Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Supplemental Brief on Rehearing En Banc on Behalf of Defendants-Appellees, Cross-Appellants

    ROBERT W. KELLEY, et

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NOS. 83-5175/5243

al. ,
Plaintiffs-Appellants, 
Cross-Appellees

VS.

METROPOLITAN COUNTY BOARD 
OF EDUCATION, et al.,

Defendants-Appellees, 
Cross-Appellants

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

ixashville Division

SUPPLEMENTAL BRIEF ON REHEARING EN BANC ON BEHALF OF 
DEFENDANTS-APPELLEES, CROSS-APPELLANTS

WILLIS & KNIGHT 
William R. Willis, Jr.
Marian F. Harrison 
215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600
Attorneys for Defendants-Appellees 
Cross-Appellants

ORAL ARGUMENT REQUESTED



TABLE OF CONTENTS

Page

Preliminary Statement .............................. 1
Questions Presented ................................  2
Statement of the C a s e .............................. 4
Argument
I. THIS COURT'S 1972 ORDER AFFIRMING THE 1971

DESEGREGATION PLAN IN NASHVILLE AND REFUSING 
TO AWARD COSTS AND FEES WAS A FINAL ONE. 
UNDER NORTHCROSS V. BOARD OF EDUCATION,
FEES INCURRED PRIOR TO THIS ORDER SHOULD BE
DENIED......................................  12
A. Northcross and the Final Order

P r i n c i p l e .............................. 12
B. The 1972 Order in Light of Northcross . . 15

II. BUIAN V BAUGHARD, 687 F.2d 859 (6th Cir.
1982) SHOULD BE APPLIED TO PRECLUDE THE AWARD 
OF FEES FOR APPELLATE WORK WHERE PLAINTIFFS
Ha /E NEVER BEEN AWARDED C O S T S ............... 18

III. THE PLAINTIFFS SHOULD NOT BE PERMITTED 
TO RECOVER FEES FROM DEFENDANTS RELATING
TO SERVICES PERTAINING TO OTHER PARTIES . . .  22

Con c l u s i o n........................................  26
Certificate of Service ............................ 27

l



TABLE OF AUTHORITIES

Cases Page

Alexander v. Holmes County Board of Education,
396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) . . 5 , 6

Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980) . . .  19
Bradley v. School Board of Richmond, 416 U.S. 696,

94 S.Ct. 2006, 40 L . Ed. 2d 476 (1974)............. 8
Brown v. Board of Education, 347 U.S. 483 (1954) . . 4 , 5
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) . . 2, 3, 4,

10 , 18

Chevron Oil Co. v. Huson, 404 U.S. 97,
92 S.Ct. 349, 30 L.Ed.2d 296 ( 1971 ) ............. 21

Davis v. Murphy, 587 F.2d 362 (7th Cir. 1978) . . .  19
Fulps v. City of Springfield, 715 F.2d 1088

(6th Cir. 1983 ) ..................................  19
Gautreaux v. Chicago Housing Authority,

690 F. 2d 301, 608 ( 7th Cir.19 8 2 ).................  14
Goss v. Board of Education of the City of 

Knoxville, 373 U.S. 683, 83 S.Ct. 1405,
10 L. Ed. 2d 632 (1963) ............................ 5

Green v. County School Board of New Kent
County, 391 U.S. 430 (1968) .....................  5

Hampton v. Hanrahan, 600 F.2d 1231 (7th Cir. 1960) . 19
Haycraft v. Hollenbach, 606 F.2d 128

(6th Cir. 1 9 7 9 ) ..................................  23
Henry v. Clarksdale Municipal Separate

School District, 579 F.2d 916 (5th Cir. 1978) . . 14, 15
Hensley v. Eckerhart, 103 S.Ct. 1933 (1983) . . . .  3, 22, 23,

24, 25

Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565,
56 L. Ed . 2d 522 ....................................  19

ii



Johnson v. Combs, 471 F.2d 84 (5th Cir. 1972) 17 , 19

Kelley v. Metropolitan County Board
of Education, et al,, Civil Action Nos.
83-5175/5243 (slip op. February 12, 1985) . . . .  12

Kelley v. Board of Education of the City 
of Nashville, 361 U.S. 924, 80 S.Ct. 293,
4 L.Ed.2d 240 (1959) .............................. 5

Kelley v. Metropolitan County Board 
of Education, et al., 687 F.2d 814
(6th Cir. 1982.)..................................  9

Kelley v. Metropolitan County Board
of Education, et al., 463 F.2d 732, cert.
denied 409 U.S. 1001 (1972 ) ...................  7, 21

Kelley v. Board of Education of the 
City of Nashville, 270 F.2d 209
(6th Cir. 1959 ) ....................................  5

Kelley v. Metropolitan County Board
of Education, et al., 511 F.Supp. 1363
(M.D. Tenn. 1981)   9

Kelley v. Metropolitan County Board
of Education, et al., 492 F.Supp. 167
(M.D. Tenn. 1 9 8 0 ) .................................  9, 25

Kelley v. Metropolitan County Board
of Education, et al., 479 F.Supp. 120
(M.D. Tenn. 1979)   8

Kelley v. Metropolitan County Board 
of Education, et al., 317 F.Supp. 980
(M.D. Tenn. 1970)   6

Kelley v. Board of Education of the 
City of Nashville, 8 R.R.L.R. 651
(M.D. Tenn. 1958)   5

Louisville Black Police Officers'
Organization, Inc. v. City of Louisville,
700 F. 2d 268 (6th Cir. 1 9 8 3 ) .....................  2

