United States v. Richardson, Jr. Brief for Plaintiff/Intervenors-Appellees

    No. 88-5155 

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff/Intervenor-Appellant, 

vs.
RAYMOND RICHARDSON, JR., et al.,

Plaintiff/Intervenors-Appellees, 
RITA SANDERS GEIER, et al.,

Plaintiffs-Appellees,
H. COLEMAN McGINNIS, et al.,

Plaintiff/Intervenors-Appellees, 
LAMAR ALEXANDER, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the 
Middle District of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFF/INTERVENORS-APPELLEES 
RAYMOND RICHARDSON, JR., et al.

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

JULIUS L. CHAMBERS 
JOEL BERGER
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013 
[212] 219-1900

Attorneys for Plaintiff/Intervenors-Appellees Raymond Richardson, 
Jr., et al.



TABLE OF CONTENTS
PAGE

QUESTION PRESENTED 1
STATEMENT OF THE CASE 2

I. Course of Prior Proceedings 2
II. Statement of Facts 6

ARGUMENT 11
THE DISTRICT COURT PROPERLY AWARDED ATTORNEYS'
FEES AND COSTS TO THE PREVAILING PARTIES ON THE 
JUSTICE DEPARTMENT'S UNSUCCESSFUL APPEAL IN 
GEIER V. ALEXANDER. 801 F.2d 799 (6TH CIR.
1986), AN APPEAL IN WHICH THE DEPARTMENT SOUGHT 
INVALIDATION OF AN AFFIRMATIVE ACTION PROGRAM 
AIMED AT ELIMINATING THE VESTIGES OF STATUTORY 
SEGREGATION IN TENNESSEE'S SYSTEM OF PUBLIC 
HIGHER EDUCATION ................................... 11

CONCLUSION 23

i



CASES PAGE
Akron Center for Reproductive Health v. City of Akron,

604 F.Supp. 1268 (N.D. Ohio 1984)....................  14, 16
Baker v. City of Detroit, 504 F.Supp. 841 (E.D. Mich.

1980) '..................................................... ..
Bazemore v. Friday, ____ U.S. ____, 92 L.Ed.2d 315

(1986) .................................................. 5
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . 9, 11-16
City of Detroit v. Grinnell Corp., 495 F.2d

448 (2d cir. 1974) ..........................................
Firefighters v. City of Cleveland, ____ U.S. ____, 92

L.Ed.2d 405 (1986)   5
Geier v. Alexander, 593 F.Supp. 1263 (M.D. Tenn. 1984); . . . .  2
Geier v. Alexander, 801 F.2d 799 (6th

Cir. 1986) ................................. 1-3, 5, 11, 12,
20

Geier v. Blanton, 427 F.Supp. 644 (M.D. Tenn. 1977) ..........  2
Geier v. Dunn, 337 F.Supp. 573 (M.D. Tenn. 1972)   2
Geier v. University of Tennessee, 597 F.2d 1056 

(6th Cir. 1979), cert, denied, 444 U.S.
886 (1979)..................................................

Hanrahan v. Hampton, 446 U.S. 754 (1980)..................  18, 19
Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir. 1979) . . 13, 16, 18
Hensley v. Eckerhart, 461 U.S. 424 (1983) ....................  23
Hewitt v. Helms, ____ U.S. ____, 96 L.Ed.2d 654 (1987) . . . 17, 19
Kelley v. Metropolitan County Board of Education, 773

F.2d 677 (6th Cir. 1985) (en banc).................... 7 , 19
Kentucky v. Graham, 473 U.S. 159 (1985) ..................  17, 18
Maher v. Gagne, 448 U.S. 122 (1980) ..........................  1 7

Richardson v. Blanton, 597 F.2d 1078 (6th Cir. 1979).......... 2

TABLE OF AUTHORITIES

ii



CASES PAGE
Robideau v. O'Brien, 525 F.Supp. 878 (E.D. Mich. 1981) ........  14
Sanders v. Ellington, 288 F.Supp. 937 (M.D. Tenn. 1968) . . . .  2
Sheet Metal Workers v. EEOC, ____ U.S. ____, 92

L.Ed.2d 344 (1986) ....................................... 5
Shelley v. Kraemer, 334 U.S. 1 (1948) ............  14, 16, 18, 20
Tarter v. Raybuck, 742 F.2d 977 (6th Cir. 1984) ..............  12
Vulcan Society of Westchester County, Inc., v. Fire 

Department of the City of White Plains, 533
F.Supp. 1054 (S.D.N.Y. 1982) ............................  14

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) . . .  4
STATUTES
28 U.S.C. §2412 ( b ) .........................................21, 22
42 U.S.C. §1988 ............................... 14, 16, 17, 20-22
OTHER AUTHORITIES
House of Representatives Report No. 94-1558, 94th

Congress, Second Session (1976) ..........................  12
Larson, Federal Court Awards of Attorneys' Fees (1981)

at 42-44 .................................................  15

Senate Report No. 94-1011, 94th Congress, Second
Session (1976) ................................... 14, 19, 21

