LDF Lawyers Conference, March 1970 - 1 of 5

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

IN THE

No. 76-1207

REBECCA E. HENRY, et al.,
Plaintiffs-Appellants,

vs.
CLARKSDALE MUNICIPAL SEPARATE SCHOOL 
DISTRICT, et al.,

Defendants-Appellees

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division

RESPONSE TO THE COURT'S LETTER INQUIRIES

JACK GREENBERG 
MELVYN R. LEVENTRAL 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

May, 1977 Attorneys for Plaintiffs- 
Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 76-1207

REBECCA E. HENRY, et al.(
Plaintiffs-Appellants,

vs.
CLARKSDALE MUNICIPAL SEPARATE SCHOOL 
DISTRICT, et al.,

Defendants-Appellees

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division

RESPONSE TO THE COURT'S LETTER INQUIRIES 1 2

1. Should Section 718 of the Emergency School Act, 
20 U.S.C. 1617, be applied retroactively?

2. Is this case more closely analogous to Brewer v. School Board of Norfolk, 500 F.2d 1129 (4th Cir. 
1974), or Scott v. Winston Salem/Forsyth City 
Board of Education, 400 F.Supp. 65 (M.D.N.C.) 
aff'd without opinion, 530 F.2d 969 (4th Cir. 
1975?

3. Were Brewer and Scott correctly decided?



This case does not present an issue of retroactivity.
There was not, for example, a request for fees made prior
to the enactment of §1617, a denial of such fees, an
appeal and final disposition, followed by a request to
reopen and relitigate the fee issue after §1617 was
enacted. Retroactivity was the issue in Scott v. Winston-
Salem Forsyth County Board of Education, 400 F.Supp 65, 67
(M.D. N.C.), aff'd without opinion, 530 F.2d 969 (4th Cir.
1975). There plaintiffs had litigated and recovered
attorneys1 fees for time expended since the inception of
the litigation through June 11, 1973, the court and the
parties had considered the matter closed and plaintiffs,
nine months later, filed a second motion to recover fees

1/
from the inception of the litigation. Nor can there be 
any real dispute that §1617 controls cases in which a 
request for an award of fees (not a request for substantive 
relief as was held by the district court) was pending on, 
or timely entered subsequent to, the date §1617 was enacted. 
That is the clear holding of Bradley, Brewer, supra, and a

1/ The issue of retroactivity arises when a final judg­
ment with all appeals exhausted, is under collateral attack. 
Thus in Linkletter v. Walker, 381 U.S. 618 (1965), the 
exclusionary rule established by Mapp v. Ohio was applied 
prespectively only, and was not available to state prisoner 
whose judgment of conviction had become final prior to Mapp. 
But the Mapp exclusionary rule applied to all cases pending 
at the time of Mapp; Johnson v. New Jersey, 384 U.S. 719 
(1966); See also O'Connor v. Ohio, 385 U.S. 92 (1956); Doughty v. Maxwell, 376 U.S. 202 (1964); United States v.
LaVallee, 330 F.2d 303 (2d Cir. 1964).

2



host of other cases. And both Brewer and Scott were 
correctly decided.

The critical issue before the Court is whether in 
a school desegregation case, a motion for an award of 
fees must be entered early in the litigation or coin­
cidentally with an order requiring the implementation 
of what is perceived to be a final plan, or is a motion 
for an award of fees timely when filed after the equit­
able relief proves efficacious and the litigation nears

1/or reaches final resolution. Through the Clarksdale IV

2/

2/ Howard v. Allen, 368 F.Supp.310, 314-15 (S.C. 1973), 
aff'd without opinion, 487 F.2d 1397 (4th Cir. 1973) cert. 
denied, 417 U.S. 912(1974)(remedial or procedural statutes 
to be applied "retrospectively," to cases pending at the time 
of enactment). United States v. Hauqhton, 413 F.2d 736,738 
(9th Cir. 1969)("Statutes effecting procedural changes, which 
do not otherwise alter substantive rights, generally are con­
sidered immediately applicable to pending cases.") Standard 
Acc. Inc. Co. v. Miller, 170 F.2d 495 (7th Cir. 1948).
Seqars v. Gomez, 360 F.Supp. 50 (D.C. S.C. 1972). Bruner v. 
United States, 343 U.S. 112 (1952); Ex parte Collett, 337
U.S. 55 (1949); Orr v. United States, 174 F.2d 577 (2d Cir. 
1949); In re Moneys Deposited, etc. 243 F.2d 443 (3d Cir. 
1957); Frye v. Celbrezze, 365 F.2d 865, 867 (4th Cir. 1966); 
Bowles v. Strickland, 151 F.2d 419 (5th Cir. 1945); Hoadlev 
v. San Francisco, 94 U.S. 4 (1876); Congress of Racial 
Equality v. Clinton, 346 F.2d 911 (5th Cir. 1964); Rachel 
v. Georgia, 342 F.2d 336 (5th Cir. 1965), aff'd 384 U.S.
780 (1966).
3/ That the litigation had not come to an end is further 
"confirmed by a Motion of Defendants for Order of Dismissal 
filed in the trial court on January 16, 1976. Therein 
defendants acknowledge that the case did not come to a 
conclusion until the school system had been operating,for 
three years, a fully unitary system. See appellants 
Motion for Leave to Supplement the Record [on appeal], 
and order granting same, April 25, 1977, (per Tjoflat,
C.J) .

