Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Brief for Plaintiffs-Appellants

    UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NO. 83-5175/5243

ROBERT W. KELLEY, et al.,
Plaintiffs-Appellants,

v.
METROPOLITAN, COUNTY BOARD 
OF EDUCATION,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFFS-APPELLANTS

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37201

JACK GREENBERG 
JAMES M. NABRIT, III 
THEODORE M. SHAW 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellant



Questions Presented .................................. . . 1
Statement ...............................................  2
Prior Proceedings ....................................... 3
Post Remand Proceedings ................................  11

t Argument ................................................  16
1. The District Court Erred by Refusing to

Award Fees for Pre-1972 Services ............. 18
a. The 1971 Order Was Not a Final Order ....  18
b. Even If the 1971 Plan Did Constitute a

Final Order, Bradley and Northcross Do 
Not Bar An Award of Fees for Pre-1972 
Services in This Lawsuit .................  24

2. The District Court Erred by refusing to
Award Fees for Services Rendered on Appeal ... 27
a. Buian Addressed the Issue of Whether a

Party Can Be Awarded Costs for a Totally 
Unsuccessful Appeal and Does Not Preclude 
a Fees Award by a District Court for 
Appellate Services .................... * . . 27

b. The District Courts Are Peculiarly 
Equipped to Make Determinations on
Matters of Fact .........................  30

3. The District Court Erred in Its Computation
of Fees for Avon Williams and Richard Dinkins 32
a. Avon Williams .............................  32
b. Richard Dinkins .........................  37
c. The District Court's Reduction for Dupli­

cation and Reconstruction Are Not
Justified .................................  38

4. The District Court Erred When It Refused to 
Grant Fees for Time Spent by Plaintiffs'
Counsel with Dr. Scott and Abused Its Dis­
cretion by Refusing to Award Expenses to 
Plaintiffs Incurred by Dr. Scott ..............  39

Conclusion ..............................................  40

TABLE OF CONTENTS
Page

l



TABLE OF AUTHORITIES

Cases
Page

Bradley v. Richmond, Va. Bd. of Ed., 416 U.S. 696
(1974 ) ................................. .......  24,31

Brown v. Board of Education, 347 U.S. 483 (1954) .. 3
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) .. 12,14,15,18,

27,28,29
Green v. Williams, 541 F. Supp. 863 (E.D. Tenn. 1981) 36
Hutto v. Finney, 437 U'iS. 678 (1978) .............. 15,18,28
Johnson v. Georgia Highway Express, Inc., 488 F.2d

714 (5th Cir. 1974) ........................... 33,37
Kelley v. Metropolitan County Board of Education,

528 F. Supp. 540 (M.D. Tenn. 1973) ........... 8
Kelley v. Metropolitan County Bd. of Educ., 511

F. Supp. 1363 (M.D. Tenn. 1981) .............. 11
Kelley v. Metropolitan County Board of Education 

of Nashville and Davidson County, Tennessee,
492 F. Supp. 167 (M.D. Tenn. 1980) ........  2,4,8,10,39

Kelley v. Metropolitan County Board of Education of 
Nashville and Davidson County, 293 F. Supp.
485 (1968); 317 F. Supp. 980 (1970); 436 F.2d 
856 (1979); 463 F.2d 232 (1972), cert, denied,
409 U.S. 1001 (1972); 372 F. Supp. 528 (1973);
479 F. Supp. 120 (1979); 492 F. Supp. 167 (1980);
511 F. Supp. 1363 (1981), aff'd in part, rev'd 
in part, 687 F.2d 814 (1982), cert, denied,

U.S. ( 1983 ), 51 U.S.L.W. 3553 ........  2,4
Kelley v. Board of Education of City of Nashville,

139 F. Supp. 578 (1956); 2 Race Rel. L. Rep. 21 
(1957); 2 Race Rel. L. Rep. 970 (1957); 159 
F. Supp. 272 (1958); 3 Race Rel. L. Rep. 561
(1958); aff'd, 270 F.2d 1209, cert, denied,
361 U.S. 924 (1959) ......................... 2,3

Kelley v. Board of Educ., 2 Race Rel. L. Rep. 21
(M.D. Tenn. 1957) ........................... 3

Kelley v. Metropolitan County Bd. of Educ.,
687 F.2d 814 (6th Cir. 1982 ) ......... 11,13,22,24



Cases cont'd
Page

Kelley v. Metropolitan County Bd. of Educ., 687
F. Supp. 814 (6th Cir. 1982) ...............  6,

Kelley v. Metropolitan County Bd. of Educ.,
436 F .2d 856 (6th Cir. 1970) .................

Maxwell v. County Board of Education of Davidson 
County, 203 F. Supp. 768 (1960), aff'd , 301 
F.2d 828 (1962), aff'd in part, rev'd in part 

» sub nom. Goss v. County Board of Education of
Knoxville, 373 U.S. 383 (1963) ...............

Monroe v. County Bd. of Educ. of Madison County,
Tenn., 583 F.2d 262 (6th Cir. 1978) ........

Northcross v. Board of Education of Memphis City 
Schools, 611 F.2d 624 (6th Cir. 1979, 
cert, denied, 447 U.S. 911 (1980)

Oliver v. Kalamazoo Board of Education, 576 F.2d
714 (6th Cir. 1976) ...........................

Perkins v. Standard Oil Co. of California,
399 U.S. 222 (1970) ...........................

Rowe v. Cleveland Pneumatic Company, Numerical 
Control, Inc., No. 80-1407

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

Weisenberger v. Huecker, 593 F .2d 49 (6th Cir. 1979)
Wheeler v. Durham Cty. Bd. of Educ., 585 F.2d

618 (4th Cir. 1978) ...........................

Statutes:
18 U.S.C. § 1821 
42 U.S.C. § 1988

Other Authorities:
H. Rep. No. 94-1558, 94th Cong., 2d Sess. 9 (1976)
S . Rep. No. 95-1011, 94th Cong . , 2d Sess. 6 (1976)

17,19,24

5

2,4

31,32

passim

38 

31

9,31,32

39 
38

21

15
18

33
33

i n



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 83-5175/5243

ROBERT W. KELLEY, et al.,
Plaintiffs-Appellants,

v.
METROPOLITAN COUNTY BOARD 
OF EDUCATION,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFFS-APPELLANTS

QUESTIONS PRESENTED

1. Whether the District Court erred in refusing to 
award fees in this litigation for services rendered prior 
to 1972 and for which an application had been pending since 
1974?

2. Whether the District Court erred in refusing to 
award attorneys' fees for services rendered on appeal by 
plaintiffs' counsel and in which plaintiffs' counsel was
successful?



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

STATEMENT

This is an appeal from a decision of the United States 
District Court for the Middle District of Tennessee denying 
certain attorneys' fees and other costs for plaintiffs who 
have successfully litigated this monumental school desegre­
gation case for twenty-eight years without financial remun­
eration. The history of this lengthy litigation is detailed 
in Kelley v. Metropolitan County Board of Education of Knoxville 
and Davidson County, Tennessee, 492 F. Supp. 167 (M.D. Tenn. 
1 9 8 0 ) . Nonetheless, for purposes of evaluating the sound­
ness of the District Court's decision below, it bears recap­
itulation here.

1/ This litigation has spawned the following published 
opinions: Kelley v. Board of Education of City of Nash­
ville, 139 F. Supp. 578 (1956); 2 Race Rel. L. Rep. 21 (1957); 
2 Race Rel. L. Rep. 970 (1957); 159 F. Supp. 272 (1958); 3 
Race Rel. L. Rep. 561 (1958 ); aff'd , 270 F.2d 1209, cert. 
denied, 361 U.S. 924 (1959); Maxwell v. County Board of Edu­
cation of Davidson County, 203 F. Supp. 768 (1960), aff'd,
301 F.2d 828 (1962), aff'd in part, rev'd in part sub nom.
Goss v. County Board of Education of Knoxville, 373 U.S. 683 
(1963); Kelley v. Metropolitan County Board of Education of 
Nashville and Davidson County, 293 F. Supp. 485 (1968); 317 
F. Supp. 980 (1970); 436 F.2d 856 (1970); 463 F.2d 232 (1972), 
cert, denied, 409 U.S. 1001 (1972); 372 F. Supp. 528 (1973); 
479 F. Supp. 120 (1979); 492 F. Supp. 167 (1980); 511 F.
Supp. 1363 (1981), aff'd in part, rev'd in part, 687 F.2d
814 (1982), cert, denied, ___ U.S. ____ (1983), 51 U.S.L.W.
3553.

