Jackson v. Georgia Motion for Leave to File and Brief Amici Curiae

    No. 85-870

In The

Supreme (Eaurt o f tfje United States
October Term, 1985

M etropolitan County Board O f Education O f 
Nashville A nd Davidson County Tennessee, et al.,

Petitioners,
vs.

Robert W. Kelley, et al.,
Respondents.

On Petition for a Writ of Certiorari To The 
United States Court of Appeals For the Sixth Circuit

REPLY BRIEF

W illiam R. W illis, Jr. 
Marian F. H arrison 
W illis & Knight 
215 Second Avenue, North 
Nashville, Tennessee 37201 
(615) 259-9600
Attorneys fo r  Petitioners

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477



TABLE OF AUTHORITIES CITED

Page

Atascadero State Hospital v. Scanlon,___ U .S .____ ,
105 S.Ct. 3142 (1985) .........................   4

Blum v. Stenson, ___  U.S. ___ , 79 L.Ed.2d 891
(1984)........................................................................  8

Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980).............. 3

Fulps v. City of Springfield, 715 F.2d 1088 (6th Cir.
1983).......................................................................... 3

Gaines v. Dougherty County Board of Education, 775
F.2d 1565 (11th Cir. 1985).......................................  8

Gary v. Spires, 634 F.2d 772 (4th Cir. 1980)...................  3

Henry v. Clarksdale Municipal Special School District,
579 F.2d 916 (5th Cir. 1978)....... ............................. 7

Hensley v. Eckerhart, 461 U.S. 424 (1983).....................  8

Hutto v. Finney, 437 U.S. 678 (1978) .............................  4

Johnson v. Georgia Highway Express, 488 F.2d 714,
717 (5th Cir. 1974)....................................................  9

Kelley v. Metropolitan County Board of Education,
Civil Action No. 81-5370 (6th Cir. August 19,
1981)..........................................    4 ,6

Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980)........ 3

Leeper v. State, 103 Tenn. 500, 534-535 (1899).............. 4

Marek v. Chesney,___ U.S. , 87 L.Ed.2d 1 (1985) 2, 3

Mt. Healthy City Board of Education v. Doyle, 429
U.S. 274, 280(1977)................................................  4



11

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971).................................................... . 8

Wheeler v. Durham City Board of Education, 585 F.2d
618 (4th Cir. 1978)............................................ .. 7

Other Authority:
Eleventh Amendment to the United States Constitution 2, 4

42 U.S.C. §1988 ............. .........................................  1,2, 3,4, 5

Rule 17(a), Rules of the Supreme C o u rt.........................  9

Rule 39, Federal Rules of Appellate Procedure.............  2, 5

Rule 54(d), Federal Rules of Civil Procedure.................  3

Rule 68, Federal Rules of Civil Procedure .....................  3

Senate Report 94-1011.....................................................  2

Tennessee Constitution, Article XI, §12..................... - • 4

Title 49, Tennessee Code A nnotated................. ........ . • 4



No. 85-870
In T he

Supreme (ta r t of tt|r lEnfteli &tatea
O ctober Term, 1985

M etropolitan County Board Of Education Of 
Nashville And Davidson County Tennessee, et ah,

Petitioners,
vs.

Robert W. Kelley, et a l, 
Respondents.

On Petition for a Writ of Certiorari To The 
United States Court of Appeals For the Sixth Circuit

