Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Response to Motion of Plaintiffs' for Interim Award of Attorneys. Fees

    IN M?nr^NITED STATES district courtMIDDLE DISTRICT OF TENNESSEE 
NASHVILLE DIVISION

ROBERT W. KELLEY, et al., 
VS.

METROPOLITAN COUNTY BOARD OF 
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY, TENNESSEE et al.,
VS.

STATE OF TENNESSEE, et al.,

]
]
]
J
]
]
]
]
]
]
]
]

JERRY HARGETT, et al. 
VS.

METROPOLITAN COUNTY BOARD 01 
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY, TENNESSEE et al.,

]
]
]
]
]
]
]
]

NOS: 2094, 2956
JUDGE WISEMAN

NO: 3-86-0621
JUDGE WISEMAN

— -?NSE TO MOTION OF pt.atktTTFFo . , 
.INTERIM AWARD of ATTORNEYS' FEES~

PRELIMINARY STATEMENT

The plaintiffs have moved for an in+-Q •ror an interim award of counse!
fees in the amount of $137 934 or v.■>137,934.25, based on this court's order
and memorandum of February 23 1983 aty , 1983, awarding counsel fees for
the plaintiffs in the amount of S139.214.25. It ±. defendants,

position that plaintiffs, previous application for fees must he 
re-examined for a determination of the " e x t e n ^ ^ h i o h  
Eloii^fa^ a i g ^ a e t n i i e d  op each 
^ ^ 2 2 _ l e e s " ,  as mandated by the Court of Appeals in its



opinion filed September 23, 1985. Kelley v MetRna . c _e-Lley y. Metropolitan r ^ nt-
^-Education, 773 F.2d 677, 685 (6th Cir. 1985).

IN THIS .k .

On Behruary 23, 1983, this court a Hemorandum
pinion and Order awarding the plaintiffs $139_214 25 ^

I T T 1- a calculation based upon hours “  3o.

;i;;.a 9enerai findin9 th« *- - » » -  Prevailing
P - a s ,  pursuant to Edueatjon ^  _

611 F. 2d 624 (6th Cir. 1979), cert den • d
447 0.3. 911 (1980). Between the time of thi " ' ~
the Sixth Circuit's • • S C°Urt S order and

opinion en banc dated September 23, 1985, the
Supreme Court of the United states decided Hensl
461 O.S. 424 (1983, mn iimsle^Eckerhert,
cross app ‘ The Metropolitan Board of EduCation filed a

t r  in tws acti°n ass—  -  of that

-  j : ndnot deterninin9 the — *•Plaintiffs had prevailed in this action. (See Brief
Behalf of Defendants-Appellees c 0"
p „ Ppellees, Cross-Appellants, MetropolitanBoard of Education Pf „ u . pontann, et al., Exhibit A, p. 33 ) ~  _P- The Court of
ppeals later remanded the case tn +-h • 

to , • t0 thlS COUrt instructions
to examine the extent to which plaintiffs had
subs tan t- i g * prevailed on eachsubstantive issue before awarding fees Kell a
County Bba.d -i . ^ ^ L J L ^ e t r o 2 o J ^----^ ^ . a ^ L ^ ^ d u c ^ i o n ,  773 F>2d 7 / 7 ~

’ oa-‘ v6th Cir. 1985)
** “uwing for their interimnterim award of fees 7 .

have excluded from ■ ' the plaintiffs
r°m their application on)v eonly fees pertaining to one

2



day and 2.8 hours spent by Avon N. winiaes, Jr. after Hay 3Q 
1972. „hich ls allegedly all th0 tlme spent by ^  wiii.ams

relating to the Metropolitan Mayor and Council-time for which 
the court of Appeals also stated that specific exclusion should 
e made. It is the defendant Board of Education’s position that 

this court must examine with specificity the distinct phases of 
this litigation since 197? t-o determine whether, with regard to
"each substantive issue," the nlainf-iee uplaintiffs have prevailed.

A perusal of the affidavits filed previously by the 
plaintiffs relating to attorneys' fees together with the 
Pleadings in this cause demonstrates.that there have been several 
substantive issues since 1972 upon which the plaintiffs have not 
prevailed. These are as follows: (A, litigation with respect to
e action by the Board of Education and third party plaintiffs

against the Department of Health Ednn^t-•1th, Education and Welfare upon
which the plaintiffs took no stand- (B) t h o
, . . ' (B) the contempt issues uponwhich this court rulef) ,ruled in its order of February 23, 1983,

C°UntY Ssail^aucation, 558 F.Supp.
. « 0  (M.n. Tenn. 1983,; (C, all issues relating to faculty

-ing this relevant period of time; ,0, all efforts regarding 
Judge Morton's fecu^i -ir. + i •
p , . . „ 381 ln thlS C3Se; <E > - U  efforts regarding
ear. High School; (Fj aii relating to tn

Board of Education's third defendant
defendants; (0) an  e ^  - * “ *

eff°rtS ** ^  b a t i n g  to the

3



desegregation plan proposed by HGH Associates; (H) all efforts 
relating to the Metropolitan Council. Time regarding each of 
these issues was apparently included in this court's award of 
fees on February 23. 1983.1 It is thus clear that further 
findings and an evidentiary hearing must be held to determine the 
extent to which the plaintiffs have prevailed on the specific 
substantive issues since 1972.

Brief descriptions of these specific substantive issues 
which are suggested by plaintiffs’ affidavits follows for the 
court’s consideration which are keyed by paragraph to the 
plaintiffs' affidavits (Exhibit B);2

(A) The action against HEW.

On or about August 23. 1972, the third party complaint was 
filed against HEW, seeking funding for certain buses. This 
action was joined in by the Metropolitan Board of Education. See 
K£l.ley v. Metropolitan County Board of Education 372 F.Supp. 528

not^ave ^ £ i d E ? ^ &defendants reserve obiertion t-i co^rt in its 1983 order, these 
presented by the P ^ t i t ^ n ^ f e e s .

2

plaintiffs’ ̂ af^idavits^thosp^ar an t0 dsl“ M ta from the
upon which the plaintiffs did not3.’^  hours which concern issues 
8v«SHU-*v n L S i a g  H e r e  wav j  Vpon furttlerare subject to question. V additional hours or areas which

4



(M.D. Tenn. 1973); 372 F.Supp. 540 (M.D. Tenn. 1973). The 
filings in this case indicate that the plaintiffs took no action 
with regard to this complaint, and it clearly is a separate 
proceeding in this case against a separate third party defendant . 
Accordingly, it cannot be said under any circumstances that the 
plaintiffs prevailed insofar as this litigation is concerned. 
Moreover, as indicated by the testimony of Mr. Avon Williams 
during the trial of this attorneys' fees matter, to the extent 
the plaintiffs were interested in this litigation, their interest 
concerned the actions of several "white councilmen who were 
threatening that they would not provide the funds for the 
additional buses." (See Transcript, December 6, 1982, p. 69,
Exhibit C.) To the extent the plaintiffs' concerns related to 
the action of the council, pursuant to the Sixth Circuit's 
opinion, Kelley v. Metropolitan County Board of Education, 773 
F.2d 677 (6th Cir. 1985), payment of fees therefor should be 
directed to the Metropolitan Council, from whom the plaintiffs 
have never sought fees.

(B) The contempt charges dismissed by this court.
In this court's order of February 23, 1983, it specifi­

cally found that the plaintiffs' charges of contempt were without 
merit. These charges related to such actions by the Board as use 
of portables for kindergartens, use of Cole as an annex for 
Lakeview, the expansion of Hillsboro, Glencliff, Hillwood, 
Maplewood, Ovhi-ton and Stratford High Schools into comprehensive 
high schools, and the proposal to build the Goodlettsville-

5



Madison Comprehensive High School. Kelley v.
558 F.Supp. 468_ 480 (M o_

1983). This court specifically found that the plaintiffs'
Charges of conte.pt were without merit. In addition, virtually 
a n  concerns set forth in the plaintiffs' conte.pt petition were 
not only overruled, they are now a part of the current desegrega­
tion Plan (e.g. the comprehensive high schools). This ruling on 
the petition for contempt was not appealed by the plaintiffs, and 
accordingly they have not prevailed.

(C) Faculty.

The plaintiffs have made repeated charges regarding
faculty and personnel since 197? h™1972. However, there has been no
finding by this court in plaintiffs- favor relating to personnel

1972. in addition, the stipulation referred to by
the plaintiffs (Exhibit D,, is no indication of any success
Obtained by them. Indeed, it is and was the defendants' position
that the stipulation constituted an effort by the plaintiffs to
forego any hearing upon the Board's performance regarding
personnel which they had no basis to attack 3 a° attack. An evidentiary
hearing is necessary to determine the extent of Hune extent of time spent on the
faculty issue, which is not clear from the affidavits.

As this court will rpraii ^_ , ,
issue to fdllow December, 1982 hearinn^ reserved the faculty contempt. hearings on attorneys' fees and

6



(D) Judge Morton’s recusal.
To the extent time was contained in this court's award of 

fees regarding Judge Morton's recusal, that time should be 
excluded. The plaintiffs failed in their efforts to have Judge 
Morton's recusal set aside on appeal. (See Plaintiffs' Motion to 
Vacate Order entered 8/22/72 recusing Honorable L. Clure Morton.) 
In addition, to the extent plaintiffs' attorneys performed 
services relating to Judge Morton's recusal, those services 
related to actions of the Metropolitan Mayor and Council, who 
requested Judge Morton's recusal. (See H, infra).

(E) Pearl High School.
As this court is aware, a significant amount of time has 

been spent in this case, particularly since 1977, regarding 
efforts to keep Pearl High School open and to expand it into a 
comprehensive high school at the Pearl High School site. All 
efforts regarding Pearl High School have been unsuccessful, as 
indicated finally in the Court of Appeals' order of 1982.
Kelley v. Metropolitan County Board of Education, 687 F.2d 814 
(6th Cir. 1982), cert, denied, 51 U.S.L.W. 3553 (1982). An 
evidentiary hearing is clearly required to establish what portion 
of plaintiffs' time was spent on the Pearl High School effort, 
which includes but is not limited to plaintiffs' efforts to have 
constructed an expanded comprehensive high school on that site.

7



F> — 8rd °f education ' s third party com .l,in, ag„..... .
state defendants.

The plaintiffs have taken no formal position regarding the 
defendant Board of Education's third party complaint against the 
state defendants. Indeed, as indicated by the Sixth Circuit's 
letter submitted herewith, the plaintiffs have not even been 
considered parties to the Board of Education's efforts at the 
appellate level. (See Exhibit E.)

(G) ~ me relat?d to P^n submitted by HGH AssnH^.c 
In 1981 the plaintiffs proposed a desegregation plan 

prepared by HGH Associates, which was never accepted by any 
court. This plan was not only non-responsive to this court's 
previous order reguesting a desegregation plan, it was also never 
adopted in any form. Accordingly, time spent regarding this 
distinct effort by the plaintiffs should be eliminated.

(H) -Tlme relating to the Metropolitan Council and Mayor 
The plaintiffs have excluded one day and 2.8 hours after 

«ay 30, 1972. regarding the Metropolitan Mayor and Council 
These relate only to the affidavit entries of August 16, 17, and 
August 30, 1972. A review of plaintiffs' affidavit entries, 
together with time claimed regarding the action against the 
Department of Health, Education and Welfare which the plaintiffs 
have claimed an interest in only in light of the Metropolitan 
Council's action (paragraph A, su^ra,, indicates that additional 
time claimed by the plaintiffs related to these other Metropoli­
an defendants. Accordingly, additional time should be excluded.

8



CONCLUSION

Based upon the Supreme Court's opinion in Hensley v.

~  Erhari' 461 U'S- 424 (1983)' a"d th. ^urt of Appeals' opinion 
adopting the Hons ley standard in 1985, the defendants
Metropolitan County Board of Education, et al. respectfully
sutait that before any fee is awarded in this case, there tust be
additional findings and evidentiary hearings relating to the
Plaintiffs’ success upon each substantive issue in this case.

Respectfully submitted,
WILLIS & KNIGHT

By:

215 Second Avenue North 
Nashville, TN 37201

Attorneys for Metropolitan 
County Board of Education, et al.

9



CERTIFICATE OF SERVICE

hereby certify that a true and exact copy of the fore- 
going document has been forwarded to Hr. Avon Williams, WILLIAMS 
s DINKINS, 203 Second Avenue North, Nashville, TN 37201, 
Attorneys for the Kelley plaintiffs; Mr. Stephen Nunn, Assistant 
Attorney General, 450 James Robertson Parkway, Nashville, TN 
37219, Attorneys for the State Defendants; Hr. William Leech, 
dr.. LEECH & DOLLHOFER, loth Floor, L S c Tower, Nashville, TN 
37219, Mary Martin Schaffner, HOWELL, FISHER, BRANHAM S NORTH,
400 Court Square Building, Nashville, TN 37201, Attorneys for 
the Hargett Plaintiffs; and Mr. George Barrett. 217 Second Avenue 
North, Nashville, TN 37201. Attorney for Metropolitan Develop­
ment Housing Agency of Nashville and .Davidson County, on this 

day of September, 1986.

WILLIS & KNIGHT

10

r \



sq.uexi3ddv-ssoao 'saanaddy 
-squepUajag jo jqeqag uo japg

V I,iaiHX3



v 3I9IHX3

s jug x X oddv-sso.to ' sasxisddv-sjuGpuojaQ joj sAoujojjv
ci:ij,9:.[:io:ih j.MawdOHV a v n o

0096-6S?: (SI9) 
ZQZ LZ OOSS3UUO.L ' 311 TAl{SL’M 
99.103 'onuoAV puooag gxi!

UOST.UL’H *J UBTJL’W 
*j r  ' S T I I T M  *H UIGTXIT/.l 

iIHOINH 5 SITIIH

S J,NY9 93 d dV - S S OH 0 'S3 3993 dd V - S ,L NYO 33,13a 
30 3 3 Y H 3 9  MO J 3 I H 9

UOTSTATQ 3 [ [ TAL|SG3
o o s s o u u o .l jo jOTJjsxa o i p p x w  

399, -IOJ janog joi.TjsTcf s o j g j s pojxun 0 9 9 iuojij x^sddv uq

• sjuexisddy-sso.xo
' S03X joddv-sJUGpuo J3Q

■ A

' sooxxsddv-ssoag 
' £3'JGXX3ddv-sj jijuxexd

xe jo ' N o i i v o n a a  3 0 a n v o a
A 1,3:900 MV 1,19 OdOH JL 3K

' ‘Ie 'A3993X 'M IH390H

£t’cS/S<lTS-£8 *0M 

1,1190910 HJ,XIS 3H lL H03 

S 9 V 3 d d V  30 1,9900 S33V3S 0 3 3 1 3 9  3 H 3  MI



IV.

V.

A. The court's award to Mr. Williams of 
$100 per hour plus a 25% contingency 
factor, yielding an effective rate of 
$125 per hour, was clearly supported 
by the evidence, and was well within 
the district court's discretion. . . . .

B. The court's award to Mr. Dinkins of 
$60 per hour with a 25% upward adjust-

was supported by the evidence and 
was clearly within the bounds of the 
district court's discretion .

C. The district court did not abuse its 
discretion in reducing the total number 
of claimed hours for duplication by 10%.

D. The court appropriately refused to award 
fees for the time spent with the Plaintiffs' 
consultant, Dr. Hugh Scott, since his 
testimony was unnecessary to this case

Page

22

25

26

29
THE DEFENDANT BOARD OF EDUCATION SHOULD 
NOT BE RESPONSIBLE FOR PLAINTIFFS 1 FEES 
RELATING TO CLAIMS MADE BY INTERVENING 
PARTIES OR ACTIONS BY THIRD PARTY 
DEFENDANTS . . . . 31
THE COURT ERRED IN NOT DETERMINING THE 
SPECIFIC EXTENT TO TOUCH THE PLAINTIFFS 
HAD PREVAILED IN THIS ACTION . . . . . . .

CONCLUSION. 35
CERTIFICATE OF SERVICE. 37

ii -



TABLE o f AUTHORTTTPC
Cases

Bri«Vs.s6i r 9; r c?£ * ;" ■
40 L - Ed. 2d 476 719 74)'

Br°un s' Education, 347u* S. 483 (1954)
~ ‘ * • » c

Pa?e

c • * ® . « ® © «

® © © e

BUir£-^VBaU^hard/ 687 F. 2d 859 (6th Cir. 1979)
.................

G°SCitC B?aJd °f Education of the

GreSunty?0f9? SfsEd« 0 ta96?f T ”. ?Sf . 

Ha5T«hftcI;.H?917 ^ bach' 606 F- 2d 128 ■

HenSr,V' Elarksville Municipal
F 2da916S?5?h1oDiStriCt' 579 * ^a y16 (5th Car. 1978)

Hen(sfyct: 51 U-S-E-W. 4552 ‘
* * * ' * ® • O ,

HUt2?fis' fi"ney' 437 U.S. 678, 98 S ct 3=65, 57 L. Ed. 2d 522 (1978)
/ * * « ©

Johnson v. Combs, 471 F 2d 84 t k*-u ^ • 1972) a. 2d 84 (5th Cir.

KelBiLa;i^ rr ^ ? r 5?°s?strl?r!si3f

® ° ® o c c _ e® ° © « O

8/ 14, 15 

1

17, 20, 33

c « e a 1

• • » c 1

• <• . . 32

• • . . 17

28 > 29, 30, 34 35

17, 19 

15 

22

7



Cases
Page

Kelley v. Board of 
City of Nashvill 
4 L. Ed. 2d 240, 
(1959). . . . .

Education of th 
e, 361 U.S. 924 
80 S. Ct. 293

e
r

® <* c «
Kelley v. Metropolitan 

of Education, et al. 
814 (6th Cir. 1982) , 
51 U.S.L.W. 3553 .

County Board 
, 687 F. 2d 
cert. denied,

Kelley v. Metropolitan 
Education, et al., 
(6th Cir, 1972) . .

County Board of 
463 F. 2d 732

Kelley v. Board of Education 
City of Nashville, 270 F 
(6th Cir. 1959) . .

of the 
2d 209

Kelp^7 v-.MetroP°litan County Board of
n i°n' et al"  511 F- SuPP- 1363 (M.D. Tenn. 1981) ^

KG1m L  Metropolitan County Board of Education, et al., 492 F,
(M.D. Tenn. 1980) . Supp. 167

Kelley v Metropolitan County Board of 
Education, et al., 479 p,
(M.D. Tenn. 1979) Supp. 120

Kelley v. Metropolitan County 
Education, et al., 372 F. 
(M.D. Tenn. 1973)

Board 
Supp.

of
540

Kelley v. Metropolitan County 
Education, et al., 317 F. 
(M.D. Tenn. 1970) . .

