Correspondence from Leventhal to Judge Keady; Memorandum in Support of Counsel Fees

     [||3d89c839-3f87-454a-b4a0-18b5818edb3c||] ¥ » 

October 11, 1974 

Honorable William C. Keady 
United States District Judge 
P.O. Box 190 
Greenville, Mississippi 38701 

Re: Norwood v. Harrison 
  

Dear Judge Keady: 

Enclosed please find plaintiffs' memorandum 
in support of our pending motion for attorneys’ 

fees. 

You will find the Section 718 and "private 
attorneys' general” issue fully briefed. The 
more difficult question of Edelman's impact on 

the case, is pending before the Fifth Circuit 

and the Supreme Court; see footnote 2 of the 
memorandum, After considerable thought I have 
found it impossible to brief the issue until 

the Fifth Circuit and/or the Supreme Court 
provides some guidance. 

  

I am confident that your honor will reach 
the same conclusion. If I presume too much, 
then upon notice from you I will immediately 
file a supplemental memorandum. 

I am of the view, however, that an order 
accomplishing the result specified in our 

"conclusion" (see page ll of the memorandum) is 

in order. The record on the reasonableness of 
the amount requested is closed; in addition, 
plaintiffs’ bill of costs has been approved by 
the clerk without objections from the state and 
I presume that payment will be received shortly. 

Sincerely yours, 

Melvyn R. Leventhal 

cc. William Allain, Esq. 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

  

DELORES NORWOOD, et al., - 

Plaintiffs, : 

— : No. WC 70-53-K 

D.L, HARRISON, et al., : 

Defendants. e
e
 

  

MEMORANDUM IN SUPPORT 

  

OF COUN! FERS 

Introduction 

August 15, 1974, the Court established a schedule for 

the submission of the issues raised by plaintiffs' July 30, 

1974, motion for an award of attorneys' fees. Plaintiffs 

were directed to file affidavits in support of the amount 

claimed, and defendants were required to enter any objections 

through counter-affidavits filed within 20 days after the 

submission of plaintiffs' affidavits. On August 16 and 22, 

1974, plaintiffs submitted affidavits requesting a total of 

$31,379.00 of which $28,979.00 was for services rendered by 

undersigned counsel, and $2,400.00 for services rendered by 

James M. Nabrit, 111, Esq. Defendants did not file counter- 

affidavits, or otherwise contest the reasonableness of the 

amount of the fee sought; accordingly, the sole issue presented 

by the pending motion is whether defendants are liable for 

such fees. 

 



  

I. A \NTS ARE LIABLE FOR AN AWARD OF > 

COUN N SI 3d Ly FEE 1S AS 5 Pf ART OF COS TS 

    

  

Plaintiffs maintain that defendants are liable for 

counsel fees on two independent grounds. First, counsel fees 

are required by Section 718 of the Emergency School Aid Act of 

1972, 20 U.,85.C. §1617. Second, counsel fees are required 

in this case by the "private attorney general" rule adopted by 

the Fifth Circuit in Lee v. Southern Home Sites Corp., 444 F.2d 
  

143 (5th Cir. 1971) 

(A) Section 718 

Section 718 of the Emergency School Aid Act of 1972, 
te 

20. U.5.C. §l617, provides: 

    

   

  

   
    

    

“the United States against 
ti : State (oF 

ited States 

fatinre to 
this chapter 

basis of race, or for di 

| lat ion of 

chat the proceedings were Cy £0 
bring about compliance, may allow the prevail- 
ing party, other than the United States, a 

reasonable attorney's fee as part of the costs. 
[ Emmy ohas 1g s Added ] . 

Section 718 clearly contemplates the instant case: 

(a) a "final order" was entered in this action by the district 

court on July 12, 1974; (b) the order was directed against an 

agency of the State enjoining conduct covered by the statute; 

(c) although a portion of counsel's input occurred prior to the 

| effective date of the Act, the Supreme Court has held that an 

award of fees does not turn on whether the work was performed 

subsequent to the effective date of the Act; (d) similarly, 

although the statute suggests that the district court has 

"discretion" the Supreme Court has held that an award must be 

 



  

made absent extraordinary circumstances. 

