Scott v Winston Salem Board of Education Reply Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
HO. 75-1059

CATHERINE C. SCOTT, et al.,
P1 a in t i f f s -Appe Hants,

v .

WINSTON- SALEM/FORSYTH COUNTY 
BOARD OF EDUCATION, et al.,

Defendants-Appellees.

, Appeal From The United States District Court 
/ For The Middle District Of North Carolina 

Wins ten -Sal era D i v i s ion

REPLY BRIEF FOR APPELLANTS

J. LeVONNE CHAMBERS 
Chambers, Stein & Ferguson

951 S. Independence Boulevard 
Charlotte, North Carolina 28202

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CIIACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Pla.i ntiffs-Appellant



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
NO. 75-1059

CATHERINE C. SCOTT, et al.,
Plaintiffs-Appellants,

v.
WINSTON-SALEM/FORSYTH COUNTY 
BOARD OF EDUCATION, et al.,

Defendants-Appellees.

Appeal From The United States District court 
For The Middle District Of North Carolina 

Winston-Salem Division

REPLY BRIEF FOR APPELLANTS

The School Board's brief in this matter proceeds as if 
there were agreement between the parties, rather than division, 
about a major factor in this case: how the September 19, 1973
Order of the District Court —  which approved the Clerk's Order 
taxing all costs incurred in the matter up to the date of its 
entry, and also awarded counsel fees pursuant to this Court’s 
May 2, 1973 opinion —  is to be interpreted. The entire, detailed 
recitation in our opening Brief (at pp. 23-26) of the circumstances



surrounding the entry of that Order, which we believe demonstrates 
conclusively that no issue of fees for services in the District 
Court proceedings may be said to have been litigated at that 
time, is simply ignored by the appellees. Likewise, appellees 
have chosen to overlook, rather than to rebut, specific authority 
we cited in support of our position. We file this Reply Brief, 
therefore, in order to pinpoint the weaknesses of appellees' 
arguments and to refer the Court to the specific portions of 
our opening Brief which rebut them.

I

The first point appellees attempt to make is that Bradley 
v. School Bd. of Richmond, 416 U.S. 696 (1974), does not support
our position in this matter. The Board's Brief quotes the

/
Supreme Court's description of the issue before it, 396 U.S., 
at 710 (Brief at p. 10) and then states that "[t]he decision 
is clearly inapplicable where the propriety of a fee award has 
been determined and the issue is sought to be reopened as in 
the instant case." But nothing in appellees' Brief supports 
the italicized language except constant repetition of it. Indeed, 
the central issue on this appeal concerns the proper interpreta­
tion of the District Court orders in this case, and whether or 
not plaintiffs' right to counsel fees (apart from the 1972-73 
appeal proceedings before this Court) were, in fact, ever litigated

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before the trial court.

Instead of pursuing this important factual issue, appellees 
shift themes and talk, in the following two paragraphs (pp. 10-11 
of their Brief) about the "final order" requirement of § 718 as 
barring plaintiffs from receiving counsel fees for the period 
prior to December 3, 1971 since the District Court's "final order" 
entered on that date did not "award attorney's fees as requested 
by the plaintiffs1 prayer for relief in the original and amended 
complaints" and "plaintiffs did not move for an award of attorney's 
fees or appeal."

Appellees simply overlook this precise issue addressed in 
our Brief. We respectfully refer the Court to pp. 21-22 thereof, 
where we point out both that appell?mts are not required to 
repeat their prayer for an award of counsel fees at every hearing 
throughout a case, and that the weight of authority is to the 
effect that no denial of a prayer for attorneys' fees should be 
presumed from the entry of substantive orders which are silent 
on the issue. WTe repeat, as we said there, that identical arguments 
have been rejected in Smith v. North Carolina State Bd. of Educ.,
No. 2572 (E.D.N.C., Sept. 26, 1974) and that Bradley "explicitly 
approved of the notion that substantive matters should come first,

1/

1/ Appellees' overly broad generalizations are evident from 
their introduction .to the language quoted from Bradley, in which

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with determination of collateral issues, such as entitlement 
to attorneys' fees, postponed until a more convenient time." 
Appellees fail to discuss these questions.

