Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Supplemental Brief on Rehearing of Plaintiffs-Appellants, Cross-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

Nos. 83-5175/5243
ROBERT W. KELLEY, et al.,

Plaint iffs-Appellants, 
Cross-Appellees,

v.
METROPOLITAN COUNTY BOARD OF 

EDUCATION, et al.,
Defendants-Appellees, 
Cross-Appellants.

On Appeal from the United States District Court 
' for the Middle District of Tennessee 

Nashville Division
SUPPLEMENTAL BRIEF ON REHEARING OF PLAINTIFFS- 

APPELLANTS, CROSS-APPELLEES

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
THEODORE M. SHAW 

16th Floor 
99 Hudson Street 
New York, New York 10013

AVON N. WILLIAMS, JR.
RICHARD H. DINKINSWilliams & Dinkins

203 Second Avenue, North
Nashville, Tennessee 37201

Attorneys for Plaintiffs-Appellant 
Cross-Appellees.



INDEX

Page
Table of Authorities................................  i1
STATEMENT OF THE ISUES ON REHEARING ................  2
STATEMENT OF THE C A S E ............................... 3
SUMMARY OF ARGUMENT ................................... 6
ARGUMENT .............................................

I. THERE IS NO BAR TO THE AWARD OF FEES FOR
WORK DONE PRIOR TO 1971....................  7
A. Fees Are Mandated to Carry Out The
Purposes of the Fees Act........... .. 7
B. The Effect of the 1971 Order.. . . .  8

II. PLAINTIFFS-APPELLANTS ARE ENTITLED TO
FEES FOR EARLIER SUCCESSFUL APPEALS ........  11
A. The Decision in Buian Does Not Bar
Recovery............................  • • 11
B. Plaintiffs Appealed the Denial of 
Their Request for Fees and Expenses For 
Services Rendered by NAACP Legal Defense
Fund Attorneys..........................  13

III. THE DISTRICT COURT WAS CORRECT IN ASSESS­
ING FEES AGAINST THE SCHOOL DISTRICT FOR
WORK RELATED TO INTERVENING PARTIES . . . .  15

Conclusion........................................... 16
Certificate of Service .............................. 17



Page
Cases
Bradley v. School Board of the Cityof Richmond, 416 U.S. 696 (1974).................. 6, 9
Brown v. Board of Education, 347 U.S. 483 (1954) . . . .
Buchanan v. City of Jackson, 6th Cir., No. 81-5333 . . .  11
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) 6,11,12,13,14
Green v. Francis, 6th Cir., No. 81-5870 ................  1 1
Green v. Holt, 6th Cir. No. 80-1548 ....................  1 1
Hanrahan v. Hampton, 446 U.S. 754 ( 1980)..............  12
Johnson v. Combs, 471 F.2d 84 (5th Cir. 1972 ) ..........  9
Kelley v. Metropolitan County Board of Education, 687 F.2d

814 (6th Cir. 1982)..............................  5
King v. Roberts, 6th Cir., No. 82-5427 ................  1 1
Layson v. Metts, 6th Cir. No. 82-551 8 ................  1 3
Leaoue of Women Voters of Tennessee v. Collins, 6th Cir.,

No. 81-5625 ....................................... 1 1
Mims v. Wilson, 514 F.2d 106 (5th Cir. 1975)..........  12
Northcross v. Bd. of Education of Memphis City Schools,

611 F. 2d 624 (6th Cir. 1979)...................... 4, 1 0
Pekarskv v. Ariyoshi, 575 F. Supp. 673 (D.C. Hawaii

1983)............................................. 1 6
Riddell v. National Democratic Party, 712 F.2d 165

(5th Cir. 1983)................................... 1 5
Rock v. Norfolk W. Ry., 473 F.2d 1344 (4th Cir. 1973) . 12
Rowe v. Cleveland Pneumatic Co., 6th Cir., No. 80-1407 . 11
Sprague v. Ticonic National Bank, 307 U.S. 161 (1939) . . 9
White v. New Hampshire Dept, of Employment

