Jackson v. Marvell School District Petition for Rehearing

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 
NO. 19746 & NO. 19797

EARLIS JACKSON, et al., Appellants,
vs.

MARVELL SCHOOL DISTRICT NO. 22, et al.,
Appellees,

and

CEINERS JACKSON, et al.. Appellants,
vs.

MARVELL SCHOOL DISTRICT NO. 22, et al.,
Appellees.

Appeals From The united States District Court 
For The Eastern District of Arkansas, Eastern Division

PETITION FOR REHEARING

Appellants respectfully pray that this Court set this 
matter down for rehearing in order to reconsider the Court s 
denial of any award of attorneys' fees in its October 2 opinion. 
We invite the Court's careful consideration of the matter, 
apart from the merits of the case, which have been determined.



I

The question whether attorneys' fees should be awarded to 
the prevailing party may reach an appellate court in several 
different postures: in an appeal from the denial of such an
award by the district court (which may be joined with other 
issues, as where the district court ruled against the appellant 
on the merits, or raised alone, as where the appellant prevailed 
below); in an appeal by the unsuccessful district court litigant 
against whom attorneys' fees were taxed; finally, as a request by 
a party to a pending appeal (grounded upon the equity jurisdiction 
of the court or upon the provisions of the Federal Rules of 
Appellate procedure) that the reviewing court itself render an 
award of counsel fees incident to its disposition of the appeal.

Several courses are available to the appellate court. As 
to a claim for counsel fees in the district court, it can itself 
make an award of fees covering this aspect of the litigation.
See Kemp v. Beasley, 352 F.2d 14, 23 (8th Cir. 1965). It may 
require the district court to make an award on remand; it can 
suggest that the district court's discretion be favorably exer­
cised; it can leave the matter entirely to the discretion of the 
district court. As to requests for counsel fees on the appeal 
itself, they may be either granted or denied without comment or 
with some explanation of the court's action. In any event, the 
court's inherent authority to make the award goes beyond the 
limited case of frivolous appeals covered by Rule 38 of the 
Federal Rules of Appellate procedure.

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Although en banc hearing of a case ought provide an opportunity 
for the full court to express its views definitively, the matter 
of attorneys' fees is disposed of in one short sentence in this 
Court's October 2 opinion. We suggest the appropriateness of 
reconsideration in this instance for two reasons. First, summary 
disposition of the application for counsel fees was probably 
occasioned by the overriding importance of issues going to the 
merits —  illustrated by the immediate issuance of this Court's 
mandate and the granting of midyear relief. Indeed, discussion 
of the merits occupied the entire oral argument, at which neither 
party argued the counsel fees point.

Second, and more crucial, summary denial in the October 2 
opinion of the application for.an award of counsel fees for 
services in both the district court and the Court of Appeals is 
tantamount to judicial endorsement of this school district's 
utter disregard for law. This was an appeal by plaintiffs in a 
school desegregation action, who had objected unsuccessfully to 
continuation of the free choice procedure of pupil assignment.
Thus as to the orders appealed from, there was no occasion for 
the district court to render an award of counsel fees in favor 
of plaintiffs, who had not prevailed on the merits. But this 
Court's summary rejection of the claim, rather than at least 
remanding to the district court on this issue, amounts to holding 
that in the circumstances of this case, it would have been an 
abuse of discretion for the district court to have awarded counsel 
fees to plaintiffs had that court ruled in their favor. We 
cannot believe the Court intended that result.

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II

We start with the proposition —  often submerged in the 
concentration upon the mechanics of school district assignment 
methods in the last few years —  that these suits are brought 
to vindicate rights guaranteed by- the oldest and most cherished 
law of this nation, the Constitution of the united States.
They are brought to make government itself —  the guarantor 
and enforcer of the law —  respect the law. This Court recog­
nized the illogic of the situation three years ago in Clark v. 
Board of Educ. of Little Rock, 369 F.2d 661, 671 (8th Cir. 1966) 
when it referred to "unwilling victims of illegal discrimination 
[who must] bear the constant and crushing expense of enforcing 
their constitutionally accorded rights."

