Metro Board of Education of Nashville, Tennessee v. Kelley Brief in Opposition to Petition for Writ of Certiorari

    Questions Presented 
1 . Whether the court of appeals

correctly decided that, in conformity with 
the practice of this Court and virtually 
every other circuit, the determination of 
entitlement to attorneys' fees for a 
successful appeal in a civil rights case 
should be made in the first instance by 
the district court?

2. Whether the court of appeals,
based on the facts of this case and its 
determination of the meaning of its own 
prior orders, correctly held that pre­
vailing plaintiffs in this school desegre­
gation suit were entitled to fees for work 
done prior to 1972, in conformity with

l



Bradley v. City of Richmond, 416 0.S. 696 
(1974) and Hutto v. Finney, 437 U.S. 678 
(1978)?

3. Whether the court of appeals 
correctly remanded this case to the 
district court for reconsideration of the 
amount of the fee award under proper legal
standards?



Table of Contents
Questions Presented ................
Table of Contents ..................
Table of Authorities ..............
Statement of the Case ..............
Reasons Why the Writ
Should Be Denied ..................
I. The Sixth Circuit's Ruling 

Reaardinq the Relationship 
Between Costs And Attorneys'
Fees Does Not Conflict With 
The Rulinas of Any Other Court 
of Appeals Or of This Court . .

II. There Is No Conflict Between The 
The Circuits with Regard to
The Availability of Fees for 
Work Done Prior to 1972 . . . .

III. The Question of the Calculation 
of The Amount of Fees Does Not 
Warrant Review by This Court . .

Conclusion .



Table of Authorities

Cases:
Blum v. Stenson, ___ U.S. ___, 79

L . E d . 2 a  891 ( 1 9 8 4 ) ...........................  24

Bradlev v. School Bd. of Richmond,
416 U.S. 696 (1974) . . .  19, 21, 22

Brown v. Board of Education, 347 U.S.
483 ( 1954)...................... 2

Buian v. Baughard, 687 F.2d 859 (6thCir. 1982)..............  12, 13, 1 5
Christiansburg Garment Co. v. EEOC,

434 U.S. 412 ( 1978)............  1 5
Gaines v. Dougherty County Bd. of 

Ed., 775 F.2d 1565 (11th 
Cir. 1985)..................  19, 20

Hanrahan v. Hampton, 446 U.S. 754
( 1980)........................   16

Hensley v. Eckerhart, 461 U.S. 424
(1983)....... ................. 23

Hutto v. Finney, 437 U.S. 678( 1978) . ~........... 16, 17, 19, 21
Kelley v. Metropolitan Board of Ed.,

317 F. Suop. 180 (M.D. Tenn.
1970)..........................  3

Kelley v. Metropolitan Bd. of Ed.,436 F.2d 856 (6th Cir. 1970) . . 3
Kelley v. Metropolitan Bd. of Ed., 463 

F. 2d 732 (6th Cir. 1972), cert, 
denied, 409 U.S. 1001 (1972) 4

IV.



5Kelley v. Metropolitan Bd. of Ed., 492 
F. Supp. 167 (M.D. Tenn. 1980) . .

Kelley v. Metropolitan Bd. of Ed., 571
F. Supp. 1363 (M.D. Tenn. 1981) . 6

Kelley v. Metropolitan Bd. of Ed., 687 
F.2d 816 (6th Cir. 1982), cert, 
denied, 459 U.S. 1183 (1983) . . .  6

Marek v. Chesney, ___ U.S. ___, 87 L.Ed.
2d 1 ( 1985)........................ 6

Min'S v. Wilson, 514 F. 2d 106 (5th
Cir. 1.975)......................  14

Mount Healthy City Bd. of Ed. v. Doyle,
429 U.S. 214 ( 1977)............ 17

Parham v. Southwestern Bell Tel. Co.,
433 F.2d 421 (8th Cir. 1970) . . 14

Statutes;
20 U.S.C. § 1617..................  18
42 U.S.C. § 1988 ................  12, 18
Court Pules:
Rule 14(a), Rules of the United States

Court of Appeals for the Ninth 
Circuit........................... 1°

Rule 17, Rules of the United States 
Court of Appeals for the 
Eighth Circuit ................  10

Rule 39, F.R. Civ. Proc. . . . 10, 11, 15
Rule 50, Rules of the Supreme Court of

the United States.................10

v.



