Pitts v. Freeman Brief for Plaintiffs-Appellants

    IN THE

ELEVENTH CIRCUIT 

No. 84-8662

UNITED STATES COURT OF APPEALS

FOR THE

WILLIE EUGENE PITTS et a l ■ ,

P l a i n t i f f s - A p p e l l a n t s

v .

ROBERT FREEMAN, et_ al .

D e f e n d a n t s - A pp e l l e e s

On Appeal From The United States District  Court 
for the Northern District of Georgia 

Atlanta Division

BRIEF FOR PLAINTIFFS-APPELLANTS

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
THEODORE SHAW

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

DONALD P. EDWARDS
Thomas, Kennedy,
Sampson & Edwards, P.C. 
1200 First 
Federal Building 
40 Marietta Street, N.W. 
Atlanta, Georgia 30303 
(404) 688-4503

Attorne ys for Plaintif fs- 
Appellants

NOT FNTTTI ED TO PREFERENCE



IN THE

ELEVENTH CIRCUIT 

No. 84-8662

UNITED STATES COURT OF APPEALS

FOR THE

WILLIE EUGENE PITTS, et a l .,

Plaintiffs-Appellants 

v .

ROBERT FREEMAN, e_t al .

Defendants-Appellees

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for 

plai nt if fs-appellants certifies that the following listed parties 

have an interest in the outcome of this action.

1. The plaintiffs-appellants are:

Willie Eugene Pitts, a minor, by his mother and next friend, 

Mrs. Anna Mae Pitts; Victor Martin; a minor, by his father and 

next friend, Robert L. Martin, Kelvin, Felicia, Alfred, Orma, and 

Alfredia Henderson, minors, by their mother and next friend 

Rebecca Henderson; Patricia Ooyce Reeves, a minor, by her mother 

and next friend, Mrs. Rosa Lee Reeves; Anthony Reed and Cecilia 

Searcy, minors, by their mother and next friend, Mrs. Ouanita 

Searcy; Ned and Becky Stone, minors, by their father and next



friend, Alfred E. Stone, Jr.; Soy, Bridget, and Sandra Becker, 

minors, by their father and next friend, Louis E. Becker; Monica 

Rocker, a minor, by her father and next friend, Arthur "Rocks" 

Rocker; John Johnson and Devett Smith, minors, by their mother 

and next friend, Ms. Eunice A. Smith; Frankie Prather, a minor, 

by her guardian and next friend; Cynthia Scott, by her father and 

next friend, Major Scott; Princess Mills, a minor, by her father 

and next friend, Roger Mills; Mark Anthony Wharton, a minor, by 

his mother and next friend Doris Patillar, all of whom are minor 

children, and their parents, attending the public schools of 

DeKalb County, Georgia, on behalf of themselves and the class of 

black children attending those schools.

2. In addition the attorneys representing the 

plaintiffs, Donald P. Edwards and the NAACP Legal Defense and 

Educational Fund, Inc., have an interest in that they are 

entitled to receive any additional fees that may be forthcoming.

3. The defendants are Robert Freeman, Superintendent, 

Lyman Howard, Norma Travis, and Phil McGregor, members of the 

Dekalb County Board of Education, a public body corporate under 

the laws of Georgia.

These representations are made pursuant to Rule 

22(f)(2) of the Local Rules for the United States Court of 

Appeals for the Eleventh Circuit in order that judges of this 

Court, inter alia, may evaluate possible disqualification or

2



recusal .

Respectfully submitted,

Appellants



IN THE

ELEVENTH CIRCUIT 

No. 84-8662

UNITED STATES COURT OF APPEALS

FOR THE

WILLIE EUGENE PITTS et al . ,

STATEMENT REGARDING PREFERENCE

Plaintiffs-Appellants

v .

ROBERT FREEMAN, et al.

Defendants-Appellees

In a c c o r d a n c e  with Local Rule 22(f)(3) plaintiffs- 

a p p e l l a n t s  state that this case is not entitled to preference in

disposition and processing.

ounsel for Plaint iffs- 
Appellants



IN THE

ELEVENTH CIRCUIT 

No. 84-8662

UNITED STATES COURT OF APPEALS

FOR THE

WILLIE EUGENE PITTS ejt al . ,

Plaintiffs-Appellants

v .

ROBERT FREEMAN, ejt al ■

Defendants-Appellees

STATEMENT REGARDING ORAL ARGUMENT

In accordance with Local Rule 22(f)(4) piain tiffs -appe11 ants 

suggest that the decision of the court below rests on clear legal 

error and may be summarily reversed.

