Metropolitan County Board of Education v. Tennessee Reply Brief and Supplemental Appendix
Public Court Documents
June 8, 1988
Cite this item
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Brief Collection, LDF Court Filings. Metropolitan County Board of Education v. Kelley Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit, 1985. fb371694-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b7a7c05a-c257-4161-9f19-893015f3280d/metropolitan-county-board-of-education-v-kelley-petition-for-a-writ-of-certiorari-to-the-us-court-of-appeals-for-the-sixth-circuit. Accessed April 22, 2025.
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No
In The
Supreme Qkmrt of tJje United States
October Term, 1985
"̂'■'■'nM etropol it an County Board Of Education Of
Nashville And Davidson County Tennessee, et al.,
Petitioners,
vs.
Robert W. Kelley, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
W illiam R. W illis, Jr.
Marian F. Harrison
W illis & Knight
215 Second Avenue, North
Nashville, Tennessee 37201
(615) 259-9600
A ttorneys fo r Petitioners
St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477
QUESTIONS PRESENTED
1. W hether an appellate cou rt’s failure to award costs pu r
suant to Rule 39, Federal Rules o f Appellate Procedure,
precludes an award o f attorneys’ fees under the 1976 Civil
Rights Attorneys Fees Awards Act, 42 U .S .C . §1988, which
provides for fee awards “ as part o f the costs.”
2. W hether a 1972 order o f the Court o f Appeals approving a
desegregation plan as in conform ity with existing Supreme
Court m andates and resolving all issues then before the Court is
not a final order precluding the reopening o f the litigation prior
to 1972 for an award o f attorneys’ fees pursuant to 42 U .S .C .
§1988, merely because the District Court retained jurisdiction in
the case and supplemental activity relating to im plem entation o f
the desegregation plan occurred.
3. W hether, in considering plaintiffs’ application for a t
torneys’ fees pursuant to 42 U .S .C . §1988, the Court o f Appeals
may properly reverse the District C ourt’s factual findings con
cerning the proceedings at the trial level or the appropriate
hourly rates to be awarded, without finding those decisions
clearly erroneous.
4. W hether the District Court m ust award a p lain tiff’s
counsel his requested hourly rate or personal billing rate when
the proof establishes a lower rate prevailing in the relevant legal
community.
— Ill
TABLE OF CONTENTS
Page
Opinions B e lo w .............................. 1
Ju risd ic tion ................................................................................ 2
Statutory Provisions In v o lv e d ............................................. 2
Statement o f the C a s e ................... 3
A. The Historical Underpinnings o f the Fee
Award ............. 4
1. The 1971 desegregation plan deemed
final by the District C o u rt .......................... 4
2. Substantive proceedings after 1971 . . . . . 5
B. The District C ourt’s Fee A w a rd ................. 7
C. The En Banc Opinion o f the Court o f Appeals 8
D. Denial o f the Petition to R eh ea r........................ 10
Reasons for Granting the W r i t ............................................. 11
1. In Rejecting the Plain Meaning Construction
Reconciling Costs Under Rule 39(a), Federal
Rules o f Appellate Procedure, W ith A t
torneys’ Fees Awarded as Costs Under 42
U .S .C . §1988, The Sixth Circuit Has Placed
Itself in Conflict W ith O ther Circuits, With
the Necessary Implications o f this C ourt’s
Decision in M arek v. Chesney, ____ U.S.
____ , 87 L .Ed.2d 1 (1985), and With the
Eleventh Am endm ent ......................................... 11
II. The M ajority’s Holding that the District
C ourt’s 1971 Swann Remedy, Affirm ed by
the Sixth Circuit in 1972, Was Not a Final
IV —
O rder Disposing o f all Issues Between the
Parties Is Inconsistent With the Decisions o f
Several Circuit C o u r ts ...................................... 16
III. The Court o f Appeals Has Totally Usurped
the District C ourt’s Fact-Finding Function in
A ttorneys’ Fees Cases ......................................... 21
C o n c lu s io n ............................................................................... 25
TABLE OF AUTHORITIES CITED
Alexander v. Holmes County Board of Education, 396
U.S. 19(1969) ................................................................ 4
Atascadero State Hospital v. S can lo n ,___ _ U .S .____ ,
105 S.Ct. 3142(1985) .................................................... 9 , 12
Blum v. S tenson ,____ U .S_____ _ 79 L .Ed.2d 891 (1984) 21
Bond v . S tanton, 630 F . 2d 1231 (7th C ir. 1980)... 11
Bonner v. Coughlin, 647 F.2d 931 (7th Cir. 1981) . 15
Bradley v. City o f Richmond, 416 U.S. 696 (1974) . . . . . 16
Brown v. Board of Education, 347 U.S. 483 (1954)......... 4
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) 7, 8, 9, 11, 14, 15
Fulps v. City o f Springfield, 715 F.2d 1088 (6th Cir.
1983)................................................................................. 12
Gary v. Spires, 634 F.2d 772 (4th Cir. 1980)...................... 11 ,14
Gautreaux v. Chicago Housing Authority, 690 F.2d 601
(7th Cir. 1982)................................................................ 20
Green v. County School Board o f New Kent County,
391 U.S. 430 (1968) ............................................... 4, 5, 10, 17
Henry v. Clarksdale Municipal Special School District,
579 F.2d 916 (5th Cir. 1978) .................................. 16 ,18 ,20
— v —
Hensley v. Eckerhart, 461 U.S. 424 (1983) 4, 8, 9, 13, 21 ,22 , 25
H utto v. Finney, 437 U.S. 678 (1978) ................................. 12
Johnson v. Snyder, 639 F .2d 316 (6th Cir. 1981)............ 12
Kelley v. Board o f Education o f Nashville City Schools,
8 R .R .L .R . 651 (M .D. Tenn. 1958), a ff’d 270 F.2d
209 (6th Cir. 1959), cert, denied 361 U.S. 924
(1959) .......................... ............................................. 4, 13
Kelley v. M etropolitan County Board o f Education, 317
F.Supp. 980 (M .D. Tenn. 1970) ................................ 17
Kelley v. M etropolitan County Board o f Education o f
Nashville and Davidson County, Tennessee, 463
F.2d 732 (6th Cir. 1972), cert, denied, 409 U.S.
1001 (1972).................................................................. 5, 13, 17
Kelley v. M etropolitan County Board o f Education o f
Nashville and Davidson County, Tennessee, et al.,
479 F.Supp. 120 (M .D. Tenn. 1979).......................... 5 ,6
Kelley v. M etropolitan County Board o f Education o f
Nashville and Davidson County, Tennessee, et al.,
492 F.Supp. 167 (M .D. Tenn. 1980).......................... 6
Kelley v. M etropolitan County Board o f Education of
Nashville and Davidson County, Tennessee, et al.,
511 F.Supp. 1363 (M .D. Tenn. 1981) . . . . . . . . . . . . 6
Kelley v. M etropolitan County Board o f Education
Civil Action No. 81-5370 (6th Cir. August 19,
1981).................................. .............................................6 ,1 0 ,2 3
Kelley v. M etro County Bd. o f E d., 687 F.2d 814 (6th
Cir. 1982), cert, denied, 459 U.S. 1183 (1 9 8 3 ) .. . . 6, 13, 17
Kelley v. M etropolitan Nashville Board o f Education o f
Nashville and Davidson County, Tennessee, et al.,
558 F.Supp. 468 (M .D. Tenn. 1983) ......... 2, 5, 7, 8, 18, 24
VI
Knighton v. W atkins, 616 F.2d 795 (5th Cir. 1980)......... 11
Kokoszka v. Bedford, 417 U.S. 642 (1974)........................ 15
M arek v. C hesney,____ U .S -------- , 87 L .E d .2d 1 (1985) . . 3 ,9 ,
11, 12, 15, 25
Maxwell v. Board o f Education o f Davidson County,
203 F.Supp. 768 (M .D. Tenn. 1960), a ff ’d, 301
F.2d 828 (6th Cir. 1962), rev’d in part and rem and
ed sub nom , Goss v. Board o f Education o f Knox
ville, 373 U.S. 683 (1 9 6 3 )............................................. 4 , 13
M etcalf v. Borba, 681 F.2d 1183 (9th Cir. 1982) ............. 12
New York Ass’n for Retarded Children v. Carey, 711
F.2d 1136 (2nd Cir. 1983)............................................. 16
Northcross v. Board o f Education o f Memphis City
Schools, Civil Action No. 3931, July 29, 1966......... 18
Northcross v. Board o f Education o f Memphis City
Schools, 611 F .2d 624 (6th Cir. 1979), cert, denied,
447 U.S. 911 (1980) ......................................... 7 ,8 ,1 6 ,1 8 ,1 9
Obin v. District No. 9 In t’l Ass’n o f Machinists and
Aerospace W orkers, 651 F.2d 574 (9th Cir. 1981).. 12
Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976) ............................................................... 19
Peacock v. Drew Municipal Separate School District,
433 F.Supp. 1072 (M .D. Miss. 1977) ........................ 16
Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) . . . 15
Shapiro v. United States, 335 U.S. 1 (1 9 4 8 )..................... 15
Shimman v. In t’l Union o f Operating Engineers, Local
18, 719 F.2d 879 (6th Cir. 1983).................................. 11
Sun Oil Co. v. Burford, 130 F.2d 10 (5th Cir. 1942) 10
Swann v. Charlotte-M ecklenburg Board o f Education,
402 U.S. 1 (1 9 7 1 )....................................... 4, 5, 16, 18, 22, 23
United States v. Professional Air Traffic Controllers,
653 F.2d 1134 (7th Cir. 1981)....................................... 15
United States v. Swift Co., 286 U.S. 106(1932)............... 19
Van Ooteghen v. Gray, 628 F.2d 488 (5th Cir. 1 9 8 0 ) .. . . 11
Wheeler v. Durham City Board o f Education, 585 F.2d
618 (4th Cir. 1978) ...................................................... 7, 14, 18
Willie M. by Singer v. H unt, 564 F.Supp. 363 (W .D.
N .C . 1983), a ff ’d as m odified, 732 F.2d 383 (4th
Cir. 1984) . ....................................................................... 14
Wolfel v. Bates, 749 F.2d 7 (6th Cir. 3984)........................ 11
Other Authority:
Eleventh Am endment to the United States Constitution 9, 11
— vii —
12, 16
20U .S .C . §1617.................................................................. 16
20 U.S.C. §3205 ............................................................ 16
20U .S .C . §3863 ................... 16
28 U .S .C . § 1254(a)................................................................... 2
42 U .S.C. §1988 .........................................................................passim
Rule 39, Federal Rules of Appellate P ro c e d u re ............... passim
Rule 59(e), Federal Rules o f Civil P ro c e d u re ................... 12
Rule 68, Federal Rules o f Civil Procedure ........................ 12, 15
Senate Report 94-1011............................................................ 15, 20
No
In The
Supreme (Enurt nf tl|E United States
October Term, 1985
Metropolitan County Board O f Education O f
Nashville And Davidson County Tennessee, et al.,
Petitioners,
vs.
Robert W. Kelley, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
The petitioners, M etropolitan County Board o f Education o f
Nashville and Davidson County, et al., respectfully pray that a
W rit o f Certiorari issue to review the judgment and opinion o f
the United States Court o f Appeals for the Sixth Circuit entered
in this proceeding on September 23, 1985.
OPINIONS BELOW
The en banc opinion o f the Court o f Appeals for the Sixth
Circuit entered on September 23, 1985 (reprinted in the A ppen
dix at A. 1) is reported a t ____ F .2 d _____(6th Cir. 1985). The
panel’s opinion on the same appeal which was subsequently
vacated by a m ajority o f the C ourt’s judges upon the peti
— 2 —
tioners’ application for rehearing en banc is reprinted at A. 29.
These opinions review the District C ourt’s opinion, Kelley v.
M etropolitan County Board o f Education o f Nashville and
Davidson County, Tennessee, et al., (reprinted at A. 43), which
is reported at 558 F.Supp. 468 (M.D. Tenn. 1983).
In addition, for the C ourt’s convenience the most recent
substantive opinions relating to the attorneys’ fees issue before
the Court are contained in the Supplemental Appendix, referred
to herein as S.A ..
JURISDICTION
The judgm ent o f the Court o f Appeals for the Sixth Circuit
was entered on September 23, 1985. This C ourt’s jurisdiction is
invoked pursuant to 28 U .S .C . §1254(a).
STATUTORY PROVISIONS INVOLVED
United States Code, Title 42, §1988 as amended. Proceedings in
vindication o f civil rights; attorney’s fees. (Reproduced in perti
nent part.)
In any action or proceeding to enforce a provision of
§1981, 1982, 1983, 1985 and 1986 of this Title, Title IX of
Public Law 92-318, or Title VI o f the Civil Rights Act of
1964, the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable
attorney’s fee as part o f the costs.
United States Code, Title 28, Rule 39, Federal Rules o f A p
pellate Procedure. Costs. (Reproduced in pertinent part.)
(a) To W hom Allowed. Except as otherwise provided by
law, if an appeal is dismissed, costs shall be taxed against
the appellant unless otherwise agreed by the parties or
ordered by the court; if a judgm ent is affirm ed, costs shall
be taxed against the appellant unless otherwise ordered; if
a judgm ent is reversed, costs shall be taxed against the ap
pellee unless otherwise ordered; if a judgm ent is affirmed
or reversed in part, or is vacated, costs shall be allowed on
ly as ordered by the court.
STATEM ENT OF T H E CASE
This case concerns the application o f the 1976 Civil Rights A t
torneys Fees Awards Act, 42 U .S.C. §1988, to a thirty year old
desegregation case in Nashville, Tennessee, and the relative
roles o f the District Courts and Courts o f Appeal in considering
awards under that statute.
In 1983, the District Court for the Middle District o f Ten
nessee acted on the plaintiffs’ m otion for attorneys’ fees filed in
1975, finding that fees should not be awarded for work per
formed prior to a 1971 final remedial order, that fees could not
be awarded for the num erous appeals in which the plaintiffs had
never been awarded costs, and that the time for which com pen
sation was requested by the plaintiffs should be reduced 10 %
for duplication and for reconstruction o f time records. The
District Court then awarded fees for substantially all hours
claimed since 1972 at the 1983 prevailing comm unity rates
($100.00 for experienced counsel and $60.00 for associate
counsel), and added to this a 25% multiplier. 558 F.Supp. 468
(M .D. Tenn. 1983) (A. 43-68). On appeal, a panel initially
reversed and rem anded the case (A. 29), and on application o f
the Board o f Education, a m ajority o f the active judges voted to
rehear the case en banc. Following the rehearing, a divided
Court o f Appeals rejected almost totally the District C ourt’s
opinion. In so doing, the Sixth Circuit rejected the clear rela
tionship between costs and attorneys’ fees under 42 U.S.C.
§1988 recognized by this Court in M arek v. C hesney,____ U.S.
____ , 87 L .Ed.2d 1 (1985), required the reopening o f the 1971
order for an award o f fees, and reversed the District C ourt’s
decisions concerning finality and appropriate rates without
holding them clearly erroneous. The Court o f Appeals then
— 3 —
— 4
rem anded the case to the District Court for further hearings as
to pre-1972 and appellate fees, along with the direction to deter
mine, pursuant to Hensley v. Eckerhart, 461 U.S. 424 (1983),
when the plaintiffs had prevailed during this thirty year old
lawsuit. (A. 1-28).
A. The Historical Underpinnings of the Fee Award
1. The 1971 desegregation plan deemed final by the
District Court.
This desegregation case began in 1955 immediately following
Brown v. Board o f Education, 347 U.S. 483 (1954). Since 1955,
many remedial orders have been entered adopting desegregation
plans which m irrored the development o f desegregation law
from Brown v. Board o f Education, supra, to Green v. County
School Board o f N ew Kent County, 391 U.S. 430 (1968), to
Swann v. Charlotte-M ecklenburg Board o f Education, 402 U.S.
1 (1971). With each passing era o f desegregation law, new
remedies were adopted for Nashville’s public schools.1 1
1 For example, in 1958 the District Court approved a remedy pro
viding for gradual desegregation (not integration) of the Nashville city
schools. This was the famous “ grade a year” plan, upon which many
other localities modeled their plans. At that time, this plan was suffi
cient to comply with Supreme Court mandates, and the District Court
later adopted a parallel plan for Davidson County. E.g. Kelley v.
Board o f Education o f Nashville City Schools, 8 R.R.L.R. 651 (M.D.
Tenn. 1958), a ff’d, 270 F.2d 209 (6th Cir. 1959), cert, denied, 361
U.S. 924 (1959); Maxwell v. Board o f Education o f Davidson Coun
ty, 203 F.Supp. 768 (M.D. Tenn. 1960), a ff’d, 301 F.2d 828 (6th Cir.
1962), rev ’d in part and remanded sub nom, Goss v. Board o f Educa
tion o f Knoxville, 373 U.S. 683 (1963). These plans remained in effect
long after the consolidation of the county and city cases by consent
decree on September 10, 1963. Indeed, there were no efforts to
change the plan until the decisions of the Supreme Court in Green v.
County School Board o f New Kent County, 391 U.S. 430 (1968), and
Alexander v. Holmes County Board o f Education, 396 U.S. 19 (1969).
— 5 —
In 1971, the District C ourt, pursuant to the plaintiffs’ m o
tions for immediate relief based upon Green, supra, ordered the
im plem entation o f a comprehensive desegregation plan drafted
by a team from HEW , m andating busing for racial balance pu r
poses in every area o f this 500 square mile county where it was
practical to do so, pursuant to the model in Swann, supra. (S.A.
169). This plan was appealed by both the plaintiffs and defen
dants, each urging their own plan for the school system. 463
F.2d 732 (6th Cir. 1972) (S.A. 179). On May 17, 1972, both ap
peals were rejected by the Sixth Circuit, which found the HEW
plan in compliance with Supreme Court m andates. The Court
o f Appeals thus affirm ed the HEW plan, rejected the plaintiffs’
application for attorneys’ fees and double costs under the law
prevailing at that time, and ordered the parties to pay their own
costs. 463 F.2d 734, 743-47, 752 (S.A. 185-86, 205-12, 224).
While approving the plan as one designed to establish a unitary
school system, the Court of Appeals recognized that should
adverse effects or changed circumstances occur after implemen
tation, these problems could be addressed by the District Court
under the general notion that all decrees in equity are suscepti
ble to m odification based upon changes in the law or facts. Id.
at 745-46 (S.A. 209). On November 6, 1972, the Board o f
Education’s petition for certiorari was denied by this Court. 409
U.S. 1001 (1972) (S.A. 225).
2. Substantive proceedings after 1971.
After the im plem entation o f the 1971 desegregation plan in
the fall of 1971, all efforts o f the District Court were directed
toward assuring the p lan’s adequate implementation an d /o r ad
justing it in light o f changed circumstances.2 558 F.Supp. 468,
2 Prior to 1979, only two short hearings were held, one involving the
recalcitrance of the city council (which was added as a party) in fun
ding the purchase of sufficient buses, and the other involving a group
of intervening parties who sought busing costs from the Department
of Health, Education, and Welfare. See 492 F.Supp. 167, 172-75
(M.D. Tenn. 1979) (S.A. 72-74).
6 —
473-74 (A. 50-53). On April 11, 1975, the plaintiffs first filed
their m otion for attorneys’ fees. (A. 106). In 1979, the first new
round of hearings directed toward changing the plan which had
been in effect for more than eight years began, the plaintiffs
asserting that dem onstrable adverse effects associated with bus
ing young black children m andated changes, and the defendants
asserting that population growth and shifts m andated changes
in school utilization and building.
After m onths o f p roof beginning in 1979, the District Court
in 1980 determined that changed circumstances and resegrega
tion, resulting from the 1971 remedy itself, not from the actions
o f the school board, m andated consideration o f a new and dif
ferent remedy. 479 F.Supp. 120, 122-23 (M .D. Tenn. 1979)
(S.A. 43-45); 492 F.Supp. 167 (M .D. Tenn. 1980) (S.A. 62). On
April 17, 1981, this plan was approved by the District Court.
511 F.Supp. 1363 (M .D. Tenn. 1981) (S.A. 128). On August 19,
1981, just two days before school was to open under the new
desegregation plan, the Court o f Appeals ordered the District
C ourt’s new plan stayed, stating in part that “a fin a l desegrega
tion order” (the 1971 plan) should not be modified without
prior appellate review. (S.A. 155-56). Upon the school board ’s
application for extraordinary writ to this Court, Justice Stevens
declined to disturb the Court o f Appeals’ stay, sharing the view
that changes in the final 1971 plan should be reviewed by the
Court o f Appeals before they were implemented. (S.A. 157-58).
On July 27, 1982, the Sixth Circuit rejected the District C ourt’s
new plan, finding that it “ do[es] not withstand constitutional
scrutiny.” 3
3 The Sixth Circuit’s en banc opinion argues that the plan to which it
was referring in this statement was the 1971 plan. (A. 6). It is clear
from the Sixth Circuit’s 1982 opinion that the plan which was being
considered was the District Court’s new plan, calling in part for
elementary schools of a neighborhood character. 687 F.2d 814, 824
(6th Cir. 1982) (S.A. 6). Certiorari was denied by this Court on
January 24, 1983. 459 U.S. 1183 (1983).
B. The District Court’s Fee Award
In 1982, the District Court held a hearing on the plaintiffs’ re
quest for over $1.4 million in attorneys’ fees, representing plain
tiffs’ claim for legal work reconstructed by counsel4 from 1955
to the date o f the hearing. Relying on Northcross v. Board o f
Education o f M em phis City Schools, 611 F.2d 624, 635 (6th Cir.
1979), cert, denied, 447 U.S. 911 (1980), and Wheeler v.
D urham City Board o f Education, 585 F.2d 618 (4th Cir. 1978),
the District Court initially held that the fee application for work
perform ed prior to the District C ourt’s approval o f a com
prehensive desegregation plan in 1971, affirm ed by the Sixth
Circuit in 1972, was barred, because the 1971 order was a final
one representing a discrete step in the litigation which settled all
issues to that point, including costs and attorneys’ fees. The
District Court found that any litigation after affirm ance o f the
1971 order was directed not toward attacking the order itself but
toward implementing it and modifying it as changed cir
cumstances or adverse effects could be dem onstrated. 558
F.Supp. 468, 473-74 (M .D. Tenn. 1983) (A. 50-54).
The District Court then applied the rule set forth in Buian v.
Baughard, 687 F.2d 859 (6th Cir. 1982), holding that since costs
had never been awarded to the plaintiffs on any appeal during
the long history o f the litigation, pursuant to Rule 39(a), Federal
Rules o f Appellate Procedure, they could not at this late date
recover attorneys’ fees for those appeals under the Civil Rights
Attorneys Fees Awards Act, 42 U .S.C. §1988, which awards
such fees as “ costs.” 558 F.Supp. 468, 476 (A. 55-56).
After excluding pre-1972 and appellate fees, the District
Court found, based upon the testimony of a myriad of local a t
torneys, that $100.00 per hour for senior attorney Williams and
$60.00 per hour for associate attorney Dinkins constituted the
4 Counsel’s claim for the entire thirty year period was based on
reconstructed time.
prevailing rate in 1983 in the city o f Nashville. 558 F.Supp. 468,
478 (A. 60-62). The District Court applied these 1983 prevailing
rates ($100.00 and $60.00) to ail hours claimed by the plaintiffs
for District Court work since 1971, with the m inor exception o f
10% for duplication and reconstructed time, and a small
am ount o f time spent with an expert witness whose testimony
the plaintiffs had later repudiated. To this sum, the District
Court added a 25% multiplier, thereby effectively increasing
M r. W illiams’ rate to $125.00 per hour, and M r. D inkins’ rate
to $75.00 per hour. 558 F.Supp. 468, 478-79 (A. 60-62).
Both the plaintiffs and defendants appealed. The plaintiffs
asserted that the 1971 order was not a final one under Nor-
thcross, supra, and that the hourly fee calculated for each
lawyer should be raised. The defendants asserted that they
should not be responsible for fees resulting from the actions of
intervening parties, and that, in any event, Hensley v.
Eckerhart, 461 U.S. 424 (1983), required the District Court to
determine specific stages in this lengthy litigation where the
plaintiffs had prevailed.
C. The En Banc Opinion of the Court of Appeals
After a three-judge panel reversed and rem anded the District
C ourt’s order on February 12, 1985 (A. 29), a m ajority o f the
active judges5 o f the Court voted, upon the school board ’s ap
plication, to rehear the case en banc. A fter the hearing, a divid
ed Court entered an opinion which (1) reversed its earlier deci
sion in Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982), holding
that costs under 42 U.S.C. §1988 are separate and distinct from
appellate costs under Rule 39(a), Federal Rules of Appellate
Procedure (A. 6-9); (2) held that the 1971 order was not a final
order constituting a discrete step in the Nashville school litiga
tion (A. 3-6); and (3) m andated that the District Court m ust
award M r. Williams his regular hourly rate o f $120.00 per hour
and M r. Dinkins $65.00 per hour, in addition to the 25%
— 8 —
5 Two judges recused themselves from consideration of this case:
Judge Gilbert Merritt and Judge Nathaniel Jones.
multiplier awarded by the District C ourt. (A. 10-12) .6 The Court
then rem anded the case to the District Court to consider
pre-1972 fees and appellate fees, and to determine the specific
extent to which the plaintiffs had prevailed under Hensley v.
Eckerhart, 461 U.S. 424 (1983) (A. 14-16).
A vocal m inority, consisting o f Judges Kennedy, Engle, and
W ellford, dissented in part in two separate opinions. (A. 17,
23). In her opinion, Judge Kennedy, joined by Judges Engle
and W ellford, pointed to two problem areas in the m ajority’s
opinion. First, the C ourt’s illogical and ill-conceived efforts to
distinguish costs under Rule 39(a), Federal Rules o f Appellate
Procedure, from attorneys’ fees awarded as costs under 42
U .S .C . §1988 violated all principles of statutory construction,
created a direct conflict with the Eleventh Am endment pursuant
to Atascadero State H ospital v. Scanlon, .____U .S ._____, 105
S.Ct. 3142, 3148 (1985), rejected this C ourt’s reasoning in
M arek v. C hesney ,____U .S .____ , 87 L .Ed.2d 1 (1985) and, in
essence, treated attorneys’ fees litigation as an illegitimate child,
related neither to costs or judgm ents, a view most circuit courts
had not taken. Second, Judge Kennedy wrote that the $100.00
per hour rate upon which the District Court based its award to
Mr. Williams was supported by the record as the generally
prevailing rate at the time o f the 1983 hearings and was thus
clearly within the C ourt’s discretion to award, especially for
earlier years when much lower rates, including those o f Mr.
Williams, had prevailed. (A. 17-23).
In a separate and vigorous dissent, Judge W ellford joined in
Judge Kennedy’s criticism of the m ajority’s rejection o f Buian,
and argued pointedly that the m ajority had abrogated its duty
to examine the record and the District C ourt’s fact-finding
before reversing the hourly fee and finality decrees. According
to Judge W ellford, rates in Tennessee during the 1970’s had
been much lower than $100.00 and $60.00 per hour, as evidenc
— 9 —
6 The Court also largely rejected the school board’s contention that
it should not be billed for work performed relating to the intervening
parties. (A. 12-13).
10
ed by the m any circuit court opinions involving some of the
same attorneys. Judge W ellford, therefore, would not have
disturbed the rates set by the District Court, finding them well
within the discretion o f the trial judge who was intimately
familiar with the local practice and fees charged, and who had
heard testim ony from many local attorneys during a three-day
hearing. (A. 23-28).
Judge W ellford also dissented vigorously from the m ajority’s
finding that the 1971 order was not a final one, disposing o f all
pending issues resurrected with the change in the law brought
about by Green v. County School Board o f N ew K ent County,
391 U.S. 430 (1968). His dissent recognized that all school
desegregation cases are continuing in the sense that jurisdiction
is always retained to m onitor and m odify final injunctive orders
if necessary, in light o f changed circumstances or changes in the
law. Thus, Judge W ellford reasoned that the District Court was
well within its discretion when it found as a m atter of fact, that
the 1971 comprehensive desegregation plan was a final discrete
step which should not be reopened for an award o f fees for legal
work performed prior to the order under the 1976 Civil Rights
Attorneys Fees Awards Act. (A. 28).
D. Denial of the Petition to Rehear
Because the en banc opinion was glaringly inconsistent with
the Sixth C ircuit’s own order in 1981 holding that the 1971
desegregation plan was a final order (S.A. 155), the Board of
Education petitioned again for a rehearing, which application
was summarily rejected. (A. 69-76).7 A stay o f the Court o f A p
peals’ m andate was granted pending the application to this
Court. (A. 77).
7 The petition for a second rehearing was filed in order to give the
Sixth Circuit an opportunity to resolve this conflict. See Sun Oil Co.
v. Burford, 130 F.2d 10, 13 (5th Cir. 1942) (discussing power of
federal circuit court to consider a second petition for rehearing and to
recall its mandate to correct inconsistencies).
— 11
REASONS FOR GRANTING THE WRIT
I.
In Rejecting The Plain Meaning Construction Reconciling
Costs Under Rule 39(a), Federal Rules Of Appellate Procedure,
With Attorneys’ Fees Awarded As Costs Under 42 U.S.C.