(i) A Final Order was Entered in this Action 
  

The court's July, 1974, order upon which we have | 

moved for attorneys' fees, provides for the retention of 

jurisdiction by the district court and contemplates further 

hearings and orders; nevertheless, it is clearly "final" 

within the meaning of Section 718: 

To delay a fee award until the 
entire litigation is concluded 
would work substantial hard- 
ship on plaintiffs and their 
counsel, and discourage the 
institution of actions despite 
the clear congressional intent 
to the contrary evidenced by 
the passage of §718. A district 
court must have discretion to 
award fees and costs incident to 

the final disposition of interim 

Ol Board 

  

The Supreme Court has thus defined a "final order” 

[1] as one which achieves the "final disposition of [an] interim 

matter." This Court's July, 1974, order definitively disposes 
nN 

16
9]

 of all substantive issues raised by this litigation, resolve 

De the question of textbook aid for the overwhelming majority of 

Mississippi private schools and fully satisfies the Bradley 

standard. 

(ii) §718 provides for the award of fees in cases 

charging violations of the Fourteenth Amendment as it pertains 

to elementary and secondary education. Although this language 

of the statute clearly covers the instant litigation, plaintiffs 

can go a step further: it is clear from the legislative history 

of §718, that Congress was deeply concerned with state support 

for segregationist academies formed in the wake of public school 

desegregation and expected §718 to assist in litigation 
| 
{ 

challenging such activity. Three excerpts from the Section 718 

congressional debates effectively illustrate the point: 

 



  

SENATOR MONDALE: 

. There have been allegations by the National 
Education Association that several thousand 
black teachers have been fired in the South, 

or demoted. I would like to see lawsuits 

  

  

brought on that. There has been testimony 
that some schools have taken public property 

   

    
  

Ls a gp n ~ = Le 

away to segregated private 
  

      
pr ——" - 

ec TO SE ee so
me 3 SW 

. . . . Unfortunately they   

have Tot. been forthcoming. 

Vol.-"117 Cong. Rec, at 10762. 

    

We have to look upon this matter in the 
light of the crisis in the area of school 
desegregation enforcement today. 1 do 
not think that one percent of the cases 
which should be brought are being brought. 
Hundreds of black tea orgs who have been 

  

      

fired are walking the streets, with no 
one to help them, no one to bring lawsuits 
on their behalf. School property is being 

    

to private [segre 
  

  

Vol. 117 Cong. Rec. 11343 

to segregation academies . . . in my 
learly violate[s] the proscr 

tion of the 14th Amendment. And "what 

this bill does. in essence. 1s that it 

says a party is entitled to pursue his 
remedy [of an attorney's fee] if there 
igs a violation of . . +. the l4th Amendment 
to the Constitution of the United Stat 

Senator Mondale, Vol, 117 Cong. Rec. 
followed, by Senator Cook, 117 Cong. Rec. 

11725-26" 

The legislative history therefore compels a holding 

  

J 

{
3
 

0
 

that the statute's reference to an award of an attorney's fee 

in cases challenging "discrimination on the basis of race . . 

in violation of . . . the Fourteenth Amendment" permits no 

distinction between cases aspiring the attainment of fully 

unitary public school systems and cases challenging state 

support for segregated private academies. 

  

Y/ Senators Mondale and Cook introduced the Section 718 
legislation. Vol, 117 Cong. Rec. 11338-11345; Vol. 117 Cong.Rec. 
11520-23, 11724-26. No provision comparable to Section 718 
was ever introduced in the House. U.S. Code Cong. & Admin. News, 

92 Cong. 248 Session, 1972, p.2668. 

 



  

(iii) A subatancial portion of the services 

rendered by undersigned counsel were performed prior to July 1, 

1972, the effective date of Section 718. See Pub. L. 92-318, 

§2 (c)1l. Although the statute is silent on whether pre-Act : 

counsel fees may be awarded, the Supreme Court has fully 

i 

considered and unanimously resolved this question in plaintiffs 

favor. Bradley v. Richmond School Board, supra, 40 L.Ed. 2d 
  

at pp. 487-494. There the Court upheld a district court's 

award of attorneys' fees, in a school desegregation case, for 

pre-July, 1972 services, and held that section 718 mandates 

such awards provided only that the case was pending on July 1, 

1972.°440 L.Ed. 24. at 494). 

This action, filed in September 1970, was intensively 

litigated from that date through this Court July, 1974 order; 

the case was pending in July, 1972 :(in the Supreme Court) and it 

ve i ~~ 

is therefore subject to the holding of Bradley, supra. 