Board
Supp.

of
980

Kelley v. Board of 
of Nashville, 3 
65.1 (M.D. Tenn.

Education of the City 
Race Rel. L. Rep. 
1958) . . . . . .

e o . l

■ • • 7,  35

8 8 o 2, 3,

1

° . . 6, 7

o • 6, 12,
35

® . 5,6

. . 4

. . 2

. . 1

16

30, 33,

iv -



Cases
Page

Louisville Black Police Officers 
Organization, Inc. v. city of

F * 2d 268 (6th

Board of Education of
7fiR ?M°n C°Unty' 203 F. Supp.768 (M.D. Tenn. 1960) P

N°rM^mr?SS V‘ Board of Education of Memphis; City Schools, 412 U S 427 (1973). ' u*b*

N°r.̂hcr°ss v: Board of Education of
fi9/P^ SuClty Scho°ls, 611 F. 2d 624 (6th Cir. 1979) rert- Hn • * 447 n c c m  ' cert• denied,q q / u.S. 911 (1980) ----  ----— -

N°rM ^ rnSS V- B°ard of Education of emphis City Schools, Civil 
Action No. 3931 (W.D. Tenn., 
January 4, 1982)..........

diver v. Kalamazoo Board of
Cir“ w 8 )  576 P’ M  716 <6th* ° • O ©

Pea- S  Y' Drew Municipal Separate
^MhS01 Dlstrict. 433 F. Supp 1072(M.D. Miss. 1977) ^  U• • • • « # «• • ® •

Swann^v.^Charlotte-Mecklenburg, 402

Tay«ttva “ " n u ' . s?°.p.‘ 2d.6«  .

vulcan Society of Westchester County 

(S.D. n .y . 198|,33 F - SUPP- !<>M

* c • 21/ 24, 25, 26,27

O O O 1

• . 13

• * 8' 9, 10, 11,
12, 13, 15

• • 14, 16, 18, 27

. . 27

. . 17

° • 2, 3, 13

o . 17

32



Cases Page
Weisenburger v. Huecker, 593 F. 2d 

499 (6th Cir. 1979).
' * * e * o « e

White v. New Hampshire Department of 
Employment Security, 455 U.S. 445
7 ^ -  Ed- 2d 325' 102 S* ct* 1162, (1982) . . . . . .

OTHER AUTHORITIES 
20 U.S.C. §1617 . . . . . . .
42 U.S.C. §1988 . . . . • O O . O . . .

Rule 58, Federal Rules of Appellate Procedure

13, 16 
16, 17, 19 
3

vi



References to the record from the district court 
wrll be referred to by reference to the original record trans­
mitted to the Court of Appeals from the district court on March 

1 5 ' 1 9 8 3 f and t0 the ^PPlemental record transmitted to the 
Court of Appeals on April 29, 1983. Specifically, all references 
to the original record of March 15, 1983, will be cited as

”'R’ l f  R’ 2 * * * References to the supplemental record of
April 29, 1983, will be referred to as "S.R. 1, S R 2

References to the transcripts of hearings in this cause 
will be referred to with the date of the hearing, following the 
abbreviation >Tr." For example, references to pages of the 
transcript of the December 6, 1982, hearings will be referred to 
as "Tr., December 6, 1982, p. 4." Transcripts of hearings in 
1979 and 1980 have also been transmitted to the Court by the

to by date, 
by exhibit

district court, and these likewise will be referred
Exhibits to any of the hearings will be referred to 
number.

Vll



■
9

H
af
a
i
i

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 
NO. 83-5175/5243

ROBERT W. KELLEY, et al.,

Plaintif fs-AppeHants, 
Cross-Appellees,
v.

METROPOLITAN COUNTY 
BOARD OF EDUCATION, et al.,

Defendants-Appellees, 
Cross-Appellants.

On Appeal FromThe United States District Court 
Middle District of Tennessee 

Nashville Division
For The

BRIEF ON BEHALF OF
DEFENDANTS-APPELLEES, CROSS-APPELLANTS

QUESTIONS PRESENTED

WHETHER THE 1972 ORDER OF THE COURT OF
appeals approving a comprehensive de­
segregation PLAN WAS A FINAL ORDER UNDER 
NQRTUCROSS V . BOARD OF EDUCATION OP 
pjgg^CTTJ^SCHOOLS, -ffi-'F. 2d 6 24 (6th 

1 19 79) t WHICH PRECLUDED AN AWARD OF



ATTORNEYS' FEES FOR PRE-1972 SERVICES
1975?M0TI0N °F the plaintiffs made in

The Defendants submit that the district court correctly 
answered this question in the affirmative.

II.

OFEFEE? Ann ?^cTRICT C0URT’S CALCULATION OF FEES AND ITS EXCLUSION OF CERTAIN spp_
VICES WAS SUPPORTED BY THE EVIDENCF Ann
WITHIN THE DISTRICT COURT'SMSCRETION
UNDER LOUISVILLE BLACK POLICE OF^P epq

ppoqq _ !T (^th Cir. 1983) , and NORTH-
---- ---- _ i u n  r. z a 624 (6th Cir. 1979)?

The Defendants submit that the district court's cal-
culation of fees for post-1972 work was within the district 
court's discretion.

WHETHER A DISTRICT COURT MAY CONSTDFP a m  

APPELLANT'S MOTION FOR ATTORNFYS' FEES^

The Defendants submit that the district court appears 
to have correctly answered this question in the negative.

IV.

S S S ?  w w r
intervening parties o rD h i r dD  arty D efendants ?



The Defendants submit that the district court 
by answering this question in the affirmative,, and that 
should be answered in the negative.

V.
WHETHER THE PLAINTIFFS ARE ENTITLED TO FEES 
AS A PREVAILING PARTY FOR ALL CLAIMS OR 
POSITIONS TAKEN BY THEM, REGARDLESS OF THEIR 
EXTENT OF SUCCESS ON ANY PARTICULAR CLAIM?
The Defendants submit that the district court

by answering this question in the affirmative, and that
should be answered in the negative.

erred
it

erred
it



COUNTERSTATEMENT OF THE CASE

The Plaintiffs filed complaints against the Board
of Education of the City of Nashville in 1955, and against
the Board of Education of Davidson County in 1960, seeking
desegregation of the city and county school systems pursuant
to Brown v. Board of Education, 347 U. S. 483 (1954). Both
prior to the consolidation of the cases and afterwards, the
district court approved and the respective school boards im-

1/
plemented several desegregation plans. The Supreme Court's 
decision in Green v. Board of Education of New Kent County,
391 U. S. 430 (1968) , prompted further hearings resulting in the 
district court's approval in 1971 of a rrew plan submitted by the

1 / In 1958, Judge William E. Miller approved a desegregation
Kelley v. Board ofplan drawn by the city Board of Education.

Education of the City of Nashville, 3 Race Rel. L. Rep. 
Tenn. 1958). The Court of Appeals rejected part of the 
based upon the State's Pupil Preference Law, but 
remainder of the plan. Kelley v. Board of 
of Nashville

651 (M.D. 
plan

approved the 
Education of the

denied upon 
Education of

, 270 F. 2d 209 (6th Cir. 1959) 
application of the Plaintiffs. 
the City of Nashville, 361 U.S

City
Certiorari was 

Kelley v. Board of 
924, 4 L. Ed. 2d

240 80S. Ct. 293 (1959).
Similarly, Judge Miller approved the county's porposed plan, 

and the Court of Appeals affirmed. Maxwell v. Board of Education 
of Davidson County, 203 F. Supp. 768 (M.D. Tenn 
828 (6th Cir. 1962). Subsequently, the Supreme 
that portion of the plan permitting minority to 
in an opinion involving other school systems as 
v. Board of Education of the City of Knoxville,
S. Ct. 1405, 10 L; Ed. 2d 632 (1963).

1960), 301 F. 2d 
Court reversed only 
majority transfers
well. 
373 U,

See, Goss 
;. 683, 83



Department of Health, Education and Welfare (hereinafter HEW 
Plan). This plan was modeled on the Supreme Court's latest 
opinion addressing appropriate pupil assignment remedies in 
desegregation cases, Swann v. Charlotte-Mecklenburg, 402 U.S.
1 (1971). The 1971 order also reapproved the district court's 
previous order setting forth a plan for faculty desegregation. ^  

Both parties appealed the approval of the HEW Plan.
The Plaintiffs asserted that the plan placed an inequitable 
burden upon young black students and failed to include all 
schools in the school system. The Defendants asserted, inter 
aLia, that the pupil assignment plan was contrary to the prevailing 
law and that it produced certain practical difficulties relating to 
the health, education and welfare of the children. Kelley v. 
Metropolitan County Board of Education, et al., 463 F. 2d 732
(6th Cir. 1972). Neither side appealed from the faculty portion 
of the order.

2_/ The district court in 1970 ordered implementation of a 
faculty desegregation plan, decreeing that the ratio of black 
to white faculty members in each school should reflect the 

percentage of black to white faculty members in the 
school system (20%). in addition, the 1970 order required the
?£orDi0r 'CO come forth with a Plan which, along withthe Plaintiffs plan, was rejected in 1971 in favor of the HEW

”em°Jan° ™ , of **>. 23, 1971, S.R. 4; Kelley v. Metropolian 
37— p?f , et al., 317 F. Supp. 980 (M.D. Term. 1970
flustering ^  configuration, of pairing and

schools^on
—  s  ^ ^ ^ 3 : sss:-

4/ See notl 2. Memorandum Opinion, S.R. 4, p. 1 1.

2



On May 30, 1972, this Court affirmed the district 
court's order, stating that the pupil assignment plan, while 
perhaps not ideal," seemed "clearly to be a plan for ending 
a dual school system based on race and substituting therefor 
a unitary one." 463 F. 2d at 746. In rejecting the Plaintiffs' 
argument about disparate burden, this Court stated —  "We do not 
believe, however, that we can appropriately hold that the 
District Judge abused his discretion in approving the HEW plan 
which (like the plan in Swann) incorporated this feature."
This Court further stated that if the parties experienced adverse 
effects under the plan, these could be submitted to the district 
court pursuant to the general rule of equity which permits 
injunctive decrees to be modified on the basis of changed cir­
cumstances. Id., at 745-746. This Court also denied the
Plaintiff s prayer for attorneys' fees under the prevailing lav;

_
at that time, and ordered the parties to pay their own costs. 
Mandate Nos. 71-1778, 71-1779. Accordingly, the order of May 20,
1972, resolved all pending issues in the case.

A period of relative inactivity followed the district 
court's approval of the desegregation plan in 1971. At the

17 Noact permitting attorneys' fees was in effect at this 
time. The Plaintiffs sought attorneys' fees and double costs
pursu to Rule 58, Federal Rules of Appellate Procedure Id. .

3



1\

time this Court affirmed the district court's decision in 1972,
the Nashville-Davidson County school system had been operating
under the plan for one school year. All matters brought to the
district court's attention during the first year of implementation
related specifically to the effectuation of the district court's

6/
judgment (i. e. , reports to the court) or to appellate matters.

This inactivity continued after this Court's affirmance
of the plan in 1972. After initial problems of housing and

7/
transportation were resolved in one short hearing, the only
court hearings between 1972 and 1979 concerned a collateral claim
by intervening parties against the federal government, Kelley v.
Metropolitan County Board of Education) et al,, 372 F. Supp. 540
(M.D. Tenn. 1973). Between 1972 and April 11, 1975, when the

8/
Plaintiffs first filed their motion for attorneys' fees, the 
Plaintiffs filed only five documents in the district court, only 67

67 See docket entries at beginning of official record.
7/ See Petition of Defendants Pursuant to Court's Judgment 
TJuly 17, 1972), S.R. 19; Reply of Plaintiffs (August 14,
1972) , S.R. 22; Memorandum of the Court (August 19, 1972) ,
S.R. 25.
8/ The Plaintiffs claim to have filed an application for fees 
on February 8, 1974. A review of the docket entries reveals 
that the motion for fees was made by a group of intervening 
third party plaintiffs. The original Plaintiffs filed a 
motion to dispose d £ their motion for attorneys' fees on 
October 16, 1975. S.R. 69, S.R. 74, S.R. 79.

4



The three
9/

three of which actually dealt with desegregation, 
documents sought not to change the district court's order, but 
to implement it. The Plaintiffs did not file a motion for further 
relief until October 14, 1976, and it too was addressed toward 
effectuation of the HEW Plan and to the Defendants' proposals for 
modifications designed to handle adverse effects or new situations. 
In 1979, the Board's and the Plaintiffs' petitions for modification 
came on for hearing. See, Kelley v. Metropolitan County Board of 
Education, et al., 479 F. Supp. 120 (M.D. Tenn. 1979). * 60

10/

97 See Reply of Plaintiffs to Petition of Defendants (August 
14, 1972), S.R. 22; Plaintiffs' Reply to Defendants' Petition 
(September 11, 1972), S.R. 50; Response of Plaintiffs to 
Defendants' Kindergarten Petition (June J9 , 1973), S.R. 63.
The remaining documents related to the district judge's order 
of recusal and to discovery. See, Plaintiff's motion to vacate 
order of court recusing Honorable L. Clure Morton, filed August 
23, 1972, S.R. 37; Plaintiffs' motion filed May 30, 1973, S.R.
60.
10/ Plaintiff's Petition for Contempt and for Further Relief, 
filed on December 27, 1976, attacked the Board's proposals 
for kindergartens which had not been covered by the Court's 
order, the Board's proposals to expand some buildings to 
eliminate overcrowding, and the Board's proposals to refurbish 
or replace several buildings which had deteriorated physically. 
S.R. 82 (December 27, 1976). See Board's petitions at S.R. 63; 
S.R. 59.

Similar motions were filed by the Board after 1976, 
primarily for the approval of a series of comprehensive high 
schools ringing the city pursuant to the Court's 1972 order, 
since vocational-technical funds had become available for those 
schools. See, S.R. 81; S.R. 92. The Plaintiffs filed a 
Motion for Contempt and for Further Relief relating to this 
petition of the Board. S.R. 94.

5



Following extensive testimony relating to the operation 
of the 1971 plan and the problems the school system had encountered 
during its implementation, the district court determined that the 
1971 order, "well intentioned though it was, and founded upon 
proof that was presented at that time . . .  has contributed to 
resegregation by the mere existence of a sheltered area. . .
Tr., Hearings, 1979, Vol. HI, P- 32. As a result of these 
effects, the court began a "complete re-examination of the 
remedy fashioned in 1971" and ordered the Board to consider its 
entire plan, "with the primary objective of the achievement of a 
unitary system for the entirety of Davidson County." Kelley _y^ 
Metropolitan County Board of Education,. et_aL, 479 F. Supp. 120, 

122 (M.D. Tenn. 1972).
Pursuant to the court's order, the Board developed the 

so-called "VJaldrip Plan," which the district court found un­
satisfactory, primarily because of the demonstrated adverse 
effects of the 1971 remedy over the past decade, and the 
testimony of Plaintiffs' expert witness, Dr. Hugh Scott. Kelley 

Metropolitan County Board of Education, et a h , 492 F. Supp. 167
167, 187-192 (M.D. Tenn. 1980). The court, therefore, ordered
a different remedy and approved a plan in 1981 submitted by 
the Board in conformity with the court's own strict guidelines. 
Id.; Kelley v. Metropolitan County Board of Education, et al.,

- 6 -

- -- --runn.



511 F. Supp* 1363 (M.D. Tenn. 1981). The implementation of this 
new plan was stayed by this Court on August 19, 1981, and the 
district court's approval thereof was subsequently reversed by 
this Court on July 27, 1982. Kelley v. Metropolitan County 
Board of Education, et al.,6 87 F. 2d 814 (6th Cir. 1982), 
cert• denied, 51 U.S.L.W. 3553.

Pursuant to this Court's orders, the 1971 remedy 
remained in effect throughout the school year 1982-1983. A 
new plan developed in conformity with this Court's opinion of 
July 27, 1982, was approved by the district court on June 1,
1983, after agreement was reached between Plaintiffs and 
Defendants. The new plan is to be implemented in August, 1983.

Following this Court's opinion on July 27, 1982, the 
district court scheduled hearings on pending matters relating 
to contempt, faculty, and attorneys' fees. Prior to the hearing 
the Plaintiffs supplemented their motion for attorneys' fees, 
requesting $1.5 million in fees from the inception of this 
litigation in 1955 to date, including a 100% contingency factor, 
fees for appellate work, costs, and expenses. The Plaintiffs also 
supplemented their submissions regarding faculty, although after 
extensive discovery, a consent order was entered with action

I V  See P-rT3~r5TT97~21.

7



Exhibitthereon deferred indefinitely. Tr., December 
14.

6, 1982,

The Defendants moved for a partial summary judgment 
wrth respect to Plaintiffs' motion for attorneys' fees. The 
Defendants asserted that the Plaintiffs' application should be 
limited to the period after May 30, 1972, when this Court 
affirmed the HEW Plan; that certain fees should not be awarded 
because the Plaintiffs had not prevailed on the matters to which 
they related; that the amount of the fee should be reduced for 
duplication; and that the contingency factor should be reduced
or eliminated. The Defendants also filed more specific objections 
Pri°r to the hearings.

Following full argument and briefing by counsel, the 
court orally granted the Defendants' motion for sugary judgment, 
holding that the court's approval of the 1971 desegregation plan 
on May 30, 1972, constituted a final order -  a distinct break 
in the proceedings. Pursuant to Morthcross v. Board of ........

°LMggEhis, C i t Y Schools, 611 F. 2d 624 (6th cir. 1979), cert.
denied, 447 O.S. 911 (1980), and Bradley v. Schoo1 no^a
Richmond, 416 U.S. 696, 94 S n  ?nnr dn T* Ct. 2006, 40 L. Ed. 2d 476 (1974),

,1̂ / _ Motion for Summary Judqment P ?n
Plaintiffs' Request for Attorneys' 'Fees,' r 54 C Ob3ections to

8



11.

I
the district court held that an award of attorneys' fees prior 
to this final order was not permissible. Further, under Buian v.
Bau^hard, 687 F. 2d 859 (6th Cir. 1979), the court declined to
consider fees for appellate work. After these rulings, the court 
limited proof to attorneys' fees for work at the district court 
level between May 30, 1972, and the date of the hearing.
Tr., December 6, 1982, pp. 28-29.

The court's opinion entered on February 26, 1983, 
reiterated its previous rulings., Memorandum, R. 77. The 
opinion specifically rejected the Plaintiffs' argument that the
1972 order was not a final order, stating that every action taken
by the parties and by the court in this case since 1972 had been 
directed either toward implementation of the 1971 plan or 
toward the modification of it in light of the order's adverse 
effects. Under Northcross, supra, the Plaintiffs would not be
permitted to reopen the final judgment in order to obtain attorneys 
fees. Memorandum, R. 77, pp. 5-n.