§1988, The Sixth Circuit Has Placed Itself In Conflict With
Other Circuits, With The Necessary Implications Of This
Court’s Decision In M arek v. Chesney, ____U .S .____ ,
87 L.Ed.2d 1 (1985), And With The Eleventh Amendment.
The m ajority’s outright rejection o f its previous rule ar
ticulated in Buian v. Baughard, 687 F,2d 859 (6th Cir. 1982),8
reconciling costs under Appellate Rule 39 with the award o f a t
torneys’ fees as part o f the costs by the 1976 Civil Rights A t
torneys Fees Awards Act, 42 U .S .C . §1988, has created un
toward confusion in this circuit and underscored a conflict
across the country regarding the nature o f attorneys’ fees litiga
tion. This position leaves the Sixth Circuit in conflict with opi
nions from the Fourth , Fifth and Seventh Circuits, e.g. Gary v.
Spires, 634 F.2d 772, 773 (4th Cir. 1980); Knighton v. Watkins,
616 F.2d 795, 797-98 (5th Cir. 1980); Van Ooteghen v. Gray,
628 F.2d 488, 497 (5th Cir. 1980), cert, dismissed, 451 U.S. 935
(1981); B ond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980),
and with the reasoning o f this Court in M arek v. Chesney, _ _
U.S. ____ , 87 L .Ed.2d 1 (1985). Judge Kennedy’s dissent
8 The Sixth Circuit subsequently recognized on several occasions
that fees pursuant to 42 U.S.C. §1988 could not be awarded for ap
pellate work where costs had not been awarded pursuant to Rule
39(a), Federal Rules of Civil Procedure. Cf. Shimman v. International
Union o f Operating Engines, Local 18, 719 F.2d 879 (6th Cir. 1983)
(not related to fees under 42 U.S.C. §1988 but recognizing rule). It
should be noted that in Shimman, Judge Merritt, who had recused
himself from the Kelley litigation, specifically stated that appellate
fees are to be considered as part of the costs under Rule 39(a). See also
Wolf el v. Bates, 749 F.2d 7 (6th Cir. 1984), where the mandate was
recalled by the Sixth Circuit in order to award costs and fees.
— 12 —
reaches the heart o f the conflict when she writes that apparently
the m ajority, w ithout even overruling inconsistent authority in
the Sixth Circuit (A. 22),9 has tacitly adopted the Ninth Cir
cuit’s treatm ent o f applications for fees pursuant to 42 U .S.C.
§1988 as illegitimate children, falling nowhere within the pro
cedural framework o f other civil lawsuits. Obin v. District No.
9 In t’l A s s ’n o f M achinists and Aerospace Workers, 651 F.2d
574 (9th Cir. 1981); M etca lf v. Borba, 681 F.2d 1183 (9th Cir.
1982).
This Court in M arek recognized the problems in ignoring the
clear cost language o f Rule 68, Federal Rules o f Civil P ro
cedure, and §1988. W ithout procedural rules neutral in nature
governing all types o f civil cases, including presumably applica
tions for attorneys’ fees falling within them, the adm inistration
o f justice can never be predictable or efficient. Thus, even apart
from the substantive Eleventh Amendment problems raised by
the m ajority’s decision to treat civil rights fees as something
other than costs without a clear indication that Congress intend
ed to abrogate the Eleventh A m endm ent,10 the m ajority’s deci
sion, if allowed to stand, has created a muddle for District
Courts considering applications for appellate fees, particularly
in protracted cases.
9 See Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981) (at
torneys’ fees awarded under §1988 are awarded as costs and are not
controlled by the time limitations of Rule 59(e)); Fulps v. City o f Spr
ingfield, 715 F.2d 1088 (6th Cir. 1983) (costs in Rule 68 do include at
torneys’ fees when an applicable statute such as §1988 allows at
torneys’ fees to be taxed as costs to the prevailing party). The Fulps
reasoning was adopted by this Court in Marek.
10 This problem, articulated by Judge Kennedy in reliance on Hutto
v. Finney, 437 U.S. 678, 695-98 (1978), and Atascadero State Hospital
v. Scanlon,___ U .S .____ , 105 S.Ct. 3142, 3148 (1985) is clear, and is
not addressed further herein. See Judge Kennedy’s discussion at A.
18-19.
— 13
The problem for District Courts can be no clearer than in the
instant case. During thirty years o f litigation and a myriad of
appeals, the Sixth Circuit has never once, except in the m ost re
cent en banc hearing, awarded costs to either p a rty .11 As Judge
Kennedy writes, cost awards are generally m atters considered at
each level o f the federal judicial system for obvious
reasons—each level is far more intimately familiar with its own
proceedings and the degree to which either party has prevailed.
(A. 17-18). W ith the m ajority’s opinion, not only will the
District Courts in the future receive no guidance as to when the
plaintiffs may be entitled to fees for appellate work; in this case,
and presumably in other protracted cases such as school
desegregation cases, the District Court may be required to pass
on appellate fee requests based totally on reconstructed time
records for thirty years o f appeals.11 12 This o f course will occur
without the benefit o f the appellate record, briefs, and
argum ents, and often without the availability o f some of the
m ajor participants.13 Under Hensley v. Eckerhart, 461 U.S. 424
(1983), this task is well-nigh impossible; under principles of
11 There have been many appellate decisions in this case. E.g, Kelley
v. Board o f Education o f the City o f Nashville, 270 F.2d 209 (6th Cir.
1959), cert, denied (upon application of the plaintiffs) 361 U.S. 924
(1959); Maxwell v. Board o f Education o f Davidson County, 301 F.2d
828 (6th Cir. 1962), rev’d sub nom, Goss v. Board o f Education o f the
City o f Knoxville, 373 U.S. 683 (1963); Kelley v. Metropolitan County
Board o f Education, et al., 463 F.2d 732 (6th Cir. 1972); Kelley v.
Metropolitan County Board o f Education, et al., 687 F.2d 814 (6th
Cir. 1982), cert, denied, 459 U.S. 1183 (1983).
12 This will occur, of course, if the final order rule enunciated by the
District Court, discussed infra, is not addressed by this Court.
13 It should be noted that the plaintiffs here seek fees for services
performed prior to 1972 for Mr. Z. Alexander Looby, who died in
1972. 558 F.Supp. at 476 (A. 57).
14 —
comm on sense and orderly procedure this task is clearly
avoidable, given the intim ate knowledge o f each level o f the
federal judiciary regarding their own proceedings.
For the bad results that the m ajority’s opinion portends, one
need only examine closely the litigation in Willie M . by Singer v.
H unt, 564 F.Supp. 363 (W .D .N .C . 1983), a f f ’d as modified,
732 F.2d 383 (4th Cir. 1984), relied upon by the m ajority opi
nion. (A. 8). In Willie M ., the District Court noted the conflict
in the circuits and specifically rejected the Buian rationale, in
dicating that cost awards under Rule 39(a) and 42 U .S .C . §1988
are totally distinct. As Judge Kennedy wrote, the plaintiffs
prevailed overall in a class action, but the defendants prevailed
on one issue which was the subject o f an appeal. The Fourth
Circuit awarded no costs on the appeal, but nevertheless the
District Court allowed the plaintiffs to recover attorneys’ fees,
including time spent on the lost appeal. In line with their deci
sion regarding costs previously, the Fourth Circuit on the new
appeal reversed the part o f the decision that allowed attorneys’
fees, presumably for the same reason that costs had not been
awarded. In so doing, the Fourth Circuit did not address the
link between costs and fees or the Buian ru le .14 However, had
costs and fees gone hand in hand, as Judge Kennedy suggests,
there would have been no need for this further protracted litiga
tion regarding fees.
There is simply no need to engage in such double processes,
given the clear language o f Rule 39(a) and the clear Congres
sional intent behind 42 U .S .C . §1988. As recognized in M arek,
when Congress passed 42 U .S .C . §1988, it was well aware o f the
Federal Rules o f Civil Procedure, and presumably also the
Federal Rules o f Appellate Procedure. The Civil Rights A t
14 Contrary to the District Court’s opinion in Willie M., the Fourth
Circuit had previously recognized the link. See Gary v. Spires, 634
F.2d 772 (4th Cir. 1980).
— 15
torneys Fees Awards Act was passed in 1976; Rule 39(a) came
into existence in 1968 along with the body o f uniform appellate
rules. Thus, when Congress enacted 42 U .S .C . §1988 and
ordered attorneys’ fees as part o f the costs, and further
specifically indicated that attorneys’ fees were to be treated
“ like other items o f costs,” 15 Congress clearly understood the
inevitable links to the already existing procedural ru les.16
Thus, the better rule is the simplest one — the one embodying
the plain and simple meaning o f the term costs in the rule and
statute in issue. This Court applied that rule in M arek ; 17 the
Sixth Circuit previously applied it in Buian v. Baughard, and
15 Senate Report 94-1011 at 5913 reads in part as follows:
[D]efendants in these cases are often state or local bodies or state
or local officials. In such cases it is intended that the attorneys’
fees, like other items o f costs, will be collected either directly
from the official, in his official capacity, from funds of his agen
cy or under his control, or from the state or local government
(whether or not the agency or government is a named party).
(Emphasis supplied.) (Footnotes omitted.)
16 Of course, in interpreting legislative history, there is a presump
tion that Congress was aware of the judicial construction of existing
law and that new legislation therefore was to be construed within the
entire framework of federal statutes. See Shapiro v. United States,
335 U.S. 1 (1948); United States v. Professional Air Traffic Con
trollers, 653 F.2d 1134, 1138 (7th Cir. 1981). Further, statutes are to
be construed so that they harmonize with one another and are applied
in a consistent fashion. Kokoszka v. Bedford, 417 U.S. 642 (1974);
Bonner v. Coughlin, 647 F.2d 931 (7th Cir. 1981).
17 The majority’s efforts to distinguish Marek in footnoted (A. 7-8),
with reference to this Court’s discussion of Roadway Express, Inc. v.
Piper, 447 U.S. 752 (1980) in n. 2 to the Marek opinion must fail. Rule
39 does not carry with it its own definition of costs and neither does 42
U.S.C. §1988. Indeed, the Advisory Committee notes to Rule 39 not
only refer to 42 U.S.C. §1920 where some costs are defined, but also
to other statutes defining or precluding cost awards. Thus, Rule 39
contemplates a search of federal substantive statutes for its applica
tion, just as does Rule 68, Federal Rules of Civil Procedure.
— 16 —
continues to do so apparently in other contexts. (See n . 9,
supra). This case presents a particularly appropriate mechanism
to resolve the conflicts among the circuits, the inconsistencies
within the Sixth Circuit, and the conflict with the Eleventh
Am endment.
II.
The Majority’s Holding That The District Court’s 1971
Swann Remedy, Affirmed By The Sixth Circuit In 1972,
Was Not A Final Order Disposing Of All Issues Between
The Parties Is Inconsistent With The Decisions Of Several
Circuit Courts.
In Northcross v. Board o f Education o f M em phis City
Schools, 611 F.2d 624, 635 (6th Cir. 1979), cert, denied, 447
U.S. 911 (1980), the Sixth Circuit previously recognized a rule
o f finality in protracted civil rights cases which it and other cir
cuit courts o f appeal have gleaned from Bradley v. City o f R ich
mond, 416 U.S. 696 (1974).18 While this C ourt’s holding in
Bradley was expressly limited to the retroactive application of
the attorneys’ fees provision contained in 20 U .S .C . § 161719
when the propriety o f a fee award was pending resolution on ap
peal at the time the statute was enacted, 416U .S . at 710, other
courts, including the Sixth Circuit, have prom ulgated a rule
precluding the reopening o f final orders in protracted cases for
18 See Wheeler v. Durham City Board o f Education, 585 F.2d 618,
623 (4th Cir. 1978); Henry v. Clarksdale Municipal Special School
District, 579 F.2d 916, 918-19 (5th Cir. 1978); New York A ss’n fo r
Retarded Children v. Carey, 711 F.2d 1136, 1145 (2nd Cir. 1983);
Peacock v. Drew Municipal Separate School District, 433 F.Supp.
1072, 1075-76 (M.D. Miss. 1977).
19 This statute was initially used by the plaintiffs as a basis for their
fee application in this case. The statute has since been repealed, and
the award herein was made pursuant to 42 U.S.C. §1988. (See 20
U.S.C. §§3205, 3863.)
— 17 —
the award o f attorneys’ fees under the 1976 Civil Rights A t
torneys Fees Awards Act, 42 U .S .C . §1988. In the m ajority opi
nion, the Sixth Circuit again recognized the finality principle,
but refused to consider the District C ourt’s 1971 plan, affirm ed
by the Court o f Appeals in 1972, as such a final order disposing
o f all claims. (A. 3-6). In so doing, the Sixth Circuit has applied
a test o f finality which is subjective in nature and is inconsistent
with other desegregation orders deemed to be final.
The District C ourt’s 1971 order o f a comprehensive
desegregation plan ushered in by this C ourt’s decision in Green
v. Board o f Education o f N ew Kent County, 391 U.S. 430
(1968) (S.A. 59); Kelley v. M etropolitan County Board o f
Education, 317 F.Supp. 980 (M .D. Tenn. 1970), fully settled the
issues before the Court. The 1971 plan was implemented
without a stay from the District Court (S.A. 169, 178), and was
in effect in Nashville even before the Court o f Appeals affirm ed
the plan on May 30, 1972, and denied a stay o f its m andate pen
ding a petition for certiorari by the school board. (S.A. 212,
225).
In 1983, the District C ourt, relying on Northcross, supra,
held that this comprehensive desegregation plan was a final one
which could not be reopened for an award o f fees requested by
the plaintiffs on April 10, 1975.20 At the time of the plaintiffs’
m otion, the desegregation plan had been in effect for almost
five full school years. The only litigation had concerned matters
related to im plem entation, particularly the need for and source
o f additional buses. The only filings had concerned plaintiffs’
efforts to dem onstrate certain adverse effects from the plan,
and the defendants’ efforts to take care o f and house the
burgeoning and ever-changing population in Nashville and
20 While the District Court and the Court of Appeals noted that
plaintiffs had filed their petition for fees on February 8, 1974, the
record reveals that the petition referred to was filed by a group of
third party plaintiffs. Instead, the plaintiffs filed their petition for
fees on April 10, 1975. (A. 100, 106).
18 —
Davidson C ounty.21 Thus, the District Court, pursuant to Nor-
thcross, deemed the 1971 order a final one, upon which a col
lateral attack in the form o f a delayed fee application should not
be made. 558 F.Supp. at 472-475 (A. 48-54).
The m ajority only attacks the District C ourt’s decree as to
finality under the 1976 Civil Rights Attorneys Fees Awards Act
because litigation resulted after 1971, and because, in its opi
nion, neither the parties nor the Court o f Appeals deemed the
order an end to the litigation. Aside from the gross usurpation
o f the District C ourt’s particular fact-finding function in fee
cases and the inconsistencies apparent in the Court o f Appeals’
characterization o f the substantive as opposed to the fees issues
in this case, discussed infra in III, these factors have simply not
been deemed the critical test o f finality by other circuits.
As an example, in Henry v. Clarksdale M unicipal Separate
School District, 579 F.2d 916 (5th Cir. 1978), neither pending
litigation to require bus transportation nor the pending o f an a t
torneys’ fees m otion was deemed sufficient to disturb the finali
ty o f a comprehensive remedial order. Similarly, in Wheeler v.
Durham City Board o f Education, 585 F.2d 618 (4th Cir. 1978),
the court’s retention o f jurisdiction in order to supervise the ci
ty ’s desegregation plan was not sufficient to disturb the finality
o f a previous remedial order, even when accompanied by a m o
tion for further relief following Swann. Curiously, the Sixth
Circuit in Northcross alluded to the possibility that a 1966 order
might meet the requirements for finality, a finding later made
by the District Court (A. 84-85),22 but the Sixth Circuit
21 A close examination of the Court of Appeals’ description of the
action in this case after 1971, reveals that the proceedings were sup
plemental in nature and were not designed to attack the 1971 order
itself. (A. 5, n. 3.)
22 The 1966 order to which this Court was referring merely approved
tentatively the implementation of a desegregation plan for the coming
school year, and ordered the plaintiffs to file objections within three
weeks. Northcross v. Board o f Education o f Memphis City Schools,
Civil Action No. 3931, July 29, 1966. (A. 78).
— 19 —
simultaneously recognized that no one understood this order to
be the end o f the litigation in M em phis.23
By reversing the District Court, the Sixth Circuit has left the
door open in these protracted civil rights cases. As this Court is
aware, m any district courts across the country have retained
jurisdiction o f civil rights cases subject to “ final” remedial in
junctions, all o f which may be m odified as appropriate show
ings o f adverse effects, changed circumstances, or contem pt are
m ade.24 W ithout those showings or a change in the applicable
law, presum ably these final remedial orders may not be d isturb
ed. Similarly, in the absence o f changed circumstances
(resegregation) or adverse effects shown to be caused by the
1971 plan, that plan would presum ably be in effect today.
Does the Sixth C ircuit’s opinion mean that the door is always
open for applications relating to fees long since incurred and
m andates long since issued? The Court o f Appeals has
answered a hazy yes, calling into question the finality o f other
remedial orders entered prior to 1971 in this th irty year old
23 In Northcross, the Sixth Circuit stated as follows: “ A limited plan
was adopted in 1963, and a year later, this Court again reversed, re
jecting the plan as inadequate. Nearly two years later, in 1966, a
modified plan was tentatively approved by the District Court, and an
uneasy state of repose was reached. While the plaintiffs objected to
some aspects of the plan, their motion for an injunction was denied.
At the same time, however, the board was put on notice by the court
that some aspects of the plan needed further study and additional
relief might be ordered in the future.” 611 F.2d at 628-629.
24 This litigation does not impair or refute any order’s finality — if
it did no order in equity would ever be final. All orders in equity are
susceptible to later enforcement actions or actions based upon changes
in the law or facts. E.g. United States v. Swift Co., 286 U.S. 106, 119
(1932); Pasadena City Board o f Education v. Spangler, 427 U.S. 424
(1976).
— 2 0
desegregation case,25 and presumably in other long-running civil
rights actions across the country.
The position taken by the Sixth Circuit in this case does
nothing to enhance the ultimate goal o f 42 U .S .C . §1988 — the
attraction o f competent counsel to civil rights litigation.26 Cases
such as Northcross and Kelley were begun long before fee
awards were generally available, and critical stages o f these
cases were decided long before any lawyers could be lured by the
prospect o f fees pursuant to the 1976 civil rights statute. Con
versely, if the parties’ subjective intent or continued litigation of
any nature after a final decision in a desegregation case such as
Northcross and Kelley reopens the entire case for an award o f
fees, the prospects for abuse will be great, and it will be impossi
ble to find a reliable factual basis for a fee award for services
performed ten or twenty years earlier. See Gautreaux v.
Chicago Housing Authority, 690 F.2d 601, 608 (7th Cir. 1982);
H enry v. Clarksdale M unicipal Separate School District, 579
F.2d 916, 919 (5th Cir. 1978).27
To petitioners’ knowledge, this Court has not directly passed
on this finality issue. Consideration by this Court, particularly
in light o f the rem and whereby the District Court will be re
quired to review other final remedial orders in this case, appears
appropriate.
25 See n. 1, supra.
26 Senate Report 94-1011, reprinted in 1976 U.S. Code Congres
sional Administrative News, p. 5908.
27 In this instance it should be noted here that all fees requested by
the plaintiffs in Kelley were based upon reconstructed time, including
those hours plaintiffs claim their counsel expended in the 1950’s and
60’s. Further, Mr. Z. Alexander Looby, one of the counsel for whom
plaintiffs seek fees, died several years ago. 558 F.Supp. at 476 (A. 57).
21 —
III.
The Court Of Appeals Has Totally Usurped The District
Court’s Fact-Finding Function In Attorneys’ Fees Cases.
As Judge W ellford wrote in dissent, in two separate instances
the Court o f Appeals flagrantly violated this C ourt’s often
repeated directive that the “ District Court has discretion in
determining the am ount o f a fee aw ard .” Hensley v. Eckerhart,
416 U.S. at 437. (A. 25). W ithout ever determining tha t the
District C ourt’s fact-finding was clearly erroneous, the Court o f
Appeals required the District Court to raise the hourly rates
awarded to M r. Williams and M r. Dinkins and to consider
pre-1972 fees because the 1971 HEW plan was not a final one.
Such holdings obliterate the functions o f the two levels o f the
federal judiciary, remove the decisions from the District Court
which is m ost familiar with the various elements thereof, and
unnecessarily prolong attorneys’ fees litigation.
As Judges Kennedy and W ellford recognized in their separate
opinions (A. 17 and 23), the Court o f Appeals totally ignored
the myriad o f lawyers who testified as to prevailing rates in
Nashville, Tennessee, a necessary inquiry in light o f this C ourt’s
recent opinion in Blum v. S ten so n ,____ U .S ._____, 79 L .Ed.2d
891 (1984). According to the m ajority’s opinion, such inquiries
are apparently superfluous — the rate awarded must be the plain
tiffs’ lawyers’ current billing rate — in this case for M r.
Williams $120.00 per hour. It did not m atter that the prevailing
rate among respected and experienced members o f the Nashville
Bar in December, 1982 was closer to $100.00 per hour, the rate
awarded by the District Court for M r. W illiams’ services.28 It
did not m atter, as Judge Kennedy noted, that M r. Williams had
28 See Transcript, December 6, 1982: testimony of Thomas W.
Steele, p. 207, 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 Bar
rett, p. 360. Mr. DeWitt testified that he often charged much less to
his volume clients, p. 154.
— 22 —
only begun charging $120.00 per hour less than a year before the
1982 hearings. (A. 23). It did not m atter that from 1977 to the
date o f the hearings, fees paid to defendants’ counsel ranged
from $75.00 per hour in 1978 to $95.00 per hour in 1982 for Mr.
Willis, and $50.00 per hour in 1978 to $75.00 per hour in 1982
for Ms. H arrison .29 It did not m atter that Mr. Dinkins had no
personal hourly rate, but that the testimony showed the fair
value o f his services to be somewhere between $50.00 to $75.00
per h o u r.30 It did not m atter that the fees applied by the District
Court ($100.00 for Mr. Williams and $60.00 for M r. Dinkins)
were applied to all hours compensated from 1972 to 1983, du r
ing which period, as Judge W ellford graphically points out,
hourly rates were much lower. (A. 25-28). It did not m atter that
the time compensated was based totally upon reconstructed
time, a practice this Court has previously criticized, Hensley v.
Eckerhart, 461 U.S. 424, 437, 441-42 (1983),31 and that the
District Court nevertheless added on a 25% multiplier.
The Court o f Appeals’ cavalier handling o f the hourly fee
question underscores its further usurpation and torturing o f the
District C ourt’s fact-finding relative to the finality o f the 1971
order. Never did the Court o f Appeals consider that a massive
busing order affirm ed pursuant to Swann v. Charlotte-
29 Exhibit 17 to hearings of December 6, 1982.
30 See Transcript of December 6, 1982; testimony of Ward DeWitt
($50.00 per hour), p. 154; testimony of Cecil Branstetter ($60.00 to
$70.00 per hour), p. 126; testimony of John Hollins ($65.00 to $75.00
per hour), p. 224, See also testimony of Mr. Dinkins, Transcript,
December 6, 1982, pp. 312-315.
31 Significantly, no court has recognized that plaintiffs’ counsel
charged more than $14,000.00 in fees for reconstructing time records,
for which, along with other time spent, plaintiffs sought a 100%
multiplier. Transcript, December 6, 1982, p. 260. The District Court
did not eliminate this time.
— 23 —
M ecklenburg had been in place for twelve years at the time o f
the fee hearings. Never did the Court o f Appeals acknowledge
that the 1971 plan was ordered changed only because changes in
population and adverse effects had directly resulted from the
plan itself over the intervening decade. 479 F.Supp. at 123
(S.A. 45). Never did the Court o f Appeals acknowledge that its
own panel had clearly viewed the 1971 plan as a final order
when it had stayed the im plem entation o f the District C ourt’s
new plan in 1981, only two days before school was to start with
the following language:
A nd co nc lud ing .. .that where (as here) after many, many
years a fin a l school desegregation order has been entered in
the District Court, and appealed to this Court and affirm
ed, and then appellants’ petition for certiorari has been
denied in the Supreme Court, it is in the public interest for
a proposed departure from said order to be reviewed by the
Court o f Appeals prior to, rather than after, the institution
o f the change sought.
Kelley v. M etropolitan County Board o f Education, No.
81-5370 (6th Cir. August 19, 1981) (S.A. 156) (Emphasis sup
plied).
Rather, in all instances the Sixth Circuit m ajority has begun,
w ithout examining the extensive record or the specific findings
made by the District Court, with the proposition that the award
o f $139,500.00 in fees was “ inadequate.” (A. 16). From that
proposition alone the Court o f Appeals set about determining
how that fee could be raised without reference to the District
C ourt’s fact-finding or deference to its intimate knowledge con
cerning its own proceedings.
Nowhere is the error in this approach m ore glaring than in the
Court o f Appeals’ opening rem arks that the $139,500.00 con
stituted less than ten percent o f the am ount requested, a disturb
ing statement at best when the bill presented by the plaintiffs is
closely examined. The $1.4 million fee request was bottom ed on
— 24 —
rates for M r. Williams and M r. Dinkins that were fo u r times the
prevailing rates in Nashville, Tennessee — $400.00 for Mr.
Williams and $240.00 for M r. Dinkins taking into account the
requested 100% m ultiplier.32 Similarly, the Court o f Appeals’
effort at comparing attorneys’ fees paid defendants’ attorneys is
problem atic, since the Court simultaneously failed to recognize
that for the same period during which defendants’ counsel were
paid for their hourly time expended, plaintiffs’ counsel were
awarded almost their full request in terms o f hours minus a
small am ount for time spent with an expert witness whose
testimony they repudiated before the Court o f Appeals and this
Court. 558 F.Supp. at 478-79 (A. 60-62).33 These examples are
merely indicative o f the reasons why this Court has given the
District Court wide berth in attorneys’ fees cases.
This Court recently re-emphasized the wide discretion vested
in the District Court in determining the am ount o f a fee award.
The reasoning behind this balancing o f roles was deemed to be
32 See Exhibit 13 to December 6, 1982, hearings.
33 The only hours subtracted by the District Court outside of the ap
pellate and final order issues considered previously were 10% for
duplication (offset by the 25% enhancement) and a small amount
of time spent with Dr. Hugh Scott, whose neighborhood school ap
proach the plaintiffs abandoned on appeal. (A. 60-62).
The Court of Appeals further attempted to compare fees paid to
defendants’ counsel to those awarded plaintiffs’ counsel in n. 8, A.
16. Here the Court also failed to note that the Board of Education
developed three desegregation plans during this period, held hundreds
of hours of public hearings thereon which the school board’s at
torneys were required to attend, and actively pursued a time-
consuming third party complaint against several state defendants
which is now on appeal. Accordingly, while the defendants’ lawyers
did bill more hours for their time during the same period compensated
the plaintiffs, their tasks were not comparable to those of the plain
tiffs and they also billed at a significantly lower rate than did the
plaintiffs’ attorneys.
— 25 —
“ the District C ourt’s superior understanding o f the litigation
and the desirability o f avoiding frequent appellate review of
what essentially are factual m atters.” Hensley v. Eckerhart,
461 U.S. 424, 437 (1983). Here, the District Court
dem onstrated unequivocally its grasp o f the litigation and its
full consideration o f the record before it in m aking its award. In
contrast, the Court o f Appeals has opted for a generalization.
If this type o f review is allowed to stand and to continue, the
District C ourt’s function in the Sixth Circuit, and perhaps in
other Circuits, will be forever usurped, and appellate review will
be the rule rather than the exception in attorneys’ fees litigation.
CONCLUSION
This Court has stated that a “ request for attorneys’ fees
should not result in a second m ajor litigation.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). In arriving at this policy
statement the Court has underscored the District C ourt’s discre
tion in reviewing and characterizing the proceedings and work
before it, in view of the District C ourt’s intim ate familiarity
with its own proceedings. Id.
The Sixth C ircuit’s opinion in this case is worthy o f review
because it misconstrues the Civil Rights Attorneys Fees Awards
Act o f 1976, 42 U .S .C . §1988, and in so doing comes into con
flict with at least one decision o f this Court, M arek v. Chesney,
____ U .S ._____, 87 L .Ed.2d 1 (1985), and with several circuit
court opinions. Perhaps m ost im portantly, however, the Sixth
C ircuit’s opinion, if allowed to stand, has increased exponen
tially the inevitability o f protracted attorneys’ fees litigation. It
has done so by removing the Court o f Appeals’ first hand con
trol over appellate fees through its power to award its own costs,
by perm itting the reopening o f a final desegregation order which
settled all issues then pending, and by usurping the District
C ourt’s discretion to examine its own proceedings and local fee
standards to award fees at the trial level.
— 26 —
As Judge W ellford stated in his opinion, “ I dissent because I
believe Judge W iseman acted fairly and within the bounds o f his
sound discretion and applied the law reasonably to the facts o f
the case. (A. 28). If the Sixth C ircuit’s opinion is perm itted to
stand, such a result will never be sufficient to withstand ap
pellate scrutiny, particularly in protracted civil rights cases.
