Rita Sanders Geier v. Don Sundq Uist

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0186P (6th Cir.)
File Name: 04a0186p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RITA SANDERS GEIER;
PATRICK J. GILPIN; ERNEST
TERRELL; HAROLD SWEATT;
PHILLIP SWEATT, Individually
and as Next Friend of Phillip
Sweatt; CITIZENS AND
RESIDENTS OF THE STATE OF
TENNESSEE; CITIZENS OF THE
UNITED STATES,
Plaintiffs-Appellants,
v.
DON SUNDQ UIST, et al.,
Defendants-Appellees.
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No. 02-6400
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 68-05077—Thomas A. Wiseman, Jr., District Judge.
Argued: April 27, 2004
Decided and Filed: June 18, 2004
2 Geier, et al. v. Sundquist, et al. No. 02-6400
*The Honorable S. Arthur Spiegel, United States District Judge for
the So uthern District o f Ohio , sitting by designation.
Before: COLE and COOK, Circuit Judges; SPIEGEL,
District Judge.*
_________________
COUNSEL
ARGUED: Lewis R. Donelson III, BAKER, DONELSON,
BEARMAN & CALDWELL, Memphis, Tennessee, for
Appellants. Richard F. Haglund III, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellees. ON BRIEF: George E. Barrett, Edmund L.
Carey, Jr., BARRETT, JOHNSTON & PARSLEY, Nashville,
Tennessee, for Appellants. Kathleen A. Eyler, OFFICE OF
THE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellees.
COLE, J., delivered the opinion of the court, in which
SPIEGEL, D. J., joined. COOK, J. (pp. 23-25), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Appellants, the Geier
Plaintiffs, appeal the district court’s judgment awarding them
$376,587.50 in attorneys’ fees pursuant to 42 U.S.C. § 1988
for legal services performed in connection with this civil
rights action – ongoing for the past thirty-six years – which
led to the desegregation of Tennessee’s public higher
education system. The Geier Plaintiffs contend that the
district court abused its discretion in: (1) declining to award
fees pursuant to the “common fund”/“common benefit”
method; (2) setting a lodestar rate of $250 per hour where the

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No. 02-6400 Geier, et al. v. Sundquist, et al. 3
Geier Plaintiffs had requested and submitted market data
supporting an hourly rate of $400; and (3) considering the
Johnson factors legally unavailable for establishing and
enhancing the lodestar figure. We find no abuse of discretion
in the district court’s declining to use the “common fund”/
“common benefit” method for calculating attorneys’ fees.
However, because of errors in the district court’s analyses
concerning the appropriate hourly rate and the Geier
Plaintiffs’ entitlement to an upward adjustment of the fee
award, we vacate the fee award and remand this case to the
district court for further proceedings consistent with this
opinion.
I. BACKGROUND
This action, which was filed in 1968, concerns the
desegregation of Tennessee’s public universities. The facts
and lengthy history of this litigation have been set forth in the
prior opinions of this Court and the district court. See Geier
v. Sundquist, 94 F.3d 644 (6th Cir. 1996); Geier v.
Richardson, 871 F. 2d 1310 (6th Cir. 1989); Geier v.
Alexander, 801 F.2d 799 (6th Cir. 1986); Geier v. Alexander,
593 F. Supp. 1263 (M.D. Tenn. 1984); Geier v. University of
Tennessee, 597 F.2d 1056 (6th Cir.), cert. denied, 444 U.S.
886 (1979); Geier v. Blanton, 427 F. Supp. 644 (M.D. Tenn.
1977); Geier v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972);
and Sanders v. Ellington, 288 F. Supp. 937 (M.D. Tenn.
1968). Because, however, the matter before us benefits from
an appreciation of the history and magnitude of this action,
we set forth the case’s background here.
In 1968, several African-Americans (the “Geier Plaintiffs”)
sued the Governor of Tennessee, the University of Tennessee
(“UT”), Tennessee A & I State University, and various
Tennessee educational agencies and officials to enjoin UT
from expanding its program at a non-degree-granting
educational institution in Nashville. The complaint alleged
that any expansion of UT Nashville would affect the efforts
of Tennessee State University (“TSU”), a predominantly
4 Geier, et al. v. Sundquist, et al. No. 02-6400
African-American institution, to desegregate its student body
and faculty. The United States intervened as a plaintiff in
1968, requesting more expansive relief sought by the original
plaintiffs. The United States asked the court to “order the
State defendants to present a plan calculated to produce
meaningful desegregation of the public universities in
Tennessee.” Sanders, 288 F. Supp. at 939. The case soon
became the vehicle for the desegregation of state-affiliated
colleges and universities throughout Tennessee. In 1973, a
group of parents, teachers, and faculty members were allowed
to intervene (“Richardson Intervenors”). In 1983, the district
court allowed another group of African-American and white
TSU faculty members and students to intervene (“McGinnis
Intervenors”). Also in 1983, the district court permitted the
TSU Alumni Association to appear as amicus curiae.
