Norwood v. Harrison Motion for Partial Summary Affirmance and Brief for Plaintiffs-Appellees

    No. 78-1600

DELORES NORWOOD, et al.,
Plaintiffs-Appellees, 
Cross-Appellants,
v.

D. L. HARRISON, SR., et al.,
Defendants-Appellants.

IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

On Appeal From The United States District Court 
For The Northern District Of Mississippi

MOTION FOR PARTIAL SUMMARY AFFIRMANCE AND 
FOR PARTIAL SUMMARY REVERSAL, AND BRIEF FOR 

PLAINTIFFS-APPELLEES, CROSS-APPELLANTS

JACK GREENBERG 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019

FRED L. BANKS, JR.
Banks & Nichols
538-1/2 North Farish Street
Jackson, Mississippi 39202

Attorneys for Plaintiffs-
Appellees, Cross-Appellants



IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-1600

DELORES NORWOOD, et al..

Plaintiffs-Appellees, 
Cross-Appellants,

v.
D. L. HARRISON, SR., et al.,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Northern District Of Mississippi

MOTION FOR PARTIAL SUMMARY AFFIRMANCE AND 
FOR PARTIAL SUMMARY REVERSAL, AND BRIEF FOR 

PLAINTIFFS-APPELLEES, CROSS-APPELLANTS

JACK GREENBERG 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019

FRED L. BANKS, JR.
Banks & Nichols
538-1/2 North Farish Street
Jackson, Mississippi 39202

Attorneys for Plaintiffs-
Appellees, Cross-Appellants



IN THE

No. 78-1600

DELORES NORWOOD, et al..
Plaintiffs-Appellees, 
Cross-Appellants,
v.

D. L. HARRISON, SR., et al.,
Defendants-Appellants.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

On Appeal From The United States District Court 
For The Northern District Of Mississippi

CERTIFICATE OF COUNSEL

Undersigned counsel of record for plaintiffs-appellees, 
cross-appellants Delores Norwood, et al., certifies that the 
following listed parties have an interest in the outcome of 
this case. These representations are made in order that 
judges of this Court may evaluate possible disqualification 
or recusal pursuant to Local Rule 13(a).

1. NAACP Legal Defense and Educational Fund, Inc.;
2. Banks & Nichols;
3. Officers, members and the executive secretary of



the Mississippi State Textbook Purchasing Board in their 
official capacity; and

4. Mississippi State Textbook Purchasing Board.

BILL LANN LEE 
Attorney of Record for 
Plaintiffs-Appellees, 

Cross-Appellants

2



IN THE

No. 78-1600

DELORES NORWOOD, et al.,
Plaintiffs-Appellees, 
Cross-Appellants,
v.

D. L. HARRISON, SR., et al.,
Defendants-Appellants.

On Appeal From The United States District Court 
For The Northern District Of Mississippi

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

STATEMENT WHY ORAL ARGUMENT 
NEED NOT BE HAD

Counsel for plaintiffs-appellees, cross-appellants 
Delores Norwood, et al., state that oral argument need not 
be had for the following reasons:

1. The issues raised by the defendants-appellants D. L.* 
Harrison, Sr., et al., concerning immunity from a statutory 
award of attorney's fees to plaintiffs-appellees, as prevail­
ing parties, have been definitively resolved, by the Supreme 
Court during the pendency of the appeal in Hutto v. Finney,



___ U.S. ____, 46 U.S.L.W. 4817 (decided June 23, 1978), in
accord with pre-existing law of this Circuit.*

2. The cross appeal of plaintiffs-appellees from the 
amount of the attorney's fees awarded by the district court 
involves neither disputed issues of fact nor novel issues of 
law, but only the application of clear legislative history 
of the Civil Rights Attorney's Fees Awards Act of 1976, 42 
U.S.C. § 1988.

3. The issues are clearly presented in the record, and 
the appeal can be decided on the briefs alone. Oral argument, 
in the opinion of counsel for plaintiffs-appellees, cross­
appellants, would not necessarily assist the Court.

4. As set forth, infra, summary disposition of the 
cross-appeals is appropriate.

* This portion of the appeal has been before the Court, briefed 
and orally argued. The earlier appeal, however, was dismissed 
for lack of jurisdiction, see infra at p. 3 of the brief.

2



IN THE

No. 78-1600

DELORES NORWOOD, et al.,
Plaintiffs-Appellees, 
Cross-Appellants,

v.
D. L. HARRISON, SR., et al.,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Northern District Of Mississippi

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

MOTION FOR PARTIAL SUMMARY AFFIRMANCE 
AND FOR PARTIAL SUMMARY REVERSAL

Plaintiffs-appellees, cross-appellants Delores Norwood, 
et al., respectfully request that the court summarily affirm 
the lower court's statutory award of attorney's fees in
light of Hutto v. Finney. ____ U.S. ____, 46 U.S.L.W. 4817
(decided June 23, 1978). It is also requested that the 
court summarily reverse the district court's determination 
of the amount of the attorney's fees awarded in light of 42 
U.S.C. § 1988 and the law of this Circuit. The motion should 
be granted for the following reasons:



1. The Supreme Court's recent decision in Hutto v.
Finney, supra, definitively resolves against defendants- 
appellants D. L. Harrison, Sr., et al., all the issues raised 
on this appeal from a statutory award of attorney's fees to 
plaintiffs-appellees, as prevailing parties, as more fully 
detailed in the attached brief.

2. The legislative history of the Civil Rights Attorney's 
Fees Awards Act of 1976, 42 U.S.C. § 1988, and law of the 
Circuit clearly establish that the district court plainly 
erred in determining the amount of the fees awarded, as more 
fully detailed in the attached brief.