Tamanaha, The Cost of Preserving Rights: Attorneys'
Fee Awards and Intervenors In Civil Rights 
Litigation, 19 Harv. Civil Rights-Civil Liberties 
L. Rev. 109 (1984) 15



DISCLOSURE OF CORPORATE AFFILIATIONS 
_______AND FINANCIAL INTEREST_______

Pursuant to 6th Cir. R. 25, Plaintiff/Intervenors-Appellees
Raymond Richardson, Jr., et al. make the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned 

corporation? No
If the answer is YES, list below the identity of the parent 
corporation or affiliate and the relationship between it and 
the named party:

2. Is there a publicly owned corporation; not a party to the 
appeal, that has a financial interest in the outcome? No
If the answer is YES, list the identity of such corporation 
and the nature of the financial interest:

Date
JOEL BERGER

6CA-1
7/86

iv



No. 88-5155

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff/Intervenor-Appellant, 

vs.
RAYMOND RICHARDSON, JR., et al.,

Plaintiff/Intervenors-Appellees, 
RITA SANDERS GEIER, et al.,

Plaintiffs-Appellees,
H. COLEMAN MCGINNIS, et al.,

Plaintiff/Intervenors-Appellees, 
LAMAR ALEXANDER, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the 
Middle District of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFF/INTERVENORS-APPELLEES 
RAYMOND RICHARDSON, JR., et al.

QUESTION PRESENTED
Whether the district court properly awarded attorneys7 fees 

and costs to the prevailing parties on the Justice Department's 
unsuccessful appeal in Geier v. Alexander. 801 F.2d 799 (6th Cir.



1986) , an appeal in which the Department sought invalidation of 
an affirmative action program aimed at eliminating the vestiges 
of statutory segregation in Tennessee's system of public higher 
education?

STATEMENT OF THE CASE

I. Course of Prior Proceedings

The history of this case is well known to the Court and is 
succinctly summarized at the outset of Chief Judge Lively's 
opinion in Geier v. Alexander. 801 F.2d 799, 800-02 (6th Cir. 
1986), the unsuccessful Justice Department appeal for which fees 
were awarded below. We will not burden the Court with another 
recitation of the long and often tortured history of the 
litigation, which to date has produced four published district 
court opinions1 and three published appellate opinions.2

For present purposes, it suffices to state that in 1984, 
after 16 years of courtroom battles, all of the parties except 
the United States agreed to a comprehensive consent decree 
requiring numerous new desegregation programs throughout 
Tennessee's public higher education system. The decree settled

1 Geier v. Alexander. 593 F.Supp. 1263 (M.D. Tenn. 1984); 
Geier v. Blanton. 427 F.Supp. 644 (M.D. Tenn. 1977) ; Geier v. 
Dunn, 337 F.Supp. 573 (M.D. Tenn. 1972) ; Sanders v. Ellington. 
288 F.Supp. 937 (M.D. Tenn. 1968).

2 Geier v. Alexander, supra; Richardson v. Blanton. 597 
F.2d 1078 (6th Cir. 1979); Geier v. University of Tennessee. 597 
F.2d 1056 (6th Cir. 1979), cert, denied. 444 U.S. 886 (1979).

2



three outstanding motions for further relief, filed by two groups 
of plaintiff-intervenors (the Richardson intervenors and the 
McGinnis intervenors) and the original plaintiffs, which had been 
pending for several years.

The Justice Department, which had been a plaintiff- 
intervenor since 1968,3 had filed no motion for further relief 
and had not responded to any of the motions for further relief 
pending in the district court. Nonetheless, the Department 
utilized its historic status as an intervenor to oppose most of 
the programs of the settlement agreement. On August 9, 1984, the 
Department filed a memorandum claiming that these programs (i) 
contained too many race-conscious remedies, (ii) contained too 
many percentage goals and timetables, (iii) were based upon 
insufficient evidence of continuing vestiges of Tennessee's dual 
system of public higher education and (iv) were based upon 
insufficient evidence that any individual black person in 
Tennessee was today the individual victim of discrimination in 
public higher education.

The district court heard oral argument on the Justice 
Department's objections and rejected them, advising Assistant 
Attorney General Reynolds that the Department's position "offends 
the intelligence of everybody in this room." Transcript of 
August 13, 1984, at 40. See Geier v. Alexander. 593 F.Supp. 1263

The complaint in intervention was signed by Attorney 
General Ramsey Clark in the administration of President Lyndon B. 
Johnson.

3



(M.D. Tenn. 1984)(opinion approving Stipulation of Settlement 
over the Department's objection) . The Department appealed, and 
filed a Civil Pre-Argument Statement in this Court on December 6, 
1984 (No. 84-6055) attacking the entire settlement agreement on 
the ground that it "utilizes racial classifications and accords 
preferential treatment to persons not identified as victims of 
discrimination." It was not until the filing of its opening 
brief, on June 14, 1985, that the Department narrowed the target 
of its theories to a single program: the pre-professional 
training program of Paragraph II(N) of the Stipulation.