In addition to limiting the award to work performed 
at the trial level subsequent to 1972, the court set a reasonable 
fee for each attorney in accordance with the testimony of several 
members of the Nashville Bar, awarded a 25% upward adjustment in 
the fee, reduced the award by 10% for duplication among the attorneys

9



who had handled the case, and awarded fees for all matters since 
1972, including matters upon which the Plaintiffs had not 
prevailed and on matters relating to parties other than the ' 
Board.of Education. Id., at 1-20.

The one exception to the general award from 1972 to 
the date of the hearings concerned the requested allowance for 
fees and expenses relating to the expert testimony of Dr. Hugh 
Scott. Dr. Scott’s testimony in 1979 and 1980 had largely 
concerned the adverse effects of the racial balance approach 
to desegregation on black children. In light of the Plaintiffs’ 
abandonment of Dr. Scott's testimony following the district 
court's approval of a plan grounded on that testimony, the court, 
under Northcross, 611 F. 2d at 636, determined that Dr. Scott's 
testimony was "frivolous at best" and denied compensation for 
fees and expenses attributable to the preparation of Dr. Scott's 
testimony, but not for the many days during which Dr. Scott 
testified. Memorandum, R. 77, pp. 14-15.

In the same opinion, the district court dismissed the 
, . . 13/Plaintiffs’ charges of contempt, holding "that the Board, in

the vears following the 1971 order, acted in good faith in its

.13/ In arriving at its decision regarding contempt, the district 
court considered the entire record in this case, including
pfoSi ofiirSa'at thlhHl! headings?3 in addltio" to the

10



efforts to comply with that order while 
of operating a school system." Id., at 147

going about the task
14/22 .

147 The Plaintiffs have not appealed this finding.

11



ARGUMENT

I.

THIS COURT'S AFFIRMANCE OF A COMPREHENSIVE 
DESEGREGATION PLAN ON MAY 30, 1972, WHICH 
HAS BEEN IN EFFECT FOR MORE THAN A DECADE, 
CONSTITUTED A FINAL ORDER UNDER NORTHCROSS 
V. BOARD OF EDUCATION OF MEMPHIS CITY SCHOOLS,
611 F. 2d 624 (6th Cir. 1979), THEREBY PRE­
CLUDING All AWARD OF ATTORNEYS' FEES UPON 
MOTION OF THE PLAINTIFFS MADE IN 1975.
Almost three years after the entry of this Court's

order in 1972 approving the HEW Plan for desegregation, the
Plaintiffs filed for an award of attorneys' fees for services
performed from 1955 to date of the motion. R. 74. By the
time the Plaintiffs filed their motiom, the Nashville school
system had completed almost four full years of operation under
the plan. No motion for further relief in the nature of a new

15/
desegregation plan had been filed by the Plaintiffs, and no

15/ Plaintiffs had only requested changes in the disparate 
burden on young black children. The district court did not 
rule on this matter when the Plaintiffs raised it in 1972, 
presumably because no proof was offered as to the adverse 
effects. S.R. 19, 22, 23.

The Defendants had requested certain modifications within 
the leeway provided by the district court's 1971 order. The 
requested changes dealt with matters that had arisen since 1971.
The kindergarten program had expanded and additional space was 
needed. The State Vocational Technical Act was providing funds 
which could be used to fulfill the district court's expressed 
desire that the city be ringed with comprehensive high schools. 
Other eonstruetion appeared necessary because of inadequate 
facilities and overcrowding resulting from the court's order. See, 
Memorandum regarding contempt, R. 77; Kelley v. Metropolitan Countv 
Boardof Education, et al._, 492 F. Supp. 167, 172-175 (m .'d? Tenn. 
1J8U) . See also, notes 9 and 10, supra.

12



court had ordered such submission. In the opinion of this Court, 
the HEW Plan was a plan which complied with Swann v. Charlotte- 
Mecklenburg, 402 U.S. 1 (1971), and the parties and the Court 
treated it as such. Absent some changes in the law, changes in 
circumstances, or demonstrable adverse effects from the operation 
of this plan, there was no reason to believe the plan would not 
remain in effect acl infinitum.

In light of these facts, the district court held
that the 1972 order was precisely the kind of final order which this
Court said could not be reopened by an application for attorneys'
f e e s .  Northcross v. Board of Education of Memphis City Schools,
611 F. 2a 624, 635 (6th Cir. 1979). Irt argument before this
Court, the attorneys in Northcross had taken the position that
a 1966 order which approved a desegregation plan was a final
order which was not subject to modification by subsequent motion

16/
for attorneys' fees. if the 1966 order was found to be a
final order, the Court directed that no recovery could be had for

In Northcross/ petitions for attorneys' fees pursuant to 
20 U.S.C. §1617 (1972) were filed shortly after passage of the 
Emergency School Aid Act in 1972 and after an order of this 
-ourt granting further relief in the case, and again immediately 
after the Supreme Court's denial of certiorari in 1974. See, 
Northcross v. board of Education of Memphis City Schools,~4T2 
U•S.427(1973),611 FT 2d at 634.

13



The district court held that the
, . 17/fees prior to that order.

1966 order set forth a final plan for desegregation —  a plan 
that precipitated a "distinct break in the proceedings." Northcross 
— °ard of Education of Memphis City Schools. Civil Action Mo.
3931 (W.D. Tenn., January 4, 1982), p. 6, R. 28. The district court 
accordingly denied the Plaintiffs* application for fees for work 
done before the break. Id.

A ” The 1972 order of this Court was a final 
order which effected a distinct break in 
the proceedings and disposed of all mat­
ters relating to faculty and students.

The Plaintiffs argue that the 1966 order in Memphis 
is distinguishable from this Court's order in 1972 approving 
the plan of desegregation in Nashville because, and because,
the district court found that it was a consent order. It is 
difficult to understand how a consent order approving a plan 
can be any more final than one which is affirmed on appeal and

'x'he Pontiffs argue that the final order language in * 74
School Board of the City of Richmond. 416 U. S.

74) and Northcross was directed, toward the protection 
of an applicant for attorneys' fees rather than for the 
protection Of the non-moving party. This argument completely 
ignores the Court's direction in Northcross to dismiss^h^ Yapplication fbr febf ' ~ ----------

a final order. for pre-1966 services if the 1966 order

14



s

f u l l y  im p le m e n te d ,  and r e m a in s  i n  e f f e c t  t e n  y e a r s  l a t e r .

Th e  r e c o r d  i s  c l e a r .  From 1972 f o r w a r d  t h e  c h a r a c t e r  

Of t h i s  l i t i g a t i o n  i n  N a s h v i l l e  chan g ed  d r a s t i c a l l y .  T h e  

P l a i n t i f f s  c o n c e r n e d  t h e m s e lv e s  w i t h  how t h e  f i n a l  p l a n s  f o r  

f a c u l t y  and s t u d e n t s  w e re  im p le m e n te d ,  w h i l e  t h e  D e f e n d a n t s  w e re  

o c c u p ie d  w i t h  p r a c t i c a l  p ro b le m s  r e l a t i n g  t o  i m p l e m e n t a t i o n . - 7

Ev e n  th e  c o u r t  s e n s e d  a d i f f e r e n c e .  F o l l o w i n g  a 

c a u t i o n a r y  m o t io n  o f  t h e  D e f e n d a n t s  s e e k i n g  c l a r i f i c a t i o n  o f  a 

p r e v i o u s  o r d e r  r e g a r d in g  t h e  t im e  o f  s c h o o l  o p e n in g s ,  t h e  d i s t r i c t  

c o u r t  w r o te  t h a t  a b s e n t  some im p a irm e n t  o f  t h e  d e s e g r e g a t i o n  p r o c e s s ,  

" I D t  i s  n o t  w i t h i n  t h e  p r o v i n c e  o f  t h e  c o u r t  t o  o p e r a t e  t h i s  

s c h o o l  s y s t e m ,  and i t  i s  c e r t a i n l y  n e i t h e r  t h e  w i s h  n o r  t h e

i n t e n t i o n  o f  t h e  c o u r t  t o  do s o . "  S . R .  5 1 ,  Memorandum O p in io n ,  
S e p te m b e r  1 1 ,  1 9 7 2 .

a . 1 9 /
s  a p r a c t i c a l  m a t t e r ,  t h i s  C o u r t ' s  1972  o r d e r  i n  

t h i s  c a s e  was e v e n  more f i n a l  t h a n  t h e  1966 o r d e r  i n  I l o r t h c r o s s . 

i n  1972 t h i s  c o u r t ' s  o r d e r  w as a f i n a l  a p p r o v a l  o f  a f i n a l  p la n

t !/ Thr ^iscuss:Lon at PP- 3-5, notes 6, 7, 9, 10 sunm
i ^ o L r t l t  S°srt6 96n ^ ’ s f l l L c i t X
y^Combs, 471 F. 23 84, 87 75th^Ci?U°19 72T;Ltwh -Johnson
I n d i v i d u a l  and r T a g m a t i c  a o D r o n n w A  l? ] ' 1Ch adoPt e d  an  
416 U . S .  at 722 n 28 w the questlon of f i n a l i t y .
s p e c i f i c a l l y  l e f t  t h i s  " p r a c t i c a l 1  ̂ n? t e d . t h a t  J o h n s o n471 F. 2d at 84; ' Practical determination to The trial court,

15



for d e s e g r e g a t i o n  i n  N a s h v i l l e ,  r a t h e r  t h a n  a t e n t a t i v e  a p p r o v a l  

of a so o n  t o  be outmoded p l a n  f o r  d e s e g r e g a t i o n  i n  N o r t h c r o s s . ^  

M o re o v e r ,  i n  N a s h v i l l e ,  t h i s  C o u r t  n o te d  t h a t  f u t u r e  m o d i f i c a t i o n  

o f  th e  HEW P l a n  w o u ld  be b a s e d  o n ly  upon g e n e r a l  p r i n c i p l e s  o f  

e q u i t y  g o v e r n in g  i n j u n c t i v e  r e l i e f ,  w h ic h  w o u ld  r e q u i r e  a sh o w in g  

o f  chan g ed  c i r c u m s t a n c e s  o r  a d v e r s e  e f f e c t s  r e s u l t i n g  fro m  t h e  

P l 3 n * — -l l e y V - M e t r o p o l i t an C o u n ty  B o a rd  o f  E d u c a t i o n ,  e t  a.1 . . 

463 F .  2d 7 3 2 , 7 4 5 -7 4 6  ( 6 t h  C i r .  1 9 7 2 ) .  I n  N o r t h c r o s s . t h i s  C o u r t  

s p e c i f i c a l l y  s t a t e d  t h a t  th e  b o a rd  and p a r t i e s  r e c o g n i z e d  t h a t  

a d d i t i o n a l  r e l i e f  m ig h t  be o r d e r e d  i n  th e  f u t u r e ,  and f u r t h e r  stud>  

by t h e  b o a rd  was p r o j e c t e d . "  Th e  m ere f a c t  t h a t  j u r i s d i c t i o n

In ff-.fth-££2_ss, this C o u r t  s t a t e d  a s  f o l l o w s *  "A limiter! 
Plan was a d o p te d  in 1 9 6 3 , and a y e a r  I k e r  hi ' c o u r t  !
ir a t J r S e iA  1966 C t in g  95 i n a d e ^ e . '  N e a r ly  S o  ? e  ? s
Jhe d i s t r i c t  court- a 1Gd ^  W* S t e n t ^ i v e l y  a p p r o v e d 'b y  
W h ile  t h e  D l a i n t f f f  , . an u n e a s y  s t a t e  o f  r e p o s e  was r e a c h e d .
I o  on f o r  ?  r  b ]G C te d  t 0  Some a s P e c t s  o f  t h e  p l a n ,  t h e i r

o f  ̂ Mernnhi s r i  ^  S Ŵ e k s ;  N o r t h c r o s s  v .  B o a rd  o f  E d u c a t i o n
7 I 7^ M e e  n o t G ^ O T ^ su p ra .'  A c t i o n  No. 3 9 3 1 .  " J u l y  2 9 ,  l3eS7~

receiving
? L ? a S f E - A1^h ° Ugh « • * « * „ »  t h e i r ' d e c i s i o n s * 1"  

r e g u l a ? l v  r e f  S f  g ro u n d s  fro m  M o r t h c r o s s . c o u r t s  h a v e  
a w a rd s  o l  a t t o r h e , ^

16



was retained by the district court in this case so that further
future proceedings might be held was also deemed insufficient 

to preclude the 1966 order from being final in Northcross.
No desegregation plan is completely static for no 

school system is completely static. Yet the 1972 plan was far 
more final than was the Northcross plan, both for faculty and for 
students. The need for modification arose unexpectedly -- the 
plan was not ineffective in 1972. The plan became ineffective 
over time, and the district court ordered it modified to meet 
new conditions and circumstances.

h. The 1972 order also settled the issue 
of attorneys' fees.

In this case, the Plaintiffs' motion for an award of
attorneys' fees in 1975 was nothing more than an attempt to

22/
reopen a judgment for assessment of costs three years after 
the entry of a final decree. The Supreme Court has stated that

21/ Continued
after the judgment in question are merely supplemental proceedings 
to effectuate the judgment, Taylor v. Sterrett, 640 F. 2d 
663 (5th Cir. 1931); where pending proceedings in a desegregation 
case dealt with efforts to obtain bus transportation to implement 
the approved plan, Ilenry v. Clarksville Municipal Separate
D i s t r i c t , 579 F. 2d 916 (5th "' = ■----- -------

merely
School

__ Cir. 1978); and where the pending
actions were merely efforts to enforce the defendants' previously 
established liability, Peacock v. Drew Municipal Separate School ft.iwi-ri.rlr} 433 F, Suiap. To 7 2 (M. D. Miss. 19 7 T ) . -- ----------

437 U.S. 678, 693, 699, 98 S. Ct. 2565,
, ' j7 Ed. 2d 522 (1978), the Supreme Court reiterated

costs I T S ,  fees under 42 U.S.C. §1988 are to be awarded ascosts. See also, Buian v. Baughard. 687 F. 2d 859 (6th Cir. 1982)



a district court retains jurisdiction to deny motions for costs 
or for attorneys' fees if the motions are filed with unreasonable 
tardiness, white v. New Hampshire Department of Employment 
Security, 455 U.S. 445, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982), 
at n. 17. Indeed, during the course of the Northcross litigation, 
the Supreme Court recognized that the Court of Appeals could have 
denied the petitioners' first application in that case for costs 
and attorneys' fees as untimely, and this Court later did so.

' ,-—’riucr.-'t' v.— Board of Education of Memphis city Schools.
Civil Action Ho. 3931 (W.D. Tenn, January 4, 1983), n. 3, at 
P- 17), R. 28.

The Plaintiffs' contention that there was no other time 
for filing an application for fees is not persuasive. With the 
exception of a one day hearing concerning their motion to bring 
in the Mayor and Council as additional parties and a short hearing 
regarding claims filed by intervening plaintiffs for federal funds 
for transportation, no activity was carried on in the district

until 19 79 . The Plaintiffs filed only three substantive documents 
relating to desegregation in the district court between the time 

the Court of^Appeals decision and their motion for attorneys' 
fees in 1975/- Moreover, prior to the Plaintiffs' motion, other

237~ See discussion', supra, pp. 3-5, notes 6, 7, 9, i q .

18



parties found time to file timely motions for fees inroediately ipon the
24/entry of a collateral judgment in their favor.

Not only was the 1972 order of this Court one which 
should have foreclosed further assessment of costs and attorneys' 
fees, it was one which considered costs and attorneys' fees and 
declined to award them to the Plaintiffs. Indeed, both the 1972 
mandate and the 1982 mandates of this Court stated that each party 
should bear his own costs. In addition, this Court's 1972 opinion 
refused to award attorneys' fees and costs under the law prevailing 
at that time. This failure to award costs, along with the denial 
of attorneys' fees, should preclude a further award of attorneys' 
fees, since fees under 42 U.S.C. §198§ are to be awarded as costs. 
Hutto v. Finney, 437 U.S. 678, 693-699 (1978).

This Court entered a final order in 1972 and the 
Plaintiffs did not obtain their fees. Their motion made in 1975, 
four years after the implementation of the plan, and three years 
after this Court had previously denied them costs and fees, should 
not reopen the final judgment.

24̂,7 See lhird party plaintiffs' application for attorneys' fees 
filed February 11, 1974, S.R. 69; Metropolitan Board of Education 
petition for fees filed January 11, 1974, S.R. 68.

19



II.

BUIAN v. BAUGUARD, 687 F. 2d 859 (6th Cir. 
1982) APPEARS TO PRECLUDE A DISTRICT COURT 
FROM AWARDING ATTORNEYS' FEES FOR SERVICES 
RENDERED ON APPEAL.

Buian v. Baughard, 687 F. 2d 859 (6th Cir. 1982) ,
appears to preclude a district court's consideration of
appellate fees. However, the Defendants did not and do not now
object to the district court's consideration of time expended

25/
for appellate work. Id., at 862.

Whether this Court or the district court considers 
the fees claimed for appellate work, the Defendants reiterate 
that in each and every appeal during these proceedings, this 
Court has decreed that each party should bear its own costs, 
thereby precluding an award for fees under Buian. Id,, at 
862.

III.
THE DISTRICT COURT'S CALCULATION OF FEES 
FOR MR. WILLIAMS AND MR. DINKINS WAS SUP­
PORTED BY THE EVIDENCE AND WAS WELL WITHIN 
THE BOUNDS OF THE DISTRICT COURT'S DISCRETION.

The district court is uniquely positioned to determine 
the basis of fee awards since the district court not only has the

2E7 See Response f.o Plaihtiffs' Supplemental Memorandum, R. 66.

20



Iopportunity to observe the proof regarding the award of attorneys
fees, but also has viewed first hand the proceedings and services
performed by the various attorneys. On the one hand the Plaintiffs
recognize this unique capacity by contending that the district court
should consider appellate fees. Plaintiffs' Brief, p. 30. However,
on the other hand, Plaintiffs seek to remove all the district court's
discretion in awarding fees by insisting on a rigid application of
factors enumerated in N o r t h c r o s s  and by failing to demonstrate
that the district court's factual findings were clearly erroneous.

