Response to the Court's Letter Inquiries

     [||3d89ae6a-7fcb-4428-b792-015f3eda7d49||] IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFPH CIRCUIT 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, eb al., 

BR A i a Ee 

Appeal From The United States District Court For The 
Northern District of Mississippl 

Delta Division 

RESPONSE TO THE COURT'S LETTER INQUIRIES 

»~ er a oe a. eT ———— is a er NT. i —————— 

(™ 

JACK GREENBERG 

MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circie 
New York, New York 10019 

May, 1977 Attorneys for Plaintiffs= 
Appellants 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THRE FIPTE CIRCUIT 

No. 76-1207 

REBECCA RB. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARXSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICY, et al,, 

Defendants-Appellees 

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division 

C—O + SD 3 SDD rl i nl. WG. — [rg ———— Sins 

RESPONSE TO THE COURT'S LETTER INQUIRIES 

Ep ——— NS — ——— — tT A ~ Dl 
—— 

1. Should Section 718 of the Emergency School Act, 
20 U.S.C. 1617, be applied retroactively? 

2. Is this case more closely analogous to Brewer v. 
School Board of Norfolk, 500 2.24 1129 {4th Cir, 
1974), or Scott v. Winston Salem/Forsyth City 
Board of Education, 400 F.Supp. 65 (M.D.N.C.) 

aff'd without opinion, 530 7.29 969 (4th Cir. 
1975? 

3. Were Brewer and Scott correctly decided? 



This case does not present an issue of retroactivity. 

There was not, for example, a request for fees made prior 

to the enactment of §1617, a denial of such fees, an 

appeal and final disposition, followed by a request to 

reopen and relitigate the fee issue after §1617 was 

enacted. Retroactivity was the issue in Scott v. Winston- 

Salem Forsyth County Board of Education, 400 F.Supp 65, 67 

(M.D. ®.C.), aff'd without opinion, 330 2.24 969 (4th Cir. 

1975). There plaintiffs had litigated and recovered 

. attorneys' fees for time expended since the inception of 

the litigation through June ll, 1973, the court and the 

parties had considered the matter closed and plaintiffs, 

nine months later, filed a second motion to recover fees 

from the inception of the Witguston Nor can there be 

any real dispute that $1617 controls cases in which a 

request for an award of fees (not a request for substantive 

relief as was held by the district court) was pending on, 

or timely entered subsequent to, the date §1617 was enacted. 

That is the clear holding of Bradley, Brewer, supra, and a 

x The issue of retroactivity arises when a final judg- 
. ment with all appeals exhausted, is under collateral attack. 

Thus in Linkletter v. Walker, 381 U.S. 618 (1965), the 
exclusionary rule established by Mapp v. Ohio was applied 
prespectively only, and was not available to state prisoner 
whose judgment of conviction had become final prior to Mapp. 
But the Mapp exclusionary rule applied to all cases pending 
at the time of Mapp; Johnson v. New Jersey, 384 U.S. 719 
(1958); See also O'Connor v, Ohio, 385 U.8, 92 (1966); 
Doughty v. Maxwell, 376 U.S. 202 (1964); United States v. 

LavVallee, 330. 8.24-303 (24 Civ, 1964). 



2/ 
host of other cases. And both Brewer and Scott were 

correctly decided. 

The critical issue before the Court is whether in 

a school desegregation case, a motion for an award of 

fees must be entered early in the litigation or coin- 

cidentally with an order requiring the implementation 

of what is perceived to be a final plan, or is a motion 

for an award of fees timely when filed after the equit- 

able relief proves efficacious and the litigation nears 

3/ 
or reaches final resolution. Through the Clarksdale 1V 

2/ Howard v. Allen, 368 F.Supp.310, 314-15 (S.C. 1973), 
aff'd without opinion, 487 7.24 1397 (4th Cir. 1973) cert. 

denied, 417 U.S. 912(1974) (remedial or procedural statutes 

to be applied "retrospectively," to cases pending at the time 

of enactment). United States v. Haughton, 413 F.2d4 736,738 

(9th Cir. 1969) ("Statutes effecting procedural changes, which 

do not otherwise alter substantive rights, generally are con- 

sidered immediately applicable to pending cases.") Standard 

Acc. Inc. Co. v. Miller, 170 7.24 495 (7th Cir. 1948). 

Segars Vv. Gomez, 360 F.Supp. 50 (D.C. 8.C. 1972). BEruner Vv. 

Iniced scaces, 343 U.S. 112 (1952); Ex parte Collette, 337 

U.S. 55 (1949); Orr v. United States, 174 F.2d 577 (24 Cir. 

1949); In re Moneys Deposited, etc. 243 F.2d 443 (34 Cir. 