2



Prior Proceedings
This class action suit was initiated by plaintiff 

Robert W. Kelley on September 23, 1955, on the heels of the 
Supreme Court's decision in Brown v. Board of Education, 347 
U.S. 483 (1954). A three-judge court was convened pursuant 
to 28 U.S.C. 2281 to rule on the constitutionality of the 
Tennessee law which mandated segregation in Tennessee schools, 
T.C.A. §§ 49-3701 - 49-3704. Upon concession that the segre­
gation law was unenforceable, the three-judge court was 
dissolved and the case was remanded to the District Court.
On January 21, 1957, the District Court approved the defen­
dant Board's proposal for desegregation of grade one in the 
school year 1957-58, but ordered the Board to develop a plan 
for desegregation of all grades. Kelley v. Board of Educ.,
2 Race Rel. L. Rep. 21 (M.D. Tenn. 1957). The District 
Court rejected another scheme which purported to be a deseg­
regation plan but which operated to maintain segregation, 
Kelley v. Board of Educ., 2 Race Rel. L. Rep. 970 (M.D.
Tenn. 1957), and on June 19, 1958, approved a plan that 
would have desegregated grade two in the 1958-59 school year 
and one grade each year thereafter. 3 Race Rel. L. Rep. 651 
(M.D. Tenn. 1958), aff'd, 270 F.2d 209 (6th Cir.), cert, 
denied, 361 U.S. 924 (1959).

On September 19, 1960, a parallel class action suit was 
initiated by Henry C. Maxwell, Jr., against the Davidson

3



County Board of Education. On November 23, 1960, the Dis­
trict Court ordered grade-a-year desegregation in Davidson 
County but ordered grades 1-4 to be immediately desegregated 
so as to put the County on track with the city schools. 
Maxwell v. County Bd. of Educ., 203 F. Supp. 768 (M.D. Tenn. 
1960), affjjd, 301 F.2d 828 (6th Cir. 1962), aff'd in part, 
rev'd in part, sub nom. Goss v. County Board of Educ. of 
Knoxville, 373 U.S. 683 (1963). Kelley and Maxwell were 
consolidated by consent order on September 10, 1963, and the 
Board of Education of Nashville and Davidson County was sub­
stituted as defendant to reflect the newly merged metropol­
itan system of government.

No significant desegregation had occurred when the 
District Court issued a temporary restraining order on 
November 6, 1969, granting plaintiffs' requests that 
defendants be enjoined from purchasing new sites, construct­
ing new facilities or expanding existing ones. After a 
hearing on the motion, on July 16, 1970, the District Court 
enjoined defendants from any construction not commenced by 
the date of the issuance of the restraining order and 
ordered the Board to develop a comprehensive desegregation 
plan. Kelley v. Metropolitan Bd. of Educ., 317 F. Supp. 980 
(M.D. Tenn. 1970). The Board submitted its plan on August 
25, 1970, but the District Court effectively stayed its 
order until resolution by the United States Supreme Court of 
school desegregation cases then pending before it. Kelley

4



v. Metropolitan Bd. of Educ., 436 F.2d 856 (1970). This 
Court vacated the stay and reinstated the District Court's 
order and noted that "... the instant case is growing heavy 
with age." Id. at 858.

On remand, hearings were held during which defendant 
Board, the plaintiffs, and the Department of Health, Educa­
tion and Welfare (HEW), acting as a consultant to the Court, 
submitted desegregation plans. The parties' plans were 
rejected as inadequate and the District Court adopted the 
HEW plan which utilized zoning, clustering and student trans­
portation. The District Court also directed the Board to 
implement a majority to minority transfer provision and 
approved construction of what was to become the Whites Creek 
comprehensive high school. However, it enjoined construc­
tion of the proposed Goodlettsville Comprehensive High School, 
enlargement of Hillsboro High School, the use of portable 
classrooms for any purpose other than desegregation, and 
renovating or enlarging by either construction or portables 
any school that enrolled less than a 15% black student pop­
ulation. Both parties appealed the 1971 District Court 
order; plaintiffs primarily argued that the plan dispro­
portionately burdened black students and that their plan 
would achieve a greater degree of desegregation. This Court 
held that the HEW plan was constitutionally sufficient.

5



Kelley, 463 F.2d 732 (1972), cert, denied, 409 U.S. 1001
(1972).

The litigation did not abate with the implementation of
the 1971 plan; even though the Court declined to rule on

. „ . 2/numerous motions until 1979, the parties remained active. 
Kelley, 479 F. Supp. at 121. Defendants filed their first 
report on October 19, 1971. Two days later, plaintiffs moved 
to join as defendants the Metropolitan Government, the Mayor 
and the members of the Metropolitan Council on the theory 
that they controlled the money needed to implement the stu­
dent transportation aspect of the desegregation plan. In 
its second report to the Court, filed on March 17, 1972, the 
Board proposed an attendance zone and other plans for a new 
comprehensive high school in the Joelton-White Creeks area. 
The Board also proposed capital improvements for schools 
which were at least 15% black.

In June of 1972, the Board petitioned for changes in 
the 1971 plan regarding elementary and junior high school 
attendance zones. It also sought approval of an annex for 
an overcrowded school in the southeastern portion of the

2/ A detailed account of events between 1971 and 1975 is 
set forth at 492 F. Supp. 172-175. A reconsideration of 
that account follows above.

6



county unaffected by the District Court's 1971 order. 
Plaintiffs objected to the proposed changes and once again 
requested changes in the 1971 plan in that it called for 
closing black schools and put the burden of transportation 
on black students.

On August 19, 1972, the District Court granted plain­
tiffs' motion to add parties defendant, approved the re­
quested elementary school zone changes. The Court denied, 
however, the proposed junior high school changes which would 
have had segregative effect and ordered the newly added 
defendants not to interfere with the desegregation plan. No 
action was taken on plaintiffs' disparate burdens claim. On 
August 31, 1972, the transportation report was approved and 
the injunction against the Metropolitan governmental defen­
dants was dissolved.

On May 20, 1973, the Board filed a Petition for Approval 
of the Long Range Building Program. The following day, the 
Board filed a petition for approval of the use of portables 
for use in kindergarten. Neither petition was dealt with by 
the District Court.

The last action taken by the District Court prior to 
1979 was in 1973, when it ruled upon an action brought by 
the newly added black city council defendants as third party 
plaintiffs. The third party complaint sought to enjoin 
third party federal governmental officials from withholding

7



federal funds for transportation for desegregation. Kelley 
v. Metropolitan County Board of Education, 528 F. Supp. 540 
(M.D. Tenn. 1973).

On August 15, 1973, counsel for the Board filed a letter 
with the Court relaying the Board's decision to proceed with 
the plan for utilizing portables for kindergarten and on 
October 19, 1973, counsel for the Board, by letter to the 
Court, requested a speedy resolution of the Petition for 
Approval of the Long Range Building Plan which was filed on 
May 30, 1973. Kelley v. Metropolitan County Bd, of Educ.,
492 F. Supp. 167, 174 (n 19). No action was taken.