The district court found that six years elapsed after Brown
v. Board of Education, 347 U.S. 483 (1954), before racial
requirements for admission to Tennessee’s public universities
and colleges were abolished. Although all of the state’s
public higher education institutions had non-discriminatory
open door admissions by 1968, the district court found that
“the dual system of education created originally by law has
not been effectively dismantled.” Sanders, 288 F. Supp. at
940. Relying on Green v. County School Board, 391 U.S.
430 (1968), the district court stated that it was “convinced
that there is an affirmative duty imposed upon the State by the
Fourteenth Amendment to the Constitution of the United
States to dismantle the dual system of higher education which
presently exists in Tennessee.” Id. at 942. The court then
ordered Defendants to submit a plan “designed to effect such
desegregation of the higher educational institutions in
Tennessee, with particular attention to Tennessee A & I State
University, as to indicate the dismantling of the dual system
now existing.” Id. Defendants did not appeal.
Defendants submitted a plan to the court that relied
primarily on the efforts of predominantly white institutions to
expand efforts to recruit black students and faculty. The plan

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No. 02-6400 Geier, et al. v. Sundquist, et al. 5
called for TSU to recruit white students and faculty and to
develop and publicize academic programs that would attract
white as well as black students from the Nashville area. The
Geier Plaintiffs and the United States filed objections to the
plan, and, after a hearing, the district court found that the plan
lacked specificity. Instead of disapproving the plan, however,
the district court directed Defendants to file a report showing
what had been done to implement each component of the
plan.
Defendants’ report showed some progress in attracting
African-American students to the formerly all-white
institutions, but little improvement in the number of black
faculty at those schools, and virtually no progress in
desegregating TSU. The Geier Plaintiffs filed a motion for
further relief, contending that the plan and report failed to
offer a scheme for dismantling the dual system of public
higher education, as ordered by the court. While that motion
was being considered by the district court, a new report
showed that TSU remained 99.7% African-American and that
its entering class in the fall of 1970 was 99.9% African-
American. The district court found that so long as TSU
remained overwhelmingly black, it could not be said that
Defendants had dismantled the dual system or that they were
“in any realistic sense, on their way toward doing so.” Geier
v. Dunn, 337 F. Supp. 573 (M.D. Tenn. 1972).
The district court found that an “open door policy, coupled
with good faith recruiting efforts . . . is sufficient as a basic
requirement” for desegregating institutions of public higher
education. Id. at 580 (emphasis in original). However, the
court held, where this basic requirement fails to eliminate
identifiably “white” and “black” institutions, something more
is required. Defendants were ordered to present another plan
to the court by March 15, 1972, that would provide for
substantial desegregation of the TSU faculty and ensure a
substantial white presence on the TSU campus. Id. at 581.
6 Geier, et al. v. Sundquist, et al. No. 02-6400
In the subsequent years, Defendants submitted several
plans, and the district court ordered that some courses and
fields of study be offered exclusively at UT Nashville.
Eventually, all of the plaintiffs, including the United States,
proposed a merger of TSU and UT Nashville, with TSU as
the surviving institution. The district court held a month-long
evidentiary hearing on this proposal in 1976. After
considering voluminous records and testimony, the district
court found steady, but slow progress in attracting black
students and faculty to the formerly-white institutions, but, as
before, little or no progress in converting TSU from a one-
race university. The court concluded that the plans applied in
the course of the eight years that the litigation had been active
had not worked and showed no prospect of working. The
court therefore ordered the merger of TSU and UT Nashville
into a single institution under the state’s Board of Regents.
The district court chose this “drastic remedy” because “the
State’s actions have been egregious examples of
constitutional violations.” Geier v. Blanton, 427 F. Supp.
644, 660 (M.D. Tenn. 1977).
In affirming the district court, Geier v. University of
Tennessee, 597 F. 2d 1056 (6th Cir.), cert. denied, 444 U.S.
886 (1979), we held that the pronouncement in Green v.
County School Board of an affirmative duty to remove all
vestiges of state-imposed segregation applies to public higher
education as well as to education at lower levels. Geier, 597
F.2d at 1065 (“[T]he state’s duty is as exacting to eliminate
the vestiges of state-imposed segregation in higher education
as in elementary and secondary school systems; it is only the
means of eliminating segregation which differ.”) (quotation
and citation omitted)). We also held that the district court’s
factual findings were not clearly erroneous, id. at 1067, and
that the remedy ordered was within the traditional bounds of
equitable relief. Id. at 1068.

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No. 02-6400 Geier, et al. v. Sundquist, et al. 7
A. The 1984 Settlement
The history of the litigation to this point illustrates the
arduous path along which the original parties and Defendants
traveled before they entered a stipulation of settlement
(“Settlement”) on September 25, 1984. Geier v. Alexander,
593 F. Supp. 1263 (M.D. Tenn. 1984), aff’d, 801 F.2d 799
(6th Cir. 1986). All of the parties, except for the United
States, agreed to the comprehensive Settlement requiring
Defendants to implement numerous new desegregation
programs throughout Tennessee’s system of higher education,
including: (1) attempting to obtain a student body at TSU that
is 50% white; (2) assuring that changes in admissions policies
do not have an adverse racial impact; and (3) actively
recruiting African-American faculty and administrative staff
for Tennessee’s predominantly white institutions. The
Settlement also established a monitoring committee and
provided for the resolution of disputes among the parties.
“The plan embodied in the [Settlement] was the culmination
of long hours and days of negotiations in which all parties,
including the United States, participated.” Geier, 801 F.2d at
802.