Respectfully submitted,
W ILLIS & KNIGHT
William R. Willis, Jr.
M arian F. Harrison
215 Second Avenue North
Nashville, Tennessee 37201
A ttorneys fo r Petitioners
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy o f the foregoing
petition has been mailed to M r. Avon Williams, 203 Second
Avenue N orth, Nashville, TN 37201; M r. Theodore Shaw,
NAACP Legal Defense Fund, 99 H udson Street, 16th Floor,
New York, NY 10013; and Mr. Stephen Nunn, Deputy A t
torney General, 450 James Robertson Parkway, Nashville, TN
37219 on this 19th day o f November, 1985.
W ILLIS & KNIGHT
By: / s / William R. Willis, Jr.
Attorneys for Peteitioners
APPENDIX
TABLE OF CONTENTS
Page
Appendix A — En Banc Opinion o f the Sixth Circuit
Court o f Appeals dated September 23, 1985 ........... A -l
Appendix B — Panel Opinion o f the Sixth Circuit Court
o f Appeals dated February 12, 1985 ......................... A-29
Appendix C — 558 F.Supp. 468 (M .D. Tenn. 1983) —
Kelley v. M etropolitan Board o f Education, et al. . A-43
Appendix D — Order o f the District Court for the
Middle District o f Tennessee dated February 23,
1983.................................................................................... A-68
Appendix E — Petition for Rehearing and for Rehear
ing En Banc filed October 7, 1985 (Exhibit B om it
ted) ..................................................................... A-69
Appendix F — Letter from Sixth Circuit Court o f
Appeals dated October 15, 1985 regarding Petition
to R e h e a r ....................... A-76
Appendix G — Order o f the Sixth Circuit C ourt o f
Appeals Staying M andate dated October 25, 1985 . A-77
Appendix H — Order o f the District Court for the
W estern District o f Tennessee dated July 29, 1966,
in Northcross v. Board of Education o f Memphis
City S chools..................................................................... A-78
Appendix I — Findings o f Fact and Conclusions o f Law
with Respect to Fees and Costs o f the District
Court for the W estern District o f Tennessee dated
January 4, 1982, in N orthcross v. Board o f Educa
tion o f Memphis City S ch o o ls ..................................... A-80
Appendix J — Petition for A ttorneys’ Fees on Behalf
o f Third Party Plaintiffs filed February 8, 1974 . . . A-102
Appendix K — M otion o f Plaintiffs for Granting o f
their Request for Counsel Fees filed April 10, 1975 A-106
APPENDIX A
Nos. 83-5175, 5243
U N ITED STATES COURT O F APPEA LS
FOR TH E SIXTH CIRCUIT
Robert W. Kelley et al.,
Plaintiffs-Appellants,
Cross-A ppellees,
v.
M etropolitan County Board o f
Education, et al.,
D efendants-Appel lees,
Cross-Appellants.
On Appeal from the
United States District
Court for the Middle
District o f Tennessee.
Decided and Filed September 23, 1985
Before: Lively, Chief Judge; Engel, Keith, Kennedy, Mar
tin, Contie, Krupansky, Wellford and M ilburn, Circuit
Judges; and Edwards and Celebrezze, Senior Circuit Judges.1
Krupansky, Circuit Judge, delivered the opinion o f the court
in which Lively, C .J ., Keith, Martin, Contie and M ilburn,
J J ., joined. Kennedy, J ., (pp. 17-23) delivered a separate opi
nion, concurring in part and dissenting in part in which Engel
and Wellford, JJ ., jo ined, with Wellford, J ., (pp. 24-29) also
1 The court’s decision to review the instant case en banc effectively
vacated the prior Sixth Circuit opinion on this case which was printed
at 755 F.2d 67 (6th Cir. 1985).
A-2 —
delivering a separate opinion, concurring in part and dissenting
in part.
Krupansky, Circuit Judge. Plaintiffs Robert W. Kelley and
the class he represents appealed and defendant M etropolitan
County Board o f Education (Board) cross-appealed the district
cou rt’s award o f attorney’s fees in this school desegregation
case.
Commencing on the heels o f the landm ark case o f Brown v.
Board o f Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954), the instant case has spawned volumes o f court opinions
and orders at both the district and appellate levels. These deci
sions need not be recounted in detail here. See, e.g., Kelley v.
M etropolitan County Board o f Education, 687 F.2d 814 (6th
Cir. 1982), cert, denied, 459 U.S. 1183 (1983); Kelley v.
M etropolitan County Board o f Education, 463 F.2d 732 (6th
Cir.), cert, denied, 409 U.S. 1001 (1972); Kelley v. M etropolitan
County Board o f Education, 511 F.Supp. 1363 (M.D. Tenn.
1981). Suffice it to say that the litigation undoubtedly required
hundreds o f hours o f work by the plaintiffs’ and B oard’s a t
torneys.
The plaintiffs’ initial m otion for attorney’s fees, pursuant to
the Educational Amendments o f 1972, 20 U .S .C . § 1617, was
filed on February, 8, 1974. Subsequent filings amended the
pending m otion to include a prayer for relief under the 1976
Civil Rights A ttorney’s Fees Act, 42 U .S .C . § 1988. In
December, 1982, the trial court conducted hearings on the issue
o f attorney’s fees. On February 23, 1983, the court awarded
plaintiffs’ fees and costs o f approximately $139,500 or less than
ten percent o f the am ount requested.2 The discrepancy between
the am ount requested and that awarded formed the basis of
plaintiffs’ appeal. 1
2 In its motion for attorneys fees, plaintiff requested the following
amounts for services rendered in the 28-year history of the case:
(1) Avon Williams, for the firm of Looby and Williams, 917.8
hours at $200 per hour and 36.4 days at $1,500 a day, totaling
— A-3
Specifically, plaintiffs alleged error in the district cou rt’s
refusal to award attorney’s fees for services rendered prior to
1972, for declining to award fees for appellate services, and for
abusing its discretion in calculating the daily and hourly rates of
plaintiffs’ attorneys Avon Williams and Richard Dinkins. The
defendant B oard’s cross-appeal challenged the district court’s
failure to discern the specific extent to which plaintiffs prevailed
on each o f their claims, and in holding the Board liable for ser
vices required by plaintiffs’ attorneys due to the intervention o f
third parties.
The district cou rt’s denial of attorney’s fees for services per
formed prior to 1972 was predicated on the court’s determ ina
tion that a 1971 desegregation order, entered by the district
court and approved by the Sixth Circuit, was a “ final o rder”
which term inated entitlement to attorney’s fees under this
court’s m andate in Northcross v. Board o f Education o f M em
phis City Schools, 611 F.2d 624 (6th Cir. 1979), cert, denied,
447 U.S. 911 (1980).
In Northcross, supra, this court cautioned that although a t
torney’s fees could be awarded retroactively in all desegretation
cases pending at the date o f § 1988’s enactm ent, such retroactive
relief was not autom atic. The court stated:
This is not to say that a retroactive award o f attorney’s fees
m ust be made in all school desegregation cases. Certain in
terim aspects o f the case may have been subject to a final
order settling the issue o f attorney’s fees to that point,
$238,160plus a 100percent contingency factor fora total of $476,320;
(2) Avon Williams, individually, 1,211.5 hours at $200 per hour
and 87.3 days at $1,500 a day, totaling $372,250 plus 100 percent con
tingency factor for a total of $746,500;
(3) Richard Dinkins, individually, 215.6 hours at $120 per hour and
38 days at $1,500 a day, totaling $82,872, plus a 100 percent con
tingency factor for a total of $165,744.
An additional $126,000 was requested for work performed by Legal
Defense Fund attorneys.
— A - 4 —
rendering the reopening o f long-settled aspects o f the case
unfair.
611 F.2d at 635.
Based on the above guidance, the Northcross district court
held on rem and that a 1966 consent order entered in the Mem
phis school desegregation case constituted a final order, thus
barring an award o f attorney’s fees for work completed prior to
1966.
In the instant case, the court below concluded that the 1971
order of the district court, affirm ed in Kelley v. M etropolitan
County Board o f Education, 463 F.2d 732 (6th Cir.), cert,
denied, 409 U.S. 1001 (1972), constituted a “ final o rder” as did
the 1966 consent decree at issue in Northcross. This court,
however, is not persuaded by that conclusion.
In upholding the lower court’s sanctioning o f the HEW plan
in 1972, this circuit initially observed:
The order of the District Judge is the first comprehensive
and potentially effective desegregation order ever entered
in this [17 years of] litigation. The District Judge tells us
that now the remedy is at least in sight.
463 F.2d at 734.
Consequently, this court observed in 1972 that the only
issues o f substance presented in that appeal were the “ practical
problems which appellants claim have developed since the entry
o f the district judge’s [1971] o rder” , 463 F.2d at 744, such as the
lengthy bus rides to which youngsters were subjected as part of
the desegregation plan. However, the Sixth Circuit directed the
parties to seek a remedy for these problems in the district court.
The court instructed:
As appellants well know, the arena for fact-finding in the
federal courts is the United States District Court. Until
these claims are presented in a trial court, with an oppor
— A-5 —
tunity for sworn testim ony to be taken and controverted
issues of facts decided by the processes o f adversary hear
ing, this court has no jurisdiction,
463 F.2d at 744-745.
The 1972 Sixth Circuit opinion further related that
documents included in the appellate record suggest “ that local
authorities in Nashville and Davidson County have not made
good faith efforts to comply with the order o f the District
Judge,” 432 F.2d at 745. The 1972 appellate decision thus con
cluded:
The District Court order in this case specifically retained
jurisdiction. Thus, upon our affirm ance, the door o f the
District Court is clearly open (as it has been) to the parties
to present any unanticipated problems (not resulting from
failure to comply with its order) which may have arisen or
may arise in the future.
463 F.2d at 747.
Thus, it is clear that the Sixth Circuit did not view the 1971
order as signaling the term ination of the litigation. M oreover,
the record is replete with disclosures that the plaintiffs, as well
as defendants, have continously engaged in adversary pro
ceedings of m agnitude in conjunction with the modification and
im plem entation o f the 1970 plan with charges and counter
charges o f asserted disparate treatm ent of black children.3 As
3 For example, on October 21, 1971, plaintiffs moved to join the
metropolitan government, mayor and council members as parties due
to the control these officials exhibited over the financial resources
necessary to implement the transportation aspect of the plan; on
March 17, 1972, the Board submitted its second report to the court in
which it suggested, inter alia, plans for a new high school and a capital
improvement schedule for schools which were at least 15% black; in
June, 1972, the Board sought changes in the 1971 plan concerning
elementary and junior high school attendance zones which plaintiffs
opposed while reiterating their claims that the plan in effect had a
— A-6
recently as 1982, this circuit again rem anded the case, con
cluding that “ [i]n large measure, the pupil assignment com
ponents o f this plan do not withstand constitutional scrutiny.”
Kelley, 687 F.2d at 817.
In view of the foregoing, it is quite apparent that the 1971
district court’s disposition and this court’s subsequent 1972 af
firmance o f that decision, did not represent a distinct break in
the litigation. Accordingly, as envisioned by the Sixth Circuit in
Northcross, an award o f fees for legal services perform ed and
accrued prior to 1972 is appropriate.
The trial court having initially disallowed attorneys fees for
the period between the inception o f this action on September 23,
1955, and May 30, 1972, is directed upon rem and to conduct
hearings and award attorneys fees for services perform ed at the
trial and appellate levels by determining and applying the
prevailing daily hourly rate, daily in-court time, and other awar-
dable fees for each year o f the period involved.
Plaintiffs have also challenged the trial cou rt’s refusal to
award attorney’s fees for services performed by their counsel at
the appellate level. Com pensation was sought, inter alia, for
appellate services which culminated in this court’s 1972 and
1982 Kelley opinions. See, 463 F.2d 732, 687 F.2d 814.
The court below predicated its denial of legal fees for the ap
pellate litigation on Buian v. Baughard, 687 F.2d 859 (6th Cir.
1982). In Buian, the court announced that the award o f costs to
a litigant pursuant to the Federal Rules of Appellate Procedure
was an absolute prerequisite to the award o f attorney’s fees
under § 1988 for services resulting from the pursuit of appellate
disparate impact on black children; and on May 20, 1973, the Board
petitioned for approval of its “ Long Range Building Program” . In
sum, the district court’s docket sheet evinces a steady stream of activi
ty from the initiation of this litigation to the date of the present ap
peal.
A-7 —
review. Because costs were not awarded by this court to the
plaintiffs at the conclusion o f the various appellate proceedings
entertained by this court, the district court applying Buian bar
red com pensation for their attorneys’ services.
U pon a reconsideration o f Buian and its m andates, this court
concludes that an award o f costs pursuant to Fed.R .A pp.P .
39(a)4 is separate and distinct from and totally unrelated to an
award o f attorney’s fees pursuant to the directions o f § 1988.
Accordingly, Buian is hereby overruled. While it is true that §
1988 expressly states that attorney’s fees “m ay be awarded as
part o f costs,” neither the legislative history nor the express
language of § 1988 m andates the conclusion expressed in
Buian.5 See, Robinson v. Kimbrough, 620 F.2d 468, 474 (10th
4 While Fed.R.App.P. 39(a) sets forth general guidelines for the
award of costs on appeal, governing such items as the copying of
briefs, appendices and records, it also allows the appellate tribunal
wide discretion in reimbursing a party for its expenses. The rule states
in pertinent part:
Rule 39. Costs
(a) To whom allowed. Except as otherwise provided by law, if
an appeal is dismissed, costs shall be taxed against the appellant
unless otherwise agreed by the parties or ordered by the court; if
a judgment is affirmed, costs shall be taxed against the appellant
unless otherwise ordered; if a judgment is reversed, costs shall be
taxed against the appellee unless otherwise ordered; if a judg
ment is affirmed or reversed in part, or is vacated, costs shall be
allowed only as ordered by the court.
5 The dissent’s argument that Buian’s pronouncements are sup
ported by cases such as Hutto v. Finney, 437 U.S. 678 (1978) and
Marek v. Chesney, 53 U.S.L.W. 4903 (June 27, 1985) is not per
suasive. Hutto simply determined that attorney’s fees may be
classified as “ costs,” and as such, are not subject to eleventh amend
ment immunity which normally bars monetary damage awards when a
state is the defendant in a civil rights action. Similarly, the Court in
Marek, after reviewing the legislative history, purpose and express
language of § 1988 and Fed.R.Civ.P. 68 respectively, concluded that
Congress intended the Rule 68’s cost sanctions, which are
— A-8
Cir. 1980) (]pre-Buian decision expressly rejecting the approach
advocated in Buiari). See, e.g., Universal A m usem ent Co., Inc.
v. Vance, 587 F.2d 159, 173 (5th Cir. 1978) (en banc), a f f ’d 445
U.S. 308, 100 S.Ct. 1156, 63 L .Ed.2d 413 (1980) (recognizing
circuit cou rt’s discretionary power to award costs and fees aris
ing from appeal pursuant to Rule 39 but remanding to district
court as proper forum to determine total cost and fees, in
cluding attorney’s compensation, for prevailing party in that
case); Willie M . by Singer v. H unt, 564 F.Supp. 363 (W.D.
N .C . 1983), a f f ’d as modified, 732 F.2d 383 (4th Cir. 1984)
(specifically rejecting Buian rationale). To the contrary, the
relevant inquiry is simply whether the party seeking compensa
tion substantially prevailed at the appellate level. See, e.g.,
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939,
76 L .Ed.2d 40 (1983) (restating the general rule that prevailing
plaintiff should ordinarily recover an attorney fee in civil rights
mandatorily-imposed upon a party who refuses a settlement offer and
who subsequently fails to recover a final judgment greater than the of
fer, to include attorneys’s fees. In determining that the cost-shifting
provision of Rule 68 encompasses an award of attorneys fees under §
1988, the Marek Court, in footnote 2, distinguished its prior opinion
in Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980). The Court
observed that, unlike Rule 68, the cost provision at issue in Roadway
(28 U.S.C. §§ 1920 and 1927) specifically enumerated the type of costs
awardable as sanctions under certain circumstances, thus making it in
appropriate for the Court to interpret “ costs” as including § 1988 at
torney’s fees. In other words, the Marek Court recognized a critical
distinction between interpretation of “ costs” where the relevant
statute sets forth its own definition of the term, as opposed to situa
tions where “ costs” are undefined. As appellate Rule 39 specifically
delineates the “ costs” to which it applies, i.e. the “ traditional” costs
of printing briefs, appendices, records, etc. the pronouncements of
Marek render it inappropriate for this court to judicially-amend Rule
39’s cost provisions to include § 1988 attorney’s fees. In sum, neither
Hutto nor Marek addressed the narrow issue presented by Buian, to
wit, whether the appellate court’s discretionary decision to award or
deny costs pursuant to Fed.R.App.P. 39 should be considered an ab
solute prerequisite to the prevailing party’s § 1988 entitlement to at
torney’s fees for legal services rendered at the appellate level.
— A-9
cases). Consideration and disposition o f this critical issue is
pragmatically left to the forum o f the trial court. Northcross,
611 F.2d at 637. See also, D oe v. Busbee, 684 F.2d 1375 (11th
Cir. 1982); Taylor v. Ouachita Parish School Bd., 648 F.2d 959
(5th Cir. 1981); M olina v. Richardson, 578 F.2d 846 (9th Cir.),
cert, denied, 439 U.S. 1048 (1978).6
In addition to challenging the lower court’s exclusion o f time
accrued for pre-1972 and appellate work, plaintiffs urge that the
hourly and daily rates awarded by the lower court for legal ser
vices rendered subsequent to May 30, 1972, by Avon Williams
and Richard Dinkins were inadequate. Com pensation at the
rate o f $200 per hour and $1,500 per day in court was requested
for W illiams, and $120 hourly and $1,500 per day sought for
D inkins’ services. Subsequent to evaluating the prevailing rate
charged by experienced and skillful lawyers in the Nashville
area, the court below determined that the m arket rate in federal
court litigation for an attorney o f W illiams’ experience, ability
and stature was $100 per hour and $1,000 per day o f trial. The
rate for Dinkins, who was introduced into the case upon gaining
admission to the bar, was $60 per hour and $600 per day in
court. The court also rejected plaintiffs’ prayer for a 100 per
cent contingency factor, but approved a 25 percent upward ad
justm ent to compensate for the difficulty o f the prolonged
litigation and its unpopularity in some sectors of the comm uni
ty. The court then reduced the am ount 10 percent to account
for duplication o f services and possible miscalculations in the
attorneys’ reconstruction o f their time records.
6 Contrary to the concerns articulated by the dissent, the majority
does not foresee its opinion as impacting or overruling the decision in
Johnson v. Snyder, 639 F.2d 316 (6th Cir. 1981) (per curiam), as
Johnson merely concluded that since § 1988 attorney’s fees may be
considered as part of costs, the filing of petition for attorney’s fees is
not governed by the time limitations of Fed.R.Civ.P. 59 for motions
to alter or amend the judgment or for a new trial.
A-10 —
In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-719 (5th Cir. 1974), the Fifth Circuit listed 12 factors to be
considered in determining an appropriate award o f attorney’s
fees. These factors include, inter alia, the time and labor re
quired, the novelty and difficulty o f the litigation, the
custom ary fee, and the experience, reputation and ability o f the
attorneys. In Northcross, this court observed that Johnson did
not provide guidance as to the relative weight to be accorded
each factor, and suggested that “ an analytical approach” be ap
plied. Northcross instructs:
We conclude that an analytical approach, grounded in the
num ber o f hours expended on the case, will take into ac
count all of the relevant factors and will lead to a
reasonable result. The number of hours of work
autom atically reflect the “ time and labor involved,” “ the
novelty and difficulty o f the question,” and “ preclusion of
other em ploym ent.” The attorney’s normal hourly billing
rate will reflect “ the skill requisite to perform the legal ser
vice properly ,” “ the custom ary fee,” and the “ experience,
reputation and ability o f the atto rney .” Adjustm ents up
ward may be made to reflect the contingency o f the fee,
unusual time limitations and the “ undesireability” of the
case.
611 F.2d at 642-43.
Fairly read, Northcross advises that the attorney’s normal
hourly billing rate should be a key focal point in award deter
minations. In the recent case of Blum v. S te n so n ,____ U.S.
____ , 104 S.Ct. 1541 (1984), the Supreme Court further in
structed that “ reasonable rates” are to be determined under §
1988 “ according to the prevailing market rates in the relevant
com m unity.” 104 S.Ct. at 1547.
In contesting the $100 per hour award to Williams, plaintiffs
cited testimony adduced at the hearing on the m otion for fees
evincing (1) W illiams’ reputation as an experienced and suc
cessful civil rights lawyer; (2) that “ custom ary fees” for similar
A-l 1
work in the Nashville area ranged from $100 to $200 an hour;
(3) that Williams hourly fee for office work was $120; and (4)
that the unpopularity o f the case has resulted in threats against
Williams. Testimony that the standard fee for someone of
D inkins’ stature was $65 to $130 an hour was also cited to sup
port p laintiffs’ contention that Dinkins’ award was inadequate.
In addition, plaintiffs recounted the unpopularity and length of
the litigation in arguing that the contingency fee should be
higher than the 25 percent awarded by the court below.
Considering in tandem the pronouncem ents of the Supreme
Court and Sixth Circuit delineating the correct m ethod for
caluclating attorney’s fees, this court concludes that Williams is
entitled to at least a minimum rate o f $120 per hour. This
am ount is a reasonable point o f departure in calculating
W illiams’ hourly rate in accordance with prevailing Supreme
Court and this circuit’s directions and is within the param eters
o f the evidence that “ custom ary fees” for similar work in the
Nashville area ranged between $100 and $200 an hour. The
award to Dinkins must also be reconsidered using as a minimum
point o f departure an am ount o f $65 per hour as the prevailing
value o f his skills in the Nashville legal community. The daily (in
court) rate for Williams and Dinkins should also be upgraded to
$1,200 and $650 respectively.
The lower court’s overall reduction o f fees by 10 percent for
duplication o f services is justified under the holdings of
Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979) and
Oliver v. Kalamazoo Board o f Education, 576 F.2d 714, 715 n.2
(6th Cir. 1976) (per curiam). In addition, the Supreme Court
recently approved a 30 percent overall reduction in a case, like
the one at bar, where the attorneys failed to keep contem
poraneous time records and thus had to reconstruct them from
memory. See Hensley v. Eckerhart, 461 U.S. 424, 428, 103
S.Ct. 1933, 1939, 76 L .Ed.2d 40 (1983). However, the reduc
tion in Hensley was also designed to compensate for the a t
torney’s inexperience. Thus, the 10 percent reduction in the ins
tan t case is reasonable and should not be disturbed.
— A-12 —
Plaintiffs also challenged the district court’s refusal to award
fees for the two days and seven hours plaintiffs’ attorneys a t
tributed to discussions with Dr. Scott, the plaintiffs’ expert
witness at the 1979 and 1980 hearings. The court’s opinion was
based on its finding that Dr. Scott’s testimony was frivolous
under Northcross, 611 F.2d at 636, in light of plaintiffs’
repudiation o f much of Dr. Scott’s testimony after the court
had adm itted it. The district cou rt’s conclusion in this respect is
proper.
In its cross-appeal, the defendants alleged that the trial court
erred in failing to exclude fees for services rendered by plain
tiffs’ attorneys arising from claims and proceedings stemming
from the intervention or joining o f other parties. These “ ou t
side” parties were:
1. The M etropolitan (Nashville/Davidson Co.) Mayor
and Council, which plaintiffs joined as defendants in
1972. (Plaintiffs prevailed in their effort to enjoin
these defendants from interfering with the desegrega
tion plan.)
2. The intervention by the Board itself as a third party
plaintiff in 1973 to present its claim against third-
party defendant HEW .
3. A group of otherwise unidentified “ intervenors” who
proposed a desegregation plan to the district court in
1979.
4. A nother unidentified group o f intervenors who
entered the case to propose the creation of a magnet
school.
The defendant Board further noted that it vehemently oppos
ed the intervention o f the third and fourth group of intervenors
listed above.
Plaintiffs responded to the Board’s argument on this issue by
observing that it was the Board’s failure to dismantle its dual
— A-13
school system that occasioned the interventions and prolonged
the litigation in this lawsuit.
Defendants relied primarily on H aycraft v. Hollenbach, 606
F.2d 128 (6th Cir. 1979) (per curiam) for the proposition that
plaintiffs should look to the intervenors, rather than the defen
dant, for expenses occurred as a result of the intervention.
However, H aycraft is distinguishable from the instant case in
several im portant respects.
In Haycraft, L. J. Hollenbach, a county judge o f Jefferson
County, Kentucky, intervened on behalf o f “ all the people of
Jefferson C ounty” in a desegregation case pending in federal
court. The judge proposed an alternative desegregation plan
which protracted the litigation and resulted in several appeals.
Following the appeals, the original plaintiffs sought an award of
attorney’s fees to be assessed against the intervenor pursuant to
the Emergency School Aid Act o f 1972, 20 U .S.C. § 1617. In
granting the order, the district court held the $11,312 award
against the intervenor appropriate, as plaintiffs would have sav
ed countless hours were it not for the intervenor. On appeal,
this circuit affirm ed the award, holding that the plaintiffs
became the “ prevailing party” as regarded Hollenbach “ when
the district court rejected his desegregation plan and dismissed
him as an intervenor.” 606 F.2d at 132.
Thus, the award assessed against the intervenor in Haycraft
was predicated on the court’s finding that the intervenor
obstructed rather than aided in the developement of the court-
ordered desegregation scheme. The award was also sought by
the plaintiffs directly from the intervenor. In the instant case,
there is no evidence that the intervenors in any way interferred
with the progress o f the litigation, and thus plaintiffs would not,
under the H aycraft analysis, be entitled to rem uneration fro m
the intervenors. The question remains, o f course, whether the
plaintiff is entitled to attorney’s fees fro m the Board for the ex
tra time which the plaintiffs’ counsel devoted to issues raised by
the intervenors.
— A-14 —
There appears to be no case which directly resolves this issue.
Com m on sense dictates that the Board should not be held liable
for the costs plaintiffs incurred in seeking an injunction against
the M etropolitan M ayor and Council, as that group was itself a
third-party defendant, unrelated to the Board. Thus, if any
party is liable for those expenses, it would be the M etropolitan
government and not the Board. As to the other intervenors,
however, (i.e. the Board itself as a third-party plaintiff, the
group which proposed a desegregation plan in 1979, and the ad
vocates o f the magnet school) plaintiffs’ argum ent that the
B oard’s failure to dismantle its dual school system caused the
intervention is persuasive. Thus, plaintiffs are entitled to com
pensation from the Board for all legal services except those
resulting from plain tiff’s addition o f the M etropolitan mayor
and Council as third-party defendants.
D efendant’s final argument on cross appeal was that the
court erred in not determining the specific extent to which plain
tiffs had prevailed in the action. The defendant contended that
while the court’s focus on the “ overall results’’ o f the case was
sufficient to satisfy the “ prevailing party” requirement as defin
ed by this circuit in Northcross, a recent Supreme Court deci
sion has changed the standard. Defendant cites Hensely v.
Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L .Ed.2d 40 (1983)
for the proposition that the Northcross approach has been
modified, and that awards under § 1988 now require that a par
ty ’s request for attorney’s fees be carefully scrutinized as to the
extent o f success on each claim, and further, that time spent on
unsuccessful claims that are distinct from successful claims
should be excluded in determining a reasonable fee.7 Thus,
7 Specifically, defendant alleged that plaintiffs have been erroneous
ly awarded fees for time spent pursuing unsuccessful charges of con
tempt against the Board, yet unresolved matters as to faculty composi
tion, and their effort to keep Pearl High School open.
— A-15
defendant suggested that under the m andate o f Hensley, the
case should be rem anded with instructions to examine the extent
to which plaintiffs have prevailed on each substantive issue
before awarding fees. The court agrees.
In Hensley, plaintiffs brought a lawsuit on behalf o f all per
sons involuntarily confined at the Forensic Unit o f the Fulton
State Hospital in Missouri. The complaint challenged the treat
ment and conditions at the Forensic Unit presenting a wide
variety o f alleged constitutional infringements. The court
found constitutional violations in five or six general areas cited
in plaintiffs’ complaint: physical environment; individual trea t
ment plans; least restrictive environment; visitation, telephone
and mail privileges; and seclusion and restraint. However, it
found the sixth general area, staffing, to be sufficient.
In ruling on an attorney’s fees m otion, the Hensley district
court first determined that plaintiffs were prevailing parties
even though they had not succeeded on all six claims, and fur
ther refused to eliminate from the award hours spent on the un
successful claim. The Supreme Court reversed and rem anded,
reasoning that two questions must be addressed when a m otion
for attorney’s fees is presented in a case involving num erous
claims: (1) did the p laintiff fail to prevail on claims that were
unrelated to the claims on which he succeeded?; and (2) did the
plaintiff achieve a level o f success that makes the hours
reasonably expended a satisfactory basis for making a fee
award? 461 U.S. at 434; 103 S.Ct. at 1940.
