Northcross v. Memphis City Schools Board of Education Reply Brief

    CEmirt of lotfeli BtuUz
Octobeb T erm , 1972 

No. 72-1164

I n  th e

D eborah A. N obthcross, et al.,

YS.
Petitioners,

B oard oe E ducation  of th e  M em ph is  C it y  S chools, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOE THE SIXTH CIRCUIT

REPLY BRIEF

J ack  Greenberg 
J ames M. N abrit, III 
N orman  J . C h a c h k in  
E ric S ciinapper

10 Columbus Circle 
New York, New York 10019

Louis R. L ucas 
W illiam  E . C aldwell

Ratner, Sugarmon and Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioners



T able of A uthorities

page

California v. Krivda, 409 TJ.S. 33 (1972)  ..................... 3n

Johnson v. Coombs,------ F .2d------- (5th Cir., 1972) ......  1,2

Newman v. Piggie Park Enterprises, 390 IT.S. 400
(1968) .............................................. -----............... - ..... — 1> 2

Newman v. Piggie Park Enterprises, 377 F.2d 433 (4th
Cir. 1967) ..............................-..........................................  2n

Taylor v. McKeithen, 407 U.S. 191 (1972) ......................  3n

Section 718, Emergency School Aid Act of 1972 ............ 1

Federal Rules of Appellate Procedure, Pule 3 9 ..........  2, 3



In th e

(Hiwrt nf %  Initn* States
O ctober T erm , 1972 

No. 72-1164

D eborah A. N obthcboss, et al.,

vs.
Petitioners,

B oard oe E ducation  oe th e  M em ph is  C ity  S chools, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OE APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF

Respondents urge that the denial of costs, including legal 
fees, was proper in this case because Section 718 of the 
Emergency School Aid Act is “couched in permissive 
terms” and the Sixth Circuit’s action did not constitute an 
abuse of “ its discretion.” Brief in Opposition, p. 3. Peti­
tioners agree that the Sixth Circuit’s denial of such costs 
and fees was undoubtedly based on such an interpretation 
of § 718. This interpretation of § 718, urged by Respon­
dent and apparently relied on by the Sixth Circuit Court 
of Appeals, has been expressly rejected by the Fifth Cir­
cuit Court of Appeals in Johnson v. Combs, Petition for 
Writ of Certiorari, pp. 6a-12a. Johnson concluded, as had 
this Court, Newman v. Piggie Park Enterprises, Inc., 390 
IJ.S. 400 (1968), that the statute did not put the question 
of costs and fees within the broad discretion of the courts,



2

but made such awards mandatory in the absence of special 
circumstances.1 It is this inconsistency between the in­
stant case, on the one hand, and Johnson and Newman on 
the other, which requires the granting of the Writ in this 
case.

Respondents maintain, second, that denial of costs and 
fees was proper because plaintiffs had not prevailed on 
appeal, as required by Rule 39, Federal Rules of Appel­
late Procedure. Brief in Opposition, pp. 2-3. The Sixth 
Circuit, however, clearly believed it had given plaintiffs 
all the relief they sought on appeal:

“ [Plaintiffs] request only that this Court direct the 
District Court to prepare a timetable for further de­
segregation. We believe such a request is reasonable.

Respondents, in petitioning this Court for a Writ of Cer­
tiorari to review the Sixth Circuit’s decision on the merits 
in this case, also recognized that plaintiffs had prevailed 
on appeal:

Petitioners appealed from the decision of the Dis­
trict Court and moved the Court for a stay of the 
District Court’s order [Plan A] pending the outcome 
of the appeal. Respondents filed a cross appeal asking 
that additional pupil transportation be required. On 
June 2, 1972, the Sixth Circuit Court of Appeals 
granted petitioners’ request for a stay. Following an 
expedited hearing of the appeal, the majority of the 
Court of Appeals on August 29, 1972, vacated the stay 
and directed the implementation of Plan A. The Court

1 The Fourth Circuit decision reversed by this Court in New­
man had held that Title II  of the 1964 Civil Rights Act merely 
“ authorizes the court in its discretion to allow the prevailing 
party (other than the United States) a, reasonable attorney’s fee 
as part of costs.”  377 F.2d 433, 437 (1967).



5

of Appeals also went beyond the order of the District 
Court in directing that Plan A should be regarded as 
only the first step in a more massive program of pupil 
transportation and instructed the District Court to 
prepare a timetable for additional desegregation.2

Respondents still concede that plaintiffs obtained all the 
relief they sought on appeal, but urge that plaintiffs did 
not obtain on appeal certain further relief which plain­
tiffs did not seek on appeal but had sought in the District 
Court. The prevailing party on appeal, however, is deter­
mined with reference to the relief sought on appeal, not 
remedies pressed at an earlier time but abandoned before 
the appeal. There is no reason to believe that the Sixth 
Circuit adopted or applied sub silentio the unprecedented 
and mistaken construction of Rule 39 now suggested by 
Respondents.

Finally, Respondents suggest that the Court of Appeals 
may have denied costs, including attorneys fees, because 
plaintiffs’ petition for rehearing of November 3, 1972 was 
filed out of time. Brief in Opposition, pp. 3-4.3 This con­
tention is clearly refuted by the record in this case. Plain­
tiffs’ initial application for costs was filed, not in November, 
1972, but on September 7, 1972, in the form of a Bill of 
Costs. See Federal Rule of Appellate Procedure, Rule 
39(c). That application was undeniably timely, and Re­
spondents do not claim otherwise. This first application

2 Petition for W rit of Certiorari, Board, of Education of the 
Memphis Schools v. Northcross, No. 72-677, p.7, cert, denied, 41 
U.S.L. Week 3445 (February 20, 1973).

8 If the Court is concerned by any uncertainty as to the basis 
of the Sixth Circuit’s decision, the proper disposition is not to 
deny the Writ, as Respondents suggest, but to vacate the judg­
ment and remand the ease to the Court of Appeals for an ex­
planation of its order. Taylor v. McKeithen, 407 IJ.S. 191 (1972) ; 
California v. Krivda, 409 U.S. 33 (1972).



4

for costs was denied by the Sixth Circuit at some unknown 
time between August 29, 1972 and October 25, 1972.4 That 
denial was issued before plaintiffs’ petition for rehearing 
of November 3, 1972, and cannot have been due to any 
tardiness of that petition. On November 24, 1972, the 
Court of Appeals again denied costs and fees, this time 
passing on plaintiff’s second application of November 3. 
Whatever the basis of this second decision, plaintiffs seek 
review in this Court of both that denial of costs and fees 
and the earlier denial which occurred sometime in Sep­
tember or October. This earlier decision was clearly on 
the merits and cannot have turned on the timeliness of a 
subsequent petition for rehearing.

CONCLUSION

For these reasons, a writ of certiorari should issue to 
review the judgment and opinion of the Sixth Circuit.

J ack  Greenberg 
J ames M. N abrit, III 
N orman  J . C h a c h k in  
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

Louis R. L ucas 
W illiam  E . Caldwell

Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioners

4 Respondent concedes that this matter was not dealt with in 
the Sixth Circuit’s opinion of August 29, 1972. Brief in Opposi­
tion, p.2.



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