied equal employment opportunities by her employer on account of her sex, and that she had been subjected to a retaliatory discharge because of the complaints she had filed with the EEOC. Four questions were submitted on liability. These were whether Ms. Soliman was discriminated against because she was (1) promoted only on a probationary basis, (2) demoted in September 1979, (3) laid off in November 1979, and (4) discharged in November 1979 in retaliation for commencing the EEOC proceedings. The first three were answered in the negative by the jury; the fourth or retaliation charge was answered in the affirmative. It was on the basis of that answer that the jury awarded plaintiff the damages referred to. No appeal was taken from this award.

Immediately after the jury was excused on December 12, plaintiff's attorney moved for counsel fees pursuant to 42 U.S.C. § 2000e-5(k). In that application, styled "Application For Counsel Fees By Attorney For Plaintiff", general statements were set forth that the attorney attended "conferences with client", made "long distance phone calls", conducted "discovery", and performed "research". Seventy five hours of billable time were claimed at a $200 per hour rate, amounting to $15,000 plus itemized disbursements of $98.55. The application concluded with a request that the trial court award $15,098.55 to the "undersigned" attorney for plaintiff. Judge Griesa promptly denied the motion "with leave to renew" upon a proper factual showing.

The following day a "Chart" of hours expended was submitted by plaintiff's attorney again claiming the same amount for counsel fees. Opposite the month, day, and year, each one-line statement of the 20 or so items recites services, such as, "research", "conference", "review of papers", "preparation for trial". The billable hours for these services are all expressed in whole numbers. At the same time, a proposed judgment was submitted to the trial court which provided that "attorney for plaintiff shall recover attorney's fees in the sum of ." In addition, prejudgment interest on the award was sought commencing on November 19, 1979.

After first striking the language awarding attorney's fees and adding $527 in prejudgment interest, Just Griesa signed a judgment awarding plaintiff $5927 on February 3, 1987 and, at the same time, handed down a written decision setting forth the computation of prejudgment interest. The district court's rationale was that Ms. Soliman had a right to sue immediately after the termination of her EEOC proceeding on October 21, 1981, and "for no good reason" delayed bringing suit until April 1985. Thus, the district court awarded prejudgment interest only for the period of time commencing when Ebasco had a general layoff on May 1, 1980 until October 21, 1981, when plaintiff could have initiated her suit.

The district court rejected the request for an award of attorney's fees stating that there was no justification for an amount nearly three times the recover found for plaintiff by the jury. In considered plaintiff's success minimal and the award small. On most issues, the district court continued, Ms. Soliman did not prevail, and on the one issue where she did, the trial judge commented - "[I]t is fair to say that certain questions asked . . . by the court, in attempting to clarify a confusing record, elicited the evidence which formed the necessary basis for the narrow verdict in plaintiff's favor." If further stated that the presentation of this case was "confusing and lacking in qualities ordinarily associated with the orderly presentation of a meritorious case."

On February 11 a notice of appeal from the denial of counsel fees and the computation of prejudgment interest was filed by the attorney for plaintiff. Five days later, on February 16, Ms. Soliman wrote in longhand to Judge Griesa saying that her attorney had appealed "totally [sic] in [sic] his own" without her permission, that she was "not interested in the appeal [sic]", and that she accepted the district court's judgment. She also asked for a copy of Judge Griesa's order. By Memorandum of February 19 directed to plaintiff and both counsel that recited Ms. Soliman's statement that the appeal was unauthorized, Judge Griesa noted that in light of the filing of an appeal he was without further jurisdiction, and referred any questions plaintiff might have to the Clerk of this Court.

On March 27, a brief raising the issues of counsel fees and prejudgment interest together with an appendix were filed in the Clerk's office on plaintiff's behalf. On May 13, appellee's brief was filed which, among other arguments, questioned plaintiff's attorney's standing to argue the district court's denial of attorney's fees in light of plaintiff's letter of February 16 to Judge Griesa. The appeal was argued May 21. The standing issue was the subject of questions to plaintiff's counsel, who responded by handing up to the Court a handwritten letter from Ms. Soliman dated May 13 (the date when appellee's brief was ...

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