Respectfully submitted,

Counsel for Plaintiffs- 
Appellants



Table of Contents

Page

T a b l e o f C a s e s  ii

Question Presented 1

STATEMENT OF THE CASE 2

1. Proceedings in a the Court Below
and Relevant Facts 2

2. Standard of Review A

SUMMARY OF ARGUMENT A

STATEMENT OF JURISDICTION 4

ARGUMENT

I. THERE WAS NO "FINAL JUDGMENT"
WITHIN THE MEANING OF THE RULE
OR THE STATUTE 5

II. THE LOCAL RULE IMPERMISSIBLY 
DISFAVORS SECTION 1988 FEE
APPLICATIONS 8

CONCLUSION 9

CERTIFICATE OF SERVICE



Table of Authorities

C a s e s : Page

Bradley v. School Board of the City of Richmond,
416 U.S. 696 ( 1 9 7 4 ) ...............................  9

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) . . .

James v. Stockham Valves & Fittings Co., 559
F . 2d 310 (5th Cir. 1977 ) .......................  9

McDonald v. Schweiker, 726 F.2d 311 (7th Cir.
1 9 8 3  ) ......................................................................................................  6

Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) ............................................. 7

Rodgers v. United States Steel Corp., 508 F.2d 
152 (3rd Cir. 1975) ..........................

Sprague v. Ticonic National Bank, 307 U.S. 161
(1939) ..........................................  * 5

White v. New Hampshire Dept, of Employment
Security, 455 U.S. 445 ( 1982 ) ............  5 , 7

Other A u t h o r i t i e s :

42 U.S.C. § 1 9 8 1 .....................................  8

42 U.S.C. § 1 9 8 8  ....................................  Pa s s i .m

42 U.S.C. § 2000e(5)(k)   8

H. Rep. 94-1558 (94th Cong., 2d Sess. ,
1 9 7 6 ) ........................................... 6 > 9

S. Rep. 94-1011 (94th Cong., 2d Sess.,
1976 ) .........................................  6 > 9

20 U.S.C. § 1 6 1 7 ................................... 9



Other A u t h o r i t i e s : Page

20 U.S.C. § 3205 ...................................  9

20 U.S.C. § 3863 ...................................  9

28 U.S.C. § 2071 ...................................  5

28 U.S.C. § 2072 ...................................  5



IN THE

because 

order as

ELEVENTH CIRCUIT 

No. 84-8662

UNITED STATES COURT OF APPEALS

FOR THE

WILLIE EUGENE PITTS, et al . ,

Plaintiffs-Appellants

v .

ROBERT FREEMAN, e_t al .

Defendants-Appellees

BRIEF FOR PLAINTIFFS-APPELLANTS

QUESTION PRESENTED

Did the District Court err in denying counsel fees 

motion was not filed within 15 days after entry of an 

provided by local rule, but where an appeal had been

taken from part of that order?



STATEMENT OF THE CASE

1. Proceedings in the Court Below and Relevant 
Facts

This is a school desegregation case which has been 

pending in the district court since 1968. Following the entry of 

an initial desegregation plan in 1969, there have been a variety 

of proceedings to enforce aspects of the plan and/or to seek 

further relief. ^

On February 29, 1984, the district court entered a 

judgment finding in favor of the plaintiffs with regard to issues 

related to one of the schools in the district and against 

plaintiffs with regard to the issues relating to another one of 

the schools. (R.E. 16.) On March 23rd, the plaintiffs filed a 

timely notice of appeal from that part of the judgment denying 

relief as to the one school. (_Id_.) Subsequently, on May 30, 

1984, plaintiffs filed a motion for an award of attorneys' fees 

and costs relating to that part of the order of February 29th 

which found in their favor. (Id . )

Defendants objected to fees and the court, on duly 

11th, denied attorneys' fees on the sole ground that the plain­

tiffs had failed to file the motion within the 13 day period 

provided by local rule for filing attorneys' fees when they are

See R.E. 1-17. During one period of time the case was consoli­
dated with others seeking an inter-district desegregation plan 
for the Atlanta area.

2



sought under 42 U.S.C. § 1988. 2 In its order the Court

rejected plaintiffs' argument that since an appeal was pending 

there was no final judgment within the meaning of the Rule or the

statute. (R.E. 40-44.)

2 ~
The text of Rule 420 in its entirety is:

Rule 420

CIVIL RIGHTS ATTORNEY'S FEES

421.1 Fee Motions. Any party 
seeking an award of attorney's fees 
pursuant to the Civil Rights 
Attorney's Fees Award Act of 1976,
42 U.S.C. § 1988 must file a 
motion accompanied by briefs and 
appropriate affidavits seeking such 
recovery within fifteen (15) days 
of the entry of the final judgment 
as to the party seeking such 
a w a r d .