JACK GREENBERG
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

FRED L. BANKS, JR.
Banks & Nichols
538-1/2 North Farish Street
Jackson, Mississippi 39202

Attorneys for Plaintiffs- 
Appellees, Cross-Appellants

2



TABLE OF CONTENTS
Page

Statement of the Issues ...............................  1
Statement of the Case .................................  2

A. Prior Proceedings ............................  2
B. Facts ........................................  5

Summary of Argument ...................................  10
Argument:

I. The Judgment of the District Court That 
Plaintiffs, as Prevailing Party, Were 
Entitled to An Award of Attorney's Fees 
and Costs Should Be Affirmed in Light of 
Hutto v. Finney...............................  12

II. The Determination of the District Court of 
the Amount of Attorney's Fees and Costs to 
Be Awarded Should Be Reversed in Light of 
the Legislative History of 42 U.S.C. § 1988. .. 15
A. The Hourly Rates Determined by the

District Court for Legal Services From 
October 1970 - August 1974................  16

B. The Supplemental Request for Fees and
Costs from October 1974 - January 1978. ... 19

III. The Court Should Consider a Direct Award of
Attorney's Fees and Costs Sought by Plaintiffs. 21

Conclusion .......................................... . 22
Appendix A, Antitrust Attorney's Fees Awards ..........  la
Appendix B, Civil Rights Attorney's Fees Awards .......



TABLE OF AUTHORITIES
Cases: Paqe
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437

(5th Cir.), cert, denied, 419 U.S. 1033 (1974) ... 19
Bolton v. Murray Envelope „Corp., 553 F.2d 881

(5th Cir. 1977) ................................ 18,20
Brown v. Culpepper, 561 F.2d 117, denyinq petition 

for rehearing with opinion in, 559 F.2d 274
(5th Cir. 1977) ..........................  12,15,17,18,

Davis v. County of Los Angeles, 8 E.P.D.
19,21

2 9444 (C.D. Cal. 1974) ........................ 16,21
Gates v. Collier, 559 F.2d 241 (5th Cir. 1977) ....... 13
Gore v. Turner, 563 F.2d 159 (5th Cir. 1977) ......... 21
Hodge v. Seiler, 558 F.2d 284 (5th Cir. 1977) ........ 21
Hutto v. Finney, 548 F.2d 740 (8th Cir. 1977), 

affirmed, U.S. , 46 U.S.L.W. 4817 
(decided June 23, 1978) ......................... 22

Hutto v. Finney, U.S. , 46 U.S.L.W. 4817
(decided June 23, 1978) ...................  10,12,13,14,

15,22
Johnson v. Georgia Highway Express, 488 F.2d

714 (5th Cir. 1974) ............................ 16,21
Miller v. Amusement Enterprises, Inc., 426 F.2d

534 (5th Cir. 1970) ............................. 20
Miller v. Carson, 563 F.2d 757 (5th Cir. 1977) ....... 13
Palmer v. Rogers, 10 EPD 2 10,499 (D. D.C. 1975) .....  18,21
Parker v. Califano, 443 F. Supp. 789 (D. D.C. 1978) ... 17
Peltier v. City of Fargo, 533 F.2d 374 (8th Cir. 1976) 
Rainey v. Jackson State College, 551 F.2d 672 (5th

19

Cir. 1977) .....................................  13,14

l i



Cases (Cont'd): Page
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.

Cal. 1974) ................................  16,18,20,21
Swann v. Charlotte-Mecklenburg Board of Education,

66 F.R.D. 483 (W.D. N.C. 1975) .............  17,18,21
Zurcher v. Stanford Daily, ___ U.S. ___, 46 U.S.L.W.

4546 (decided May 31, 1978), reversing,
550 F.2d 464 (9th Cir. 1977) ..................... 17

Statutes:
20 U.S.C. § 1617, Emergency School Aid Act of

1972, § 718 ..............................  1,3,10,12,15
20 U.S.C. § 1618 ......................................  6
28 U.S.C. § 1291 ......................................  3
42 U.S.C. § 706(b) ....................................  18
42 U.S.C. § 1983 ......................................  7
42 U.S.C. § 1988, Civil Rights Attorney's Fees

Awards Act of 1976 ......................  1,3,6,7,10,12,
13,14,15,16,20,21

Other Authorities:
Rule 58, Fed. R. Civ. Pro..............................  3
S. Rep. No. 74-1011, 1976 Attorney's Fees Awards Act,

94th Cong., 2d Sess. 6 (1976), reprinted in,
U. S. Code Cong. & Admin. News, 94th Cong., 2d
Sess. 1976, vol. 5 ...........................  11,16,20

iii



IN THE

No. 78-1600

DELORES NORWOOD, et al.,
Plaintiffs-Appellees, 
Cross-Appellants,

v.
D. L. HARRISON, SR., et al.,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Northern District Of Mississippi

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR PLAINTIFFS-APPELLEES, CROSS-APPELLANTS 

STATEMENT OF THE ISSUES
1. Whether the lower court correctly awarded attorney's 

fees to plaintiffs, as prevailing parties, pursuant to the 
Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.
§ 1988, and the earlier § 718 of the Emergency School Aid Act 
of 1972, 20 U.S.C. § 1617?

2. Whether the lower court correctly determined the 
amount of the attorney's fees to be awarded plaintiffs pursuant 
to applicable statutory standards?



STATEMENT OF THE CASE*
A. Prior Proceedings

This class action to enjoin the Mississippi State 
Textbook Purchasing Board from providing textbooks to private 
schools engaging in racially discriminatory policies and 
practices was brought by black Mississippi school children 
October 9, 1970, 2 R.A. 1. The dismissal of the complaint 
by a three-judge court, 340 F. Supp. 1003 (N.D. Miss. 1972), 
was reversed by a unanimous Supreme Court in a landmark 
opinion that the Equal Protection Clause forbids both direct 
and indirect aid to private segregated schools, 413 U.S. 455 
(1973). On remand, the district court established and 
applied certification procedures to determine eligibility of 
private schools to receive state owned textbooks, 2 R.A. 39, 
382 F. Supp. 921 (N.D. Miss. 1974).