Shortly before oral argument, the Supreme Court of the 
United States rejected the Department's "victim specificity" 
analysis in the context of an employment discrimination case. 
Wygant v. Jackson Board of Education. 476 U.S. 267 (1986) . The 
plurality opinion in Wygant also analogized racial preferences in 
hiring to racial preferences in professional school admission, 
finding both to be valid means of remedying past discrimination. 
476 U.S. at 282-83 & n. 11. Nonetheless, the Department filed a 
supplemental brief in this Court claiming that Wygant supported 
its position or at least did not conclusively resolve the matter 
against the Department (see, e.g.. appellant's supplemental brief 
in No. 84 — 6055 at 7 & n.5, 10—11 & n.6) . Four days after the 
supplemental brief was filed, however, the Supreme Court rejected 
the Department's "victim specificity" theories in two more

4



employment discrimination cases.4 Accordingly, as this Court 
later observed, the Department "did not press its 'victim 
specificity' theory in oral argument" of the appeal. Geier v. 
Alexander. supra. 801 F.2d at 803.

Nonetheless, instead of conceding defeat the Department 
constructed an entirely new theory of the case at oral argument, 
based upon dicta in another recent Supreme Court decision,
Bazemore v. Friday. ___  U.S. ___ , 92 L.Ed.2d 315 (1986). This
Court rejected the claim. 801 F.2d at 804-05. The Department 
apparently had subsequent second thoughts about the potential of 
Bazemore. as it did not seek certiorari.

The Justice Department also claimed that the district court 
had erred in failing to conduct an evidentiary hearing on the 
Department's objections to the Stipulation of Settlement. This 
Court rejected that argument as well, stating that the following 
passage from a Second Circuit opinion aptly described the 
Department's conduct:

In general the position taken by the 
objectors is that by merely objecting, they 
are entitled to stop the settlement in its 
tracks, without demonstrating any factual 
basis for their objections and to force the 
parties to expend large amounts of time, 
money and effort to answer their rhetorical 
questions, notwithstanding the copious 
discovery available from years of prior 
litigation and extensive pre-trial 
proceedings. To allow the objectors to

 ̂ Sheet Metal Workers v. EEOC. ___  U.S. ___, 92 L.Ed.2d
344 (1986); Firefighters v. City of Cleveland. U.S. , 92
L.Ed.2d 405 (1986) .

5



disrupt the settlement on the basis of 
nothing more than their unsupported 
suppositions would completely thwart the 
settlement process.

801 F.2d at 809, quoting from City of Detroit v. Grinnell Coro.. 
495 F.2d 448, 464 (2d Cir. 1974).

In sum, the Court was highly critical of the Department's
entire performance in this proceeding and of the about-face which
that performance represented:

In the early years it was the United States 
that exhorted the court to broaden its 
remedial orders while the state sought to 
restrict them. At the very time the state 
became convinced that its earlier efforts had 
failed to eliminate the vestiges of its past 
discriminatory practices, the Department of 
Justice was urging the court to pull back—  
a truly ironic situation.

801 F.2d at 809.

II. Statement of Facts

On October 25, 1984 —  30 days after the district court 
approved the Stipulation of Settlement —  plaintiff-intervenors 
Raymond Richardson, Jr., et al. filed a protective motion for 
attorneys fees and costs in compliance with Local Rule 13 (e) of 
the Middle District of Tennessee. The motion alleged that the 
Richardson intervenors were prevailing parties, but did not 
specify the parties against whom fees were sought.

6



Further proceedings on the issue of fees necessarily awaited 
the outcome of the Justice Department's appeal.5 This Court 
rendered its decision of affirmance on September 5, 1986, and its 
mandate issued on September 3 0.6 After the deadline for the 
filing of a certiorari petition had passed, the private plaintiff 
groups began negotiating with the State over the question of fees 
for work done on the various motions for further relief. On 
January 30, 1987, the Richardson intervenors filed a 37-page 
document entitled "First Supplement To Protective Motion For An 
Award of Counsel Fees and Costs." The document presented a 
detailed accounting of hours worked and costs incurred from 1980- 
86, including hours and costs pertaining to the Justice 
Department's unsuccessful appeal.

On February 18, 1987, the parties appeared before the 
district court on a related matter, an application for fees by 
the original plaintiffs against a would-be intervenor named 
Terrell who had been denied intervention and whose appeal 
challenging that determination had been dismissed. Docket no. 6,

As noted previously, the Department had challenged the 
validity of the entire settlement agreement in the district court 
and in its Civil Pre-Argument Statement to this Court. See pp 3- 
4, supra. Although the Department's brief subsequently narrowed 
the scope of its appeal, the pendency of the appeal created 
sufficient uncertainty as to preclude any final resolution of the 
question of fees.