This Court recently refused to restrict the district
court, as the Plaintiffs suggest, when it refused to overturn an
award attacked by both parties in Louisville Black Police Officers
Organization, Inc, v. City of Louisville, 700 F. 2d 268 (6th Cir.
1983). The Plaintiffs argued that each and every factor discussed

Northcross was a rule of law, and that in setting hourly rates
the district court did not follow those rules. The Court refused
to overturn the award and in so doing underscored the discretionary
standard of review to be applied:

[T]he district court judge who presided 
over a case is in the best position to 
evaluate the reasonableness of fee 
requests, both in terms of the number 
of hours spent and a reasonable hourly 
fhte of compensation. The dual aim of

21



Northcross was to establish some uniformity 
in a district court's approach to awarding 
fees and to require the making of a record 
su^ lcient to facilitate meaningful ap­
pellate review. it did not establish rules 
0f,.".t0 be slavishly applied. Only upon 
a finding that the district court has re-
5.Uffd,°r failed to recognize the Northcross guideline, or in applying those guidelines, 
has abused the discretion left by those 
guidelines in the district court, will this 
Court overturn a fee award. Id., at 274. 26/

In this case, the district court's opinion had care­
fully evaluated all the proof presented and arrived at an hourly 
rate and fee which, is "adequate to attract competent counsel, 
but which do[es] not produce windfalls to attorneys." Northcross 
2d at 633. The court's calculations made pursuant to relevant 
guidelines are well explained, supported by the evidence, and 
were not clearly erroneous.

611 F.

A* The court's award to Mr. Williams of 
$100 per hour plus a 25% contingency 
factor, yielding an effective rate of 
$125 per hour, was clearly supported

—J  Appellants do not refer to this case 
to a list of considerations for fee cases

^̂ 2hway Express, Inc., 488 F. 2d /JL« pcn
0± c?nsiderQtlons was specifically rejected Northcross court: 511 F. 2d 624, at 642-643. D

Instead, they refer 
contained in Johnson 

(5th Cir. 1974). 
by the

714

- 22 -

mm til



by the evidence, and was well within
the district court's discretion.

The clear weight of the evidence from the experienced
members of the Nashville Bar who testified at the attorneys'
fees hearings was that approximately $100 per hour was the
generally prevailing rate in this area for mature private

27/
attorneys with the skill and expertise of Mr. Williams. At
least three of these lawyers were fully experienced in the trial

2 8 /
o f  civil rights cases, including desegregation cases. The
Plaintiffs offered some proof of higher figures, but there was 
no substantial proof supporting Mr. Williams' application for 
$200 an hour. Mr. Williams testified that he had no clients 
to whom he charged $200 per hour and that he began charging $100 
per hour on January 1, 19 81. Tr., Decerrber 6, 1982, pp. 262-263, 267.

Considering all the proof, the district court was 
well within its discretion in assessing fees for Mr. Williams at 
$100 per hour —  a rate which would attract competent counsel

27/ See excerpts, Tr.,December 6, 1982: Testimony of Thomas 
W. Steele, p. 22, Exhibit 5; Testimony of Charles Hampton 
White, p. 204, Exhibit 4; Testimony of Ward DeWitt, pp. 152- 
153, Exhibit 3; Testimony of John Hollins, p. 224, Exhibit 6; 
Testimony of George Barrett, p. 360. Mr. DeWitt testified 
that he often charged much less to his volume clients, p. 154.

See also, interrogatories answered by Defendants wherein 
Board attorney William Willis indicates his rate is between 
$85-$100 per hour and that in 1982 he began to charge the Board 
of Education $95 per hour in this case. Exhibit 17 to Hearinqs of December 6, 1982.
2_8/ See excerpt, Tr. , December 6, 1982: Testimony of Thomas W.
Steele, pp. 211-215, Exhibit 5; Testimony of George Barrett, p. 
356; Testimony of Charles Hampton White, pp. 190-200. See also, 
interrogatories referred to in note 27, supra.



in the Nashville area, in the civil rights field. Further, 
under Louisville Black Police Officers Organization, Inc, v.
City of Louisville, 700 F. 2d 268 (6th Cir. 1983), discussed 
supra, the district court was not bound to accept Mr. Williams' 
regular hourly rate, especially in light of the other testimony 
concerning the fair market value of legal services in Nashville.

It should also be noted that the district court did 
not stop with the fair market value of services in Nashville —  
it added a 25% contingency factor. This contingency factor 
was substantially higher than the 10% factor awarded by the 
Court in Northcross v. Board of Education of Memphis City 
Schools, 611 F. 2d 624 (6th Cir. 1979). In awarding the 
contingency fee in Northcross, this Court stated that it had 
awarded this low factor because the burden of proof had long 
since been placed upon the school board to justify its actions

29/
with respect to desegregation, just as it has been in this case. 
Considering all the proof heard by the court, the $125 per hour 
rate was a reasonable hourly r£ite to award Mr. Williams for work 
performed since 1972.

29/ Plaintiffs should also be hard pressed to assert that
this case has been any more or less unpopular than in Northcross
since that case involved the nearby Tennessee community of Memphis.

24



B. The court's award to Mr. Dinkins of $60 
per hour with a 25% upward adjustment was 
supported by the evidence and was clearly 
within the bounds of the district court's 
discretion.

Mr. Dinkins has participated in this lawsuit since
his admission to the Bar in 1977. Exhibit 16. Several witnesses,
including one called by the Plaintiffs, testified that the fair
market value of services for a person with his years of experience

30/
was between $50 to $75 an hour. Mr. Dinkins himself has no
set hourly rate other than the office rate of $120, which appears

31/
to bear no relationship to the value of his services. With 
this testimony, it cannot be said that it was an abuse of the 
court's discretion to award Mr. Dinkins $60 an hour. See,
Louisville Black Police Officers Organization, Inc, v. City of 
Louisville, 700 F. 2d 268, 277 (6th Cir. 1983).

30/ See, Tr., December 6, 1982: Testimony of Thomas W. Steele,
p. 209; Testimony of Ward DeWitt ($50 per hour), p. 154; Testi­
mony of Cecil Branstetter ($60 to $70 per hour), p. 126;
Testimony of John Hollins ($65 to $75 per hour), p. 224.
31/ Mr. Dinkins testified that as a regular matter, for the 
first few years of practice he charged at the office rate, 
but discounted the amount of time charged because of his in­
experience. Tr., December 6, 1982, pp. 312-315.



It should be noted herein that Mr. Dinkins' hourly 
rate was effectively increased to $75 by an upward adjustment 
of 25%. This adjustment was made in spite of the fact that by 
the time Mr. Dinkins had become involved in this case in 1977, 
liability had been established more than 20 years earlier, 
and the burden had been on the school board for two decades.”

c- The district court did not abuse its
discretion in reducing the total number 
of claimed hours for duplication by 10%.

C o n t r a r y  t o  t h e  P l a i n t i f f ' s  a p p a r e n t  p o s i t i o n ,  a 

s t a n d a r d  r e d u c t i o n  f o r  d u p l i c a t i o n  when s e v e r a l  l a w y e r s  a r e  

i n v o l v e d  m  a c a s e  i s  more th e  r u l e  r a t h e r  th a n  t h e  e x c e p t i o n .

In Wgisenburger v. Huecker, 593 F. 2d 449 (6th Cir. 1979), this 
Court found the standard reduction of 10% for duplication necessary 
where several attorneys were involved without commenting further.

— ' at 54' n* 12' In this case' several attorneys have participated 
over the years, both in Nashville and in New York, and duplication

— / See /■ Northcross v. Board of 
611 F. 2d at 641. Cf., Louisvi11 
tion, Inc. v. City of Louisville. 19 8 3) . --------------

Education of Memphis City Schools 
e Black Police Officers Organiza- 
700 F. 2d 268, 281 (6th Cir.



33/
is readily apparent from the record. See also, Oliver v. 
Kalamazoo Board of Education, 576 F. 2d 716 (6th Cir. 1978) ; 
Northcross v. Board of Education of Memphis City Schools, Civil 
Action No. 3931 (W.D. Tenn. January 4, 1982), pp. 10-11.

While there is ample support for the court's reduction 
for duplication, the reduction should not be examined in isolation. 
See/ Louisville Black Police Officers Organization, Inc, v. City 
of Louisville, 700 F. 2d 268, 276 (6th Cir. 1983) (court should 
not isolate each factor of an award for purposes of review). The 
specific time requested by Mr. Williams and Mr. Dinkins was re­
constructed, and this reconstruction took place after as much

34/
as eight years had elapsed. The district court did not,

33/ Duplication in reviewing documents and preparing responses 
thereto appears clearly on the face of the Plaintiffs' affi­
davits. Upon examination, Mr. Dinkins stated that both he and 
Mr. Williams reviewed everything that concerns this case, and 
they also consult with each other regularly. Tr., December 6, 
1982, pp. 319-321, 323. Mr. Williams admitted at one point that 
he could not remember what parts of a particular document he or 
Mr. Lee from the Legal Defense Fund had prepared, and indeed 
indicated that the work had been shared. Tr., December 6, 1982, 
pp. 287-288.

It should be noted that to the extent that it could, the 
district court attempted to scrutinize the periods of time and 
the individual attorneys for which the reduction should be made.
In so doing, the court noted that the elimination of the appellate 
issues would cut out some duplication, and accordingly the 10% 
reduction factor was reasonable. Memorandum, R. 77, p. 16, n. 4. 
3_4/ The Plaintiffs first filed their reconstructed time along 
with answers to interrogatories on November 7, 1979. S.R. 118.

27



however, deduct specifically for reconstructed time, although
the Plaintiffs have known at least since their first application
for attorneys' fees in 1975 that they would be required to
produce detailed time records. Tr., December 6, 1982, pp. 255—
256. The testimony of other individuals relied upon by the
Plaintiffs to support their speculations about the effect of
time reconstruction on total numbers of hours is certainly less
than probative, especially when reconstruction covers such a

35/
lengthy time period.

The Supreme Court has recently sanctioned a drastic
reduction of 30% on hours expended, in part, for failure to keep
contemporaneous time records. Hensley v. Eckerhart, 51 U.S.L.W.
4552, 4556, n. 13 (1983). In Hensley, Chief Justice Burger
wrote a stinging concurring opinion:

I read the court's opinion as requiring 
that when a lawyer seeks to have his 
adversary pay the fees of the prevailing 
party, the lawyer must provide detailed 
records of the time and services for which 
the fees are sought. It would be inconceivable 
that the prevailing party should not be re-

357 In addition to the fact that contemporaneous time records 
are clearly far more accurate than reconstructed time, Mr. 
Williams seeks to chargfi the Board with the time he spent re­
constructing his services* He has claimed $14,000 in fees for 
the time he spent reconstructing his records, which would of 
course, have been drastically reduced had he kept contemporaneous 
timu vh 4 eh aould hove been merely totaled. Tr. , December
6, 1982, p. 260.

28



quired to establish at least as much to 
support a claim under 42 U.S.C. §1988 as 
lawyer would be required to show if his own 
client challenged the fees . . . .  Id., at 
4 5 5 6 . -----

In view of the apparent duplication of services and
the total reconstructed time offered to support the fee request,
it cannot be said that the district court abused its discretion
in applying a 10% reduction factor.

D. The court appropriately refused to award
fees for the time spent with the Plaintiffs' 
consultant, Dr. Hugh Scott, since his testi­
mony was unnecessary to this case.

The district court refused to award fees for the 
two days and seven hours Plaintiffs' attorneys spent in preparation 
of Dr. Scott, the Plaintiffs' expert witness, at the 1979 and 
1980 hearings. Memorandum, R. 77, p. 14. The court's opinion 
was based on its finding that Dr. Scott's testimony was frivolous 
under Northcross v. Board of Education of Memphis City Schools, .
611 F. 2d at 636, in light of Plaintiffs' repudiation of much 
of Dr. Scott's testimony after the court had relied on it. The 
Supreme Court has relaxed the "frivolous" standard set forth in 
Northcross for a reduction of fees. Rather, the standard is now

29



keyed to the extent of success and fees are to be disallowed 
if results are limited in light of the litigation as a whole. 
Hensley v. Eckerhart, 51 U.S.L.W. 4552 (1983).

In this case, the court's disallowance of fees for 
Dr. Scott is supported under either standard. In addition to 
the time the Plaintiffs spent preparing Dr. Scott, Dr. Scott 
spent numerous days testifying. His testimony decrying the 
racial balance approach to desegregation, his repeated emphasis 
upon the need for majority black schools, and his condemnation 
of the racist osmosis effect or rightness of whiteness approach 
was clearly the foundation for the district court's opinion 
approving a modified desegregation plan in 1981. See, Tr. ,
Dr. Hugh Scott, July 5 - 6 ,  1979, pp. 1 - 217; March 3, 1980, 
pp. 1 - 511. See also, Kelley v. Metropolitan County Board of 
Education, et al., 492 F. Supp. 167, 183-185, 187-192 (M.D.
Tenn. 1980). Dr. Scott also spent much time testifying about 
the need to keep Pearl High School open as a high school, an 
issue upon which the Plaintiffs did not prevail. Id., at 186, 193-194.

While this Court apparently did not deem Dr. Scott's 
testimony sufficient to support the district court's plan, the 
.'-act remains that two years of constant litigation in this case



were spaw ned by  t h i s  c o n s u l t a n t ' s  s t a t e m e n t s ,  w h ic h  t h e  P l a i n t i f f s  

l a t e r  r e p u d i a t e d .  U n der t h e s e  c i r c u m s t a n c e s ,  i t  c a n n o t  p o s s i b l y  

be s a i d  t h a t  t h e  d i s t r i c t  c o u r t  a b u se d  i t s  d i s c r e t i o n  i n  r e f u s i n g  

t o  aw ard  P l a i n t i f f s '  a t t o r n e y s '  f e e s  f o r  h i s  p r e p a r a t i o n  t i m e . " 7

DEFENDANTS' APPEAL

IV.

THE DEFENDANT BOARD OF EDUCATION SHOULD 
NOT BE RESPONSIBLE FOR PLAINTIFFS' FEES 
RELATING TO CLAIMS MADE BY INTERVENING 
PARTIES OR ACTIONS BY THIRD PARTY DEFENDANTS.

Between .1972 and the court's hearing in December,
1982, four groups of additional parties participated in this 
lawsuit. In 1972 the Plaintiffs joined the Metropolitan Mayor 
and Council as parties, and prevailed in efforts to have their 
interference enjoined. S.R. 13, 25. A group of third party 
plaintiffs intervened next, filing suit against the Department 
of Health, Education and Welfare for funds for busing. S.R. 41.

36/ Plaintiffs argUi that Dr. Scott's testimony was relied
ofthpYn L n  C°nrt c11 establishing the educational components P an* Dr * Sc°tt s testimony regarding educational 
components was minor, compared to his discourse about ratios
that^th^iv7^ 13^  schools* In any event, it should be noted 
r fc.^h dlstrict court only reduced the Plaintiff's request
did n n t time Spent in Preparation of Dr. Scott, anddJ,d foH°w the Defendants' position that all time spent
in trial during the testimony of Dr. Scott should be eliminated.

31



In 1979, another group of intervening plaintiffs entered the
case, filed a plan, and consumed much of the Court's and
counsel's time. S.R. 123, 125, 127, 492 F, Supp. at 185-186. Finally,
a fourth group of intervenors entered the case to propose the
creation of a magnet school. S.R.

Plaintiffs' time records reveal that they claim fees
from the Defendant Board for all time spent regarding these

11/additional parties. The Plaintiffs' actions for attorneys'
fees in regard to these parties should have been aimed at them.
See, Haycraft v. Hollenbach, 606 F. 2d 128 (6th Cir. 1979) (party 
who intervened and submitted an alternative desegregation plan 
which was rejected was held liable for-plaintiffs' attorneys' 
fees in opposing the plan). See also, Vulcan Society of West­
chester County v. Fire Department of the City of White Plains,
533 F. Supp. 1054, 1064 (S.D. N.Y. 1982).

The assessment of fees against the Defendant Board is 
particularly inappropriate with regard to the intervening plaintiffs 
who submitted a plan for the 1980 hearings. The Defendant Board of 
Education vehemently opposed the intervention of the new parties,

377 There VcTild, of course, be some question as to whether or 
not Plaintiffs prevailed with regard to all of these parties.

32



filing a motion to reconsider the proposed intervention. Id
30/ --

S.R. 131(a), 131(b). The Plaintiffs did not initially oppose
the intervention, and indeed embraced the new parties, presumably
because one of their primary goals was to maintain several small
high schools, including Pearl High School. 492 F. Supp. at 185- 
186.

In any event, it is not the Board which should pay 
the fees for actions taken by full parties to this action.

V.
THE COURT ERRED IN NOT DETERMINING THE 
SPECIFIC EXTENT TO WHICH THE PLAINTIFFS 
HAD PREVAILED IN THIS ACTION.

At the time the district court rendered its decision 
m  February, 1983, the law in this Circuit was that the district 
court should look to the overall results to determine whether 
plaintiffs had prevailed. If the plaintiffs had prevailed, a 
general award of attorneys' fees was appropriate for all time 
reasonably spent in litigation. Northcross v. Board of Education 
of Memphis City Schools, 611 F. 2d at 633; Buian v. Bauahard.
687 F. 2d 859 (6th Cir. 1982). Accordingly, prior to the 
presentation of proof, the district court determined that the

31?/ S e e *  aTscT, B r i e f  S u b m it te d  
Plan, S.R. 136, May 1, 1980. i n  O p p o s i t io n to I n t e r v e n o r s '

33



Plaintiffs had prevailed and were entitled to reasonable fees 
for services rendered from 1972 to date. Since the district 
court’s decision, the Supreme Court has modified the Northcross 
approach, stating that a party's request for attorneys' fees 
should be carefully scrutinized as to the extent of success. 
Further, the time spent on unsuccessful claims that are distinct 
from successful claims should be excluded in determining a 
reasonable fee. Hensley v. Eckerhart, 51 U.S.L.W. 4552 (S. Ct. 
1983) .

In this case, Plaintiffs have advanced numerous positions 
on which they have not prevailed. For example, in the same 
opinion in which the district court awarded attorneys' fees, 
it denied Plaintiffs' long-standing charges of contempt against 
the Board. R. 77, pp. 1-23. The Plaintiffs have also not yet 
Prevaile<3 on faculty matters, although the district court's 
calculation appears to include time spent on preparing pleadings 
relating to faculty matters. Plaintiffs have also spent an in­
ordinate amount of effort on one issue on which they have never

39/ Compare calculations in opinion, R. 77, pp. 17-18, to 
affidavit submitted in support of application for fees, Exhibits 
7 and 11 to hearing of December 6, 1982.

34



prevailed —  their effort to keep Pearl High School open a s  

a high school, contrary to the Board's intention to place a 
new comprehensive high school in the inner city. Kelley v. 
l̂ejLr-°P°.litan County Board of Education, et al., 492 F. Supp.
167, 186, 193-194 (M.D. Tenn. 1980); 687 F. 2d 814, 824 (6th 
Cir. 1982).

With these examples it is apparent that the district 
court should be directed, pursuant to Hensley, to examine the 
extent to which the Plaintiffs prevailed on these and other 
issues in calculating its award of attorneys' fees.