On July 31, 1974, plaintiffs applied for an award of 
reasonable attorney's fees, 2 R.A. 47, and the next month sub­
mitted supporting affidavits of counsel, 2 R.A. 52-67. The
lower court decided the matter March 2, 1976. The lower court

*
ruled that (a) the Eleventh Amendment does not bar an award

* References are to the Record on Appeal (hereinafter ("R.A."). 
The particular volume of the two-volume record is designated 
by a preceding "1" or ”2" and the particular page is desig­
nated by a following page number.

2



of attorney's fees and costs which will ultimately be paid 
from the coffers of a state treasury, (b) an award was 
proper pursuant to § 718 of the Emergency School Aid Act of 
1972, 20 U.S.C. § 1617, and (c) an attorney's fee of $23,852 
and taxable costs of $4,999.44 were determined and assessed 
against officers and members of the Mississippi State Textbook 
Purchasing Board in their official capacity, 2 R.A. 68-107,
410 F. Supp. 133 (N.D. Miss. 1976).

Defendants appealed from the accompanying March 2, 1976, 
order, 2 R.A. 107a. However, the appeal was dismissed 
November 21, 1977, for the lack of an appealable final order 
pursuant to 28 U.S.C. § 1291, 563 F.2d 722 (5th Cir. 1977).
The merits of the appeal were not reached.

In the interim, the Civil Rights Attorney's Fees Awards Act of 
1976, 42 U.S.C. § 1988, was enacted and went into effect.

Thereafter, the district court issued a final judgment 
under Rule 58, Fed. R. Civ. Pro., January 3, 1978.

*"Upon receipt of the mandate issued on 
December 13, 1977, by the United States Court 
of Appeals for the Fifth Circuit, dismissing 
the appeal from our prior order of March 2,
1976, allowing attorney fees on the ground that 
said order was interlocutory and hence non- 
appealable, and upon inspection of the jacket 
file, and the court having concluded that the 
case is ripe for final disposition, that further 
delay in the allowance of attorney fees is con­
trary to the public interest and to the principles 
of justice and equity, and the court being of the 
firm opinion that the plaintiffs are entitled to

3



an award of counsel fees in the sum hereinafter 
fixed, for the reasons cited in our prior pub­
lished opinion, Norwood v. Harrison, 410 F.
Supp. 133 (1976), which holding was bottomed 
upon § 718 of the Emergency School Act of 1972,
20 USC § 1617, a holding which we now reaffirm, 
as well as declaring an alternative ground for 
allowing said award is based upon the Civil 
Rights Attorney's Fees Awards Act of 1976, Pub.
Law 94-559, enacted October 19, 1976, 42 USC 
§ 1988, it is ordered sua sponte as follows:

"That the members of the plaintiff class 
represented by Delores Norwood ... do have of 
and recover from the ... [officers and] members 
of the Mississippi State Textbook Purchasing 
Board, in their official capacity but not indi­
vidually, and their successors in office, and 
also the Mississippi State Textbook Purchasing 
Board, as a distinct public agency of the State 
of Mississippi, the sum of $23,852 as attorney 
fees payable to plaintiffs' counsel, Honorable 
Melvyn R. Leventhal, in the amount of $22,102, 
Honorable James M. Nabrit III, $1,750, and the 
additional sum of $4,999.44 taxed as reasonable 
and necessary costs incurred by the plaintiffs 
in the successful prosecution of this suit."

1 R.A. 172-173. Plaintiffs' motion to amend judgment to
increase the amount of the fees by increasing the hourly rate
and by adding a supplemental award for legal work since
August 1974 was denied, 1 R.A. 174, 178 and 185. Defendants'
motion to vacate the judgment was also denied, 1 R.A. 179,
188.

Thereafter, both defendants and plaintiffs filed notices of 
appeal, 1 R.A. 189, 194.

4



B. Facts
1. Entitlement To An Award Of Fees And Costs

The facts with respect to entitlement to an award 
of fees are undisputed.

The district court has recounted the results of the 
"saga," of this litigation to bring Mississippi's program 
of furnishing state-owned textbooks to racially segregated 
private schools into conformity with the Equal Protection 
Clause.

"Before Norwood, 107 private academies received 
such aid; after Norwood, 33 academies applied 
for state textbooks in accordance with certi­
fication procedure established by this court 
upon remand. Of this number, the Board at 
the administrative level found 5 ineligible 
and approved 28. Plaintiffs filed objections 
to 24 schools approved by the Board. Pending 
appeal to this federal district court, 13 pri­
vate academies were able to satisfy, by stipu­
lation, challenges raised by plaintiffs. As 
previously stated, 4 academies voluntarily 
withdrew their requests for textbooks after 
challenge; and we have herein found 4 more 
academies ineligible, 2 qualified, and one 
approved only conditionally for one year. "

382 F. Supp. at 935. All told, 88 private schools lost text­
book aid as a direct result of the action; at least 13 private 
academies changed their procedures in order to no longer 
engage in racial discrimination as part of the action; and 
henceforth no private school in Mississippi may receive, ab 
initio, state textbook aid without the prior approval of the

5



court, 410 F. Supp. at 138, n. 3.
Aside from their immunity to an award of attorney's fees 

and costs, defendants do not dispute that plaintiffs meet
i/the various requirements of 20 U.S.C. § 1617 and 42 U.S.C.