However, Hensley does not, as defendant suggested, repre
sent a total break from the approach taken regarding the
“ prevailing party” issue by this circuit in Northcross. Rather,
the Hensley court noted that in some cases, the litigation cannot
be “ viewed as a series o f discrete claim s.” Id. In such a case, the
Court stated, the overall result would remain as the prim ary fac
tor in determining attorneys fees.
— A-16 —
The Hensley court instructs:
M any civil rights cases will present only a single claim. In
other cases the p lain tiff’s claims for relief will involve a
common core o f facts or will be based on related legal
theories. Much of counsel’s time will be devoted generally
to the litigation as a whole, m aking it difficult to divide the
hours expended on a claim-by-claim basis. Such a lawsuit
cannot be viewed as a series o f discrete claims. Instead the
district court should focus on the significance of the
overall relief obtainted by the plaintiff in relation to the
hours reasonably expended on the litigation.
461 U.S. at 435, 103 S.Ct. at 1940.
On rem and, the district court m ust follow the mandates of
Hensley as explicated above.
In sum, this court finds the am ounts awarded by the lower
court inadequate.8 This case is therefore rem anded to the
district court with instructions to award fees for services per
formed by plaintiffs’ attorneys prior to 1972; award fees for ap
pellate work; reevaluate the hourly rate to be awarded to
Williams and Dinkins for the period subsequent to May 30,
1972 in accordance with the direction o f this decision;
reevaluate the court time for Williams and Dinkins with a
minimum departure point of $1,200 and $650 respectively for
the period subsequent to May 30, 1972; decrease the award for
the time spent by plaintiffs’ attorneys to bring in the city
government as a third party defendant; follow the m andate of
Hensley to determine which claims plaintiffs have succeeded
upon and those which they have not, and to calculate the a t
8 This court also notes that the entire amount awarded to plaintiffs’
attorneys for 28 years of service in this case was less than one-half of
the $288,000 which the Board paid its attorneys to defend against the
litigation in just one five-year period, i.e. 1978-1982.
— A-17 —
torneys’ compensable hours accordingly; allow a 25% increase
as a contingency factor; and decrease the overall award by 10%
for duplication of services and the reconstruction o f time
records from memory.
In view o f the foregoing, this case is Reversed and Remanded.
Costs awarded to plaintiffs.
Kennedy, Circuit Judge, concurring in part and dissenting in
part, joined by Engel and Wellford, JJ . I concur in the
court’s holding that the 1971 desegregation order did not con
stitute a distinct break in the litigation. I dissent, however, from
the m ajority’s decision to overrule Buian v. Baughard, 687 F.2d
859 (6th Cir. 1982). I remain convinced that the award o f costs
on appeal is a prerequisite to the award o f appellate attorney
fees under 42 U .S .C . § 1988.
The statutory authorization for attorney fees in civil rights
cases provides that
In any action or proceeding to enforce a provision o f sec
tions 1981, 1982, 1983, 1985, and 1986 of this title . . . the
court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as
part o f the costs.
42 U .S .C . § 1988.
Traditionally, the Supreme Court, the courts o f appeals and
the district courts each issue cost awards only for the p ro
ceedings within their own sphere. Rule 39(a) o f the Federal
Rules o f Appellate Procedure governs the award o f costs on ap
peal. It provides that costs shall be awarded to the prevailing
party, unless otherwise ordered. W here each party prevails in
part, costs are allowed only as ordered by the court. Normally, a
prevailing party receives costs and a partially prevailing party
— A-18
receives partial costs.1 In the rare situation where the appellate
court disallows costs entirely, the court very likely has a good
reason for doing so, a reason which may or may not be apparent
to the district court when it decides the subsequent m otion for
attorney fees. I do not see how we can allow a district court the
discretion to award appellate attorney fees “ as part o f the
costs” when we have refrained from awarding costs.1 2
M oreover, I do not see how we can, consistent with the
Eleventh Am endm ent, allow an award o f attorney fees against a
state other than as part o f costs. Section 1988 does not expressly
abrogate Eleventh Am endment immunity, cf. Atascadero State
Hospital v. Scanlon, 105 S.Ct. 3142, 3148 (“ Congress must ex
press its intention to abrogate the Eleventh Am endment in un
1 If there is an appeal and a cross appeal and the plaintiff prevails on
one and loses on the other, costs would ordinarily be awarded only on
the successful appeal. Although the attorney’s servcies could not
readily be divided, under Hensley v. Eckerhart, 461 U.S. 424 (1983),
the fee award could be reduced according to the degree of success.
This need not involve the courts of appeals in determining the amount
of the fees. The court need only state in its award of costs that at
torney fees should be reduced by the appropriate percentage because
of the limited success.
21 am not insensitive to the harshness of disallowing attorney fees in
the instant case because of the absence of cost awards. I do not know
why the panels in the 1972 and 1982 Kelley decisions ordered each par
ty to bear its own costs on appeal. Appellants prevailed on the school
district’s appeal in 1972 and also prevailed in 1982. If it was through
inadvertence, or through a perception that each party had partially
prevailed and the costs balanced out, the cost issue could have been
made the subject of a motion for rehearing by appellants, in anticipa
tion of seeking attorney’s fees. Appellants never filed such a motion.
The 1982 Kelley case, however, was decided six weeks prior to Buian
and appellants might reasonably not have realized what the failure to
award costs portended for their impending attorney’s fee motion.
Because of the harshness of the result, we might decline to apply
Buian in the present case. I would prefer this approach to the majori
ty’s discarding of Buian.
— A-19 —
mistakable language in the statute itself” ), and the Supreme
Court has upheld § 1988 fee awards against states only because
they are part o f costs:
The Act imposes attorney’s fees “ as part of the costs.”
Costs have traditionally been awarded without regard for
the States’ Eleventh Amendment immunity. The practice
o f awarding costs against the States goes back to 1849 in
this Court. The Court has never viewed the Eleventh
Am endm ent as barring such awards, even in suits between
States and individual litigants.
Just as a federal court may treat a State like any other
litigant when it assesses costs, so also may Congress amend
its definition o f taxable costs and have the amended class
o f costs apply to the States, as it does to all other litigants,
without expressly stating that it intends to abrogate the
States’ Eleventh Amendment immunity. For it would be
absurd to require an express reference to state litigants
whenever a filing fee, or a new item, such as an expert
witness’ fee, is added to the category o f taxable costs.
There is ample precedent for Congress’ decision to
authorize an award of attorney’s fees as an item o f costs. . .
It is much too late to single out attorney’s fees as the one
kind o f litigation cost whose recovery may not be authoriz
ed by Congress without an express statutory waiver of the
S tate’s immunity.
H utto v. Finney, 437 U.S. 678, 695-98 (1978) (citations and
footnotes om itted).
As recently as this term , the Court has shown that it regards
the “ as part o f the costs” language as more than mere
surplusage. In M arek v. Chesny, 105 S.Ct. 3012, the Court held
that the “ costs” contem plated by Federal Rule o f Civil P ro
cedure 68 — which shifts to the plaintiff all costs incurred subse
A-20 —
quent to a rejected settlement offer which is not exceeded by the
eventual recovery — include attorney’s fees awardable under §
1988. Plaintiffs in M arek had rejected a $100,000 settlement o f
fer in their § 1983 suit, and subsequently won only a $60,000
judgm ent. Thus, under Rule 68, plaintiffs could not recover
“ costs” incurred during the period after the settlement offer.
Plaintiffs nonetheless sought attorney’s fees for that period.
The Court ruled that since § 1988 defined attorney’s fees as
costs, fees could not be awarded for any period for which costs
were not awarded:
Pursuant to . . . § 1988, a prevailing party in a § 1983 ac
tion may be awarded attorney’s fees “ as part of the costs.”
Since Congress expressly included A ttorney’s fees as
“ costs” available to plaintiff in a § 1983 suit, such fees are
subject to the cost-shifting provision o f Rule 68.
105 S.Ct. at 3017.
In dissent, Justice Brennan argued that it was wrong to let a
determ ination o f attorney’s fees, which is governed by a
reasonableness standard, be subordinated to and subsumed by a
rule on costs, which may have a much more mechanical applica
tion. 105 S.Ct. at 3020-21. In the instant case, I take it that
essentially this sentiment underlies the m ajority’s decision to
reverse Buian. But the Supreme Court rejected that argum ent in
favor o f the “ plain language” view that since attorney’s fees are
defined as part o f costs, they cannot be separately awarded
where costs are not awarded.
Notwithstanding all o f this, the m ajority, with an absence of
analysis and a dearth o f support, “ concludes that an award of
costs pursuant to Fed .R .A pp.P . 39(a) is separate and distinct
from and totally unrelated to an award o f attorney’s fees pur
suant to the directions o f § 1988.” The m ajority adds that
“ [wjhile it is true that § 1988 expressly states that attorney’s fees
‘may be awarded as part o f the costs,’ neither the legislative
history nor the express language o f § 1988 m andates the conclu
sion expressed in Buian.” (Emphasis added). I do not know
what that “ express language” m andates if not B ulan’s conclu
sion. The refusal to award costs precludes the award o f any part
o f the costs, and the express language o f section 1988 defines a t
torney’s fees as part o f the costs, as discussed in H utto and
Marek.
The m ajority cites two cases as support for rejecting the
Buian approach. While the district court in Willie M . by Singer
v. H unt, 564 F. Supp. 363 (W .D .N .C . 1983), did explicitly re
ject Buian, the m ajority’s subsequent history o f Willie M. as
“ a f f ’d a s m od ified” disguises the Fourth Circuit’s partial rever
sal.
In Willie M „ the plaintiffs prevailed overall in a class action,
but defendants prevailed on one issue —- the scope o f the class
—- which was the subject o f an independent appeal. The ap
pellate court awarded no costs on that appeal. Nonetheless, the
district court allowed plaintiffs to recover attorney’s fees, in
cluding fees for time spent on the lost appeal, because they had
largely prevailed overall. The Fourth Circuit reversed that part
o f the decision and disallowed attorney fees for the lost appeal
because plaintiffs had not prevailed — precisely the reason, of
course, that costs had not been awarded. See Willie M . v.
H unt, 732 F.2d 383, 386-87 (1984). Thus, the Fourth Circuit
reversed the district court on the very issue that brought Buian
into play, albeit in such a way that the court avoided altogether
a Buian-type question.
N ot only was the Willie M . district court reversed,3 but one of
the cases it relied upon in rejecting Buian had been reversed by
— A-21 —
3 In addition to Willie M., the majority cites Robinson v. Kim
brough, 620 F.2d 468 (10th Cir. 1980), in which the court did allow an
attorney’s fee award where costs had been denied. Aside from my
plain disagreement with the Robinson holding, it does not appear that
a Buian-typz question was squarely addressed by that court.
— A-22 —
the Supreme Court. White v. N ew Hampshire D epartm ent o f
Em ploym ent Security, 629 F.2d 697 (1st Cir. 1980), had held
that Fed.R .C iv.P . 59(e)’s time limit on m otions to alter or
amend judgm ents applied to m otions for attorney’s fees. The
court rejected the argum ent that fees are more like costs than
like part o f the judgm ent and thus should be governed by
Fed.R .C iv.P . 54(d), which contains no time limit.
The Supreme Court, however, reversed White, see 455 U.S.
445 (1982), holding that a m otion for attorney’s fees was not
like a m otion to alter or amend the judgm ent and so not subject
to Rule 59(e). The Court declined, though, to rule specifically
on whether a request for fees was an application for costs, as
three circuits had held, see Johnson v. Snyder, 639 F.2d 316,
317 (6th Cir. 1981);4 B ond v. Stanton, 630 F.2d 1231, 1234 (7th
Cir. 1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir.
1980), or was a third kind o f creature, related neither to costs
nor judgm ent, as the Eighth Circuit had held in Obin v. District
No. 9 International Association o f M achinists and Aerospace
Workers, 651 F.2d 574 (1981), and as the Ninth Circuit later
held in M etcalf v. Borba, 681 F.2d 1183 (1982).5
It appears that the m ajority now tacitly adopts the Obin view
that a claim for attorney’s fees is not a request for costs nor part
o f the judgm ent but “ a m atter collateral to and independent of
the merits o f the litigation.” 651 F.2d at 583. Justice
Blackmun’s concurring opinion in White called for the Court to
go “ one step further” and affirmatively adopt the Obin view
rather than the “ costs” view o f Johnson, B ond and Knighton.
4 In Snyder, we held that “ attorney’s fees awarded under § 1988 are
awarded as costs and are not controlled by the time limitations” of
Rule 59(e). 639 F.2d at 317. The majority’s opinion would seem
necessarily to overrule Snyder as well as Buian.
5 The Willie M. district court relied on Obin and Metcalf in addition
to White.
— A-23
See 455 U.S. at 455-56. Evidently, a m ajority o f the Court was
not willing to do that. Nor am 1.
1 also dissent from the holding that the District Court abused
its discretion in awarding Mr. Williams an hourly rate o f $100
for all hours since 1972. The evidence was that rates for a t
torneys with Mr. W illiams’ experience were from $100 to $200
per hour at or about the time of the hearing in 1982. However,
$100 per hour was the generally prevailing rate. There was also
undisputed testimony that rates generally were lower in the early
and middle 1970’s. The court relies on Mr. W illiams’ testimony
that he charges $120 per hour. It overlooks his testimony that
he began charging $120 per hour in January 1981. (App. at
783). Based on the evidence before it, I do not believe the
District Court abused its discretion by adopting the $100 rate,
although it might have been preferable to approve a lower rate
for earlier years and a higher rate for later years.
Wellford, Circuit Judge. (Concurring in part and dissenting
in part.) I concur with Judge Kennedy in her discussion and
reiteration o f the rationale o f Buian v. Boughard, 687 F.2d 859
(6th Cir. 1982).
I concur in Judge Krupansky’s opinion to the extent it ap
proves o f the district court’s overall reduction o f fees by 10 per
cent for duplicaiton o f services. The opinion observes that a
larger reduction under appropriate circumstances may be
justified where there has been a failure “ to keep contem
poraneous time records.” The fact that only a modest reduc
tion was directed by the trial judge is evidence o f a sensitive and
understanding approach by him in considering all o f the aspects
o f the attorney fee request in this case under standards set by the
Supreme C o u rt.1
1 “ Where the documentation of hours is inadequate, the district
court may reduce the award accordingly. The district court also
should exclude from this initial fee caluclation hours that were not
‘reasonably expended.’ ” Hensley v. Eckerhart, 461 U.S. 424,
433-434 (1983).
— A-24 —
I also concur in the court’s judgm ent that the district cou rt’s
conclusion properly refused to award fees for the period during
1979 and 1980 hearings when the essentially frivolous testimony
o f plaintiffs’ expert witness, Scott, was discussed and produced
but later repudiated. I agree, furtherm ore, that defendant
Board should not be held liable for the costs plaintiffs incurred
in seeking an injunction against the M ayor and Council, since
the latter, if anyone, should be responsible, rather than defen
dant Board, for those expenses. In addition, I agree that there
should be a rem and to consider to what extent, if at all, plain
tiffs should be considered “ prevailing parties” on certain issues
still pending, or in respect to charges or claims in which plain
tiffs failed to succeed before the trial court (or this court). See
Hensley v. Eckerhart, 461 U.S. 424 (1983) (a case in which some
of plaintiffs’ counsel participated as did the A ttorney General
o f the State o f Tennessee by amicus brief).2 The district court,
on rem and, may find some of the claims made by plaintiffs
essentially “ unrelated” to those on which plaintiffs were found
to prevail. See Hensley, 461 U.S. at 435. As the Supreme Court
stated:
If, on the other hand, a p laintiff has achieved only par
tial or limited success, the product o f hours reasonably ex
pended on the litigation as a whole time a reasonable hour
ly rate may be an excessive am ount.
* * *
That the plaintiff is a “ prevailing party” therefore may say
little about whether the expenditure o f counsel’s time was
reasonable in relation to the success achieved.
* * *
2 It should be noted that the successful plaintiffs’ attorney in
Hensley claimed nearly 3000 hours of time and requested a rate of $40
to $65 an hour from 1975 through 1979.
— A-25
There is no precise rule or form ula for making these deter
m inations. The district court may attem pt to identify
specific hours that should be eliminated, or it may simply
reduce the award to account for limited success. The court
necessarily has discretion in making this equitable judg
ment.
Hensley, 461 U.S. at 436-37.
I respectfully dissent, however, from other portions o f the
m ajority opinion. I would hold Buian v. Baughard, 687 F.2d
859 (6th Cir. 1982) to be essentially sound in requiring a deter
m ination about allowance o f costs as a condition for subsequent
allowance o f fees in civil rights attorney fee award requests.
Buian is not inconsistent with the practice of pragmatic referral
to the district court for determ ination of the reasonable amount
o f an attorney fee award in a proper case. See Smith v. Detroit
Board o f Education, 728 F,2d 359 (6th Cir. 1984). I would not
overrule Buian, and I would affirm the judgm ent below to the
extent that it applied Buian to reduce a portion o f the fee re
quest.
W ith regard to the hourly and daily rates awarded to counsel
Williams and Dinkins, remembering that “ the fee applicant
bears the burden o f establishing entitlement . . . and docum en
ting the appropriate hours and hourly ra tes,” and emphasizing
that “ the district court has discretion in determining the am ount
o f a fee aw ard ,” Hensley, 461 U.S. at 437, (emphasis added), I
would affirm the district court’s action as being within his
sound discretion. M uch o f the fee award claim in this case goes
back to services rendered a num ber of years ago when, in Ten
nessee, it was rare for an attorney in any case to claim an hourly
or daily fee equal to that awarded by the district court in this
case. It should be remembered that plaintiffs’ attorneys are en
A-26
titled only to an award for reasonable value o f their services.3 In
perhaps this court’s most frequently cited case dealing with a t
torney fees in a com parable school desegregation situation,4
reference was m ade to an allowance o f fees through 1977 to an
experienced and successful civil rights lead counsel, Louis
Lucas, who requested $75 an hour for services in a 1977 hearing.
That same attorney, involved in num erous school desegregation
cases in this Circuit (as has been M r. Williams, one o f the clai
m an t’s here), requested an hourly fee o f $125 an hour for ser
vices in a 1978 hearing in the Memphis desegregation case. He
was awarded $75 an hour by this court for non-courtroom time
because the requested rate was found to be too high. Nor-
thcross, 611 F.2d at 641. In that same case, another experienced
civil rights p laintiff attorney, William Caldwell, requested $60
an hour for his services under the 1976 Civil Rights A ttorney’s
Fees Awards Act; Elijah Noel, J r., in a com parable position
with M r. Dinkins, requested $50 an hour for his services to
plaintiffs through 1977, $60 thereafter. Id.
In Oliver v. Kalamazoo Board o f Education, 576 F.2d 714
(6th Cir. 1978), another leading school desegregation case com
parable to the one at issue, lead counsel Lucas (and others in the
category o f M r. W illiams)5 received fees ranging from $60 to
$100 an hour for courtroom services, and this allowance, in
3 As a former district judge for many years in the Western District
of Tennessee and, before 1971, a practicing lawyer in the largest city in
the state, my own experience indicates that Judge Wiseman was, if
anything, generous in his award and rate of compensation granted to
plaintiffs’ attorneys.
4 Northcross v. Board o f Education o f Memphis City Schools, 611
F.2d 624 (6th Cir. 1979), cert, denied, 447 U.S. 911 (1980).
5 Including a judge on this court, then chief counsel for the NAACP
Legal & Defense Fund, and a federal district judge in Michigan.
A-27 —
stead o f “ bonus aw ards,” was approved by this court. O ther
attorneys in the case for plaintiffs were awarded fees ranging
from $35 to $60. Oliver, 576 F.2d at 717 n .3. M r. Williams was
awarded total fees o f $47,833 by this court arising from his ser
vices to plaintiffs as lead counsel over approxim ately fifteen
years in another school case with a similar appellate history, in
cluding Supreme Court hearings. M onroe v. Board o f Com m is
sioners o f the City o f Jackson, Tennessee, 581 F.2d 581 (6th
Cir. 1978). See also M onroe v. Board o f Commissioners o f
Education o f M adison County, Tennessee, 583 F.2d 263 (6th
Cir. 1976). The rates ultimately approved in those cases were
less than those approved by Judge W iseman after the full hear
ing conducted by him before m aking his decision.
I therefore depart from the m ajority view that an increase in
hourly rates or daily rates over and above that established in the
reasonable discretion o f the trial judge, who is familiar with
local practice and local fee rates, was m andated. The m ajority
seems unm indful o f the Supreme C ourt’s advice:
We reemphasize that the district court has discretion in
determining the am ount o f a fee award. This is ap
propriate in view of the district court’s superior understan
ding o f the litigation and the desirability o f avoiding fre
quent appellate review of what essentially are factual m at
ters.
Hensley, 461 U.S. at 437.
With the contingency factor added in this case, for service
beginning in 1972, plaintiffs attorneys are also being rewarded
on a substantially higher basis than were plaintiffs’ attorneys in
Northcross and in Oliver. No added contingency factor at all
was allowed in Hensley.
The concurring opinion o f Justice Brennan in Hensley, 461
U.S. at 455, admonishes:
If a district court has articulated a fair explanation for
its fee award in a given case, the court of appeals should
not reverse or rem and the judgm ent unless the award is so
low as to provide clearly inadequate compensation [em
phasis added].
Finally, 1 would affirm the trial judge in his holding that the
May 30, 1972 order in this case was a type o f “ final order settl
ing the issue o f attorney’s fees to that p o in t.” Northcross, 611
F.2d at 635. That order, as found by the district court, disposed
o f all outstanding phases o f the case; it was a “ discrete step”
deciding the then pending issues arising from the change in the
law brought about by Breen v. School Board o f N ew Kent
County, 391 U.S. 430 (1968). As in all substantial school
desegregation cases of this type, including the Northcross case,
the court retained jurisdiction for such implementation that ex
perience and future changing circumstances might bring about.
This did not prevent the 1972 order, affirm ed by this court,
from being the kind of “ discrete step or distinct break in the
proceedings” described in Northcross. It was a comprehensive
order directing desegregation o f the m etropolitan school system
from which both sides unsuccessfully appealed up to the United
States Supreme Court. There were no further substantial hear
ings in this case until 1978, further evidencing that the district
court was not clearly erroneous in making a factual finding to
that effect and limiting the fee award in light o f that finding. It
is abundantly clear that m ajor school desegregation cases of this
kind may extend over many years, but that interim final orders
may come about reflecting a distinct conclusion o f then pending
issues, which in light o f the changes in applicable law, (such as
Green, supra, and Swann v. Charlotte-Mecklenburg Board, 402
U.S. 1 (1972)) may be revised to reflect current standards or
new, unforeseen conditions.
In sum, I dissent because I believe Judge Wiseman acted fair
ly and within the bounds o f his sound discretion and applied the
law reasonably to the facts o f the case.
— A-28 —
A-29 —
A PPEN D IX B
UNITED STATES COURT OF APPEA LS
FOR TH E SIXTH CIRCUIT
Nos. 83-5175, 5243
Robert W. Kelley, et al.,
Plaintiffs-Appellants, Cross-Appellees,
vs.
M etropolitan County Board o f Education, et al.
Defendants-Appellees, Cross-Appellants.
On Appeal from the United States District Court
for the Middle District o f Tennessee.
Decided and Filed February 12, 1985
Before Edwards* and Krupansky, Circuit Judges; and
Celebrezze, Senior Circuit Judge.
Krupansky, Circuit Judge. Plaintiffs Robert W. Kelley and
the class he represents appealed and defendant M etropolitan
County Board o f Education (Board) cross-appealed the district
cou rt’s award o f attorney’s fees in this school desegregation
case.
Commencing on the heels o f the landm ark case o f Brown v.
Board o f Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954), the instant case has spawned volumes o f court opinions
and orders at both the district and appellate levels. These deci
sions need not be recounted in detail here. See, e.g., Kelley v.
M etropolitan County Board o f Education, 687 F.2d 814 (1982);
Kelley v. M etropolitan County Board o f Education, 463 F.2d
* The Hon. George Edwards took senior status January 15, 1985.
A-30 —
732 (6th C ir.), cert, denied, 409 U.S. 1001 (1972); Kelley v.
M etropolitan County Board o f Education, 511 F.Supp. 1363
(M .D. Tenn. 1981). Suffice to say that the litigation un
doubtedly required hundreds o f hours o f work by the plaintiffs’
and B oard’s attorneys.
The plaintiffs’ initial m otion for attorney’s fees, pursuant to
the Educational Amendments o f 1972, 20 U .S .C . § 1617, was
filed on February 8, 1974. Subsequent filings amended the pen
ding m otion to include a prayer for relief under the 1976 Civil
Rights A ttorney’s Fees Act, 42 U .S .C . § 1988. In December,
1982, the trial court conducted hearings on the issue o f a t
torney’s fees. On February 23, 1983, the court awarded plain
tiffs’ fees and costs o f approximately $139,500 or less than ten
percent o f the am ount requested.* 1 The discrepancy between the
am ount requested and that awarded formed the basis o f plain
tiff’s appeal.
Specifically, plaintiffs alleged error in the district cou rt’s
refusal to award attorney’s fees for services rendered prior to
1972, for declining to award fees for appellate services, and for
abusing its discretion in calculating the daily and hourly rates of
1 In its motion for attorneys fees, plaintiff requested the following
amounts for services rendered in the 28-year history of the case:
(1) Avon Williams for the firm of Looby and Williams, 917.8 hours
at $200 per hour and 36.4 days at $1,500 a day, totaling $238,160 plus
a 100 percent contingency factor for a total of $476,320;
(2) Avon Williams, individually, 1,211.5 hours at $200 per hour and
87.3 days at $1,500 per day, totaling $373,250 plus a 100 percent con
tingency factor for a total of $746,500;
(3) Richard Dinkins, individually, 215.6 hours at $120 per hour and
38 days at $1,500 a day, totaling $82,872, plus a 100 percent con
tingency factor for a total of $165,744.
An additional $126,000 was requested for work performed by Legal
Defense Fund attorneys, but the denial of this request was not
challenged on appeal.
— A-31 —
plaintiffs’ attorneys Avon Williams and Richard Dinkins. The
defendant B oard’s cross-appeal challenged the district cou rt’s
failure to discern the specific extent to which plaintiffs prevailed
on each o f their claims, and in holding the Board liable for ser
vices required by plaintiffs’ attorneys due to the intervention of
third parties.
The district cou rt’s denial o f attorney’s fees for services per
formed prior to 1972 was predicated on the court’s determ ina
tion that a 1971 desegregation order, entered by the district
court and approved by the Sixth Circuit, was a “ final o rder”
which term inated entitlement to attorney’s fees under this
court’s m andate in Northcross v. Board o f Education o f M em
phis City Schools, 611 F.2d 624 (6th Cir. 1979), cert, denied,
447 U.S. 911 (1980).
In Northcross, supra, this court cautioned that although a t
torney’s fees could be awarded retroactively for all desegrega
tion cases pending a t the date o f § 1988’s enactm ent, such
retroactive relief was not autom atic. The court stated:
This is not to say that a retroactive award o f attorney’s fees
must be made in all school desegregation cases. Certain in
terim aspects o f the case may have been subject to a final
order settling the issue o f attorney’s fees to that point,
rendering the reopening o f long-settled aspects o f the case
unfair.
611 F.2d at 635.
Based on the above guidance, the Northcross district court
held on rem and that a 1966 consent order entered in the Mem
phis school desegregation case constituted a final order, thus
barring an award o f attorney’s fees for work completed prior to
1966.
In the instant case, the court below concluded that the 1971
order o f the district court, affirm ed in Kelley v. M etropolitan
County Board o f Education, 463 F.2d 732 (6th Cir.), cert.
— A-32 —
denied, 409 U.S. 1001 (1972), constituted a “ final o rder” as did
the 1966 consent decree at issue in Northcross. This court,
however, is not persuaded by that conclusion.
The critical distinction between Northcross and the instant
case is the nature o f the orders at issue. In Northcross, the 1966
order was the result o f a consent decree, drafted by the parties
and approved by the district court. No further litigation was
contem plated by the parties at that time, and in fact neither p a r
ty sought additional relief until the Supreme Court rendered its
historic decision in Green v. County School Board, 391 U.S.
430, 88 S.Ct. 1689 (1968), which clarified plaintiffs’ entitlement
to a more drastic desegregation plan than that provided in the
1966 consent decree.
In contrast, the 1971 order at issue herein was not a result of
an agreement drafted by the parties; to the contrary, the court
expressly rejected the desegregation proposals submitted by the
Board and the plaintiffs in favor o f a plan presented by the
Departm ent o f Health, Education and Welfare (HEW ), an in-
tervenor in the suit. Both the Board and the plaintiffs appealed
the adoption o f the HEW scheme. A nd in upholding the lower
court’s sanctioning o f the HEW plan, this circuit observed:
The order o f the District Judge is the first comprehensive
and potentially effective desegregation order ever entered
in this [17 years of] litigation. The District Judge tells us
that now the remedy is at least in sight.