But the struggle to desegregate Tennessee’s system of
higher education continued. Shortly after the district court
approved the Settlement, the United States filed a
memorandum challenging many of the programs contained in
the Settlement. The district court rejected the Government’s
arguments and the Government appealed to this Court, Geier
v. Alexander, 801 F.2d 799 (1988), challenging only that part
of the Settlement that established a pre-professional program
pursuant to which seventy-five qualified African-American
sophomores would be selected each year and guaranteed
admission to one of the state’ professional schools upon
completing his or her undergraduate work and satisfying the
relevant school’s admissions standards. The Government
argued that this constituted a “racial quota” system, but this
Court rejected that argument and affirmed the district court’s
judgment authorizing the Settlement.
8 Geier, et al. v. Sundquist, et al. No. 02-6400
Next ensued a request for interim attorneys’ fees by the
individual plaintiffs and state defendants, who claimed that
they were the “prevailing parties” within the meaning of
42 U.S.C. § 1988 after the United States intervened in this
suit, sought relief beyond the injunction requested by the
private parties, and then challenged the Settlement entered
into between the parties and approved by the district court,
requiring both the private plaintiffs and Defendants to defend
the Settlement’s terms. The district court awarded attorneys’
fees against the United States to the Geier Plaintiffs and the
state. The United States appealed and we vacated the award.
Geier v. Richardson, 881 F.2d 1075, No. 88-5155, 1989 WL
90761 (6th Cir. Aug. 11, 1989).
B. The 2001 Consent Decree
In 1994, the state moved to vacate the 1984 Settlement and
terminate the litigation based, in part, on a change in the law
stemming from the Supreme Court’s decision in United States
v. Fordice, 505 U.S. 717 (1992), which addressed
Mississippi’s dual system of public higher education. In
1996, again relying on Fordice, Defendants moved for a
judgment on the pleadings. The district court did not rule on
the motion to vacate, and it eventually denied the state’s
motion for judgment on the pleadings.
Ultimately, in January of 2000, the parties entered
voluntary mediation. Once again, the parties devoted
substantial time to considering the state of racial equality in
Tennessee’s system of higher education. In January 2001, the
parties entered into a Consent Decree, Geier v. Sundquist, 128
F. Supp. 2d 519 (M.D. Tenn. 2001), which states, in part:
In dismantling the vestiges of the former dual system, it
is the parties’ intention to create an education system that
enhances the increased enrollment of African American
students at the predominantly white institutions and that
likewise enhances the enrollment of white students at the
State’s predominantly black institution. To achieve this

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No. 02-6400 Geier, et al. v. Sundquist, et al. 9
1Although the court’s opinion also determined a fee award for the
Richardson Intervenors, the state ultimately reached an agreement with
them and paid their attorneys’ fees.
goal, the parties are committed to maintaining
educational institutions that are committed to
desegregation and to reaching out to all residents of this
State regardless of race. It is also the intention of the
parties that employment and promotion decisions within
the State’s system of higher education be made in an
environment unfettered by the discriminatory practices of
the old dual system. The goal is to increase the presence
of other-race faculty, staff, and administrators on the
campuses of the State’s colleges and universities.
128 F. Supp. 2d at 521.
C. Attorneys’ Fees
Pursuant to the 2001 Consent Decree, the Geier Plaintiffs,
the Richardson Intervenors, and the McGinnis Intervenors
filed applications for attorneys’ fees with the Tennessee
Attorney General. The McGinnis Intervernors reached an
agreement with the state and were paid attorneys’ fees in June
2001. However, unable to agree on an award amount with the
state, the Geier Plaintiffs and Richardson Intervenors filed
their applications for attorneys’ fees with the federal district
court. They requested a hearing concerning the fee
applications, but the district court deemed it unnecessary.
On September 27, 2002, the district court issued an Opinion
and Order concerning the attorneys’ fees, awarding the Geier
Plaintiffs’ $376,587.50, although they had requested
$5,000,000. Geier v. Sundquist, 227 F. Supp. 2d 881 (M.D.
Tenn. 2002).1 The district court used the lodestar method for
calculating the fee award and concluded that $250 per hour
was a reasonable hourly fee. It then determined that counsel
for the Geier Plaintiffs should be compensated for 1432.55
10 Geier, et al. v. Sundquist, et al. No. 02-6400
hours, which included 416 hours of undocumented time.
Counsel urged the court to consider the so-called “Johnson
factors,” listed in Johnson v. Georgia Highway Exp., Inc., 488
F.2d 714 (5th Cir. 1974), either as bearing upon the lodestar
amount or an enhancement thereof. But, for reasons that will
be described in more detail below, the district court fixed the
lodestar at $250 and deemed any enhancement legally
unwarranted.
The Geier Plaintiffs’ fee award – which covers the period
between June 1987 and January 2001 – is the subject of this
appeal. Pursuant to the 1984 Settlement, they received
$85,000 in interim attorneys’ fees in 1988; that is the only fee
the Geier Plaintiffs have received to date.
II. ANALYSIS
We review a district court’s award of attorneys’ fees for
abuse of discretion. Perotti v. Seiter, 935 F.2d 761, 763
(1991). “An abuse of discretion exists when the district court
applies the wrong legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact.”