Maxwell v. Board of Education of 
Davidson County, 203 F.Supp. 768 
(M.D. Tenn. 1960) aff'd 301 F.2d 828
(6th Cir. 1962 ) ..................................  5

iii



Northcross v. Board of Education of 
Memphis City Schools, 611 F.2d 624 
(6th Cir. 1979), cert. denied,
447 U.S. 911 ( 1 9 8 0 ) .............................. 2, 4, 10

13

New York Association for Retarded Children v.
Carey, 711 F.2d 1136 (2nd Cir. 1983 ) ............. 15

Northcross v. Board of Education of 
Memphis City Schools, Civil Action
No. 3931 (W.D. Tenn. , July 29, 1966)............. 12

Pasadena City Board of Education v.
Spangler, 427 U.S. 424, 96 S.Ct. 2697,
49 L . Ed. 2d 599 (1976) ............................ 13

Peacock v. Drew Municipal Separate 
School District, 433 F.Supp. 1672
(M.D. Miss. 1 9 7 7 ) ................................  15

Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 ( 1 9 7 1 ) .................  5, 6

United States v. Swift Co., 286 U.S. 106,
52 S.Ct. 460, 76 L.Ed.2d 999 ( 1 9 3 2 ) ............. 13

Wheeler v. Durham County Board of
Education, 585 F.2d 618 (4th Cir. 1 9 7 8 ) ........  15

Other Authorities

Rule 39(a), Federal Rules of Appellate Procedure . . 19, 20
Moore's Federal Practice, Vol. IB .................  21
42 U.S.C. §1988 ....................................  13 , 14 , 18 ,

19, 20, 21

IV



REFERENCES

A . Citations to the Panel's Opinion in this Case
Citations to the panel's opinion in this case filed on 

February 12, 1985, will be referred to as "panel's opinion,
p. 1. "

B . Citations Contained in the Appendix
For purposes of clarity, since the appendix has already 

been filed in this cause, references to pages within the appendix 
will be made by appendix page number. For example, the District 
Court's memorandum opinion of June 28, 1971, will be cited as 
"Memorandum Opinion, June 28, 1971, App. 140."

I V



IN THE UNITED STATES COURT OF APPEALSr

i

FOR THE SIXTH CIRCUIT 
NO: 83-5175/5243

ROBERT W. KELLEY, et al.
Plaint iffs-Appellants, 
Cross-Appellees

VS.

METROPOLITAN COUNTY BOARD 
OF EDUCATION, et al.,

Defendants-Appellees, 
Cross-Appellants

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

Nashville Division

SUPPLEMENTAL BRIEF ON REHEARING EN BANC ON BEHALF OF 
DEFENDANTS-APPELLEES, CROSS-APPELLANTS

PRELIMINARY STATEMENT

This case is before the full Court for a rehearing, fol­
lowing the Court's decision to vacate the opinion entered by the 
three-judge panel on February 12, 1985. The issues have been 
briefed before by the parties, and the appellees and cross­
appellants, Metropolitan County Board of Education, et al. 
(hereinafter the defendants) refer the court to their opening and 
reply briefs and to their Petition for Rehearing and for



I

Rehearing En Banc previously filed in this cause. The purpose of 

this supplemental brief is to highlight the all-important history 
of this thirty year old school desegregation case as it pertains 
to the attorneys' fees question, to summarize arguments previous­
ly made, and to respond to new points raised by the plaintiffs' 
supplemental brief and by the decision of the panel.

QUESTIONS PRESENTED

The issues raised by the parties in their respective peti­
tions to rehear have been narrowed since the panel's decision.
In their Petition for Rehearing, the defendants raised as error 
only the panel's finding that the 1972 order in this case was 
not a final order under Northcross v. Board of Education 
of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), the 
panel’s failure to apply the mandate of Buian v. Baughard, 687 
F . 2d 859 ( 6th Cir. 1982) precluding an award of fees at the ap­
pellate level where costs had not been awarded, and the panel's 
decision that the defendant should pay for time spent by plain­
tiffs' attorneys relating to actions of parties other than the 

1
defendants.

1
In their Petition for Rehearing, the defendants noted 

that the panel overruled the District Court's setting of reason­
able hourly fees for plaintiffs' attorneys and raised these fees 
slightly, without ever finding the District Court's findings of 
fact to be clearly erroneous, and without ever finding that the 
District Court abused its discretion. See Louisville Black 
Police Officers' Organization, Inc, v. City of Louisville, 700 
F.2d 268 (6th Cir. 1983). The defendants nevertheless declined 
to raise this issue on rehearing.

2



The plaintiffs' Protective Motion for Rehearing attacked
only the panel's statement that fees for the NAACP Legal Defense

2
Fund attorneys were not the subject of the appeal. Accordingly, 
the plaintiffs accepted the panel's adoption of the prevailing
party test required by Hensley v. Eckerhart, ___ U.S. ___,
103 S.Ct. 1933 (1983), the District Court's rejection of fees for 
their expert witness, and the reduction of fees for duplication and 

reconstruction.
By this brief, defendants are narrowing the issues fur­

ther, since they agree with the proposition asserted by the 
plaintiffs in their protective Motion for Rehearing that the Dis­
trict Court's failure to award fees to the NAACP Legal Defense 
Fund attorneys was the result of the District Court's failure to 
consider appellate fees. Thus, while the defendants still con­
tend that no appellate fees are appropriate in this case, in 
light of Buian v. Baughard (see discussion at p. 18, infra), 
should this Court hold that appellate fees are to be considered 
by the District Court, fees for the NAACP Legal Defense Fund 
attorneys should likewise be considered under the appropriate 
standards on remand.