On February 8, 1974, counsel for plaintiffs moved for 
attorneys' fees. Five months later, again by letter to the 
Court, dated July 15, 1974, counsel for the Board informed 
the District Court of the Board's plan to seek funding for 
high schools that would, beginning in 1978-79, offer com­
prehensive programs, including Whites Creek High School and 
Goodlettsville-Madison High School. The letter further 
listed elementary schools that were part of the long range 
building program. Again, on April 11, 1975, plaintiffs 
moved for attorneys' fees, and on October 16, 1975, filed a 
motion to dispose of their two previous but still pending 
motions for attorneys' fees.

On October 14, 1976, the Board renewed its Petition for 
Approval of the Long Range Building Plan and also petitioned 
for further relief. The Board specifically described the 
new plans for the proposed Goodlettsville-Madison High School.

8



On December 27, 1976, plaintiffs responded to defendant 
Board's Long Range plan. Plaintiffs moved that defendants 
be held in contempt for:

A) construction of Goodlettsville-Madison H.S.
B) expansion of Hillsboro, Overton, Hillwood, Glen- 

cliff, Stratford and Maplewood H.S. into compre­
hensive high schools.

C) construction of Whites Creek Comprehensive High 
School

D) establishment of Cole Elementary School annex, and
E) proposed closure of Pearl H.S.

Plaintiffs also reiterated the disparate burden of the 1971 
plan on black children.

On August 28, 1978, plaintiffs amended their petition 
for contempt and for further relief based upon

A) construction and expansion in white community;
B) closure of formerly all-black schools;
C) optional transfer program;
D) failure to increase the black-white faculty ratio. 
Again, in a motion for contempt filed August 7, 1979,

plaintiffs alleged that the Board did not implement the 1971 
plan in good faith. Specifically, plaintiffs alleged that 
the optional transfer plan in effect was used to facilitate 
perpetuation of segregation.

The District Court held a hearing on August 21 and 24, 
1979, on the optional transfer plan, and on August 27, 1979, 
ordered that a new comprehensive desegregation plan be devised.

_ 9 -



The Court further found that the optional transfer plan in 
practice violated the spirit of the 1971 order and the July 
2, 1978, order. The District Court declined however, to 
find defendants to be in contempt of the July 2, 1979, order. 
Kelley, supra, at 479 F. Supp. at 129.

Once the School Board had devised its comprehensive 
desegregation plan, the District Court held sixteen days of 
hearings between March 3 and May 1, 1980. On May 20 the 
District Court rendered its Memorandum Opinion and Order on 
further desegregation. Kelley v. Metropolitan County Bd. 
of Educ., 492 F. Supp. 167 (M.D. Tenn. 1980). The Court 
held that the 1971 plan had been ineffective and rejected 
the Board's plan which required more transportation. It 
directed the Board to devise a plan which would include 
neighborhood schools for kindergarten and the lower elemen­
tary grades, thus leaving those grades segregated. More­
over, the District Court held that a 15% presence of either 
race as a minority was sufficient for desegregation purposes 
in the middle schools, and ordered the use of magnet schools 
and implementation of educational components to improve 
intercultural understandings.

The Board filed its proposed desegregation plan on 
January 19, 1981, and plaintiffs filed objections on 
February 6 and March 25, 1981. Further hearings were held 
on March 30, 1981, after which the District Court rejected a 
plan proffered by plaintiffs and ordered implementation of 
the Board's plan. Its Memorandum Opinion, entered on April 
17, 1981, also lifted the 1971 restriction on construction

10



in the outlying areas, since the newly approved plan pur­
ported to be a county-wide desegregation plan. Kelley v. 
Metropolitan County Bd. of Educ., 511 F. Supp. 1363 (M.D. 
Tenn. 1981). Plaintiffs appealed.

On July 27, 1982, this Court upheld that portion of the 
District Court's decision that required implementation of 
the educational components and a remediation program for 
schools or classes with below-average achievement or with a 
majority of students from lower socio-economic backgrounds. 
The Court also endorsed the District Court's order to pro­
ceed with the implementation of a magnet school and an Afro- 
American studies program. However, this Court found that 
"[i]n large measure, the pupil assignment components of this 
plan do not withstand constitutional scrutiny" and reversed 
and remanded "for proceedings not inconsistent with this 
decision." Kelley v. Metropolitan County Bd. of Educ., 687 
F .2d 814, at 817, 824 (1982).
Post Remand Proceedings

On remand, the District Court delineated four issues 
which required further proceedings: 1) the development and
implementation of a new student assignment plan; 2) the 
resolution of allegations of discriminatory faculty assign­
ments; 3) the resolution of still-pending motions for 
contempt; and 4) the resolution of plaintiffs' outstanding 
requests for attorneys' fees dating back to the inception of 
the lawsuit.

On October 7, 1982, the Court, although refusing to 
formally stay implementation of this Court's mandate,

11



effectively stayed any further proceedings on the student 
assignment plan until disposition by the Supreme Court of 
defendants' then yet to be filed petition for certiorari. App.
_____. At the October 7 status conference the district
Court also informed plaintiffs that, in reliance on Buian v. 
Baughard, 687 F.2d 859 (1982), it would not and could not 
hear a motion for attorneys' fees inasmuch as it sought 
compensation for appellate work. In an abundance of cau­
tion, plaintiffs filed a protective Motion for Award of 
Attorneys' Fees and Expenses in this Court on October 20,
1982.

Defendants' petition for certiorari, filed on October 
22, 1982, was denied without comment or dissent on January 
24', 1983, 51 U.S.L.W. 3553. In the interim, the District 
Court held hearings on the issue of faculty and staff 
assignments, contempt and attorneys' fees on December 6, 7 
and 8, 1982. Prior to hearing any evidence, the District 
Court made two rulings which greatly narrowed the scope of 
the hearings on the issue of attorneys' fees. First, the 
Court held that no fees would be awarded for services ren­
dered prior to May 30, 1972, the date on which the Court 
affirmed the 1971 desegregation plan entered by the District 
Court. Second, the Court ruled that it would not award fees 
for appellate work because it lacked authority to do so 
under Buian v. Baughard, supra, 687 F.2d 859 (1982). The 
former ruling eliminated 1,468.5 hours and 80.4 days; the 
latter ruling disallowed 133.3 hours of service by Senator

12



Avon Williams and Richard Dinkins, and all of the work per­
formed by NAACP Legal Defense Fund attorneys Bill Lann Lee 
and Norman Chachkin.

The December, 1982 hearings primarily focused on the 
attorneys' fees issue. The parties agreed to a stipulation 
on principles but deferred the specifics of a faculty and 
staff assignment plan until a comprehensive student assign­
ment plan had been developed. App. ___. With the exception
of one witness proffered by the Board, the parties agreed 
that the contempt issue should be decided on the previously 
submitted motions and memoranda.

The District Court ruled on plaintiffs' motions for 
award of attorneys' fees on February 23, 1983; plaintiffs 
filed their notice of appeal the next day. The District 
Court's order is discussed below.

In March 1983, after lengthy negotiations, the parties 
agreed to a comprehensive county-wide desegregation plan in 
satisfaction of this Court's July 27, 1982, opinion and 
remand. Kelley v. Metropolitan County Bd. of Educ., supra,
687 F.2d 814. The negotiated plan was presented to the 
Court on April 8 and following a hearing, the District Court 
has indicated that it will approve the plan.
The Opinion Below

By their motions for attorneys' fees, as recounted by 
the District Court, plaintiffs requested the following amounts

(1) Avon Williams, for the firm of Looby and Williams, 
917.8 hours at $200 per hour and 36.4 days at 
$1,500 a day, totaling $238,160, plus a 100 per­
cent contingency factor for a total of $176,320;

13



(2) Avon Williams, individually, 1,211.5 hours at $200 
per hour and 87.3 days at $1,500 a day, totaling 
$373,250, plus a 100% contingency factor for a 
total of $746,000;

(3) Richard Dinkins, individually, 215.6 hours at $120 
per hour and 38 days at $1,500 a day, totaling 
$82,872, plus a 100 percent contingency factor for 
a total of $165,744;

(4) Norman J. Chachkin, for the Legal Defense Fund, 43 
hours at $200 per hour, totaling $8,600, plus a 
100 percent contingency factor for a total of 
$17,200;

(5) Bill Lann Lee, for the Legal Defense Fund, 270.4 
hours at $115 per hour, totaling $31,096, plus a 
100 percent contingency factor for a total of 
$62,192;

(6) Legal Defense Fund, costs and expenses totaling 
$47,488.15 ..