Instead, their Brief simply repeats the same assertion, 
in slightly modified form, culminating with the statement that 
"all judgments and orders previously entered in this action have, 
in fact, adjudicated and put to rest the question of attorneys' 
fees" (pp. 11-12). There follows several pages in which appellees 
discuss some interesting cases establishing the basic principles 
of res judicata. Unfortunately, this discussion is relevant 
only to an argument that Bradley would not support a collateral 
attack on a final judgment which actually passed upon a counsel

1/ (Continued)
they assert that the Supreme Court "took particular care to limit 
its decision to a situation where the propriety of the previous fee 
award was pending resolution on appeal when the Statute became 
effective." The quoted passage, however, makes clear only that 
the Court was not attempting to enunciate the rule of statutory 
construction which would be applicable in the case of a final 
judgment sought to be reopened (although as we pointed out in our 
initial Brief, pp. 27-29 n. 24, the Court took pains to leave that 
question completely open). The two paragraphs quoted by the Board 
(at p. 10) posit three different settings in which the statute 
might be applied. The last, in the case of a final judgment being
attacked collaterally, is the subject of the second quoted para­
graph. But, as we explained in our opening Brief (pp. 27-29, n. 24), 
the Court described the second situation, with which it was faced in 
Bradley —  application of the statute to modify the result on an
appeal from a district court judgment entered prior to its passage —
as a more difficult (less simple) question than the first hypo­
thetical situation it describes: "retroactive application of § 718

4



fee request (p. 12). But that is not the issue in this case.
As we explained in great detail in our Brief, no Order of the 
District Court ever adjudicated plaintiffs1 prayers for a counsel 
fee award; the only award ever rendered in this case was for 
appellate proceedings and was specifically compelled by the 
mandate of this Court.

Appellees' obfuscation of the issue continues in their 
Brief with another confusing mix of concepts: the "final order"
language of the statute; the "final judgment" concept critical to 
the principle of res judicata; and principles of "finality" 
affecting appealability in the federal judicial system (Appellees' 
Brief, at pp. 14-15). Appellees again have overlooked what the 
Supreme Court was saying, however. The Court adopted the 
appealability concept of "finality" in connection with its 
interpretation of the "final order" language of § 718 in order 
to identify the range of trial court orders which might permissibly 
be the occasion for the "interim" award of counsel fees. See 
Bradley, supra, 416 U.S., at 723. But the Court did not say, by 
any means, that counsel fee awards had to be made simultaneously 
with the entry of such orders. See Bradley, supra, 416 U.S., at 
722-23. Apparently appellees would have this Court follow its

1/ (Continued)
to services rendered prior to its enactment . . . ." And that first
set of circumstances can occur only where a trial court had not yet 
adjudicated the prayer for counsel fees at the time the statute was 
passed —  precisely the circumstances of this case, in our view. We 
do not believe the Supreme Court's opinion can fairly be read to be

5



initial ruling in the Bradley case, where it held that the May
26, 1971 counsel fee award was not proper under § 718 since it 
related to "final orders" (the orders of January 20, 1971 or April 
5, 1971) which had previously been entered —  and therefore the 
award was not made" [ujpon entry of a final order" as it thought 
the statute required. We repeat: there is no requirement of
simultaneity, 416 U.S., at 723.

Appellees close their discussion of res judicata by noting 
that "the conclusiveness of a judgment extends not only to matters 
actually determined but also to other matters which could have been 
raised and determined therein." With this principle of hornbook 
law and treatise (cited by appellees), we have no quarrel. Its 
application to the instant case is a different matter altogether.

/ *

For this is not a suit on a contract which was once 
construed in an earlier suit between the same parties. Appellants' 
counsel fee motion in the District Court was no attempt to impeach 
the judgment of another tribunal, by indirection and collateral 
attack. The original suit was still pending, was actively 
litigated and had not been disposed of. There had never been an 
express adjudication of appellants' repeated prayers for an award

1/ (Continued)
limited to direct review situations; it must and does embrace
long-pending cases in which there has never been an adjudication, 
at the trial level, of a request for counsel fees.

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i



of attorneys' fees (see note 15 to our initial Brief). And the
matter in controversy is collateral to the main subject of the 
suit. The Supreme Court in Sprague v. Ticonic Nat'l Bank, 307 
161, 168-69 (1938), allowed a party to seek counsel fees by 
making the request for the first time after the litigation on 
the merits had been concluded by an earlier Supreme Court review. 
See also, cases cited at note 19, p. 21 of our initial Brief. 
Appellees fail to deal with these cases or with Allegrini v. 
DeAngel-is, 68 F. Supp. 684 (E.D. Pa. 1946), aff1 d 161 F.2d 184 
(3d Cir. 1947), which we cited. In that case a party was permitted 
to move for attorneys' fees even after costs had been finally 
taxed in the case!

