Motion for Partial Summary Affirmance and for Partial Summary Reversal, and Brief for Plaintiffs-Appellees, Cross-Appellants

     [||05f368b1-8b3f-4bfa-ad37-ede22a583bcb||] IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 78-1600 
  

DELORES NORWOOD, et al., 

Plaintiffs~Appellees, 

Cross-Appellants, 

V. 

FARRISON, 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 

  

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 78-1600 

  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

Cross-Appellants, 

ve 

D. L. BARRISON, SR., et al., 

Defendants-Appellants. 

  

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 Beard. 

  

BILL LANN LEE 

Attorney of Record for 

Plaintiffs-Appellees, 

Cross-Appellants



  

IN THE 

UNITED STATES COURT OF APPEALS 

POR THE PIPFTH CIRCUIT 

  

No. 78-1600 
  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

Cross-Appellants, 

Vv. 

D. L. BARRISON, SR., et al,, 

Defendants—-Appellants. 

  

On Appeal From The United States District Court 

For The Northern District Of Mississippi 

  

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, 
  

 



  

Loowg.s, 46 U.8. LW, 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 

¥.8.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 1s 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. 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIPFTH CIRCUIT 

  

No. 78-1600 
  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

Cross-Appellants, 

Ve 

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 

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, '.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. I. 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. 

Respectfully submitted, : / 
Pd 

7 
\ / 

f nd” 4 / : 
§ / / ; 72, Nr 

NS / { f ; / : / An/) 7 \ \ 7 
As ( Vd di // J id SK 

{ 

JACK GREENBERG 
BILL LANN LEE 

Suite 2030 

10 Columbus Circle 

New York, New York 10019 

  

FRED IL. BANKS, JR. 

Banks & Nichols 

538-1/2 North Farish Street 

Jackson, Mississippi 39202 

Attorneys for Plaintiffs- 

Appellees, Cross-Appellants 

 



  

TABLE OF CONTENTS 
  

Statement of the Issues ....... PIE PEE RR PR 

Statement Of the CaSO ..vs cers esrosiviasnerssdvvesiness vie 

A. Prior Proceedings ....... SIRE NC SI EVER J AeA . 

Be "FACES wevncosnnse Vens essen siseiesns roves tresses reee 

SUMMAry Of Argument weceveesescevsveins sae nne sess sieeinee oon 

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 Vv. Pinay. weevomssnnonns “uleieisivie wine einmies 
  

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. .. 

A. The Hourly Rates Determined by the 

District Court for Legal Services From 

October 1970 = August 1974. cceececsones “rion 

B. The Supplemental Request for Fees and 

Costs from October 1974 - January 1978. ... 

III. The Court Should Consider a Direct Award of 

Attorney's Fees and Costs Sought by Plaintiffs. 

Conclusion ® © ® © © & 5 & & 0 0 os 0 8 ® ® & ® ° oo ® & 0 ® ® ® oo &» oo © & 5 8 0° 0 ® © @ & oo 

Appendix A, Antitrust Attorney's Fees Awards .....cccc.. 

Appendix B, Civil Rights Attorney's Fees Awards ........ 

10 

12 

16 

 



TABLE OF AUTHORITIES 

  

  

Cases: Page 

Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 

5th 'Cir.), cert. denied, 4190.8. 1033 (1974) .... 19 
  

Bolton v. Murray Envelope Corp., 553 F.2d 881 

{SLRBCLES 1077) vv nsnsisvrnsensinvnviocsenas ses viens 18, 20 

Brown v. Culpepper, 561 F.2d 117, denying petition 

for rehearing with opinion in, 559 F.2d 274 
  

  

{Sth Cir. 1977) ution wa FEN ARE ERR SR NL 12,15,17,18, 

19,21 

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

NW O84 (C.D. CaY, 10740 uous vtensvsnsicuvesenncens 16,21 

Gates v, Collier, 559 F.2d 241 (Sth Cir. 1977) ceeeveees 13 

Gore v. Turner’, 563. F.28 189 (5th Clr. 1977) iviveveseves 2: 

Hodge v. Seiler, 83858 F.2d 284 {Sth Cir. 1977) vives vanes 21 

Hutto v, Finney, 548 F.2d 740 {8th Cir. 1977), 

  

affirmed, 0g.s. .. 46 U.S. LW. 4817 

(decided June 23, 1978) veceeeenn vs sada dle die esas 22 

Hutto v. Finney, U.S. » 46 U.S.L.W. 4817 

{dacided JUNE 23, 1978) evi snessicinnsnemens 10,12,13,14, 

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

714 (5h Clee T9070) voit evidosdsensvvmiovnnsssissive 15,21 

Miller v. Amusement Enterprises, Inc., 426 F.2d 

534. (5th Clr, 1970) su cvosvvvsssnsinaeicneninosionsinens 20 

Miller v. Carson, 363 F.28 757 {5th Cir. 1977) vevevenses 13 

Palmer v. Rogers, 10 EPD § 10,499 {(D., D.C. 1978) v.vees 18,21 

Parker v, Califano, 443 PF. Supp. 789 (D. D.C. 1978) .... 17 

Peltier v. City OF Pargo, 533 P.24 374 (8th Cir. 1976) . 19 

Rainey v. Jackson State College, 551 F.2d 672 (5th 

Oe 1077) ai van vnncnnne ims annscinensinnss “inialine vn 13,14 

hd Tm 

 



  

  

Cases (Cont'd): Page 

Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. 
CRY. 1074) sieves svinmuviny vewn vad sinioseesinysms 16,18,20,21 