463 F.2d at 734. Thus, it is clear that neither the parties nor the
appellate court viewed the 1971 order as signaling the termina
tion of the litigation. The plaintiffs have continuously sought
modification of the 1971 plan and subsequent revisions by the
court due to their convictions that the implemented schemes
have had a disparate impact on black children. As recently as
1982, this circuit again remanded the case, concluding that “ [i]n
large measure, the pupil assignment components of this plan do
not withstand constitutional scrutiny.” K e lle y , su p ra , 687 F.2d
at 824.
A-33 —
In view of the foregoing, the 1971 district cou rt’s adoption of
the HEW plan, and this court’s subsequent affirm ance in 1972,
did not represent a distinct break in the litigation. Therefore,
an award o f fees for legal services performed and accrued prior
to 1972 is appropriate.
Plaintiffs have also challenged the trial cou rt’s refusal to
award attorney’s fees for services rendered by their attorneys at
the appellate level. Com pensation was sought, inter alia, for
appellate work which culminated in this court’s 1972 and 1982
Kelley opinions. See, 463 F.2d 732; 687 F.2d 814.
The court below predicated its denial o f compensation for the
services perform ed by the attorneys in the appellate litigation on
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982). In Buian, the
court announced that the award o f costs to a litigant pursuant
to the Federal Rules o f Appellate Procedure was an absolute
prerequisite to the award o f attorney’s fees under § 1988 for ser
vices perform ed at that level. As costs were not awarded by this
court to plaintiffs in conjunction with their previous appeals,
the district court, applying Buian, barred compensation for
their attorneys’ services. However, this court is o f the opinion
that the district court erred in retroactively applying Buian to
the case at bar.
To determine whether a particular decision should be given
retroactive effect, the test articulated in Chevron Oil v. Huson,
404 U.S. 97, 106-107 (1971), must be applied. Under Chevron,
a new decision should be applied to pending cases “ unless it
represents a ‘clear break’ with the past and unless in addition it
would be fundam entally unfair or otherwise burdensom e to ap
ply i t .” Casiano, Jr. v. Heckler, No. 83-3481 (6th Cir. Oct. 22,
1984) {quoting, Lawson v. Truck Drivers, Chauffeurs &
Helpers, Local Union 100, 698 F.2d 250, 254 (6th Cir.), cert,
denied, 104 S.Ct. 69 (1983)). Applying this criteria, it is clear
that Buian should not be retroactively applied to deny compen
A-34 —
sation for appellate work perform ed prior to 1982 by plaintiffs’
attorneys.2
Regarding the initial criterion o f the Chevron test, it is ob
vious that Buian represented a “ clear break” from past law.
Prior to Buian, a civil rights litigant simply had to “ prevail” on
appeal to qualify for attorney’s fees for services rendered at the
appellate level. Buian, however, placed an additional burden
on a litigant, i.e ., seeking and securing an award o f costs from
the appellate court pursuant to Fed .R .A pp.P . 39, as an absolute
prerequisite to receiving attorney’s fees under § 1988.3
As for the other criteria o f Chevron, this court concludes that
it would be fundam entally inequitable to deny plaintiffs’ a t
torneys compensation for appellate work perform ed prior to the
pronouncem ents o f Buian in 1982 because plaintiffs failed to
secure an award o f costs, which was a non-existent prerequisite
prior to 1982. A contrafy disposition would completely under
mine the purpose o f § 1988, which was designed to compensate
attorneys whose efforts resulted in the vindication o f im portant
constitutional rights. Northcross, supra. In sum, Buian is not
applicable to the case at bar for pre-1982 appeals and the trial
2 This court takes judicial notice that while at least one Kelley ap
pellate decision was rendered the same year as Buian, see 687 F.2d at
814, that appeal was argued on December 11, 1981. Thus, the ap
pellate work for which plaintiffs seek compensation was undoubtedly
substantially completed well before Buian was issued in September,
1982.
3 The Buian court itself recognized the burden which its decision
placed on the court as well as on a litigant. The court observd:
A special responsibility is placed upon the court of appeals in
awarding costs in civil rights cases that does not exist in other
cases because of the fact that fees for attorney’s services on ap
peal will be denied where costs are not awarded.
687 F.2d at 862, n.5.
A - 3 5
court erred in failing to award attorney’s fees for work related
to those appeals.
In addition to challenging the lower court’s exclusion o f time
accrued for pre-1972 and appellate work, plaintiffs urge that the
hourly and daily rates awarded by the lower court for legal ser
vices rendered by Avon Williams and Richard Dinkins were in
adequate. Com pensation at the rate o f $200 per hour and
$1,500 per day in court was requested for Williams, and $120
hourly and $1,500 per day sought for D inkins’ services. Subse
quent to evaluating the prevailing rate charged by experienced
and skillful lawyers in the Nashville area, the court below deter
mined that the m arket rate in federal court litigation for an a t
torney o f W illiams’ experience, ability and stature was $100 per
hour and $1,000 per day o f trial. The rate for Dinkins, who was
introduced into the case upon gaining admission to the bar, was
$60 per hour and $600 per day in court. The court also rejected
plaintiffs’ prayer for a 100 percent contingency to compensate
for the difficulty o f the prolonged litigation and its unpopulari
ty in some sectors o f the community. The court then reduced
the am ount 10 percent to account for duplication o f services
and possible miscalculations in the attorneys’ reconstruction o f
their time records.
In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-719 (5th Cir. 1974), the Fifth Circuit listed 12 factors to be
considered in determining an appropriate award o f attorney’s
fees. These factors include, inter alia, the time and labor re
quired, novelty and difficulty o f the litigation, the customary
fee, and the experience, reputation and ability o f the attorneys.
In Northcross, supra, this court observed that Johnson did not
provide guidance as to the relative weight to be accorded each
factor, and suggested that “ an analytical approach” be applied.
Northcross instructs:
We conclude that an analytical approach, grounded in the
num ber o f hours expended on the case, will take into ac
count all o f the relevant factors and will lead to a
— A-36
reasonable result. The num ber o f hours o f work
autom atically reflect the “ time and labor involved,” “ the
novelty and difficulty o f the question,” and “ preclusion of
other em ploym ent.” The attorney’s normal hourly billing
rate will reflect “ the skill requisite to perform the legal ser
vice properly ,” “ the custom ary fee ,” and the “ experience,
reputation and ability o f the atto rney .” Adjustm ents up
ward may be made to reflect the contingency o f the fee,
unusual time limitations and the “ undesirability” o f the
case.
611 F.2d at 642-43.
Fairly read, Northcross advises tha t the attorney’s normal
hourly billing rate should be a key focal point in award deter
m inations. In the recent case o f Blum v. Stenson, ____ U.S.
____ , 104 S.Ct. 1541 (1984), the Supreme Court further in
structed that “ reasonable rates” are to be determined under §
1988 “ according to the prevailing m arket rates in the relevant
com m unity.” 104 S.Ct. at 1547.
In contesting the $100 per hour award to Williams, plaintiffs
cited testim ony adduced at the hearing on the m otion for fees
evincing (1) W illiams’ reputation as an experienced and suc
cessful civil rights lawyer; (2) that “ customary fees” for similar
work in the Nashville area ranged from $100 to $200 an hour;
(3) that W illiams’ hourly fee for office work was $120; and (4)
that the unpopularity o f the case has resulted in threats against
Williams. Testimony that the standard fee for someone of
Dinkins’ stature was $65 to $130 an hour was also cited to sup
port plaintiffs’ contention that Dinkins’ award was inadequate.
In addition, plaintiffs recounted the unpopularity and length of
the litigation in arguing that the contingency fee should be
higher than the 25 percent awarded by the court below.
Considering in tandem the pronouncem ents o f the Supreme
Court and Sixth Circuit delineating the correct m ethod for
calculating attorney’s fees, this court concludes that Williams
is entitled to at least a minimum rate o f $120 per hour. This
am ount is a reasonable point o f departure in calculating
W illiams’ hourly rate in accordance with prevailing Supreme
Court and this circuit’s directions and is within the param eters
o f the evidence that “ custom ary fees’’ for similar work in the
Nashville area ranged between $100 and $200 an hour. The
award to Dinkins m ust also be reconsidered using as a minimum
point o f departure an am ount o f $65 per hour as the prevailing
value o f his skills in the Nashville legal community. The daily
(in court) rate for Williams and Dinkins should also be upgrad
ed to at least $1,200 and $650 respectively.
The lower court’s overall reduction o f fees by 10 percent for
duplication o f services is justified under the holdings of
Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979) and
Oliver v. Kalamazoo Board o f Education, 576 F.2d 714, 715 n.2
(6th Cir. 1976) (per curiam). In addition, the Supreme Court
recently approved a 30 percent overall reduction in a case, like
the one at bar, where the attorneys failed to keep contem
poraneous time records and thus had to reconstruct them from
memory. See Hensley v. E ckerhart,____ U .S .------- , 103 S.Ct.
1933, 1939 (1983). However, the reduction in Hensley was also
designed to compensate for the attorney’s inexperience. Thus,
the 20 percent reduction in the instant case is reasonable and
should not be disturbed.
Plaintiffs also challenged the district cou rt’s refusal to award
fees for the two days and seven hours plaintiffs’ attorneys a t
tributed to discussions with Dr. Scott, the plaintiffs’ witness at
the 1979 and 1980 hearings. The court’s opinion was based on
its finding that Dr. Scott’s testimony was frivolous under Nor-
thcross, supra, 611 F.2d at 636, in light o f plaintiffs’ repudia
tion o f much o f Dr. Scott’s testimony after the court had adm it
ted it. The district cou rt’s conclusion in this respect is proper.
In its cross-appeal, the defendants alleged that the trial court
erred in failing to exclude fees for services rendered by plain
— A-37 —
— A-38
tiffs’ attorneys arising from claims and proceedings stemming
from the intervention or joining o f other parties. These “ o u t
side” parties were:
1. The M etropolitan (Nashville/Davidson Co.) Mayor
and Council, which plaintiffs joined as defendants in
1972. (Plaintiffs prevailed in their effort to enjoin
these defendants from interfering with the desegrega
tion plan.)
2. The intervention by the Board itself as a third party
plaintiff in 1973 to present its claim against third-
party defendant HEW .
3. A group o f otherwise unidentified “ intervenors” who
proposed a desegregation plan to the district court in
1979.
4. Another unidentified group of intervenors who
entered the case to propose the creation o f a magnet
school.
The defendant Board further noted that it vehemently oppos
ed the intervention of the third and fourth group o f intervenors
listed above.
Plaintiffs responded to the B oard’s argum ent on this issue by
observing that it was the B oard’s failure to dismantle its dual
school system that occasioned the intervention and prolonged
the litigation in this lawsuit.
Defendants relied primarily on Haycraft v. Hollenbach, 606
F.2d 128 (6th Cir. 1979) (per curiam) for the proposition that
plaintiffs should look to the intervenors, rather than the defen
dant, for expenses occurred as a result of the intervention.
However, Haycraft is distinguishable from the instant case in
several im portant respects.
In Haycraft, L. J. Hollenbach, a county judge o f Jefferson
County, Kentucky, intervened on behalf o f “ all the people of
A-39 —
Jefferson C ounty” in a desegregation case pending in federal
court. The judge proposed an alternative desegregation plan
which protracted the litigation and resulted in several appeals.
Following the appeals, the original plaintiffs sought an award of
attorney’s fees to be assessed against the intervenor pursuant to
the Emergency School Aid Act o f 1972, 20 U .S .C . § 1617. In
granting the order, the district court held the $11,312 award
against the intervenor appropriate, as plaintiffs would have sav
ed countless hours were it not for the intervenor. On appeal,
this circuit affirm ed the award, holding that the plaintiffs
became the “ prevailing party” as regarded Hollenbach “ when
the district court rejected his desegregation plan and dismissed
him as an intervenor.” 606 F.2d at 132.
Thus, the award assessed against the intervenor in H ay craft
was predicated on the court’s finding that the intervenor
obstructed rather than aided in the development o f the court-
ordered desegregation scheme. The award was also sought by
the plaintiffs directly from the intervenor. In the instant case
there is no evidence that the intervenors in any way interfered
with the progress o f the litigation, and thus plaintiffs would not,
under the H ay craft analysis, be entitled to rem uneration from
the intervenors. The question remains, o f course, whether the
plaintiff is entitled to attorney’s fees fro m the Board for the ex
tra time which the plaintiffs’ counsel devoted to issues raised by
the intervenors.
There appears to be no case law which directly resolves this
issue. Com m on sense dictates that the Board should not be held
liable for the costs plaintiffs incurred in seeking an injunction
against the M etropolitan Mayor and Council, as that group was
itself a third-party defendant, unrelated to the Board. Thus, if
any party is liable for those expenses, it would be the
M etropolitan government and not the Board. As to the other
intervenors, however, (i.e. the Board itself as a third-party
plaintiff, the group which proposed a desegregation plan in
1979, and the advocates o f the magnet school) plaintiffs’ argu
A - 4 0 —
m ent that the B oard’s failure to dismantle its dual school system
caused the intervention is persuasive. Thus, plaintiffs are entitl
ed to com pensation from the Board for all legal services except
those resulting from plaintiffs’ addition o f the M etropolitan
M ayor and Council as third-party defendants.
D efendant’s final argum ent on cross appeal was that the
court erred in not determining the specific extent to which plain
tiffs had prevailed in the action. The defendant contended that
while the cou rt’s focus on the “ overall results” o f the case was
sufficient to satisfy the “ prevailing party” requirement as defin
ed by this circuit in Northcross, supra, a recent Supreme Court
decision has changed the standard. Defendant cites Hensley v.
E ckerh a rt,____ U .S______ _ 103 S.Ct. 1933 (1983) for the p ro
position that the Northcross approach has been modified, and
that awards under § 1988 now require that a party ’s request for
attorney’s fees be carefully scrutinized as to the extent o f success
on each claim, and further, that time spent on unsuccessful
claims that are distinct from successful claims should be exclud
ed in determining a reasonable fee.4 Thus, defendant suggested
that under the m andate o f Hensley, the case should be rem and
ed with instructions to examine the extent to which plaintiffs
have prevailed on each substantive issue before awarding fees.
The court agrees.
In Hensley, plaintiffs brought a lawsuit on behalf o f all per
sons involuntarily confined at the Forensic Unit o f the Fulton
State Hospital in Missouri. The complaint challenged the treat
ment and conditions at the Forensic Unit as presenting a wide
variety o f alleged constitutional infringements. The court
found constitutional violations in five o f six general areas cited
in plaintiffs’ complaint: physical environment; individual trea t
4 Specifically, defendant alleged that plaintiffs have been erroneous
ly awarded fees for time spent pursuing unsuccessful charges of con
tempt against the Board, yet unresolved matters as to faculty composi
tion, and their effort to keep Pearl High School open.
— A-41 —
m ent plans; least restrictive environment; visitation, telephone
and mail privileges; and seclusion and restraint. However, it
found the sixth general area, staffing, to be sufficient. 103
S .Q . at 1936.
In ruling on an attorney’s fees m otion, the Hensley district
court first determined that plaintiffs were prevailing parties
even though they had not succeeded on all six claims, and fu r
ther refused to eliminate from the award hours spent on the un
successful claim. The Supreme Court reversed and rem anded,
reasoning that two questions must be addressed when a m otion
for attorney’s fees is presented in a case involving num erous
claims: (1) did the plaintiff fail to prevail on claims that were
unrelated to the claims on which he succeeded?; and (2) did the
p laintiff achieve a level o f success that makes the hours
reasonably expended a satisfactory basis for m aking a fee
award? 103 S.Ct. at 1940.
However, Hensley, does not, as defendant suggested, repre
sent a total break from the approach taken regarding the
“ prevailing party” issue by this circuit in Northcross. Rather,
the Hensley court noted that in some cases, the litigation cannot
be “ viewed as a series o f discrete claim s.” Id. In such a case,
the Court states, the overall result will still be the prim ary factor
in determining attorneys fees.
The Hensley court instructs:
M any civil rights cases will present only a single claim. In
other cases the p lain tiff’s claims for relief will involve a
comm on core o f facts or will be based on related legal
theories. M uch o f counsel’s time will be devoted generally
to the litigation as a whole, making it difficult to divide the
hours expended on a claim-by-claim basis. Such a lawsuit
cannot be viewed as a series o f discrete claims. Instead the
district court should focus on the significance o f the
overall relief obtained by the plaintiff in relation to the
hours reasonably expended on the litigation.
103 S.C t. at 1940.
A-42 —
On rem and, the district court m ust follow the m andates o f
Hensley as explicated above.
In sum, this court finds the am ounts awarded by the lower
court inadequate.5 This case is therefore rem anded to the
district court with instructions to award fees for services per
formed by plaintiffs’ attorneys prior to 1972; award fees for ap
pellate work; reevaluate the hourly rate to be awarded to
Williams and Dinkins in accordance with the direction o f this
decision; reevaluate the court time for Williams and Dinkins
with a minimum departure point o f $1,200 and $650 respective
ly; decrease the award for the time spent by plaintiffs’ attorneys
to bring in the city government as a third party defendant;
follow the m andate o f Hensley, supra, to determine which
claims plaintiffs have succeeded upon and those which they
have not, and to calculate the attorneys’ compensable hours ac
cordingly; allow a 25% increase as a contingency factor; and
decrease the overall award by 10% for duplication o f services
and the reconstruction o f time records from memory.
In view of the foregoing this case is Reversed and Remanded.
Costs awarded to plaintiffs.
5 This court also notes that the entire amount awarded to plaintiffs’
attorneys for 28 years of service in this case was less than one-half of
the $288,000 which the Board paid its attorneys to defend against the
litigation in just one five-year period, i.e. 1978-1982.
— A-43
A PPEN D IX C
Robert W. Kelley, et al.,
Plaintiffs,
v.
M etropolitan County Board of
Education of Nashville and
Davidson County, Tennessee, et
al.,
Defendants.
Nos. 2094, 2956
United States District Court,
M .D. Tennessee,
Nashville Division.
Feb. 23, 1983.
M EM ORANDUM
W ISEM AN, District Judge.
I. Background
This lawsuit to compel desegregation o f the Nashville school
system was originally filed in 1955. The long history of this
litigation is summarized in Kelley v. M etropolitan City Board o f
Education, 492 F.Supp. 167, 168-78 (M.D. Tenn.1980), and
need not be repeated here. The current phase o f the litigation
involves four distinct topics: (1) pupil assignment; (2) teacher
and staff assignment; (3) plaintiffs’ request for attorney’s fees;
and (4) plaintiffs’ petition for contem pt against defendant
school board. The pupil assignment plan took precedence, by
agreement o f the parties, leaving the three other issues to be
resolved at a later date. This Court held hearings on the rem ain
ing three issues on December 6, 7, and 8, 1982, at which time the
parties reached a consent agreement on the question o f teacher
and staff assignments.
_ A-44 —
Plaintiffs now seek an award o f attorney’s fees pursuant to 42
U .S .C . § 1988. Since 1955, Mr. Avon N. Williams, Jr., has
represented the plaintiffs in this action. In the early years o f this
lawsuit, Williams teamed with his form er law partner, M r. Z.
Alexander Looby. Since 1977, Williams has been joined by his
associate, M r. Richard H. Dinkins, in this m atter. No
attorney’s fees have ever been awarded in the history o f this
litigation.
II. Preliminary matters
A. Applicability o f the Civil R ights A tto rn e y ’s Fees A c t
Defendant school board has not contested plaintiffs’ claim
that the Civil Rights A ttorney’s Fees Act o f 1976, 42 U .S .C . §
1988, applies to this litigation. The Act declares that, in suits
brought under 42 U .S .C . § 1983 and certain other statutes,
federal courts may award prevailing parties reasonable a t
torney’s fees as part o f the costs. The Act applies to all cases
pending on the date o f its enactment. H utto v. Finney, 437 U.S.
678, 695 n. 23, 98 S.Ct. 2565, 2575, n. 23, 57 L .Ed.2d 522, 537
(1978). The Sixth Circuit has held that the word “ pending”
. . . means that all the issues in the case have not been final
ly resolved. So long as there was an active controversy in
the case at the time the Act became effective, the Act ap
plies to authorize fees for the entire case, unless special cir
cumstances exist which would make an award manifestly
unjust.
Northcross v. Board o f Education o f M em phis City Schools,
611 F.2d 624, 634 (6th Cir.1979), cert, denied, 447 U.S. 911, 100
S.Ct. 2999, 64 L .Ed.2d 862 (1980).1
1 Northcross also held that the determination of whether fees were
to be awarded for the entire case may depend on the existence of a
“ final order” at any time in the litigation. This specific topic is ad
dressed infra.
— A-45
In Weisenberger v. Huecker, 593 F.2d 49 (6th Cir.1979), the
merits o f the case were resolved well before passage o f the Act,
but the application for attorney’s fees had not been resolved
when the Act became effective. The Sixth Circuit held that
“ [sjince the Act was in existence at the time the district court
made the fee awards, it is applicable to the instant cases.” Id. at
53.
In this case, plaintiffs requested fees in m otions dated
February 8, 1974, April 11, 1975, and October 16, 1975. Those
m otions, and other im portant m otions including substantive
issues, were pending when the Act took effect in 1976. Thus,
Weisenberger and Northcross govern, and, as a threshold ques
tion, the Act applies
B. Prevailing party
As a preliminary m atter, plaintiffs must first be found to be
the prevailing party before attorney’s fees can be awarded under
42 U .S .C . § 1988. Defendants claim that plaintiffs are not the
prevailing party because (1) the Board stipulated ab initio that
its schools were unconstitutionally segregated, and (2) the plain
tiffs have never submitted a desegregation plan which has been
implemented by the Court.
D efendants’ position appears to be an overly narrow ap
proach to the definition of prevailing party. The Sixth Circuit
has stated:
In accordance with the broad remedial purpose of the
statute, parties may be considered to have prevailed when
they have vindicated im portant rights through a consent
judgm ent or without formally obtaining relief.
Northcross, supra, at 633.
Adhering to the Sixth Circuit’s m andate to look at this ques
tion in practical terms, it is clear that plaintiffs in this case are
the prevailing party in this litigation. Plaintiffs have clearly
A-46 —
prevailed as to the basic holding o f this Court throughout the
twenty-seven year course o f this case that some type o f court-
ordered remedy was necessary to alleviate the effects o f prior de
ju re segregation.
Furtherm ore, it is not necessary for plaintiffs to have prevail
ed on every single legal position or argument asserted. To the
contrary, plaintiffs are entitled to fees for “ all time reasonably
spent on a m atte r.’’ Northcross, supra, at 636. In Northcross,
the Court stated:
The fact that some of that time was spent in pursuing
issues on research which was ultimately unproductive, re
jected by the court, or m ooted by intervening events is
wholly irrelevant. So long as the party has prevailed on the
case as a whole the district courts are to allow compensa
tion for hours expended on unsuccessful research or litiga
tion, unless the positions asserted are frivolous or in bad
faith. There are num erous practical reasons why a court
may not be perm itted to dissect a lawsuit into “ issues and
parts o f issues as to which the plaintiffs did not prevail,”
especially by decimating the total hours claimed with ar
bitrary percentages. Suffice it to say, however, that C on
gress has m andated that a prevailing party ’s attorney
should be compensated “ as is traditional with attorneys
compensated by a fee-paying client, for all time reasonably
expended on a m atter.” We know o f no “ traditional”
m ethod of billing whereby an attorney offers a discount
based upon his or her failure to prevail on “ issues or parts
o f issues.” Furtherm ore, it would hardly further our m an
date to use the “ broadest and most flexible remedies
available” to us to enforce the civil rights laws if we were
so directly to discourage innovative and vigorous lawyering
in a changing area of the law. That m andate is best served
by encouraging attorneys to take the most advantageous
position on their clients’ behalf that is possible in good
faith. The fact that these lawyers advocated a desegrega
— A - 4 7 —
tion remedy o f broader scope and faster pace than was
ultim ately adop ted canno t be considered to be
unreasonable. Their clients have prevailed; the Memphis
school system is desegregated.
Id. This approach was recently reaffirm ed by the Sixth Circuit.
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) at 862. N or
th cross also allowed fees to be awarded for time spent litigating
the fees question itself. Northcross, supra, at 643.
Thus, plaintiffs have prevailed and are entitled to fees for all
time reasonably spent on m atters involved in this case.
III. Com putation o f H ours and Fees
A. P la in tiffs’ Request
Messrs. Williams and Dinkins have filed affidavits wherein
they reconstruct their time spent on this lawsuit. A lthough
Williams and Dinkins have not kept contem poraneously m ain
tained records, they claim that the reconstruction adequately
represents the services which they have perform ed. Plaintiffs
request fees in the following amounts:
(1) Avon Williams, for the firm o f Looby and Williams, 917.8
hours at $200 per hour and 36.4 days at $1,500 a day, totaling
$238,160 plus a 100 percent contingency factor for a total o f
$476,320;
(2) Avon Williams, individually, 1,211.5 hours at $200 per
hour and 87.3 days at $1,500 a day, totaling $373,250 plus a 100
percent contingency factor for a total o f $746,500;
(3) Richard Dinkins, individually, 215.6 hours at $120 per
hour and 38 days at $1,500 a day, totaling $82,872, plus a 100
percent contingency factor for a total o f $165,744;
(4) N orm an J. Chachkin, for the Legal Defense Fund, 43
hours at $200 per hour, totaling $8,600, plus a 100 percent con
tingency factor for a total o f $17,200;
_ A-48 —
(5) Bill Lann Lee, for the Legal Defense Fund, 270.4 hours at
$115 per hour, totaling $31,096, plus a 100 percent contingency
factor for a total o f $62,192;
(6) Legal Defense Fund, costs and expenses totaling
$47,488.15.
In awarding fees, a district court is not compelled to accept
autom atically all the hours claimed, but any reductions must be
clearly identified and the reason for dis-allowing claims must be
articulated. Northcross, supra, at 636-37. This Court will a t
tem pt to do just that.
B. The “Final Order” Question
At the outset o f the hearings held in December 1982, this
Court made two rulings from the bench in order to limit the
p roof at those proceedings. First, this Court held that no fees
could be awarded for services rendered prior to May 30, 1972,
on which date the Sixth Circuit affirm ed the desegregation plan
entered by this Court in 1971. Second, this Court ruled that it
lacked the authority to award fees for appellate work in this
case. That ruling is addressed infra.
Turning to the “ final o rder” question, one o f the many issues
addressed in Northcross, the Sixth Circuit there ruled that a
prior final order in that school desegregation case could bar an
award o f fees for services rendered prior to that date. 611 F.2d
at 635. A fter ruling that plaintiffs’ attorneys should recover
fees which the district court had denied in part, the Sixth Circuit
stated:
This is not to say that a retroactive award o f attorney’s fees
must be made in all school desegregation cases. Certain in
terim aspects o f the cae m ay have been subject to a fin a l
order settling the issue o f a ttorney’s fees to that point,
rendering the reopening o f long-settled aspects o f the case
unfair.
— A-49
Northcross, supra, at 635. (emphasis added). The Court held
that the fee awarded should cover at least back to 1968 when the
suit became active again following new pronouncem ents from
the United States Supreme Court which directly affected the
Memphis case. The Court said, however:
There is an unresolved dispute concerning the pre-1968
period, which we leave to the district court to resolve. The
School Board contended below that the district court ac
tion of July 29, 1966, the last action before the Supreme
C ourt’s Green [v. County School Bd., 391 U.S. 430, 88
S.Ct. 1689, 20 L .Ed.2d 716] decision, was a “ consent
o rder” which undertook to dispose of all outstanding
phases o f the case, including fees and costs. It is true that a
long, complicated case o f this sort can result in several
“ final” orders, which in the interests o f finality are deem
ed to dispose o f all foregoing issues. Absent a timely ap
peal, a party is bound by the order and any later challenge
is deemed to be a collateral attack judged by different, and
m ore stringent standards than on direct review. Bradley [v.
School Bd. o f Richmond}, supra, 416 U.S. [696] at 710-11,
94 S.Ct. 2006 [at 2015-16, 40 L .Ed.2d 476]. If the defen
dants are correct in their characterization o f the 1966 ac
tion in the interest of finality, plaintiffs should not be per
mitted to reopen that judgm ent in order to obtain a t
torneys’ fees. We leave this m atter to the district court.
However, from 1968 until shortly before the application
for fees was made by the plaintiffs, the case was in con
tinuous, active litigation. Not only was there no “ final
judgm ent” which could reaonably be said to settle the
issue of fees during that period, but there was no time to
raise the m atter of fees at all.
Id.
On rem and, the district court denied plaintiffs’ request for
fees for services rendered prior to 1968. Northcross v. Board o f
A-50 —
Education o f M em phis City Schools, Civil Action No. 3931,
January 14, 1982 (W.D. Tenn.). Judge McRae gave the follow
ing explanation:
The Court finds that the services expended on the po r
tion of the case occurring prior to the filing on 26 July 1968
of p laintiff’s m otion for further relief should be denied. A
plan o f desegregation in this cause conforming to what was
thought to be the then existing legal standards, was
developed and filed jointly by the parties on 22 July 1966.