(iv) Although Section 718 suggests that a court 

"may" award counsel fees its discretion has been largely 

removed by the Supreme Court's holding in Northcross v. Board   

    of Fducation, 412 U.S. 427 (1974). HNorthcross established the 

principle that attorneys' fees in Section 718 cases must be 

awarded "unless special circumstances would render such an award 

unjust: " 
Section 718 tracks the wording of 

§204 (b) of the Civil Rights Act of 1964, 
78 Stat 244, 42 USC §2000 a-3(b), which 
provides that, in an action seeking to 
enforce Title II of that Act, "the court, 
in its discretion, may allow the prevail- 
ing party, other than the United States, 
a reasonable attorney's fee as part of 
the costs v.'v is «Y In Newman vy. Pigaie 
Park Enterprises, Inc. 390 US 400, (1968), 
we held that, under §204 (b), "one who 
succeeds in obtaining an injunction under 
that Title should ordinarily recover an 
attorney's fee unless special circumstances 

  

  

  

would render such an award unjust." Id., 
at 402. The similarity of language in 
§718 and §204(b) is, of course, a strong ; 

 



  

indication that the two 
should be 

Moreover, "the two provisions 

share common raison d'etre. 

plaintiffs in school cases are 
att -orneys general' vindicati 
poiicy in the same sense 
in Title II actions. The 

both provisions wa the 
‘to encourage ind uals in 

racial discrimina tO 
yelieft  -, eo te 

a. 

for 

ivid 

1 1 on 

ot 
~ 

cng kr 
CA 

  

  

      

Johnson V.. 
471 F. 29 84, 86 (CAS 1972 Vo 

Newman v. Piggic Entexrp: 

at 402, 2d 

werefo ) that, a 

3}, if other regud rements. 
sfied, the succes 

plaintiff; should ordinarily x 
an attorney's fee unless speci 
circumstances would render 
award unjust.” 390 US. at 

§718 are sati 
= fu [1 

may have good faith, 

sucl 
402. 

statutes 

interpreted pari passu. 

The 

‘private 
ing national 

as are plaintiffs 
enactms 

ame 
ed 2 oY 

dic et 

Combs, 

Gaorl ny 

     
oo ver 

a3 a 

Tian 

counsel fees. See Newman v. Piggie Park Enterprises 
  

380 U.S. 400, 402 There are no 

in this case which would render an award of 

unjust. 

For the foregoing reasons, section 

an award of attorneys' fees in the 

for services rendered prior and subsequent to 

date of the Act; the only obstacle is 

discus sed infra, pp. 10-11. 

couns 

718 

full amount 

requires 

requested - 

the effective 

the Eleventh Amendment, 

  

ant OF 

Sa 

circumstances” 

el fees



  

(B) Private Attorney General Rule 
  

Even in the absence of an express statutory authorization, 

the Fifth Circuit requires that counsel fees be awarded to any 

successful plaintiff who, as a result of the litigation, 

  

vindicates important public policies. In Lee v. Southern 

Home Sites Corp., 444 F.24 143 (5th Cir. 1971), a housing 
  

discrimination case under 42 U.S.C. §1982, the appeals court 

We hold that attorney's fees 
are part of the effective remedy 
a court should fashion to Saxe. 

out the congressional policy em 
bodied in Section 1982 ie vi 

The recent case of Mills v. Electric 
Auto-Lite Co., 1970, 396 U.85. 375, 

  

e vo Gemonstrateg that iL is proper 
to award attorney's fees when this 
remedy effectuates congressional 
policy ow Te ul Section 10982 “3s nok 

tute providing detailed remedies, 
and thus the policy of effectu 
congressional purpose does not militate 
against an award of attorney's fees. 
Adit ionally, here as in Mil: 
strong congressional policy 
rights declared in §1982. Awarding 
attornev's fees to succesaful plaintiffa 

would facilitate the enforcement of 
that policy through private litigation. 
444 F.24 at 145. 

Counsel fees were to be awarded to successful plaintiffs 

"unless special circumstances would render such an award unjust.” 

444 F.2d at 147. The Fifth Circuit has also applied the 

private attorney general rule to litigation under §1981 to 

enjoin employment discrimination by local government agencies, 

cooper v. Allen, 467 F.2d 836, 841 (5th Cir. 1972) and to an 
    

award of counsel fees in litigation under the Voting Rights Act 

of 1965, Fairley v, Patterson, 493 F.24 598, 606 (5th Cir. 
  