6 The mandate concluded with the words "No costs taxed." 
Under this Court's decision in Kelley v. Metropolitan Countv 
Board of Education. 773 F.2d 677, 681-82 (6th Cir. 1985) (en 
banc) , that statement had no affect whatsoever on the subsequent 
proceedings before the district court.

7



p. 2. During the course of that proceeding the court asked the 
parties to brief the question of whether fees could be assessed 
against the United States, noting that the federal government's 
unsuccessful appeal had "caused a lot of people ... to spend a 
lot of time and effort and energy and incur a lot of costs." id. 
at 3. Shortly thereafter the State and McGinnis intervenors both 
filed motions for fees against the United States. Docket nos. 7, 
9. The Richardson intervenors took the position that their 1984 
protective motion covered the situation, but as a precaution 
filed a second motion specifically requesting fees from the 
United States for the Justice Department's unsuccessful appeal. 
Docket no. 11.7

By order entered May 18, 1987, the district court approved a 
settlement agreement between the Richardson intervenors and the 
State for all district court work performed between 1980-86. On 
May 26, 1987, the Richardson attorney who was lead counsel on the 
appeal for all the plaintiff-appellee groups filed an attorneys' 
fees affidavit limited solely to work performed on the appeal. 
Docket no. 13. See also Docket no. 17 (affidavit of Richardson's 
Nashville attorney).

On September 16, 1987, the Justice Department filed a 
response denying all fees liability, primarily on the theory that 
the Department was a plaintiff in this case and that fees cannot

The original plaintiffs had sought fees against the 
United States in a motion filed on January 5, 1987. Docket No. 
2 .

8



be awarded against any plaintiff unless the strict standard of 
Christiansburcr Garment Co. v. EEOC. 434 U.S. 412 (1978) has been
met. Docket no. 23. The Richardson intervenors filed a reply 
with several exhibits on September 29, 1987. Docket no. 27. In 
view of the Department's resistance to paying any fees, the 
district court heard oral argument in Nashville on October 27, 
1987. At the conclusion of that proceeding the court (Hon. 
Thomas A. Wiseman, Jr.) ruled that it would award fees against 
the United States, stating:

The Court finds Christiansburg simply does 
not apply in this case. The Christiansburg 
standards and statutes, congressional 
history, all indicate that it's designed to 
protect and to prevent the chilling of the 
assertion of rights by private Attorney 
Generals, by citizens trying to assert their 
constitutional rights and the reluctance of 
this Court and all Courts to award 
defendants' fees against plaintiffs is to 
prevent the chilling of such rights. There's 
absolutely no element in this case where that 
awarding of fees against the United States 
could chill anybody's activities in the 
assertion of civil rights.

This Court might well find that the 
actions of the Justice Department in this 
case were frivolous, vexatious and without 
foundations. I have not made such a finding 
and won't make such a finding because it's 
unnecessary. The parties who applied for 
fees in this case are, in fact, the
prevailing party before the Sixth Circuit 
Court of Appeals.

Consequently the fee applications will be 
granted.

Docket no. 35 17-18. Following submission of supplemental
affidavits by the Richardson intervenors (docket nos. 30 and 31)

9



and other parties (docket nos. 28, 29, 32, 33 and 34) documenting 
additional hours and costs incurred as a result of the Justice 
Department's opposition to the payment of fees,8 the Court 
entered its order on November 13, 1987 (docket no. 36). The
Court awarded $63,3 67.89 to counsel for the Richardson 
intervenors ($55,355.39 to the NAACP Legal Defense and 
Educational Fund, Inc. and $8,012.50 to Richard Dinkins, Esq.), 
$19,531.46 to the State of Tennessee, $5,500.01 to counsel for 
the McGinnis intervenors ($3,983.51 to Aleta Arthur, Esq. and 
$1,516.50 to John Norris, Esq.), and $2,340 to counsel for the 
original plaintiffs.

The Justice Department filed a timely notice of appeal on 
January 15, 1988 (docket no. 37). On January 26, 1988, the 
district court granted the Department's motion for a stay pending 
appeal (docket no. 39).

Nearly all of the fees and costs sought by the 
Richardson intervenors in their supplemental submission were 
occasioned by the need to respond to the Justice Department's 
position, and by the preparation, travel and courtroom time 
expended in connection with the judicial proceeding conducted in 
Nashville to consider the Department's views.

10



ARGUMENT

THE DISTRICT COURT PROPERLY AWARDED 
ATTORNEYS' FEES AND COSTS TO THE 
PREVAILING PARTIES ON THE JUSTICE 
DEPARTMENT'S UNSUCCESSFUL APPEAL 
IN GEIER V. ALEXANDER. 801 F.2d 799 
(6TH CIR. 1986), AN APPEAL IN WHICH 
THE DEPARTMENT SOUGHT INVALIDATION 
OF AN AFFIRMATIVE ACTION PROGRAM 
AIMED AT ELIMINATING THE VESTIGES 
OF STATUTORY SEGREGATION IN 
TENNESSEE'S SYSTEM OF PUBLIC HIGHER 
EDUCATION

A.