CONCLUSION

For all of the foregoing reasons, the Defendants, 
Metropolitan Nashville Board of Education, et al., respectfully 
submit that the district court's award of attorneys' fees to the 
Plaintiffs m  this cause was correct and should be affirmed, 
except to the extent that the district court included fees for 
services relating to parties other than these Defendants and to 
the extent that its calculations failed to consider those claims 
upon which the Plaintiffs did not prevail. In light of these

35



errors, the case should be remanded to the district court with 
instructions to exclude fees for services falling with these 
exceptions.

Respectfully submitted,

21? S econd Avenue,/North 
Nashville, Tennessee 37201 
(615) 259-9600

Attorneys for Defendants-Appellees, 
Cross-Appellants.

36



CERTIFICATE OF SERVICE

The undersigned hereby certifies that two (2) copies
of the foregoing Brief on Behalf of Defendants-Appellees, Cross- 
Appellants have been mailed to Avon N. Williams, Jr., Esquire and 
Richard H. Dinkins, Esquire, 203 Second Avenue, North, Nashville, 
Tennessee 37201; Jack Greenberg, Esquire, James M. Nabrit, III, 
Esquire, and Theodore M. Shaw, Esquire, Suite 2030, 10 Columbus 
Circle, New York, New York 10019; and to the Honorable Frank 
Scanlon, Assistant Attorney General, State of Tennessee, 450 
James Robertson Parkway, Nashville, Tennessee 37219, on this the 
1st day of July, 1983.

WILLIS Sc KNIGHT

Cross-Appellants

37



EXHIBIT

Affidavits of Avon N.
and Richard H.

B

Williams, 
Dinkins



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT W. KELLEY, ET AL )

VS- ) CIVIL ACTION NOS. 2094, 2956
METROPOLITAN COUNTY BO\RD )
OF EDUCATION OF NASHVILLE 
AND DAVIDSON COUNTY, )
TENNESSEE, ET AL

)

UPDATED AFFIDAVIT OF AVON N. WILLIAMS. JR., ESQUIRE 
STATE OF TENNESSEE 
COUNTY OF DAVIDSON

Avon N. W i l l i a m s ,  J r . ,  a f t e r  b e in g  d u ly  sw orn

to  law  d e p o s e s  and s a y s :

D eponent i s  and h a s  been  a p r a c t i c i n g  member o f  t h e  B a r  

o f  th e  S t a t e  o f  T e n n e s s e e  s i n c e  1948 and o f  th e  U n it e d  S t a t e s  

D i s t r i c t  C o u r t  f o r t h e  E a s t e r n  D i s t r i c t  o f  T e n n e s s e e  s i n c e  1 9 4 9 . 

He has  b een  a member o f  th e  B a r  o f  th e  U n it e d  S t a t e s  C o u r t  o f  

A p p e a ls  f o r  th e  S i x t h  C i r c u i t  s i n c e  1953 and o f  th e  Suprem e  

Court, o f  th e  U n it e d  S t a t e s  s i n c e  1963 . He was a l s o  a d m it t e d  to  

th e  B a r  o f  th e  S t a t e  o f  M a s s a c h u s e t t s  i n  1948 and to  th e  B a r  o f  

t h e  U n it e d  S t a t e s  Court o f  M i l i t a r y  A p p e a ls  a b o u t  1 9 5 6 . He was 

«radUttfc»4 £*«n, B o s to n  U n i v e r s i t y  S c h o o l  o f  Law i n  1947 w i t h  the  

L LB  D 0 8 ree  and ln 1948 LU* Decree. „e is and has
111 ^  3 C C iV e  P r a C t i “  th e  S c a t e  o f  T e n n e s s e e  s i n c e

EXHIBIT



HOURS DAYS
16 - 19 Mar. 1972

11 April 1972 

8 May 1972

1 June 1972

20 - 30 June 1972

17 - 25 July 1972

12 - 14 Aug. 1972

H 16 Aug. 1972

H 1 6 - 1 7  Aug. 1972

H D  2 2 - 2 3  Aug. 1972

Review of Defendants' Answers 
to Interrogatories and report 
to the Court by defendants 6.0
Review of report to the Court 
by defendant, Superintendent 0.4
Letter to Dr. Brooks re 
discipline of students 1.0
Review of Judgment and Opinion 
of the Sixth Circuit affirming 
the District Court 3.3
Review of Defendants' Petition 
For Replacement of Portable at 
Antioch High School and Order 
of Court allowing same 0.5
Review of Petition by Defendants 
for approval of school zone 
changes and Motion To Amend 
Petition ^ q

Preparation of Reply of Plain- 
tiffs to Petition of Defendants 
for Proposed School Zone Changes 4.0
Hearing on Motion by plain­
tiffs to add as party de­
fendants Mayor and City Council 
and Petition of defendant for 
zone changes and other relief
Preparation of Order granting
Motion to add Metro Officials,
and review of Order entered 2.3
Kfiview of entry of Appearance 
by defendant Briley, Motion of 
Briley requesting recusal by 
Judge Morton on 22 August, entry 
of appearance of various council- 
men, Memoranda and Motions of 
Briley and various councilmen 
seeing thereversal of the Court's 
desegregation Order of 18 August

1. 0

-24-



HOURS DAYS
1972 and preparation of plain­
tiffs' Motion To Vacate the 
Court's Order of Recusal and 
Opposition and Motion To Strike 
In Response To The Motion To 
Recuse (26 pages pleadings & 
orders; 4 pages of brief) 11.4

H 23 Aug. 1972 Hearing on Motions To Vacate 
and to Strike 1.0

A 23 - 24 Aug. 1972 Review of Third Party Complaint 
by Mansfield Douglas, et al and 
Amendment thereto 2.0

H 23 - 24 Aug. 1972 Review of Motion For Summary 
Judgment by Metro Officials 1.3

H 24 Aug. 1972 Hearing on Motion For Summary 
Judgment on behalf of defen­
dants, Metro Council and Briley 1.0

H 25 Aug. 1972 Review of Charles Anderson Memo 0.1
D 25 Aug. 1972 Review of Order granting 

Recusal 1.0
H 30 Aug. 1972 Review of Order entered pur­

suant to hearing on 24 August 
joining Metropolitan Government 
as additional party, denying 
Motions For Summary Judgment 
and Vacating Temporary Restrain­ing Order 0.5

2 -- 11 Sept. 1972 Review of Petition For Modifi­
cation On Behalf of Defendants 
and preparation of Plaintiffs' Reply thereto 0.2

11 Sept. 1972 Preparation of Plaintiffs' Response 0.7
12 S e p t .  1972 Review of Memorandum of the Court 0.5

-25-



HOURS DAY'
15 Sept. 1972 Review of Notice of Appeal

filed by the Metropolitan 
Council and Councilman J. 
William Rutherford and pre­
paration of Notice of Appeal
by plaintiffs 0.1

21 Oct. 1972 Review of Amendment to Third 
Party Complaint filed by 
Mansfield Douglas, et al 0.5

21 Oct. 1972 Review of Interrogatories filed 
by Third Party Complaints 1.3

26 Oct. 1972 Review of Order allowing Third Party Complaints 0.5
26 Oct. 1972-
27 Nov. 1972 Preparation of Record and 

Brief and Appendix on appeal 
in cooperation with Legal Defense Fund 5.0

29 Nov. 1972 Review of"Motion and Order 
allowing Third Party Defen­
dants additional time to 
answer Interrogatories 0.1

1 Dec. 1972 Review of Order of Supreme 
Court of the United States denying Certiorari 0.1

2 Dec. 1972 Review of Answers to Third 
Party Plaintiffs Interrogatories to Defendant, Dr. Herman R. Goldberg 2.8

B Dec. 1972 Review of Order allowing 
Councilman J. William Rutherford to withdraw Appeal 0.1

16 Dec. 1972 Review of Order for Hearing 
before January 1973 and Notice 
of Third Party Plaintiff to take depositions 0.1

-26-



HOURS DAYS

FI

H

H

A

H

H D 

D

D

D

A

H

A

22 Dec. 1972 

30 Dec. 1972

3 Jan. 1973

4 Jan. 1973

5 Jan. 1973 

13 Jan. 1973

13 - 18 Jan. 1973

19 Jan. 1973 

24 Jan. 1973

24 Feb. 1973

10 Mar. 1973

4 April 1973

Review of Motion to Dismiss
Appeal by Councilman David
Scobey, et al 0.1
Review of Motion to Withdraw 
previous Motion to Dismiss 
Notice of Appeal of David 
Scobey 0.1
Review of Second Notice to 
Dismiss Notice of Appeal filed 
by David Scobey 0.1
Review of Third Party Plain­
tiffs' Motion to Amend Complaint 
and the Memorandum Brief 8.0
Review of Third Party Defend­
ants' Motion for Summary Judg­
ment 6.0

Review of Motion of Defendants 
Briley, et al to Dismiss Appeal 
from Order of Judge Morton Re­
cusing himself 1.3

Consultation with Legal Defense 
Fund Counsel in preparation of 
Motion to Treat Appeal as Appli­
cation for Mandamus in reference
to Order of Accusal 0.5
Review of 6th Circuit Order 
dismissing Appeal 0.2
Review of Motion to Strike 
Request for Relief in Motion of 
Mandamus 2.0
Review of Court Crder assuming 
jurisdiction over third party 
plaintiffs 3.5

Review of Petition of defendant 
Board of Education against de­
fendant Metro officials for 
transportation money * 1.0

Review of correspondence by 
counsel for third party com­
plainants and Request for Pro-

27-



HOURS DAYS
duction of Documents 0.4

B

D

13 April 1973

15 May 1973

30 May 1973

30 May 1973

31 May 1973

6 June 1973

9 June 1973

19 June 1973

29 June 1973

24 July 1973

2 Aug. 1973

Review of third party defen­
dants' Answer to Metro Board 
position
Review of third party defen­
dants' Notice to Take Deposi­
tion and correspondence
Review of defendants' proposed 
program of school construction 
with projects and map attached 
(5 pages exluding maps)

0.7

0.4

3.4
Preparation of Motion to Require 
Statistical Information from 
Defendants 2.0
Review of Petition of defendants 
for approval of portables to 
establish kindergarten program 1.4

Review of Order of Court of 
Appeals Dismissing Appeal from 
Order of Judge Morton Recusing 
himself q .2

Review of Judge McCree's Concur­
rence with 6 June 1973 Order of 
Court of Appeals 0.9
Preparation and filing of 
plaintiff's Answer to Defen­
dants' 31 May 1973 Petition 1.4
Review of third party plain­
tiff's pre-trial brief and letter 
of transmittal (20 pages) 3.4

Review of third party defen­
dants' opposition to third 
party's Pre-trial Brief on Remedies and Facts
Review of proposed school zone 
changes approved by Board of Education

1.3

4.8

-28-



HOURS DAYS
A 11 Aug. 1973

A 14 Dec. 1973

A 20 Dec. 1973

A 12 Jan. 1974

A 31 Jan. 1974

A 9 Feb. 1974

A 12 Feb. 1974

A 13 Feb. 1974

A 21 Mar. 1974

A 22 Mar. 1974

A 26 Mar. 1974

A 29 Mar. 1974

Review of third party defen­
dants ' Response to third party 
plaintiffs reply to their Pre­trial Brief
Review of Court Orders sub- 
stituting new HEW Secretary 
and permitting intervention 
by Board of Education as third party plaintiff
Review of Memorandum and Order of the Court
Review of Petition of Metro 
Attorney for counsel f-es and 
preparation of letter to Court m  response
Review of Motion for Depositions pending appeal q 7

Review of Petit 
fees for counse 
plaintiffs

ion for attorneys 
1 of third party

0.5
Keview of Federal Defendants 
reply to plaintiffs' petitio for attorneys fees
Review of Notice of Appeal by 
third party defendants
Review of third 
ants' opposition for counsel fees 
party plaintiff

party defend- 
to petition for third

Review of third party 
dants' opposition to 
of Metro attorney for fees

defen-
petition
counsel

Review of Order 
for transmittingappeal

of extension record on

Review of Order 
for transmission appeal

extending 
of record timeon

0.7

0.1

0.5

1.7

0.1

0.1

-29



HOURS DAYS
A

A

A

A

A

A

A

A

H

4 Apr. 1974

5 Apr. 1974

6 Apr. 1974 

25 Apr. 1974

14 May 1974

4 June 1974

7 Sept. 1974

2 Oct. 1974 

1 - 1 1  Apr. 1974

13 May 1975

14 Oct. 1975 

31 Oct. 1975

Review of Order extending
time for transmittal of record
on appeal 0.1
Review of Motion of third party 
defendants to dismiss the appeal 0.1
Review of Order dismissing
appeal o.l
Review of Motion by third 
party plaintiff to require 
third party defendants to com­ply with Court Order 0.2
Review of Order granting Motionof third party plaintiffs
filed 24 April 1974 0.1
Review of response of HEW by letter q 2
Review of Motion for Further 
Relief by third party complain­
ants and by Metro School Board 1.5
Review of third party defen­
dants' Answer to Motion for further relief 3<0
Consultations with associate 
counsel and filing of Motion of 
plaintiffs for counsel fees and Brief 0
Review of respond of J. William 
Rutherford, Beverly Briley, MNEA 
and Metro Board of Education to 
plaintiffs' Motion for Attorney Fees J

reparation and filing of 
Motion to dispose of plain­
tiffs' Motion for Attorneys« GQ3

Review of 
for MNEA Letter from Counsel

0.5

0.1

-30-



HOURS DAYS
B 15 July 1976 Review of report of defendant 

Board of Educaticn re: Cole 
Elementary School and to sub­
stitute Linda Varnell as counsel for School Board 0.4

14 Oct. 1976 Review of Defendants' Motion
to Amend its Petition for
further relief q 7

B 23 Dec. 1976 Preparation of petition forcontempt and for further
relief and supporting Brief 10.7

23 Dec. 1976 Preparation of Interrogatories to defendants 3 q
23 Dec. 1976 Preparation of reply of plain­

tiffs to defendants 30 May 1973 
petition and to defendants 
12 October 1976 petition 2.0

B 23 Dec. 1976 Preparation of Amendment to 
Petition for Contempt and for further relief 4 0

31 Dec. 1976- 
4 Jan. 1977 Entry of Consent Order per­

mitting MNEA to withdraw as 
party defendant and filing of same 5 q

May - June 1977 Consultations with expert
witnesses and field trip 3 q

4 June 1977 Preparation of Interrogatories 1.4
27 Dec. 1977 Preparation of Motion to Compel discovery  ̂ q ^
5 Jan. 1978 Review of response to Motion 

to Compel discovery and request lor extension of time q 5
Jan. 1978

"  K ; “ r

-31-



HOURS DAYS
11 Feb. 1978 

20 Apr. 1978

25 July 1978

7 Aug. 1978 

B 26 - 28 Aug.

27 Oct. 1978 

29 Nov. 1978 

6 Dec. 1978 

6 Dec. 1978

13 Dec. 1978 

29 Mar. 1979

1978

Review of Notice of Appearance 
filed by William R. Willis, et 
si as counsel for defendant Board

1 iminary review of answers filed(by deiendantg to plain_ 
tiffs First Set of Interro­gatories .
Review of Petition for 
1978°Va79°^ schoc,l zone for

Review of Amendment to Petition
Preparation of Answer of 
plaintiffs to Petition filed 
by defendants for approval 
of school attendance zones and preparation of amendment to 
etition for Contempt and for further relief

Review of Motibn for Pre-trial conference

for 1-Dre°r grantinS Motiontor pre-trial conference
Review of Motion for Continuance by counsel for defendant lnU3nCe
Preparation and filing of 
Motion to Broaden Scope of 
Pre-Trial Conference and 
Memorandum In Support there-

Review of Order of Court 
granting continuance and
P?e1T?i^Tr0rde2ing Sc°Pe of Fre Trial Conference
R S v ie w  of Defendants' Memo­randa For status Conference

0.1

2.0

4.0
1.4

6.0

0 . 2

0.1

0.1

1.3

0 . 2

3.7

-32-



HOURS DAYS
31 Mar. 1979 Preparation and filing of 

Second Motion To Compel 
Discovery and Memorandum 
In Support thereof 1.0

26 Apr. 1979 Preparation of Motion to 
Extend Time For Filing 
Statement of Issues 0.7

28 Apr. 1979 Review of Order granting 
Extension 0.1

2 May 1979 Review of Motion and Order 
for Board of Education to 
withdraw transcripts of hearing 0.1

2 May 1979 Pre-trial consultation with adversary counsel 2.0
3 May 1979 Review- of Order granting 

permission to withdraw 
transcripts 0.1

3 - 1 8  May 1979 Phone consuLtations with 
proposed expert witnesses 1.0

17 May 1979 Review of Proposed Pre- 
Trial Order drafted by 
defense counsel 2.0

19 May 1979 Consultation with proposed expert witness 3.0
20- 21 May 1979 Preparation of Pre-Trial 

Order proposed by plaintiffs 4.7
21 May 1979 Pre-Trial Conference in Court Chambers 2.0
22 May 1979 Correspondence from expert witness 0.2
25 May 1979 Correspondence to expert witness 0.2

-33-



HOURS DAYS
25 May 1979 

29 May 1979

1 June 1979

2 June 1979

4 June 1979

8- 9 June 1979 

16-20 June 1979

21- 22 June 1979

22 June 1979

22- 23 June 1979

23- 30 June 1979

5 June 1979 

26 June 1979

Review of correspondence to 
Court from Citizens Advisory 
Committee Percy Priest Ele­mentary School
Review of Amendment to List 
of Capital Improvements and 
to proposed attendance zones filed by defendants
Informal conference in Chambers with the Court
Preliminary review of up-dated 
Answers to Interrogatories by defendants
Preparation and forwarding of 
materials to expert witness
Consultations and field trips with Dr. Hugh Scott
Review of up-dated Interro­
gatories and Plaintiffs' 
Proposed Findings Of Fact etc.