REPLY BRIEF

The issues presented by the Petition for Certiorari concern 
the proper application of the Civil Rights Attorneys Fees 
Awards Act of 1976, 42 U.S.C. §1988, to a thirty year old 
school desegregation case in which several desegregation plans, 
comporting with the ever-developing case law and factual cir­
cumstances, have been implemented in Nashville, Tennessee. 
The Sixth Circuit improperly applied this attorneys’ fees statute 
which awards fees as costs, holding that attorneys fees could be 
awarded in 1982 for long-closed aspects of the case, including 
appeals for which the Court of Appeals had repeatedly refused 
to award costs, and actions taken long before a comprehensive 
and final desegregation plan was entered and implemented in 
1971. In straining to reject the amount of fees awarded to the



plaintiffs by the District Court, the Sixth Circuit not only 
reversed or ignored its own precedent, it also applied principles 
inconsistent with this Court’s decisions in Marek v. Chesney,
___ U .S.____ , 87 L.Ed.2d 1 (1985), the Eleventh Amendment,
and various circuit court opinions dealing with costs and finali­
ty, and it usurped the District Court’s special function in at­
torneys’ fees litigation. This decision forecasts an exponential 
increase in protracted attorneys’ fees litigation.

Although full argument on the merits of the questions raised 
in the Petition for Certiorari is properly reserved for briefing on 
the merits, we take this opportunity to reply to several points 
raised in the respondents’ Brief in Opposition.

I.

A Plain Meaning Interpretation Of The Cost Language In 
42 U.S.C. §1988 Is Not A Meaningless Word Game. Rather, 

It Is An Interpretation Which Is Consistent With Congressional
Intent, With This Court’s Holding In Marek v. Chesney,

___ U.S_____ _ 87 L.Ed.2d 1 (1985), And Other Circuit Court
Holdings, With The Eleventh Amendment, And With Efforts 

To Shorten Attorneys’ Fees Litigation

When Congress enacted 42 U.S.C. §1988, permitting the 
award of attorneys’ fees to prevailing plaintiffs “ as part of the 
costs,” it specifically states that attorneys’ fees are to be treated 
“ like other items of costs.” S.R. 94-1011 at 5913.' At the time 
this statute was enacted, Rule 39(a), Federal Rules of Appellate 
Procedure, provided for the recovery of costs for prevailing par­
ties, ‘in keeping with the principle.. .that all items expended in 
the prosecution of a proceeding should be borne by the unsuc­
cessful party.” 1 2 Without even referring to the expressed Con-

1 See Petition for Certiorari, n. 15 at p. 15.

2 Advisory Committee Notes to Rule 39, Federal Rules of Appellate 
Procedure.



— 3 —

gressional intent or to the extended discussion and adoption of 
the plain meaning interpretation of “ costs” in 42 U.S.C. §1988
in Marek v. Chesney,___ U .S .------ , 87 L.Ed.2d 1 (1985), the
plaintiffs characterize the clear linkage between costs in Rule 39 
and attorneys’ fees awarded as costs in 42 U.S.C. §1988 as 
merely a “ semantic game.” (Brief in Opposition, p. 15.)

The plaintiffs consider Marek v. Chesney and the other cir­
cuit court cases cited in the Petition for Certiorari to be consis­
tent with the Sixth Circuit’s failure to link costs and fees in this 
case. Certainly Marek dealt with the relationship between a dif­
ferent procedural rule (Rule 68) which provides for an award of 
costs to a party if the ultimate judgment is not more favorable 
than its offer of judgment made before trial. Yet, nowhere did 
this Court in Marek indicate that it was playing a game when it 
painstakingly traced and linked the cost language in the pro­
cedural rule and the attorneys’ fees statute.

Similarly, in the other cases which the plaintiffs dismiss as in­
explicably consistent with the Sixth Circuit’s opinion, several 
courts of appeal have equated costs under various procedural 
rules with costs under the Attorneys Fees Awards Act of 1976. 
In Gary v. Spires, 634 F.2d 722 (4th Cir. 1980), the Fourth Cir­
cuit reversed the trial court’s award of fees pursuant to 42 
U.S.C. §1988, because the cost provisions of Rule 54(d), 
Federal Rules of Civil Procedure had not been met. Rule 54(d) 
is, of course, the trial court counterpart to appellate rule 39. In 
Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980) and Knighton v. 
Watkins, 616 F.2d 795, 798 (5th Cir. 1980), the Seventh and 
Fifth Circuits also held that an application for fees under 42 
U.S.C. §1988 is an application for costs at the trial level, and is 
governed by Rule 54(d), Federal Rules of Civil Procedure. In­
deed, the Sixth Circuit’s own decision in Fulps v. City o f Spr­
ingfield, 715 F.2d 1088 (6th Cir. 1983), was the first to link costs 
in offers of judgment under Rule 68 to costs in 42 U.S.C. §1988, 
and was relied upon by this Court in Marek, Surely these courts 
have not all been engaged in a useless word game.