3/Slip. op. at 5.
In its February 23, 1983, Memorandum and Order the Dis­

trict Court (hereinafter "Slip op."), consistent with its
pre-hearing rulings, ruled that no fees would be awarded for

4/services rendered prior to May 30, 1972. The Court relied 
on Northcross v. Board of Education of Memphis City Schools, 
611 F.2d 624, 635 (6th Cir. 1979), cert, denied, 447 U.S.
911 (1980). And, relying on Buian v. Baughard, 687 F.2d 859 
(1982), the District Court ruled that it could not award 
fees for appellate work.

As preliminary matters, the District Court ruled that 
the Civil Rights Attorney's Fees Awards Act of 1976, 42

3/ The Legal Defense Fund request does not encompass work 
done by counsel who have moved on to judicial office. Tr. 
46, App. ___.
4/ The Court refused plaintiffs' offer of proof for pur­
poses of preserving evidence relating to pre-1972 services 
and appellate work. Tr. 29, 39, 40-41 , App. ___.

14 -



U.S.C. § 1988 applied retroactively to this suit, citing 
Hutto v. Finney, 437 U.S. 678 (1978); Northcross v. Board of 
Education of Memphis City Schools, supra, 611 F.2d 624, 635, 
and Weisenberqer v. Huecker, 593 F.2d 49 (6th Cir. 1979).
Slip op. at 4, App. ___. And the District Court ruled that
plaintiffs in this litigation are prevailing parties under 
Northcross, supra, and Buian, supra. Slip op. at 3, 4, App.

In light of its ruling limiting the fee award to post- 
May 30, 1972, services rendered, the Court found it unneces­
sary to reach the question of whether or not fees can be 
awarded for services rendered by the late partner of Senator
Williams, Z. Alexander Looby. Slip op. at 13, App. ___.
The Court refused to allow compensation for time spent with 
Dr. Hugh Scott on the ground that his utilization was 
"frivolous, at best." Slip op. at 15, App. ___.

Plaintiffs' total hours were reduced by 10% "to elimi­
nate duplication and padding, and to compensate for the use
of reconstructed time records." Slip. op. at 16, App. ___.
The Court noted that a slightly higher percentage reduction 
would have been appropriate except that counsel for plain­
tiffs claimed in affidavits that the times claimed excluded 
telephone and other conversations among counsel and that 
some duplication had already been omitted because of the 
Court's ruling on presentation of evidence on appellate 
services rendered. Slip op. at 16 n. 4, App. ___.

- 15 -



The Court found a reasonable rate for Senator Williams 
to be $100 per hour for office work, $1,000 per day for 
trial. For Richard Dinkins, Senator Williams' partner, a 
reasonable rate was set at $60 per hour, $600 per trial day.

The Court refused plaintiffs' request to augment these 
awards with a 100 percent contingency factor, but instead 
awarded a 25% contingency, resulting in the total award for 
Senator Avon Williams to $101,812.00 and for Richard Dinkins 
to $37,401.75. No fees were awarded to Legal Defense Fund 
attorneys for services rendered in this suit.

Finally, the Court disallowed costs for Dr. Scott pur­
suant to 18 U.S.C. § 1821 for the same reasons as it gave in 
refusing attorneys' fees for time spent with Dr. Scott. Slip
op. at IS, App. ___. The District Court declined to hold
defendant in contempt. Slip op. at 20, App. ___.

ARGUMENT

"No attorneys' fees have ever been awarded in the history 
of this litigation." Slip op. at 2. For over twenty-seven 
years this action has been successfully and diligently liti­
gated virtually without financial remuneration by Mr. Avon 
N. Williams, Jr., first with his late partner Z. Alexander 
Looby, and since 1977 with Mr. Richard H. Dinkins. From 
time to time lawyers from the NAACP Legal Defense Fund have 
also performed substantial services in this action, primarily 
in connection with various appeals. The Legal Defense Fund 
has also provided relatively small amounts of financial

16



assistance in the form of stipends and reimbursement of 
costs.

This litigation has engendered strong hostility towards 
plaintiffs' counsel over the years and is among the most 
difficult cases, both in terms of protraction and complex­
ity, to ever be heard by the District Court. Few, if any, 
other attorneys would have accepted the responsibility of 
representing plaintiffs in this action. Avon Williams and, 
more recently, Richard Dinkins have, and plaintiffs have 
indisputably prevailed. Thus, under Northcross v. Board of 
Education of Memphis City Schools, 611 F.2d 624, 634 (4th 
Cir. 1979), cert, denied, 447 U.S. 911 (1980), plaintiffs 
are entitled under the Civil Rights Attorneys' Fees Awards 
Act of 1976, 42 U.S.C. §' 1988, to recover reasonable attor­
neys' fees.

The District Court erroneously narrowed the scope of 
recoverable fees by ruling that under Northcross, id., pre- 
1972 services were not recompensable. The 1971 Order was 
not a final order; to the contrary, it was a beginning— "the 
first comprehensive and potentially effective desegregation 
order ever entered in this litigation." Kelley v. Metropol­
itan County Bd. of Educ., 463 F.2d 732 (1972). The record 
and the history of this case reflects that it has been con­
tinuously litigated for over a quarter of a century. Counsel 
for plaintiffs should be awarded fees dating back to the 
initiation of this lawsuit.

17



The Court further erroneously narrowed the scope of 
recoverable fees by refusing to hear evidence on services 
performed on appeal. Buian v. Baughard, 687 F.2d 859 (1982), 
does not prohibit a district court from awarding fees for 
appellate work.

The District Court ignored the record and erroneously 
computed the amount of recoverable fees for Mr. Avon Williams 
and Mr. Richard Dinkins.

Moreover, plaintiffs are entitled to fees for time 
spent with their expert witness Dr. Hugh Scott, and to recover 
expenses incurred by Dr. Scott. In denying these fees and 
expenses, the District Court wrongly disregarded Northcross, 
supra, which held that a party need not prevail on all issues 
to recover fees under § 1988, and disregarded the fact that 
the Court's August 27, 1982, opinion upheld implementation 
of programs ordered by the District Court on suggestion of 
Dr. Scott.
1. The District Court Erred by Refusing to Award Fees

for Pre-1972 Services
a . The 1971 Order Was Not a Final Order

In Hutto v. Finney, 437 U.S. 678, 694 n. 23 (1978)
the Supreme Court held that the legislative history of § 1988
explicitly made the Act applicable to all cases pending on
the date of enactment. This Court has noted that

[t]he legislative history expressly states that 
the statute is intended to apply to all "pending" 
cases, and "pending" means that all the issues in 
the case have not been finally resolved. So long 
as there was an active controversy in the case at 
the time the Act became effective, the Act applies

18 -



to authorize fees for the entire case, unless special circumstances exist which would make an
award manifestly unjust.

Northcross v. Board of Education of Memphis City Schools,
611 F .2d 624 , 633 (1979 ) .

The District Court below followed this Court's ruling 
on retroactivity but, nonetheless, relying on Northcross, 
id., held that the plaintiffs were barred from seeking an 
award of fees for services rendered prior to 1972. The Dis­
trict Court held that such fees were barred because once the 
1971 order was affirmed by this Court, Kelley v. Metropolitan 
County Bd. of Educ., 463 F.2d 732 (1972), it became a final 
order which separated the preceding proceedings into a sep­
arate and severable stage of this litigation.