The Justice Department's position on this appeal is based 
upon the mistaken assumption that the principle of Christiansbura 
Garment Co. v. EEOC. 434 U.S. 412 (1978), applies to the Depart­
ment's behavior in this case. Nothing could be farther from the 
truth.

Although the United States entered this case in 1968 as a 
plaintif f-intervenor, and generally pursued desegregation 
objectives in the litigation during the 1970's, its role changed 
drastically with the advent of the burrent presidential 
administration in 1981. The Justice Department (i) was the only 
plaintiff group not to file a motion for further relief in the 
early 1980's, (ii) did not file a reply to the motions for 
further relief filed by the other parties, (iii) was the only 
party in the case to oppose the settlement, largely on the basis 
of "reverse-discrimination" and "victim-specificity" theories

11



which placed the Department in opposition to the desegregation 
objectives of all other parties including the State of Tennessee, 
and (iv) tied up the other parties in litigation for another two 
years by appealing the district court's approval of the 
settlement, only to have its position rejected by a unanimous 
panel of this Court (Lively, C.J., Milburn & Peck, JJ.) in Geier 
v. Alexander. 801 F.2d 799 (6th Cir. 1986). This Court 
recognized and criticized the Justice Department's about-face in 
its opinion affirming the district court's approval of the 
consent decree. Geier v. Alexander, supra. 801 F.2d at 809, 
quoted at p. 6, supra.

In light of this history, it is simply ludicrous for the 
Justice Department to attempt to hide behind the Christiansbura 
standard. Christiansbura was intended to effectuate Congress' 
policy of promoting enforcement of the civil rights laws by 
private parties, and to insure that such parties would not be 
inhibited by fear that the defendants, who are often government 
agencies with greater resources, would be able to recover fees 
whenever the plaintiffs do not prevail. See Christiansbura 
Garment Co. v. EEOC, supra. 434 U.S. at 419, 422; Tarter v. 
Raybuck, 742 F.2d 977, 984-85 (6th Cir. 1984). See also House of 
Representatives Report No. 94-1558, The Civil Rights Attorneys' 
Fees Awards Act of 1976. 94th Congress, Second Session (1976), at

12



7.9 Christiansburcr certainly was not designed to insulate 
governments from fee awards when they behave as defendants in 
civil rights litigation, aligning themselves against parties who 
seek to enforce desegregation.

The fact that the United States is technically a plaintiff- 
intervenor in this case is irrelevant. The Justice Department in 
recent years behaved exactly as a defendant-intervenor, such as a 
union seeking to invalidate an affirmative action settlement in 
an employment discrimination case or a local official seeking to 
oppose a school desegregation decree. This Court has squarely 
held that private civil rights litigants are entitled to recover 
fees from such a party. Havcraft v. Hollenbach. 606 F.2d 128, 
133 (6th Cir. 1979) :

It cannot be gainsaid that in interposing his 
desegregation plan, appellant caused the 
district court and appellees to expend 
substantial time and energy litigating an 
issue that had already been resolved by the 
prior mandate of this court.... Accordingly, 
an award of fees in the present case can be 
justified on the ground that appellant's 
intervention amounted to obstinacy in 
resisting appellees' realization of their 
clearly defined legal rights.

"• • • governmental officials are frequently the
defendants in cases brought under the statutes covered by ... 
[the Act]. Such governmental entities and officials have 
substantial resources available to them through funds in the 
common treasury, including taxes paid by the plaintiffs 
themselves. Applying the same standard of recovery to such 
defendants would further widen the gap between citizens and 
government officials and would exacerbate the inequality of 
litigating strength."

13



Numerous lower courts, both within this Circuit and elsewhere,
have held likewise. See. e.g.. Akron Center for Reproductive 
Health v. City of Akron. 604 F.Supp. 1268 (N.D. Ohio 1984); 
Vulcan Society of Westchester County, Inc.. v. Fire Department of 
the City of White Plains. 533 F.Supp. 1054 (S.D.N.Y. 1982); 
Robideau v. Obrien. 525 F.Supp. 878 (E.D. Mich. 1981); Baker v. 
City of Detroit. 504 F.Supp. 841 (E.D. Mich. 1980).

It has long been recognized that an award of attorneys' fees 
under 42 U.S.C. §1988 does not depend upon the technical status 
of the party seeking fees or of the party against whom fees are 
sought. In passing the Act, Congress explicitly noted that in 
some cases a defendant or defendant-intervenor may be the one 
enforcing the civil rights laws and a plaintiff or plaintiff- 
intervenor may be the one opposing them, citing as an example 
Shelley v. Kraemer. 334 U.S. 1 (1948) . Senate Report No. 94- 
1011, Civil Rights Attorneys' Fees Awards Act. 94th Congress, 
Second Session (1976), at 4 n.4. Congress hardly intended to 
allow plaintiffs such as those in Shelley, who sued to enforce a 
racially restrictive covenant, to hide behind the Christiansburg 
standard. In complex cases with numerous intervenors, courts 
should look to the actual role played by a party rather than 
focusing upon its nominal status. As the court observed in Baker 
v. City of Detroit. supra. 504 F.Supp. at 850, a "reverse 
discrimination" case in which unsuccessful plaintiffs were 
required to pay the fees of defendant-intervenors:

14



In the case at bar, it happens that the 
intervenors were defendants. They could just 
as easily have been plaintiffs or intervening 
plaintiffs had they, the United States, or 
other black officers filed suit against the 
City. The Civil Rights Attorney's Fee Act is 
to be liberally construed to effectuate its 
purposes. See Northcross v. Bd. of Ed. of 
Memphis Schools. 611 F.2d 624, 632-33 (6th 
Cir. 1979) , cert, denied. 447 U.S. 911, 100 
S.Ct. 2999, 64 L.Ed.2d 862 (1980). The 
procedural posture of the case should not be 
dispositive.

See also Larson, Federal Court Awards of Attorneys' Fees (1981) 
at 42-44 and cases cited therein; Tamanaha, The Cost of 
Preserving Rights: Attorneys' Fee Awards and Intervenors In 
Civil Rights Litigation. 19 Harv. Civil Rights-Civil Liberties L. 
Rev. 109, 130 (1984)("distinctions between defendant-intervenors 
and plaintif f-intervenors based entirely on the side of 
intervention raises fortuitous circumstance above substance").

In this case the Richardson intervenors, McGinnis 
intervenors, original plaintiffs and defendants were all aligned 
in this Court as appellees fighting for the desegregation 
objectives of the Stipulation of Settlement. The Justice 
Department stood alone as appellant seeking to thwart those 
objectives. Under these circumstances the Justice Department is 
not entitled to the benefit of Christiansburg. and the prevailing 
appellees should be awarded fees in accordance with the 
objectives of the Civil Rights Attorneys' Fees Act.

15



B.

The Justice Department's brief on this appeal presents a 
novel argument not advanced below. The Department claims that it 
is entitled to the benefit of Christiansburg not just because of 
its nominal status as a plaintiff-intervenor, but also because it 
was not held liable for anything on the merits and no relief was 
assessed against it.

The argument is patently frivolous. The unsuccessful 
plaintiffs in Shelley v. Kraemer. supra. were not held liable for 
anything on the merits in that case either, and no relief was 
assessed against them; they simply were unsuccessful in their 
effort to enforce a racially restrictive covenant. Nonetheless, 
the legislative history of 42 U.S.C. §1988 clearly establishes 
the intent of Congress to make such unsuccessful parties pay 
attorneys' fees to the prevailing parties. Similarly, the party 
whom this Court required to pay fees in Havcraft v. Hollenbach. 
supra. was not liable for anything on the merits and no relief 
was assessed against him. The same is true of the parties 
required to pay fees in all of the other cases cited at p. 14, 
supra. See. e.g.. Akron Center for Reproductive Health v. City 
of Akron, supra. 604 F.Supp. at 1273 (N.D. Ohio 1984).

Most settlement agreements, including the 1984 Stipulation 
in this case, specify that the defendant does not admit any 
liability. Many cases are settled informally without any written 
agreement at all, let alone a finding of merits liability. Yet

16



Congress explicitly stated that the parties whose rights are 
vindicated in this fashion are entitled to fees, and the Supreme 
Court has so held. Maher v. Gagne, 448 U.S. 122, 129 (1980); 
Hewitt v. Helms, ___ U.S. ___, 96 L.Ed.2d 654, 661 (1987).

The Justice Department's argument is based upon a distorted,
out-of-context reading of dicta from the Supreme Court's opinion
in Kentucky v. Graham. 473 U.S. 159 (1985) . The sole question
presented by that case, set forth in the opening paragraph of
Justice Marshall's opinion for a unanimous Court, was

whether 42 U.S.C. §1988 allows attorney's 
fees to be recovered from a governmental 
entity when a plaintiff sues governmental 
employees only in their personal capacities 
and prevails.

473 U.S. at 161. The plaintiffs in Graham had sued several 
defendants in their personal capacities, and had added the 
Commonwealth of Kentucky as a defendant solely for purposes of 
obtaining fees. Id. at 162. It was in this context that the 
Supreme Court, in the course of holding Kentucky non-liable for 
fees, stated that "[t]here is no cause of action against a 
defendant for fees absent that defendant's liability for relief 
on the merits." Id. at 170 (emphasis added). This language in 
Graham obviously was not intended to address situations in which 
a plaintiff or plaintiff-intervenor might be responsible for 
fees, since such parties are rarely, if ever, liable for anything 
on the merits. The Court in Graham had no occasion even to 
examine, let alone rule upon, the kind of case envisioned by the

17



Senate Report's reference to Shelley v. Kraemer. supra or the 
kind of case decided by this Court in Havcraft v. Hollenbach. 
supra. Graham merely held that in a case against several 
defendants where only some are liable on the merits, the non- 
liable defendants are not responsible for fees.10 That is a 
simple proposition which has absolutely nothing to do with this 
case.