1974). 

in Callahan v. Wallace, 466 F.24 59 (5th Cir. 1972) 
  

an action under §1983 challenging police practices, the Fifth 

Circuit directed that counsel fees be awarded because "plaintiffs 

attorneys rendered a public service." 466 F.2d at 62. The 

ia ie 

 



  

private attorney general rule also requires an award of 

attorneys' fees in actions successfully charging racial 

discrimination in the dismissal of Bla ck teachers. Cornist Ve 

Richland Parish School Board, 495 F.2d 189, 192 (5th Cir.1974)   

The private attorney general rule although formulated by the 

th Circuit has been adopted by six other circuit courts 

of appeals. Knignt v, Auciello, 453 ¥.24 853 (lst Cir. 197   

National Resources Defense Council Inc., v. Environmental   
  

Protection Agency,484 F.2d 1331, 1333-34 (lst Cir. 1973); 

  v. Thompson, 494 F.2d 885 (9th Cir. 1974); 

  

y PS 
- f 

Fowler v. Schuarzwalder, 498 F.2d 143 (8th Cir. 1974); Wilderness 

Society v. Norton, 495 P.24 1026, '1029-1037 (D.C. Cir. 1974 

Donahue v. Staunton, 471 2.24 475 (7th Cix. 1972); Morales 

v. Haines, 486 F.2d 88 382 (7th Cir. 1973) y Milburn wv. 

- 

  

ar, i{8o, 73-1259, 6th Cir.) (Opinion dated August 5, 197 

™n 3% least 22 cases fedaral Aistrich courts have awarded 

counsel fees under the private attorney general rule, without 

regard to proof of "unreasonable, obdurate obstinacy." See 

  

1187, 1217-1218 (D. Md. 1973) (Employment discrimination; 42 

    U.85.C. 881981, 1983) Stanford Daily v. Zurcher, 366 F.Supp. 

21-26 (N.D. Cal. 1973) (unlawful search and seizure; 42 U.S 

$1983); Ross v, Goshi, 351 F.Supp. 94%9,955-56 (D. Hawaii 1972);     

18, 

Jinks v, Mavs, 350 P.Supp. 1037, 1038 (N.D. Ga. 1972) (employ- 

nent discrimination; 42 U.S.C. §1©83); Holt v, Hutto, 363 
  

P.Supp. 194, 217 (E.D. Ark. 1973) (prison conditions; 42:U.S5.C. 

§1983); Newman v. State of Alabama, 349 F.Supp. 278, 286 (M.   

Ala, 1972) {hospital conditions; 42 U.S.C. §1983}); Sims v. 

Amos, 340 F.Supp. 691, 693-95 (M.D. Ala. 1972) (reapportion- 

ment; 42 U.S.C. §1983) aff'd U.S. ; NA A.C.P. VV. 
  

Allen, 340 F.Supp. 703, 707-710 (M.D.Ala. 1972) (employment 

Mayor and City Council of Baltimore, 359 F.Supp. 

@ C. 

 



  

La Raza discrimination; 42 U.S.C. §1983). 
  

Unida v. 

57 F.R.,D. 94, 980102 (M.D. Cal, (environmental protection): 

of Correc Services, Kirkland v. New York State Dept. 
  

374 F.Supp. 1361, 1381-82 (S.D.N.Y. (employment discrimina- 

| Men of Allen County tion: 42 U.S.C. £51981, 1983); 
    

Ohio 1973) (prison conditions; v, Palr, 376 F.Supp, 483, 485 

374 F.Supp. 136-140 
- TE 1000 ; Tonk 1 ro 42 0.5.C. §1983) Th onen v, Jenkins, 

o>
 

No
 (E.D. N.C. 1974) (free speech 

Vv. Lynn, 364 F.Supp. 834, 84 

    

Protection); Calnetlcs Corp. 
    

(C.D. Cal. 1973) {Clayton Act 

344 F.Supp. 387 (M.D. Ala. 

Lyle Va Teresi, 327 F.Supb. 

conduct; 42 U.85.C. § 1983); 

(S.D. Miss. 1971) (employmen 

1283): Ford v., White, (8.0. 

August Kh. 1972). Jordon wv, 

  

(conditions 

rimina tion, 

(Opinion da 

  

(opinion dated March 9, 1¢73), 

{eth Cir. 1974) (opinion 

Opelika City Schools, 63 F. 
Or amerae emasgn 
  

dated July 18, 

  Delaware Citizens (employment discrimination; 42 U.S.C. §1983); 

62 F.R.D. for Clean Air, Inc,, v. Stauffer Chemical 
  

  

(1274) (environmental protection); 

Philadelphia Police, etc.v. 

  

  

1973) (police misconduct; 42 U.S.C. 

¥iison, 356 P.Supp. 35,42 

§1983) ; Smith v. Citv of Ba 

also Doherty v. 