In doing so the District Court cited this Court's 
Northcross decision where it found that "the district court 
was incorrect in its ruling that it had no statutory authority 
to award fees for services rendered prior to 1972," and 
remanded the case with instructions that "[t]he fee awarded 
should cover at least the period back to 1968 when the suit 
became active again following the Supreme Court's Green 
decision." Northcross v. Bd. of Ed., supra, 611 F.2d at 
635. The District Court focused on this Court's statement 
that

[t]his is not to say that a retroactive award 
of attorney's fees must be made in all school 
desegregation cases. Certain interim aspects of 
the case may have been subject to a final order 
setting the issue of attorney's fees to that point, 
rendering the reopening of longsettled aspects of 
the case unfair.

Id., at 635, and

19



It is true that a long, complicated case of 
this sort can result in several "final" orders, 
which in the interests of finality are deemed to 
dispose of all foregoing issues. Absent a timely 
appeal, a party is bound by the order and any 
later challenge is deemed to be a collateral 
attack judged by different, and more stringent 
standards than on direct review. Bradley [v. 
Richmond, Va. Bd. of Educ., 416 U.S. 696] at 710- 
11. If the defendants are correct in their char­
acterization of the 1966 action in the interest of 
finality, plaintiffs should not be permitted to 
reopen that judgment in order to obtain attorneys' 
fees.

Id.
On remand, the Northcross district court ruled that

... the services expended on the portion of the 
case occurring prior to the filing on 26 July 1968 
of plaintiffs' motion for further relief should be 
denied. A plan of desegregation in this cause 
conforming to what was thought to be the then 
existing legal standards, was developed and filed 
jointly by the parties on 22 July 1966. That plan 
was intended and treated by the parties as a final 
plan of desegregation and a distinct break in the 
proceedings in this case occurred at that time. 
Previous to that time there had been two appeals 
taken successfully by the plaintiffs. The 1968 
motion for further relief did not grow out of any 
evident intention of these parties to litigate 
that plan further, but was the direct result of 
subsequent Supreme Court decisions in the case of 
Green v. County School Board of New Kent County, 
Virqinia, 391 U.S. 430 (1968), and its companion 
cases which represented very significant new 
development in the law pertaining to school deseg­
regation .

Northcross v. Board of Education of the Memphis City Schools, 
Civil Action No. 3931, January 4, 1982 (W.D. Tenn.) at 6, 7
(emphasis added). App. ___.

Plaintiffs argued below that the 1971 Order in the 
instant litigation was not a "final order" similar to the 
1966 consent order in Northcross. First, as is readily

20



apparent from the plain language of Judge McRae's opinion in
Northcross, the parties to that litigation understood that
the 1966 order was final with respect to the then pending
issues. They contemplated no further appeals. Indeed, the
very nature of a consent order dictates that the parties and
the court agree that the issues covered by the order are
being resolved. The operative language in Judge McRae's
opinion on remand, emphasized above, leaves no doubt that it
was the intent of the parties that resulted in "a distinct
break in the litigation." And the court's approval of the
parties' consent by way of an order puts the court's impri-

5/matur upon that understanding.
No such intention or understanding was ever present in 

this case. To the contrary, both parties appealed the Dis­
trict Court's 1971 Order. The District Court specifically 
retained jurisdiction. See Kelley v. Metropolitan County 
Bd. of Educ., supra, 163 F.2d at 747. One of the plain­
tiffs' primary concerns on appeal was the disparate impact 
of the 1971 plan on black students, an issue on which this

5 /  Nor is Wheeler v. Durham Cty. Bd. of Ed., 585 F.2d 
618 (1978), of any support to the District Court's opinion. 
While it was true there that the Court of Appeals for the 
Fourth Circuit ruled that plaintiffs could not seek fees 
for services rendered since 1960, that determination was 
based upon the fact that at one point in that litigation, 
the case "was pending only in the technical sense that 
jurisdiction to enter such further orders as were necessary 
and desirable had been retained," and "[t]here was no cer­
tainty ... that the jurisdiction of the court would ever 
again be exercised." Id., at 623. Such was never the case 
in the instant litigation, which has been continuously pur­
sued since its initiation.

21



Court declined to rule but preferred to leave to the Dis­
trict Court "when the case is back before him." Id. at 746. 
Moreover, during the course of further proceedings in 1971- 
72 there were further proceedings in which the Board was 
found to have implemented the 1971 plan in bad faith. Kelley 
v. Metropolitan County Bd. of Educ., supra, 687 F.2d at 816.

The District Court rejected these arguments below. But 
analysis of the Court's rationale reveals that it was 
reaching out to decide these issues against plaintiffs, and 
in doing so the District Court committed error.

First, the District Court stated that "[a]n order entered 
by any court is no less 'final simply because one or more of 
the parties may have lingering doubts about the conclusion 
reached by the court." Plaintiffs have no doubt that any 
party who zealously believes in his or her position has 
lingering doubts about an adverse decision. The District 
Court is correct in stating that such a decision is not 
rendered any less "final." But that misses the mark. The 
point, as explained above, is that because the 1966 
Northcross order was a consent order, the parties and the 
court explicitly recognized that a "final order" had been 
entered that was the basis of Judge McRae's ruling in 
Northcross, which the District Court erroneously attempts

22



to apply to this litigation.-'
The District Court below also dismissed the signifi­

cance of the fact that it explicitly retained jurisdiction 
after the 1971 order, noting that "[w]here equitable relief 
is sought, a court will often retain jurisdiction to oversee 
the remedy and monitor its efficacy." Slip op. at 9, App.
___. And the District Court rejected the claim that the
fact that this Court's 1972 opinion left open the door to 
the District Court for matters pertaining to implementation
of the plan. The Court observed that "[b]y focusing on the

%

implementation of the plan, plaintiffs at the time neces­
sarily acknowledged that the plan adopted was a comprehen­
sive one which addressed all outstanding issues, leaving 
only matters of implementation to be addressed." Id. 
Finally, the District Court ruled that this Court's 1972 
order definitively rejected the "disproportionate burden" 
claim.

But these rulings by the District Court ignore its pre­
vious holdings in this case and those of this Court. This 
Court, in the very opinion upon which the District Court

6/ Northcross did not hold that the mere entry of an order 
which is affirmed on appeal constitutes a final order for 
purposes of barring subsequent attorneys' fees application. 
Indeed, the Northcross district court observed that "[p]re- 
vious[ly] ... there had been two appeals taken successfully 
by the plaintiffs." Northcross v. Board of Education of the 
Memphis City Schools, supra, Civil action No. 3931, January 
4, 1982, at 6. The Court did not choose either of these 
appeals as a bar to attorneys' fees applications for ser­
vices previously rendered. Again, it was the clear inten­
tion of the parties and the court with respect to the 
finality of the 1968 order that was the determining factor.

23



relies, found evidence that "local authorities in Nashville 
and Davidson County have not made good faith efforts to 
comply with the order of the District Judge." Kelley v. 
Metropolitan County Bd. of Educ., supra, 463 F.2d at 745. 
Moreover, this Court stated in 1972 that "[t]he order of 
the District Judge in the first comprehensive and poten­
tially effective desegregation order ever entered in this 
litigation." Id., at 734 (emphasis added). "And despite 
the 1971 plan's potential, the record establishes and the 
District Court found that desegregation in the Nashville 
schools has never been achieved. Thus the effects of state- 
imposed segregation have yet to be eradicated." Kelley v. 
Metropolitan County Bd. of Educ., supra, 687 F.2d at 816. 
Thus, this Court has clearly indicated that the 1971 plan 
was unfulfilled potential; it did not satisfy constitutional
requirements or close the door to the unresolved issue of

7/how to achieve a desegregated system.- It was not a "final 
order."

b. Even If the 1971 Plan Did Constitute a Final Order, 
Bradley and Northcross Do Not Bar an Award of Fees 
for Pre-1972 Services in This Lawsuit________

Neither Bradley v. Richmond, Va. Bd. of Ed., supra, 416
U.S. 696, nor Northcross v. Board of Education of City of

]_ / In 1979, the District Court found that the 1971 plan 
was deficient inasmuch as the "perimeter line drawn by the 
Court in 1971" acted to progressively resegregate inner 
city schools. Kelley, supra, 479 F. Supp. 122. Moreover, 
as this Court observed in 1982, "[i]t was the School Board's 
implementation of the 1971 plan that prevented effective 
desegregation, according to the District Court." Kelley, 
supra, 687 F.2d at 816.