— 4 —

In similar fashion, the plaintiffs seek to dismiss the inherent 
Eleventh Amendment problem created by the Sixth Circuit in 
Kelley, arguing that the Metropolitan Board of Education is not 
a state, and that, in any event, this Court eliminated any possi­
ble Eleventh Amendment problem with attorneys’ fees in Hutto 
v. Finney, 437 U.S. 678 (1978). In making the bare assertion 
that the Board of Education is not a state or a state agency, the 
plaintiffs ignore that public education in the state of Tennessee 
is now and has always been a state function.3 More importantly, 
most attorneys’ fees cases involve states, state agencies, or state 
officials. Thus, if 42 U.S.C. §1988 is to be interpreted uniform­
ly, regardless of the nature of the defendants, the cost language 
must be given its plain meaning. As Judge Kennedy wrote in 
dissent (A. 18-19), unless fees are awarded as costs there is no 
clear indication that Congress intended to abrogate the Eleventh 
Amendment by permitting an award of attorneys’ fees against 
states. E.g. Atascadero State Hospital v. Scanlon, 473 U.S.
___ , 105 S.Ct. 3142, 3148 (1985), Hutto v. Finney, 437 U.S.
678, 695-98 (1978).

3 The plaintiffs rely upon Mt. Healthy City Board o f  Education v. 
Doyle, 429 U.S. 274, 280 (1977) for the proposition that the 
Metropolitan Board of Education is not a state agency. (Brief in Op­
position, p. 17.) However, this Court noted in Mt. Healty that the 
question is one of state law, and Tennessee law provides otherwise.

In Leeper v. State, 103 Tenn. 500, 534-535 (1899), the Supreme 
Court of the State of Tennessee long ago declared:

“ [T]he schools, in which are educated and trained children who 
are to become rulers of the commonwealth, are matters of state, 
and not local jurisdiction; that in such matters the state is a unit, 
and the legislature a source of power; that the establishment and 
control of public schools is a function of the general assembly, 
both under the Constitution and because it is a matter of state 
concern.. . . ”

See also Tennessee Constitution, Article XI, §12, and Title 49 of the 
Tennessee Code.



—  5  —

Finally, the plaintiffs seek to distinguish costs under Rule 39 
and costs awarded as fees pursuant to 42 U.S.C. §1988 because 
the District Court is somehow better equipped to handle the 
issues. While the plaintiffs concede that at least two circuits 
have specifically provided for factual determinations to be made 
at the appellate level, the locus of the factual determination con­
cerning rates or specific hours to be compensated is not the 
point of the requirement that costs be awarded to a prevailing 
plaintiff before he is entitled to fees. (Kennedy, A. 18, n. 1.) 
The award of costs by an appellate court constitutes a finding 
that the party receiving those costs has prevailed on the appeal.4 
Conversely, an appellate court’s refusal to award costs to a party 
constitutes a finding that the party has not prevailed. This 
should make the trial court’s job simpler, even if reference to 
the District Court is necessary to determine such issues as hourly 
rates. As Judge Kennedy wrote in dissent: “ In the rare situa­
tion where the appellate court disallows costs entirely, the court 
very likely has a good reason for doing so, a reason which may 
or may not be apparent to the District Court when it decides a 
subsequent motion for attorneys’ fees.” (A. 18).

