Odis Ross v. Douglas Cnty., Nebraska, 244 F.3d 620 (8th Cir. 2001). · Go Syfert
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Odis Ross v. Douglas Cnty., Nebraska, 244 F.3d 620 (8th Cir. 2001). Cases Citing This Book View Copy Cite
9 citation events (9 in the last 25 years) across 5 distinct courts.
Strongest positive: Handy Jones v. City of St. Paul, Minnesota (mnd, 2025-08-08) · Strongest negative: Quint v. A.E. Staley Manufacturing Co. (med, 2003-01-15)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited "but see" Quint v. A.E. Staley Manufacturing Co. (2×) also: Cited as authority (rule)
D. Me. · 2003 · signal: but see · confidence high
But see Ross, 244 F.3d at 622 (finding contingent fee incorporating statutory fee award into gross judgment amount unreasonable and instead requiring that the attorney be awarded the higher of the two amounts).
discussed Cited as authority (rule) Handy Jones v. City of St. Paul, Minnesota
D. Minnesota · 2025 · confidence medium
The Court may award statutory fees, but the fees must still be reasonable, 42 U.S.C. § 1988 , and counsel cannot recover both a statutory award and contingency fees, see Ross v. Douglas County, 244 F.3d 620, 622 (8th Cir. 2001).
discussed Cited "see" Handy Jones v. City of St. Paul, Minnesota
D. Minnesota · 2023 · signal: see · confidence high
See Ross v. Douglas Cnty., Neb., 244 F.3d 620, 622 (8th Cir. 2001) (citing Talbott v. Bowen, 832 F.2d 111 (8th Cir. 1987) (noting that in Talbott, the court held that “where there exists a contingent fee contract along with a reimbursable attorney fee award under the Equal Access to Justice Act (EAJA), claimant’s counsel is not entitled to receive the requested 2.5 multiplier is applied.
cited Cited "see" Pickett v. Sheridan Health Care Center
7th Cir. · 2011 · signal: see · confidence high
See Ross v. Douglas Cnty., 244 F.3d 620, 622 (8th Cir.2001).
discussed Cited "see, e.g." Albunio v. City of New York
NY · 2014 · signal: see also · confidence medium
Venegas v Mitchell, 495 US 82 [1990]; see also Ross v Douglas County, Neb., 244 F3d 620, 621-622 [8th Cir 2001]; Lewis v Coughlin, 801 F2d 570, 576 [2d Cir 1986]; Daly v Hill, 790 F2d 1071, 1085 [4th Cir 1986]; Sullivan v Crown Paper Bd. Co., Inc., 719 F2d 667, 669-670 [3d Cir 1983]; Wheatley v Ford, 679 F2d 1037, 1040-1041 [2d Cir 1982]; Sargeant v Sharp, 579 F2d 645, 649 [1st Cir 1978]).
discussed Cited "see, e.g." Sharon Sanders v. Lee County School Dist. No. 1
8th Cir. · 2012 · signal: see also · confidence medium
See Quigley v. Winter, 598 F.3d 938, 957 (8th Cir. 2010) (concluding a district court's failure to analyze a civil rights fee award using the lodestar approach is an abuse of discretion); see also Ross v. Douglas Cnty., Neb., 244 F.3d 620, 622 (8th Cir. 2001) (concluding a prevailing plaintiff in a Title VII case is entitled to attorneys under a contingent fee agreement or under the lodestar method of calculation, whichever is greater).
discussed Cited "see, e.g." Sharon Sanders v. Lee County School Dist. No. 1
8th Cir. · 2012 · signal: see also · confidence medium
See Quigley v. Winter, 598 F.3d 938, 957 (8th Cir.2010) (concluding a district court’s failure to analyze a civil rights fee award using the lodestar approach is an abuse of discretion); see also Ross v. Douglas Cnty., Neb., 244 F.3d 620, 622 (8th Cir.2001) (concluding a prevailing plaintiff in a Title VII case is entitled to attorneys under a contingent fee agreement or under the lodestar method of calculation, whichever is greater).
Retrieving the full opinion text from the archive…
Odis ROSS, Plaintiff-Appellee,
v.
DOUGLAS COUNTY, NEBRASKA, Defendant-Appellant
00-2688.
Court of Appeals for the Eighth Circuit.
Mar 22, 2001.
244 F.3d 620
Jennifer Kay Johnson, Omaha, NE, for appellant., Thomas F. Dowd, Omaha, NE, for ap-pellee.
McMillian, Lay, Ross.
Cited by 7 opinions  |  Published

ORDER OF ATTORNEY FEES

PER CURIAM.

This matter comes before the court on application of plaintiffs counsel for attorney fees to be awarded on appeal in this Title VII case. See 42 U.S.C. § 2000e-5(k) (1994). This court affirmed a jury verdict in favor of the plaintiff on December 11, 2000. The jury awarded the plaintiff $52,175.48 for back pay plus $100,000.00 for emotional distress and mental anguish. The district court amended its judgment to add $5,288.92 in prejudgment interest. At the same time, the court awarded plaintiff $53,025.00 in attorney fees. Plaintiffs counsel now seeks additional fees in the amount of $19,800.00 for his services on appeal. That figure is based upon the expenditure of eighty-eight hours at the rate of $225.00 per hour.

We note that the district court awarded attorney fees at the rate of $175.00 per hour, finding

that the hourly rate of $175 for plaintiffs counsel is consistent with the prevailing rates for attorneys in civil rights cases in Omaha, Nebraska, and is appropriate and justified in light of the complexity and originality of the legal issues involved in this civil rights action and the results obtained by counsel.