Preparation of Amendment to 
Proposed Findings Of Fact And Conclusions of Law 
submitted by plaintiffs
Preparation of Statement of 
plaintiff pursuant to Local Rule 11(c)5
Keview of Proposed Finding 
Of Fact And Conclusions Of 
Law filed by defendants
Consultation with personnel and trial preparations
Pre-trial conference in Court Chambers
Preparation Plaintiffs' and filing of 

Witness List

23.0

5.0

0.7

19.4

24.0

0.8

0-.7

2 . 0

-34-



HOURS DAYS
26,27,28,29, 30 June -
2,3,5, & 6 July 1979 Hearings in Court
11 July 1979

20 July 1979

27 July 1979 

1-7 Aug. 1979

3-7 Aug. 1979

14 Aug. 1979

14 Aug. 1979

15 Aug. 1979

Review of Court Order per­
mitting defendants' Pro­
posed Amendment to its 
Request For Approval Of 
Certain Building Projects 0.2
Review of Motion of MNEA 
for leave to file Amicus 
Curiae Brief and Memorandum 
In Support thereof i.o
Review of Order granting 
MNEA Motion
Receipt and review of in­
formation from client re: 
illegal transfers
Preparation of Motion For 
Further Relief And For Adjudi­
cation Of Contempt, Memorandum 
In Support of said Motion, In­
terrogatories, Motion To Shorten 
Time For Response thereto and 
Supporting Memorandum in re­
ference to illegal transfers 8.0
Review of Motion Of League of 
Women Voters to file 
Amicus Curiae Brief and 
Supporting Memorandum
Review of Motion of De­
fendants to Defer Hearing 
Scheduled as Phase II and 
Supporting Memorandum
Review of Orders entered by 
Court granting Motion Of 
League of Women Voters to file 
Amicus Curiae Brief and 
Motion of Defendants' to 
Defer Hearing

8.5

-35-



HOURS DAYS
16 Aug. 1979

16 Aug. 1979 

17-20 Aug. 1979

21 Aug. 1979

21,22,23 &
2A Aug. 1979
24 Aug. 1979
26 Aug. 1979

27 Aug. 1979

1 Sept. 1979

4 Sept. 1979 

6 oept. 1

Review of Motion of Defendants 
to Quash Subpoena of Dr. Brooks, 
Affidavits and Supporting Memo­randa i . 5
Hearing before Court on Motion 
of Defendants to Quash Sub­
poena of Dr. Brooks 1.5

Trial preparations and pre­
parations of exhibits for 
hearing beginning on 21 August 
1979 3o.o
Motion To Extend Time For 
Responding To Defendants'
First Set of Interrogatories Re: Attorney Fees and Sup­
porting Memorandum i q

Hearing before Court
Review of Court Order
Review of Defendant's Motion For Exclusion of Seniors 
from Transfer Changes and 
Supporting Memorandum and 
Affidavit delivered on Sunday; and preparation 
that same day of Opposition thereto
Review of Additional Memo­
randa and Orders filed by Court
Review of Motion and Order 
of Defendants' to withdraw exhibits
Review of Affidavit of Df. Brooks
‘— vxcw ui notion For Clari 
cation of Court's Order of 
ugust 1979, Supporting Mei 

randum, Motion For Extensi, Of Time To Make Final Repoi

1.4

4.0

2.1

0.2

0.3

4.0

-36-



HOURS DAYS

14 Sept. 1979 

18-19 Sept. 1979

21 Sept. 1979

25 Sept. 1979 

12 Oct. 1979

21-22 Oct. 1979

25 Oct. 1979

25 Oct. 1979-
6 Nov. 1979

7 Dec. 1979

to the Court regarding trans­
fer policy revisions and Affi­davit of Dr. Brooks
Review of First Supplemental 
Report to the Court regarding 
transfers and Supporting Affidavit
Preparation and securing of 
Order allowing extension for 
Response to Interrogatories by plaintiffs
Review of Motion of Defendant 
for permission to withdraw exhibits
Review of Court Order allowing withdrawal of exhibits
Review of Court Memorandum 
and Order on majority to 
minority transfer
Drafting and securing exten­
sion of time for plaintiffs 
to respond to defendants' 
Interrogatories of counsel fees
Review of Report to the Court regarding transfers

A^5^jr0?at0 Fies an<* suPportin Affidavits in Response to De­
fendants First Set Of Intern 
gatones Re: Attorney Fees
Review of Final Report to the 
Court regarding transfers and
Ha^isV1TSh°fpDrv Peggy FlynnFibert' R* YounSer and Dr Libert Brooks regarding same

3.8

1.5

0.5

0.7

0.1

0 . 2

0.5

2.3

48.0

2.0

-37-



HOURS DAYS
I
I
1
i
a

16-18, 21-23, 
29 Feb. 1980

28-

19 Feb. 1980

19 Feb. 1980

15 Feb. 1980

Review of 11 February 1980 Board 
Plan with 15 exhibits and pre­
paration of Objections Of Plain­
tiffs to said Plan filed on 29 
February 1980 16.0
Shipment of materials to Dr.
H . Scott 2.0
Phone calls and travel arrange­
ments for Dr. Scott 1.0
Review of Order of Court sett­
ing Progression of case; pre­
paration and filing of Order 
for Postponement of Pre-Trial 
Conference 0.5

1
a
a

a
a
a
a
i

29 Feb. -
2 Mar. 1980 Review of Motions of Metropoli­

tan Nashville Education Associ­
ation and League of Women Voters 
to file Briefs Amicus Curiae and 
Petition of Leo Lillard, et al 
to Intervene together with Pro­
posed Intervenors-"Equity" Plan; 
preparation of Suggestion Of 
Issues For Hearings beginning 
3 March 1980 and Motion For Time 
To Be Allowed Plaintiffs For Fur­
ther Response and Hearing; and 
pre-trial consultations 18.0

[
[ 3 Mar. 1980 Court
[
[Some [ 

Portion[

4 Mar. 1980 Court
5 Mar. 1980 Court

E [ 
[ 6 Mar. 1980 Court
[
[ 7 Mar. 1980 Court
t
[ 10 Mar. 1980 Court
[r 11 Mar. 1980 Court
f ia Mat*. i980 Court

appearance 1 .0
appearance 0.5
appearance 0.5
appearance 0.5
appearance 1 .0
appearance 1 .0
appearance 0.5
appearance 0.5

-38-



HOURS DAYS

ion

ion

[ 13 Mar. 1980 Court appearance 0.5
£ 14 Mar. 1980 Court appearance 1.0

£ 17 Mar. 1980 Court appearance 1.0

£ 18 Mar. 1980 Court appearance 0.5
jj 19 Mar. 1980 Court appearance 0.5
[ 20 Mar. 1980 Court appearance 0.5
[ 2 1 Mar.. 1980 Court appearance 1.0
[31 Mar, 
[ 1 Apr.
[ 2 Apr.
[ 3 Apr.
[ 4 Apr.

. 1980 Court appearance 1.0
1980 Court appearance 0-5
1980 Court appearance 0.5
1980 Court appearance 0.5
1980 Court appearance 1.0

14-19 Apr. 1980 Review of materials furnished
by defendants to Intervenors
on 14 April 1980 8 0

r[ 21 Apr. 1980 
[[ 22 Apr. 1980
[ 23 Apr. 1980 
C[ 24 Apr. 1980 
C[ 25 Apr. 1980 
[[ 30 Apr. 1980 
[

Court appearance 1.0
Court appearance 0.5
Court appearance 0.5
Court appearance 0.5
Court appearance 1.0
Preparation for oral argu­ment 3.0

1 May 1980

1-6 lay 1980

Court appearance for oral argument
Review of Memoranda regarding 
pfoposed Intervenors’ Plan and preparation of Memorandum and 
Motion to Submit Additional 
Suggestions of Dr. H. Soctt

-39-



HOURS DAYS
20-30 May 1980

31 May 1980

9 July 1980 

1-9 July 1980

10 July 1980

11 July 1980 

15 July 1980

26 July 1980

27 Sept. 1980

19 Dec. 1980 

19 Jan. 1981

19 Jan. - 
6 Feb. 1981

Review of Memorandum and Order 
of Court of 20 May 1980 and pre­
paration and filing of Motion 
To Alter Or Amend tame; and 
discussions with Expert Witness 
and Associate Counsel about same 8.0

Review of Order Denying Plain-
^■Hfs Motion To Alter OrAmend n 0

Review of Interveners' Objec­
tions to Defendants' Report of 25 June 1980
Review of Defendants' Reoort 
regarding Timetable for Dese­
gregation. Plan and preparation of Objections of Plaintiffs there to
Review of Interveners’ Obiec- 
tions to Defendants’ Report of 25 June 1980
Court Hearing on Defendants' Proposed Timetable

2 . 0

3.0

2. 0

Review of Court Order on 11 July 1980 Hearing
Review of Report of Defend­
ant regarding Transfer Policy
Letter to Dr. Gordon Foster 
of University of Florida re- 
proposed expert testimony

nf Defendants’ Report
6 SUrt filed 15 Dec-1980 on Timetable For Dese­gregation Plan

PT^n11̂ ?  °f ^segregation P1a fl}ed by defendants and review of Court Order 
directing a response by 9 February 1981 y

0 . 2

2.0

0.3

0.5

1.5

0.5

Review of Desegregation Plan,



HOURS DAYS

G

G

G

G

G

14 Feb. 1981 

19 Feb. 1981

19 Feb. 1981- 
2 Mar. 1981

11 Mar. 1981

____ Mar. 1981

18-25 Mar. 1981 

27-28 Mar. 1981

25 Mar. 1981

consultation with expert and 
preparation of Objections and 
Motion of Plaintiffs For Addi­
tional Time For Supplemental 
Response 6.0
Review of Objection of De­
fendants to Plaintiffs' Motion 
For Additional Time To Respond 0.2
Review of Order of Court grant­
ing the plaintiffs until 16 March 1981 for Supplemental 
Response 0.2

Study of Plan and consultations 
with HGH Associates as expert 
witnesses 8.0

Preparation of Motion For Ex­
tension of Time To File Supple­
mental Objections
Field visitation of schools with 
Dr. James D. Andrews for HGH 
Associates expert witness team 
and consultation with Andrews 8.0
Preparation and filing of 
Plaintiffs' Supplement to Objec­
tions and Alternate Plan pre­
pared by expert witnesses, in­
cluding consultation with said 
witnesses and forwarding of materials
Review of Defendants' Motion 
To Strike Plaintiffs' Pupil 
Assignment Plan and to Approve 
Defendants' Proposed Plan With­
out Hearing and of Court Order 
setting Motions For Hearing 
on 30 March 1981, with office discussions of same
Preparation and 
11(c) Statement 
pert witnesses

filing of Rule 
regarding ex-

2. 0

1.5

-41-



27 Mar. 1981 Phone consultation with Associ­
ate Counsel re: plan

30 Mar. 1981 Court appearance for Status 
Conference

31 Mar. 1981 Preparation of Motion and 
Memorandum to postpone the 
hearing set for 1 April 
1981

3 Apr. 1981 Preparation and filing of 
Supplemental Statement of 
Testimony of Dr. William M. 
Gordon and review of Report 
to the Court on behalf of 
the defendants and Affidavit 
of Lucille Nabors

4-5 Apr. 1981 Pre-Trial preparations in­
cluding review of Plaintiffs' 
Proposed Alternate Plan, 
Supporting Brief and consul­
tation with expert witness, Dr. William M. Gordon

6 Apr. 1981 Court appearance at Columbia
17 Apr. 1981 Review of Memorandum and Order 

of the Court approving the 
Defendants' Plan

9 May 1981 Review of Motion, Memorandum 
and Third Party Complaint to 
Implead State as a Third Party 
Defendant filed 25 March 1981, 
Order to extend time for Third 
Party Defendant to serve a 
responsive pleading, State 
Defendant's Motion For Relief 
From Judgment, Memorandum and 
Affidavits in Support thereof

15 May 1981 Preparation and filing of 
Notice of Appeal and Bond for Appeal

24 May 1981 Review of Motion of Defendants fco require plaintiff to order
of ilsueranscrlpt °r glVe noti«

26 June 1981 Court appearance for oral 
argument on Motion of State Defendants



HOURS DAYS
27-31 July 1981

7-10 Aug. 1981 

18-19 Aug. 1981

20 Aug. 1981

24 Aug. 1981

24 Aug. 1981

25 Aug. 1981 

9S Aug. 1981 

2 Sept. 1981

Consultations with associate 
counsel who prepared Motion 
For Stay Pending Appeal and 
Expedited Appeal and prepara­
tion and filing of same in 
the Sixth Circuit Court of 
Appeals 6 0

Review of the Motion To 
Dismiss, Affidavits and re­
lated documents filed by 
defendants in the Court of Appeals 2 o
Travel to Cincinnati and 
appearance before Court of 
Appeals on Motion For Stay 
and Expedited Appeal and 
Defendants' Motion to Dis­miss
Preparation of Response to 
Application by defendants to United States Supreme Court for a stay and travel to 
Washington for presentation and filing of same
Keview of Judgments of Court 
of Appeals and of the United 
States Supreme Court granting and upholding the stay of the District Court Order
Preparation of letter to 
defendants’ counsel regarding issues on appeal
Review of letter from adver­sary counsel in response thereto
Review of letter from Clerk
of Court of Appeals regarding argument sluing

J£atatl°n and forwarding of Motion For Postponement Of
dlllynin°n Appeal because of
s?r?nt ? J r Paration of tran-
C ert at ? °W-ng Ph°ne cal1 to erK at Cincinnati

0 . 2

1.0

0.2

0.3

1.0

1.5

1.5

A WTI— III yfT'frmfr?



HOURS DAYS
2,10, 12 Sept. 1981
& 2 Oct. 1981 Consul tations with AssociateCounsel at New York and Nash­

ville re: appeal 5.4
8 Sept. 1981 Review of Defendants' Opposi­

tion to Postponement 0.5
.10 Sept. 1981

11 Sept. 1981

7 Oct. 1981

10 Oct. 1981

16 Oct. 1981

2, 26 Nov. 1981 
& 10,11 Dec. 1981

9 Nov. 1981

14 Nov. 1981

23 Nov. 1981

27 Nov. 1981

Review of Motion To Intervene 
by People For Innovative Pro­
grams In Education, Inc. and 
preparation and filing of 
Opposition and Memorandum In 
Opposition thereto 3.0
Review of Court Order granting 
Motion of People For Innova­
tive Programs’ In Education,
Inc. to intervene 0.2
Receipt of major portion of 
transcript of hearing; scanning 
and forwarding of same to Asso­
ciate Counsel in New York 3.0
Receipt of transmission form 
and Docket Entries from District 
Court and reviewing and forward­
ing same to Associate Counsel 
on 2 November 1981 l.Q
Review of Motion To Recuse, 
Suggestion For Hearing En Banc 
and Memorandum In Support of 
Motion To Recuse filed by 
defendants in the Court of Appeals 3 .o
Phone consultations with
Associate Counsel regarding
Brief on Appeal and Argument 3.0
Receipt and review of Brief 
on Appeal prepared by Associate Counsel and list of items for 
inclusion in the Appendix 3 o
Receipt and review of Supple­mental Record on Appeal o 3
Receipt and review of Brief 
of Defendants on Appeal

anden?H and review of Motion and Order granting right of
efendants to enlarged Brief

■4.0

0.2
-L



HOURS DAYS

4 Dec. 1981

4 Dec. 1981 

9 Dec. 1981

9 Dec. 1981 

10-11 Dec. 1981

23 Dec. 1981

24 Dec. 1981 

29 July 1982

20 Aug. 1982

24 Aug. 1982

10 t. 1982

21 Sept. 1982

Receipt and review of Reply 
Brief prepared by Associate 
Counsel for plaintiffs together 
with Motion and Order allowing 
enlargement of same 2.7
Receipt and review of Sixth
Circuit Order enlarging time
for oral argument 0.1

Review of letter from Marion 
F. Harrison to Clerk on Joint 
Appendix, citations to Record 
and checking of same 1.5
Gathering and preparation of 
exhibits to be carried to 
Cincinnati 4.0
Travel to Cincinnati and 
appearance upon oral argument
before Court of Appeals 1 . 0

Review of letter,from Asso­
ciate Counsel to Court of 
Appeals regarding exhibits 0.1
Review of letter from Counsel 
for Defendants regarding ex­
hibits 0.3

Receipt and review of Decision
of United States Court of
Appeals dated 27 July 1982 4.0
Review of Judgment and Mandate 
of Court of Appeals and phone 
consultation with Associate 
Counsel regarding same 0.5
Review of letter from Associate 
Counsel regarding case 1.0
Phone call to Clerk of District 
Court requesting Status Con­ference
Preparation and filing of 
Motion and Supporting Memo­
randum for immediate further proceedings

-45-



HOURS DAYS
7 Oct. 1982 Participation in Status

Conference in Chambers 0.8
20 Oct. 1982 Preparation of Affidavit
to 22 Oct. 1982 of Avon N. Williams, Jr.,

Esquire, updated from
August 1979 to October
1982 and consultations
with Associate Counsel
regarding Affidavits
on Counsel Fees and
Expenses 22.0

TOTAL 1,211.5 87.3

The above does not include all of the phone calls and 
conferences between counsel which have certainly entailed an 
average of at least six office hours per year or a total of 
approximately 162 hours. The hours set out above in connection 
with preparation of documents and other trial preparations have 
been reconstructed by going over, for the most part, the actual 
documents in the files of counsel and/or in the Court files and 
formulating the approximate time involved in preparing same from 
a combination of memory and knowledge as to time customarily re­
quired m  producing and reviewing and analyzing documents of the 
respective type and complexity involved. Virtually all of said 
documents filed in behalf of the plaintiffs were prepared in the 
ofij-ce of deponent. However, all counsel for plaintiffs con-

ith each other in the preparation of documents and trial 
preparations.



Prior to 10 May 1969 deponent practiced law in association 
with the late Z. Alexander Looby under an arrangement whereby 
they shared office expenses and divided fees equally after de­
duction of a small administrative salary to deponent following 
an illness of Mr. Looby in 1956.

Counsel for plaintiffs have not received regular or sub­
stantial fees from any source in connection with the above con­
solidated cases. The Affidavit of Mrs. Mavis W. Donnelly marked 
Exhibit "D" to plaintiffs' Answers to Defendants' First Set Of 
Interrogatories on Attorney's Fees filed 6 November 1979, re­
flects the honoraria which plaintiffs' counsel have received 
from the NAACP Legal Defense And Educational Fund, Inc., at­
tributable to said cases, except for an additional $3 ,539.59 
ieceived in January 1980. The $300.00 listed therein as having 
been received in 1968 was divided equally between deponent and 
said Z. Alexander Looby.

The basic hourly charge routinely made by deponent and other 
members of his law firm for common office practice is and has 
been for several years $120.00 per hour and for routine Court work 
in Davidson County, the sum of $1,500.00 per day, same being the 
routine method of billing by said deponent and his firm. However 
deponent is informed and believes that attorneys of similar com­
petence and reputation in Davidson County, Tennessee, routinely 
charge between $175.00 and $200.00 per hour. In addition deponent 
is informed arid believes that a substantial contingency factor of 
not less than 1007. should be added In light of the uniqueness,

-47-



difficulty, extreme unpopularity and vigorous adversary dis­
putation throughout this protracted litigation.

In support of the foregoing, there is attached hereto a 
copy of the deponent's Curriculum Vitae marked Exhibit "A" to 
this Affidavit.