First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th
Cir. 1993).
A. Common Fund/Common Benefit Method
The Geier Plaintiffs’ first claim on appeal is that the district
court abused its discretion in declining to use the “common
fund”/“common benefit” method (hereinafter “common
fund”) for determining attorneys’ fees. Like the lodestar
method, the common fund method is an exception to the
general “American rule” that litigants pay their own
attorneys’ fees. It is employed where a lawyer recovers a
common fund for the benefit of persons in addition to those
he formally represents. As the Supreme Court has explained:
The doctrine rests on the perception that persons who
obtain the benefit of a lawsuit without contributing to its

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No. 02-6400 Geier, et al. v. Sundquist, et al. 11
cost are unjustly enriched at the successful litigant’s
expense. Jurisdiction over the fund involved in the
litigation allows a court to prevent this inequity by
assessing the attorneys’ fees against the entire fund, thus
spreading fees proportionately among those benefitted by
the suit.
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980)
(citations omitted). In order for a class to recover attorneys’
fees pursuant to the common fund doctrine: (1) the class of
people benefitted by the lawsuit must be small in number and
easily identifiable; (2) the benefits must be traceable with
some accuracy; and (3) there must be reason for confidence
that the costs can in fact be shifted with some exactitude to
those benefitting. Aleyska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240, 247 (1975). The Supreme Court has
stated that “[t]hose characteristics are not present where
litigants simply vindicate a general social grievance.”
Boeing, 444 U.S. at 478. The criteria are met, however,
“when each member of a certified class has an undisputed and
mathematically ascertainable claim to part of a lump-sum
judgment recovered on his behalf.” Id. As such, the common
fund method is often used to determine attorneys’ fees in
class action securities cases, see, e.g., Boeing, 444 U.S. 472,
and suits by union members against their unions, see, e.g.,
Hall v. Cole, 412 U.S. 1 (1973).
It was not an abuse of discretion for the district court to
decline to use the common fund method in this case. In
addition to the doctrine being inapplicable where litigants are
vindicating a social grievance, the doctrine is inappropriate
here because there is simply no fund. The benefit provided to
the plaintiff class – the desegregation of Tennessee’s system
of higher education – is not pecuniary in any conventional
way and did not result in the creation of a fund to be divvied
up among the plaintiffs, as is the case in common fund cases.
Although (as the Geier Plaintiffs urge) the benefits attained
could perhaps be measured as pecuniary – in the sense that a
dollar value could be assigned to the cost of the remedial
12 Geier, et al. v. Sundquist, et al. No. 02-6400
measures – transposing the action’s social value into
monetary value is imprecise, and more importantly, still
leaves us without a fund. The money designated by
Tennessee for the remedial programs goes to fund the
programs, not to pay the plaintiffs. Moreover, applying the
Aleyska factors, described above, the common fund method
is unworkable here: the class of persons benefitted by this
lawsuit is not at all small or manageable. Rather, according
to the 2001 Consent Decree, the class includes “all residents
of this State,” Geier, 128 F. Supp. 2d at 521. As such, the
class is not easily identifiable and the benefits could not be
traced with any accuracy.
B. Reasonable Hourly Rate
Having declined to use the common fund doctrine for
calculating attorneys’ fees, the district court instead used the
lodestar approach whereby the court multiplies a reasonable
hourly rate by the proven number of hours reasonably
expended on the case by counsel. Adcock-Ladd v. Secretary
of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). “The primary
concern in an attorney fee case is that the fee awarded be
reasonable, that is, one that is adequately compensatory to
attract competent counsel yet which avoids producing a
windfall for lawyers.” Reed v. Rhodes, 179 F.3d 453, 471
(6th Cir. 1999) (citing Blum v. Stenson, 465 U.S. 886, 893,
897 (1984). To arrive at a reasonable hourly rate, courts use
as a guideline the prevailing market rate, defined as the rate
that lawyers of comparable skill and experience can
reasonably expect to command within the venue of the court
of record. Adock-Ladd, 227 F.3d at 350. The Geier
Plaintiffs contend that the district court abused its discretion
in finding $250 a reasonable hourly rate when they had both
requested $400 per hour and submitted evidence that $400
was the reasonable hourly rate for lawyers of skill and
experience comparable to George E. Barrett, the Geier
Plaintiffs’ lead counsel, litigating a civil rights action of this
scale.

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No. 02-6400 Geier, et al. v. Sundquist, et al. 13
We recognize that deference is to be given to a district
court’s determination of a reasonable attorneys’ fee.
Nonetheless, it remains important for the district court to
provide an adequate explanation of the reasons for its award
and the manner in which that award was determined. Hensley
v. Eckerhart, 461 U.S. 424, 437 (1983) (“it remains important
for the district court . . . to provide a concise but clear
explanation of its reasons for the fee award.”). At times, we
have found an abuse of discretion where a district court fails
to explain its reasoning adequately or to consider the
competing arguments of the parties. See Moore v. City of
Paducah, 790 F.2d 557 (6th Cir. 1986).