The Department relies upon two other Supreme Court cases 
which are even less relevant than Graham. In Hanrahan v. 
Hampton, 446 U.S. 754 (1980), the parties seeking fees had "not
prevailed on the merits of any of their claims" against anybody, 
id. at 758, but had merely won reversal of a directed verdict
against them. In Hewitt v. Helms. ____ U.S. ____, 96 L.Ed.2d 654
(1987) , the sole issue was "whether a party who litigates to 
judgment and loses on all of his claims can nonetheless be a 
'prevailing party' for purposes of an award of attorney's fees." 
Id. at 659. Here, by contrast, there is no dispute that the 
Richardson intervenors are "a prevailing plaintiff." Brief for 
Appellant (hereinafter "Br. App.") at 11. They secured a far- 
reaching settlement from the State, and then successfully fought 
off a strenuous effort by the Department to invalidate one of the 
key components of that settlement. There is not even a tenuous 
resemblance between the Richardson intervenors in this case and

10 In Graham the Commonwealth was not only a non-liable 
defendant but had been dismissed as a defendant early in the 
proceedings. 473 U.S. at 162.

18



the plaintiffs in Hanrahan and Hewitt.11

C.

The Department further claims that merely by virtue of its 
presence in this case —  even though it was on the side opposing 
further desegregation measures —  the private plaintiffs are not 
entitled to fees. Br. App. at 14 and 17-18. The argument is 
truly Orwellian.

Although the legislative history refers to private civil 
rights plaintiffs as "private attorney general[s]," Sen. Rept.

-LX The Department suggests that the State of Tennessee 
should pay the fees at issue here because those fees "were most 
directly a consequence of the defendants7 violation of federal 
law and failure previously to remedy that violation" (Br. App. at 
17). This statement is highly disingenuous. The two years of 
time-consuming appellate litigation from 1984-86 were "most 
directly" a consequence of the Justice Department's decision to 
mount an appeal.

We do not deny that the State was indirectly responsible for 
the circumstances that led to the appeal, and agree with 
appellants that there is authority in this Circuit for imposing 
fees liability upon the State under such circumstances. Kelley 
v. Metropolitan County Board of Education. 773 F.2d 677, 684-85 
(6th Cir. 1985) (en banc). See Transcript of February 18, 1987 
(docket no. 6) at 4-5; plaintiffs' reply (docket no. 27) at 6 n. 
2 (preserving issue for further review). If this Court were to 
reverse the award of fees against the United States, a remand for 
assessment of fees against the State would indeed be the 
appropriate course of action. Nonetheless, we agree with Judge 
Wiseman that it is far more equitable to require the United 
States to pay for the appeal. Transcript of February 18, 1987 
(docket no. 6) at 5. After all, the State resisted the appeal, 
co-argued with the Richardson intervenors' counsel as an 
appellee, and helped us to prevail against the Justice 
Department. Unless this Court determines that there is no other 
way of compensating the plaintiff groups for their appellate 
work, the State should not have to pay for an appeal which it opposed.

19



No. 94-1011, supra, at 3, nowhere did Congress even hint that 
such plaintiffs should have any less entitlement to fees merely 
because the United States is also a party. The Department does 
not cite a single case so holding, even though there have been 
countless civil rights cases since passage of 42 U.S.C. §1988 in 
which both the Department and private plaintiffs have been 
allies. But what makes the Department's argument especially 
silly here is that it was not enforcing the civil rights 
objectives of the statute; it was opposing them. This Court said 
so in Geier v. Alexander, supra. 801 F.2d at 809.

The Department apparently takes the position that any time 
it is a party to a civil rights case —  even if its position is 
against civil rights enforcement, and even if that position is 
rejected by the courts —  the prevailing private plaintiffs 
cannot obtain fees because it is the Department which "has been 
charged by Congress with the duty to enforce the civil rights 
laws." Br. App. at 17. Merely to state the proposition is 
sufficient to demonstrate its absurdity.

The Department may argue that it was really promoting civil 
rights enforcement on the appeal by seeking to protect the rights 
of white persons. See, e.q. . Br. App. at 19-20. But that 
argument could be made by most parties who lose cases against 
civil rights advocates. The losing parties in Shelley v. 
Kraemer. supra. claimed that their constitutional rights were 
being violated. 334 U.S. at 22. So did the defenders of

20



"state's rights" in countless civil rights battles of the 1960's. 
Taken to its logical conclusion, the Department's position would 
eviscerate §1988 because all opposition to desegregation could be 
portrayed as advocacy of the constitutional rights of white 
individuals.

Congress enacted §1988 because "the[] civil rights laws 
depend heavily upon private enforcement, and fee awards have 
proved an essential remedy if private citizens are to have a 
meaningful opportunity to vindicate the important Congressional 
policies which these laws contain." Sen. Rept. No. 94-1011, 
supra. at 1. Private enforcement was especially necessary in 
this case, because here it was the United States Department of 
Justice which sought to frustrate enforcement of the civil rights 
laws. There could not be a more appropriate case for an award of 
attorneys' fees.