2/
§ 1988. With respect to 20 U.S.C. § 1617: there is a "final 
order"; the action is one arising under "the Fourteenth 
Amendment ... as [it] pertain [s] to elementary and secondary 
education"; the suit was "necessary" to end the practice of 
providing state textbook aid to racially segregated private 
schools in order to bring about compliance with the Fourteenth

1/ "Upon the entry of a final order by a court of the 
United States against a local educational agency, a 
State (or any agency thereof), or the United States 
(or any agency thereof), for failure to comply with 
any provision of this chapter or for discrimination 
on the basis of race, color, or national origin in 
violation of title VI of the Civil Rights Act of 1964, 
or the fourteenth amendment to the Constitution of the 
United States as they pertain to elementary and secondary 
education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about com­
pliance, may allow the prevailing party, other than the 
United States, a reasora ble attorney's fee as part of 
the costs. "

2/ "... In any action or proceeding to enforce a provision
of sections 1981, 1982, 1983, 1985, and 1986 of this 
title, title IX of Public Law 92-318, or in any civil 
action or proceeding, by or on behalf of the United 
States of America, to enforce, or charging a viola­
tion of, a provision of the United States Internal 
Revenue Code, or title VI of the Civil Rights Act of 
1964, the court, in its discretion, may allow the 
prevailing party, other than the United States, a 
reasonable attorney's fee as part of the costs."

6



Amendment; and the plaintiffs are "the prevailing party" 
because plaintiffs requested injunctive relief against state 
aid to all-white segregated private schools was for all 
practical purposes granted in its entirety," 410 F. Supp. 
at 137-141. With respect to the less extensive standards of 
42 U.S.C. § 1988: this is an action to enforce 42 U.S.C.
§ 1983 and plaintiffs are the "prevailing party^" see 1 R.A. 172. 

2. Amount Of Fees And Costs
The question of the amount of fees and costs in this 

protracted litigation of eight years concerns two periods, 
i.e., October 1970 - August 1974, and October 1974 - January 
1978.

a. Fees And Costs, October 1970 - August 1974
Although plaintiffs' counsel requested an award

of fees for a somewhat greater number of hours, during the
period from the filing of the action in October 1970 through
August 1974 when supporting affidavits of counsel were filed,

►the lower court determined that the following hours were rea­
sonable for the period:

In the District Court (Leventhal)
116.35 hours for correspondence, conferences, 

filing routine motions, preparing 
exhibits, etc.

101.50 hours for depositions
152.00 hours for drafting the complaint, 

legal research, brief writing and 
courtroom appearances

7



141.50 hours for developing certification
procedure and ascertaining the eligi­
bility of each of the private schools 
seeking textbook aid on remand

In the Supreme Court
115 hours for Leventhal
35 hours for Nabrit

410 F. Supp. at 142, n. 10. The district court also found, 
inter alia, that the case was "by any standard, one of diffi­
culty, involving delicate concepts of constitutional law," and 
that plaintiffs' lead counsel, Mr. Leventhal, "acted in accord- 
ance with the best traditions of the legal profession," and 
"[h]is legal representation was, without question, of the
highest calibre, exhibiting thoroughness and skill in factual

3/
development as well as legal argument," 410 F. Supp. at 142.
The district court also determined that the following were 
reasonable hourly rates for legal work in the October 1970 - 
August 1974 period:

3/ The district court also determined that "it seems unlikely 
that Leventhal's participation in the suit either cost him 
other clients or precluded other remunerative employment," 
id., which plaintiffs-appellees, cross-appellants believe 
to be plainly erroneous under prevailing legal standards, 
see infra at pp. 17-18 n. 9.

8



Leventhal
116.35 hours X $20 = $ 2,327
101.50 hours X $30 = 3,045
152.00 hours X $35 = 5,320
141.50 hours X $40 = 5,660
115.00 hours X $50 = 5,750

$22,102

Nabrit
35 hours x $50 = $1,750

410 F. Supp .at 142, n. 10. (The average rate is $36.06/hour.)
Plaintiffs' motion to amend judgment of January 10, 1978,
requested that the hourly rate be doubled, 1 R.A. 1974.

The lower court awarded the full request for taxable costs
of $4,999.44, 410 F. Supp. at 137, n. 2.

b . Fees And Costs, October 1974 - January 1978
With respect to the period from October 1974 -

January 1978, plaintiffs sought a supplemental award of $8,475 for
84.75 hours at an hourly rate of $100, as follows:

Pre-March 2, 1976, Order
32 hours for legal work on an award of 

attorney's fees and eligibility of a 
private school for textbook assistance

Post-March 2, 1976, Order
52.75 hours for legal work on the first 

appeal of the March 2d order on 
attorney's fees

1 R.A. 175, 185. With respect to the supplemental request, the 
district court denied without stating any reason the request

9



for services up to March 2, 1976, 1 R.A. 178. The lower 
court denied the remainder of the supplemental request for 
post-March 2, 1978, legal services "without prejudice" if 
the March 2d Order is upheld on appeal and if the Court of 
Appeals mandates an award for additional services since 
March 2, 1976, id.

Plaintiffs also sought $290.10 for travel expenses to 
the argument of the first appeal, which the district court 
also declined to grant, 1 R.A. 176.

SUMMARY OF ARGUMENT

On their appeal, defendants-appellants D. L. Harrison,
Sr., et al., argue against any award of attorney's fees and 
costs on three grounds, viz., (1) the Eleventh Amendment bars
a monetary judgment against a State; (2) § 718 of the Emer­
gency School Aid Act, 20 U.S.C. § 1617, and the Civil Rights 
Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, do not 
abrogate the Eleventh Amendment prohibition here; and (3) the 
state of Mississippi is an absent indispensable party. The 
Supreme Court has expressly addressed and definitively 
resolved each of these issues against defendants in Hutto v.
Finney, ___ U.S. ___, 46 U.S.L.W. 4817 (decided June 23,
1978). The district court's ruling that plaintiffs were
entitled to an award of fees and costs should therefore be affirmed.