Here, in determining the reasonable hourly rate, the district
court appears to have relied almost exclusively on market data
provided by Defendants, citing to local awards of
approximately $250 per hour in civil rights cases. (The court
also purported to rely on its own judicial experience, noting:
“My recollection is not what it once was, but I cannot recall
ever awarding a fee in excess of $250 per hour.” Geier, 227
F. Supp. 2d at 886.). While this data is informative, the
district court never mentioned that the Geier Plaintiffs’
counsel requested $400 per hour, and the court never
discussed any of the evidence submitted by the Geier
Plaintiffs supporting a $400 per hour rate. Attorney Lewis R.
Donelson, of Nashville, Memphis, and Knoxville’s Baker,
Donelson law firm, submitted an affidavit stating that a $450
hourly rate for Mr. Barrett was “fair and reasonable [and] not
an uncommon rate for leading attorneys in Tennessee at this
time,” and that Mr. Barrett “is certainly the leading expert on
civil rights desegregation cases.” There were similar
affidavits – attesting to the reasonableness of a $400 or $450
hourly fee – from five other attorneys. In addition, the Geier
Plaintiffs point to the $400 per hour rate awarded attorneys in
Craft v. Vanderbilt University, a federal class action from the
Middle District of Tennessee alleging civil rights violations
in connection with a 1940s medical experiment in which
pregnant women unknowingly ingested radioactive iron
isotope.
14 Geier, et al. v. Sundquist, et al. No. 02-6400
We also note that the district court determined that $250 per
hour was the appropriate hourly rate for the McGinnis
Intervenors’ counsel, Messrs. Norris and Weatherly. The
Geier Plaintiffs argued that they were more experienced and
more active in the litigation than the intervenors’ counsel, and
that therefore, they are entitled to a higher hourly rate. We
find this argument sensible. According to the record, Norris
and Weatherly are less experienced than Mr. Barrett, and both
were paid at lower hourly rates earlier in this lawsuit. See
Geier 227 F. Supp. 2d at 883 (explaining that, in 1987, Norris
was paid $90 per hour; Dinkins $125 per hour; and Barrett
$150 per hour). Furthermore, by Mr. Norris’s own
admission, in a letter to Mr. Barrett dated February 2, 2001,
he and Weatherly played a less “global” role in this action
through the years.
In short, the district court’s order contains no explanation
of how – or even if – it accounted for the Geier Plaintiffs’
competing information concerning the prevailing market rate.
Absent some indication of how the district court’s discretion
was exercised, we have no way of knowing whether that
discretion was abused. See Chalmers v. City of Los Angeles,
796 F.2d 1205 (9th Cir. 1986) (vacating award of attorneys’
fees and remanding where district court’s opinion
insufficiently explained how it arrived at the fee amount). We
are, therefore, unable to affirm the decision below.
Accordingly, the hourly rate determination as to the Geier
Plaintiffs is vacated and we remand this matter for further
review based upon the market data of record, including the
Geier Plaintiffs’ submissions.
C. The Johnson Factors
The Geier Plaintiffs’ last claim on appeal is that the district
court abused its discretion in failing to consider the
Johnson factors as bearing on the initial lodestar figure and
any enhancement thereof. The Supreme Court has repeatedly
stated that “[t]he primary concern in an attorney fee case is

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No. 02-6400 Geier, et al. v. Sundquist, et al. 15
that the fee award be reasonable.” Blum v. Stenson, 465 U.S.
886, 893 (1984). As already discussed, the first step in
determining a reasonable fee in a lodestar case is to multiply
the number of hours reasonably expended on the litigation by
a reasonable hourly rate. Once the lodestar figure is
established, the trial court is permitted to consider other
factors, and to adjust the award upward or downward to
achieve a reasonable result. Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). In considering any adjustment, the Supreme
Court has cited with approval the twelve factors listed in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974). Hensley, 461 U.S. at 430 n. 3, 434 n.
9. Those factors are:
(1) the time and labor required; (2) the novelty and
difficulty of the question; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
other employment by the attorney due to acceptance of
the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and
the results obtained; (9) the experience, reputation, and
ability of the attorney; (10) the “undesirability” of the
case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar
cases.
Johnson, 488 F.2d at 717-19. The Supreme Court, however,
has limited the application of the Johnson factors, noting that
“many of these factors usually are subsumed within the initial
calculation of hours reasonably expended at a reasonable
hourly rate.” Hensley, 461 U.S. at 434 n. 9.
Since we are vacating the lodestar figure in light of the
hourly rate issue discussed in Part II, Section B. above, there
is no reason to address, at this time, the Geier Plaintiffs’
contention that the district court failed to consider the
Johnson factors in establishing that initial figure. However,
we agree with the Geier Plaintiffs that the district court erred
16 Geier, et al. v. Sundquist, et al. No. 02-6400
by failing to consider an upward adjustment of the lodestar
figure. To help explain why this is so, we set forth, in
relevant part, the district court’s analysis on this point. The
district court stated:
Counsel urges the Court to consider the Johnson factors
. . . either as bearing upon the lodestar amount or an
enhancement thereof. . . . [The district court here lists
the Johnson factors]. . . .
The one factor in Johnson that the Supreme Court felt
may be still available is that of “risk.” When the case
was filed in 1968, there was substantial risk that the
outcome might be unfavorable. Although Brown v.
Board had been decided 14 years before, this case
involved higher education and the law was unsettled.