3



thislanguage quoted in the Court's letter inquiry,
Court has already resolved this critical issue in 
plaintiffs' favor; i.e., the Court, in effect, held that 
the litigation was drawing to a close with Clarksdale IV ^ 
and that a motion for fees was, at that point, appropriate. 
Accordingly, Clarksdale IV indeed precludes the district 
court holding that the litigation "had come to an end 
before a request for fees had been made. 11 Moreover, the 
Clarksdale IV holding is entirely responsive to consider­
ations controlling school desegregation and equity litigation 
generally.

In Johnson v. Combs, 471 F.2d 84, 87 (5th Cir. 1972)

1 /

4/ What effect does the following language in Clarksdale IV 
have on the present litigation;

The district court shall also grant a 
hearing to determine whether or not 
the appellants’ actions in this lawsuit 
were carried out in an "unreasonable 
and obdurately obstinate" manner in the 
years preceding July 1, 1972, so as to 
entitle appellees to be awarded reason­
able attorneys' fees for services before 
that date. I_d. 585-86.

More specifically, is the finding of the district court 
that this litigation had come to an end before a request for 
fees had been made precluded by the above language?
5/ On remand the district court, on September 18, 1974, 
entered an order requiring the submission of proof of 
attorneys' fees in accordance with the mandate of Clarksdale 
IV. (A.280-82) Plaintiffs, after obtaining extensions of^ 
time, filed their affidavits in Support of Motion for Award 
of Fees on January 10, 1975 (A.281) and January 22, 1975 
(A.287) .

4



(rejected on other grounds in Bradley v. Richmond School 
Board, 416 U.S. 696, n. 20 (1974)), this Court held that
§1617 allows fee awards only "upon 'the entry of a final 
order.' . . . Since most school cases involve relief of
an injunctive nature which must prove its efficacy over a 
period of time it is obvious that many significant and 
appealable decrees will occur in the course of litigation 
which should not qualify as final in the sense of deter­
mining the issues in controversy." See also, Appellants' 
Reply Brief, pp. 7-11.

In Sprague v. Ticonic National Bank, 307 U.S. 161,
168 (1939) 83 L.Ed. 1184, plaintiff first requested attor- 
neys' fees only after the conclusion of the case on the merits; 
the trial court held that the request for fees came too late. 
The Supreme Court reversed,holding through Mr. Justice 
Frankfurter:

Certainly the claim for . . . [attorneys'
fees] was not directly in issue in the 
original proceedings by Sprague . . . .
Its disposition . . . could be implied
only if a claim for such . . . [fees] was
necessarily implied in the claim in tne 
original suit, and its failure to ask for 
such . . . [fees] an implied waiver.
These implications are repelled by the 
basis on which such costs are granted.
They are not of a routine character like 
ordinary taxable costs; they are contingent 
upon the exigencies of equitable litigation, 
the final disposition of which in its entire 
process including appeal place such a claim 
in much better perspective than it would have 
at an earlier stage. Such are the consider­ations which underlay the decision in Internal 
Improv. Fund, v. Greenbough 105 U.S. 527,

5



in holding that an order allowing 
. . . [attorneys fees] was a final
judgment for purposes of appeal 
because 'the inguiry was a collateral 
one, having a distinct and independent 
character.
(Emphasis added)

Finally, the Court asks whether "plaintiff's request 
for attorneys' fees, initially made in their brief on 
appeal in Henry v. Clarksdale M.S.S.D., 480 F.2d 533 (5th 
Cir. 1973) (Clarksdale IV), [was] sufficient to put fees 
incurred prior to that time in issue," and whether "due 
process considerations preclude such an application."

aWe have already argued that/motion for fees after
6/

remand of Clarksdale IV would have been timely; such 
a motion was unnecessary since this Court, through its 
mandate in Clarksdale IV, directed the district court to 
consider an award of fees. In any event, under the 
reasoning of Bradley there is no violation of due process 
even assuming "a delay."