10



On the cross-appeal, plaintiffs-appellees, cross­
appellants Delores Norwood, et al.-, assert that the lower 
court erred in determining the amount of attorney's fees and 
costs. With respect to the October 1970 - August 1974 period, 
the hourly rates imposed by the lower court conflict with 
express legislative history of the Civil Rights Attorney's 
Fees Awards Act that "the amount of fees awarded under [the 
Act] be governed by the same standards which prevail in other 
types of equally complex Federal litigation, such as anti­
trust cases," and with authorities which Congress specifically 
endorsed as cases in which "appropriate standards ... are cor­
rectly applied," S. Rep. No. 74-1011, 1976 Attorney's Fees 
Awards Act, 94th Cong., 2d Sess. 6 (1976), reprinted in,
U. S. Code Cong. & Admin. News, 94th Cong., 2d Sess. 1976, 
vol. 5, at p. 5913. The Act also requires that fees and costs 
be granted for the October 1974 - January 1978 period. Legis­
lative history of the 1976 Act is equally as clear that "[i]n

*computing the fee, counsel for prevailing parties should be 
paid, as is traditional with attorneys compensated by a fee­
paying chart, 'for all time reasonably expended on a matter,'" 
id. The lower court's determination of the amount of attor­
ney's fees and costs should therefore be reversed.

Lastly, the court should consider summary disposition and 
direct award of reasonable fees and costs. See, e.g., Brown

11



v. Culpepper, 561 F.2d 1177, denying petition for rehearing 
with opinion in, 559 F.2d 274, 276, n. 4, 278 (5th Cir. 
1977).

ARGUMENT
I .

The Judgment of the District Court That Plaintiffs,
As Prevailing Party, Were Entitled to An Award of 
Attorney's Fees and Costs Should Be Affirmed in 
Light of Hutto v. Finney.

In Hutto v. Finney, ___ U.S. ____, 46 U.S.L.W. 4817
(decided June 23, 1978), the Supreme Court authoritatively

jL_/resolved the specific issues raised by defendants in their 
appeal from the lower court's final judgment that plaintiffs, 
as prevailing party, were entitled to an award of attorney's 
fees and costs pursuant to the Civil Rights Attorney's Fees 
Awards Act of 1976, 42 U.S.C. § 1988, and the earlier § 718 
of the Emergency School Aid Act of 1972, 20 U.S.C. § 1617.

First, the Supreme Court specifically ruled that the 
Eleventh Amendment did not bar an award of reasonable attor­
ney's fees pursuant to 42 U.S.C. § 1988.

"As this Court made clear in Fitzpatrick v. 
Bitzer, 427 U.S. 445, Congress has plenary 
power to set aside the State's immunity from 
retroactive relief in order to enforce the 
Fourteenth Amendment. When it passed the Act, 
Congress undoubtedly intended to exercise that 
power and to authorize fee awards payable by the

4 / Brief For Defendants-Appellants, pp. 10, ejt seg.

12



States when their officials are sued in 
their official capacities. The Act itself 
could not be broader. It applies to "any" 
action brought to enforce certain civil 
rights laws. It contains no hint of an 
exception for States defending injunction 
actions; indeed, the Act primarily applies 
to laws passed specifically to restrain 
state action. See, e.g., 42 U.S.C.
§ 1983."

v46 U.S.L.W. at 4821; compare Rainey v. Jackson State College,
§ /551 F.2d 672, 675 (5th Cir. 1977).

Second, the Hutto opinion specifically disposed of the 
claim that the imposition of attorney's fees "as a part of 
the costs" in § 1988 does not constitute an "express statu­
tory waiver" necessary to abrogate the Eleventh Amendment 
immunity of State defendants, 46 U.S.L.W. at 4821-4822.

5/ There is no doubt that 42 U.S.C. § 1988 applies to this
action which was pending when § 1988 was enacted:

"The Attorney General also contends that 
the fee award should not apply to cases, 
such as this one, that were pending when 
the Act was passed in 1976. But the legis­
lative history of the Act, as well as this 
Court's general practice, defeat this argu­
ment. The House Report declared: 'In
accordance with applicable decisions of the 
Supreme Court, the bill is intended to apply 
to all cases pending on the date of enactment.
...' H.R. Rep. No. 94-1558, p. 4 n. 6 (1976).
See also Bradley v. School Board, 416 U.S.
696. "

4 U.S.L.W. at 4821, n. 25.
6/ See also Gates v. Collier, 559 F.2d 241 (5th Cir. 1977);
Miller v. Carson, 563 F.2d 757 (5th Cir. 1977).

13



"Just as a federal court may treat a State 
like any other litigant when it assesses 
costs, so also may Congress amend its defini­
tion of taxable costs and have the amended 
class of costs apply to the States, as it 
does to all other litigants, without expressly 
stating that it intends to abrogate the States' 
Eleventh Amendment immunity. For it would be 
absurd to require an express reference to 
state litigants whenever a filing fee, or a 
new item, such as an expert witness' fee, is 
added to the category of taxable costs.

"... It is much too late to single out 
attorney's fees as the one kind of litigation 
cost whose recovery may not be authorized by 
Congress without an express statutory waiver 
of the States' immunity."

46 U.S.L.W. at 4822; compare Rainey v. Jackson State College, 
supra, 551 F.2d at 675.

Third, the Hutto opinion specifically rejected the claim 
that "even if attorney's fees may be awarded against a State, 
they should not be awarded in this case, because neither the 
State nor the Department [of Correction] is expressly named 
as a defendant" under § 1988, 46 U.S.L.W. at 4822-4823.

"Like the Attorney General, Congress 
recognized that suits brought against indi­
vidual officers for injunctive relief are 
for all practical purposes suits against the 
State itself. The legislative history makes 
it clear that in such suits attorney's fee 
awards should generally be obtained 'either 
directly from the official, in his official 
capacity, from funds of his agency or under 
his control, or from the State or local 
government (whether or not the agency or 
government is a named party).' S. Rep. No.
94-1011, p. 5 (1976)."6a/

6a/ The result is the same under § 718 of the Emergency School
- 14 -



II.
The Determination of the District Court of 
the Amount of Attorney's Fees and Costs to 
Be Awarded Should Be Reversed in Light of 
the Legislative History of 42 U.S.C. § 1988.