421-2 Waiver of Fees. Failure to 
comply with the provisions of this 
rule will be construed as a waiver 
and abandonment of any claims to 
recover attorney's fees pursuant to 
42 U.S.C. § 1988.

42 U.S.C. § 1988 provides, in pertinent part,

In any action or proceeding to 
enforce a provision of sections 
1977, 1978, 1979, 1980, and 1981 
of the Revised Statutes, Title IX 
of Public Law 92-318 . . .  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.

3



Standard of Review2_.

The court below erred as a matter of law.

Summary of Argument

I .

the local rule here in question must be read so as to 

be compatible with the purposes of the Civil Rights Attorneys'

Fee Act. That Act does not require that an application for fees 

be made until after the entering of a final judgment disposing of 

the action. Since an appeal had been filed from part of the 

judgment at issue, there was no such final judgment, and the time 

period provided for in the local rule had not commenced running.

II .

The local rule does not apply to all fee applications, 

but only subjects ones under Section 1988 to an unusually short 

time period with the forfeiture of all right to a fee upon its 

expiration. Such a disfavored treatment of applications under 

the Civil Rights Attorneys' Fees Act of 1976, in light of its 

remedial purpose, is not permissible.

STATEMENT OF JURISDICTION

Jurisdiction is based on 28 U.S.C. § 1291, this being 

an appeal from a final order of the court below.

4



ARGUMENT

I .

THERE HAS BEEN NO "FINAL JUDGMENT" WITHIN THE MEANING OF 
THE RULE OR THE STATUTE.

Ordinarily, attorneys' fees are sought as part of the 

costs in an action and therefore can be sought within a rea­

sonable time following the entry of a final judgment. See Sprague 

v. Ticonic National B a n k , 307 U.S. 161 (1939); White v. New 

Hampshire Dept, of Employment S e c u r i t y , 435 U.S. 445 (1982). 

Therefore, in the absence of a particular rule, fees need not be 

sought within a specific time period, such as the ten days 

allotted for a motion to alter or amend a judgment. White v. New 

Hampshire Dept, of Employment S e c u r i t y , s u p r a .

Further, while a district court may provide by rule for 

a time within which fees should be sought, such a rule is not 

jurisdictional and must be applied in a manner consistent with 

the purposes of the Civil Rights Attorney's Fees Act. For just 

as the Federal Rules themselves "shall not abridge, enlarge, or 

modify any substantive right", 28 U.S.C. § 2072, local rules must 

be "consistent with Acts of Congress". 28 U.S.C. § 2071. See, 

Rodgers v. United States Steel C o r p . , 508 F.2d 152 (3rd Cir. 

1975); c f ., Gulf Oil Co. v. B e r n a r d , 452 U.S. 89 (1981). The 

legislative history of that Act makes it clear that a prevailing

5



party may seek fees at the end of litigation o_r at reasonable 

intervals during the litigation, at his or her option. Thus, 

although it is open to a party to seek interim fees, the Act 

clearly contemplate an award of fees at the termination of 

litigation .3

Such a reading of the Act is fully consistent with the 

language of the local rule relied upon by the court below, which 

speaks of "the final judgment" in an action. Here, an appeal had 

been taken from part of the order which gave rise to the right to 

award of fees. However, until the appeal was completed there was 

in fact no "final judgment" in the action as a whole, in the 

sense of a judgment terminating the action. See McDonald v. 

S c h w e i k e r , 726 F.2d 311 (7th Cir. 1983). Thus, although under the 

statute plaintiffs had the option of seeking fees after any 

interim order, they were also free to wait for the ter­

mination of the pending appeal or, indeed, the entry of a final

"The phrase 'prevailing party' is not intended to be limited to 
the victor only after entry of a final judgment following a full 
trial on the merits." H. Rep. 94-1338 (94th Cong. 2d Sess., 
1976), p. 7. The clear implication of course, is that fees 
may be sought after a final judgment. See also, S. Rep. No. 
94^1011 (94th Cong., 2d Sess., 1976), p. 5 ("In appropriate 
circumstances, counsel fees may be awarded pendente lite") 
(emphasis added.)

