Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief of Plaintiffs-Appellants and Brief as Cross-Plaintiffs

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NO. 83-5175/5243

ROBERT W. KELLEY, et al.,
Plaintiffs-Appellants, 
Cross-Appellees,

v.
METROPOLITAN COUNTY
BOARD OF EDUCATION, et al.,

Defendants-Appellees, 
Cross-Ape Hants.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

REPLY BRIEF OF PLAINTIFFS-APPELLANTS 
AND BRIEF AS CROSS-APPELLEES

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37201

JACK GREENBERG 
JAMES M. NABRIT, III 
THEODORE M . SHAW 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS-APPELLANTS, 
CROSS-APPELLEES



TABLE OF CONTENTS
Page

1.................................................................  1
The "Final Order" Ruling by the District 
Court Is Contradicted by the Record and
Previous Rulings of This Court ..................  2
Buian Does Not Preclude a District Court
from Awarding Fees for Appellate Work ...........  6
The District Court's Denial of Fees for
Time Spent With Dr. Scott ........................ 9

II. The Board's Cross-Appeal ........................  10
Conclusion ............................................  12

TABLE OF AUTHORITIES
Cases:
Buian v. Baughhard, 687 F.2d 859 (6th Cir. 1982) .....  1,6
Hensley v. Eckerhart, 51 U.S.L.W. 4552 (1983) ......  10,11
Hutto v. Finney, 437 U.S. 678 (1978) .................  5
Kelley v. Board of Education of Nashville-

Davidson County, Tennessee, 687 F.2d 814
(6th Cir. 1982) .................................. 3

Kelley v. Metropolitan Board of Education of 
Nashville, Tennessee, 463 F.2d 732 (6th 
Cir. 1972) ....................................... 3,5

Northcross v. Board of Education of Memphis 
City Schools, 611 F.2d 624 (6th Cir.
1979) ..........................................  1,4,7

Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971) ......................  4

Statutes:
42 U.S.C. § 1988 .................................... 5.9
Fed. R. App. P. Rule 38 ..........................  5



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

NO. 83-5175/5243

ROBERT W. KELLEY, et al.,
Plaintiffs-Appellants, Cross- 
Appellees,
v.

METROPOLITAN COUNTY 
BOARD OF EDUCATION, et al.,

Defendants-Appellees, Cross- 
Apellants.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

REPLY BRIEF OF PLAINTIFFS-APPELLANTS 
AND BRIEF AS CROSS-APPELLEES

I.
Defendants-Appellees, Cross-Appellants in this appeal 

(hereinafter "the Board") have filed their Brief on Behalf of 
Defendants-Appellees, Cross-Appellants (hereinafter "Brief of 
Board"). They argue that (1) this Court's May 30, 1972, opin­
ion constituted a final order under Northcross v. Board of 
Education of Memphis City Schools, 611 F.2d 624 (6th Cir.
1979), which precluded an award of attorneys' fees to plain­
tiffs; (2) Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982),



appears to preclude a district court from awarding attorneys' 
fees for services rendered on appeal; (3) the district court's 
calculations of fees for Senator Avon Williams and Mr. Richard 
Dinkins was supported by the evidence and well within the 
bounds of the district court's discretion.

The Board also cross-appeals, arguing that it should not 
be responsible for plaintiffs' fees arising from claims filed 
by intervening third party defendants and that the district 
court erred in not determining the specific extent to which 
the plaintiffs had prevailed in this action.

Plaintiffs address each of these contentions briefly 
below and demonstrate that they are each without merit. Other­
wise, plaintiffs rely on their original brief filed in this 
action.

The "Final Order" Ruling by the District Court
Is Contradicted by the Record and Previous
Rulings of This Court_________________________
The Board urges upon this Court that the 1971 HEW plan, 

approved by this Court in its May 30, 1972, opinion, was a 
final order which precluded any subsequent award of attor­
neys' fees to plaintiffs. The Board cannot make this argu­
ment without consciously ignoring the language of this 
Court's 1972 opinion on which it claims to rely. This Court 
described the 1971 HEW plan as the "first comprehensive and 
potentially effective desegregation order" and said that "[t]he

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District Judge tells us now the remedy is at least in sight." 
Kelley v. Metropolitan Board of Education of Nashville, Tennes­
see, 463 F.2d 732, 734 (1972). Hardly the language which 
would evince intent that a final order had been entered, this 
Court made clear that at the time the 1971 order was upheld, 
this Court viewed it as a long overdue first potentially effec­
tive order.