D.

The Department's argument that the award of fees in this 
case violates sovereign immunity (Br. App. 21-23) is based 
entirely on circular reasoning. The Equal Access to Justice Act, 
28 U.S.C. §2412(b), waives sovereign immunity in any case where 
the United States would be liable under 42 U.S.C. §1988. If the 
Government does something which would make any other party liable 
for fees under the Civil Rights Attorneys' Fees Act, 28 U.S.C. 
§2412(b) makes the Government equally liable for fees.

21



The issue in this case is whether the prevailing parties on 
the Justice Department's unsuccessful appeal are entitled to fees 
under §1988. If so, §2412 (b) requires the United States to pay 
the fees. If not, the United States need not pay the fees. 
There is nd separate issue under §2412(b).

The Department's sovereign immunity argument, like its §1988 
analysis, relies upon wildly out-of-context use of cases which 
are thoroughly inapposite. Hall v. United States. 773 F.2d 703 
(6th Cir. 1985) and the other cases cited in Br. App. at 22, were 
not civil rights cases; they were federal actions brought under 
an entirely separate body of law not governed by 42 U.S. §1988. 
These cases stand for the simple proposition that §2412(b) 
liability rests upon §1988 liability. Here the Government's 
behavior —  subjecting the other parties to two years of 
appellate litigation in an effort to block enforcement of a civil 
rights settlement —  is the very sort of behavior for which fees 
should be awarded under §1988. Accordingly, sovereign immunity 
is waived under §2412(b).

E.

Finally, the Department complains that the fees awarded for 
time spent on the fee application below were excessive. (Br. 
App. at 2 0-21 n. 16) . We agree that in a normal case where the 
fees inquiry concerns only the appropriate rate, the correct 
number of hours to be compensated, apportionment between winning

22



and losing issues under Hensley v. Eckerhart. 461 U.S. 424 
(1983), etc., a fees application should take less time. But here 
the Department argued that it was not liable for any fees at all, 
advancing complex legal theories to support that claim. The 
Department's brief on appeal suggests that it sees this case as a 
test of its ability to obstruct civil rights enforcement without 
incurring fees liability, and perhaps of the ability of other 
intervenors to do likewise after this Administration has left 
office. Under these circumstances, the number of hours spent by 
the Richardson intervenors responding to the Department's 
arguments are reasonable and should not be disallowed.

CONCLUSION

For the above-stated reasons, the order of the district 
court should be affirmed.

Respectfully submitted,

AVON N. WILLIAMS, JR. 
RICHARD H. DINKINS 
Williams & Dinkins 
203 Second Avenue North 
Nashville, TN 37201 
[615] 244-3988

[Signatures continued on next page]

23



JULIUS L. CHAMBERS 
JOEL BERGER

NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
16th Floor
New York, New York 10013 
[212] 219-1900

ATTORNEYS FOR PLAINTIFF/INTERVENORS- 
APPELLEES RAYMOND RICHARDSON, JR., 
et al.

24



CERTIFICATE OF SERVICE

I hereby certify that true and exact copies of the foregoing 
Brief of Plaintiff/Intervenors-Appellees Raymond Richardson, Jr., 
et al., have been forwarded via first class mail, postage 
prepaid, to William R. Yoemans, Esq., Appellate Section, Civil 
Rights Division, U.S. Department of Justice, Washington, D.C. 
20530; Christine Modisher, Assistant Attorney General of the 
State of Tennessee, 450 James Robertson Parkway, Nashville, TN 
37219; John L. Norris, Esq., Hollins, Wagster and Yarbrough, 
P.C., 8th Floor, Third National Bank Building, Nashville, TN 
37219; Aleta G. Arthur, Esq., Gilbert, Frank and Milom, 13th 
Floor, Third National Bank Building, Nashville, TN 37219; George 
E. Barrett, Esq., P.O. Box 2846, 217 Second Avenue North,
Nashville, TN 37219; and Joe B. Brown, Esq., United States 
Attorney, 879 U.S. Courthouse, Nashville, TN 37203, this 23rd day 
of May, 1988.

aOEL BERGER /
Attorney for Plaintiff/Intervenors- 
Appellees Raymond Richardson, Jr., 
et al.



ADDENDUM



united states court  or appeals 
for the sixth circuit

Cm* nn -88-5155 
Cm* Caption:

United States of America v. Raymond Richardson, Jr., et al.

APPEII-aNT’S/APPELLEE’S DESIGNATION 
OF .APPENDIX CONTENTS

. r r n .../ . n ^ h .  p M  «. Sink O k m. Rid. 11(b), b«.br * * > « «  *•  “ "*■ "  *•  di>̂ ' ‘
court’s ncord m  iuan to ba include! in tha joint appandix



^<JOEL BERGER

NOTE; Appendix design**** to be included in brief*.

5CA-L08
7/87