Security, 455 U.S. 445 (1982)....................  8

Table of Authorities

i



Statutes
20 U.S.C. § 1617.......................................  *
20 U.S.C. § 3205 .......................................  * 5
20 U.S.C. § 3863 .......................................  5
28 U.S.C. § 2412(d) (1) ( B ) .............................  11
42 U.S.C. § 1988 .......................................passim
Other Authorities
H. Rep. 94-1558 (94th Cong. 2d Sess., 1976)   30
S. Rep. No. 94-1011 (94th Cong., 2d Sess., 1976) . . . .  10

ii



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 83-5175/5243

ROBERT W. KELLEY, et al.,
Plaint iffs-Appellants, 
Cross-Appellees,

v.
METROPOLITAN COUNTY BOARD OF 
EDUCATION, et al.,

Defendants-Appellees, 
Cross-Appellants.

On Appeal From the United States District Court for the 
Middle District of Tennessee 

Nashville Division
SUPPLEMENTAL BRIEF ON REHEARING OF PLAINTIFFS-APPELLANTS-CROSS-APPELLEES

Because the original briefs have discussed the issues 
in this case in detail, this Supplemental Brief will summarize 
the contentions of the plaint iffs —appellants with regard to the 
issues raised by the petitions for rehearing and will in parti­
cular respond to arguments made by the defendants in their 
petition for rehearing. Thus, we would respectfully refer the 
Court to the opening brief of plaint iffs-appellants for a 
detailed statement of the history of this litigation and of the 
facts pertinent to the attorneys' fees issue. Again, here, we 
will simply highlight the particular facts that believe are 
dispositive of the issues before the Court.



STATEMENT OF THE ISSUES 
ON REHEARING

A.
Issues Raised by The Petition for Rehearing of Defendants-Appellees, Cross-Appellants

1. Whether the 1971 order of the district court cut 
off the availability of attorneys' fees and costs for the work 
done prior to the date of that order?

2. Whether plaintiffs-appellants could obtain 
attorneys' fees from the district court for work done on earlier
successful appeals to this Court?

3. Whether the district court erred in awarding fees 
against defendants-cross appellants for work done in connection 
with issues relating to claims raised by other parties?

B.
Issue Raised by The Protective Petition for Rehearing of Plaint iffs-Appellants
4. Whether fees were recoverable by the NAACP Legal

Defense and Educational Fund, Inc., for work done on successful
appeals?

2



In addition to the above issues, plaint iffs-appellants
were successful before the panel with regard to that part of tne

1
third issue raised in their brief relating to the setting of 
hourly and daily rates for plaintiffs' attorneys. The defen- 
dants-cross-appellants excluded this question from their petition 
for rehearing (p. 5, n. 7). Similarly, plaint iffs-appellants did 
not raise in their petition for rehearing a number of issues 
decided adversely to them by the panel. We refer tne Court to 
our main brief at pp. 32-39 for a discussion of these issues.

STATEMENT OF THE CASE 
A. The Finality of the 1971 Order

As the panel decision correctly decided, it is clear 
that the order entered by the district court in 1971 neither 
intended to nor in fact did dispose of the issues in this case.
In 1971, the district court entered a desegregation plan proposed 
by the Department of HEW to which both the plaintiffs and the 
defendants objected and from which both appealed. This Court 
when it affirmed the district court made it clear that it 
regarded the plan as merely a beginning to the process of 
desegregation and that essentially it deserved an opportunity to

"3. Whether the District Court erred by improperly ignoring the 
standards for awarding fees for this Circuit set forth in North- 
cross v. Board of Education of Memphis City Schools, 611 F.2d 624 
(1979)?"

3



2
see to what extent it could dismantle the dual school system.
The opinion made it clear that further proceedings, including 
modification as well as enforcement of the plan, was contem­
plated. Thus, this Court noted that a "decree in a school 
desegregation case is always subject to modification on the basis 
of changed circumstances" (463 F.2d at 746), that "any adverse 
effects . . .  of the plan can, of course, . . .  be brought to the 
District Court's attention" (_id. ) , and that:

The District Court order in this case specifically 
retained jurisdiction. Thus, upon our affirmance, 
the door of the District Court is clearly open (as 
it has been!) to the parties to present any unanticipated problems (not resulting from failure 
to comply with its order) which may have arisen or 
may arise in the future.