The Board nevertheless argues that the 1971 plan was a 
final plan, and that subsequent modifications were ordered not 
because of a failure to remedy the proven violation, but 
because the plan, once effectuated, happened not to work. The 
Board further posits that when the 1971 plan was implemented 
it was constitutionally effective. Brief of Board at 17. It 
further submits that the plan became ineffective over time, 
and that "[t]he need for modification arose unexpectedly .... 
The plan became ineffective over time, and the district court 
ordered it modified to meet new conditions and circumstances."

Apparently the Board hopes to have this Court ignore 
its own previous ruling that the plan was never effective.
This Court has ruled that "despite the 1971 plan's poten­
tial, the record establishes and the District Court found 
that desegregation in the Nashville schools has never been 
achieved. Thus, the effects of state-imposed segregation have 
yet to be eradicated." Kelley v. Board of Education of Nash- 
vi1le-Davidson County, Tennessee, 687 F.2d 814 at 816.

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Thus, the law of this case refutes the argument that a 
final order was entered in 1971 and that any subsequent modi­
fications were mere attempts to implement that plan.-^

Having erroneously argued the finality of the 1971 order, 
the Board next argues that the HEW plan "was a plan which com­
plied with Swann v. Charlotte-Mecklenburq Board of Education, 
402 U.S. 1 (1971), and the parties and the Court treated 
it as such. Absent some changes in the law, changes in circum 
stances, or demonstrable adverse effects from the operation of 
this plan, there was no reason to believe the plan would not 
remain in effect ad infinitum." Brief of Bd. at 13. The 
Board attempts to parlay this supposition into a binding con­
sensual agreement in which plaintiffs acquiesced in the suffi­
ciency of the 1971 plan. But the record belies this conten­
tion; plaintiffs never abandoned their belief that the plan 
was insufficient, and ultimately this Court adopted their 
position by requiring a more comprehensive desegregation plan.

Once again, plaintiffs urge upon this Court that the 
"final order" language of Northcross is inapplicable here, 
where the plaintiffs never ceased to seek more complete relief 
such as that which was ordered by this Court's August 27, 1982

1/ The Board trivializes the plaintiffs' requested changes 
in the 1971 plan to alleviate the disparate burden on young 
black children (Brief of Bd. at 12 n. 15). That issue is one 
which goes to the very heart of the constitutionality of a 
school desegregation plan, Swann v. Charlotte-Mecklenburq Bd. 
of Ed., 402 U.S. 1 (1971).

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. . 2/opinion.—
Next, the Board argues that the 1972 opinion of this Court 

refused to award attorneys' fees and costs under the law pre­
vailing at that time. Noting that in both the 1972 and the 
1982 opinions of this Court each party bore its own costs, the 
Board cites Hutto v. Finney, 437 U.S. 678, 693-699 (1978), for 
the proposition that under 42 U.S.C. § 1988 fees are to be 
awarded as costs.

With respect to the 1972 order, once again the Board has 
failed to come to grips with the fact that plaintiffs' appli­
cation was based on a specific allegation. The motion for an 
award for double costs and attorneys' fees in 1972 was made on 
the grounds that the Board's appeal on the issue of the con­
tinued ability of a certified class to represent plaintiffs 
was frivolous within the meaning of Fed. R. App. 38. While 
the majority of the panel of this Court did not reach that 
issue, Judge McCree in his concurring opinion wrote that he 
would have granted the motion "[s]ince the class action issue 
obviously had no merit." Kelley, supra, 463 F.2d at 752.

A Rule 38 motion is governed by different standards from 
a general fee application, and an adverse ruling in the former 
in no way impacts upon the latter.