Furhter deponent saith not. /I r)

Sworn to and subscribed before me 
this the^g^day of October, 1982.

n o t a r y M l I c
MY COMMISSION EXPIRES: /-/-T-

CERTIFICATE
The undersigned certifies that a copy of the Updated Affidavit 

Of Avon N. Williams, Jr., Esquire, was hand delivered to William 
R. Willis, Jr., Esquire, and Marion F. Harrison, Esquire, Willis 
& Knight, 215 2nd Avenue, North, Nashville, Tennessee: 37201, this 
the 2 S ^ day of October, 1982.

-48-

m



CURRICULUM VITAE: AVON NYANZA WILLIAMS, JR.

Personal History:

Nyanza Williams,^ P^ents: Avon
scliools of Knoxville- AB m  w *  e11̂ , ’ toth docoased- Educated public 
Carolina; LlT 7  7 lS' w  a' ^  “’.R charlotte, NorthAdmitted to Bar Statenf m! ' v University, School of law, Boston, Hass.
of TenSss® 1948 AprU: 1948 md admitted to Bar State
for the Sixth c S S i  inti. “  PractlCL’ W W  States Court of Appeals
Supreme Court o f X  U n i S ' s S c f  l9rT S T  ?f mUtary ̂ P0313' 195̂
z. Alexander J o * * ,  1^-" 1 9 6 ^ “ " ^  '“ lelaw, Nashville, Tennessee lqco fn 1%9'. Private practice of
American Judicature Societv C* ftallber' -American Bar Association and
Association. Married in 1956 In fn, ' Davids°n County Trial lawyers
Avon Nyanza Williams m  BontenPs - ^  children,
♦Also renter, itaSSme L r  i l l ^ Y Janette Wllliams' age ]8.nville Bar Association & Tennessee Bar Association.

ForTTpr Board Memberships:

Family and C h i l d ^ s ^ r S S ^ l M ^ m o - ^ v I T '  ^  ^  °f Diro«ors, 1962-1966. 956 J960, Davidson County Anti-T.B. Association,

P_re_s_ent Board Memberships: *

of Directors, D a S d S , f ^ T i ^ n 7 e « Vp o U t f T ?  MWP >' 1953 »  * * «  Board of Directors, Tennessee Voters Coureril lor 5 , 1  Council, 1962 to date; Board 
Ti'ustee 1966 to date, St. iSetHreslvLrfa^ cf 1  nder' 1956 to and 
Apieals and Review Cornutt^Moteirry Soli00^ 00^  ' ? „ ViUe' Tennessee;
Directors, Southern RegionalcZSu £t“  J ' 197° ^  date; to3rd of

Other_Offices and Affi 1 i a t i on s:
Senator, 19th District of Tennessee, 1968 to date 
Delegate National Democratic Convention. 19?2

Council, 1966 to ̂  1962' ^  Chairman, Tennessee Voters
County I r K l c ^ n d c ^ i i ? ! ^ ^ ^ 2 " *  ForTOr Presid*"t, 1962-1966, Davidson 

Mb-.ibei ; State Democratic Steering Ccnmittee, 1964.
Ctfega Pfei Phi Fraternity.
Sigma Pi Phi fraternity, 
t- Col., JAGC, USAR. (Retired)

EXHIBIT "A"



-2-

Awards and Citations:
Citation for achievement in Civil Rights Cases, East Nashville 

Community Club, Inc., 1957.

Outstanding Citizen of Year, Onega Psi Phi Fraternity,
1963.

Citation for outstanding service in Civil Rights, Nashville 
Branch, NAACP, 1965.

Award for meritorious service, General Alumni Association, Johnson 
C. Smith University, 1967.

Certificate of Merit, Agora Assembly, 1968.
Citizen of the Year Award, Nashville Frontiers Club, 1972.
Citizen of the Year Award for Achievements in Civil Rights, Grand 

Lodge, FA & M of Tenn., Prince Hall Masons, 1972.

Award for Dedicated Religious Service, St. Andrews PresbyterianChurch, 1976.

Recognition award for services to community and to TSU, Tennessee 
State University Womens Association, 1976. *

Other totters of Interest:

Cooperating Attorney, N/ACP Legal Defense and Educational Fund Inc., 1949 to date.

lecturer on Dental Jurisprudence, Dental School of Meharry Medical 
College, 1966 to 1975. Professor, School of Dentistry, Meharry Medical Golleqe
Nashville, Tennessee, 1976 to date. '

Special Counsel for Jackson-Menphis-Tennessee and West Tennessee 
Conferences, CME Church 1963 to date (for development of two 221(d)(3) housing pre­
lects in Nashville, Tenn., 1964 and 1967, and one in Union City, Tenn., 1971); and 
one 202 housing for elderly project in Memphis, Tenn., 1979.

Counsellor Community Federal Savings and Loan Association of Nashville, 
J to c'atc' ajlĉ f°r Citizens Realty and Development Company, 1978 to date.

Distinguished Achievement Award for Legal Leadership, Humanistic Concerns in 
Education and Civil Rights, Tennessee State University, May, 1977.
‘legislator of the Year Award, Black Caucus of the Tennessee General Assembly,November 1978. r
- G. Ferguson Distinguished Community Service Award, Black Expo, November 2, 1979.

■•1'ublic Service Award, T.iu Lambda Chapter, Alpha Phi Alpha Fraternity, Inc., 5 Dec. 1981

» ship ofSalh^lli And Vinci Ministers



-3-

Publications:
"Negro Subculture, The White Mari's Problem" - New South, October, 1961, 

republished sub nomine "Race Relations - A Corrmunity Problem" - Negro Digest,
____  1962."

"Does a Child have a Right Not To Be Brainwashed by Adults?" - 
Peabody Journal of Education, January' 1973.

"Nashville's Greatest Challenge" - Part of Composite Article,
Nashville Magazine, July, 1975.

Seme Civil Rights Cases
Desegregation:

(a) Hlgher Education:
♦Gray v. Univ. of Tcnn., 1950.
Geier v. Blanton ( plaintiff-intervenors T.S.U. vs.
U.T.) 1972 to date.

(b) Public Schools:
McSwain v. Bd. of Ed. of Anderson County, Tenn., 1950.
♦Kelley v. Bd. of Ed. of Nashville, Tenn., 1956 to date.
♦Goss v. Bd. of Ed. of Knoxville, Term., 1959 to date.
Hayes v. Rutherford Co. Sch. Commission (Sewart A.F.B.) 1959 
♦Maxwell v. Bd. of Ed. of Davidson County, Tenn., 1959 to date 
*Mnpp v. Bd. of Ed. of Chattanooga, Term., 1960 to date.
Sloan v. Tentli Sch. District (Wilson Co., Term.,) 1961 to 1972 
Boyce v. Bd. of Ed. of Humphreys Co., Term., 1961.
Vick v. Bd. of Ed. of Obion Co., Tenn., 1962.
McConnell v. Bd. of Ed. of Johnson City, Term., 1962.
Carson v. Bd. of Ed. of Monroe Co., Tenn., 1962.
♦Monroe v. Bd. of Comrs. of Jackson, Term., 1963 to date.
Monroe v. Bd. of Ed. of Madison Co., Term., 1963 to date.
Hill v. Bd. of Ed. of Franklin Co., Tenn., 1963.
McFcrrin v. Bd. of Ed. of Fayette Co., Tenn., 1965 to date.
Hatton v. Bd. of Ed. of Maury Co., Tenn., 1968.

Teacher Discharge and Demotion:

x i u i «Dobbins v. Bd. of Ed. of LXxmtur Co.,
Hill v. Bd. of Ed. of Franklin Co., Tenn., 1965. 
Rolfe v. fid. of Ed. of Lincoln Co., Tenn., 1965. 
Macklih v. Bd. of Ed. of Houston Co., Jfenn., 1965. 
Vibk v. Ed. of Ed. of Fulton, Ky., 1967.
Fuller v. Bd; of Ed. of Williamson Co., Tenn., 1967 

“ • of Of Marion Co., Tenn., 1968. 
Hatton v. Bd. of Ed. of Maury Co., Tenn., 1968.
*m^ W V? BCL °f Ed' °f Fayette Co., Term., 1969. McFerrm v. Bd. of Ed. of Fayette Co., Term., 1970.

iiim, EJ



-4-

Elliott v. Dd. of Ed. of Gibson Co., Tenn., 1972.
Yeary v. Bd. of Ed. of Clarksville-Montganory Co., Tenn., 1974 
Williamson vs. McNairy Co. Ed. of Education, Tenn. 1976 to date.

Public Accomodations:
Hayes v. Crutcher (Nashville Golf Courses), 1953.
Sit-In Cases, Nashville, Tenn. (approx. 200 crim. cases), 1960-62. 
Lebanon Tenn. Sit-In Cases (approx. 25 crim. cases) 1961-62.
Knight v. State of Tenn. Dd. of Ed. (Freedom Riders) 1962.
Smith v. Holiday Inns (motels), 1963.

****State v. Lester McKinnie (B & W Cafeterias), 1963.
Morrison Cafeteria Sit-in Cases, Nafehville, Tenn. (approx.
230 crim. cases) 1964.

Morrison Cafeteria Conpany v. Johnson, 1964.
Efnployment Discrimination:

Hall v. Werthan Bag Corp. (Title Vll-race) 1965.
Alexander v. Avco Corp. (Title VII-race) 1965 to date.
Newman vs. Avco Corp. (Title Vll-race) 1968 to date.
Whitfield v. Humphreys Co., Nursing Home, 1969 to date.
Johnson v. Lillie Rubin Co. (Title Vll-race) 1971.
Smith vs. South Central Bell (Title Vll-race) 1971.
Barnes v. Dealy-Rourke Employment Agency (Title Vll-sex) 1971.
Rice v. Gates Rubber Co. (Title Vll-race) 1974 to date.
Kincnide v. Firestone Tire & Rubber Co. (Title Vll-race) 1975 to date. 
Wakefield v. PIE, Ryder, ct al (Title Vll-race) 1975 to date.
Woods vs. First National Bank of Lelonon (42 U.S.C. §1981-race) 1975 
to date.

Cherrion Pollard v. Aladdin Industries (Title Vll-race) 1975.
Wingo v. Metro Government (42 U.S.C., §1981-political beliefs) 1976. 
Williams, et al vs. TVA (Title Vll-race) 1976.

Urban Affairs:

*Nashville 1-40 Steering Ccmmittee v. Ellington (Highways) 1967. 
**Taylor v. Nashville Housing Authority (Tenant Eviction) 1968. 
Fisher v. Parson-Decaturville, Tenn. H.A. (Tenant Eviction) 1970. 
N.N.C.C.C. Inc. vs. Romney (Nashville Model Cities) 1971.
Lawson v. Rcmney (Urvan Renewal) 1971.
Dupree v. Lynn (Chattanooga Model Cities) 1972.
Cliff v. Settles (OEO Discrimination), 1969.

Criminal Justice:
***USA v. Swift (Air CM, Germany) 1965.
**State vs. John Henry Bonds (Jury Discrim.) 1967.

****Biggcrs v. State, 1968.
*Neil v. Biggers, 1972.
**State v. Jefferson, 1968 to Sate.
**Elliott v. State (Capital punishment), 1968.

tm



**State v. Whittaker (Due process), 1969.
USA v. Joseph Miller Calvert (Unfair trial procedure)

Fair Housing:

Phillips v. Pinehurst Realty Co., Inc., 1969. 
Brown v. Earth, Inc., 1970.
Brown v. Lokey Kinser Realty Co., 1970 to date. 
Murrary v. Hirshberg, 1971.
Steger v. Ognio d/b/'a Capri Apartments, 1971. 
Lucas v. Hooper Realty Company, 1972.
Nelson v. Glasccw Realty Corrpany, 1972.
Mathis v. Gibbs, 1974.
Harris v. Burkhalter, 1974.
Keneipp v. Nashbro Corporation, 1976.
Howard v. Watson, et al, 1976

Miscellaneous:
Mildred Jewel Moore v. Milton W. Hundley, et al (Police Brutality)
1968.
Inman Otey v. Paul H. Uselton, Jr., et al (Police Brutality) 1968. 
William H. Vaden, Jr. v. B. Hughes, et al (Police Brutality) 1969. 
Frederick A. Webster vs. Charles Hendricks, et al (Police Brutality)
1969.
William Foster Smith vs. Jameŝ G. Chandler, et al (Police Brutality) 
1969.
John S. Nesbitt v. John A. Sorace, et al (Police Brutality) 1969. 
Leon Childress v. R. Lever, et al (Police Brutality) 1969.
Patton v. Jett (Police Brutality) 1969.
John Rufus Roberts v. L. Mallory, et al (Police Brutality) 1970. 
Gloristean Byas vs. Kenneth Botts, et al (Police Brutality) 1970. 
Janice Grant v. Roy D. Cook, et al (Police Brutality) 1970.
Wilson vs. White (Police Brutality) 1970.
Gladys Newscm v. Kenneth E. Botts, et al (Police Brutality) 1971. 
Barbara Jean Huddleston vs. Robert Pollard, et al (Police Brutality) 
1972.
Georgia Mai Gaines vs. Seagle, et al (Police Brutality) 1972.
Ivey Gray, Jr. v. J. T. Williams, et al (Police Brutality) 1972. 
Itnmie Lee Robbins vs. John A. Fraizer, et al (Police Brutality)
1972.
Fahnic Overton v. Jackie Harold Pyle, et al (Police Brutality) 1973. 
Earnest Joyce v. James W. McWright, et al (Police Brutality) 1974. 
Louise Hunter vs. Judy Vawcum, et al (Police Brutality) 1975.
Thomas R. Johnson vs. Allen Murphy, et al (Police Brutality) 1975. 
Valarie Denise Reddon vs. Warren Hill, et al (Police Brutality) 1975. 
Louiao huehanan vs. Beverly King, et al (Police Brutality) 1976.

SB



-6-
Patton v. Bennett (Public School Student Abuse) 1963.
Moore v. Glossip (Public School Student Abuse) 1971.
Hunt v. Pittinger (Public School Student Abuse) 1973.
McFerrin vs. Bd. of Ed. of Fayette Co., Term. (Pupil Suspension) 
Thompson vs. Jarvis (Pupil Suspension)
McFerrin v. Bed. of Ed. of Fayette Co., Term. (Anti-Private 
Segregated Schools), 1970 to date.
Clemons v. County Court of Wilson Cbunty, Term, (reapportionment), 
1969.
National Bank of Corrmerce v. Currie, et al (racial undue influence- 
will Contest) 1974.
Green vs. Williams, 1977-81, (Anti KKK-type activity) * ** *** ****

*Reached Supreme Court of tlx? United States.
**Reached Supreme Court of Tennessee.
***Reached U. S. Court of Military Appeals.
****Reached Supreme Courts of Tennessee and of the Uni tied States.



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT W. KELLEY, ET AL )
VS ) CIVIL ACTION NOS. 2094, 2956
METROPOLITAN COUNTY BOARD )
OF EDUCATION OF NASHVILLE 
AND DAVIDSON COUNTY )
TENNESSEE, ET AL

)

UPDATED AFFIDAVIT OF RICHARD H. DINKTNS, ESOUTRE 
STATE OF TENNESSEE
COUNTY OF DAVIDSON

Richard H. Dinkins, after being duly sworn according to law, 
deposes and says:

Deponent is and has been a practicing member of the Bar of 
the State of Tennessee since 1977. He has been admitted to the 
Bars of the United States District Court For The Middle District 
Of Tennessee since 1977, the United States District Court For The 
Western District Of Tennessee since 1978, the United States Court 
Of Appeals For The Sixth Circuit since 1978 and the United States

s“  7 ; ;  SlOCe 197S' He W3S from Vanderbilt University
7 °  “ “ ln 197? Wlth <* Jurisprudence Degree „
* *“ • been In the active practice of la ■
nessee since 1977 whi7 • W ^  ^  State of Ten"

■ ^  «  Law School he was employed as a Clerk

e x h i b i t  b



in the office of Avon N. Williams, Jr., Esquire, from May 1975 
until May 1977, during which time he did research and background 
work on numerous school desegregation and civil rights cases, 
including, but not limited to, McFerren vs. Board of Education 
oLZa^ette County, Tennessee, No. 65-136, Monroe vs. Board of 
Commissioners, No. 1327, Monroe vs. County Board of Education.

C 2209 E and Yeary vs. Clarksville Montgomery County School 
Astern. In May 1977, deponent became an associate in the office 
of Avon N. Williams, Jr., Esquire, and has continued his involve­
ment in the abovementioned cases as Associate Counsel of record,
as well as entering appearances in numerous other cases of a 
similar nature.