That plan was intended and treated by the parties as a final
plan of desegregation, and a distinct break in the p ro
ceedings in this case occurred at that time. Previous to that
time there had been two appeals taken successfully by the
plaintiffs. The 1968 motion for further relief did not grow
out o f any evident intention o f these parties to litigate that
plan further, but was the direct result o f subsequent
Supreme Court decisions in the case o f Green v. County
School Board o f N ew Kent County, Virginia, 391 U.S. 430
[88 S.Ct. 1689, 20 L .Ed.2d 716] (1968), and its companion
cases which represented very significant new development
in the law pertaining to school desegregation. This case at
bar is similar to the case of Wheeler v. Durham City Board
o f Education, 585 F.2d 618 (4th C ir. 1978), wherein the
Court held that plaintiffs might timely file for a fee
resulting from the continuous hearings and appeals on
their motion for further relief, but denied a fee for earlier
“ discrete steps” in the litigation.
Id. at 6, 7.
The immediate question, then, is whether the May 30, 1972,
order was the type of “ final o rder,” disposing o f all issues at
that time, contemplated by Northcross. This Court holds that
the order o f the Sixth Circuit on May 30, 1972, upholding the
1971 plan adopted by Judge M orton, was such a final order.
Plaintiffs have argued that the 1972 order was not a N or
thcross style “ final order” because:
— A-51
(1) the 1971 plan was appealed by both parties;
(2) the district court specifically retained jurisdiction;
(3) the plan ws affirm ed with the Sixth Circuit observing that
m atters regarding implem entation could “ be brought to the
District Judge’s attention when the case is back before h im .”
Kelley v. M etropolitan Cty. Bd. o f Education, 463 F.2d 732 at
746;
(4) there were further proceedings in 1971-72 in which the
Board was allegedly adjudged to have engaged in bad faith im
plem entation;
(5) plaintiffs continued to seek more effective desegregation
and relief for the transportation burden placed on younger
black students (Reply o f Plaintiffs to Petition o f Defendants fil
ed on July 18, 1972, filed August 10, 1972), but those requests
were not heard by the Court until 1978; and
(6) defendants sought m odifications of the 1971 plan and
those requests were also not heard until 1978.
Defendants rely heavily on Judge M cRae’s opinion in Nor-
thcross after the Sixth Circuit rem anded the case to him to
determine whether the 1966 plan in that case was a “ final
o rder.” The Board stated that the 1972 order in Kelley, like the
1966 order in Northcross, disposed o f all outstanding phases of
the case, including fees and costs. Citing language from N or
thcross, the Board calls the 1972 order a “ discrete step” which
constitutes a final order and precludes a retroactive award of a t
torney’s fees. Furtherm ore, the Board claims that the
precipitating factor for the 1972 order was Green v. School
Board o f N ew K ent County, 391 U.S. 430, 88 S.Ct. 1689, 20
L .Ed.2d 716 (1968), just as it was in Northcross.
The Court is not persuaded that the 1972 order cannot be
considered “ final” due to the fact that unlike the Northcross
case, there was no consent order agreed upon by the parties
— A-52 —
here. A n order entered by any court is no less “ final” simply
because one or more o f the parties may have lingering doubts
about the conclusion reached by the court. Nor is this C ourt’s
immediate decision altered by the fact that this court in 1971 ex
pressly retained jurisdiction in the case. Where equitable relief
is sought, a court will often retain jurisdiction to oversee the
remedy and m onitor its efficacy.
Plaintiffs’ claim that no final order was entered because the
Sixth Circuit stated that matters involving implem entation
could be brought to the District C ourt’s attention also fails to
support plaintiffs’ position. By focusing on the implementation
o f the plan, plaintiffs at the time necessarily acknowledged that
the plan adopted was a comprehensive one which addressed all
outstanding issues, leaving only matters of implem entation to
be addressed.
Finally, plaintiffs argue that the 1972 order left open the
question o f whether the plan adopted by the District Court in
1971 placed a disproportionate burden on young black children.
This claim is erroneous. Plaintiffs took that argument to the
Sixth Circuit and that Court refused to overturn the District
C ourt’s plan in that regard. The Court stated:
Plaintiffs-Cross-appellants claim that the grade school
plan discriminates against Negro students in the lowest
elementary grades.
The feature complained of in this issue is the transporta
tion o f black students in grades 1-4 to outlying schools,
paralleled by the cross-transportation o f white students in
grades 5-6. In this regard the HEW plan appears to follow
the pattern o f the school plan approved in Swann. Swann
v. Board o f Education, supra, 402 U.S. [1] at 10, 91 S.Ct.
1267 [at 1273], 28 L .Ed.2d 554. The Supreme Court made
no reference to this feature, and neither in Swann nor in
this case does the record seem to provide adequate ra
tionale for it. We do not believe, however, that we can ap
A-53
propriately hold that the District Judge abused his discre
tion in approving the HEW plan which (like the plan in
Swann) incorporated this feature.
463 F.2d at 746. Although the Court stated that the District
Court could, at a later date, evaluate any adverse effects o f the
plan, plaintiffs’ specific claim was heard and rejected on May
30, 1972, when the Sixth Circuit ruled that the District Court
had not abused its discretion. Thus, as of May 30, 1972, there
were no unresolved issues in the case.
This Court agrees with the defendants’ characterization of
the 1972 order as a “ discrete step” which constituted a “ distinct
break in the proceedings” at that time. See Northcross, Civil
Action No. 3931, January 14, 1982 (W .D .Tenn.). At the time
of the 1972 order, the Sixth Circuit clearly viewed the 1971 plan
as a “ discrete step ,” saying:
The order o f the District Judge is the first comprehensive
and potentially effective desegregation order ever entered
in this litigation. The District Judge tells us that now the
remedy is at least in sight.
463 F.2d at 734. Consequently, this Court concludes that the
1972 order was a “ final o rder” and that “ plaintiffs should not
be perm itted to reopen that judgm ent in order to obtain a t
torneys’ fees.” Northcross, supra, 611 F.2d at 635.
P lain tiffs’ reliance on M onroe v. Board o f Commissioners o f
Jackson, 581 F.2d 581 (6th Cir. 1978) does not alter this C ourt’s
conclusion. There, the Sixth Circuit ordered $42,833 in fees to
be paid under section 1988 for work done since the beginning of
the litigation, even though a prior order in 1972 awarded $5,000
for costs incurred up to that point. M onroe, supra, at 582. This
Court will not follow plaintiffs’ reading o f M onroe for two
reasons. First, M onroe was a brief, per curiam opinion written
in 1978. Its impact is reduced significantly by Northcross,
which was written in 1979 and is regarded across the nation as
— A-54
one o f the most thorough and comprehensive opinions on the
award o f fees under section 1988. Insofar as a plausible reading
of M onroe conflicts with the Northcross guidelines, this Court
will view Northcross as taking precedence. Second, because this
Court is bound by Northcross, the “ final order” factor is im
portant. In this regard, M onroe can be distinguished from the
instant case because the 1972 order of the Sixth Circuit in
M onroe which approved the $5,000 fee award was clearly not a
“ final o rder,” whereas the instant case did have a “ final order”
entered (coincidentally, in 1972).2
Thus, plaintiffs are only entitled to fees incurred after May
30, 1972. Therefore, plaintiffs’ request of fees will be reduced
by 917.8 hours and 36.4 days for the work performed by
Williams in the law firm o f Looby and Williams, and 550.7
hours and 44 days for work perform ed solo by Williams bet
ween 1969 and May 30, 1972. The total am ount disallowed here
comes to 1,468.5 hours and 80.4 days.
2 Plaintiffs also cite Monroe to contest the Board’s claim that the
Sixth Circuit’s failure to award plaintiffs’ request for fees in 1972 is
res judicata for purposes of this question. Because this Court’s con
clusion is based on the “ final order” language of Northcross, it is not
necessary to address the Board’s res judicata analysis. The Court
believes, however, that it would be inappropriate to give res judicata
or collateral estoppel effect to the 1972 denial of fees. There, plaintiffs
sought fees only for double costs incurred due to the Board’s appeal
of the 1971 plan, an appeal which plaintiffs described as “ frivolous”
for purposes of their fees request under Rule 38 of the Federal Rules
of Appellate Procedure. Rule 38 allows the court to award double
costs to the prevailing party when frivolous appeals are taken. In the
instant request, plaintiffs seek to recover fees for the entire costs of
the litigation, not just for costs incurred while prevailing on a
frivolous appeal. Consequently, this Court would not be inclined to
give the Sixth Circuit’s sub silentio denial of fees under Rule 38 res
judicata effect in this action.
A-55
C. Fees fo r Appellate W ork
Plaintiffs have included in their request for fees am ounts
representing work perform ed at the appellate level. At the hear
ings on the fee issue, this Court ruled that it would not entertain
requests for fees for appellate work, relying on Bulan v.
Baughard, 687 F.2d 859 (6th Cir.1982). There, the Sixth Circuit
held that
. . . a party m ust be entitled to receive costs on appeal as a
result o f the appellate court’s award o f costs before it is
eligible to receive attorney’s fees as a part of those costs
under section 1988.
Id., at 861.
Plaintiffs have encouraged this Court to adopt a narrow
reading o f Bulan, but, due to the lack o f any limiting language
in the opinion itself, this Court cannot adhere to plaintiffs’
itnerpretation. In fact, the Bulan opinion contains clear and
broad statements which this Court will follow unless subse
quently ordered otherwise. The Sixth Circuit in Bulan stated:
It is the duty o f this Court to determine who is entitled to
costs on appeal. In this case, in which no costs were taxed
on the appeal on the merits, it would also violate this
C ourt’s m andate for the District Court to award attorney’s
fees as part o f the costs under section 1988 because the par
ty prevailed on the case as a whole but was not awarded
costs on appeal.
Id. at 862. (emphasis added).
Bulan went on to say:
In summary, we read section 1988 as requiring that a t
torney’s fees be awarded to the party who has prevailed on
the case as a whole only if costs are awarded to that party
at the level for which fees for services are sought: the
A-56 —
district court, the court o f appeals, and the Supreme
Court.
Id.
This distinction between the district courts, the court of ap
peals, and the Supreme Court is jurisdictional in nature, accor
ding to Buian:
Cost determinations are m ade at three levels: the district
court, the court o f appeals, and the Supreme Court. Each
court has jurisdiction to make de novo awards of costs on
ly for proceedings within its jurisdiction.
Id. at 861.
Thus, because section 1988 permits an award o f attorney’s
fees “ as a part o f the costs,” H utto v. Finney, 437 U.S. 678,
679, 693-99, 98 S.Ct. 2565, 2568, 2574-78, 57 L .Ed.2d 522
(1978), this Court cannot, according to Buian, award fees for
appellate work. Plaintiffs m ust petition the Court o f Appeals,
not the District Court, for appellate work. The Court notes that
in its most recent decision, dated July 27, 1982, the Sixth Circuit
ruled that each party was to bear its own costs on that appeal,
which also precludes an award of fees for that appellate work.
Buian, supra, at 861.
Consequently, plaintiffs’ request will be reduced by the
number o f hours and days spent on appeals since May 30, 1972.
This amounts to 115.8 hours and five days for Williams and
17.5 hours and two days for Dinkins. The request o f M r. Bill
Lann Lee, who worked only on appeals, is denied in its entirety.
As for Norm an Chachkin, only 10 hours o f his work was per
formed after May 30, 1972, and those hours were spent on an
appellate brief. Thus, his request is denied in its entirety.
D. Other Specific Objections
Defendants have submitted several other objections to plain
tiffs’ fee requests which will be addressed herein.
— A-57 —
Services Rendered by Mr. Looby
The School Board argues that because the estate o f Z. Alex
ander Looby was closed on November 22, 1972, there is no enti
ty or person remaining to receive compensation for services per
formed by Looby. M oreover, the Board states that plaintiffs
did not submit a breakdow n of what services M r. Looby per
form ed, and therefore, the hours representing work done by
M r. Looby and M r. Williams should be reduced by one-half.
The position o f the School Board is well taken. However, the
Court need not address this factor due to its earlier ruling that
no fees can be awarded for services rendered prior to the May
30, 1972, final order, which includes the services performed
jointly by Messrs. Looby and Williams.
“ Collateral” Issues
Defendants also call into question time spent by plaintiffs’
counsel on what defendants characterize as “ collateral” issues.
Specifically, defendants cite time allocated for m atters involving
intervening parties, amicus curiae, or third parties, and not the
Board o f E ducation .3 Defendants argue that they are not
responsible for the conduct o f these parties, and time spent on
those m atters should be disallowed as part of plaintiffs’ fee re
quest as against the Board. A lthough the defendants did not ex
ercise control over these particular facets o f the litigation, the
congressional intent behind the Act militates against adhering to
defendant’s approach. Congress has m andated that a prevailing
party ’s attorney should be compensated by a fee-paying client,
for all time reasonably expended on a m atte r.” Northcross,
3 Defendant also challenges time spent regarding plaintiffs’ request
for an injunction against the Board of Education and the Tennessee
Secondary School Athletic Association prohibiting the proposed
suspension of Cameron High School from participating in organized
sports. Proceedings on this matter were held in 1968, which means
that the disputed time here has already been disallowed pursuant to
the “ final order” ruling as stated earlier in this opinion.
— A-58 —
supra, at 636. A private sector attorney normally would be
obligated to stay fully briefed on all aspects of his or her
lawsuit, and no less should be expected o f the plaintiffs’ a t
torneys in this action. Thus, the hours spent on these m atters
shall be included in the award.
Fees fo r Time Spent with Consultants
Next, defendants question fees claimed for preparation with
two consultants, Dr. Hugh Scott and H G H Associates. Defen
dants point out that H G H Associates proposed a desegregation
plan which was never approved, either at the trial or appellate
levels. However, it is no t proper for this Court to dissect this
lawsuit into “ issues and parts o f issues as to which plaintiffs did
not prevail.” Northcross, supra, at 636. The fees claimed for
time spent with H G H Associates shall be allowed.
The question raised by defendants regarding Dr. Hugh Scott
poses an altogether different concern. Defendants note that the
hearings held by this Court in 1979 and 1980 involved lengthy
testimony by Dr. Hugh Scott, p laintiffs’ expert witness. Fur
ther, defendants point out that this C ourt’s plan, as adopted in
1981, was based in a significant measure upon the testimony of
Dr. Scott, only to have the plaintiffs subsequently alter their
position. In essence, plaintiffs rejected the testim ony of Dr.
Scott in subsequent proceedings. As to this factual issue, the
position taken by defendants is entirely correct. Plaintiffs
selected this expert, put him on the witness stand, and knew
what his testimony would be. Plaintiffs then made the decision
to repudiate Dr. Scott’s testimony, and that decision now acts
to estop plaintiffs from seeking to recover attorney’s fees
against the defendant Board o f Education for time spent by
plaintiffs’ counsel with Dr. Scott. The Sixth Circuit has held
that
[s]o long as the party has prevailed on the case as a whole
the district courts are to allow compensation for hours ex
pended on unsuccessful research or litigation, unless the
positions asserted are frivolous or in bad faith.
— A-59 —
Northcross, supra, at 636. Assuming that standard applies in
this instance as well, p laintiffs’ utilization and subsequent
repudiation o f Dr. Scott was frivolous, at best. P laintiffs’ re
quest will be reduced only by the time clearly attributable to Dr.
Scott. General requests regarding expert witnesses will not be
eliminated since the Court cannot determine from the affidavits
whether those requests pertain to Dr. Scott or other consultants.
The am ount deducted here am ounts to two days and three hours
for M r. Williams and four hours for M r. Dinkins.
“ Unreasonable and Excessive” Requests
Defendants have sifted through the affidavits o f p laintiffs’
counsel and registered specific line-item objections to the
am ount o f hours claimed for specific tasks perform ed. On a
more general level, defendants seek an across-the-board percen
tage reduction for duplication o f effort am ong defense counsel
and the fact that the request for fees was based on reconstructed
time records. On the latter topic, defendants argue that plain
tiffs’ local counsel have never kept daily time records, even
though they submitted requests for fees as long ago as 1974.
Defendants propose a twenty percent reduction for reconstruc
tion, based on the figure utilized by the district court in Heig/er
v. Gatter, 463 F.Supp. 802 (E .D .Pa.I978). Further, defendants
argue for a ten percent reduction due to duplication o f effort
among the several attorneys for the plaintiffs, citing
Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir.1979); Oliver
v. Kalamazoo Board o f Education, 576 F.2d 714, 715 n. 2 (6th
Cir. 1976).
Rather than pick out specific hours which appear to be
duplicative or excessive, this Court has taken the “ arbitrary but
essentially fair” approach of deducting a small percentage of
the total hours to eliminate duplication and padding, and to
compensate for the use o f reconstructed time records. See N or
thcross, supra, at 636-637. A ten percent reduction here ap
— A-60
pears reasonable.4 Thus, plaintiffs’ request shall be reduced by
54.5 hours and 3.83 days for Mr. Williams and 19.81 hours and
3.6 days for Mr. Dinkins.
E. Reasonable Rates
Northcross makes it clear that a fee based on the hours o f ser
vice provided is the preferred approach to this request. 611 F.2d
at 636. The level o f com pensation should represent the fair
m arket value o f the services provided, and despite defendants’
arguments to the contrary, current hourly rates should be ap
plied to plaintiffs’ request, even for work perform ed some ten
years ago. This m ethod avoids the problem of taking proof to
ascertain the fair m arket value o f the services in prior years and,
more im portantly, takes inflation into account.
This Court has taken extensive p roof regarding the prevailing
rate charged by experienced and skillful trial lawyers in this
region. From this proof, it appears that the prevailing m arket
rate in federal court litigation for an attorney of Mr. W illiams’
experience and skill is $100 per hour for office work and $1,000
per trial day. A resonable rate in this community for Mr.
Dinkins, who began working on this case upon gaining admis
sion to the Bar five years ago, is $60 per hour and $600 per trial
day.
4 A slightly higher percentage would be appropriate here, but for
two factors. First, plaintiffs’ counsel in their affidavits claim that
their documented request did not include a significant amount of time
spent on phone calls, and other conversations among counsel. This
statement militates against defendants’ request to apply a twenty per
cent reduction for reconstructed time as well as defendants’ objections
as to padding. Second, some, but not all, of the duplication here oc
curred between local counsel and those attorneys hired for appellate
purposes. This Court has already ruled that it cannot entertain plain
tiffs’ request for appellate fees and consequently, that duplication
cannot be considered here. Thus, a total reduction of ten percent ap
pears to be an appropriate response to defendants’ objections as to
padding, duplication, and the use of reconstructed time records.
A-61 —
Plaintiffs request that a contingency factor o f 100 percent be
applied to these rates, due in part to the difficulty o f this pro
longed litigation and its unpopularity in some sectors o f the
com m unity.5 An upward adjustm ent o f some type is ap
propriate here. See Northcross, supra, at 638-39. However, the
Court concludes that a contingency factor o f 25 percent will
serve the purpose o f the Fees Award Act, i.e ., to attract compe
tent counsel by awarding adequate compensation. W ith this up
ward adjustm ent o f 25 percent, the effective hourly rate will be
$125 for M r. Williams and $75 for M r. Dinkins. The daily rate
for trial time will be $1,250 and $750, respectively.
The compensation for M r. Williams is based on the following
calculations:
M r. Williams (individually):
less
1,221.5 hrs.
550.7 hrs.
87.3 days (amount requested)
44.0 days (pre May 30, 1972 work)
less
660.8 hrs.
115.8 hrs.
43.3 days
5.0 days (appellate work)
less
545.0 hrs.
3.0 hrs.
38.3 days
2.0 days (time spent with Dr. Scott)
less
542.0 hrs.
54.2 hrs.
36.3 days
3.63 (10% across the board reduction)
— 487.8 hrs. 32.67 days
487.8 hrs. X $125 ($100/hr. X .25 contingency) = $ 60,975.00
32.67 days X $1,250 ($l,000/day X .25 contingency) = 40,837.50
Total = $101,812.50
5 Defendants argue that no contingency factor should be applied
because the defendants stipulated at the very beginning of this litiga
tion that Nashville schools were unconstitutionally segregated. While
this is true, this lawsuit has progressed through several distinct phases,
and plaintiffs have, for the most part, continued to prevail, over and
above the initial inquiry as to defendants’ liability.
A-62 —
Mr. Dinkirs:
215.6 hrs. 38.0 days (amount requested)
less 17.5 hrs. 2.0 days (appellant work)
= 198.1 hrs. 36.0 days
less 4.0 hrs. 0.0 days (time spent with Dr. Scott)
= 194.1 hrs. 36.0 days
less 19.41 3.60 (107r across the board reduction)
= 174.69 hrs. 32.4 days
174.69 hrs. X $75 ($60/hr. X .25 contingency) = $ 13,101,75
32.4 days X $750 ($600/day X .25 contingency) = 24,300.00
Total = $ 37,401.75
Mr. Williams shall be awarded $101,812.50 and Mr. Dinkins
shall receive $37,401.75.
IV. Costs
Plaintiffs also seek to recover certain costs pursuant to Rule
54(d), Fed.R .C iv.P ., and Rule 13 o f the Local Rules o f Court.
Included in plaintiffs’ request are costs involved with plain
tiffs’ appeal o f this C ourt’s 1981 decision to the Sixth Circuit
Court o f Appeals. The Sixth Circuit affirm ed this C ourt’s opi
nion in part, reversed in part, and rem anded for further pro
ceedings. That order, dated July 27, 1982, also stated that each
party was to bear its own costs in the appeal. Order dated July
27, 1982, No. 81-5370. Thus, plaintiffs’ request for costs incur
red on that appeal has already been denied, and cannot be
granted by this Court. This eliminates all o f the costs incurred
by M r. Lee, and those expenses incurred by M r. Williams after
April 17, 1981, the date o f this C ourt’s order.
P laintiffs’ Bill of Costs also contains items which traditional
ly are not taxable as costs under Rule 54(d). These include ex
penditures for postage, telephone calls, photocopying, and
meals. See 10 W right, Miller & Kane, Federal Practice and Pro
cedure: Civil 2d § 2677 at 370-373 (1983). Certain o f the expen
ditures are taxable, however, under section 1988. The Sixth Cir
cuit in Northcross held that
A-63 —
[t]he authority granted in section 1988 to award a
“ reasonable attorney’s fee” included the authority to
award those reasonable out-of-pocket expenses incurred
by the attorney which are normally charged to a fee-paying
client, in the course o f providing legal services. Reasonable
photocopying, paralegal expenses, and travel and
telephone costs are thus recoverable pursuant to the
statutory authority o f § 1988.
611 F.2d at 639.
Thus, plaintiffs are entitled to recover costs incurred for
postage, telephone calls, parking, photocopying, and air
freight, as long as those costs were incurred prior to April 17,
1981, the date o f this C ourt’s order. As stated earlier, plaintiffs
were ordered to bear their own costs on the appeal. The am ount
taxed as costs here am ounts to $361.28, based on the affidavit
o f M r. Williams. Meal expenses incurred by M r. Williams are
disallowed, as are the undocum ented expenses o f M r. Dinkins,
listed in the am ount o f $144.87.
Turning now to costs relating to expert witnesses, fees paid to
Dr. Scott and H G H Associates to retain their consulting services
are not to be taxed against defendants. Normally, Dr. Scott’s
expenditures for travel, subsistence, and overnight accom m oda
tions would be taxable pursuant to 28 U .S .C . § 1821. However,
“ the award o f statutory costs is a m atter for the district court, in
its best judgm ent as to what was reasonable and necessary.”
Northcross, supra, at 640. For the reasons stated earlier regar
ding the recovery o f a ttorney’s fees for time spent with Dr.
Scott, expenses incurred by Dr. Scott are also disallowed. The
Court finds that it would be unreasonable to tax Dr. Scott’s ex
penses against defendants. Plaintiffs will not be heard at this
juncture to claim that Dr. Scott’s testimony was “ relevant and
m aterial” or “ reasonably necessary” to support the position
taken by the plaintiffs in this litigation. See 6 M oore’s Federal
Practice f 54.77[5.-l] (2d ed. 1982) and cases cited therein.
A-64 —
In all other respects, plaintiffs’ request for costs shall be
denied. Costs in the am ount of $361.28 shall be taxed against
defendants.
V. Contempt
The remaining issue to be resolved at this time is plaintiffs’
petition for contem pt, filed December 27, 1976, and amended
August 28, 1978. The gravamen o f the petition is that defen
dants have intentionally engaged in a course of conduct which
violated this C ourt’s prior order entered in 1971. The 1971
order enjoined the use of portable classrooms for any purpose
other than integration. It also enjoined the Board from
renovating or enlarging by either construction or use o f por
tables any schools that served less than fifteen percent black
students after implem entation o f the plan.
Plaintiffs allege that the Board violated the order by using
portables to implement a kindergarten program , by using the
vacated Turner Elementary School as an annex for Cole
Elementary, by expanding Hillsboro, Glencliff, Hillwood,
M aplewood, Overton, and Stratford High Schools, and by p ro
posing to build a Goodlettsville-M adison Comprehensive High
School.
The Board contends that none of the acts alleged to be viola
tions o f the 1971 order actually constituted proscribed activity
under the restrictions imposed by the Court. M oreover, the
Board states that it diligently notified the Court and counsel for
plaintiffs regarding any changes in the school system, even when
the B oard’s attorney found that the changes were not o f the
type requiring prior judicial approval.
Regarding the use o f portables at the kindergarten level, the
Board argues that the 1971 order never addressed kindergarten,
and that the HEW plan did not include them. The Board relies
on proof presented at hearings in 1979, where a Board official
testified that new portables had been placed only at schools hav-
— A-65 —
ing fifteen percent black students under the plan as im
plem ented, or in elementary schools to perm it the opening o f
kindergartens. Finally, the Board points out that it petitioned
this Court on May 30, 1973, for explicit approval o f the plan to
use portables in this m anner. This petition was never acted
upon.
The Board also notified the Court concerning its plans to use
Turner as an annex for Cole Elementary School, although the
notification did not take the form o f a form al pleading. In im
plementing this change, the Board claims that it relied on the
precedent o f a 1972 ruling by this Court approving the use o f an
annex at Mt. View Elementary School to relieve overcrowding
at Lakeview Elementary School, and on the fact that other
similar changes had been adopted without any expressed dissent
from the Court or counsel for plaintiffs. The Board also claims
that the 1971 order was silent as to the use o f closed, existing
buildings to relieve over-crowding.
Turning now to the B oard’s decision to expand certain high
schools, the Board filed its original proposal with the Court on
M ay 30, 1973. For the next two or three years, the Board claims
to have notified the court o f revisions in its plan for area high
schools. Eventually, the Board implemented some o f the pro
posals under the belief that the schools affected did not come
under the 1971 order because they would continue to m aintain a
black population of fifteen percent or more. P lain tiffs’ other
allegation concerning the proposed Goodlettsville-M adison
Comprehensive Fligh School is not well founded in that the
school was never built. As discussed in this C ourt’s 1980
M em orandum and O rder,6 the 1971 Court order specifically en
joined the construction of the Goodlettsville-M adison High
School as proposed because it was to be located within the city
limits of Goodlettsville, a location which would have prom oted
6 See Kelley, supra, 492 F.Supp. at 174.
—A-66 —
segregation. The subsequent proposal, although never im
plemented, called for the school to be built nearer to the im
aginary line of Briley Parkway extended, thereby arguably con
forming with this C ourt’s directive. According to Board o f
ficials, the school, under this revised plan, had a projected black
enrollment o f greater than twenty percent.
Finally, plaintiffs contend that the B oard’s action in closing
certain schools or changing the grade levels accom modated by
particular schools somehow violate the 1971 order. Plaintiffs
contend that these decisions dem onstrate a discriminatory
motivation on the part o f the Board. The Board has responded
by setting forth its objective reasons for making changes in
schools located in predom inantly white as well as predom inantly
black neighborhoods, and argues these actions in no way con
travened the letter or the spirit o f the 1971 order.
From the preceding recitation of the facts and positions
aseerted by the parties, this Court concludes that the contem pt
charges against the defendants should be dismissed. This Court
finds that the Board, in the years following the 1971 order,
acted in good faith in its efforts to comply with that order while
going about the task o f operating a school system. There is no
proof that the B oard’s actions were a subterfuge to undermine
the 1971 order. Furtherm ore, there is no evidence that the deci
sions of the Board were part o f an effort to block the desegrega
tion o f the M etropolitan Nashville city schools. This court has
consistently found that the Board has acted in good faith in im
plementing the 1971 order. Plaintiffs claim in this m otion for
contem pt that his Court had previously found that the schools
became resegregated due to the B oard’s efforts to accom modate
white flight into the suburbs. This contention is totally incor
rect. During the December 1982 hearings this Court explained
its position on this question, stating that the resegregation
resulted not from actions taken by the Board, but rather, from
the 1971 plan itself which did not include the outer-reaches of
Davidson County. Even after this explanation, plaintiffs con
— A-67
tinue to press forw ard with their inaccurate interpretation of
this C ourt’s opinion. It is time to lay that false allegation to rest
once and for all.
As stated by the Supreme Court and repeated by the Sixth
Circuit, “ the judicial power of contem pt is a potent w eapon.”
R eed v. Cleveland Board o f Education, 607 F.2d 749, 752 (6th
Cir.1979), quoting from IL A , Local 1291 v. Philadelphia
M arine Trade Association, 389 U.S. 64, 76, 88 S.C t. 201, 208,
19 L .Ed.2d 236 (1967). Such a potent weapon should be used
only where the evidence o f contem pt is clear and convincing.