24



City of Memphis, supra, 611 F.2d 624, support the proposi­
tion that every time an order is entered that purports to 
meet constitutional standards, a final order has been 
entered. Nevertheless, that is the logical conclusion one 
reaches after following the Court's logic. Yet, if that were 
the case, plaintiffs who were dissatisfied with an order 
which was affirmed upon appeal would have to file for fees. 
In a lengthy, complicated lawsuit such as this, where the 
case has been up and down the ladder between the District 
Court and the Supreme Court, plaintiffs would have to file 
for fees after every order affirmed on appeal, thus 
disrupting their ability to provide adequate representation. 
Here, as in Northcross, "[n]ot only was there no 'final 
judgment' which could reasonably be said to settle the issue 
of fees during that period, but there was no time to raise 
the matter of fees at all." Northcross v, Bd. of Ed. of 
City of Memphis Schools, supra, 611 F.2d at 635.

In Bradley, supra, 416 U.S. at 722 (n. 28) the Supreme 
Court observed that it "had been inclined to follow a 'prag­
matic approach' to the question of finality." In fact, the 
Supreme Court stated that

Surely the language of § 718 [of the Emergency 
School Aid Act of 1972] is not to be read to the 
effect that a fee award must be made simultaneously 
with the entry of a desegregation order. The 
statute, instead, makes the existence of a final 
order a prerequisite to the award. The unmanage­
ability of a requirement of simultaneity is appar­
ent when one considers the typical course of liti­
gation in a school desegregation action.

25



Id., at 722. A careful reading of Bradley further reveals
that the "many final orders" language, at 416 U.S. at 722, 
concerns the protection of plaintiffs, not school boards.

Since most school cases can be expected to 
involve relief of an injunctive nature that must 
prove its efficacy only over a period of time and 
often with frequent modifications, many final 
orders may issue in the course of the litigation.To delay a fee award until the entire litigation is 
concluded would work substantial hardship on plain­
tiffs and their counsel, and discourage the 
institution of actions despite the clear congres­
sional intent to the contrary evidenced by the 
passage of § 718. A district court must have 
discretion to award fees and costs incident to the 
final disposition of interim matters.

Id., at 722-23 (emphasis added).
In sum, the language of Bradley does not preclude a 

plaintiff from waiting until all of the issues in a lawsuit 
are resolve. Moreover, Northcross does not preclude plain­
tiffs in this litigation from being awarded fees for pre- 
1972 services, because the District Court below did not 
enumerate what specific issues in the case had been 
resolved, "rendering the reopening of long-settled aspects 
of the case unfair." Northcross v. Board of Education of 
Memphis City Schools, supra, 611 F.2d at 635. In fact, the 
record shows that student assignment, faculty and staff 
assignment, facilities, transportation, and extra curricular 
activities have been actively pursued by plaintiffs 
throughout the course of this litigation and the period of

- 26



time covered by the fee request.—
2. The District Court Erred By Refusing to Award Fees for

Services Rendered on Appeal
a. Buian Addressed the Issue of Whether a Party Can 

Be Awarded Costs for a Totally Unsuccessful Appeal 
and Does Not Preclude a Fees Award by a District 
Court for Appellate Services_______________________

In Buian v. Baughard, 687 F.2d 859 (1982), this Court 
heard cross-appeals from an award of attorneys' fees in a 
civil rights case. Defendants in that suit challenged an 
award of attorneys' fees for the appeal of the case on the 
merits, in which "plaintiffs obtained no relief and in which 
defendants prevailed in all respects." Id., 860. Buian was 
a suit by a former city employee against several members of 
a police department and three members of a civil service 
commission. "One commissioner was voluntarily dismissed and 
the Court directed a verdict for the police officers. The 
jury directed a verdict of $1 in nominal damages and $650 in

8/ Plaintiffs note that their first petition for attor­
neys' fees was filed on February 8, 1974. Prior to that 
time, but after this Court's May 30, 1972, opinion, the case 
had not been inactive, although the District Court took no 
action on various motions before it.

Thus, the reasonableness of the time in which plain­
tiffs filed for attorneys' fees should not be judged from 
the perspective of the present, but rather, as of the date 
of the initial filing. Given the activity in this litiga­
tion immediately following affirmance of the 1970 plan, the 
time in which plaintiffs filed their first petition for 
attorneys' fees was very reasonable. See Northcross, supra, 
611 F.2d at 635. Moreover, given that the District Court 
failed to rule on any motions between 1972 and 1979, plain­
tiffs should not be penalized because it appears, through no 
fault of their own, that the fees request presently at issue 
is remote in time from many of the services rendered.

27



punitive damages against each of the remaining two
Commissioners." Id., at 860. From this verdict an appeal 
was unsuccessfully taken. Both the plaintiffs' petition for 
rehearing en banc and his petition for a writ of certiorari 
were denied. The plaintiff then filed a petition for 
attorneys' fees in the district court; that award was 
vacated by this Court and remanded for reconsideration in 
view of Northcross v. Board of Education of Memphis City 
Schools, supra, 611 F.2d 624. On remand, the district court 
ruled that the plaintiff was the prevailing party and 
granted a much more substantial award of fees. On appeal, 
this Court took the position that "Congress could not have 
intended that unsuccessful civil rights appellants receive 
attorney's fees for their fruitless efforts on appeal, 
merely because they prevailed below, when other unsuccessful 
appellants are required to pay costs for their lack of 
success." Buian, supra, 687 F.2d at 861.

Buian is thus inapposite to the instant case. Plain­
tiffs in this action are not seeking fees for a "totally 
unsuccessful appeal." Moreover, they are indisputably and 
overwhelmingly the prevailing party in this litigation.
(Slip op. at 3, App. ____.)

The District Court attaches controlling significance on 
language in Buian which reiterates the Supreme Court's hold­
ing in Hutto v. Finney, supra, 437 U.S. at 679, that § 1988 
permits an award of attorney's fees "as part of the costs,"

28



and which denies attorney's fees because costs were not
allowed. But it was the successful nature of the appeal in
Buian which accounted for the ineligibility for costs and

9/the denial of fees.
Buian does "read section 1988 to require that attor­

ney's fees be awarded to the party who has prevailed on the 
case as a whole only if costs are awarded to that party at 
the level for which fees for services are sought: the dis­
trict court, the court of appeals, and the Supreme Court." 
Id., at 862. But that language must be interpreted in its 
context. This Court ruled that "it would violate the man­
date of Fed. R. App. P. 39(a) to construe Northcross as 
requiring an award of attorney's fees on appeal to a party 
who prevailed on the case as a whole but was not entitled to 
costs on appeal." Id. (emphasis added). Fed. R. App. P. 
39(a) leaves to the Court the determination of taxing costs 
in an appeal where the judgment of the district court is

9/ This Court in Buian, relying on Fed. R. App. P. 39(a), 
stated that "[a] party is not entitled to costs on appeal if 
its appeal is dismissed or the judgment of the district 
court from which it appeals is affirmed." Buian, supra, at 
861.

Fed. R. App. P. 39(a) provides that:
Except as otherwise provided by law, if an 

appeal is dismissed, costs shall be taxed against 
the plaintiff unless otherwise agreed by the par­
ties or ordered by the court; if a judgment is 
affirmed, costs shall be taxed against the appel­
lant unless otherwise ordered; if a judgment is 
reversed, costs shall be taxed against the appellee 
unless otherwise ordered; if a judgment is affirmed 
or reversed in part, or is vacated, costs shall be 
allowed only as ordered by the court.