Accordingly, the remaining questions which are now pre­
sented to the full Court are as follows:

Panel's Opinion, p. 2, n. 1.
2

3



I .

WHETHER THE 1972 ORDER OF THE COURT OF APPEALS APPROVING 
A COMPREHENSIVE DESEGREGATION PLAN WAS 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 FOR PRE-1972 SERVICES UPON 
MOTION OF THE PLAINTIFFS MADE IN 1975?

The defendants respectfully submit that the District Court

correctly answered this question in the affirmative.

II.

WHETHER, UNDER BUIAN V. BAUGHARD, 687 F.2d 859 (6th Cir. 
1982), THE PLAINTIFFS ARE ENTITLED TO FEES FOR APPELLATE 
WORK, WHEN THEY HAVE NEVER BEEN AWARDED COSTS BY THIS 
COURT?

The defendants respectfully submit that the District Court

correc tiy answered this question in the negative.

Ill.

WHETHER THE DEFENDANT BOARD OF EDUCATION SHOULD BE 
RESPONSIBLE FOR FEES INCURRED BY THE PLAINTIFFS AS A 
RESULT OF ACTIONS OF INTERVENING PARTIES OR THIRD PARTY 
DEFENDANTS?

The defendants respectfully submit that the District Court 

erred by answering this question in the affirmative, and that it 
should be answered in the negative.

STATEMENT OF THE CASE

A. History of the Case 
This case began in 1955 immediately 

Board of Education, 347 U.S. 483, 74 S.Ct.
following Brown v . 
686, 98 L.Ed. 873

4



I

(1954). The many orders entered in this case adopting desegrega­
tion plans, first for Nashville and Davidson County, and then for 
Metropolitan Nashville, mirror the development of desegregation 
law in this country, from Brown, supra, to Green v. County 
School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 
L.Ed.2d 716 (1968) to Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
With each passing era of desegregation law new remedies were

3
adopted for Nashville public schools.

After operating under plans approved under earlier au­
thority, the Nashville case shifted in focus in 1969 with the 
plaintiffs' motion for immediate relief, based upon Green v. 
County School Board of New Kent County, 391 U.S. 430, 88 S.Ct.

3
For example, in 1958, the District Court approved a 

remedy providing for gradual desegregation (not integration) of 
the Nashville city schools. This was the famous "grade a year" 
plan, upon which many other localities modeled their plans. At 
that time, this plan was sufficient to comply with Supreme Court 
mandates, and the District Court later adopted a parallel plan 
for Davidson County. E .g . Kelley v. Board of Education of 
Nashville City Schools, 8 R.R.L.R. 651 (M.D. Tenn. 1958) , aff1d 
270 F.2d 209 (6th Cir. 1959); cert, denied 361 U.S. 924, 80 S.Ct. 
293, 4 L .Ed.2d 240, (1959); Maxwell v. Board of Education of
Davidson County, 203 F.Supp. 768 (M.D. Tenn. 1960), aff1d 301 
F.2d 828 (6th Cir. 1962), reversed in part and remanded sub nom. 
Goss v. Board of Education of Knoxville, 373 U.S. 683, 83 S.Ct. 
1405, 10 L.Ed.2d 632 (1963). These plans remained in effect long 
after the consolidation of the county and city cases by consent 
decree on September 10, 1963. Indeed, there were no efforts to 
change the plan until the decisions of the Supreme Court in 
Green v. County School Board of New Kent County, 391 U.S. 430, 88 
S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Alexander v. Holmes 
County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 
19 (1969).

5



I

1689, 20 L.Ed.2d 716 (1968), and Alexander v. Holmes County Board
of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).
This shift was toward development of a plan charging school

boards with an "affirmative duty to establish a unitary system at
the 'earliest possible' date." Kelley v. Metropolitan County

Board of Education, 317 F.Supp. 980, 984 (M.D. Tenn. 1970). In
that vein, the District Court rejected the plan then in effect
and ordered a new one drawn. Id.

It was this plan that Judge Morton approved in 1971 "after
4

the gradual evolvement of the law," based not only upon Green
and Alexander, but also upon Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554
(1971). The plan called for the pairing and clustering of
schools pursuant to the same configuration ordered in Swann, but
specifically excluded some schools in the outlying areas of the
county because of the long distances and the cost involved in
executing such a plan in a five hundred square mile county.
Judge Morton explicitly found under Swann that integration of

5
these outlying schools was not practical or feasible. Judge

6
Morton then ordered the plan implemented on September 1, 1971.

4
See Memorandum Opinion, June 28, 1971, App. 140.

5
Id., App. 147, 150.

6
Id., App. 156.

6



It was the 1971 plan (hereinafter the Morton plan) which 
was affirmed by this Court in 1972, and remained in effect until 
the 1983-1984 school year. Specifically, in 1972 this Court held 
that the plan met constitutional requirements. In this Court's 

words, the Morton plan "seems clearly to be a plan for ending a 
dual school system based upon race and substituting therefor a 
unitary one. It promises to work and to work now." Kelley v. 
Metropolitan County Board of Education, 463 F.2d 732, 745-46 (6th 
Cir. 1972), cert. denied 409 U.S. 1001 (1972). Nevertheless, 
this Court recognized that, should the plaintiffs or defendants 
find adverse effects from or changed circumstances after imple­
mentation of the plan, these problems could be addressed at the 
District Court level, under the general notion that all decrees 
in equity are susceptible to modification based upon changes in 
the law or facts. Id_. at 745-46.