6



order terminating the action in its entirety, and then to 

seek f e e s . ^

Since no such final order or judgment had been entered 

the fee application was not untimely within the terms of the 

local rule when read, as it must be, in conjunction with the 

purposes and legislative history of the fees statute. The Act, 

of course, was designed to encourage and facilitate the bringing 

of civil rights litigation by making attorneys' fees freely 

available to prevailing plaintiffs. Cf., Newman v. Piggie Park 

E n t e r p r i s e s , 390 U.S. 400 (1968)). The importation of a strict 

rule of forfeiture for failure to comply with a rule that is 

ambiguous in its language would defeat the purposes of the 

statute and therefore cannot be allowed. 5

4
For example, in a Title VII class action plaintiffs could seek 
interim fees after a finding of class-wide discrimination at 
Stage I (James v. Stockham Valves & Fittings C o . , 539 F.2d 310 
(5th Cir. 1977)), or wait until a final judgment disposing of 
individual claims after Stage II.

5
It should be noted that there was no showing that defendants were 
prejudiced in any way by the filing of the fees motion some three 
months after the entry of the February 29 order. S e e , e . g . ,
White v. New Hampshire Dept, of Employment S e c u r i t y , s u p r a .
(4-1/2 month delay) .

7



THE LOCAL RULE IMPERMISSIBLY DISFAVORS SECTION 1988 
FEE APPLICATIONS

It is important to note that the local rule at issue 

does not apply to all attorneys' fees applications, or, indeed, 

even to applications in all civil rights cases. Rather, out of 

the nearly 100 federal statutes which provide for an award of 

fees to a prevailing party, 6 it singles out, without explanation 

or justification, only fee awards sought under 42 U.S.C. § 1988. 

Thus, for example, in an action seeking the redress of employment 

discrimination under Title VII of the Civil Rights Act of 1964, 

no 15-day limitation would apply, whereas one would if the action 

were founded solely on § 1981. On the other hand, if such an 

action were based alternatively on Title VII and on 42 U.S. C. § 

1981 the rule would apparently preclude an award of fees under 

Section 1988 while allowing an award under 42 U.S.C. §

2000e(5 ) ( k ) .

In school desegregation cases, fees have been available 

under not only 42 U.S.C. § 1988, but also under 20 U.S.C. §

I I .

See, e.g., 5 U.S.C. § 552  ( a ) ( 4 ) ( E ) ;  7 U.S.C. § 2 1 0 ( f ) ;  11 U.S.C. 
§ 1 0 4 T a T ( l ) ;  11 U.S.C. § 205  ( c ) ( 1 2 ) ;  12 U.S.C. § 17 8 6 (•) ; 15 
U.S.C. § 1 5 ;  15 U.S.C.§ 1 6 4 0 ( a ) ;  15 U.S.C. § 2 3 1 0 ( d ) ( 2 ) ;  17 
U.S.C. § 5 0 5 .

8



1617.7 See Bradley v. School Board of the City of Richmond, 416

U.S. 696 (1974). However, the local rule would have barred an 

award under § 1988 if the motion were filed more than 15 days 

following the entry of a judgment, while allowing an award under 

the alternative section.

The entire purpose of 42 U.S.C. § 1988, however, was to 

broaden the availability of fees and to ensure that fee awards 

under all civil rights statutes would be governed by the same 

standards See S. Rep. 94-1011, s u p r a , at p. 4 (the Act "makes our 

civil rights laws consistent.") H. Rep. No. 94-1558, s u p r a , at 9 

(the effect of the Act will be "to achieve uniformity in the 

civil rights statutes"). A rule which singles out § 1988 for 

disfavored treatment and subjects such awards to forfeiture if 

not sought under an extremely short time period, is wholly 

inconsistent with Congress' purpose in enacting this statute and 

cannot be allowed.

CONCLUSION

For the foregoing reasons, the decision below should be

In 1978, 20 U.S.C. § 1617 was repealed and replaced by a simlilar 
fees provision, 20 U.S.C.§ 3205. P.L. 95-561, Title VI, § 
601(b)(2) (Nov. 1, 1978). Effective Oct. 1, 1982, 20 U.S.C. § 
3205 was repealed. See, 20 U.S.C. § 3863.

9



r e v e r s e d .

Respectfully submitted

JS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
THEODORE SHAW

99 Hudson Street
16th Floor
New York, N.Y. 10013 
(212) 219-1900

DONALD P. EDWARDS
T h o m a s , Kennedy,
Sampson & Edwards, P.C. 
1200 First 
Federal Building 
40 Marietta Street, N.W. 
Atlanta, Georgia 30303 
(404) 688-4503 

Attorneys for Plaintiffs- 
Appellants



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the Brief 

for Appellants and the Record Excerpts in this case by depositing 

the same in the United States mail, first class postage pre-paid, 

addressed to:

2  c/A
Dated this a* ;
day of September, 1984

Gary M . Sams, Esq .
Suite 450
1 West Court Square 
Decatur, Georgia 30030 
Attorney fox Defend ants-Ap pe11ees

.3
A11 o r n e y for PTaintif f s- 

Appellants