Swann v. Charlotte-Mecklenburg Board of Education, 

686 FeR.D. "483 (WD NC. 1975) nvnevssnsosenis 17.158,21 

Zurcher v. Stanford Daily, U.S. , 46 U.S.L.W, 

4546 (decided May 31, 1978), reversing, 

550 F.24:464 (9th Clr, 1977) svcevesvevens SERGE EIN 17 

Statutes: 
  

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

1972, 8 718. covsinevsersvessitvtsnnsnssanennen X,3,10,12,15 

20 U.S.C. § 1818 overs rvesvsnsssnscecsossinsocnsonsssnsnens 6 

28 - U.8.C.. 8 1291 Lire csssnnncnnensirennseseresesnsaneness 3 

82 UuS.Cu § T061UID) va crrvsascnstiecrsnscnsssisenvenionsnn se 18 

42 U.S.C 'S 1983 weeevsane an nine Sales aia 's wale re Cees 7 

42 U.S.C. § 1988, Civil Rights Attorney's Fees 
Awards Act OF 10760 wines vusvis snes sinnsne ners i,3,6,7,10,12, 

13,14,15,16,20,21 

Other Authorities: 
  

Rule 88, Fed, R. Civ. Dro. devseessossnseness a aa ie 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., 24 

5888. "1076, VOl. 5 Juste snssimessnsrsvansiviesveives 11.,16.,20 

  

- iii =- 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIFTH CIRCUIT 

  

No. 78-1600 
  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, . 

Cross-Appellants, 

Ve 

D. L. HARRISON, SR., ef al., 

Defendants-Appellants. 

  

On Appeal From The United States District Court 

For The Northern District Of Mississippi 

  

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 PRT aeiey 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 osPbiticabion procedures to determine eliginiiity of 

private schools to receive state owned textbooks, 2 R.A. 39, 

382 ¥. 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. 

 



  

of attorney's fees and costs which will ultimately be paid 

from the coffers of a state treasury, (bk) 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 P. Supp. 133 (N.D. Miss. 1976). 

Defendants appealed from the accompanying March 2, 1976, 

order, 2 R.A. 1l07a. 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 (3th 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 

 



  

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. 

 



  

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 diate oyned Sextioake 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 

 



  

court, 410 ¥, 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 

3/ 
the various requirements of 20 U.S.C. § 1617 and 42 U.S.C. 

§ vour 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 reasom 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.” 

 



  

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 Liztpation 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 

lg 

 



  

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. 

 



  

  

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 = 5.250 

$22,102 

Nabrit 

35 hours x= $550 =. . £1,750 

410 F. Supp . at 142, n. 10. (The average rate is $36.06/hour.) 

Plaintiffs' motion to anend 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 

 



  

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, bt 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, i4. 

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 wv. 

Finnev, U.S. . 46 U.8.5L.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- 

paving 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 i 

 



  

v. Culpepper, 561 F.2d 1177, denving petition for rehearing 
    

with opinion in, 559 9.284.274, 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. Finnev, U.S. wo 46 0.8 LW. 4817 
  

(decided June 23, 1978), the Supreme Court authoritatively 

4/ 
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 0.8.C.. 8 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, et seq. 

—il2 w 

 



  

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." 

5/ 
46 U.S.L.W. at 4821; compare Rainey v. Jackson State College, 

8/ 
551. F.24 672, 675 (5th Cir. 1977). 

  

Second, the Hite opinion specifically disposed of the 

claim shat 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. 

ves’! HR, 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 P.24 757 (5th Cir. 1977). 
  

  

13 io 

 



  

"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 

1% 

 



  

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 

2/ 
1976 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 P.24 274, 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. =e 
  

  

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 
  

ti as antitrust cases, and not 

d rights involved may be nonpecuniar 

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. 9 9444 (C.D. Cal. 1974); and Swann Vv. 

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 

solight by plaintiffs is well within these exemplary hourly rates. 

As noted above, the hours of legal services, novelty of 

the issues, SLEPLan IY, reputation and skill of counsel, and 

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

  

8/ (Cont'a) 

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.28 464 (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- 

inflationary 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., 

Darker Vv, Califano, 443 ¥. 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 5 

 



  

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 
%2/ 

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°2PD 4 10,499, at p. 6131 (DO. 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.” 

11l/ 410 F, Supp. at 142, 

12/ 410 F. Supp. at 138 n. 3. 

- 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 

14/ 

supra 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 alia, Baxter v. Savannah 

Sugar Refining Corp., 495 7.24 437, 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 thle] 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, 1976, 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 sraivional 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 

1s/ 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 

{58h Cir. 1970). 

  

  

16/ See, e.g., Bolton v., Murray Envelope Corp., supra, 553 F.2d 
  

- 00 

 



  

31/ 
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. 

Ix. 

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, denving petition for rehearing with opinion in 
  

  

l6/ (Cont'd) 

at 885 n. 7; Hodge v. Seiler, 558 Fr.24 284, 287 (5th Cir. 

1977); Gore v, Turner, 563 F.28 159, 163 (5th Cir. 1977). 
  

  

17/ 1Issue-by-issue pursuing is contrary to § 1988, see, 

e.dg., 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 ¢ 10,499 

at pp. 6130-6131 (D. D.C. 1975). Overall success of the 
litigation is the test for a "prevailing party." 

  

  

  

  

-Y 

 



  

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 Zespiand costs should 

be reversed. In addition, the court should consider a direct 

award of fees and costs sought by plaintiffs. 

Respectfully submitked, / 

~~ 5% 7m Noni 

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 October 1974 - January 1978 

Fees $47,704.00 Fees $8,475.00 

Costs 4,999.44 Expenses 290.10 

This total does not include post-January 1978 attorney's fees 

and costs of this appeal and related district court proceedings. 

a vs 

 



  

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 39205) 

    

  

BILL LANN LEE 

Attorney for Plaintiffs- 

Appellees, Cross-Appellants 

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