Following entry of the District Court's order, efforts of
both parties and the court were directed toward implementation of
the plan as the District Court later found. (Memorandum,

7
February 23, 1983, App. 532.)

In April, 1975, the plaintiffs moved for the first time

I

7
Neither the panel's opinion nor the plaintiffs' briefs 

object to the District Court's characterization of the activity 
after 1971. All activity arose from the Board's lack of ade­
quate transportation facilities, the Board's efforts to interpret 
the Morton plan and to live within it, certain efforts to require 
HEW to pay for buses, and the plaintiffs efforts to demonstrate 
adverse effects after implementation. See defendants' original 
brief, pp. 3-5.

7



8
for attorneys' fees, and on December 27, 1976, after the passage 

of the Civil Rights Attorneys Fees Awards Act of 1976 and the de­
cision in Bradley v. School Board of the City of Richmond, 416 

U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the plaintiffs 
filed a petition for contempt and further relief, which was
addressed to implementation and adverse effects plaintiffs

9
alleged were arising from the implementation. At or near the
same time, the defendants also moved for changes in the Morton
plan, based upon growth in the county and other changes in the

10
school system since the implementation of the Morton plan. It 
was upon these motions that the District Court began hearings in 
1979. From the hearings the District Court determined that the 
Morton plan, over the intervening eight years, had produced cer­
tain adverse effects and changed circumstances, particularly 
resegregation caused by growth in the outlying areas. It was 
these adverse effects or changed circumstances which the District 
Court found warranted exploration of a new remedy. Kelley v. 
Metropolitan County Board of Education, 479 F.Supp. 120, 122 

(M.D. Tenn. 1979).

I

8 Motion of plaintiffs for fees filed 4/11/75, App. 819, 
and n. 8, p. 4, of defendants' original brief.

9
See Petition for Contempt and for Further Relief, 

December 27, 1976, App. 240.
10

See Petition for Further Relief filed October 14, 1976, 
App. 238; Petition for Approval of School Zones for 1978-1979, 
filed July 24, 1978, App. 247.

8



I

Based upon the need to balance the practical problems 
associated with the implementation of the racial balance approach 
on a county-wide basis in Nashville (previously addressed speci­
fically in the Morton plan) against concerns expressed from the 
plaintiffs' expert witness, Dr. Hugh Scott, and a group of inter­
vening plaintiffs, the District Court ordered implementation of a 
remedy (the Wiseman plan) maximizing racial balance at the upper 
grade levels. Kelley v. Metropolitan County Board of Education, 
492 F.Supp. 167 (M.D. Tenn. 1980); Kelley v. Metropolitan 
County Board of Education, 511 F.Supp. 1363 (M.D. Tenn. 1981).
It was this Wiseman plan, not the Morton plan, which this Court 
in 1982 found "dotes] not withstand constitutional scrutiny."
Kelley v. Metropolitan County Board of Education, 687 F.2d 814,

11
824 (6th Cir. 1982). However, this Court accepted the District 
Court's findings that over the intervening decade, the Morton 
plan had resulted in resegregation and ordered the implementation 
of a second Swann remedy for Nashville and Davidson County. Id. 

at 816.

B. The District Court's Decision on Attorneys' Fees 
In pertinent part, the District Court's opinion of 

February 23, 1983, applies the principles enunciated in

11
Both the panel's opinion in this case and the plaintiffs' 

brief argue that the plan to which the Sixth Circuit was refer­
ring in this statement was the Morton plan. (Panel's opinion, 
p. 5, Plaintiffs' brief at p. 5, n. 3.) It is clear from the 1982 
opinion that the plan which was being considered was the Wiseman 
plan, calling in part for elementary schools of a neighborhood 
character.

9



Northcross v. Board of Education of Memphis City Schools, 611
F.2d 624, 634 ( 6th Cir. 1979), cert. denied 44 7 u.S. 91 1 (1980), 
to the Morton plan. The District Court found that this Court's 
affirmance in 1972 of the Morton plan constituted a discrete step 
in the litigation, and attorneys' fees incurred prior to this 
discrete or final step should not be awarded. The court further 
refused to consider appellate fees in light of Buian v. Baughard, 
687 F.2d 859 (6th Cir. 1982), because the District Court arguably 
had no jurisdiction under that decision to award fees and be­
cause, in any event, costs had been denied plaintiffs on every 
appeal in this case. For the period 1972 to the date of the 
hearing, the District Court granted the plaintiffs' application 
for fees, without consideration as to whether the plaintiffs had 
prevailed on any particular phase or stage of the litigation and 
without consideration as to whether the work performed by plain­
tiffs' counsel pertained to parties other than the Board of 

12
Education.

C. The Panel's Decision
On February 12, 1985, a three-judge panel of this Court 

reversed the District Court's decision and remanded it for fur­
ther proceedings in line with the opinion. The Court held that 
this Court's affirmance in 1972 of the Morton plan was not a 

final order under Northcross , supra , because it was not a consent

12
See Memorandum and Order regarding fees and contempt, 

filed February 23, 1983, App. 532.

10



Therefore, aorder and it had resulted in additional litigation, 
retroactive award of attorneys' fees was not precluded by 
Northcross. In contrast, the panel determined the rule asserted in 
Buian prohibiting consideration of appellate fees in the absence of 
an award of costs should not be given retroactive effect. Finally, 
the panel refused to deny plaintiffs fees for certain stages of the 
litigation which were precipitated by parties other than the defen­
dants, unless it could be stated that such parties obstructed the 
desegregation effort or were defendants separate and distinct from

13
the Board of Education.

Subsequently, the 
Rehearing and for Rehear 
majority of the judges o

defendants filed a Petition for
ing _En Banc , which was granted by 

14
f this Court.

a

13
The panel considered the Metropolitan Council and 

Mayor separate defendants from the Board of Education, and 
therefore held that the plaintiffs should seek fees from these 
defendants for their work pertaining to them. It should be noted 
here that these are the only parties from whom the plaintiffs 
ever sought fees, other than the Board of Education. The plain­
tiffs however did not pursue their request.