463 F.2d at 747.

There was never a break in the conduct of this liti­
gation as there was in Northcross v. Board of Education of 
Memphis City Schools, 611 F.2d 624 (6th Cir. 1979). There, in 
contrast, the -parties agreed to the entry of a plan in contem-

The Court noted:

The order of the District Judge is the first comprehensive 
and potentially effective desegregation order ever entered 
in this litigation. The District Judge tells us that now 
the remedy is at least in sight.

463 F.2d 732, 734 (6th Cir. 1972) (emphasis added).

4



plat ion of it being the final step in the process of desegre­
gating the school system. The case was reopened after new 
decisions by the Supreme Court established new standards for 
school desegregation plans. In the present case, there were 
further proceedings on a continuous basis which culminated in the 
modification of the 1971 plan because it utterly failed to meet
the fundamental constitutional standard that all vestiges of3
state-imposed segregation be eliminated.

In the meantime, in early 1974, after the denial of 
certiorari by the Supreme Court from the 1972 order of this 
Court, the plaintiffs filed their initial motion for attorneys 
fees. This motion was filed pursuant to the provisions of 20 4
U.S.C. § 1617, a statute since superseded by 42 U.S.C. § 1988, 
which was intended to apply the same private attorney general 
standard for recovery of fees in school cases as governed in 
other civil rights cases. The new fees statute, wnich was 
enacted in March of 1972, was clearly applicable to this litiga-

Kelley v. Metropolitan County Board of Education, 687 F.2d 814, 
876 (6th Cir. 198 2) . As the Court noted, "In large^ measure, the 
pupil assignment components of this plan do not withstand 
constitutional scrutiny." _Id. at 817.
In 1978, 20 U.S.C. § 1617 was repealed and replaced by a similar 
fee 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.

5



tion since its effective date occurred while the case was in 
litigation and, indeed, while the appeal was pending. Bradley v. 
School Board of the City of Richmond, 416 U.S. 696 (1974).

B. Fees on Appeal
The de.fendants-appellees in their petition for re­

hearing completely ignore the fact that the plaintiffs did apply 
for fees for the earlier appeal in this case to this Court. The 
motion was filed as a protective measure in light of the decision 
in Buian v. Baughard, 687 F.2d 859 (1982). This-motion, to our 
knowledge, has never been ruled upon by the Court. Further, it 
is clear that plaint iffs-appellees were the prevailing party in 
the appeal to this court in 1982.

SUMMARY OF ARGUMENT
I.

Under the Civil Rights Attorneys' Fees Act prevailing 
plaintiffs are entitled to an award of fees for all work rea­
sonably expended on their clients' behalf. Therefore, any rules 
which would result in the forfeiture of fees must be narrowly 
construed. The order entered by the district court in 1971 was 
not a sharp break in the litigation, but was only the first step 
in the process of desearegation.



II.
Plaintiffs are entitled to fees for the prior appeals 

in this case. First, the decision in Buian v. Baughard should 
not be applied retroactively. Second, the better practice is to 
permit the district court to conduct the factual inquiry neces­
sary to make an award of fees.

III.
The district court was correct when it awarded fees 

against the school board for work done in connection witn 
proceedings in which various intervenors were involved. The 
panel's action in remanding for a determination of the extent 
plaintiffs prevailed was appropriate.

ARGUMENT 
I.

THERE IS NO BAR TO THE AWARD OF FEES FOR WORK,
DONE PRIOR TO 1971.

A.
Fees Are Mandated to Carry Out The Purposes of The Fees Act

The basic principle that must govern the award of fees 
in a civil rights action is that an award to a prevailing 
plaintiff is favored in order to accomplish the goals of the 
civil rights statutes anti the fees acts, viz., to encourage and 
facilitate the private enforcement of civil rights. Thus, 
artificial barriers to fees and restrictive readings of the

7



statutes are disfavored. The arguments of defendants-appellees 
and the decision of the court below are inconsistent with this 
basic principle.