6/ Plaintiffs' 1954 Complaint prayed for "costs herein 
and such further, other, additional or alternative relief 
as may appear to the Court to be equitable and just."
(A.21-22) The Supreme Court has held that a challenge 
to a private club's membership practices included, through 
"a customary prayer for other relief" an attack on policies 
for serving guests of members. Plaintiffs request for costs and 
and other relief put defendants on notice that attorneys fees 
could be sought. Irvis v. Moose Lodge, 407 U.S. 153, 170 
(1972). Moreover, in light of Rule 54(c), FRCP, a court is 
required to award all relief to which plaintiffs are entitled, 
even when it is not specifically requested in a pleading, provided 
there is no prejudice to the other party. Albemarle Paper Co. 
v. Moody, 422 U.S. 405, 424 (1975). As to whether Clarksdale 
defendants are prejudiced by an award of fees, see pp. 7-9 
below.

6



The Bradley Court held that only upon proof of 
"manifest injustice," could there by a departure from 
the general rule that "a court is to apply the law in 
effect at the time it renders its decision." The 
Court undertook a three-part inquiry to determine under 
what circumstances "manifest injustice" arises from the 
application of the rule and, in the course of that 
inquiry/fully explored all the "due process" arguments 
available to a school district. Bradley, supra, 416 
U.S. at 716-722. The Court began by noting that 
"manifest injustice" will generally arise "in mere private 
cases between individuals," or when as in Greene v. United 
States, 376 U.S. 149, the government attempts to deprive 
an individual of a matured and fully litigated claim 
through the retroactive application of a new regulation, 
416 U.S. at 717, and n. 24. In a school desegregation 
case: (a) the "parties consist, on the one hand, of the 
School Board, a publicly funded governmental entity, and, 
on the other, a class of children whose constitutional 
right to a nondiscriminatory education has been advanced 
by . . . [the] litigation;" it is "not appropriate to 
view the parties as engaged in a routine private lawsuit" 
and plaintiffs are in fact representatives of the entire 
community; (b) a "publicly elected school board" has no 
"matured or unconditional right" to the "funds allocated 
to it by the taxpayers," which funds "were essentially 
held in trust for the public," (c) any claim that

7



"unanticipated obligations may be imposed upon . . .
[the school board] without notice or an opportunity
to be heard" has no cogency:

Here no increased burden was imposed 
since §718 did not alter the Board's 
constitutional responsibility for 
providing pupils with a nondiscrimina- 
tory education. Also there 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, . . .
the Board could have been required to 
pay attorneys' fees. Even assuming a degree of uncertainty in the law at 
that time regarding the Board1s con­
stitutional 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 . . .
[alter] its conduct so as to render 
this litigation unnecessary and there­
by preclude the incurring of such costs.
The availability of 718 to sustain the 
award of fees against the Board there­
fore merely serves to create an addition­
al basis or source for the Board's 
potential obligation to pay attorney's 
fees. It does not impose an additional 
or unforeseen obligation upon it.
416 U.S. at 721.(Emphasis added.)

The three part inquiry undertaken in Bradley and in 
particular its third aspect, quoted fully immediately 
above, applies to the Clarksdale defendants. Assuming 
that our prayer for costs in the original complaint (see 
n.6, above), was not sufficient to put defendants on 
notice that attorneys' fees may be sought (an assumption

8



rejected by Bradley), there is no indication that a 
lack of such notice injured these defendants because 
they hold funds in trust for the public and because 
only the uninitiated would ask whether this school 
board and this superintendent would have defended the 
case differently if only they knew that they might be 
held liable for plaintiffs' attorneys' fees.

Respectfully submitted,

JACK 'GREENBERG
MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, N.Y.10019

Attorneys for Plaintiffs- 
Appellants.

CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of May, 1977,

I caused to be served by United States mail, postage prepaid, 
a copy of the foregoing Appellants Response to the Court's 
Letter Inquiries upon counsel for appellees as follows:

Semmes Luckett, Esq.
121 Yazoo Avenue 
Clarksdale, Mississippi 38614

Attoriley for Plaintiffs-

9