14
App. 233-36.

11



ARGUMENT

I.
THIS COURT'S 1972 ORDER AFFIRMING THE 1971 DESEGREGATION 
PLAN IN NASHVILLE AND REFUSING TO AWARD COSTS AND FEES 
WAS A FINAL ONE. UNDER NORTHCROSS V. BOARD OF EDUCA- 
TION, FEES INCURRED PRIOR TO THIS ORDER SHOULD BE 
DENIED.

A. Northcross And The Final Order Principle 
This Court in Northcross , and again in the panel decision 

in Kelley, recognized that the Attorneys Fees Awards Act could be 
given retroactive effect but that retroactive relief was not

\
automatic. 
follows:

The rule and the rationale behind it was stated as [jLtdtu.̂

This is not to say that a retroactive award 
of attorneys' fees must be made in all 
school desegregation cases. Certain interim 
aspects of the case may have been subject to 
a final order settling the issue of attor­
neys' fees to that point, rendering the 
reopening of long settled aspects in the 
case unfair.

— -7~Do[
^  '

611 F.2d at 635, Kelley v. Metropolitan County Board of Educa- -__
tion, et. al. Nos. 83-5175, 5243 (Slip opinion, February 12,
1985) , p. 3. Wixcik

After remand, the District Court in Northcross proceeded 
to find that the 1966 order "tentatively approving" a plan of ’
desegregation constituted a final order or discrete step in the

U C3U1

15
See Northcross v. Board of Education of City of 

Memphis Schools, Civil Action No. 3931, July 29, 1966, App. 973. 
This 1966 order to which the court was referring merely approved 
tentatively the implementation of a desegregation plan for the 
coming school year, and ordered the plaintiffs to file objections 
within three weeks.

lA tr i"

I
12



litigation, behind which a court should not go in awarding fees.
The order may have been a consent order, but it was by no means
viewed as the termination of desegregation litigation in Memphis,

whether by this Court, the District Court, or the parties:
Nearly two years later, in 1966, a modified 
plan was tentatively approved by the Dis­
trict Court, and an uneasy state of repose 
was reached. While the plaintiffs objected 
to some aspects of the plan, their motion 
for an injunction was denied. At the same 
time, however, the board was put on notice 
by the court that some aspects of the plan 
needed further study, and additional relief 
might be ordered in the future.

Northcross, 611 F.2d at 628-29.
Thus, while the Northcross order may have been technically

a consent order, the courts and the parties envisioned some
changes during the implementation period. Yet this Court stated
that the District Court might find the 1966 order final and the
District Court did so. Moreover, even if the parties or the
court had not envisioned changes during the implementation of the
plan approved, desegregation decrees, whether consensual or
otherwise, may require modification to accomodate changes in

16
circumstances or adverse effects.

The plaintiffs attempt to undercut the finality principle 
set forth in Northcross. They argue that the goals of 42 U.S.C. 
§1988 should always be viewed as overriding factors in any

16
See United States v. Swift Co., 286 U.S. 106, 119, 52 

S.Ct. 460, 76 L.Ed. 999 (1932); Pasadena City Board of Educa­
tion v. Spangler, 427 U.S. 424, 437, 96 S.Ct. 2697, 49 L.Ed.2d 
599 (1976).

13



twoattorneys' fees litigation. The policy argument ignores
facts: (1) an award of fees for work performed prior to the
final orders in cases such as Northcross and Kelley will not
advance the ultimate goal of 42 U.S.C. §1988; and (2) there is a
strong policy argument associated with the finality principle
as this Court recognized in Northcross.

The ultimate goal of 42 U.S.C. §1988 is generally stated

to be the provision of adequate fees to attract competent counsel
17

to civil rights litigation. Cases such as Northcross and 
Kelley were begun long before fee awards were generally avail­
able, and critical stages of these cases were decided long before 
any lawyers could be lured by the prospect of fees pursuant to 
the statute. Conversely, if continued litigation of any nature 
after a final decision in a desegregation case such as Northcross
and Kelley reopens the entire case for an award of fees,

18
the prospects for abuse will be great.

17
Senate Report No. 94-1011, reprinted in 1976 U.S. Code 

Cong and Admin News, p. 5908.
18

Cf. Gautreaux v. Chicago Housing Authority, 690 F.2d 601, 
608 ( 7th Cir. 1982) .

Other reasons which have been asserted for giving the 
finality principle priority over the goals set forth in the 
legislative history of 42 U.S.C. §1988 include the recognition 
that a reliable factual basis for a fee award cannot be genera­
ted in the usual case for services performed ten or twenty years 
before the application for fees is heard. Henry v. Clarksdale 
Municipal Separate School District, 579 F.2d 916, 919 (5th Cir. 
1978). In this instance, it should be noted here that all fees 
requested by the plaintiffs in Kelley were based upon recon­
structed time, including those hours plaintiffs claim their 
counsel expended in the 1950s and 1960s. Indeed, Mr. Z.