NO. 85-870

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1985

METROPOLITAN COUNTY BOARD OF EDUCATION 
OF NASHVILLE AND DAVIDSON COUNTY 

TENNESSEE, et al.,
Petitioners,

v.
ROBERT W. KELLEYf et al., 

Respondents.

On Petition for Writ of Certiorari to 
the United States Court of Appeals 

for the Sixth Circuit

BRIEF IN OPPOSITION TO THE PETITION 
FOR A WRIT OF CERTIORARI

Respondents respectfully urge that 
this case presents no issues that warrant 
review by this Court. Rather, it



2

involves: ( 1 ) an internal operating
procedure of the Sixth Circuit; (2) a 
nonrecurring issue relating to the 
retroactive application of the attorney 
fee statutes; and (3) the specific facts 
relating to an appropriate fee award in 
this case.

STATEMENT OF THE CASE 
This school desegregation case, which 

was filed one year after Brown v. Board of 
Education, 347 U.S. 483 (1954), is finally 
reaching its end. Filed in 1955 against 
the Nashville, Tennessee Board of Educa­
tion, in 1963 it was consolidated with a 
parallel class action suit initiated 
against the Davidson County Board of 
Education in 1960. Although plaintiffs 
continued to press for relief, no signifi­
cant school desegregation had occurred by 
the end of the decade. On July 16, 1970,



3

the District Court enjoined defendants 
from any construction and ordered the 
Board to develop a comprehensive desegre­
gation plan. Kelley v. Metropolitan Board 
of Education, 317 F. Supp. 180 (M.D. Tenn. 
1970) .

The Board submitted its plan on 
August 25, 1970, but the District Court 
effectively stayed its order until the 
Supreme Court's resolution of pending 
school desegregation cases. The Court of 
Appeals for the Sixth Circuit vacated the 
stay and reinstated the District Court's 
order and noted that ". . . the instant 
case is growing hoary with age." Kelley 
v. Metropolitan Bd. of Ed., 436 F. 2d 856, 
858 ( 6th Cir. 1970). Upon remand the 
district court heard various desegregation 
plans, and selected an HEW plan. The 
Sixth Circuit affirmed. Kelley v.



4

Bd. of Ed. , 463 F. 2d 732 (6th Cir. 1972), 
cert. denied, 409 U.S. 1001 (1972), 
noting that ”[t]he order of the District 
Judge is the first comprehensive and 
potentially effective desegregation order 
ever entered in this litigation." 463 
F.2d at 734 (emphasis added).

During the ensuring years the 
plaintiffs continued to press for complete 
and effective relief, moved for the 
addition of new part ies-def endant, 
objected to proposed attendance zone 
changes and school utilization plans and 
sought a more eguitable distribution of 
desegregation burdensJ Between 1973 and 
1979 the District Court did not take any 
action in this case, although the School 
Board filed various petitions relating to

1 For a detailed account of events between 
1971 and 1975, see 492 F. Supp. 172-75.



5

construction and the utilization of 
facilities. The plaintiffs responded to 
these petitions and filed motions for 
contempt in 1 976 and 1.979. In the latter 
motion plai-ntiffs alleged that the Board 
did not implement the 1971 plan in good 
faith and that the Board had contrived to 
perpetuate segregation.

The District Court held hearings in 
Auaust of 1979. After finding that the 
Board had violated the spirit of the 1971 
order, the District Court ordered it to 
devise a new comprehensive desegregation 
plan. After further hearings in the 
spring of 1980, the District Court held 
that the 1971 plan had been ineffective 
and gave specific direction to the Board 
on the necessary elements of a new plan. 
Kelley v. Metropolitan Bd. of Ed.,t 492 F.
Supp. 167 (M.D. Tenn. 1980).



6

The Board filed its plan on January 
19, 1981, and plaintiffs filed objections
on March 25, 1981. After a further
hearing on March 30, 1981, the District
Court rejected plaintiffs' plan and 
ordered implementation of the Board's 
plan. The court also lifted its 1971 
restriction on new construction. Kelley 
v. Metropolitan Bd. of Ed., 571 F. Supp. 
1363 (M.D. Tenn. 1981). The Sixth
Circuit's opinion and order, which 
affirmed in part and reversed in part, 
remanded for, inter alia, the development 
and implementation of a more comprehensive 
student assiqnment plan and for resolution 
of plaintiffs' unresolved requests for 
attorneys' fees dating back to the 
inception of the lawsuit. Kelley v.