Ross v. Douglas County, No. 8:98CV530 (D.Neb. June 5, 2000). We find that the hourly rate on appeal should reflect the same hourly rate as allowed by the district court and, therefore, this court awards attorney fees for counsel’s services on appeal at the rate of $175.00 per hour for eighty-eight hours for a total of $15,400.00.

Counsel has a contingent fee contract for 50% of the total judgment, includ[*622] ing interest and attorney fees awarded by the district court and by this court on appeal. A close examination of the contingent fee contract in light of the district court’s Amended Judgment reveals that counsel asserts 50% of the overall verdict plus pre-judgment interest and in addition, seeks to charge as part of the contingent fee contract 50% of the court awarded attorney fees. That result is contrary to precedent in this circuit and triggers our responsibility to exercise supervisory power over attorney fees.

The Supreme Court has cautioned the federal judiciary that contingent fee contracts in civil rights cases should be monitored so that the attorneys are compensated only for the reasonable expenditure of hours on a given case. See City of Riverside v. Rivera, 477 U.S. 561, 580-81, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986). This admonition is said to provide safeguards to protect against a windfall to civil rights attorneys. See id. Support for this holding is found in the legislative history of the Civil Rights Act of 1964. See id. Accordingly, this court exercises its supervisory powers to ensure that contingency fee contracts are fair and reasonable. See International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1277-78 (8th Cir.1980).

In Talbott v. Bowen, 832 F.2d 111 (8th Cir.1987), we found that where there exists a contingent fee contract along with a reimbursable attorney fee award under the Equal Access to Justice Act (EAJA), claimant’s counsel is not entitled to receive both fees. Rather, counsel is limited to the award under the EAJA or the fee under the contract, whichever is greater. See id. If counsel’s fees under the EAJA exceed the amount of the contingent fee contract (based upon back pay benefits), then counsel collects the court awarded fees in lieu of the contingent fee amount. See id. However, if attorney fees awarded under EAJA are less than what counsel would collect under the contingent fee contract, then counsel is entitled to the contingent fee amount. In the latter case, counsel may collect the EAJA award from the defendant and may also collect the difference between the contingent fee and the EAJA award from the claimant. See id. We follow the guidelines set forth in Tal-bott to calculate the appropriate attorney fees in this case.

To determine the appropriate sum of attorney fees in this case we must first calculate what counsel would collect under the contingent fee contract and compare it with the court awarded fees under 42 U.S.C. § 2000e-5(k). The greater of those fees is the sum to which counsel is entitled in this case.

We find counsel’s contingent fee formula, which asserts 50% of plaintiffs gross recovery, including court awarded attorney fees, unreasonable and in error. See Jackson v. Rheem Mfg. Co., 904 F.2d 15, 17 (8th Cir.1990); Wilmington v. J.I. Case Co., 793 F.2d 909, 923 (8th Cir.1986). Although the contingent fee contract may recite otherwise, we feel that attorney fees should be treated separately from the amount awarded to the plaintiff by the jury. In reviewing plaintiffs contingent fee contract and assessing the reasonableness of such a fee based upon the evidence and law presented, it is our position that counsel’s contingent fee is limited to 50% of the plaintiffs gross recovery, less any attorney fees awarded by the district court and by this court on appeal. By reducing the contingent fee in this manner, we adhere to the Supreme Court’s direction to monitor contingency fee arrangements to ensure attorneys are compensated for time and reasonable expenditures on a given case.

Thus, according to our reading of the contract, counsel’s contingent fee is based on damages and pre-judgment interest awarded to the plaintiff by the district court in the amount of $157,464.40. This includes $52,175.48 for back pay, $100,000.00 for emotional distress and mental anguish, and $5,288.92 for pre[*623] judgment interest. Counsel’s contingent fee is 50% of that recovery, or $78,732.20. [1]

The court awarded attorney fees in this case include $53,025.00 from the district court and this court’s award of $15,400.00, for a total of $68,425.00. Therefore, the greater sum of attorney fees is found under the contingent fee contract. [2] Under this court’s calculation, the difference between the contingent fee award of $78,732.20 and the court awarded fees of $68,425.00 is $10,307.20. The total attorney fee awarded in this case should be apportioned as follows:

$68,425.00 in court awarded fees to be paid by Douglas County $10,307.20 representing the difference between the contingent fee on the verdict and the court awarded fees, which counsel may collect from the plaintiff

On this basis, plaintiffs counsel is entitled to a total of $78,732.20. [3] In other words, counsel is to receive the court awarded fees to be paid by Douglas County and those fees shall be enhanced by $10,307.20, which will be paid by the plaintiff. By calculating the attorney fees in this manner, we find that the plaintiffs counsel will be fairly and adequately compensated without receiving an unreasonable recovery.

The cause is remanded to the district court for determination of the overall attorney fees to be awarded in accordance with this Order.

IT IS SO ORDERED.

1

. We feel generally a maximum fee of 40% under a contingent fee contract is far more reasonable than the 50% contained in this contract. However, in view of the difficult issues presented in this case, we provide an exception and approve, in this limited instance, the use of a 50% contingent fee contract.

2

. Under counsel's theory, he would compute his attorney fee to be $78,732.20 plus 50% of the court awarded fees ($68,425.00), thus adding another $34,212.50, or a total of $112,944.70.

3

. Counsel also is entitled to include in his contingent fee 50% of any post-judgment interest allowed by the district court based on the jury verdict.