1957); Frye v. Celbrezze, 365 F.2d 865, 867 (4th Cir. 1966); 

Bowles v. Strickland, 151 F.2d 419 (5th Cir. 1945); Hoadley 

Vv. San Francisco, 94 U.S. 4 (1876); Congress of Racial 

Equality v. Clinton, 346 F.2d 911 (5th Cir. 1964); Rachel 

Y. GeDrgia, 342 F.2d 336 {53th Civ. 1965), aff'a 384 U,3. 
780 (1966). 

3/ That the litigation had not come to an end is further 
confirmed by a Motion of Defendants for Order of Dismissal 

filed in the trial court on January 18, 1976. Therein 

defendants acknowledge that the case did not come to a 

conclusion until the school system had been operating, for 

three years, a fully unitary system. See appellants 

Motion for Leave to Supplement the Record [on appeal], 

and order granting same, April 25, 1977, (per Tjoflat, 

C.T} | 



4/ 

language quoted in the Court's letter inquiry, this 

Court has already resolved this critical issue in 

plaintiffs’ favor: i.e., the Court, in effect, held that 

the litigation was drawing to a close with Clarksdale IV 
5/ 

and that a motion for fees was, at that point, appropriate. 

Accordingly, Clarksdale IV indeed precludes the district 

court holding that the litigation "had come to an end 

before a request for fees had been made.” Moreover, the 

Clarksdale IV holding is entirely responsive to consider- 

ations controlling school desegregation and equity litigation 

generally. 

In Johnson v. Combs, 471 F.2d 84, 87 (5th Cir. 1972) 

4/ what effect does the following language in Clarksdale IV 

have on the present litigation: 

The district court shall also grant a 
hearing to determine whether or not 

the appellants' actions in this lawsuit 

were carried out in an "unreasonable 

and obdurately obstinate" manner in the 

years preceding July 1, 1972, so as to 

entitle appellees to be awarded reason- 

able attorneys' fees for services before 

that date. Id. 585-36. 

More specifically, is the finding of the district court 

that this litigation had come to an end before a request for 

fees had been made precluded by the above language? 

5/ On remand the district court, on September 18, 1974, 

entered an order requiring the submission of proof of 

attorneys' fees in accordance with the mandate of Clarksdale 

IV. (A.280-82) Plaintiffs, after obtaining extensions of 

time, filed their affidavits in Support of Motion for Award 

of Fees on January 10, 1975 (A.281) and January 22, 1975 

{(A.287). 



ye E 

(rejected on other grounds in Bradley v. Richmond School 

Board, 416 U.S. 696, n. 20 (1974)), this Court held that 

§1617 allows fee awards only "upon 'the entry of a final 

order.) Jib Since most school cases involve relief of 

an injunctive nature which must prove its efficacy over a 

period of time it is obvious that many significant and 

appealable decrees will occur in the course of litigation 

which should not qualify as final in the sense of deter- 

mining the issues in controversy." See also, Appellants’ 

Reply Brief, pp. 7-11. 

In Sprague v. Ticonic National Bank, 307 U.S. 1l6l, 

168 (1939) 83 L.Ed. 1184, plaintiff first requested attor- 

neys' fees only after the conclusion of the case on the merits; 

the trial court held that the request for fees came too late. 

The Suntita Court reversed,holding through Mr. Justice 

Frankfurter: 

Certainly the claim for . . . [attorneys’ 
fees] was not directly in issue in the 
original proceedings by Sprague . . . . 
Its disposition . . . could be implied 
only ifa claim for such . . . [fees] was 
necessarily implied in the claim in the 
original suit, and its failure to ask for 
such . . . [fees] an implied waiver. 
These implications are repelled by the 
basis on which such costs are granted. 
They are not of a routine character like 
ordinary taxable costs; they are contingent 
upon the exigencies of equitable litigation, 
the final disposition of which in its entire 
process including appeal place such a claim 
in much better perspective than it would have 
at an earlier stage. Such are the consider- 
ations which underlay the decision in Internal 
Improv. Fund. v. Greenbough 105 U.S. 527, 



i» Ro 

in holding that an order allowing 
. « . [attorneys fees] was a final 
judgment for purposes of appeal 
because 'the inquiry was a collateral 
one, having a distinct and independent 

character. 

(Emphasis added) 

Finally, the Court asks whether "plaintiff's request 

for attorneys' fees, initially made in their brief on 

appeal in Henry v. Clarksdale M.S.S.D., 480 F.2d 583 (5th 

Cir. 1973) (Clarksdale 1IV), [was] sufficient to put fees 

incurred prior to that time in issue," and whether "due 

process considerations preclude such an application.” 

a 
We have already argued that/motion for fees after 

6/ 
remand of Clarksdale IV would have been timely; such 

a motion was unnecessary since this Court, through its 

mandate in Clarksdale IV, directed the district court to 

consider an award of fees. In any event, under the 

reasoning of Bradley there is no violation of due process 

even assuming "a delay." 