That is not the case here. The Board acted only where, upon the
advice o f counsel, it felt the 1971 order provided some latitude,
and diligently notified the Court and plaintiffs about proposed
changes, although little guidance from this Court was forthcom
ing once the 1971 order was entered. To find the Board in con
tem pt, it would be necessary to read more into the 1971 order
than was stated in its clear and express term s, and that type of
approach to a contem pt charge is impermissible. Reed, supra, at
752 (“ [t]he notice o f a judicial order upon violation o f which a
contem pt finding may properly be based is such notice as would
clearly tell a reasonable person what he is required to do or abs
tain from doing” ).7
The facts in this case, as presented to this Court, simply do
not warrant a finding that the B oard’s actions placed it in con
tem pt.
An appropriate order shall enter.
7 Additionally, Reed states that “ defendants were required to obey
the District Judge’s orders, but they were not required to obey the in
terpretations of the District Judge’s orders made by plaintiffs.” 607
F.2d at 752.
A-68
A PPEN D IX D
IN TH E UNITED STATES DISTRICT COURT
FOR TH E M IDDLE DISTRICT O F TENNESSEE,
NASHVILLE DIVISION
Nos. 2094, 2956
Robert W. Kelley, et al.,
Plaintiffs,
vs.
M etropolitan County Board o f Education o f Nashville
and Davidson County, Tennessee, et al.
Defendants.
ORDER
(Filed February 23, 1983)
In accordance with the accompanying M em orandum , it is
hereby ORDERED that plaintiffs are awarded attorney’s fees
pursuant to 42 U .S .C . § 1988 in the am ount o f $139,214.25;
costs o f $361.28 are taxed against defendants; and plaintiffs’
petition for contem pt is denied.
United States District Judge
A-69 —
APPENDIX E
IN TH E UNITED STATES COURT OF APPEA LS
FO R TH E SIXTH CIRCUIT
Nos: 83-5175, 5243
Robert W. Kelley, et al.,
P laintiffs/A ppellants/Cross-A ppellees,
vs.
M etropolitan County Board o f Education o f Nashville
and Davidson County, Tennessee, et al.
D efendants/Third Party P lain tiffs/
Appellees/Cross-Appellants.
PETITION FOR REHEARING AND FOR
REHEARING EN BANC
The appellees and cross-appellants, M etropolitan County
Board o f Education, et al. (hereinafter M etro), hereby petition
the Court for a rehearing o f the case resulting in the opinion o f
the Court en banc on September 23, 1985. Further, M etro re
quests a rehearing en banc.
M etro’s counsel believe, based upon their reasoned and
studied professional judgm ent, that the C ourt’s decision con
cerning the finality o f the 1971 desegregation plan is contrary
not only to Northcross v. Board o f Education o f M em phis City
Schools, 611 F.2d 624 (6th Cir. 1979), cert, denied, 447 U.S. 911
(1980), but also to the panel’s decision in this case August 19,
1981, granting a stay o f a District Court order, Kelley v.
M etropolitan County Board o f Education, No. 81-5370 (6th
Cir. August 19, 1981) (attached hereto as Exhibit A). Further,
consideration by the full Court, in light o f the previous en banc
determ ination, is necessary to m aintain uniform ity with the
decisions o f this Court in this case.
— A-70
STATEMENT OF THE CASE
This is the attorneys’ fees aspect o f a desegregation case
which began in 1955. In 1971, the District Court ordered the
implementation o f a comprehensive desegregation remedy
utilizing extensive cross-town bussing wherever it was practical
to use this mechanism in the 500 square mile county which con
stituted the school system. Kelley v. M etropolitan County
Board o f Education, M emorandum Opinion, June 28, 1971,
App. 140. The District C ourt’s order was entered pursuant to
Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), and the
new desegregation plan was affirm ed by this Court. Kelley v.
M etropolitan County Board o f Education, 463 F.2d 732 (6th
Cir. 1972).
In 1979, the District Court held that this 1971 plan, well inten-
tioned though it was, and grounded in the circumstances as they
then existed, had the effect o f fostering resegregation over the
years, despite the good faith efforts o f M etro in implementing
the p lan .1 Based upon this finding, consideration o f a new
desegregation plan was ordered, which the District Court ap
proved and ordered implemented on April 17, 1981. Kelley v.
M etropolitan County Board o f Education, 511 F.Supp. 1363
(M .D. Tenn. 1981).
Just a few days before school was to open on August 21, 1981
for the fall semester, the plaintiffs applied to this Court for a
stay o f the District C ourt’s order. A large part o f the plaintiffs’
rationale for the stay o f the new order was that the 1971 plan
was a plan approved by this Court and the District Court pur-
' As the District Court said: “ The resegregation, resulting, at least
in part, from the nonetheless good faith efforts of the school board in
the implementation of the Court’s order amounts to a de jure segrega
tion.” Kelley v. Metropolitan County Board o f Education, 479
F.Supp. 120, 122-23 (M.D. Tenn. 1979). See also Kelley v.
Metropolitan County Board o f Education, 492 F.Supp. 167, 170-71
n. 10-11, 175-76 (M.D. Tenn. 1980).
A-71 —
suant to Swann, and that it was entitled to a “ presumptive
validity.” (P laintiffs’ Application for Stay, attached hereto as
Exhibit B, pp. 12-13.)
Just two days before school was to begin in Nashville, this
C ourt, through its panel, stayed im plem entation o f the District
C ou rt’s new plan with the following language:
In conc lud ing .. .th a t where (as here) after many years a
final school desegregation order has been entered in the
District Court, appealed to this Court and affirm ed, and
then appellants’ petition for certiorari has been denied in
the Supreme Court, it is in the public interest for a propos
ed departure from said order to be reviewed by the Court
o f Appeals prior to , rather than after, the institution o f the
change sought.
Kelley v. M etropolitan County Board o f Education, No.
81-5370 (6th Cir. August 19, 1981) (Exhibit A) (Emphasis sup
plied).
ARGUM ENT FOR REH EA RIN G AND
FOR REH EA RIN G EN BANC
M etro respectfully asserts that this Court, in its stay order o f
August 19, 1981, addressing the substantive issues in this case,
recognized the 1971 desegregation plan for what it was— a fin a l
order requiring im plem entation o f a comprehensive desegrega
tion plan in Nashville, Tennessee, pursuant to the existing case
law. Accordingly, this Court declined to permit deviations from
the fin a l desegregation plan until the case could be heard fully
on its merits. The stay opinion recognized implicitly that unless
changes in the law or circumstances regarding the parties had
occurred since 1972, the comprehensive plan approved by this
Court in 1972 on appeal could not be m odified.2
2 As this Court earlier recognized, if the plaintiffs or defendants
found adverse effects from or changed circumstances after implemen-
— A-72 —
M etro respectfully submits that the 1971 court order, affirm
ed by this Court in 1972, should be treated no differently during
the attorneys’ fees portion o f this case than it was during the
substantive portion. The 1971 plan, affirm ed by this Court was
a fin a l order which a panel o f this Court in 1981 viewed as a
discrete step in the litigation. Indeed, deviations therefrom
could not be perm itted without prior appellate review, even
when a failure to permit such deviations resulted in a significant
delay in the opening o f schools.
Thus, in addition to the District C ourt’s factual findings con
cerning finality o f the 1971 desegregation plan which were not
held by this Court in its recent opinion to be clearly erroneous, a
panel o f this Court in 1981 also recognized that the 1971 plan
represented a clear break in the proceedings. The inconsistency
now apparent on the record should be resolved, and M etro
respectfully submits that a rehearing and reconsideration en
banc should be granted.
Respectfully submitted,
W ILLIS & KNIGHT
By: / s / William R. Willis, Jr.
By: / s / M arian F. Harrison
215 Second Avenue North
Nashville, Tennessee 37201
Attorneys for Appellees/
Cross-Appellants
tation of the 1971 plan, these problems could be addressed at the
District Court level, under the general notion that all decrees in equity
are susceptible to modification based upon changes in the law or facts.
Kelley v. Metropolitan County Board o f Education, 463 F.2d 732,
745-46 (6th Cir. 1972).
EX H IBIT A
Office o f the Clerk
United States Court o f Appeals
For The Sixth Circuit
Cincinnati, Ohio 45202
August 19, 1981
Mr. Avon N. Williams, Jr.
Mr. Jack Greenberg
Mr. William R. Willis, Jr.
Re: Our Case No. 81-5370
Robert W. Kelley, et al; Henry C. Maxwell, J r., et al,
P la in tiffs-A ppellan ts, vs. M etropolitan County
Board o f Education o f Nashville and Davidson C oun
ty, Tennessee, Defendants-Appellees.
Dist. Ct. No. 2094 & 2956
Dear Counsel:
Enclosed is a copy o f an order which was entered today in the
above-styled case.
— A-73 —
Very truly yours,
John P. Hehm an, Clerk
By: / s / Suzanne W. Hogan
Deputy Clerk
Enclosure
Cert, copy: Ms. Julia B. Cross, Clerk
H on. Thomas H. W iseman, Jr.
— A - 7 4
No. 81-5370
UNITED STATES COURT OF APPEA LS
FOR TH E SIXTH CIRCUIT
Robert W. Kelley, et al.; Henry C. Maxwell, J r., et al.,
Plaintiffs-Appellants,
vs.
M etropolitan County Board o f Education o f Nashville
and Davidson County, Tennessee,
Defendants-Appellees.
ORDER
Before: EDW ARDS, Chief Circuit Judge, JONES, Circuit
Judge, and CELEBREZZE, Senior Circuit Judge.
On receipt and consideration o f a m otion for stay filed by
Robert W. Kelley, et al., plaintiffs-appellants; and
On consideration o f said m otion under terms o f Rule 8 o f the
Rules o f Appellate Procedure and pertinent case law, Virginia
Petroleum Job. A ss ’n v. Federal Power Com ’n, 259 F.2d 921,
925 (D.C. Cir. 1958); see also N orth Avondale Neighborhood
A s s ’n v. Cincinnati M etropolitan Housing A uthority, 464 F.2d
486, 488 (6th Cir. 1972); and
Further noting that generally four factors are required for the
issuance o f a stay, as follows:
1. Has the petitioner made a strong showing that it is
likely to prevail on the merits o f its appeal?
2. Has the petitioner shown that without such relief, it
will be irreparably injured?
3. W ould the issuance o f a stay substantially harm other
parties interested in the proceedings?
4. Where lies the public interest?
— A-75
Observing from this record that affirm ative answers
favorable to p laintiffs’ m otion m ust be given in relation to the
first two o f these questions, while a negative answer appears ap
propriate to the third;
A nd concluding as to the fourth question that where (as here)
after many years a final school desegregation order has been
entered in the District Court, appealed to this court and affirm
ed, and then appellants’ petition for certiorari has been denied
in the Supreme Court, it is in the public interest for a proposed
departure from said order to be reviewed by the Court o f A p
peals prior to , rather than after, the institution o f the change
sought;
Now, therefore, plaintiffs’ m otion for stay is hereby granted,
the m andate is ordered issued forthw ith, and the appeal is ex
pedited for hearing in the October term o f this court.
Entered by order o f the Court
/ s / John P. Hehm an
Clerk
— A-76
A PPEN D IX F
UNITED STATES COURT OF APPEA LS
SIXTH CIRCUIT
U.S. Post Office & Courthouse Building
Cincinnati, Ohio 45202
October 15, 1985
Mr. I . Michael Cody
Mr. Charles Ralston
Mr. Avon N. Williams, Jr.
Mr. William R. Willis, Jr.
Re: Case Nos. 83-5175/5243
Robert W. Kelley, et al. vs. M etropolitan County
Board of Education o f Nashville, et al.
Dear Counsel:
Enclosed with this letter are the copies o f the petition to
rehear and for rehearing in banc which you submitted last week.
These are being returned to you at the direction of the Court, in
asmuch as neither the Federal Rules of Appellate Procedure nor
the Rules o f the Sixth Circiut provide for the filing o f a petition
to rehear a case which has already been reheard.
Accordingly, the filing of the second petition has been
withdrawn and the docket o f the Court so reflects. The m an
date o f the Court will issue in due course.
Very truly yours,
/ s / Leonard Green
Chief Deputy Clerk
L G /jj
Enclosures
— A-77
APPENDIX G
U N ITED STATES COURT OF A PPEA LS
FOR TH E SIXTH CIRCUIT
No. 83-5175/5243
Robert W. Kelley, et al.,
Plaintiff-A ppellants,
vs.
M etropolitan County Board o f Education o f Nashville
and Davidson County, Tennessee, et al.
Defendants-Appellees/Cross-Appellants.
ORDER STAYING MANDATE
(Filed October 25, 1985)
O RDERED, That m otion ty stay m andate herein pending ap
plication to the Supreme Court for writ o f certiorari is hereby
granted and the m andate is stayed for thirty days from this date;
provided that, if within such thirty days, the applicant shall file
with the Clerk o f this Court the certificate o f the Clerk o f the
Supreme Court that the certiorari petition, record, and brief
have been filed, the stay shall continue until the final disposition
o f the case by the Supreme Court. Unless this condition is com
plied with within such thirty days or any extension thereof made
by the Court or any judge thereof, or if the condition is com
plied with, then upon the filing o f copy o f an order denying the
writ applied for, the m andate shall issue.
EN TERED BY ORDER OF TH E COURT
/ s / John P. Hehman
— A-78
APPENDIX H
IN TH E UNITED STATES DISTRICT COURT
FOR TH E W ESTERN DISTRICT OF TENNESSEE
W ESTERN DIVISION
Civil Action No. 3931
Deborah A. Northcross, et al.,
Plaintiffs,
vs.
Board o f Education o f the Memphis City Schools, et al.,
Defendants.
ORDER
(Filed July 29, 1966)
This cause came on to be heard on the report to the Court and
motion o f defendants for an order approving the m odified plan
o f desegregation; and
It appearing to the Court from the statement o f counsel that
plaintiffs have not had sufficient time to study the proposed
modified plan of desegregation, nor have plaintiffs had an op
portunity to obtain an opinion from Jack Greenberg, Esq., one
o f plaintiffs’ associate counsel, so that plaintiffs request an ad
ditional three (3) weeks within which to study the plan; and
It further appearing to the Court from statement o f counsel
that within three (3) weeks the parties will advise the Court
whether or not plaintiffs agree or object to the modified plan of
desegregation, and in the event that plaintiffs do not approve
the plan, request will be made for a hearing on their objections.
And it further appearing to the Court that the parties agree
that the defendants may put such parts o f the m odified plan in
to effect as are possible for the coming school year, except that
plaintiffs expressly waive the requirement for the filing o f the
A-79
report due on August 15, 1966, as provided for in sub-
paragraph 2 o f paragraph IX o f the modified plan.
IT IS TH EREFO RE, ORDERED, A D JU D G ED AND
DECREED, that on or before August 19, 1966, the parties
report to the Court as to whether the plaintiffs approve the
modified plan o f desegregation heretofore filed in the cause by
defendants.
IT IS FU R T H E R O R D E R E D , A D JU D G E D A N D
DECREED, that the defendants may put such parts o f the
m odified plan o f desegregation into effect as are possible for the
school year commencing July 1, 1966.
/ s / M arion D. Bond
Judge
Approved:
/ s / A. W. Willis, Esq.
For Plaintiffs
Evans, Petree, Cobb & Edwards
B y _____________________
For Defendants
— A-80 —
A PPEN D IX I
IN THE UNITED STATES DISTRICT COURT
FOR TH E W ESTERN DISTRICT OF TENNESSEE
W ESTERN DIVISION
C.A. No. 3931
Deborah A. Northcross, et al.,
Plaintiffs,
vs.
Board of Education o f the
Memphis City Schools, et al.,
Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
W ITH RESPECT TO FEES AND COSTS
This school desegregation case is before the Court on rem and
from the United States Court o f Appeals for the Sixth Circuit
for “ a complete recalculation” o f certain attorneys fees and
litigation expenses due under 42 U .S.C. §1988. Northcross v.
Board o fE duc . o f the M em phis City Schools, 611 F.2d 624, 640
(6th Cir. 1979), cert, denied, 447 U.S. 911 (1980).
The opinion o f the Court o f Appeals dealt with consolidated
appeals from two judgments entered by this Court on two
separate applications of the plaintiffs for awards o f costs, ex
penses, and attorneys fees. The first judgm ent dealt with plain
tiffs’ application for compensation for services and expen
ditures from the commencement o f this suit in 1960 through
1976. With respect to this judgm ent, the Court o f Appeals
remanded the case to this Court ‘‘for any necessary evidentiary
proceedings, a resolution o f the legal issue concerning the finali
ty o f the 1966 ruling, and a recalculation of attorneys fees due to
the plaintiffs for services rendered to them until the final
desegregation order was entered in 1974.” Id. at 643.
— A-81
The second judgm ent before the Court o f Appeals disposed
o f p laintiffs’ application with respect to services and expen
ditures in connection with a hearing in this Court in May 1977
necessitated by a Board o f Education request to m odify the
final plan o f desegregation (Plan Z) in various ways. As to this
judgm ent, the Court o f Appeals reviewed the record and made
its own determ ination o f reasonable fees and costs to be aw ard
ed. Thus, with respect to that judgm ent, the Court o f Appeals
“ rem anded with instructions to the district court to enter judg
ment for plaintiffs in the am ount o f $22,604.02 to compensate
them for services rendered by their attorneys and expenses in
curred in 1977.” Id. at 643. On 3 October 1980 this Court
entered an order directing the Board to pay the am ount set by
the Court o f Appeals, plus interest, for a total award on this
part of the case o f $25,605.51. This order also directed the
Board to pay plaintiffs $4,020.55 in appellate costs as per the
m andates issued by the C ourt of Appeals.
Following the Supreme C ourt’s denial o f certiorari, this
Court held several conferences with counsel for the parties, the
parties have submitted supplemental affidavits, stipulations and
docum entation, proposed findings and conclusions, and the
Court has conducted a hearing. While these proceedings were
going on, plaintiffs and the City o f Memphis settled their
dispute for $20,000, as reflected by the consent order approved
and entered by the Court on 1 December 1980.
This opinion incorporates findings of fact and conclusions of
law with respect to all services rendered by plaintiffs’ counsel
and expenditures incurred from the commencement o f this
litigation in 1960 until the date o f this opinion, exclusive of
those aspects o f the fee/cost dispute described above, which
have been resolved.
In the rem and opinion the Court o f Appeals explained that
fee awards in civil rights cases may no longer be determined on
the basis o f the appropriate statute in this case, the Civil Rights
A-82
Attorneys Fees Awards Act o f 1976 (42 U .S.C. §1988). Now
“ the courts are obligated to apply the standards and guidelines
provided by the legislature in m aking an award o f fees.” Id. at
632. The Court o f Appeals indicated that it found from the
legislative history o f the statute that Congress expressly com
mands the courts to use the broadest and most effective
remedies available to them to achieve the goals o f the civil rights
laws. Id. at 633. The examples which the Court o f Appeals gave
to explain the “ broadest and m ost effective remedies which
Congress intended” and the many holdings which sometimes
sternly and critically found that this Court had abused the
“ discretion” referred to in the statute wherein it provides: “ the
court, in its discretion may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs,” indicate that this
Court far too narrowly interpreted the law. In these findings
and conclusions this Court will undertake to award fees com
mensurate with the command of the Court o f Appeals as set
forth in the rem and opin ion .1
Since 1968 the plaintiffs have been represented by the Mem
phis law firm o f Ratner & Sugarmon and its predecessor part
nerships. Four o f the firm ’s lawyers at various times have p ro
vided representation to plaintiffs: Louis R. Lucas, an initial
partner in the firm; William E. Caldwell, a partner in the firm
since spring 1974 and an associate prior to that time; Elijah
Noel, Jr., a former associate in the firm; and Richard B. Fields,
an associate in the firm. Prior to 1968 the plaintiffs were
represented primarily by A. W. Willis and R. B. Sugarmon, Jr.,
who became initial partners in the firm when it was formed in
1967.
From the commencement of the litigation in 1960 until the
present time, the representation o f plaintiffs has been assisted,
1 It is here noted that the relative positions of the parties are typical
of their positions on all of the major issues in this much litigated case
— opposite extremes.
— A-83 —
both with financial support and professional services, by the
N A ACP Legal Defense and Educational Fund, Inc. (Legal
Defense Fund). The Legal Defense Fund is a non-profit cor
poration chartered by the New York Court o f Appeals and
authorized to serve as a legal aid society, one o f its purposes be
ing to render legal assistance gratuitously to “ colored persons”
suffering injustice by reason o f race or color who are unable on
account o f poverty to employ and engage legal aid in their own
behalf. The Legal Defense Fund does not charge individuals
whom it represents for its services. Affidavit o f N orm an J.
Chachkin 16 (filed 21 September 1976). The Legal Defense
Fund has paid most o f the litigation expenses incurred by plain
tiffs in this litigation. In addition, the Legal Defense Fund has
periodically paid to the firm a relatively small per diem
allowance for professional services for the purpose o f helping
defray the overhead expenses as a result o f its participation in
the case. Throughout the 20-year history o f the litigation the
firm has received about $27,000 in such per diem allowances.
Second Supplemental Affidavit o f N orm an J. Chachkin, 14 (fil
ed 8 November 1976); Supplemental Affidavit o f William E.
Caldwell, 13 (filed 4 October 1976). Fees recovered by the Legal
Defense Fund for the services o f its staff attorneys in litigation
are utilized in furtherance o f the organization’s civil rights
litigation and its other purposes. Supplemental Affidavit o f
N orm an J. Chachkin, 16 (filed 4 October 1976).
The bulk o f the services rendered by the Legal Defense Fund
since 1968 were provided by N orm an J. Chachkin and, more
recently, by Bill Lann Lee. Prior to 1968 most o f the Legal
Defense Fund services were provided, first, by Constance Baker
Motley, now a United States District Judge for the Southern
District o f New York, under the supervision o f Legal Defense
Fund director-counsel Thurgood M arshall, now an Associate
Justice o f the Supreme Court; and later by Derrick A. Bell, now
a professor o f law at H arvard Law School. In their initial sub
mission on fee am ounts o f 4 October 1976 the plaintiffs re
quested an award for services rendered by the Legal Defense
— A - 8 4
Fund while Judge Motley and Justice Marshall were associated
with the organization. On 5 October 1976, however, plaintiffs
withdrew their request with respect to these services —
estimated at 210.8 hours — “ [i]n order to avoid any possibility
of the appearance of impropriety or public m isunderstanding”
even though any fees recovered for these services would have
gone to the Legal Defense Fund, not to the individuals.
Entitlement to Fees for Pre-1968 Services
The first issue this Court will address under the Court of A p
peals’ m andate is whether or not plaintiffs are entitled to
recover attorneys fees for services rendered prior to 1968. With
respect to the post-1968 period, the Court o f Appeals directed:
“ The fee awarded should cover at least the period back to 1968
when the suit became active again following the Supreme
C ourt’s Green decision.” 611 F.2d at 635. The Court then
described the issue which this Court is now required to resolve
(id.):
There is an unresolved dispute concerning the pre-1968
period which we leave to the district court to resolve. The
School Board contended below that the district court ac
tion of July 29, 1966, the last action before the Supreme
C ourt’s Green decision, was a “ consent order” which
undertook to dispose of all outstanding phases o f the case,
including fees and costs. It is true that a long, complicated
case of this sort can result in several “ final” orders, which
in the interest o f finality are deemed to dispose o f all
foregoing issues. Absent a timely appeal, a party is bound
by the order and any later challenge is deemed to be a col
lateral attack judged by different, and more stringent stan
dards than on direct review. Bradley, supra, 416 U.S. at
710-11, 95 S.Ct. 2006. If the defendants are correct in
their characterization o f the 1966 action in the interest of
finality, plaintiffs should not be permitted to reopen that
judgment in order to obtain attorneys’ fees. We leave this
m atter to the district court.
— A-85 —
The Court finds that the services expended on the portion o f
the case occurring prior to the filing on 26 July 1968 o f
p laintiff’s m otion for further relief should be denied. A plan of
desegregation in this cause conform ing to what was thought to
be the then existing legal standards, was developed and filed
jointly by the parties on 22 July 1966. That plan was intended
and treated by the parties as a final plan o f desegregation, and a
distinct break in the proceedings in this case occured at that
time. Previous to that time there had been two appeals taken
successfully by the plaintiffs. The 1968 m otion for further relief
did not grow out o f any evident intention o f these parties to
litigate that plan further, but was the direct result o f subsequent
Supreme Court decisions in the case o f Green v. County School
Board o f N ew K enty County, Virginia, 391 U.S. 430 (1968), and
its com panion cases which represented very significant new
development in the law pertaining to school desegregation. The
case at bar is similar to the case o f Wheeler v. Durham City
Board o f Education, 585 F.2d 618 (4th Cir. 1978), wherein the
Court held that plaintiffs might timely file for a fee resulting
from the continuous hearings and appeals on their m otion for
further relief, but denied a fee for earlier “ discrete steps” in the
litigation.
Calculation of a Reasonable Fee
The Court o f Appeals summarized the approach required to
arrive at a reasonable attorneys fee as follows: (id. at 642):
We conclude that an analytical approach, grounded in the
num ber o f hours expended on the case, will take into ac
count all the relevant factors, and will lead to a reasonable
result. The num ber o f hours o f work will automatically
reflect the “ time and labor involved,” “ the novelty and
difficulty o f the question,” and “ preclusion o f other
em ploym ent.” The attorney’s norm al hourly billing rate
will reflect “ the skill requisite to perform the legal service
A-86
properly,” “ the customary fee,” and the “ experience,
reputation and ability o f the attorney.” Adjustm ents up
ward may be made to reflect the contingency o f the fee,
unusual time limitations and the “ undesirability” of the
case.
The Court of Appeals has thus required a three-pronged ap
proach which requires this Court to determine (1) the number of
hours of services performed by plaintiffs’ attorneys, (2) the
“ normal hourly billing rate” applicable for each attorney, and
(3) whether upward adjustments should be made and the
amount thereof.
Hours of Service Provided
The Court o f Appeals made it clear that plaintiffs’ attorneys
are entitled to compensation for all the time reasonably expend
ed on this case because the plaintiffs prevailed in the case as a
whole. The Court said (id. at 636):
The question as to whether the plaintiffs have prevailed
is a preliminary determination, necessary before the statute
comes into play at all. Once that issue is determined in the
plaintiffs’ favor, they are entitled to recover attorneys’ fees
for “ all time reasonably spent on a m atter.” The fact that
some of that time was spent in pursuing issues on research
which was ultimately unproductive, rejected by the court,
or m ooted by intervening events is wholly irrelevant. So
long as the party has prevailed on the case as a whole the
district courts are to allow compensation for hours expend
ed on unsuccessful research or litigation, unless the posi
tions asserted are frivolous or in bad faith . . . . The fact
that these lawyers advocated a desegregation remedy of
broader scope and faster pace than was ultimately adopted
cannot be considered to be unreasonable. Their clients
have prevailed; the M em phis school system is
desegregated.
A-87 —
The Court further stated on page 636:
We conclude that a fee calculated in terms o f hours of
service provided is the fairest and most manageable ap
proach. The district court should indicate on the record the
num ber o f hours it finds the plaintiffs’ attorneys have ex
pended on the case. This finding m ust first take into ac
count the affidavits o f counsel. The hours claimed need
not be autom atically accepted by the district court, but to
the extent that hours are rejected, the court must indicate
some reason for its action, so that we may determine
whether the court properly exercised its discretion or made
an error o f law in its conclusion. Hours may be cut for
duplication, padding or frivolous claims. In complicated
cases, involving many lawyers, we have approved the ar
bitrary but essentially fair approach o f simply deducting a
small percentage o f the total hours to eliminate duplication
o f services.
This Court has never found, and does not find, that any of
the positions asserted by plaintiffs were m ade in bad faith or
were frivolous. Accordingly, plaintiffs are entitled to compen
sation for all claimed hours which were actually spent on the
case except an “ arbitrary” adjustm ent for duplication and
other reasons set forth below. The various affidavits o f plain
tiffs’ counsel claim a total o f 5,213.5 hours o f services. The ser
vices o f plaintiffs’ counsel, as well as litigation expenses and
counsels’ backgrounds and experiences, are set forth in 18 af
fidavits of counsel. The Court will analyze these services with
respect to each phase o f this case in greater detail below. P lain
tiffs’ attorneys did not m aintain detailed contem poraneous time
records prior to 1974 (Stipulation o f Counsel, 13, filed 18 Nov.
1980).
They have reconstructed the services rendered for that period
from billings submitted to the Legal Defense Fund for per diem
allowances, from partial calendar records, and from the file in
— A-88
the case. The reconstruction process is described in Caldwell
Aff. 16, Supp. Caldwell Aff. 13, 2d Supp. Caldwell Aff. 12,
Lucas Aff. 15, Chachkin Aff. 13, and Stipulation o f Counsel 12
(filed 18 Nov. 1980).