2/ The Board correctly states that "[f]rom 1972 forward the 
character of this litigation in Nashville changed drastically." 
Brief of Bd. at 15. The character changed because a desegre­
gation plan, albeit ineffective, was ordered into effect and 
the district court did not rule on any further motion until 
1979. Any inactivity in this case can be largely attributed 
to the district court's failure to respond to documents filed 
between 1972 and 1979.

5



In sum, the law of this case is that the 1971 order was 
not final and this Court's 1972 opinion as it related to the 
plaintiffs' request for double costs and attorneys' fees did 
not preclude a subsequent general fees application and award.

Buian Does Not Preclude a District Court
from Awarding Fees for Appellate Work
The Board does not even halfheartedly defend the district 

court's ruling with respect to its application of Buian v. 
Baughard, 687 F.2d 859 (6th Cir. 1979), to preclude the dis­
trict court's consideration of appellate fees. It merely 
states that Buian "appears to preclude a district court's con­
sideration of appellate fees." Brief of Bd. at 20. In fact, 
the Board, recognizing the special fact-finding capabilities 
of a district court and the inherent difficulties occasioned 
by the district court's reading of Buian, states that it "did 
not and do[es] not now object to the district court's consid­
eration of time expended for appellate work." Brief of Bd. at 
20.

Indeed, the Board could not argue otherwise in view of 
its next stated position that the Court should defer to the 
district court's determination of the appropriate fee award 
because the trial court "is uniquely positioned to determine 
the basics of the awards since the district court not only 
has the opportunity to observe the proof regarding the award 
of attorneys' fees, but also has viewed first hand the pro­
ceedings and services performed by the various attorneys."
Id. at 20-21.

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The District Court's Calculations of Fees 
for Senator Williams and Mr. Dinkins Is 
Unsupported by the Evidence______________
Not only does the Board argue in support of the district

court's meager award of fees to Messrs. Williams and Dinkins,
it even intimates that the fee award was generous. Plaintiffs
are hard pressed to understand how the Board can seriously
advance this position. The Board concludes that "[i]n this
case, the district court's opinion had carefully evaluated all
the proof presented and arrived at an hourly rate and fee which
is 'adequate to attract competent counsel, but which do[es] not
produce windfalls to attorneys.' Northcross, 611 F.2d at 633.
The court's calculations made pursuant to relevant guidelines
are well explained, supported by the evidence, and were not
clearly erroneous." Brief for Bd. at 22.

In fact, the district court ignored the majority of the
2/proof presented on appropriate counsel fees. Moreover, in

3/ Brief for Plaintiffs-Appellants at 33. The Board was able 
to cite only one person who testified that Mr. Dinkins' rate 
should be $50.00 per hour; only one other went as low as $60.00. 
(See Brief of Bd. at 25 n. 30.)

And certainly none of the attorneys testifying at trial, 
including those identified in n. 28 of the Board's Brief at 
23, is as experienced in civil rights litigation, or particu­
larly in school desegregation litigation, as is Senator Williams.

The 3oard states that "the court set a reasonable fee for 
each attorney in accordance with the testimony of several mem­
bers of the Nashville bar. Brief of Bd. at 9. But the record 
shows that the Court ignored the far more persuasive testimony 
of others to the effect that Avon Williams and Richard Dinkins 
are at the top of the civil rights bar within their respective 
years of experience. Instead, the Court reached out to embrace 
the sparse testimony of those individuals who cited the lowest 
prevailing rates.

7



evaluating whether plaintiffs' counsel's fee request wou 
have resulted in a windfall, it is appropriate to consider the 
amount of money which opposing counsel has collected for ser­
vices rendered in this suit.

The district court awarded Senator Williams a total of 
$101,812.00 for services rendered in this suit; Richard Dinkins 
was awarded $37,401.75. Between 1978 and 1982, the law firm 
of Willis and Knight, representing the Board, was paid a total 
of $288,558.25 in fees. Exhibit 17 to Hearing of December 6, 
1982, Defendants' Answers to Plaintiffs' Interrogatories Con­
cerning Attorney's Fees, filed December 2, 1982, at 5 (herein

1/after "Defendants' Answers"). Thus, Mr. Willis and Ms. 
Harrison, who represented the losing party in this litiga­
tion, have been paid more than twice the amount of money for 
services performed during a four year period which the district
court awarded Senator Williams and Mr. Dinkins, who have pre-

1/vailed, for services rendered over a ten year period.