29



affirmed in part, reversed in part, or vacated. Although 
the Court makes the determination of whether or not a party 
in such a case is to be taxed or awarded costs, the thresh- 
hold question is one of eligibility or entitlement. Plain­
tiffs submit that the holding in Buian was limited to the 
issue of whether a party could be awarded attorney fees for 
a totally unsuccessful appeal in which he was not entitled 
to costs and does not bar an award of fees to a party who is 
eligible for costs and who prevails at all levels.10/

b. The District Courts Are Peculiarly Equipped to 
Make Determinations on Matters of Fact________

The determination of a proper attorneys' fees award is 
one which generally requires an evidentiary hearing and per­
formance of the fact-finding functions usually reserved for 
the district courts. Thus, to the extent that the Court 
below read Buian to require de novo factual inquiries and 
determinations on attorneys' fees applications, it runs con­
trary to the established divisions of judicial functions and 
frustrates judicial economy.

The Supreme Court has held that the "amount of the 
award for such [appellate] services should, as a general 
rule, be fixed in the first instance by the District Court,

10/ The fact that the District Court's decision was affirmed 
in part and reversed in part when last before this Court,
687 F.2d 814, does not mean that plaintiffs were any less 
prevailing parties. See Northcross, supra, 611 F.2d at 636. 
In fact, as discussed below, the portion of the District 
Court's opinion that was affirmed was in large part urged 
upon the Court by plaintiffs.

30



after hearing evidence as to the extent and nature of the 
services rendered. Perkins v. Standard Oil Co. of Califor­
nia, 399 U.S. 222 (1970) at 223. In Bradley v. Richmond,
Va. Sch, Bd., supra, 416 U.S. at 723, the Supreme Court 
observed that "the resolution of the fee issue may be a 
matter of some complexity and require, as here, the taking 
of evidence and briefing." While it is true that this Court 
has made its own determination of an appropriate award of 
attorneys' fees based upon the record where it had a "long 
and detailed familiarity" with the case, "under other 
circumstances the action would be remanded for a 
determination of such reasonable amounts...." Monroe v. 
County Bd. of Educ. of Madison County, Tennessee, 583 F.2d 
263, 265 (1978).

This Court remanded the original appeal on attorney's 
fees in Buian, supra, 687 F.2d at 860, to the district court 
for reconsideration in view of Northcross, thus recognizing 
the lower court as the appropriate fact-finder. Buian does 
not stand for the proposition that appellate courts are to 
perform fact-finding missions without a developed record 
below.

On January 11, 1983, in Rowe v, Cleveland Pneumatic 
Company, Numerical Control, Inc., No. 80-1407, this Court 
ruled that:

Although under unusual circumstances, not pres­
ent in this case, this Court has undertaken the 
task of fixing an appropriate attorney's fee, e.g., 
Monroe v. County Bd. of Ed, of Madison Cty,, Tenn., 
the question of what would constitute a reasonable

31



attorney's fee in a particular case is dependent 
upon many factors and is particularly within the 
expertise of the trial court. Weeks v. Southern 
Bell Telephone and Telegraph Co., 467 F.2d 95 (5th 
Cir. 1972). In the present case, the District 
Court, upon proper motion, has the discretion to 
award a reasonable attorney's fee as part of the 
costs, taking into consideration the services ren­
dered by plaintiff-appellant's counsel, including 
those services relating to the appeal and the addi­
tional proceedings in the District Court.

Thus, in Rowe plaintiff's motion to file for attorney's fees
11/in this Court was denied."

Thus, the District Court's finding that it was unable 
to consider attorneys' fees for services rendered on appeal 
is unsupported by the law.
3. The District Court Erred in Its Computation of Fees for

Avon Williams and Richard Dinkins
a. Avon Williams
Avon Williams is "a preeminently experienced and suc­

cessful civil rights lawyer in the State of Tennessee, and 
indeed in the Sixth Circuit." Monroe v. County Bd. of Ed. 
of Madison Cty., Tenn., supra, 583 F.2d at 265. Indeed, Mr. 
Williams is widely recognized to be "the premier civil 
rights lawyer in the State of Tennessee, Tr. 358, 367, App.
____ , one of the top civil rights lawyers in the country,
Tr. 336-37,367, App. ____, and generally "one of the best
trial attorneys practicing, certainly, in the Nashville- 
Middle Tennessee area and perhaps in a much wider area than 
that." Tr. 217, 114, 137, App. He is known in the legal

11/ Plaintiffs in this action apprised the Court below of 
this Court's order in Rowe by way of a Supplemental Memo­
randum in Support of an Award of Attorney's Fees, Costs and 
Expenses served on January 19 , 1983. App. ____.

32



community as an excellent trial lawyer, Tr. 301, 230, App.
____, and the quality of services rendered in this
litigation has been "exemplary." Tr. 342, App. ____. "This
case is a model for other desegregation cases." Id.

While testimony was introduced to the effect that many 
experienced lawyers in the Middle Tennessee area charge $100 
per hour for services, Tr. 113, 174, 185, 188, 207, 224,
231, App. ____, some charge more, Tr. 134, 158, 300, 348,
357, App. ____. Mr. Williams' hourly fee for office work is
$120. Tr. 264, App. ____. Lawyers in Nashville do, in some
cases, charge $200 per hour or more. Tr. 114, 119, 136,

12/215-16, 225-26, 357, App. ____.- Substantial testimony was
tendered at trial to support a base award of fees to Mr. 
Williams well above the $100 hourly rate granted by the
District Court. (Brandstetter, Tr. 115, App. ___ , — $125-
$150; Woods, Tr. 138, App. ____, — $135-$165; O'Rourke, Tr.
181, App. ____, — $200; Nolan, Tr. 301, App. ____ , — $150;
Barrett, Tr. 358, App. ____, — $150-$200; Caldwell, Tr. 368-
69, App. ____, — $200; Hooker, Tr. 412, App. ____ , — $200).
The District Court ignored this testimony and awarded fees 
at the lowest possible rate given the testimony before him 
with respect to experienced attorneys.

In Johnson v. Georgia Highway Express, Inc., 488 F.2d 
714 (5th Cir. 1974), the Fifth Circuit listed twelve factors

12/ Congress "intented that the amount of fee awarded under 
TThe Fees Act] be governed by the same standards which prevail 
in other types of equally complex Federal litigation, such 
as antitrust cases," S.Rep. No. 95-1011, 94th Cong., 2d 
Sess., 6 (1976), and that "civil rights plaintiffs should 
not be singled out for different and less favorable treatment," 
H.R. Rep. No. 94-1558, 94th Cong., 2d Sess., 9 (1976).

33



which should be considered in determining an appropriate 
award of attorney's fees. These factors include:

1) The time and labor required;
2) the novelty and difficulty of the question;
3) the skill requisite to perform the legal ser­

vice properly;
4) the preclusion of other employment by the 

attorney due to acceptance of the case;
5) the customary fee;
6) whether the fee is fixed or contingent;
7) time limitations imposed by the client or the 

circumstances;
8) the amount involved and the results obtained;
9) the experience, reputation, and ability of the 

attorneys;
10) the "undesirability" of the case;
11) the nature and length of the professional 

relationship with the client;
12) awards in similar cases.

Id., at 717-719. In Northcross, supra, this Court observed
that the Fifth Circuit does not provide guidance on how its
checklist is to be used and concluded that

an analytical approach, grounded in the number of 
hours expended on the case, will take into account 
all the relevant factors, and will lead to a rea­
sonable result. The number of hours worked will 
automatically reflect the "time and labor 
involved," "the novelty and difficulty of the 
question," and "preclusion of other employment." 
The attorney's normal hourly billing rate will 
reflect "the skill requisite to perform the legal 
service properly," the customary fee," and the 
"experience, reputation and ability of the 
attorney." Adjustments upward may be made to 
reflect the contingency of the fee, unusual time

34



limitations and the "undesirability" of the case.
Thus, applying the approach used in this decision 
will result in an award reflecting those 
considerations traditionally looked to in making 
fee awards, but will also provide a logical, 
analytical framework which should largely eliminate 
arbitrary awards based solely on a judges predis­
position or instincts.