6/ Plaintiffs' 1964 Complaint prayed for "costs herein 
and such further, other, additional or alternative relief 

as may appear to the Court to be equitable and just.” 
(A.21-22) The Supreme Court has held that a challenge 
to a private club's membership practices included, through 
"a customary prayer for other relief" an attack on policies 
for serving guests of members. Plaintiffs request for costs and 
and other relief put defendants on notice that attorneys fees 
could be sought. Irvis v. Moose Lodge, 407 U.S. 163, 170 
(1972). Moreover, in light of Rule 54(c), FRCP, a court is 
required to award all relief to which plaintiffs are entitled, 
even when it is not specifically requested in a pleading, provided 
there is no prejudice to the other party. Albemarle Paper Co. 
v. Mpody, 422 U.S. 405, 424 {1975). As to whether Clarksdale 
defendants are prejudiced by an award of fees, see pp. 7-9 

below. 



w (4 

The Bradley Court held that only upon proof of 

"manifest injustice," could there by a departure from 

the general rule that "a court is to apply the law in 

effect at the time it renders its decision.” The 

Court undertook a three-part inquiry to determine under 

what circumstances "manifest injustice" arises from the 

application of the rule and, in the course of that 

inquiry, fully explored all the "due process" arguments 

available to a school district. Bradley, supra, 416 

U.S. at 716-722. The Court began by noting that 

"manifest injustice" will generally arise "in mere private 

cases between individuals," or when as in Greerev. United 

States, 376 U.S. 149, the government attempts to deprive 

an individual of a matured and fully litigated claim 

through the retroactive application of a new regulation, 

416 U.8. at 717, and n. 24. In a school desegregation 

case: (a) the "parties consist, on the one hand, of the 

School Board, a publicly funded governmental entity, and, 

on the other, a class of children whose constitutional 

right to a nondiscriminatory education has been advanced 

by . . . [thel litigation: if is "not appropriate to 

view the parties as engaged in a routine private lawsuit" 

and plaintiffs are in fact representatives of the entire 

community; (b) a "publicly elected school board" has no 

"matured or unconditional right" to the "funds allocated 

to it by the taxpayers," which funds "were essentially 

held in trust for the public," (¢) any claim that 



> » 
"unanticipated obligations may be imposed upon . . . 

[the school board] without notice or an opportunity 

to be heard" has no cogency: 

Here no increased burden was imposed 
since §718 did not alter the Board's 
constitutional responsibility for 
providing pupils with a nondiscrimina- 
tory education. Also there was no 
change in the substantive obligation 
of the parties. From the outset, upon 
the filing of the original complaint in 
1961, the Board engaged in a conscious 
course of conduct with the knowledge 
that, under different theories, . . . 
the Board could have been required to 

. pay attorneys' fees. Even assuming 
a degree of uncertainty in the law at 
that time regarding the Board's con- 
stitutional obligations, there is no 
indication that the obligation under 
718, if known, rather than simply the 
common-law availability of an award, 
would have caused the Board to . . . 
[alter] its conduct so as to render 
this litigation unnecessary and there- 
by preclude the incurring of such costs. 

The availability of 718 to sustain the 
award of fees against the Board there- 
fore merely serves to create an addition- 
al basis or source for the Board's 
potential obligation to pay attorney's 
fees. It does not impose an additional 
or unforeseen obligation upon it. 

416 U.S. at 721. (Emphasis added.) 

The three part inquiry undertaken in Bradley and in 

particular its third aspect, quoted fully immediately 

above, applies to the Clarksdale defendants. Assuming 

that our prayer for costs in the original complaint (see 

n.6, above), was not sufficient to put defendants on 

notice that attorneys' fees may be sought (an assumption 



w » 

rejected by Bradley), there is no indication that a 

lack of such notice injured these defendants because 

they hold funds in trust for the public and because 

only the uninitiated would ask whether this school 

board and this superintendent would have defended the 

case differently if only they knew that they might be 

held liable for plaintiffs' attorneys' fees. 

Respectfully submitted, 

K ‘GREENBERG 
MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, N.Y.1l0019 

Attorneys for Plaintiffs- 
Appellants. 

CERTIFICATE OF SERVICE 

I hereby certify that on this llth day of May, 1977, 

I caused to be served by United States mail, postage prepaid, 

a copy of the foregoing Appellants Response to the Court's 

Letter Inquiries upon counsel for appellees as follows: 

Semmes Luckett, Esq. 
121 Yazoo Avenue 
Clarksdale, Mississippi 38614 

Attoriey for Plaintiffs- 
Appellants [||3d89ae6a-7fcb-4428-b792-015f3eda7d49||]