4/ Willis and Knight also billed for and collected $15,258.78 
in costs. Id.
5/ This fact is even more startling when the relative exper­
tise and experience of the lawyers involved in this appeal is 
examined. Avon Williams is unquestionably among the most 
experienced and preeminent civil rights lawyers in the country. 
See Brief for Plaintiffs-Appellants at 32. By contrast, Mr. 
Willis admits to having handled "several" civil rights cases, 
in none of which he "represented a black plaintiff." Exhibit 
17 to Hearing of Dec. 6, 1982, Defendants' Answers at 5.

Similarly, Mr. Dinkins has developed significant exper­
tise in school desegregation and other types of civil rights 
cases. See Brief for Plaintiffs-Appellants at 37. In con­
trast, Ms. Harrison has merely "been involved in civil rights 
actions when in private practice." Exhibit 17 to Hearing of 
Dec. 6, 1982, Defendants' Answers at 6. These actions are not 
specified and the extent of her involvement is unclear.

8



Certainly the Board cannot seriously maintain that under 
these circumstances the fee awarded by the district court 
was just and equitable.

The fact that a trial court has unique fact-finding capa­
bilities does not mean that those capabilities are always 
exercised correctly. The Board would have this Court blindly 
accept factual findings of a district court regardless of the 
sufficiency of support in the record. While a district court 
had discretion to determine an appropriate fee award based on 
the evidence before it, in this case the court below abused 
that discretion and ignored the evidence before it. Thus,
the district court's meager fee allowance was clearly errone-

6/ous and merits reversal by this Court.
The District Court's Denial of Fees for Time 
Spent With Dr. Scott_________________________
The Board devotes significant attention to making the

argument that the district court appropriately refused to award

6/ As to the remaining arguments advanced by the Board in 
support of the adequacy of the calculation of the fee award, 
plaintiffs rely on their initial brief in this appeal.

Plaintiffs draw the Court's attention to one uninten­
tional misstatement of fact which the Board correctly refutes 
in its brief. Brief of Bd. at 4 n. 8. Plaintiffs reviewed 
the record and agree with the Board that they did not file for 
fees until 1976.

However, as the Board concedes, _id. at 3 n. 5, when this 
Court last visited this case, no act permitting attorneys' 
fees was in effect. The Civil Rights Attorney's Fees Awards 
act of 1976, 42 U.S.C. § 1988, provided a new basis for a 
retroactive fee award, and when placed in the context of the 
timing of the passage of this act, plaintiffs' fee request was 
timely.

9



fees for time spent with Dr. Scott. Brief of Bd. , pp. 29-31.
It invokes the Supreme Court's recent ruling in Hensley v. 
Eckerhart, 51 U.S.L.W. 4552 (1983), to support the proposi­
tion that plaintiffs' fees should be denied to the extent that 
they did not completely prevail on all of their claims. But 
this argument is wasted— it fails to recognize that plaintiffs 
prevailed on their claim that the district court's plan was 
insufficient when last before this Court. They argued that 
the district court wrongly failed to order an effective deseg­
regation plan, and that Dr. Scott's testimony could not be 
relied upon as a basis for a failure to do so. Plaintiffs 
have always sought the maximum degree of desegregation prac­
ticable in this lawsuit; their appeal in 1982 resulted in a

7/more comprehensive plan.-
This Court's refusal to deny fees for time spent with 

Dr. Scott is clearly erroneous.
II. THE BOARD'S CROSS-APPEAL

The Board cross appeals on two issues. First, it claims 
that it should not be responsible for plaintiffs' fees relat­
ing to claims made by intervening parties. Plaintiffs respond 
by simply stating that it was the Board's failure to dismantle 
its dual school system that occasioned the interventions and 
further litigation in this lawsuit. Counsel for plaintiffs 
were under a duty to perfect a remedy and to represent their 
clients' interests in all respects.