Risk was removed after Judge Gray’s early decisions,
and certainly was finally removed after the Stipulation of
Settlement in 1984. Thereafter, the case only required
monitoring for compliance. A flurry of activity in the
case arose when the state sought dismissal under the
decision in Fordice. When Attorney General Paul
Summers took office and indicated a desire to settle the
case, and initiated mediation, good will and innovative
efforts on the part of all counsel and parties resulted in
the Consent Decree. Therefore, under the teaching of
[Pennsylvania v. Delaware Valley Citizens’ Council for
Clear Air, 478 U.S. 546 (1986) no enhancement is
warranted and the Court fixes the lodestar at $250 per
hour.
Geier, 227 F. Supp. 2d at 886-87 (emphasis in original).
Although the district court quoted from that part of
Delaware Valley indicating that “adjustments of the lodestar
figure are still permissible” in “rare” and “exceptional” cases,
478 U.S. at 565, the court never discussed whether this is
such a special case. Instead, the district court stated that none
of the Johnson factors are legally available as bearing on an

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No. 02-6400 Geier, et al. v. Sundquist, et al. 17
upward adjustment, except for “risk.” The court then
determined that there was no risk level in this case after the
1984 Settlement (a questionable conclusion in light of the
state’s efforts to dismiss the case in 1994, resulting in
protracted litigation and negotiations resulting in a new
Consent Decree in 2001; but this is not pressing to the issue
now before us), and that therefore, “no enhancement [of the
lodestar] is warranted.” Geier, 227 F. Supp. 2d at 887.
Unfortunately, that analysis was not correct. The Supreme
Court has emphasized that, although application of the
Johnson factors is limited, upward adjustments are
permissible in certain “rare” and “exceptional” cases.
Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 478 U.S. 546, 564 (1986). We also note that the
Supreme Court has not had occasion to individually address
each of the factors; it has only provided specific guidance
concerning some of them. In its clearest pronouncement
concerning the Johnson factors, the Supreme Court held that
neither the complexity nor novelty of the issues in a case is an
appropriate factor in determining whether to increase the
basic fee award. Blum, 465 U.S. at 898-99. With respect to
risk – that is, the risk of not prevailing in the litigation – the
Supreme Court has held this factor applicable only where the
trial court specifically finds that the case is one of the
“exceptional” cases in which an upward adjustment is
appropriate and that there was real risk of not prevailing in the
case. Pennsylvania v. Delaware Valley Citizens’ Council for
Clean Air, 483 U.S. 711, 730-31 (1987). In addition, as a
general rule, the upward adjustment for risk may be no more
than one third of the lodestar, and “[a]ny additional
adjustment [for risk] would require the most exacting
justification.” Id. at 730. Because the “rare” and
“exceptional” determination must precede any risk analysis,
the district court here was not even permitted to reach the risk
analysis, having never considered whether this case is one of
the rare and exceptional ones meriting an upward adjustment.
18 Geier, et al. v. Sundquist, et al. No. 02-6400
Of the factor pertaining to the quality of counsel’s
representation, the Supreme Court stated in Blum that it is
“generally . . . reflected in the reasonable hourly rate,”
although it may still justify an upward adjustment “in the rare
case where the fee applicant offers specific evidence to show
that the quality of service rendered was superior to that one
reasonably should expect in light of the hourly rates charged
and that the success was ‘exceptional’.” Blum, 465 U.S. at
899. Similarly, with respect to the factor pertaining to the
“results obtained,” the Supreme Court stated that it “generally
will be subsumed within other factors used to calculate a
reasonable fee” and “normally should not provide an
independent basis for increasing the fee award.” Id. at 900.
But the Supreme Court was careful to stress that it was not
blanketly precluding consideration of “results obtained,” but
rather establishing a presumption that that factor is included
in the initial lodestar figure but may still be considered as part
of an upward adjustment in exceptional cases: “[W]e reiterate
what was said in Hensley: ‘where a plaintiff has obtained
excellent results, his attorney should recover a fully
compensatory fee. Normally this will encompass all hours
reasonably expended on the litigation, and indeed in some
cases of exceptional success an enhancement award may be
justified.” Id. at 901 (quoting Hensley, 461 U.S. at 435).
Lastly, to underscore its point that certain Johnson factors –
including the “results obtained” – are applicable to a trial
court’s consideration of an upward adjustment in exceptional
cases, the Supreme Court explicitly reject[ed] petitioner’s
argument that an upward adjustment to an attorney’s fee is
never appropriate under § 1988. Id. at 901.
The last Supreme Court case to consider the Johnson
factors in any depth reaffirmed Blum. In Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 478 U.S.
546, 565 (1986) (hereinafter “Delaware Valley”), the
Supreme Court noted that factors such as “the special skill
and experience of counsel,” the “quality of representation,”
and the “results obtained” from the litigation “are presumably
fully reflected in the lodestar amount, and thus cannot serve

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No. 02-6400 Geier, et al. v. Sundquist, et al. 19
as independent bases for increasing the basic fee award.”