14



Furthermore, this Court in Northcross gave no further 
reason than the Court's interest in the finality of a decision 
resolving all pending issues in concluding that a retroactive 

award of fees may not always be appropriate in a desegregation 
case. It thus appears that this Court attached great importance 
to principles of res judicata as well as to the payment of fees 
for civil rights litigants. Other courts in similar circum­
stances have likewise espoused the view that a final order, 
constituting a discrete step in a protracted case, should be 
treated as final for attorneys' fees purposes, even though fur­
ther litigation may occur. E .g . Wheeler v. Durham City Board 
of Education, 585 F.2d 618 (4th Cir. 1978); Henry v. Clarksdale 
Municipal Special School District, 579 F.2d 916 (5th Cir. 1978); 
New York Association for Retarded Children v. Carey, 711 F.2d 
1136, 1145 (2nd Cir. 1983); Peacock v. Drew Municipal Separate 
School District, 433 F.Supp. 1072 (M.D. Miss. 1977). The ration­
ale used in these cases is the same as that in Northcross— final 
orders resolving all issues then before the court should not be 
reopened for the award of fees.

B. The 1972 Order in Light of Northcross
Both the plaintiffs' argument and the panel's opinion 

attempt to distinguish the 1966 order in Northcross from the 1972

I

18 Continued
Alexander Looby, one of the counsel for whom plaintiffs seek fees, 
died several years ago. (See affidavits in support of fees 
beginning at App. 327.)

15



order in Kelley because (1) the order in Kelley was not a consent

order; and (2) litigation continued in Kelley concerning the plan 
after 1972. The defendants respectfully submit that these rea­
sons are not sufficient to distinguish Northcross. In addition 
to the argument submitted below, the defendants refer the Court 
to its original brief filed in this case at pp. 12-19.

As has been demonstrated in the Statement of the Case 
above, the litigation after 1972 in Nashville cannot be consi­
dered a denial of the order's finality. The litigation was aimed 
solely toward enforcement and modification in light of demon­
strable changes or adverse effects. As this court recognized in 
1972, the presence of such factors may always spawn litigation
concerning an otherwise final decree in equity, every bit as much

19
as a change in the law.

In this case, all issues in controversy in 1972, including 
attorneys' fees, were determined by this Court's order. The 
remedy approved complied with Swann v. Charlotte-Mecklenburg, 
supra, and costs and fees were disallowed. Had population 
increases in the outlying areas of Nashville, Tennessee not oc­
curred after implementation of the Morton plan, had population 
growth resulting in overcrowding in some schools not occurred, or 
had the plaintiffs found no data over the ten year period of im­
plementation to support their contention that young black 

children were harmed by busing at early ages, the Morton plan

See n. 15, supra.
19

16



1

would undoubtedly be in effect today. While the plaintiffs appear 
to argue that ' the current plan, implemented after the 1982 decision 
of this Court is a final order, similar changes in circumstances 
may make it necessary to modify or change it within the next de­
cade. School systems are not static, and desegregation plans 
which control day-to-day school operations cannot be static.

While the panel's decision appears to turn primarily upon 
the consent nature of the decree in Northcross, even the plain­
tiffs now recognize that their earlier position stated in their 
initial brief distinguishing Northcross primarily on this

20
basis is not workable. Rather than turning on subjective 
intent or consent, the question of finality must be resolved in 
light of the issues determined at trial and the relief sought. 
Here the District Court found that all issues , including attor­
neys' fees and costs, were resolved by the 1972 order. It is the 
District Court which ten years later modified the decree based 
upon evidence of new circumstances and adverse effects. The 
District Court is in a peculiarly good position to determine
whether a discrete step has been taken in a desegregation case 

21
and it did so. The panel's decision overturned the District 
Court's order, without examination of its factual findings con­
cerning the discrete step and the nature of the litigation 
occurring after 1972.

20
See plaintiffs' supplemental brief, p. 10, n. 6.

21
See Johnson v. Combs, 471 F.2d 84, 87 (5th Cir. 1972).

17



I

One point raised in the defendants' petition for rehearing
should be reiterated here. Clearly, in light of the historical
development of desegregation in Nashville, wherein each major
decision was precipitated by a new standard promulgated by the 

22
Supreme Court, it is critical to determine whether or not an 
order must be consensual in order to be final under Northcross.
As demonstrated previously, prior to 1972 there were other final 
orders in this cause, resolving all issues then before the court. 
Should this Court determine that the 1972 order does not preclude 
a retroactive award of attorneys' fees, the defendants must argue 
as they did before the District Court, that other orders during 
the course of this litigation also constituted final orders under 
Northcross. Thus, while the defendants do not believe that the 
ultimate test for finality is consent, this guestion should be 
clarified in order to avoid additional litigation.

II.

BUIAN V. BAUGHARD, 687 F.2d 859 (6th Cir. 1982) SHOULD 
BE APPLIED TO PRECLUDE THE AWARD OF FEES FOR APPELLATE 
WORK WHERE PLAINTIFFS HAVE NEVER BEEN AWARDED COSTS.

Both the panel's decision and the plaintiffs' brief are in 
agreement that Buian v. Baughard precludes the award of fees 
under 42 U.S.C. §1988 for appellate services rendered, when the 
plaintiffs have not received costs on appeal. Similarly, there 
is no apparent guarrel with the defendants' previous argument

22
See discussion supra at pp. 4-6.

18



that the plaintiffs in this case have never been awarded costs by
this Court. The only question therefore is whether the Buian rule
should be applied in this case. The panel refused to apply the
rule, holding that the rule represented a clear break with prior
law and that it was manifestly unjust to apply it retroactively.

The defendants respectfully assert that the cost rule promulgated
23

in Buian cannot be deemed to be a clear break with prior law,
and that in any event the plaintiffs did not rely on the prior
law and could not have reasonably relied upon it in light of the
clear language set forth in 42 U.S.C. §1988 and Rule 39(a),
Federal Rules of Appellate Procedure.