In the present case, counsel for plaintiffs dedicated a 
maior portion of their time and professional careers to the 
enforcement of the constitutional rights of the black children of 
Nashville. Beginning soon after the decision in Brown v. Board 
of Education, 347 U.S. 483 (1954), Senator Williams and his 
partner Mr. Looby brought this action. After years of delay, an 
initial desegregation order was entered in 1971. The decisions 
below would deny fees for the entire first fourteen years of 
litigation and thereby substantially penalize the attorneys for 
their p^eseverance and dedication to the constitution. This 
inequitable result was reached by a strained interpretation of 
the earlier stages of this litigation.

B.
The Effect of The 1971 Order 

First, as a general matter, since fees are awardable as 
part of costs in an action, there is no set time within which 
they must be applied for. White v. New Hampshire Department of 
Employment, 455 U.S. 445 (1982). Rather, they can be sought at 
the end of litigation or, at the option of a civil rights 
plaintiff, at appropriate times during the course of a case after

8



an interim order sufficiently final on the merits has been 
entered. Bradley v. School Board of Richmond, 416 U.S. 696 
(1974). Even if the affirmance by this Court in 1972, and the 
subsequent denial of certiorari by the Supreme Court, of the 
first desegregation order were viewed as terminating tne first 
phase of the litigation, the award for all fees from the be­
ginning of the litigation based on the application filed in 1974 
would have been appropriate. See, Sprague v. Ticonic National 
Bank, 307 U.S. 161 (1939), in which the Supreme Court held that a
fee application is a collateral matter which can be raised at the 
termination of litigation following the entry of a final order on 
the merits.

Second, it is also clear that the 1971 order as 
affirmed by this Court in 1972 was not final in any sense of the 
word. This Court's very holding that the order was the first 
potentiallv effective step in providing a remedy for desegrega- 
tion is inconsistent with such a conclusion. It is clear that 
both the court and the parties contemplated further proceedings 
in order to amend, enforce, or implement the order, and its entry 
in no way represented a sharp break in the litigation. See also, 
Johnson v. Combs, 471 F.2d 84, 87 (5th Cir. 1972).

Moreover, it would be inconsistent with the purposes of 
the civil rights fees statute to require a plaintiff to seex fees 
at the time of the entry of an interim order. The legislative

9



history of the 1976 Act makes it clear it is the option of the
prevailing party to seek fees at the end of litigation or at
reasonable intervals during the litigation. Thus, although it is
ooen to a oartv to seek interim fees, the Act clearly contem-5
plates an award of fees at the termination of litigation. The
granting to civil rights plaintiffs' of an option for their
benefit cannot, consistently with the purposes of the Act, oe
converted into a rule of forfeiture if that option is not

#exercised.' Therefore, the Northcross exception to the general
reguirment that fees should be awarded for the entire litigation
must be narrowly limited to facts that clearly demonstrate a

6
sharp break in the litiaation.

"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. 94-1558 (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 circum­
stances, counsel fees may be awarded pendente lite") (emphasis 
added. )
In their rehearing petition, defendants-appellees urge that the 
panel decision distinguished Northcross on the basis of the 
parties' subjective intent. This is cTearly not correct. The 
"central basis of the panel's discussion of the two cases centered 
in objective indicia of whether or not the order in question did, 
or was intended to, mark the end of a specific and clearly 
delineated stage of the case.

10



II.

PLAINTIFFS-APPELLANTS ARE ENTITLED TO FEES 
FOR EARLIER SUCCESSFUL APPEALS.

A. The Decision In Buian Does Not Bar Recovery
Contrary to the arguments of the defendants, it is not

common or normal practice at all to seek an award of fees from an
appellate court for work done in the appellate process. Although
two courts of appeals have adopted specific rules to provide for

7such a practice, to plantiffs'•knowledge, based on many years
of experience, it is virtually the universal practice that fees
for work done at the appellate level are sought from the district8
court after the remand of a successful appeal.