The cross appeal of plaintiffs-appellees, cross­
appellants Delores Norwood, et al., is founded on the failure 
of the district court to follow guidelines for determination 
of fees and costs set forth by Congress in the legislative 
history of the Civil Rights Attorney's Fees Awards Act of

v1976 in two respects: As to the request for fees for the
October 1970 - August 1974 period, the lower court failed to 
follow express legislative history defining what constitutes 
a "reasonable" attorney's fee. With respect to the supple­
mental request for fees and costs for the October 1974 - 
January 1978 period, the district court erred in not confer­
ring "'for all time reasonably expended on a matter.'"

6a/ (Cont'd)
Aid Act, 20 U.S.C. § 1617, in which Congress provided spe­
cifically for attorney's fees awards against states and 
subdivisions and which also provides that fees are to be 
awarded "as a part of the costs," see, e.g., Brown v. 
Culpepper, 559 F.2d 274, 277-278 (5th Cir. 1977).
7/ The legislative history of 42 U.S.C. § 1988 is decisive 
as to the scope and coverage of the Act, see Hutto v. Finney, 
supra; Brown v. Culpepper, supra, 559 F.2d at 277-278.

15



A . The Hourly Rates Determined By The District Court For
Legal Services From October 1970 - August 1974.
The legislative history of § 1988 clearly announces that 

"the amount of fees awarded under [the Act] be governed by 
the same standards which prevail in other types of equally 
complex EaderaJL. litigation, such as antitrust cases, and not 
be_ reduced because the rights involved may be nonoecuniarv 
in nature"(emphasis added), and then proceeds to state the 
appropriate standards.

"... The appropriate standards, see Johnson 
v. Georgia Highway Express. 488 F.2d 714 (5th 
Cir. 1974), are correctly applied in such cases 
as Stanford Daily v. Zurcher, 64 F.R.D. 680 
(N.D. Cal. 1974); Davis v. County of Los Angeles,
8 E.P.D. 5 9444 (C.D. Cal. 1974); and Swann v. 
Charlotte-Mecklenburg Board of Education, 66 
F.R.D. 483 (W.D. N.C. 1975). These cases have 
resulted in fees which are adequate to attract 
competent counsel, but which do not produce 
windfalls to attorneys."

S. Rep. No. 74-1011, 1976 Attorney's Fees Awards Act, 94th 
Cong., 2d Sess. 6 (1976), reprinted in, U. S. Code Cong. & 
Admin. News, 94th Cong., 2d Sess. 1976, vol. 5 at p. 5913.

In the cases in which Congress stated that Johnson v.
Georgia Highway Express standards are "correctly applied," the
hourly rates awarded prior to the lower court's determination
were substantially greater than the average rate of $36.06
awarded in the instant action: Davis v. County of Los Angeles

_8_/
($65.29/hour); Stanford Daily v. Zurcher ($63.33/hour);

8 / The fees award in Zurcher was subsequently vacated on
16



and Swann v. Charlotte-Mecklenburg Board of Education ($64.81/
hour). Moreover, this Court has recently determined that rates 
of $65/hour and $75/hour were reasonable in a routine jury dis­
crimination action, Brown v. Culpepper, 559 F.2d 274, 276 n. 4, 
278, petition for rehearing denied with opinion, 561 F.2d 1177 
(5th Cir. 1977). Attached hereto are Appendix A, which is a 
list of comparable antitrust attorney's fees awards, and Appen­
dix B, which is a list of other comparable civil rights attor­
ney's fees awards. The doubling of the rate to $72.12/hour 
sought by plaintiffs is well within these exemplary hourly rates. 

As noted above, the hours of legal services, novelty of
the issues, difficulty, reputation and skill of counsel, and

9/
results obtained are all undisputed. Indeed, the hourly

8/ (Cont'd)
other grounds when the Supreme Court reversed the decision on
the merits, Zurcher v. Stanford Daily, ____ U.S. ____, 46
U.S.L.W. 4546, 4547 n. 3 (decided May 31, 1978), reversing. 
550 F.2d 464 (9th Cir. 1977).
9/ The lower court’s reduction of the hourly rate because 
much of Mr. Leventhal's legal services were provided in pre- 
inf lationary 1970-1971, 410 F. Supp. at 142, is at odds with 
the cases cited, which cover a similar period. Indeed,
the rate for legal services should be adjusted upward (not 
downward) to counter the effects of inflation on the actual 
value of the legal services performed in the past, see, e.g., 
Parker v. Califano, 443 F. Supp. 789, 793 (D. D.C. 1978).

It was plainly erroneous for the district court to 
rule that the substantial number of hours required by the

17



rate sought by plaintiffs is "reasonable" under the strictest
standard in light of the contingent nature of the fee

10/
arrangement and inherent risk, see Stanford Daily v.
Zurcher, supra, 64 F.R.D. at 685-686; Swann v. Charlotte- 
Mecklenburg Board of Education, supra, 66 F.R.D. at 486. 
Moreover, a bonus, although not requested, would have been appro­
priate for obtaining "a signal victory from a unanimous

11/Supreme Court," and "the considerable impact of plaintiffs'
success in this litigation vis-a-vis Mississippi's private

12/
academies," Stanford Daily, supra; Davis, supra.<

As stated in Bolton v. Murray Envelope Corp., 553 F.2d 
881, 884 (5th Cir. 1977), with respect of the identically- 
worded attorney's fees provision of Title VII, 42 U.S.C.
§ 706(k), "We take this opportunity to remind the district

9/ (Cont'd)
litigation did not preclude other plaintiffs' counsel from 
other legal work, 410 F. Supp. at 142. "It goes without 
saying that representing plaintiffs in this case is bound 
to have cost plaintiffs' counsel a lot of representation of 
other people in other matters, Swann v. Charlotte-Mecklenburg 
Board of Education, supra, 66 F.R.D. at 486; Palmer v. Rogers, 
10 EPD 5 10,499, at p. 6131 (D. D.C. 1975).
10/ Plaintiffs have never paid plaintiffs' counsel a fee.
Any attorney's fees recovered would be from defendants pur­
suant to statute "as a part of the costs."
11/ 410 F. Supp. at 142.
12/ Supp. at 138 n. 3.410 F.