Again, however, the Supreme Court stated that “upward
adjustments of the lodestar figure are still permissible” and
are proper “in certain ‘rare’ and ‘exceptional’ cases.” Id. at
565 (quoting Blum, 465 U.S. at 898-901). In Delaware
Valley, the Supreme Court does not purport to expand Blum
in any way. Accordingly, we must construe its statement that
certain Johnson factors “cannot serve as independent bases
for increasing the basic fee award,” id., not in isolation or as
precluding use of those factors altogether, but rather in light
of (1) the statements that precede it – namely that the named
factors are “presumably” reflected in the lodestar fee, but not
certainly so; (2) the statements that follow it, reiterating that
upward adjustments are permissible in “rare” and
“exceptional” cases; and (3) Blum, the case that that portion
of Delaware Valley is summarizing, which preserved the use
of the “results obtained” and the “quality of representation”
for an upward adjustment analysis in those “rare” and
“exceptional” cases.
Here, the district court neither found this case exceptional
nor unexceptional – and as such, should not have even
reached the risk analysis that it performed. Moreover, as we
have explained, it is not the case, as the district court
believed, that all of the Johnson factors are no longer
available as bearing on an adjustment of the lodestar figure.
Certain factors – such as the “results obtained” – are still
relevant, following the predicate determination that the case
is one of the rare and exceptional ones meriting an upward
adjustment. Because the district court applied the wrong legal
standard to the upward adjustment analysis – and also seemed
to imply, in error, that upward adjustments are no longer even
permissible – we find an abuse of discretion. First Tech.
Safety Sys., 11 F.3d at 647 (“An abuse of discretion exists
when the district court applies the wrong legal standard. . . .”).
Nor are we satisfied that the district court engaged in the
proper legal analysis simply because it quoted from the
germane part of Delaware Valley. To cite a standard is not
20 Geier, et al. v. Sundquist, et al. No. 02-6400
the same as applying it, particularly where the court has
overlooked several of the most important elements of the
standard – in this case, the continuing permissibility of
upward adjustments in exceptional cases and the relevance of
certain Johnson factors to that adjustment.
The Geier Plaintiffs have asserted that this is one of those
“rare” and “exceptional” cases meriting an upward adjustment
of the lodestar figure. The appropriate legal analysis begins
with consideration of that question. As detailed in Part I of
this opinion, the magnitude of this case is formidable in
numerous respects. The legal principles advanced by the
Geier Plaintiffs were pathbreaking and of great social import.
It was in this case that this Court first held that there was an
affirmative duty to remove all vestiges of state-imposed
segregation in institutions of public higher education, just as
there was such an obligation at lower educational levels.
Plaintiffs have litigated – successfully – for thirty-six years
against continuous state opposition and contrary judicial
precedents outside this Circuit, and they have secured
injunctive relief – valued at approximately $320 million – in
programs affecting all public institutions of higher education
in the state of Tennessee.
When this case was filed, it focused the federal judiciary on
the desegregation of public higher education. See Decl. of
David Williams, II, Vice Chancellor for Student Life and
University Affairs and General Counsel and University
Secretary, Vanderbilt University ¶¶ 6-14. (JA 554-56.)
Defendants had argued that a good faith, open door policy of
admissions satisfied the requirements of the Fourteenth
Amendment for racial equality in public institutions of higher
education. Their argument was based on an interpretation of
the outcome of a civil rights action in Alabama, in which a
federal district court denied the plaintiffs injunctive relief
concerning state officials’ plans to expand a previously white
campus near a historically black college in Montgomery,
Alabama. The U.S. Supreme Court had summarily affirmed.
See Alabama State Teachers Ass’n v. Alabama Pub. Sch. and

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No. 02-6400 Geier, et al. v. Sundquist, et al. 21
Coll. Auth., 289 F. Supp. 784, 787 (M.D. Ala. 1968), aff’d
393 U.S. 400 (1969) (hereinafter “ASTA”). The opinion in
ASTA and the Supreme Court’s summary affirmance led some
to believe that an open door policy alone was sufficient to
remedy de jure segregation in higher education. It was Geier
that steered the jurisprudence in a different direction and
became the basis for concerted efforts by the Office of Civil
Rights of the Department of Education and the Department of
Justice’s Civil Rights Division to persuade courts that open
door policies were insufficient (and, on their own, ineffective)
to achieve desegregated systems of public higher education in
the South. See Declarations of David Williams, II (JA 554-
557) and Rita Sanders Geier (JA 510-517). Those efforts
included lawsuits brought in Virginia, Alabama, Mississippi,
and Louisiana. In the Virginia case, Norris v. State Council
of Higher Educ. for Virginia, 327 F. Supp. 1368 (E.D. Va.
1971), the court explicitly relied on the district court opinion
in Geier to reject arguments by the state defendants that a
state could discharge its duty to dismantle a previously de
jure segregated system simply by declaring open enrollment.
The exceptional nature and national significance of this
case was further exemplified in 1997, when the U.S.
Department of Justice’s Civil Rights Division celebrated its
fortieth anniversary. Speakers included members of
Congress, the U.S. Attorney General, Department of Justice
officials, and Rita Sanders Geier, the lead original plaintiff in
this action.
All of this, combined with the tenacity of the attorneys and
broad remedies obtained – described in Part I above – render
this a “rare” and “exceptional” case. Having held that this
case is exceptional within the meaning of Blum and Johnson,
an upward adjustment is permissible and we remand to the
district court for the particularized application of factors –
including “results obtained” – bearing on the amount of any
upward adjustment.