Thus, the plain meaning of the term “ cost” serves an over­
riding and important purpose. It places the initial determina­
tion of who may be entitled to fees as successful plaintiffs under 
the applicable statute in the hands of those judges who read the 
briefs, heard the arguments, and decided the case, at or near the 
time the appellate decision was rendered. Such a construction 
can only help to eliminate protracted attorneys’ fees litigation.

4 This of course does not mean, as plaintiffs suggest, that every party 
who prevails on appeal is entitled to costs including attorneys fees. 
The cost award is merely a prerequisite for those who are otherwise 
eligible to receive fees under 42 U.S.C. §1988.



—  6 —

U.

The Majority’s Holding That The 1971 Desegregation Order 
Was Not A Final And Discrete Step In The Litigation 

Foreclosing A Subsequent Award Of Attorneys’ Fees Under 
The 1976 Civil Rights Attorneys Fees Awards Act Is 

Inconsistent With Its Own Characterization Of That Order 
In 1981, As Well As With The Standards For Finality- 

Utilized In Other Circuits In Similar Situations.

In 1981, the Sixth Circuit Court of Appeals in this very case 
refused to permit the Board of Education to implement a new 
desegregation remedy mandated by the District Court that year 
because it found that the old 1971 plan was a final one which 
should not be modified until the Sixth Circuit had an opportuni­
ty to closely examine the proposed modifications. Kelley v. 
Metropolitan County Board o f Education, No. 81-5370 (6th 
Cir. August 19, 1981) (S.A. 156).5 In conformity with this 
characterization of the 1971 plan, the District Court in 1983 
held that the 1971 plan was a discrete and final step in the 
desegregation litigation, and that the plaintiffs could not reopen 
that final order by a motion for fees made several years later. 
(A. 50-53.) Now the Court of Appeals has recharacterized the 
1971 plan in its en banc opinion, holding that the 1971 order was 
not a final order in the eyes of the parties.

The plaintiffs never address these inconsistencies in their 
Brief in Opposition. Instead they argue that no inconsistencies 
exist between the Sixth Circuit’s criteria for finality in attorneys’ 
fees litigation and that applied in other circuits. Yet the incon­
sistencies in the Sixth Circuit’s own opinions in 1981 and 1985 
(S.A. 156, A. 3-6, 32) point toward different standards for 
finality—one objective (the 1981 substantive decision) looking 
toward the nature of the order in question and the other subjec­
tive (the 1985 attorneys’ fees decision) looking toward the par­
ties’ subjective expectations.

5 See, Petition for Certiorari, p. 23.



In contrast, the criteria used in Henry v. Clarksdale 
Municipal Special School District, 579 F.2d 916 (5th Cir. 1978), 
and Wheeler v. Durham City Board o f Education, 585 F.2d 618 
(4th Cir. 1978), were objective in nature. That is, the courts 
looked to the nature of the remedial order as did the District 
Court in this case (A. 51-52), not the intent of the parties, and 
found that proceedings after the pivotal orders would necessari­
ly be supplemental in nature. In Nashville, as in these cases, 
liability and remedy were fixed in 1971, and it changed cir­
cumstances had not occurred in the intervening decade, the 1971 
remedy would be in place here today.6 This is what the Sixth 
Circuit recognized in 1981 when it termed the 1971 remedy a 
final one, applying the same objective standard utilized in other 
cases. Thus, the Sixth Circuit standard is not consistent with 
that used in other circuits, and indeed, it is inconsistent with its 
own standards previously applied to the substantive aspects of 
this case.

The plaintiffs argue further that any such inconsistency, if it 
exists, is of no import, because they know of no other recent 
cases where this issue has arisen.7 The defendants respectfully 
submit that this is an issue which may well arise at any time in 
many other desegregation cases across the country where 
jurisdiction has been retained to monitor progress under a com­
prehensive desegregation plan. Should changes in cir­
cumstances, contemptuous activities, or adverse effects man­
date a change in a desegregation remedy, this issue will quite 
likely resurface. Moreover, this issue will certainly arise again in 
this very case if hearings are held in the District Court on

6 The defendants strongly object to plaintiffs’ repeated efforts to 
suggest that the motivation for the District Court’s modification of 
the desegregation plan in 1981 was school board misconduct. (Brief in 
Opposition, p. 5.) The District Court has repeatedly stated that it was 
the 1971 plan itself, despite the good faith efforts of the board 
towards implementation of that plan, which caused population shifts 
resulting in resegregation. (A. 66-67.)