18



court that the purpose [of the Act] is 'to insure that attor-
13/

neys will undertake representation in this type of case,'"
compare, Brown v. Culpepper, supra, 559 F.2d at 277-278.
B. The Supplemental Request For Fees And Costs From 

October 1974 - January 1978.
The district court declined to award any of the supple­

mental request for fees from October 1974 through March 2, 
1976, without giving any reason, see supra at pp. 9-10, and 
declined to grant the supplemental request from March 1976 
through January 1978 unless this Court authorized it, see

wsupra at p . 10.
There were clearly no grounds for denying plaintiffs that 

portion of the supplemental request concerned with the contin­
uing enforcement of the substantive decree (6.5 hours from 
February 20, 1975 - March 3, 1975, for telephone conferences 
and drafting of stipulation for Presbyterian Day School of

13/ The court cited, at n. 4, inter a3»La, Baxter v. Savannah 
Sugar Refining Corp., 495 F.2d 437, 447 (5th Cir., cert. 
denied, 419 U.S. 1033 (1974) (rate of $22.50 per hour ques­
tioned) and Peltier v. City of Fargo, 533 F.2d 374 (8th Cir. 
1976) (fee award increased on appeal).
14/ Although the request was denied "without prejudice," the 
lower court made clear that the request would only be con­
sidered "if thfe] court's judgment fixing attorney fees as of 
March 2, 1976, is upheld on appeal and the Court of Appeals 
mandates that we allow fees for additional services rendered 
since March 2, 1976," 1 R.A. 178 (emphasis added).

19



Cleveland, 2 R.A. 175). These services simply cannot be dis­
tinguished from other services on the substantive part of the case.

With respect to the greater part of the supplemental 
request, i.e., the remainder of the pre-March 2, 1975, period 
(23.5 hours) and all of the post-March 2, 1976, period (52.75 
hours), the possible grounds for denial are that the legal 
services concern work performed to recover an award of fees, 
that some legal services were performed on appeal, and that 
plaintiffs did not "prevail" because the fees issue was pre- 
termitted on the first appeal. As to the impropriety of these 
grounds, § 1988 and caselaw are clear.

Thus, the legislative history states the rule that "[i]n 
computing the fee, counsel for prevailing parties should be 
paid, as is traditional with attorneys compensated by a fee­
paying client, 'for all time reasonably expended on a matter,'
Davis, supra; Stanford Daily, supra, at 689," S. Rep. No.
74-1011, 1976 Attorneys' Fees Awards Act, 94th Cong., 2d Sess.
6 (1976), reprinted in, U. S. Code Cong. & Admin. News, 94th 
Cong., 2d Sess. 1976, vol. 5 at p. 5913. Of necessity this
would encompass time reasonably expended to seek or defend a 

15/  16/
fees award, legal services on appeal, and time devoted

15/ See, e.g., Stanford Daily v. Zurcher, supra, 64 F.R.D. at 683- 
684; Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 539 
(5th Cir. 1970).
16/ See, e.g., Bolton v. Murray Envelope Corp., supra, 553 F.2d

20



to issues on which plaintiffs did not "prevail."
The hours and hourly rate of the supplemental request 

meet the Georgia Highway Express criteria, see supra 
at pp. 16-19. Recovery of reasonable litigation expenses is 
also proper, Swann v. Charlotte-Mecklenburg Board of Educa­
tion, supra, 66 F.R.D. at 486; Davis v. County of Los Angeles, 
supra, 8 EPD at p. 5048.

III.
The Court Should Consider a Direct Award of 
Attorney's Fees and Costs Sought by Plaintiffs.

Although an award of attorney's fees normally falls within 
the sound discretion of the trial judge, "'appellate courts, 
as trial courts, are themselves experts as to the reasonable­
ness of attorneys' fees, and may, in the interest of justice, 
fix the fees of counsel albeit in disagreement on the evidence 
with the views of the trial court,'" Brown v. Culpepper, 561 F.2d 
1177-1178, denying petition for rehearing with opinion in

1

16/ (Cont'd)
at 885 n. 7; Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 
1977); Gore v. Turner, 563 F.2d 159, 163 (5th Cir. 1977).
17/ Issue-by-issue pursuing is contrary to § 1988, see, 
e.g., Stanford Daily v. Zurcher, supra, 64 F.R.D. at 684; 
Davis v. County of Los Angeles, supra, 8 EPD at p. 5049; 
Swann v. Charlotte-Mecklenburg Board of Education, supra, 66 
F.R.D. at 484; see also, Palmer v. Rogers, 10 EPD f 10,499 
at pp. 6130-6131 (D. D.C. 1975). Overall success of the 
litigation is the test for a "prevailing party."

21



559 F.2d 274 (5th Cir. 1977); see also, Hutto v. Finney, 548
F.2d 740 (8th Cir. 1977), affirmed, ___ U.S. ____, 46 U.S.L.W.

18/
4817 (decided June 23, 1978).

CONCLUSION
For the above reasons, the judgment of the district 

court's ruling that plaintiffs are entitled to an award of 
attorney's fees and costs should be affirmed, and the dis­
trict's determination of the amount of fees and costs should
be reversed. In addition, the court should consider a direct
award of fees and costs sought by plaintiffs.

Respectfully submitted,

JACK GREENBERG 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

FRED L. BANKS, JR.
Banks & Nichols
538-1/2 North Farish Street
Jackson, Mississippi 39202

Attorneys for Plaintiffs- 
Appellees, Cross-Appellants

18/ The total award would be:
October 1970 - August 1974 

Fees $47,704.00
Costs 4,999.44

October 1974 - January 1978 
Fees $8,475.00 
Expenses 290.10

This total does not include post-January 1978 attorney's fees 
and costs of this appeal and related district court proceedings.