22 Geier, et al. v. Sundquist, et al. No. 02-6400
III. CONCLUSION
For the reasons set forth above, we VACATE the district
court’s award of attorneys’ fees to the Geier Plaintiffs and
REMAND for: (1) further explanation concerning the hourly
rate; (2) calculation of the lodestar figure; and
(3) determination of any upward adjustment.

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No. 02-6400 Geier, et al. v. Sundquist, et al. 23
______________
DISSENT
______________
COOK, Circuit Judge, dissenting. Because I conclude that
the district court did not abuse its discretion in (1)
determining that $250 was a reasonable hourly rate for the
Geier plaintiffs’ counsel, and (2) refusing to apply an upward
adjustment to the lodestar amount, I respectfully dissent from
parts II.B and II.C of the majority’s opinion.
A. The Reasonable Hourly Rate
As the majority notes, a district court must provide a
“concise but clear explanation of its reasons for the fee
award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A
district court abuses its discretion when it “relies on clearly
erroneous findings of fact, or when it improperly applies the
law or uses an erroneous legal standard.” Adcock-Ladd v.
Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citation
omitted). This court may also find an abuse of discretion
“when [we are] firmly convinced that a mistake has been
made.” Id. at 349 (citation omitted).
In determining the reasonable hourly rate for the Geier
plaintiffs’ counsel, the district court did not rely on clearly
erroneous findings of fact, improperly apply the law, or use
an erroneous legal standard. Instead, the district court used
the “prevailing market rates in the relevant community” to set
the reasonable hourly rate, surveying the hourly rates awarded
to highly experienced counsel in civil rights and class action
cases in Tennessee. Blum v. Stenson, 465 U.S. 886, 895
(1984) (holding that “‘reasonable fees’ under § 1988 are to be
calculated according to the prevailing market rates in the
relevant community”). Although the district court did not
expressly reject the Geier plaintiffs’ arguments supporting
their request for a $400 hourly rate, the district court’s
opinion reflects its rejection of the figure as exceeding the
24 Geier, et al. v. Sundquist, et al. No. 02-6400
prevailing market rate in the relevant community. Geier v.
Sundquist, 227 F. Supp. 2d 881, 886 (M.D. Tenn. 2002)
(“This Court therefore finds that the prevailing market rate
that lawyers of comparable skill and experience can
reasonably expect to command within the Middle District of
Tennessee for this type of work is $250 per hour.”).
Citing Moore v. City of Paducah, 790 F.2d 557 (6th Cir.
1986), the majority infers an abuse of discretion from the
absence of explicit commentary in the district court’s opinion
about the competing arguments of the Geier plaintiffs. The
Moore court, however, defined abuse of discretion in the
context of a district court’s ruling on a motion to amend the
pleadings, and since that decision, this court has cited the
Moore definition only in that context. This court has not
previously held that a district court, having determined a
reasonable hourly fee using evidence of the prevailing market
rate in the relevant community, abused its discretion in failing
to explicitly discuss the arguments of one of the parties, and
we should not do so here.
I conclude that under the highly deferential standard this
court applies in reviewing statutory fee awards, the district
court’s determination that $250 constitutes the reasonable
hourly rate for the Geier plaintiffs’ counsel was not an abuse
of discretion. Although discussing the Geier plaintiffs’
arguments in favor of a $400 hourly rate may have further
clarified the district court’s decision, the lack of such a
discussion does not leave me “firmly convinced that a
mistake has been made.” Adcock-Ladd, 227 F.3d at 349.
B. The Johnson Factors
The majority concludes that the district court misstated the
Supreme Court’s holding in Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546 (1986),
concerning a district court’s assessment of the Johnson factor
of “risk” when considering an upward adjustment. Geier, 227
F. Supp. 2d at 887 (“[t]he one factor in Johnson that the

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No. 02-6400 Geier, et al. v. Sundquist, et al. 25
Supreme Court felt may be still available is that of ‘risk’”).
I respectfully disagree, however, because when taken in
context, the district court’s opinion reflects an understanding
of the Supreme Court’s view in Delaware Valley regarding
risk analysis. Delaware Valley, 478 U.S. at 568 (leaving
unresolved “the question of upward adjustment, by way of
multipliers or enhancement of the lodestar, based on the
likelihood of success, or to put it another way, the risk of
loss”). The district court, in an extended quote from
Delaware Valley, acknowledged that a court’s determination
of the reasonable hourly rate most likely already accounts for
most, if not all, of the Johnson factors, with risk as the factor
remaining to be considered at the upward-adjustment stage of
the lodestar analysis.
The district court’s opinion details its reason for denying an
enhancement of the lodestar amount. Judge Wiseman
evaluated the risk here to be insufficient to warrant an upward
adjustment because the period for which the Geier plaintiffs’
counsel sought fees encompassed only “monitoring for
compliance,” with an occasional “flurry of activity.”
“Generally, the trial judge’s exercise of discretion in statutory
fee award cases is entitled to substantial deference, especially
when the rationale for the award was predominantly fact-
driven.” Adcock-Ladd, 227 F.3d at 349.
Given the substantial deference this court accords a district
court’s fee award when the district court provides a non-
erroneous legal and factual basis for its decision, I would
affirm the fee award here. Because the majority does not, I
respectfully dissent.

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