Id., at 642-43.
The record below does not support the District Court's 

fee award.. The District Court ignored the unrefuted evi­
dence that Mr. Williams' normal hourly rate is $120 per 
hour. Instead, the District Court awarded a fee not only 
substantially lower than that requested because of the peculiar­
ities of this case, but also significantly lower than the

13/normal billing rate.
This litigation has been running continuously since it 

was filed in 1955; it has been the most protracted case Mr.
Williams has ever handled. Tr. 243, App. ____. Mr. Williams
took the case with the expectation that his clients would 
not be expected to pay very much and that he would recoup
whatever fees became available. Tr. 248-49, App. ____. It
is among the most complex and important cases to have been
litigated in the Nashville area. Tr. 139, 410, App. ____.
It has meant a loss of professional opportunity for Mr.
Williams and the late Mr. Looby. Tr. 247, App. ____. This

13/ Moreover, plaintiffs maintain that the 25 percent 
contingency applied by the District Court does not reflect 
the special circumstances in this litigation, described 
above.

35



litigation was unpopular at its inception, and it remains 
unpopular today. Tr. 141, 273-74, 343, 358-59, 424, App. 
____. Mr. Williams has been subjected to threats, har­
assment and physical danger. Tr. 246, 271, 387, App. ___
The District Court took judicial notice of the unpopularity 
of the case and the fact that Mr. Williams was "subject to 
acrimony and perhaps worse." Tr. 404, App. ____. It was a
case that no other attorney would take, and which falls
squarely into the category of cases the Civil Rights

14/Attorney's Fees Awards Act of 1976.
Nonetheless, in spite of the evidence presented below,

the District Court awarded a fee to Mr. Williams that was
lowest in the range of fees charged for experienced
attorneys in the Nashville area. In so doing, the Court
failed to correctly apply the Northcross factors as

15/discussed above.

14/ John Jay Hooker, a prominent Nashville attorney, busi­
nessman and political personage testified that "I know of no 
white lawyer who during the period whether you are talking 
about from 1955 to 1972 or 1972 forward, who could have or 
would have done the same thing that I think Avon Williams 
has done," and that "[i]f the lawsuit had been presented to 
the firm of Hooker, Hooker and Willis, I couldn't have taken 
the lawsuit for the economic reasons because we wouldn't 
have been paid." Tr. 407.
15/ In Green v. Williams, 541 F. Supp. 863 (E.D. Tenn. 
1981), a much less lengthy and complex litigation, Avon 
Williams was awarded attorney's fees under § 1988 at the 
rate of $325.00 per hour for trial time and $162.50 per hour 
for nontrial time. A $5,000 contingency was also awarded. 
Id., at 870. On appeal, this Court affirmed with the excep­
tion of the trial time rate, which it reduced to $200.00 per 
hour. Slip. op. of April 22, 1983 at 7. This Court 
credited testimony that "it is not unusual among leading 
members of the Nashville Bar to charge a fee ranging from 
$150 to $200 per hour for both office and courtroom work." 
Id.



b. Richard Dinkins
The same factors and evidence adduced during the Dis­

trict Court hearings, discussed above, apply to Mr. Dinkins. 
Plaintiffs only note that the record contains unrebutted 
evidence that Mr. Dinkins' experience surpasses most 
attorneys of comparable years in the practice of law. Tr.
307, App. ____ . He is, already, an experienced civil rights
attorney (Tr. 307, 368, App. ___ ), who had substantial
experience in civil rights litigation before he graduated 
from law school. With the exception of two witnesses called 
by the defendants below (Tr. 125-26, 154), the attorneys 
testifying on an appropriate fee for an attorney with ten 
years experience or less testified that a fair award would 
range from $65 - $130. Tr. 138, 180, 209, 224, 229, 339,
348, App. ____. Nevertheless, the District Court ignored
the record below and set the base fee for Mr. Dinkins at $60 

16/per hour. In the case of a young attorney handling
difficult and complex litigation, and who has accumulated 
considerable expertise, awarding fees at the normal rate may
be unfair. Tr. 168, 306, App. ____. A young but experienced
lawyer handling complex litigation should not be penalized 
merely because of age. Georgia v. Highway Express, Inc.,
488 F .2d 714, 719 (1978).

16/ As noted above, supra, at , the District Court 
awarded ten times the hourly rate per trial day for Mr. 
Williams and Mr. Dinkins.

37



c. The District Court's Reductions for Duplication and 
Reconstruction Are Not Justified____________________

The District Court's ten percent reduction of time in 
this case was unjustified. Such an award is proper in some 
cases under Weisenberger v. Huecker, 593 F.2d 49, 54 (4th 
Cir. 1979), and Oliver v, Kalamazoo Board of Education, 576 
F.2d 714, 715 n. 2 (6th Cir. 1976), but not properly 
applicable here. First, fees for appellate work have already 
been eliminated below, thus eliminating all of the fees 
requested by Legal Defense Fund attorneys. The remainder of 
the fees at issue on this appeal is for services rendered by 
two attorneys at most. Under these circumstances, an 
arbitrary reduction of time is neither appropriate nor 
justifiable.

Moreover, to the extent that the 10% reduction purports 
to correct for reconstructed time statements, the record 
below unrebuttedly contradicts the necessity of such a 
reduction. Attorneys who reconstruct their hours for pur­
poses of fees applications invariably underestimate their
hours. Tr. 46, 333, 335, 370-71, 376, 408, App. ____.
Indeed, even the mere maintenance of contemporaneous time
records, although certainly more accurate, adds to time
expended on a case. Nothing in the caselaw requires a
district court to make reductions for duplication or reconstruction,
and the circumstances in the instant case do not justify
such a reduction.

38



4. The District Court Erred When It Refused to Grant Fees 
for Time Spent by Plaintiffs' Counsel with Dr. Sco~tt 
and Abused Its Discretion by Refusing to Award Expenses 
to Plaintiffs Incurred by Dr. Scott
That portion of the District Court's 1981 opinion that

was affirmed by this Court was based in large upon Dr. Hugh
Scott's testimony. The District Court's 1981 opinion was
affirmed insofar as it provided for educational components,
including a remediation program for students who underperform
or from disadvantaged backgrounds, and for an Afro-American
studies program, Kelley, supra, 492 F. Supp. at 184; 511 F.
Supp. at 1369-70; aff'd in relevant part, 687 F.2d at 817.
Thus, the District Court's conclusion that "plaintiffs'
utilization and subsequent repudiation of Dr. Scott was
frivolous, at best" is unsupportable by the record and the

17/previous decision of this Court. Moreover, this
grievance of the District Court was aired in the 1981 opinion, 
511 F. Supp. at 1367, prior to this Court's review.

17/ Plaintiffs continue to emphasize that, despite the 
District Court's interpretation of Dr. Scott's testimony, 
they never abandoned their goal of maximum feasible deseg­
regation under the standards set forth in Swann v. 
Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971), and its 
progeny, and nothing in Dr. Scott's testimony is inconsistent 
with that goal.

39



CONCLUSION

The District Court's inadequate award of attorneys' 
fees should be reversed, and the District Court should be 
ordered to award attorneys' fees for the entire course of 
this litigation, including fees for services rendered on 
appeal, as requested by plaintiffs or at such rate and in

i-

v such amount as the Court deems appropriate.
Respectfully submitted,

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37201

JACK GREENBERG 
JAMES M. NABRIT, III 
THEODORE M. SHAW 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants

r
t

40



CERTIFICATE OF SERVICE

Undersigned counsel for plaintiffs-appellants certifies 
that on this 18th day of May, 1983, copies of the foregoing 
Brief for Plaint iffs-Appellants were served upon counsel for 
the parties by prepaid first class United States mail addressed 
to:

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

Attorney tor Pia mtitts-Appeiiants

41



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