7

Metropolitan Bd. of Ed., 687 F.2d 814 (6th 
Cir. 1982), cert, denied, 459 U.S. 1183 
(1983).

On remand, the parties agreed to a 
final desegregation plan which, hopefully, 
will result in a desearegated and unitary 
system. The issue in the case as it 
reaches this Court relates solely to the 
appropriate amount to be awarded as 
attorneys fees to plaintiffs' counsel for 
their unremitting efforts over three 
decades to finally bring the Nashville 
school system into compliance with the law 
of the land as declared by this Court in 
1954.

The initial attorneys' fee applica­
tion was filed in early 1974. However, no 
action was taken on it by the district 
court until 1982. Pet. p. A-2. Through a 
variety of procedural rulings the district



8

court limited the award to 8139,000, far 
less than the school board paid to counsel 
to defend it in its attempts to evade its

9obligations under the law. The court of 
appeals held, rightly, that the amount 
awarded was inadequate and has remanded 
the case to the district court for further 
proceedings to determine the appropriate 
award.

None of the questions decided by the 
court of appeals are of such general 
applicability that they require review by 
this court. Rather, they arise from the 
specific factual context of the present 
case, relate to internal operating

As the court of appeals noted, in one 
five-year period alone, the defense 
attorneys received $288,000 in fees. Pet. 
p. A—18, n. 8.



9

procedures of the court of appeals, and to 
that court's interpretation of the meaning 
of its prior orders.

REASONS WHY THE WRIT SHOULD BE DENIED
I.

The Sixth Circuit's Ruling 
Regarding The Relationship 
Between Costs And Attorneys' Fees 
Does Not Conflict With The 
Rulings of Any Other Court of 
Appeals Or of This Court.

The first issue presented by the 
petition in fact relates primarily to the 
procedures to be followed by a court of 
appeals in awarding attorneys' fees 
relating to a successful appeal in a 
civil rights case. The decision of the 
court below has put it in conformity with 
the practice of every other court of 
appeals, save two, and is fully consis-

3 Only the Eighth and Ninth Circuits have



10

tent with the civil rights attorneys' fees
statutes and Rule 39(a), F. R. App. Proc.

The practice of the courts of appeals
and of this Court is to award costs
mandated by rule or statute automatically
under certain circumstances. Thus, for
example, if an appellant prevails he will
ordinarily be reimbursed for printing the
appendix, for filing fees, and, in the

4circuit courts, for printing the briefs. 
On- occasion, where, for example, there 
have been cross-appeals and the court has 
affirmed the judgment of the lower court 
in toto the appellate court will simply

adopted the practice of the appellate 
court determining fee awards for appeals 
in civil riahts cases. Rule 17, Rules of 
the United States Court of Appeals for the 
Eighth Circuit, Rule 14(g) of the Rules of 
the United States Court of Appeals for the 
Ninth Circuit.
Rule 50, Rules of the Supreme Court of the 
United States; Rule 39, F.R. App. Proc.



provide that both parties will bear their 
own costs.5 With the exceptions of the 
Courts of Appeals for the Eighth and Ninth 
Circuits , on the other hand, the 
practice of the courts of appeals has been 
to leave the award of attorneys' fees with 
regard to appeals to the district court 
when, at the end of either the entire case 
or some discreet part thereof, it deals 
with the issue of entitlement to fees. 
The advantage of this practice as a 
practical matter, of course, is that where 
an attorneys' fee application is disputed 
issues relating to the appropriate amount 
may be resolved in a forum, appropriate for 
the takinq of evidence.

5 See, Rule 39, F.R. App. Proc., giving discretion to the court in assesssment of 
costs where a judgment is affirmed or 
reversed in part.

6 See, n. 3, supra.



12

In Buian v. Baughard, 687 F. 2d 859 
(6th Cir. 1982), the Sixth Circuit 
departed from this procedure and announced 
that a prevailing plaintiff would not 
receive fees for appellate work unless he 
had already been awarded costs for the 
appeal. Thus, it eouated the standards for 
awarding costs under Rule 39 and awarding 
fees under 42 U.S.C. § 1988.