In their Petition to Rehear, the defendants argued at
length that the mandate in Buian was not a clear break with prior 

24
law. Attorneys' fees under 42 U.S.C. §1988 have long been

25
construed as costs, and Rule 39(a), Federal Rules of Appellate 

Procedure, by which costs are awarded has always been clear. 
Presumably, because of this clarity, this court in Buian did not 
hesitate to preclude fees. Similarly, this Court in Fulps v .

23
This has apparently been the normal practice elsewhere.

E .g . Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980); Hampton v. 
Hanrahan, 600 F.2d 600 (7th Cir. 1979); Davis v. Murphy, 587 F.2d 
362 ( 7th Cir. 1978 ) .

24
See Petition for Rehearing and for Rehearing Eri Banc, 

pp. 9-13.
25

Hutto v. Finney, 437 U.S. 678, 693, 98 S.Ct. 2565, 2574, 
56 L.Ed.2d 522, 536 (1978); Johnson v. Snyder, 639 F.2d 316, 317 
(6th Cir. 1981) .

19



recently, without prior warning, held that an offer of judgment
providing for "costs then accrued" mandated an award of fees,

26
because of the clear language of 42 U.S.C. §1988.

Even if this Court has not been presented with a previous 
occasion upon which to formally enunciate the cost rule in Buian, 
there can be no prejudice to the plaintiffs and there has been 
none. The plaintiffs have not indicated at any stage of this 
litigation that they relied upon another interpretation of 42 
U.S.C. §1988 or Rule 39(a), nor can they reasonably rely on 

another interpretation in light of the language set forth

City of Springfield, 715 F.2d 1088, 1092-93 (6th Cir. 1983),

26
While in Fulps this court stated there was "no easy 

answer to the question," it nevertheless held that such fee 
should be awarded as accrued costs because of the clear language 
of 42 U.S.C. §1988:

When Congress drafted 42 U.S.C. §1988, it 
described attorneys' fees "as a part of the 
costs." Congress could have simply author­
ized the recovery of attorneys' fees, but it 
chose to go further and characterize the 
fees as costs. Required, as we are, to con­
strue the language of a statute so as to 
avoid making any word meaningless or super­
fluous, we conclude that Congress expressly 
characterized fees as costs with the intent 
that the recovery of fees be governed by the 
substantive and procedural rules applicable 
to costs.

715 F.2d at 1092-93.

20



above. Indeed, in 1972 they sought fees and double costs at 
the appellate level and were denied them. Kelley v. Metropoli­
tan County Board of Education, 463 F.2d 732, 752 (6th Cir. 1972). 
The record thus demonstrates that the plaintiffs have understood 
the link between costs and fees at the appellate level, even be­
fore the clear language contained in the Attorneys Fees Award 
Act, and they should not be heard to claim prejudice.

Finally, if the District Court is deemed to be the appro-
28

priate fact-finder in an application for appellate fees, the 
application of Buian is of particular importance in long running 
civil rights cases like Kelley. For example, if the plaintiffs 
are successful in their efforts to have fees awarded from 1955 to

27

27
Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 

L.Ed.2d 296 (1971) upon which the panel's ruling was based lists 
reliance as one element of the retroactivity question now before 
the court. That test is defined as follows: "The decision to be
applied non-retroactively must establish a new principle of law, 
either by overruling clear past precedent on which litigants may 
have relied...or by deciding an issue of first impression whose 
resolution was not clearly foreshadowed."

It should be noted that while reliance has been looked to 
by courts assessing retrospective application of a law, presum­
ably to determine whether or not injustice will be perpetrated, 
proof of reliance does not necessarily mean that the law should 
be applied prospectively. See Moore's Federal Practice, Vol. IB 
at p. 93: "[Wjhile change in position and reliance on the state
of the law at the time it took place appears as an element in 
most if not all of the cases in which decisions have been applied 
prospectively only, it is not conferred any absolute immunity 
from retroactive judicial changes in the law...."

28
Defendants have maintained throughout this litigation 

that they do not object in general to the District Court consider­
ing appellate fees if there is an open issue of fees to consider.

21

>



I

date, the District Court will be required to review appellate 
decisions prior to 1971 without the benefit of the appellate 

record, briefs, and arguments.
As stated in defendants' Petition to Rehear, presumably 

this Court has had some reason over the years to order that the 
parties bear their own costs on the appeals where often neither 
party prevailed on every issue. These reasons may not be readily 
apparent or demonstrable to the District Court twenty or thirty 
years later. Under Hensley v. Eckerhart, 103 S.Ct. 1933 (1983), 
the District Court must determine with specificity the prevailing 
party issue for each stage of the litigation, a task which is 
rendered even more difficult twenty or thirty years after an 
appeal has been decided.

Ill .

THE PLAINTIFFS SHOULD NOT BE PERMITTED TO RECOVER FEES 
FROM DEFENDANTS RELATING TO SERVICES PERTAINING TO OTHER 
PARTIES.

The defendants have argued previously that they should not 
be held responsible for fees relating to other parties , such as 
the Metropolitan Council and Mayor, a group of plaintiff interve- 
nors who proposed a desegregation plan utilizing neighborhood 
schools, the Department of Health, Education, and Welfare who 

refused to pay for buses, and other intervening groups, over whom 
the defendants had no control and against whom the defendants 
usually took the lead in opposing. The panel's opinion rejects 
this argument along with the defendants' partial reliance upon

22



In requiring the defendants to pay plaintiffs' fees for 
parties other than the Metropolitan Council and Mayor, the panel 
opinion holds that Haycraft would only award fees against parties 

who obstructed the desegregation process. The panel opinion fur­
ther indicates that the defendants should, as a matter of common 
sense, be responsible for the plaintiffs' fees relating to other 
parties unless those parties are separate and distinct entities. 
The plaintiffs argue in addition that if fees are to be assessed 
against other parties, it is up to the Board to seek contribution 
from those parties.