22



CERTIFICATE OF SERVICE

This is to certify that on this 30th day of June, 1978, 
copies of the foregoing Motion for Partial Summary Affirm­
ance and for Partial Summary Reversal, and Brief for 
Plaintiffs-Appellees, Cross-Appellants were served on the 
following counsel for the parties by U. S. mail, first class, 
postage prepaid, addressed to:

Hon. Peter M. Stockett, Jr 
Assistant Attorney General 
Post Office Box 220 
Jackson, Mississippi

BILL LANN LEE 
Attorney for Plaintiffs-

Appellees, Cross-Appellants

23



APPENDIX A

A COMPENDIUM OF ILLUSTRATIVE 
RECENT ANTITRUST FEE AWARDS

Case
City of Detroit v. Grinnell 
Corp., S.D. N.Y., 68 Civ. 4026, 
April 21, 1976

t

Blank v. Talley Industries, Inc., 
390 F. Supp. 1 (S.D. N.Y. 1975)

Lindy Brothers Builders, Inc, 
of Philadelphia v. American 
Radiation & Standard Sanitary 
Corp., 382 F. Supp. 999 (E.D. 
Pa. 1974)
Arenson v. Board of Trade of 
the City of Chicago. 372 
F. Supp. 1349 (N.D. 111. 1974)

Calson v, Hilton Hotels Corp.,
59 F.R.D. 324 (N.D. 111. 1972)
G. & K. Foods Inc, v. Kentucky 
Fried Chicken. M.D. Fla., Civ. 
Action No. 71-5 Ft. M,
December 13, 1972

*

In re Four Reasons Securities 
Laws Litigation. 59 F.R.D. 667 
(W.D. Okla. 1973) (securities)
Quirke v. Chessie Corp., 368 
F. Supp. 558 (S.D. N.Y. 1974)
Gold v. D.C.L., Inc.. S.D. N.Y., 
72 Civ. 4193, January 22, 1975
In re Gypsum. 386 F. Supp. 959 
(N.D. Cal. 1974)

Fees Awarded
$125/hour plus multi­
plier of 3

$100/hour for partner, 
$50/hour for associate, 
plus 50% incentive award
$100 - $125/hour for 
senior partners, $35 - 
$75/hour for junior 
partners and associates, 
plus 100% multiplier
$100 - $125/hour for 
senior partners, $35 - 
$80/hour for associates, 
plus multiplier of 4
$152.29/hour

$112.11/hour

$119.34 - $127.43/hour 
for class attorneys

$150/hour, plus multiplier 
of 50%
$140/hour, plus 15%

$100/hour for senior 
attorneys, $50/hour for 
associates, plus 2.2 
weighted multiplier

- la -



APPENDIX B

A COMPENDIUM OF ILLUSTRATIVE 
RECENT CIVIL RIGHTS FEE AWARDS

Case
Guajardo v. Estelle, 432 F. Supp. 
1373 (S.D. Tex. 1977) (prisoners' 
rights)
Adams v. Weinberger, C.A. No. 
3095-70 (D. D.C. 1976) (school 
desegregation suit against HEW)
Kelsey v. Weinberger, C.A. No. 
1660-73 (D. D.C. 1976) (school 
desegregation suit against HEW)

Smith v. Kleindienst, 8 F.E.P. 
Cases 753 (D. D.C. 1974), aff'd 
sub nom. Smith v. Levi, 527 
F.2d 853 (D.C. Cir. 1975) (Indi­
vidual Title VII)
Hammond v. Balzano, 10 EPD 
5 10,333 (D. D.C. 1975) 
(Individual Title VII)
Nat'l Ass'n for Mental Health v. 
Weinberger, 68 F.R.D. 387, 393- 
94 (D. D.C. 1975) (unlawful 
impoundment of federal funds)

Nat'l Ass'n of Regional Medical 
Programs v. Weinberger, 396 
F. Supp. 842, 849-51 (D. D.C. 
1975) (unlawful impoundment of 
federal funds)
Rosenfield v. Southern Pacific 
Co., 519 F.2d 527, 530 (9th 
Cir. 1975) (Title VII)

Fees Awarded
$125/hour for senior 
attorneys, $50/hour 
junior attorneys
$100/hour for all counsel

$100/hour for all counsel 
plus a bonus of 50% for 
an effective rate of 
$150/hour
$75/hour for senior 
attorneys and $40/hour 
for junior counsel

$75/hour

$70/hour for substantive 
work multiplied by a factor 
of 1.75 for an effective 
hourly rate of $122.50, 
plus $50/hour for work on 
fee application
Same, bur factor for 
substantive work was 2, 
for an effective hourly 
rate of $140 on substantive 
work
Upheld average of $73.71/ 
hour for all counsel (1971 
award)

- lb -



Case Fees Awarded
Beazer v. New York City Transit 
Authority, S.D. N.Y., 72 Civ. 
5307, January 13, 1977, aff'd in 
pert, part, 558 F.2d 97 (2d Cir. 
1977) (failure to employ persons 
completing methadone maintenance 
programs)
Mandel v. Hodges, 12 F.E.P. Cases 
527, 640 (Cal. Ct. App., 1st 
Dist., 1975) (religious discrim­
ination)

$100 - $110/hour for 
senior attorneys, $60/hour 
for junior attorneys

$83.33/hour

Oliver v. Kalamazoo Board of 
Education, 73 F.R.D. 30 (W.D.
Mich. 1976), aff'd in pert, part, 
6th Cir. No. 77-1038, decided 
May 25, 1978 (school desegregation)

$60 - $100/hour for senior 
attorneys, $35 - $40/hour 
for junior attorneys