See Rule 17, Rules of the United States Court of Appeals for the 
Eighth Circuit, and Rule 14(g) of the Ninth Circuit. See also 
Rule 47.8 of the Fifth Circuit, Rule 0.25 of the Second Circuit, 
Rule 27 of the Third Circuit, Rule 46(b) of the Fourth Circuit, 
and Rule 29 of the Eleventh Circuit, all dealing with fees under 
28 rj.S.C. §§ 2412(d)(1)(B), the Equal Access to Justice Act.

Indeed, following Buian, various panels of this Court have held 
that fee awards should be handled by the district courts. See, 
e.g., Greer v. Holt, No. 80-1548, Order of November 9, 1983; 
Buchanan v. City of Jackson, No. 81-5333, Order of April 23,
1984; Rowe v. Cleveland Pneumatic Company, No. 80-1407; King v. 
Roberts, No. 82-5427, Order of Oct. 7, 1983; League of Women 
Voters of Tennessee v. Collins, No. 81-5625, Order of Dec. 22, 
1983. See also, Green v. Francis, No. 81-5870, Order of June 20, 
1983.

- 1 1 -



There are a number of reasons for this practice. First,
often winning an appeal will not necessarily create the right to 
attorneys' fees. See, e.g., Hanrahan v. Hampton, 446 U.S. 754 
(1980). In such a case defendants' rule would force a plaintiff 
to return to the district court, obtain a favorable decision on 
the merits, and then apply back to the court of appeals for a 
separate award of attorneys' fees.

Second, attorneys' fees often involve a factual inquiry 
of some detail, including discovery and a hearing. Courts of 
appeals, of course, are completely unequipped to conduct such 
proceedings and would be forced, where there are disputes as to 
the reasonableness of the hours expendable and/or the hourly 
rates reauested, to either remand to the district court to act as 
a special master for it or to appoint a special master itself to 
conduct hearings and submit a report to it. The far more 
efficient way to handle fee matters is simply, as virtually all 
federal courts do, to remand the case back to the district court 
for an award of fees pursuant to whatever procedures may be 
appropriate under the circumstances. See, e.g., Mims v, Wilson, 
514 F.2d 106, 111 (5th Cir. 1975); Rock v. Norfolk & W. Ry., 473 
F. 2d 1 344, 1 350 ( 4th Cir. 1973).

Further, the Buian rule, if it is to be adopted by the 
full court, must, as the panel here noted, be applied with care. 
Thus, the standard for awarding ordinary appellate costs in civil

12



riahts cases mast be the same as that for awarding fees to ensure
consistency with the intent of Congress. In other words, it is
clear that fees are to be awarded as a matter of course to a
prevailing plaintiff in the absence of special circumstances. If
fees arp to be awarded, under Buian, only when costs are awarded,9
costs must also be given as a matter of course.

This leads to the inevitable conclusion that the panel 
was correct in applying Buian only prospectively, since it is 
highly possible.that the Court prior to the announcement of the 
Buian rule may have denied costs based on a standard other that 
which governs decisions whether or not to award fees in a civil 
rights case. In any event, it must be noted that plaintiffs here 
did, as a protective measure, file a motion with this Court for 
fees and, therefore, complied with Buian.

B. Plaintiffs Appealed the Denial of Their Request For
Fees and Expenses For Services Rendered by NAACP Legal 
Defense Fund Attorneys_____________________________

In the Court's February 12, 1985 Opinion and Order it
is stated that " . . .  $126,000 was requested for work performed
by Lecral Defense Fund attorneys, but the denial of this request

10
was not challenged on appeal." Opinion of February 12, 1985 at

See Layson v. Metts, No. 82-5518, Oct. 10, 1983, in which Buian 
was narrowly interpreted.
Apparently the Court arrived at the $126,000 by totalling the 
517,200 sought for services rendered by Legal Defense Fund