This Court, no less than the district courts do, bears a 
responsibility to see that the mandates of the Constitution of 
the United states are enforced and obeyed. The history of 
school desegregation cases in this circuit indicates that these 
Constitutional mandates are not being obeyed. Time after time, 
school district upon school district has returned to this Court 
to be told yet again to shoulder its responsibility to end 
discrimination: Little Rock, El Dorado, Dollarway and now Marvell.
The pattern is fated to continue so long as the cost of defiance 
is so small. As disheartening as it may seem, the fact is that 
monetary penalties will more likely produce constitutional com­
pliance-̂  than appeals to moral principle or legal-duty. This

1/ This Court has demonstrated that concepts of policy may shape 
the determination whether to award or deny attorneys' fees, 

as in Kemp v. Beasley, 389 F.2d 178, 191 (8th Cir. 1968), where 
fees were denied "[p]ointing toward a more cooperative atmosphere

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Court implicitly took account of this in Clark, supra, in 
referring to the "additional sanction" of awarding substantial 
attorneys' fees.

The generally accepted rule is that an award of counsel 
fees in district court proceedings is entirely discretionary 
with the district court. Thus, this Court has on several occa­
sions in school desegregation cases declined to require a larger 
award than had been made by the district court. E .g., Clark v. 
Board of Educ, of Little Rock, supra; Cato v. Parham, 403 F.2d 
12 (8th Cir. 1968). The Court has also upheld the exercise of
the district court's discretion to withhold an award of fees.

2/Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965).—

We think it completely within the Court's power to alter 
that rule in school desegregation cases. But at the least the 
boundaries of the district court's discretion should be given 
clearer definition. In this case, we submit that an abuse of 
discretion would occur if the district court v/ere to deny 
reasonable attorneys' fees to the Negro plaintiffs. It is unnec­
essary to review again the long history of this litigation. The 
conduct of the Marvell School district in the last year alone

and in balancing all circumstances. . . . "  C f. Kemp v. Beasley, 
352 F.2d 14, 23 (8th Cir. 1965): "The court would have the
power sitting as a court of equity to impose sanctions necessary 
to effectuate its decrees and to punish conduct and tactics of 
parties that are discreditable. . . . "
2/ The distinction between Kemp [1965 case] and this case is

critical. There, the district court had indeed exercised its 
discretion. Granting partial relief to the plaintiffs, it had 
denied attorneys' fees but explicitly taxed costs against the 
school district. In this case no discretion may be said to have 
been invoked, since plaintiffs-appellants did not prevail below

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amply compels the "additional sanction" of attorneys fees.
While

[p]rior to the decisions in the trilogy 
of Green cases, the Supreme Court had not 
explicitly determined the constitutional 
effectiveness of freedom-of-choice 
desegregation plans [October 2 slip opinion 
at p. 6] ,

the law was perfectly clear in February, 1969 when this school
district deliberately violated the order of the district court
to come forward with a plan other than freedom of choice:

instead of filing a plan as directed by 
the court, the appellees filed a report 
on February 3, 1969, in which they took 
issue with the court's prior order [October 
2 slip opinion at p. 5].

Is this not "obstinate, adamant, and open resistance to the 
law?" Clark v. Board of Educ. of Little Rock, supra. Must 
appellants' class, the "unwilling victims of illegal discrimin­
ation, " pay for such resistance on the part of the officials 
of the school district not only by additional delay in imple­
menting their constitutional rights, but also by being forced 
to bear "the constant and crushing expense" of litigation?

Appellants pray that this Court grant rehearing and award 
substantial counsel fees on appeal and in the district court.

Respectfully submitted,

JACK GREENBERG/
NORMAN J. CHACHKIN 10 Columbus Circle 
New York, New York 10019

and in such circumstances the district court could not have awarded 
fees to plaintiffs under any concept of discretion. Once this Court 
held the district court erred, the question of counsel fees was 
infused with a new imperative.

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JOHN W. WALKER 
BURL C. ROTENBERRY 1820 West Thirteenth Street 
Little Rock, Arkansas 72202
GEORGE HOWARD, JR.
329^ Main Street
Pine Bluff, Arkansas 71601

Attorneys for Appellants- 
petitioners for Rehearing

CERTIFICATE OF SERVICE

This is to certify that on the 16th day of October, 1969, 
I served a copy of the foregoing petition for Rehearing herein

_ Jupon counsel for appellees, Robert V. Light, Esq., 1100 Boyle 
Building, Little Rock, Arkansas 72201 and Charles B. Roscopf, 
Esq., 417 Rightor Street, Helena, Arkansas 72342, by United 
States mail, first class postage prepaid.

Attorney for Appellants- 
Petitioners/for Rehearing

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