The panel's decision misinterprets the characteristics of 
the additional parties in distinguishing the principles enuncia­
ted in Haycraft , and in applying its common sense determination 
that only separate defendants should be responsible for fees. 
(Panel opinion, pp. 10-11.) Further, the panel's decision and 
the plaintiffs' position ignore the Supreme Court's mandate in 
Hensley v. Eckerhart that the plaintiffs are only entitled to 
fees for those stages of the litigation in which they have pre­
vailed. It cannot be said that the plaintiffs prevailed with 
regard to these additional parties.

Assuming the panel's efforts to distinguish Haycraft on
the basis of the particular party's obstructive behavior in

29
that case is correct, its opinion concerning the various addi-

Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir. 1979).

29
The defendants do not concede that Haycraft would award 

fees only against parties whose conduct can be deemed obstructive

23



tional parties and their lack of responsibility for fees cannot 
be supported by the distinction. Like the judge in Haycraft, the 
intervenors who proposed a desegregation plan to the District 
Court in 1979 clearly obstructed the litigation in this case, 
causing untold hours of hearings and prompting (along with the 
plaintiffs' expert witness) the District Court to adopt a plan 
which was later rejected by the Court of Appeals as segregative 
in nature. (The Wiseman plan discussed supra.)

In addition, the panel's common sense acceptance of the

Metropolitan Council and Mayor as appropriate parties against
whom fees may be awarded because of their separate nature as
third party defendants calls into serious guestion the panel's
decision concerning the third party defendant HEW, as well as the

30
two groups of intervening plaintiffs. Clearly, these parties 
were separate and distinct entities or persons, just as were the 
Metropolitan Council and Mayor.

More important perhaps is the failure of the panel opinion 
to recognize that under Hensley v. Eckerhart, 103 S.Ct. 1933 
(1983), the plaintiffs cannot be said to have prevailed in any

30
The panel's opinion refers to two "otherwise unidenti­

fied" groups of intervenors. The intervenors' pleadings were 
identified in the defendants' opening brief. The intervening 
parties proposing a desegregation plan in 1980 (incorrectly 
listed as 1979) were Leo Lillard, James Dean, W. R. Rochelle, Wilma 
Cunningham, Mary Vowels, Brenda Singer, Stan Burgosh. Their 
pleadings are contained at the following pages of the appendix:
270 et seg. The defendants' opposition to these intervenors is 
shown on pp. 292, 293, and 277 of the appendix. The magnet 
school proponents' motion to intervene is set forth on p. 289 of 
the appendix.

2 4



stage of the litigation pertaining to these additional parties.
With the exception of the Metropolitan defendants whom the panel

32
accepted as appropriate sources of attorneys' fees, and the 
intervenors proposing the magnet schools, the plaintiffs never 
opposed actively or took a firm position regarding the additional 
parties. For example, the plaintiffs initially supported the 
entry into the lawsuit of the third party intervenors who pro­
posed the desegregation plan, presumably because they also 
supported keeping small high schools like Pearl High School in 
operation. Kelley v. Metropolitan County Board of Education, 492 
F.Supp. 167, 185-86 (M.D. Tenn. 1980). It was the defendants,
not the plaintiffs, who took up the mantle against the segrega-

33
tive plan proposed by the intervening plaintiffs in 1980. 
Similarly, the plaintiffs did not take a stand regarding the 
claim against the Department of Health, Education, and Welfare. 
Under Hensley v. Eckerhart, it cannot be said that the plaintiffs

31

31
While the plaintiffs argue that the District Court was 

correct in assessing fees against the school district for work 
relating to intervening parties, the plaintiffs curiously state 
in conjunction with the same argument that the panel's action in 
remanding the case for determination pursuant to Hensley v. 
Eckerhart was appropriate. See plaintiffs' supplemental brief, 
pp. 7, 15.

32
It is interesting to note that the plaintiffs only chose to 

seek fees against the Metropolitan Council, and did not pursue 
those requests. See App. 233-36.

33
App. 292, 293, 277.

25



«

«

prevailed regarding the issues raised by these additional parties.

CONCLUSION

For all of the foregoing reasons, the appellees and cross­
appellants, Metropolitan County Board of Education, et al., 
respectfully submit that the District Court's award of attorneys' 
fees to the plaintiffs in this cause was correct and should be 
affirmed, except to the extent that the District Court included 
fees for services relating to parties other than these defen­
dants, to the extent that its calculations failed to consider 
those claims upon which the plaintiffs did not prevail, and to 
the extent that the hourly fee calculations were modified by the 
panel's decision. In light of these errors, the case should be 
remanded to the District Court for further proceedings.

Respectfully submitted,
WILLIS & KNIGHT

/ / A M ,  ' iBy; CUi <j v/'A■Y, 1
William R. Willis, Jr.

215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600
Attorneys for Defendants- 
Appellees, Cross-Appellants

26



«

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the
foregoing brief has been forwarded to Mr. Avon Williams and Mr. 
Richard Dinkins, 203 Second Avenue North, Nashville, TN 37201; 
Mr. Jack Greenberg, Mr. James M. Nabrit, III, and Mr. Theodore M. 
Shaw, Suite 2030, 10 Columbus Circle, New York, NY 10019; and 
Mr. Steve Doughty, Deputy Attorney General, 450 James Robertson 
Parkway, Nashville, TN 37219, on this  ̂ <- day of May, 1985.

WILLIS & KNIGHT

By:
Attorneys for Defendants- 
Appellees, Cross-Appellants

\ 27

I