Thus, we respectfully submit, appellees fail to make out 
a persuasive case for the application of res judicata or for 
the construction of Bradley and § 718 as inapplicable to this 
case.

II

Appellees argue in the alternative (pp. 16-18 of their Brief) 
that if § 718 is applicable to this action, the District Court 
was correct in declining to award fees because there are "special 
circumstances which would render such an award unjust," Northcross 
v. Board of Educ. of Memphis, 412 U.S. 427, 428 (1973). The 

Supreme Court in Bradley, however, specifically considered and

- 7 -



rejected the same "special circumstances" now advanced by appellees.

The Supreme Court in Bradley did not construe the "special
2/

circumstances" rule of Northcross. See 416 U.S., at 710. It 
did, however, have occasion to consider whether retrospective 
application of § 718 in Bradley would cause "manifest injustice,"
416 U.S., at 716. Unless there is some meaningful distinction 
between circumstances which would "render an award unjust" and 
circumstances in which the application of the statute to support 
an award would result in "manifest injustice," then the Supreme 
Court's reasoning on the latter question should be very persuasive 
on the former.

But the claims made by the Winston-Salem Board are exactly
those of the Richmond Board, which were rejected in Bradley.

/ %
Appellees say it would be unjust to award counsel fees because 
their conduct in the case prior to 1972 was "in good faith" and 
"predicated in large measure upon a quandary as to what the law 
prescribed" (Brief at p. 17). The Richmond Board made a similar 
argument; but the Supreme Court gave it short shrift:

2/ We note, however, that a "good faith conduct" basis for a 
failure to award counsel fees under Title II of the 1964 Civil 
Rights Act (construed in pari passu with § 718, see Bradley, 416 
U.S., at 719) was rejected in Newman v. Piggie Park Enterprises, 
Inc., 390 U.S. 400, 401-02 (1968).

8



. . . [T]here was no change in the substantive 
obligation of the parties. From the outset, 
upon the filing of the original complaint in 
1961, the Board engaged in a conscious course 
of conduct with the knowledge that, under 
different theories, discussed by the District 
Court and the Court of Appeals, the Board could 
have been required to pay [3/] attorneys' fees. 
Even assuming a. degree of uncertainty in the law 
at. that time regarding the Board1 s constitutional 
obligations, there is no indication that the 
obligation under § 718, if known, rather than 
simply the common-law availability of an award, 
would have caused the Board to order its conduct 
so as to render this litigation unnecessary and 
thereby preclude the incurring of such costs.

416 U.S., at 721 (emphasis added). The same reasoning is 
applicable here, as we pointed out in our initial Brief (at pp. 
15-19) .

CONCLUSION
J ------------

/

We respectfully submit that the judgment of the District 
Court should be reversed and the cause remanded, "with instructions 
to determine and award to the plaintiffs . . . reasonable attorneys1
fees" for the period from the inception of this action until the

3/ In a footnote (n. 4 at p. 17) appellees are critical of our 
mention in the initial Brief (n. 16, p. 19) of theories other than 
"obstinate-obdurate" under which fees might have been awarded. The 
point we were making, which appellees have failed to grasp, is the 
same point which the Supreme Court made in Bradley: a retro­
spective award of counsel fees under § 718 is hardly, as the Board 
describes it, "a wholly unexpected burden" since there was always 
a basis in this litigation upon which fees could have been awarded. 
The Board's argument reduces itself to the assertion that it should 
not pay counsel fees because throughout this litigation it endeav­
ored to limit its recalcitrance to conduct which fell just short 
of "obdurate obstinance."

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effective date of § 718, Brewer v. School Bd. of Norfolk, 500
F .2d 1129, 1130 (4th Cir. 1974).

Respectfully submitted,

J. LeVONNE CHAMBERS
Chambers, Stein & Ferguson 
951 S. Independence Boulevard 
Charlotte, North Carolina 28202

JACK GREENBERG 
JAMES M. NABRJ.T, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of April, 1975, I 
served two copies of the Reply Brief for Appellants in the 
above-captioned matter upon counsel for the parties herein, by 
depositing same in the United States mail, first class, postage 
prepaid, addressed as follows:

William F. Maready, Esq. Hon. Andrew A. Vanore, Jr., Esq.
P. 0. Box 2860 P. 0. Box 629
Winston-Salem, North Carolina 27102 Raleigh, North Carolina 27602

P. Eugene Price, Jr., Esq.
Government Center
Winston-Salem, North Carolina 27101

ttorney for Plaintiffs-Appellants10