13



p. 2, n. 1. That statement is incorrect. In their application 
for fees plaintiffs—appel1ants sought fees for work done by Legal 
Defense Fund attorneys Norman Chachkin and Bill Lann Lee. The 
district court applied this Court's ruling in Buian v. Baughard, 
supra, to bar consideration by the district courc of fees for 
work done on the appellate level. The district court denied the 
Legal Defense Fund attorneys requests in their entirety specifi­
cally because their services were provided in connection with 

11appeals. District Court Memorandum and Order of February 23,
1 983 at 13. Plaint iffs-appellants evidenced their intention to 
pursue the denial of Legal Defense Fund fees and expenses when, 
upon being informed by the district that it intended to apply 
Buian as a bar to recovery, on or about October 20, 1985, they

attorneys Norman J. Chachkin with the $62,192 sought for services 
rendered by Legal Defense Fund attorney Bill Lann Lee and then 
adding the $47,488 sought for costs and expenses.
The district court applied a double bar to the request for fees 
covering Norman Chachkin's services: 1) it refused to award fees
for the appellate work which he performed; 2) even if it had 
awarded fees for appellate work, it ruled that plaint iffs—appel­
lants were precluded from seeking fees for Norman Chachkin's work 
performed prior to 1972. Plaint iffs—appellants successfully 
appealed both the issue of the preclusion of fees for pre-1972 
work and the application of Buian to preclude an award of fees by 
the district court for appellate work.
Thus they contend that upon remand the district court must make a 
determination and award of attorneys fees for appellate work and 
for services rendered by Norman Chachkin prior to 1972. All of 
the services rendered by Bill Lann Lee were on the appellate 
level and after 1972.

14



filed a protective motion for an award of fees and expenses in 
this Court. Attached were the affidavits of time and expenses of 
the LDF attorneys. Thus, the issue of fees for LDF attorneys was 
pursued on appeal.

Ill.

THE DISTRICT COURT WAS CORRECT IN 
ASSESSING FEES AGAINST THE SCHOOL 
DISTRICT FOR WORK RELATED TO 
INTERVENING PARTIES.

With regard to defendants' cross appeal, the panel held 
that it was not liable for fees relating to an unrelated third- 
party defendant, the Metropolitan Mayor and Council. However, 
with regard to the other intervenors, the panel affirmed the 
district court on the ground that it was the Board's failure to 
promptly dismantle the dual system of schools that led to their 
intervention. Therefore, an award of fees against the Board for 
work done by the plaintiffs in connection with those intervenors 
was appropriate.

We urge that the panel's resolution of these issues was 
correct and should be followed. It is clear that where a party is 
ultimately responsible for the conditions that gave rise to the 
litigation, it is liable for the entire amount of fees and costs 
occasioned by the litigation required to correct the violation. 
See, e.g., Riddell v. National Democratic Party, 712 F.2d 165,

15



169 (5th Cir. 1983); see also, Pekarsky v. Ariyoshi, 575 F.
Supp. 673 (D.C. Hawaii 1983). The defendants' remedy is to seek 
contribution from the intervenors for that part of the fees 
occasioned by the issues they raised.

Conclus ion
For the foregoing reasons, the decision below should be 

reversed, except for those issues raised by defendants' cross- 
appeal, and as to those issues it should be affirmed.

Respectfully submitted,^esp<
A /

/ I

j i!
i'/ /I c

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
THEODORE M. SHAW 

16th Floor

/ •/ ( v/) , .

OlM  f U

99 Hudson Street
New York, New York 10013

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

Williams & Dinkins
203 Second Avenue, North
Nashville, Tennessee 37201

Attorneys for Plaint iffs-Appellants 
Cross-Appellees.

16



CERTIFICATE OF SERVICE

Undersiqned counsel for plaintiffs—appellants certifies 
that on this 30th day of April, 1985, copies of the foregoing 
Supplemental Brief for Plaintiffs-Appellants were served upon 
counsel for the Defendants—Appellees by prepaid first class 
United States mail addressed to:

WILLIAM R. WILLIS, JR., ESC* 
MARION F. HARRISON, ESQ.
215 Second Avenue, North 
Nashville, Tennessee 37201

''Attorney for Plaintiffs- 
Appellants