Deponent first became involved in the case of Kelley, et 
al_vs. Metropolitan County Board of Education of Nashville and 
S ^ ^ I L ^ o u n t ^ T e n n ^ .  in August of 1978, when defendants 
filed their Petition For Approval Of School Attendance Zones 
for the year 1978-79, and Amendment to same. Since that time,
P nent has performed the following services with the following 

expenditures of time in said cases:

___  Aug. 1978

28 Aug. 1978

27 Oct. 1978

Of t h  °f retition For Approval
1978 7901 At]rendance Zones for 9/8-79 and Amendment to same 6.0

TnVpe?-?^ Answer of Plaintiffs To Petition Filed by Defendant*
dance^Zones1 °f Sch°Cl 

Conference^01"*011 F°r P«-Trial
0.2

HOURS DAYS

-2-



HOURS DAYS
29 Nov. 1978 Review of Order granting Motion 

for Pre-Trial Conference 0.1

6 Dec. 1978 Review of Motion For Continance 
by counsel for defendant 0.1

6 Dec. 1978 Review of Motion To Broaden 
Scope of Pre-Trial Conference 
and Memorandum In Support 
thereof 0.5

13 Dec. 1978 Review of Order of Court grant­
ing continuance and Motion 
Broadening Scope of Pre-Trial 
Conference 0.2

Feb.- Mar. 
1979 Review of history and record of the case
29 Mar. 1979 Review of defendants’ Memo­

randum For Status Conference 4.0
31 Mar. 1979 Review of Second Motion To 

Compel Discovery and Memo­
randum In Support thereof 0.5

2 May 1979 Review of Motion and Order for 
Board of Education To Withdraw Transcripts Of Hearing 0.1

2 May 1979 Pre-trial conference with adversary counsel 2.0
3 May 1979 Review of Order granting per­

mission to withdraw transcripts 0.1
3-21 May 1979 Consultation with adversary 

counsel regarding Pre-trial order 5.0
19 May 1979 Consultation with proposed expert witness 3.0
20-21 May 
1979 Preparation of Pre-trial Order ' proposed by plaintiffs 4.7

ifWBeur

-3-



HOURS DAYS
21 May 1979 

25 May 1979

29 May 1979

8-9 June 1979

16-23 June 1979

23 June 1979

25 June 1979

25 June 1979

26,27,28,29,30 June - 
2,3, & 6 
July 1979
11 July 1979 

20 July 19'/9

Pre-trial conference in Court Chambers
Review of correspondence to 
Court from Citizen's Advisory 
Committee Percey Priest Ele­mentary School
Review of Amendment to list 
of capital improvements and 
two proposed attendance zones 
filed by defendants
Consultations with expert witness

Assistance in preparation of 
Plaintiffs' Proposed Findings 
Of Fact And Conclusions Of Law, 
and other general office work 
in preparation for trial
Review of Proposed Findings 
Of Fact And Conclusions Of 
Law filed by defendants
Pre-trial conference in Court Chambers
Pre-trial conferences with 
plaintiffs' witnesses

Hearings in Court
Boview of Court Order per­
mitting defendants' Proposed 
Amendment to its Request For 
Approval Of Certain Building Projects 6

Heave To File Amicus Curiae 
Brief and Memorandum In Sup­port thereof P

2 . 0

2 . 0

2.0

4.0

16.0

10 . 0

0.8

6.0

0 . 2

1.0

-4-



HOURS DAYS
27 July 1979 Review of Order granting 

MNEA Motion 0.1
7 Aug. 1979

14 Aug. 1979

14 Aug. 1979

15 Aug. 1979

17-20 Aug. 
1979

21.22,23 &
24 Aug. 1979
24 Aug. 1979
27 Aug. 1979

1 Sept. 1979

Review of Motion For Further 
Relief and For Adjudication 
Of Contempt, Memorandum In 
Support of said Motion, In­
terrogatories, Motion To 
Shorten Time For Response 
thereto and Supporting Memo­
randum in regards to illegal 
transfers 1.0
Review of Motion of League 
of Women Voters filed Amicus 
Curiae Brief and Supporting Memorandum 1 .o
Review of Motion of defendants 
to defer hearing scheduled as 
Phase II and Supporting Memo­
randum o 5
Review of Orders entered by 
Court granting Motion Of League 
Of Women Voters to file Amicus 
Curiae Brief and Motion of 
defendants to defer hearing 0.2

Consultations, trial prepara­
tions and preparations of exhi­bits for hearings beginning 
21 August 1979 10.0

Hearings before Court
Review of Court Order i.o
Review of defendants' Motion 
For Exclusion of Seniors From 
Transfer Changes and Supporting 
Memorandum and Plaintiffs' Re­sponse thereto  ̂ 0
Review of Motion And Order of - 
Defendants to Withdraw Exhibits 0.2

-5-



HOURS
8 Sept. 1979

14 Sept. 1979

21 Sept. 1979

25 Sept. 1979 

5-6 Nov. 1979

7 Dec. 1979

Feb. 1980

14 Feb. 1980- 
29 Feb. 1980

Review of Motion For Clarifi­
cation of Court’s Order of 27 
August 1979, supporting Memo­
randum, Motion For Extension 
Of Time To Make Final Report 
On Transfer, Report to the 
Court regarding Transfer Policy 
Provisions and Affidavit of Dr. Brooks
Review of First Supplemental 
Report To The Court regarding 
Transfers and Supporting Affidavit
Review of Motion of Defendants 
For Permission To Withdraw Exhibits
Review of Court Order allowing 
withdrawal of exhibits
Review of Plaintiffs' Answers 
to Defendant?1 Interrogatories 
Regarding Attorneys Fees and 
preparation of Affidavit
Review of Final Report to the 
Court regarding transfers and 
accompanying Affidavit of Dr. Peggy Harris
Review of Order setting pro- gession of case

Review of Plan submitted by 
defendant, submitted on 14 
Febrpary 1980 and exhibits 
thereto, consultation with 
Associate Counsel regarding 
Plaintiffs' Objections to 
same and preparation of 
Objections of Plaintiffs to 
198QPlan ^9 February 24.0



HOURS DAYS
23 Feb. 1980

23 Feb. 1980

29 Feb. 1980

1 Mar. 1980 
1 Mar. 1980

1 Mar. 1980

Review of Order granting Motion 
For Permission To File Amicus 
Brief on behalf of Metropolitan 
Nashville Education Association 0.3
Review of Order denying Motion 
To Require Statement Of Objec­
tions To Plan 0.1
Review of Petition To Intervene 
of Leo Lillard, et al and In­
tervening Pleading 1.5
Pre-trial Conference 5.0
Review of Motion For Permission 
To File Brief Amicus Curiae and 
Brief Amicus Curiae filed on 
behalf of League Of Women 
Voters Of Nashville 0.5
Review of Analysis of the 
Desegregation Plan by Black 
Board Members 0.3

Mar. 1980 Review of Motion of Defendant
T L / /- *  /~ \ o  1  i - i  r v  > “  A  J  „  C A - _

Court
1980 entered 29 February

0.1
3 Mar. 1980 Court appearance 1.0
4 Mar. 1980 Court appearance 0.5
5 Mar. 1980 Court appearance 0.5
6 Mar. 1980 Court appearance 0.5
7 Mar. 1980 Court appearance 1.0
10 Mar. 1980 Court appearance 1.0
11 Mar. 1980 Court appearance 0.5
12 Mar. 1980 Court appearance 0.5
13 Mar. 1980 Court appearance 0.5

-7-



HOURS DAYS
14 Mar. 1980 Court appearance 1.0
17 Mar. 1980 Court appearance 1.0
18 Mar. 1980 Court appearance 0.5
19 Mar. 1980 Court appearance 0.5
20 Mar. 1980 Court appearance 0.5
21 Mar. 1980 Court appearance 1.0
31 Mar. 1980 Court appearance 0.5
1 Apr. 1980 Court appearance 0.5
2 Apr. 1980 Court appearance 0.5
3 Apr. 1980 Court appearance 0.5
4 Apr. 1980 Court appearance 1.0
14-19 Apr. 1980 Review of Intervenors’ 

Plans and Objections of 
Plaintiffs thereto 3.0

21 Apr. 1980 Court appearance 1.0
22 Apr. 1980 Court appearance 0.5
23 Apr. 1980 Court appearance 0.5
24 Apr. 1980 Court appearance 0.5
25 Apr. 1980 Court appearance 1.0
1 May 1980 Court appearance for oral argument 0.5
1-6 May 1980 Review of Proposed Testi­

mony of Dr. Hugh J. Scott 2.0
14 May 198'0 Review of Order granting 

Plaintiffs' Motion To 
Submit Additional Sug­gestions Of Dr. Hugh Scott C. 1

19 May 1980 Review of Memorandum re­
garding Intervenors' Pro­posed Plan filed by De­
fendant, Board of Educa­tion 1.5

-8-



HOURS DAYS
21-30 May 1980 Review of Memorandum Opinion

and Order of the Court of
20 May 1980, consultation with
Associate Counsel and expert
witness and preparation of
Motion To Alter Or Amend Order
of 20 May 1980 and Memorandum
In Support thereof 10.0

2 June 1980 Review of Order denying Motion To Alter Or Amend 0.1
27 June 1980- 
9 July 1980 Review of Defendants' Timetable 

for_Desegregation and consul­
tation with Associate Counsel 1.5

11 July 1980 Review of Intervenors' Objec­
tions to Defendants' Report of 25 June 1980 1.0

11 July 1980 Court Hearing
17 July 1980 Review of Order of the Court 

entered 15 July 1980 regard­
ing Proposed Timetable 0.1

20 May 1980 - 
15 July 1980 Meetings with Counsel for De­

fendants and other persons 
regarding the Timetable for Desegregation 4.0

26 July 1980 Review of Report to the Court 
regarding Transfer Policy with accompanying exhibits 1.0

17 Dec. 1980 Review of Defendants' Report to the Court 0.2
20 Jan. 1981- 6 Feb. 1981 Review of Desegregation Plan 

consultation with expert and' 
Associate Counsel and prepara­tion of Objections to Plan 10.0

Mar; 1981 

___ Mar. 1981
Consultation with represen­tatives of HGH Associates
Review of Plan filed by De­
fendant, Board of Education 
Objections thereto filed by’ 
Plaintiffs and consultatio^

4.0

a m Em
'

-9-



30 Jan. 1981 

14 Feb. 1981

10 Mar. 1981

10 Mar. 1981- 
25 Mar. 1981

27. Mar. 1981

30 Mar. 1981

31 Mar. 1981- 
3 Apr. 1981

3 Apr. 1981

G 6 A p r .  1981

6 A p r .  198 1 -  
16 A p r .  1981

18 Apr. 1981

with Associate Counsel and 
expert witnesses regarding 
Supplement To Objections of 
Plaintiffs to Plan i q.o
Review of Motion of Inter-venors q 2
Review of Objection of De­
fendants to Plaintiffs’
Motion For Additional Time To Respond q 2
Preparation of Motion For 
Extension of Time To File 
Supplemental Objections and 
Affidavit in Support there-

HOURS

Consultation with Associate 
Counsel and proposed expert 
witnesses, preparation for hearing
Review of Third Party Com­
plaint filed by Defendant, Board of Education
Receipt of letter from Larry 
W. Hughes dated 30 March 1981

>p c. .. notionTo Strike Plaintiffs' Alter-
Plan Without Hearing and Memorandum in Support thereof

Review of Report to the Court 
by defendant, Board of Edu­cation
Court appearance in Columbia

1.0

1.0

Consiiltation with Associate 
Counsel and preparation of
A^dPConrlFindingS °f Fact And Conclusions Of Law
Review of Defendants’ Pro-

4.0

DAYS

1.0

-10-



17 Apr. 1981 

2 June 1981

June - 
19 Aug. 1981

19-20 Aug. 1981

24 Aug. 1981

24 Aug. 1981- 9 Nov. 1981

9 Nov. 1981- 
11 Dec. 1981

’̂ ly 1982

->ct. 1982 

21-22 Oct. 1982

posed Findings Of Fact
Review of Memorandum and Order of the Court
Review of Motion To Vacate 
Order making State Defendants Farties and Memorandum In Support thereof

2 . 0

2 . 0

HOURS

0.5

Consultation with Associate Counsel, review of Motion 
For Stay Pending Appeal and 
Expedited Appeal, Motion For 
Immediate Hearing filed in 
response thereto, Motion To 
Dismiss and Affidavits
consultation with Associate Counsel, preparation of 
Response to Application by Defendants to the Supreme 
Court of the United States 
travel to Washington for ' presentation and filing of same 6

4.0

Review of 
of the Cou 
the United

Judgments and Orders rt of Appeals and 
States Supreme Court 0.5

Consultation with 
Counsel regarding Associateappeal 5.0
Review of Briefs and 
tation with counsel 
argument on appeal

consul-
regarding

5.0
Review of Deci 
United States 
and consultati Counsel

sion of the 
Court of Appeals 
on with Associate

3.0
Preparation for tion in Chambers and participa- Conference

l-it of Richard H Dlnkfi
Esquire and consultations Associate Counsel

-11- 'TAL

3.0

4.0
215.6 38.

DAYS

.0



The above does not include numerous telephone calls and 
conferences between counsel and with clients which have entailed 
at least three hours per year for those years deponent has been 
involved in the case. The hours set forth above in connection with 
the preparation and review of documents and other trial prepara­
tions have been arrived at by review of the documents listed there­
in and fomulating of the approximate time involved for same, from 
a combination of memory and knowledge as to time customarily re­
quired in producing, reviewing and analyzing documents of the re­
spective type and complexity.

Deponent adopts so much of the Affidavit of Avon N. Williams, 
Jr., Esquire, filed contemporaneously herewith, regarding the basic 
hourly charge in his office and for routine Court work. Deponent 
believes that said charges are commensurate with attorneys of com­
parable competence and reputation in Davidson County, Tennessee.
In addition, deponent believes that a substantial contingency factor 
of not less than 1007, should be added in light of the difficulty of 
the case, the multiplicity of the parties and claims, extreme un­
popularity of the cause and vigorous advocacy on the part of de­
fendants .

Attached hereto as Exhibit "A" is the 
dWbBrifeilfe: *Uid Vitae does not indicate the
civil rights and school desegregation cases 
been involved, including, inter alia, Geier

Curriculum Vitae of 
substantial number of 
in which deponent has 

.vs- Blanton (United

-12-



f

States District Court for the Middle District of Tennessee), Year^_ 
vs. C l a r k s v i l l e -Montgomery County Board of Education (United States
District Court for the Middle District of Tennessee), Monroe_v.--
Board of Commissioners of the City of Jackson (United States District 
Court for the Western District of Tennessee), Lynn Allen Brown vs. 
Henderson County Board of Education (United States District Court 
for the Western District of Tennessee) , Christine G. Gardner vs... 
Humphreys County Board of Education (United States District Court 
for the Middle District of Tennessee). Deponent avers and believes 
that there is no attorney in Davidson County, Tennessee, with 
five years' tenure at the bar who has been involved in as many 
civil rights and constitutional cases as a private attorney as 

deponent.

this the 22nd day of October, 1982.

notauV̂ piJî t:
MY COMMISSION EXPIRES: /~V5~~<Fc?

CERTIFICATE
The undersigned certifies that a copy of the foregoing Updated 

Affidavit of Richard H. Dinkins, Esquire, was hand delivered to 
William R. Willis, Jr., Esquire and Marion F. Harrison, Esquire,



EXHIBIT C

Transcript, December 6, 1982



aiHxa

i
i
i

i
j

I

I

i

T“-^s j.u s a i g a s  Ps^TUfi ‘ •• if  ‘ uBuiasj/^ sBtiioti*, *uo'-r

t Z

c c

03

61

St

-} ~ 1 ■** *
~  C ^  L ; . v * —* ̂ . i — Jit

VIOlaJOrvr-; 10

^o.

1-.-u

IHVO?

L l 

91

91 

rt

I, £ t

3L

■ i

I
i

B '13



was entered by J--~ge Merton and in opposition -- and I 
prepared an opposition and tr.e notion to strike in response 
to the notion to recuse.

That consisted of some 26 pages of 
pleadings and orders and four pages of a brief and consumed 
approximately 11 and four-tenths hours.

On the 23rd of August, 1972, there was 
a hearing before the Court on the motions to vacate and 
to strike involving time of one day in court.

On the 23rd and 24th of August, 1972,
I reviewed a third party complaint which had been filed by 
Councilman Mansfield Douglas and seme other black 
Metropolitan counciimen and an amendment thereto -- and I 
might pause here, Mr. Shaw, to say that we had a situation 
of white councilmen who were threatening that they would 
not provide the funds for the additional buses and once 
I made all of the councilmen parties defendant despite 
the School Board's failure in that regard, the black 
councilmen then employed a white lawyer and filed a third 
party complaint seeking to require the Federal government 
tc provide the funds for school desegregation.

I mentioned that by way of pointing out 
the striking analogy to the existing effort to require



EXHIBIT D

Interim Stipulation



A ' y  ^ / < f

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE F I L E D  

NASHVILLE DIVISION
DEC 81582

ROBERT W. KELLEY, ET AL 
VS

METROPOLITAN COUNTY BOARD 
OF EDUCATION OF NASHVILLE 
AND DAVIDSON COUNTY, 
TENNESSEE, ET AL

BY-
CLERK

DEPUTY CLERK

CIVIL ACTION NOS. 2094, 2956

■MV1LKIM STIPULATION
Tne parties to this litigation stipulate to the following:

1. Counsel for plaintiff Kelley, et al and for the 
Nashville Davidson County Board of Education have met to negotiate 
the terns of an agreement in which they have agreed on a number of 
principles relating to the issue of faculty hiring, asaignment, and 
promotion. The parties, recognizing their mutual interest in resolving 
these issues without the time and expense which would necessarily 
be expended in further litigation at this time and without implying 
either prior performance or lack thereof of the terms of this agree­
ment, agree to the terms set forth below. To the extent that any of 
the terms of this stipulation do not address any issues which have 
been joined by the parties as embodied in the Second Amended Sub- 
miasicn of Plaintiffs and in the Board's Response to Plaintiffs
Amended Submission Regarding Faculty, those issues shall k
until such time if any as this c P r e t e x t e d
reassi °Urt S6tS “ hearing on- further faculty
reassignment as necessitated by the student .
from the Court of a , reassignment plan resulting

ppea for the Sixth Circuit's July 27, '982 opinion.

EXHIF



(2) The racial ratio of faculty^" at each school in
the School System should reflect as nearly as possible the overall 
faculty ratio within the School System.

(3) In schools with a large percentage of students 
below the system-wide average in achievement as well as in all 
other schools, a conscious effort on the part of the Board of 
Education should be made to*select and employ atrong teachers and 
principals. In this regard, a necessary component of faculty 
development will be the education of faculty personnel with regards 
to any particular needs and expectations of black students and ciny 
low achievers. Moreover, in this regard, all faculty should have 
the ability to supervise, instruct and deal with other-race children 
and personnel of all races, and achievements levels empathetically, 
compassionately and competently.

(4) The Board will comply with the Opinion of May, 198®, 
anc* pfi " affirmative action recruitment and hiring program for 
faculty, attached hereto, and incoporated herein by reference. 
Defendents will be required to made available applicant flow data 
to plaintiffs on a yearly basis, upon reasonable request. Such 
data shall enable plaintiffs to determine the number of apDlicants 
by race, sex, and certification for each faculty position that 
becomes available.

used herein the term "faculty" ehall mean all certificated
bUt ^  lin,ited to' Principals, assistant 

librarianS' *and special



WILLIS &,KNIGHT /

'ian Harrison 
Second Avenue, North 

Nashville, Tennessee 37201

Attorneys for Defendents

Respectfully submitted,
WILLIAMS AND DINKINS

___________________AVON N. WILLIAMS, JR,
RICHARD H. DINKINS 
203 Second Avenue, North 
Nashville, Tennessee 37201 
615-244-3988
JACK GREENBERG
JAMES M.NABRIT , III
THEODORE M. SHAW
BILL LANN LEE
Suite 2030
10 Columbus Circle
New York, New York 10019
212-586-8397

Attorneys for Plaintiffs





UNITED £>TATES COURT OF APPEALS

J O H N  P H E H M A N  
CLERK

S I X T H  C I R C U I T

U S POST O F F I C E  ft C O U R T H O U S E  B U I L D I N G  

C I N C I N N A T I .  O H I O  4 5 2 0 2
T E L E P H O N E  

( 5 1 3 )  6 8 4  2 9 5 3  
F T S  6 8 4  2 9 5 3

March 7, 1986

Mr. Richard H. Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 38201
Re: Case No. 85-5837/85-5838 - Robert W. Kelley, et al

vs.
Metroploitan Co. Board of 
Education of Nashville, et al 
vs.
State of Tennessee, et al

Dear Mr. Dinkins:

We are returning your motion for extension of time to file 
a brief in the above styled appeal. After a thorough check, it 
does not appear you are a party to this appeal.

You must request leave of the court to file a brief as amicus curiae.

Yours very truly,
John P. Hehman, Clerk

YH: cb
cc: Mr. W.J. Michael Cody

Mr. William R. Willis, Jr.

EXHIB E