Despite the announcement of this rule 
by one panel of the Sixth Circuit, various 
other panels did not follow it in prac­
tice, and there were a series of orders 
sending back to the district court the 
Question of the disposition of fee 
requests for work done on appeal. In the

1 See e.g., Greer v. Holt, No. 80-1548, 
Order of November 9, 1983; Buchanan v. 
City of Jackson, No. 81-5333, Order of 
Anri 1 23. 1984: Rowe v. Cleveland Pneuma- 
tic Company, No. 80-1407; King v. Roberts, 
No.82-5427, Order of Oct. 7, 1983; League 
of Women Voters of Tennessee v. Collins, 
No.81-5625, Order of Dec. 22, 1983. See



13

present case the original panel avoided 
the Buian rule by holdina that it only 
applied to appeals decided after its 
announcement. Therefore, it was inappro­
priate for the district court to deny fees 
to the plaintiffs for successful appeals 
disposed of before Buian was decided.

Faced with the confusion which Buian 
had generated between panels of the court, 
the Sixth Circuit appropriately decided to 
deal with the Question eri banc in the 
present case. It held that because of the 
different standards for awarding attor­
neys' fees in civil rights cases and in 
awarding costs under Rule 39, the appro-

i

priate procedure to follow would be to 
have a district court award fees to 
prevailing plaintiffs for appeals in which

also. Green v. Francis, No.81-5870, Order 
of June 20, 1983.



14

they were successful irrespective of 
whether costs were awarded under the rules 
of appellate procedure. (Pet., pp. A-6 to 
A-9. )

This is precisely the practice 
followed by virtually all other courts of 
appeals and, indeed, is the practice 
followed by this Court. Clearly, pre­
vailing plaintiffs are entitled to fees 
for the time spent on successful 
appeals,8 and just as clearly courts of 
appeals and this Court are ill-equipped to 
determine the amount of such fees. Since 
the standards for fees are different than 
the standards for awards of costs, the 
automatic and mechanical linking of the

8 See, e.g., Mims v. Wilson, 514 F.2d 106 
(5th Cir. 1975); Parham v. Southwestern 
Bell Tel. Co., 433 F.2d 421 (8th Cir.
1970).



15

two, as was done in Buian, was in error 
and the court of appeals below has adopted 
the appropriate practice.

The petitioner's attempts to argue 
that there is no difference between fees 
and costs is simply a semantic game. For 
example, a successful defendant-appellee 
would be entitled to costs incurred in the 
court of appeals for printing its brief as 
matter of course.^ It would not, however, 
be entitled to attorneys' fees as a matter 
of course since a defendant may only 
receive fees under the strict standards of 
Christiansburg Garment Co. v. EEOC, 434 
U.S. 412 (1978). Conversely, a plaintiff- 
appellant may receive its appellate costs 
as a matter of course if successful on 
appeal from a dismissal of the action but 
would not be entitled to fees for that

9 Rule 39(a), F.R. App. Proc.



16

appeal unless and until it was successful 
in some degree on the merits. Hanrahan v. 
Hampton, 446 U.S. 754 (1980).

Thus, the sum and substance of the 
decision of the court below to reject its 
own rule in Buian, is one of the proce­
dures to be followed by the Sixth Circuit. 
None of the cases cited from other 
circuits by petitioner took the position 
of the Buian panel and, therefore, there 
is no conflict. Nor is the decision in
conflict with Marek v. Chesny, ____ U.S.
_____ , 87 L . Ed. 2d 1 ( 1985) which dealt
with an entirely different Question 
relating to the relationship of attorneys' 
fees and costs under Pule 68.

Finally, the petitioner's suggestion 
that the decision below is in conflict 
with the Eleventh Amendment, is totally 
without foundation. First, this action



17

involves local government bodies, Davidson 
County and the county school board. This 
Court has long held that the Eleventh 
Amendment does not apply to local govern­
mental units.10 Second, this Court held 
squarely in Hutto v. Finney, 437 U.S. 678 
(1978), that there was no Eleventh 
Amendment bar to the award of attorneys' 
fees even against states.

II.

There Is No Conflict Between The 
Circuits With Regard to The 
Availability of Fees for Work 
Done Prior to 1972

Petitioners, by their second question 
presented, similarly seek to construct a 
significant issue involving a conflict 
between circuits where there simply is

See, Mount Healthy City Bd. of Ed. v. 
Doyle, 429 U.S. 274, 280 (1977) and cases 
there cited.