It is the opinion o f this Court that the directions of the Court
of Appeals intended for this Court to accept these calculations
in spite of their faults. Therefore, the Court finds that the
hours claimed on the affidavits are allowed as a basis for the
fees except to the extent that they are expressly disallowed in
these findings.2
The Court disallows 12.55 hours from the total shown on the
affidavit of Elijah Noel dated September 20, 1976, on the basis
that there is an error in addition.
Since the remand o f this case, further affidavits have been
submitted including the affidavit o f Richard B. Fields dated
August 5, 1980, seeking an award for services in m onitoring the
Court Order and in negotiating modifications to Plan Z since
June 1977. The Court o f Appeals has held that m onitoring ser
vices are allowable, and Mr. Fields is seeking an award based on
a total o f 127.6 hours. The bulk o f these hours is allowable with
the exception o f some items which fall outside the scope o f this
lawsuit. Those items include such matters as attendance at an
Urban League Symposium and lunch with representatives of
such community organizations as M IFA and the news media are
not sufficiently connected to the litigation o f this case to war
rant compensation. Those items are numbers 61, 65, 66, and 76
on the attachm ent to the affidavit and they total 12 hours, leav
ing a total o f 115.6 allowable hours.
2 While plaintiffs’ lawyers have utilized considerable law-student
and paralegal assistance during various phases of the litigation, they
make no request that those services be compensated (because of the in
adequacy of records reflecting those services). Caldwell Aff. 19.
— A-89 —
In determining the net allowable hours, the Court is also call
ed on to determine whether reductions should be made based
upon duplication of hours an d /o r over-estimates as to the
num ber o f hours spent. It has been fairly settled in this Circuit
that, where duplication appears, the Court is entitled to make
an across-the-board “ arbitrary” adjustm ent based on an
estimated percentage o f duplication, rather than attempting to
eliminate specific hours on an itemized basis. This approach
was approved in Oliver v. Kalamazoo Board o f Education, 576
F.2d 714 (6th Cir. 1978), and used by the Court o f Appeals in
reaching a final award of attorneys fees for the 1977 hearing in
the appeal o f this case. Similarly, a 10% reduction in total
hours based on duplication alone was used by the Court of A p
peals in Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979).
In the present case substantial duplication o f effort appears not
only from the num ber of counsel appearing on briefs and ap
pearing at particular trials of this cause, but from the fee af
fidavits themselves, which reflect extensive consultation and
conferences among co-counsel and which show that the receipt
o f documents, pleadings, and orders usually occasioned the ex
penditure of a good deal more time than was necessary to review
the documents. This time was obviously occasioned by the
multiplicity o f counsel in the case and by the fact that the case
was handled throughout on the basis o f continuing comm unica
tions between trial counsel and Legal Defense Fund counsel in
New York. Even at appellate arguments in the case, co-counsel
would frequently appear, as exemplified by the ninth item on
Mr. Caldwell’s original affidavit o f September 20, 1976. This
item claims 16 hours for Caldwell based upon the argument of
Louis Lucas in the 6th Circuit Court o f Appeals. Based on the
record and on this Judge’s familiarity with the proceedings in
this case, the Court finds that a Court o f Appeals maximum of
10% reduction in otherwise allowable hours should be granted
as the means of accounting for these duplicative services, except
for the portion o f the case pertaining to fee litigation.
— A-90
Reasonable Hourly Rates
The guiding standard laid down by the Court of Appeals for
determining the reasonable hourly rates o f compensation for
each of the Attorneys for the plaintiffs in this cause — the se
cond part o f the m andated “ analytical approach” — is the
“ fair market value o f the services provided.” The Court
elaborated as follows (id. at 638):
We have indicated in several opinions that it is desirable,
whenever possible, to vary the hourly rate awarded depen
ding upon the type o f service being provided. Again tu rn
ing to our m andate to award fees “ as is traditional with a t
torneys compensated by a fee-paying client,” a scale of
fees as is used by most law firms is appropriate to use in
making fee awards pursuant to §1988. The use o f broad
categories, differentiating between paralegal services, in
office services by experienced attorneys and trial service,
would result in a fair and equitable fee.
In determining what the level of compensation for each
category o f service should be, the court should look to the
fair m arket value o f the services provided. In most com
munities, the marketplace has set a value for the services of
attorneys, and the hourly rate charged by an attorney for
his or her services will normally reflect the training,
background, experience and skill o f the individual a t
torney. For those attorneys who have no private practice,
the rates customarily charged in the community for similar
services can be looked to for guidance.
The Court of Appeals illustrated this m ethod of arriving at
normal hourly rates in its disposition with respect to the 1978 fee
award. There the Court applied a “ bifurcated scale” in deter
mining the normal hourly rate for plaintiffs’ counsel Lucas. In
calculating the fee for Lucas the Court used “ as base figures
$125 per hour for trial work and the $75 per hour which the
district court found to be reasonable for office services.” Id. at
A - 9 1 —
641. W ith respect to the services o f plaintiffs’ counsel Noel and
Fields, the Court o f Appeals accepted this C ourt’s across-the-
board base fee o f $60 per hour for Noel and $40 per hour for
Fields. Id.
In its previous decision o f November 4, 1977, this Court set
the base fee rate for services rendered between m id-1971 and
1974 at $60 per hour for Lucas and $40 per hour for Caldwell
during the earlier parts o f that time frame, and $60 per hour for
Caldwell during the later proceedings. Neither the plaintiffs in
their appeal nor the Board in its cross-appeal challenged these
rates, and the Court o f Appeals “ express[ed] opinion as to the
accuracy o f the fee per hour awarded in the 1977 award . . . ”
Id. at 641. The record herein persuasively demonstrates that the
rates previously established by this Court for the 1971-74 period
are reasonable reflections of the fair m arket value at the time of
the services provided by Caldwell and Lucas.
Inflation Factor
The question remains whether the base fee rates applicable
for earlier time periods should be adjusted to account for the
greatly diminished purchasing power of such early-year dollars
in light o f the intervening years o f inflation. This Court is re
quired to resolve this issue by the following directive o f the
Court o f Appeals: “ Among other factors, the district court will
be required to consider whether the inflation o f the intervening
years must be taken into account, or whether the lower rate
which prevailed for services at the time they were rendered has
been balanced by the long delay which will reduce the purchas
ing power o f the aw ard’s dollars in the present m arketplace.”
Id. at 640. The inflation problem can be resolved either by ap
plying an inflation factor to the norm al hourly rates into line
with 1980 dollars, or, alternatively, by applying recent hourly
rates to the services rendered in the earlier years.
The attorneys for the plaintiffs advocate and claim that infla
tion should be compensated for by paying 1981 hourly rates for
— A-92
all hours devoted to the case. This means that Louis Lucas
would be paid $125 per hour for services rendered in 1971, a
period in which this Court found and plaintiffs concede an
hourly rate for his services to be $60. As experience and the
record reflect, the value o f the hourly rate has increased for a t
torneys based upon the inflationary trend and the increased
value o f the services o f the attorney due to experience.
Therefore, the use of current or recent rates appears to be a
plausible m ethod o f adjusting for inflation even though it is a r
bitrary for some times.
This Court is of the opinion that hourly rates used by the
Court o f Appeals in its November 1979 remand opinion should
be used as a basic starting point. It awarded Louis Lucas $125
per hour as a base fee for court work, and found that rate to be
high for office services. Those services were established at $75
per hour. The only other attorneys who were awarded fees by
the Court o f Appeals were Mr. Noel, at $60 per hour, and Mr.
Fields, at $40, with no differentiation for court and office work.
The other lawyers who are entitled to compensation are
William E. Caldwell, Norm an J. Chachkin and Bill Lann Lee.
Caldwell became involved in this case as an attorney from the
commencement of his practice in 1970. He took a leave of
absence from the firm of Ratner & Sugarmon to work with the
Lawyers Committee for Civil Rights Under Law in W ashington,
D .C. He returned in October 1978 and assumed the role of lead
counsel in these attorneys fee proceedings. As o f the time o f his
Third Supplemental Affidavit filed August 5, 1980, he stated his
“ professional rate for federal litigation on behalf of the few fee
paying clients” o f his was $90 per hour. This Court finds that
the rates per hour to be paid him to compensate for inflation
should be $90 per hour for in-court services and $60 per hour
for office services.
Norm an J. Chachkin was a staff attorney for the Legal
Defense Fund from April 1969 until June 1975. He did much of
the appellate work on the case and reviewed or duplicated the
— A-93
work o f local counsel in this Memphis school case. Bill Lann
Lee was the staff Legal Defense Fund attorney who replaced
Chachkin as overseer o f the local attorneys. They are attorneys
whom the Court o f Appeals have ordered to be compensated.
They are attorneys who had no private practice. Therefore, we
look to the rates customarily charged in the community for
similar services for guidance. Id. at 638. Their community is
New York, and they say that the rates for their com parable ser
vices are $125 for Chachkin and $90 for Lee. Based upon the
m andate o f the Court of Appeals and the only evidence in the
record, this Court establishes the rate for Chachkin to be $125
for in-court services and $75 for out-of-court services, and the
rate for Lee to be $90 for in-court and $60 for out-of-court ser
vices.
The “ Appellate” category includes briefing and argum ent —
which the Court deems to be the equivalent o f being “ in court”
on appeal — but such appeal-related services as record designa
tion, appendix preparation, and procedural m otions are
categorized as “ in-office” services. The Court further finds
that “ A ppellate” services should be compensated at the same
rate as “ In-court” services.
Upward Adjustm ents
The Court o f Appeals noted on page 638 o f the rem and opi
nion that the routine hourly rate o f an attorney may not be the
maximum which can and should be awarded because it might
not take into account the special circumstances which authorize
a higher fee. The Court noted that perhaps the m ost significant
factor which renders an hourly rate unreasonably low is the fact
that the award is contingent upon success.
The attorneys for the plaintiffs in their proposed findings
have divided the sevices rendered into categories which are bas
ed upon the time and nature o f the services rendered. There are
seven such categories for services rendered after 1968. These
categories and the proposed upward adjustm ent for the con
tingency factor are as follows:
— A-94 —
Upward Adjustment
Services Rendered Between 1968
and This C ourt’s Liability Deci
sion in December 1971 150%
Services Rendered Between
December 1971 and June 1972 50%
Appellate Services Between
June 1972 and August 1972 100%
Services Rendered During Final
Plan Proceedings August 1972
— July 1973 10%
M onitoring Services 1973-80 0%
Fees Litigation 1974-79 100%
Fees Litigation November 1979
to date 0%
This m ethod embraces in some categories the very thing that
the Court o f Appeals rejected as not authorized, namely the
“ bonus” multiplier or “ w indfall,” 611 F.2d page 638.
For the period between 1968 and 1971, Louis Lucas and N or
m an Chachkin seek compensation for courtroom work at the
rate o f $312.50 per hour. In the opinion o f this Court this is not
what the Court o f Appeals mandated.
Although the Court o f Appeals allowed a 10% contingency
adjustm ent for the 1978 fee award, which they summarily ruled
upon, this Court is not adjusting the hourly rates on the basis of
the contingency element. On page 641 o f the remand opinion
the Court o f Appeals distinguished the 1978 fee award fact
situation from the earlier phase o f the case in the following
manner:
— A-95
The hearings here involved were collateral to and
distinct from the desegregation suit itself, which had been
finally term inated in 1974, so had the plaintiffs failed to
prevail on the merits the district court would have been
justified in denying fees altogether. Therefore, there was a
real element o f contingency as to whether the attorneys
would be compensated for their services at all.
In the post 1968 phase o f this desegregation suit, the plaintiffs
were seeking appropriate student and faculty desegregation
against a defendant Board o f Education that had openly and de
fiantly violated the constitution and was reluctant to come into
compliance with the constitution. It was actually a m atter of
perseverence and allowing the trial and appellate courts to
establish the ultimate standards in a rather slow trial and error
m ethod.
Plaintiffs and their attorneys were the vicarious beneficiaries
o f the landm ark trilogy o f Green, Raney and M onroe, 391 U.S.
430 et seq. (1968) (elimination o f ineffective freedom of choice
and freedom of transfer, desegregation plans); Alexander v.
Holm es County Bd. o f Ed., 396 U.S. 19 (1969); and Carter v.
West Felincia Parish School Board, 396 U.S. 226 (1969) (do it
now); United States v. M ontgom ery County Bd. o f Ed., 395
U.S. 225 (1969) (a faculty desegregation case); Swan v.
Charlotte-M ecklenburg Bd. o f Ed. and Davis v. Bd. o f School
C o m m ’rs, 402 U.S. 1 and 33 (1971) (the busing cases); and Nor-
thcross v. Bd. o f Ed. M em phis City Schools, 412 U.S. 427
(1973) 3 or Bradley v. Richm ond School Bd., 416 U.S. 696
(1974) , (attorneys fee cases).
3 The Supreme Court opinion in this Northcross case was one which
indicated fees were allowable on the application of the plaintiffs based
upon the first application for fees in this case, which application was
made in the Court of Appeals, not this Court. In spite of the Supreme
Court opinion, which was favorable for fees to be awarded, on re
mand the Court of Appeals for the Sixth Circuit refused to award fees
because the application was untimely filed.
A-96
It must be remembered that in many instances the plaintiff
took implausible, extreme positions that were not adopted.
While the Court o f Appeals has ruled that this does not prevent
awarding fees for those unsuccessful services, those services
should certainly not be a factor in a contingency additur.
Based upon the above reasons the Court hereby makes the
following findings for the hours worked by the respective a t
torneys for the various allowable periods covered by this ruling.
Services Rendered between Plaintiffs’ 1968 G reen Motion
for Further Relief and this Court’s Decision of December
10, 1971:
The Court finds that the following hours o f services were
rendered by plaintiffs’ attorneys during the period between
plaintiffs’ 1968 Green m otion for further relief and this C ourt’s
opinion o f December 10, 1971, holding the Board constitu
tionally liable for the school segregation then existing. Ten per
cent has been deducted for duplication.
Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Lucas 361 -36.1 =324.9 391 -39.1 =351.9 352.1 -35.21 =316.89
Caldwell 126 -12 .6 =93.4 22 -2 .2 = 19.8 275.6 -27.56 =248.04
Chachkin — — — 125 - 12.5 = 112.5 115.6 -11.56 =104.04
Services Rendered between December 10, 1971,
and June 1972 (Plan A proceedings):
The Court finds that the following hours o f services were provided by
plaintiffs’ lawyers during the remedial proceedings from December
1971 to June 1972.
Lawyer: In-Court Hours:
Lucas 1 4 -1 .4 = 1 2 .6
Caldwell 96 -9 .6 =86.4
Chachkin — — —
Appellate Hours:
20 - 2 =18
In-Office Hours:
70 - 7 = 63
243 -24.3 =218.7
33 - 3.3 = 29.7
A-97 —
Appellate Services Rendered between
June 1, 1972 and August 29, 1972:
The Court finds that the following appellate services were
rendered between June 1 and August 29, 1972.
Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Lucas — 24 - 2.4 = 21.6 4 - .4 = 3.6
Caldwell — 186 -18 .6 =167.4 35 -3 .5 =31.5
Chachkin — 237 -23 .7 =213.3 27.5 -2 .75 =24.75
Services Rendered during Plan Z Proceedings
August 29, 1972 to July 1973:
The Court finds that the following hours o f services were
rendered by plaintiffs’ counsel during the rem and proceedings
leading up to this C ourt’s Plan Z orders.
Lawyer: In-Court Hours: Appellate Hours:
Lucas 18 -1 .8 =16.2 —
Caldwell 90 - 9 = 81 —
Chachkin 75(A p)-7.5 = 67.5
In-Office Hours:
10 - 1 = 9
306.6 -30 .6 =275.4
67.3 -6 .73 = 60.57
Monitoring Services — 1973-1980
The Court finds that the following hours o f m onitoring ser
vices have been provided by plaintiffs’ counsel since 1973.
Lawyer: In-Office Hours:
Caldwell 104.4 -1 0 .4 4 = 93.96
Chachkin 11 - 1.1 = 9.9
Noel 28.9 - 2.89 = 26.01
Fields 115.6 -1 1 .5 6 = 104.04
Fees Litigation------ 1974-1979
The Court finds that plaintiffs’ counsel expended the follow
ing hours litigating their entitlement to attorneys fees between
1974 and the November 1979 decision o f the Court o f Appeals.
— A-98
Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Lucas 8 18
Caldwell 18 202.99 278.45
Chachkin 76* — 60.5
Noel — — 5
No duplication adjustm ent is applied to this category o f service.
* Includes 70 hours from 1972-73 re: 20 U .S .C . §1617 (items
143 and 162, Ex. 1 to Chachkin Aff.).
Fees Litigation------November 1979 to Date
The Court finds that the following hours o f service have been
expended on the fees issue since the decision o f the Court o f Ap-
peals.
Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Caldwell —— 17.65 38.5
Chachkin ----- 3.0 —
Lee ----- 7.9 ___
TOTAL FEE AWARD
Lawyer: In-Court Hours: Appellate Hours: In-Office Hours: Total:
Lucas (735.2 @ $125.)
$91,900.00
(410.49 @ $75.)
$30,786.75 $122,686.75
Caldwell (704.64 @ $90.)
$63,417.60
(1184.1 @ $60.)
$71,046.00 $134,463.60
Chachkin (472.30 @ $125.)
$29,037.50
(289.46 @ $75.)
$21,709.95 $80,747.45
Fields (104.04 @ $40.)
$4,161.60 $4,161.60
Noel (31.01 @ $60.)
$1,860.60 $1,860.60
Lee (7.9 @ $90.)
$711.00 $711.00
TOTAL: $344,631.00
— A-99 —
In summary the Court notes that it has accepted the hours
claimed by the plaintiffs’ attorneys even though in some
respects they were based upon estimates due to a lack o f ac
curate records. These hours were subject only to an
“ arb itrary” duplication adjustm ent applied to certain types of
services. The Court has also increased the rate for earlier ser
vices by an inflation factor by applying a recent rate retroactive
ly. It has also refused to award a “ bonus” or “ w indfall,” it has
refused to award an “ arbitrary” upward adjustm ent for a con
tingency for the period 1968 to date, and it has denied the
pre-1968 claim. This represents this C ourt’s attem pt to comply
with the comm and of the Court o f Appeals as set forth in the re
m and opinion and in the light o f the “ discretion” given to
district courts by the congress in the applicable statutes.
While this award appears to be a large am ount o f money, it
must be remembered that the services extended over a long
period o f time and were required in a large measure because the
defendant school board took a determined position not to com
ply with the constitution as interpreted by the rulings o f the
Supreme Court.
Litigation Costs and Expenses
The plaintiffs have itemized litigation expenses and costs in
the am ount o f $35,128.22 (3d Supp. Caldwell A ff., 13) (Supp.
Chachkin Aff. 113, 4 and Exhibit 1) (Joint Caldwell/Chachkin
A ff., 17 and Exhibit 2). There is no dispute that the plaintiffs
actually expended this am ount o f money in connection with this
litigation, and the Court so finds.
The Court o f Appeals held as follows with respect to plain
tiffs’ entitlement to recovery of out-of-pocket expenses (611
F.2d at 639):
There are two separate sources o f authority to award
out-of-pocket expenses. Some expenses are included in the
concept o f attorneys’ fees, as “ incidental and necessary ex-
A-100
penses incurred in furnishing effective and competent
representation,” and are thus authorized by §1988-----The
authority granted in §1988 to award a “ reasonable a t
torney’s fee” included the authority to award those
reasonable out-of-pocket expenses incurred by the a t
torney which are normally charged to a fee-paying client,
in the course o f providing legal services. Reasonable
photocopying, paralegal expenses, and travel and
telephone costs are thus recoverable pursuant to the
statutory authority o f §1988.
Other costs are on a different footing. These include
those costs incurred by a party to be paid to a third party,
not the attorney for the case, which cannot reasonably be
considered to be attorneys’ fe e s .. . .These include, among
others, docket fees, investigation expenses, deposition ex
penses, witness expenses, and the cost of charts and maps.
Most o f these expenses have long been recoverable, in the
C ourt’s discretion as costs, pursuant to 28 U.S.C. §1920
With respect to statutory costs, the Court o f Appeals further
stated as follows {icl. at 640):
The award of statutory costs is a m atter for the district
court, in its best judgment as to what was reasonable and
necessary, and the appellate courts will not normally in
terfere with the exercise o f that discretion. . . . It would be
advisable for litigants to obtain authorization from the
district court before incurring large items o f expense,
though of course, failure to do so does not bar reimburse
ment if the trial court should decide that the expenditures
were nevertheless reasonable and necessary.
This Court disallows the following items in that they do not
fit into the reasonable and necessary category:
— A-101 —
3/31/60 Cost bond $250.00
2/23/63 Dr. Floyd Bass, Expert $492.58
6/4/63 Dr. Floyd Bass, Expert $ 54.13
3/14/69 Dr. Gordon Foster, Expert $1246.75
10/19/71 Lunch for Experts $ 16.35
12/5/71 Dr. Gordon Foster, Expert $218.95
1/24-26/72 Dr. Gordon Foster and
Dr. Marzell, Experts $1569.19
3 /5 /72 Dinner for experts $ 39.22
2 /1 /72 -
3/20/72 Dr. Gordon Foster, Expert $793.59
3/20/72 Dr. Gordon Foster, Expert $205.78
3/28/72 -
4 /5 /72 Dinner Expenses for Experts $ 44.57
12/7/73 Barry W iener, Investigator $ 50.00
6/12/79 Lunch $ 3.50
6/13/79 Lunch $ 5.00
$7002.61
Dr. Foster was a way-out expert that recommended some ex
treme plans for allegedly desegregating the schools.
Therefore, the Court deducts from the expenses claimed the
sum of $7002.61 and awards as reasonable and necessary ex
penses $28,125.61.
All am ounts previously paid on the fees award herein shall be
credited in the judgm ent, and no interest is allowed in view o f
the inflation factor phase o f the award.
IT IS SO ORDERED.
ENTER: This 4th day o f January 1982.
/ s / Robert M. McRae, J r., Judge
— A-102 —
APPENDIX J
IN TH E UNITED STATES DISTRICT COURT FOR TH E
M IDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
Civil Action Nos. 2094 & 2956
Robert W. Kelley, et al,
Henry C. Maxwell, et al,
Plaintiffs,
vs.
M etropolitan County Board
o f Education of Nashville
and Davidson County,
Tennessee, et al,
Defendants and
Third-Party Plaintiffs,
Mansfield Douglas, et al and
M etropolitan County Board of
Education o f Nashville and
Davidson County, Tennessee,
et al,
v.
Elliott L. Richardson, et al,
Third-Party Defendants.
PETITION FOR ATTORNEYS FEES
(Filed Feb. 8, 1974)
The petitioners, Third-Party Plaintiffs in the above action,
move the Court to allow them an attorneys fee in the am ount of
thirty-five thousand ($35,000) dollars, or in such other lessor
A - 1 0 3 —
am ount as the Court deems reasonable, and reimbursement of
the costs they have incurred in the course o f this litiation. This
petition is filed pursuant to the authority o f Title 7, Section 718
o f the Emergency School Aid Act (20 USC §1617), and is based
upon the following grounds:
1. The above statute provides that, upon the entry o f a final
order by a court o f the United States against the United States
or any agency thereof, for failure to comply with the Emergency
School Aid Act or for discrimination on the basis o f race, color
or nationality in violation o f the Fourteenth Am endment to the
Constitution o f the United States as they pertain to elementary
and secondary education, the Court may allow the prevailing
party a reasonable attorneys fee, in addition to other costs of
litigation.1 This provision became effective on July 1, 1972, and
has been in effect throughout the pendency o f this Third-Party
action.
2. The United States Supreme Court has construed this provi
sion to mean that a plaintiff who obtains affirmative relief in a
civil rights case involving elementary and secondary education
“ should ordinarily recover an attorneys fee unless special cir
cumstances would render such an award un ju st” , Northcross v.
Board o f Education o f the M em phis City Schools, 93 Sup. Ct.
2201 (1973). No such circumstances exist in the present case.
The Third-Party plaintiffs have derived no personal benefit
1 “ Upon the entry of a final order by a Court of the United States
against a local educational agency, a State (or any agency thereof), or
the United States (or any agency thereof), for failure to comply with
any provision of this chapter or for discrimination on the basis of
race, color, or national origin, in violation of Title VI of the Civil
Rights Act of 1964, or the Fourteenth Amendment to the Constitution
of the United States as they pertain to elementary and secondary
education, the Court, in its discretion, upon finding that the pro
ceedings were necessary to bring about compliance may allow the
prevailing party, other than the United States a reasonable attorney’s
fee as part of the cost.” 20 USC
A-104 —
from the assertion o f their claim, the judicial assertion o f the
claim was clearly necessary in order to obtain the relief sought,
and the judgm ent obtained may assist the M etropolitan School
System very significantly in its efforts to achieve desegregation
in accordance with the C ourt’s previous orders. Under these
circumstances an award o f attorneys fees would be appropriate
even in the absence o f statutory authorization. Bell v. School
Board o f Powhatan County, Virginia, 321 F.2d 494, 500
(Fourth Cir. 1963) (“ Attorneys fees justified when the bringing
of action “ should have been unnecessary and was compelled by
unreasonable, obduite obstinacy” ) and Brewer v. School Board
o f City o f N orfolk, Virginia, 456 F.2d 943, 951 (Fourth Cir.
1972) (Award o f attorneys fees justified when plaintiff obtained
monetary benefit for a class o f persons, equivalent to a ‘com
mon fund’).
3. It has been held that, in determining the appropriate o f at
torneys fees to be awarded in cases o f this nature, the following
factors may be considered: The nature o f the litigation, the
amount involved in the controversy, the result o f the suit, the
length o f time spent on the case, the care and diligence exercis
ed, and the character and standing o f the attorney. Berkshire
M utual Insurance Company v. M offe tt, 378 F.2d 1007 (Fifth
Cir. 1967). The petitioners respectfully submit that the fee re
quested is justified on the above grounds, and that it is consis
tent with fees customarily paid for the performance o f similar
legal services in the Federal Courts for the Middle District of
Tennessee.2 The petitioners submit herewith a summary o f the
hours spent and expenses incurred in the preparation and
presentation o f the Third-Party claim in this case.
2 Note for example that the private attorneys representing
Metropolitan Government on appeal from the Court’s latest
desegregation order in the captioned case, were paid a fee of fifty
thousand ($50,000) dollars.
— A-105 —
Respectfully submitted,
GU LLETT, STEELE, SANFORD,
ROBINSON & M ERRITT
BY: / s / Gilbert S. M erritt
W ILLIS, KNIGHT & BARR
BY: / s / Alfred H. Knight, III
— A-106 —
APPENDIX K
IN TH E DISTRICT COURT OF TH E UNITED STATES
FOR TH E M IDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
Civil Action Nos. 2094 & 2956
Robert W. Kelley, et al
vs.
The M etropolitan County
Board o f Education, et al
MOTION OF PLAINTIFFS FOR GRANTING OF THEIR
REQUESTS FOR COUNSEL FEES
Plaintiffs, by their undersigned counsel, respectfully renew
their repeated requests, during the course o f this litigation, for
an award o f costs and reasonable counsel fees; specifically,
plaintiffs would show this Court that Sec. 718 o f the Education
Amendments o f 1972, 20 U .S.C. Sec. 1617, requires such an
award in their favor since they are the prevailing parties in this
school desegregation case, prosecution o f which was made
necessary by the defendants’ continuous failure and refusal to
carry out their constitutional obligations, and further, that Sec.
718 requires that this Court make such an award for the entire
course of this litigation, see Bradley v. School Bd. o f R ich
mond, 416 U.S. 696 (1974). Plaintiffs submit herewith a legal
m em orandum which outlines their right to such an award.
Plaintiffs respectfully suggest that it would be appropriate for
this Court to decide the issue o f defendants’ liability for an
award o f fees in favor of plaintiffs before issues concerning the
am ount of a reasonable award are litigated. Such a procedure
would also permit the parties to attem pt to settle those issues
through settlement negotiations which are, however, unlikely to
be fruitful in the absence of a ruling on plaintiffs’ entitlement to
an award. See Bradley, supra, 416 U.S. at 705. Accordingly,
— A-107
plaintiffs do not submit herewith docum entation o f the
thousands o f hours’ work perform ed by their counsel over the
years in this m atter, nor o f the thousands o f dollars o f expenses
incurred in the successful prosecution o f this action. That
materia! is being prepared, however, for submission to the
Court at the appropriate time.
W HEREFO RE, plaintiffs respectfully pray that upon con
sideration o f this M otion, the M emorandum filed herewith, and
after such further proceedings as are appropriate, this Court
issue its Order awarding plaintiffs costs and reasonable counsel
fees from the commencement o f this litigation — and its predec-
cessor Kelley and M axwell actions— to date, and directing the
parties to attem pt to agree upon the am ount o f such a
reasonable fee, reserving power unto the Court to set such
am ount in the absence o f agreement.
Respectfully submitted,
AVON N. W ILLIAM S, JR.
1414 Parkway Towers
Nashville, Tennessee 37219
JACK GREENBERG
JAM ES M. NABRIT, III
NORM AN J. CHACHKIN
10 Columbus Circle
Suite 2030
New York, New York 10019
Attorneys for Plaintiffs
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