7/ Contrary to the Board's mischaracterization of plain­
tiffs' theory behind the case--apparently also misconstrued by 
the district court— plaintiffs have never espoused desegrega­
tion because of the specious theory that "white is right." Nor 
have the courts ordered desegregation on that basis.

10



With respect to the Board's second basis for its cross 
appeal, that the district court erred in not determining the 
specific extent to which the plaintiffs had prevailed in this 
action, plaintiffs suggest that the Supreme Court's recent
ruling in Hensley v. Eckerhart, 51 U.S.L.W. 4552, ___ U.S. ___
(1983), does not warrant disturbing the district court's rul­
ing that plaintiffs were the prevailing party. While Hensley 
does allow for a specific determination of the extent to which 
a party prevails for purposes of determining fees in cases in 
which the claims are neatly severable, 51 U.S.L.W. at 4555, 
this is not such a case. Rather, in cases such as this, the 
Supreme Court in Hensley reaffirmed that an award of fees 
based upon a finding that plaintiffs were the prevailing party 
is appropriate. The Court stated that

Many civil rights cases will present only a single 
claim. In other cases the plaintiff's claims 
for relief will involve a common core of facts 
or will be based on related legal theories. Much 
of 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 ser­
ies of discrete claims. Instead the district 
court should focus on the significance of the 
overall relief obtained by the plaintiff in rela­
tion to the hours reasonably expended on the 
litigation.

Where a plaintiff has obtained excellent 
results, his attorney should recover a fully 
compensatory fee. Normally this will encompass 
all hours reasonably expended on the litigation, 
and indeed in some cases of exceptional success 
an enhanced award may be justified. In these 
circumstances the fee award should not be reduced 
simply because the plaintiff failed to prevail on 
every contention raised in the lawsuit. See

11



Davis v. County of Los Angeles, 8 E.P.D. 1f 9444, 
at 5049 (CD Cal. 1974). Litigants in good faith 
may raise alternative legal grounds for a desired 
outcome, and the court's rejection of or failure 
to reach certain grounds is not a sufficient 
reason for reducing a fee. The result is what 
matters.

Id.
The results in this drawn out litigation were finally 

obtained in this Court's July 27, 1982, opinion. Every conten­
tion and claim made by plaintiffs along the way was aimed at
this result— the implementation of an effective and constitu-

8/tionally adequate desegregation plan.
CONCLUSION

The Board has failed to meaningfully refute plaintiffs' 
arguments made in their initial brief in this appeal; accord­
ingly the relief requested therein should be granted. More­
over, the Board's cross-appeal raises no legitimate issues, 
and the district court's rulings with respect to the issues 
raised by the cross-appeal should not be disturbed, since it 
was not clearly erroneous.

8/ The Board claims that plaintiffs did not prevail on the 
faculty issue. At the December 1982 hearing plaintiffs sug­
gested to the district court that the faculty issue should be 
pretermitted until a student assignment plan was effectuated. 
Plaintiffs did so because it is obvious that faculty assign­
ments cannot be made until the issue of student assignments 
is settled. Therefore, plaintiffs sought and received the 
Board's agreement on general principles governing faculty 
assignments consonant with the existing state of the law on 
that issue.

12



Respectfully submitted,

RICHARD H. DINKINS
203 Second Avenue North 
Nashville, Tennessee 37201

JACK GREENBERG 
JAMES M. NABRIT, III 
THEODORE M . SHAW 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintifs-Appellants, 
Cross-Appellees

CERTIFICATE OF SERVICE

Undersigned counsel for plaintiffs-appellants, cross­
appellees certifies that on this 23rd day of August, 1983, 
copies of the foregoing Reply Brief of Plaintiffs-Appellants 
and Brief as Cross-Appellees and accompanying Motion of Plain­
tif fs-Appellants , Cross-Appellees to File Reply Brief and 
Brief as Cross-Appellees Instanter were served upon counsel 
for the parties by prepaid first class United States mail 
addressed to:

WILLIAM R. WILLIS, JR., ESQ.
MARION F. HARRISON, ESQ.
215 Second Avenue, North
Nashville, Tennessee 37201

13