42 U.8.CL 

st Cleveland, 
  

42 U.S.C. (N.D. Ohio, 1973) (employment discrimination; 

Brown v. Ballas, 331 F.Supp. 
  

(housing 

Hammond v. discrimination; 42 U.S.C. §1982); Housing Authority, 
  

discrimination; 328 F.Supp. 586, 588 (D. Ore. 

  

1971) (housing



  

42-U.5.C.  €1983); Stevens Vv. Dohs, Inc,, 3 

(E.D. N.C. 1974) (housing discrimination; 

  

73 F.Supp. 618,620 

42 U.S.C. '§1982). 

Manifestly, Delores Norwood and other plaintiffs in this 

litigation, acting as "private attorneys' g 

"vindicated a national policy of high prior 

20 L.Ed. 2d at--49°3,.-n.27. The relief obta 

immediate termination of more than $200,000. 

segregated private schools and effectively 

annual expenditures by defendants in behalf 

This litigation has effectively vindicated 

commitment - articulated by Congress and th 

courts - to the uprooting of all forms of 

[) 

institutions practicing racial discriminati 

within the private attorneys' general rule, 

of counsel fees. 

II. Section 718 and the "private atto 

principle are not at odds with the Eleventh 

- 

that Amendment does not apply to an award o 

i} 

fees against state officials. 

III. Alternatively, the Fourteenth Ame 

the Eleventh Amendment and to the extent tha 

between these two provisions the latter mus 

  

2/ The impact of the Eleventh Amendment a 
the very issue presented in this case, is b 
Court: Jordan v. Gilligan, 6th Cir, No, 73- 
petition for writ of certiorari pending. S. 
Term, 1974. For the convenience of the Cou 
this memorandum, the petition for writ of c 

  

    

The impact of Edelman upon attorneys 
the state 1s also pending before the Fifth 
Colliery, 489 F.28 298 {5th . Cir. 1973), end 
argument, October 4, 1974). 

eneral, have 

ity," Bradley, supra, 

ined resulted in the 

in state aid to 

foreclosed comparable 

of such schools. 

our Nation's 

e highest federal 

state support for 

on, and clearly fall 

requiring an award 

rneys' general” 

Amendment because 

Ff costs or counsel 

ndment supercedes 

vt there i: 

+ aconkroY. 

nd Pleiman upon 
efore the Supreme 
1973, July #18,1974, 
Ct. No. + , October 

rt, we submit with 
ertiorari in that ca 

fees awarded against 
Circult inuCates v. 
anc pending (oral 

oo 
SE 

a conflict 

 



  

CONCLUS ION 
  

For the foregoing reasons plaintiffs respectfully 

urge the Court to hold: (a) that plaintiffs are entitled 

to attorneys' fees in the amounts specified in their 

affidavits on file, subject only to a determination of 

whether the Eleventh Amendment as construed in Edelman v. Jord hi 
an, 

  

forecloses the award against the state tre @easury; on this 

latter question plaintiffs respectfully urge the Court to hold 

  

  

     

   

   

  

   

At the moment there is a pronounced disagreement 
among the YAR ous circuit courts of appeals on Edelman's 
11m v1 orneys' Faas, Three circuit 

  

the states: 

     TL 

  

496 

does not resolve the broader question of 
extent the Bieventh 

reconciled or whether the Four I ; 
Eleventh so as to result in a different st -andard in cases 
charging racial discrimination. S 
Marshall, note 2, in Edelman V. JOrc 

  

an. 
    

Undoubtedly, this Court must wait for the dust to 
settle. 

 



  

the case in abeyance pending resolution by the Fifth Circuit 

of Gates v. Collier and/or resolution by the Supreme Court 
  

  

    
MELVYN R. LEVENTHAL 

10 Columbus Circle 

Room 2030 

New York, N.Y. 10019 

"TT thn rt CY Tr IY? T TT 

Cp R i id FH OF he Bl Vi » 5 

  

G TEs LAr J - ee 7S pdr few JF wy fee ~ I Pn #1 Mig 11 3 . si my. 1 hereby certify that on this llth day of October, 1974 

1 served one copy of the foregoing Memoranc    
i TA 1 ’ ¥ 

sundae Feed upuil Cuulisel Lor aerendants Dy mailing same to 

Q fe omy de on I Pe 
lalesS, airmail ~

~
 

him at the address set forth below, via United dap 

postage prepaid. 

v DE ua William Allain, Esq. 
Suns Aves, P.O. Box 220 

ia | Jackson, Mississippi 9205 [||3d89c839-3f87-454a-b4a0-18b5818edb3c||]