10



18

none. At issue in this case was whether 
the Sixth Circuit's disposition of earlier 
appeals constituted such a break in the 
litigation that fees should not be awarded 
for work done prior to the effective dates 
of the subsequently enacted attorneys' 
fees statutes.^

First this question lacks importance 
because it is unlikely to be recurring. 
Counsel for respondents have been involved 
in virtually all of the school desegrega­
tion litigation that arose prior to the 
effective date of the 1972 and 1976 fees 
acts. To our knowledge, there are at best 
two or three cases, that may involve 
issues even remotely similar to the one

11 20 U.S.C. « 1617 (1972) and 42 U.S.C.
§ 1988 (1976).



19

presented here. See, e .g.,Gaines v. 
Dougherty County Bd. of Education, 775
F.2d 1565 (11th Cir. 1985).

Father, the Question of entitlement 
to fees for work done prior to the 
enactment of these statutes was largely 
disposed of by this Court's decisions in 
Bradley v. School Board of Richmond, 416 
U.S. 696 ( 1 974) and Hutto v. Finney,
supra. In a few cases, the question arose 
whether there had been a break in the 
litigation either through the entry of a 
final desegregation order or through the 
final disposition of a fee application 
prior to the effective dates of the fee 
statutes. With the exception of the
present case and Gaines those cases were

1 2decided years ago.

12 The cases cited in the Petition for Writ 
of Certiorari at pp. 16-20 are essentially 
all of the cases in which the issue arose.



20

In each instance, whether fees could 
be recovered for pre-1972 work depended on 
the peculiar facts of each case and of 
courts of appeals' interpretations of 
their own disposition of earlier appeals. 
In Gaines, for example, whether or not 
plaintiffs' attorneys were entitled to 
fees for pre-1 972 work was dependent on 
the meaning of prior orders of the 
appellate court that vacated or reversed 
district court orders relating to desegre­
gation plans but that did not implicitly 
dispose of appeals of denials of attor­
neys' fees. The Eleventh Circuit
reviewed the record and dispositively
interpreted the meaning of its prior 

1 3orders.

The earlier decisions were rendered by the 
Fifth Circuit before its split into the 
Fifth and Eleventh Circuits.



21

Here, similarly, the issue of entitle­
ment to fees for pre-1972 work depended on 
the interpretation of the meaning and 
effect of earlier orders within the 
peculiar facts of this case. The court of 
appeals, interpreting its own earlier 
decisions as well as those of the district 
court, concluded that there had been no 
break in the litigation, either actual or 
by contemplation of the parties. There­
fore, there was no bar to the award of 
fees to which the plaintiffs would 
otherwise be clearly entitled under the 
decisions of this court in Bradley and 
Hutto. In light of the facts that (1) the 
disposition of this question depends on 
the specific facts of the case and the 
court of appeals' interpretation of its



22

own orders and (2) the unlikelihood of the 
issue recurring, there is no warrant for 
review by this court on certiorari.

Further, the alleged conflict between 
circuits simply does not exist. In all 
instances the courts of appeals, in 
deciding whether the fees to which 
plaintiffs were presumptively entitled 
under Bradley should be denied, have 
applied the same legal standards and have 
determined the question according to the 
peculiar facts of the case before it. 
Thus, there is no necessity for review of 
the Question by this Court.



23

The Question of the Calculation 
of the Amount of Fees Does Not 
Warrant Review By This Court.

With regard to the final question, 
there is similarly no basis for invocation 
of this Court's discretionary review. The 
court of appeals determined that the 
district court had determined an hourly 
rate based on improper legal standards. It 
remanded the case to the district court 
for determination of the rate on an 
appropriate basis. Given the peculiar 
factual issues raised in a disputed fee 
proceeding, the question does not present 
any overriding issues that have not 
already been sufficiently addressed by 
this court in its recent decisions in 
Hensley v. Eckerhart, 461 U.S. 424 (1983),

III.



and Blum v . Stensonf U . S . f 79
L.Ed. 89 1 ( 1 984), which were cited and 
followed by the court below.

Thus, for example, the court of 
appeals applied the Blum rule that 
attorneys are to be awarded hourly rates 
that are within the parameters of custo­
mary fees in the community. The district 
court was directed to redetermine a proper 
hourly rate, which had to be at least the 
minimum that the record established was 
appropriate.



- 25 -

‘CONCLUSION
For the foregoing reasons, the issues 

in this case do not require review by this 
Court. The petition for writ of certior­
ari should be denied.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON* 
THEODORE M. SHAW 

16th Floor 99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS 
Williams & Dinkins 
203 Second Avenue, North Nashville, Tennessee 37201 
(615) 244-3988

Attorneys for Respondents
♦Counsel of Record