—  8  —

pre-1971 fees. Prior to 1971 there were several final remedial 
orders entered by the District Court and Sixth Circuit, and such 
orders required the implementation of new desegregation plans 
comporting with the law and facts as they existed at that time. 
(Petition for Certiorari, n. 1 at p. 1.) The hazy and subjective 
line drawn by the Sixth Circuit will undoubtedly produce fur­
ther litigation in this very case.

III.

The Sixth Circuit’s Usurpation Of The District Court’s 
Discretion In Awarding Attorneys’ Fees Pursuant To 

42 U.S.C. §1988 Warrants The Exercise Of This 
Court’s Supervisory Jurisdiction

In their Brief in Opposition, plaintiffs argue that there is no 
overriding reason to review the Court of Appeals’ usurpation of 
the District Court’s discretion in awarding fees because the rele­
vant standards have previously been addressed by this Court in 
Hensley v. Eckerhart, 461 U.S. 424 (1983), and Blum v. Sten-
so n ,___ U .S .____ , 79 L.Ed.2d 891 (1984). In this argument
the plaintiffs address only the calculation of the hourly fee by 
the District Court, but in so doing, the plaintiffs underscore the 
inherently flawed approach toward fee awards taken by the 
Sixth Circuit and the importance of this Court’s consideration 
thereof.

The plaintiffs admit that Blum v. Stenson,___ U.S_____ _ 79
L,Ed.2d 891 (1984), mandates fee awards which fall “ within the 
parameters of customary community rates.” (Brief in Opposi­
tion, p. 24.) As outlined in the defendants’ Petition and in the 
dissenting opinions (A. 23, 25-28), the hourly rates applied by 7

7 The plaintiffs have cited Gaines v. Dougherty County Board of 
Education, 775 F.2d 1565 (11th Cir. 1985) in support of their argu­
ment that the Sixth Circuit ruled properly concerning the finality of 
the 1971 order. In Gaines, however, no final order was implemented 
pursuant to Swann v. Charlotte-Mecklenburg Board o f Education, 
402 U.S. 1 (1971) until 1980-81. 775 F.2d at 1567.



the District Court ($100.00 for experienced counsel and $60.00 
for associate counsel) were well within these parameters. Yet 
the Court of Appeals required the District Court to award plain­
tiffs’ senior counsel his own personal billing rate, a rate which 
was higher than the prevailing community rate.

In rejecting the District Court’s fact-finding concerning both 
rates and the finality of the 1971 order,8 the Court of Appeals 
substituted its own fact-finding for that of the District Court 
without ever stating that the District Court strayed from the 
proof presented to it. Such a usurpation of the District Court’s 
role, particularly in attorneys’ fees litigation where the 
reasonableness of a fee award is to be examined under an abuse 
of discretion standard,9 forecasts an unending litany of appeals 
from attorneys’ fees awards in the Sixth Circuit, and so departs 
from the accepted practice in attorneys’ fees litigation that 
review pursuant to this Court’s supervisory jurisdiction under 
Rule 17(a), Rules of the Supreme Court, is appropriate.

Respectfully submitted,

WILLIS & KNIGHT
William R. Willis, Jr.
Marian F. Harrison
215 Second Avenue North
Nashville, TN 37201
Attorneys for Petitioners

8 For a full discussion of the finality issue, see Section II, supra, and 
Petition for Certiorari, pp. 23-24.

9 Johnson v. Georgia Highway Express, 488 F.2d 714, 717 (5th Cir. 
1974).