Jenkins v. City of Pensacola Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

//

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

VS.

METROPOLITAN COUNTY BOARD 
OF EDUCATION, et al.,

Defendants/
Appellees/
Cross-Appellants

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] NOS: 83-5175, 5243
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PETITION FOR REHEARING AND 
FOR REHEARING EN BANC

The appellees and cross-appellants, Metropolitan County 

Board of Education, et al., (hereinafter "defendants"), hereby 
petition the Court for a rehearing of the case resulting in 
the Panel's opinion"'- of February 12 , 19 85. Further, the defen­

dants request a rehearing en banc.
Defendants' counsel believe, based upon their reasoned 

and studied professional judgment, that the Panel's decision is 

contrary to the letter and spirit of the following decisions of 
this Court and of the United States Supreme Court: Northcross v.

Board of Education of Memphis City Schools, 611 F.2d 624 (6th 
Cir. 1979), cert, denied, 447 U.S. 911 (1980); Buian v. Bauqhard, 
687 F .2d 859 (6th Cir. 1982); Haycraft v. Hollenbach, 606 F.2d

1 The Panel consisted of Senior Judge Edwards, Senior Judge 
Celebrezze, and Judge Krupansky.



f

128 (6th Cir. 1979) (per curiam); and Hensley v. Eckerhart,
___ U.S. ___, 103 S.Ct. 1933 (1983), and that consideration by
the full Court is necessary to maintain uniformity with the 
decisions of this Court and of the Supreme Court. Furthermore, 
since this case involves several fundamental issues relating 
to the award of attorneys' fees in a protracted school desegre­
gation case, the issues presented herein constitute matters of 
exceptional importance, the resolution of which by the full 
Court will lay to rest matters which on remand in this case 
and in others may produce "yet another round of 'the least 
socially productive type of litigation imaginable: appeals
from awards of attorneys' fees.'" Wolfel v. Bates, No. 83-3751 
(6th Cir. November 27, 1984), citing Hensley v. Eckerhart, 103 
S.Ct. at 1944 (Brennan, J., with Marshall, Blackmun and Stevens, 

JJ., concurring in part and dissenting in part).

STATEMENT OF THE CASE

This is a school desegregation case which began in 
1955.2 In 1982, the District Court held a hearing on the 
plaintiffs' request for over $1.4 million in attorneys' fees, 
representing plaintiffs' claim for legal work reconstructed 
by counsel3 from 1955 to the date of the hearing. Relying on

- 2 -

See Kelley v. Board of Education, 270 F.2d 209 (6th Cir. 
1959), cert. denied, 361 U.S. 924 (1959).

3 Counsel's claim for the entire thirty year period was based on 
reconstructed time.



r

Northcross v. Board of Education of Memphis City Schools,
611 F .2d 624, 635 (6th Cir. 1979), cert, denied, 447 U.S. 911 
(1980), the District Court initially held that the fee appli­
cation for work performed prior to the District Court's approval 
of a comprehensive desegregation plan in 1971, affirmed by this 
Court in 1972, Kelley v. Metropolitan Board of Education, 463 
F .2d 732 (6th Cir. 1972), cert, denied, 409 U.S..1001 (1972), 
was barred, because the 1971 order was a final one representing 
a discrete step in the litigation which settled all issues to

4that point, including costs and attorneys' fees. The Court 
found that any litigation after the 1971 order was directed 
not toward attacking the order itself but toward implementing 

it and modifyina it as changed circumstances or adverse 
effects could be demonstrated. In addition, the District 
Court refused to consider at the trial level fees for appellate 
work under Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982), 
but noted also that in every stage of the appellate proceedings 
since 1971 the plaintiffs had not received costs. Accordingly, 
if the District Court had jurisdiction to award appellate fees, 
under Buian an award of attorneys' fees was precluded. (Dis­

trict Court Memorandum, Exhibit A at pp. 12-13.)

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Kelley v. Metropolitan County Board of Education, Nos. 2094, 
2956 (6th Cir. February 23, 1983), pp. 6-8. A copy of the 
District Court's opinion is attached hereto as Exhibit A. It 
should be noted herein that in 1972, this Court examined 
plaintiffs' claim for attorneys' fees under the law as it 
existed at that time, denied it, and mandated that each party 
bear its own costs. Kelley v. Metropolitan County Board of 
Education, 463 F.2d 732, 752 (6th Cir. 1972) (concurring 
opinion of Judge McCree).



- 4 -

Following its initial determinations, the District Court 

stated that the plaintiffs had generally prevailed since 1972 
and held several days of hearings to determine the amount owing 
to the plaintiffs therefor. Based upon the testimony, the 
Court awarded the plaintiffs $139,214.25 in fees and costs of 
$361.28 for every stage of the proceedings since 1972, with 
the exception of ten percent of the time claimed for duplica­
tion of services,'* and time spent with an expert witness, Hugh 
Scott, whose neighborhood school approach the plaintiffs had 

rejected on appeal.^
Both the plaintiffs and defendants appealed. The 

plaintiffs asserted that the 1971 order was not a final one 
under Northcross, supra, and that the hourly fee calculated 
for each lawyer should be raised. The defendants asserted 
that they should not be responsible for fees resulting from 

the actions of intervening parties, and that, in any event, 
Hensley v. Eckerhart, 103 S.Ct. 1933 (1983), required the 
District Court to determine specific stages in this lengthy 
litigation where the plaintiffs had prevailed. The Court of 
Appeals reversed and remanded the case holding (1) that the 
1971 order under Northcross, supra, was not a final one be­
cause it was not a consent order and because subsequent liti-

District Court Memorandum, Exhibit A, p. 16.

See District Court Memorandum, Exhibit A, pp. 14-15, and
K iT le y  v. Metropolitan County Board of Education, 687 F.2d
814 (6th Cir. 1982), 492 F.Supp. 167, 185-192 (M.D. Tenn. 1980).

6



gation resulted, (2) that the hourly fees should be raised
nslightly, (3) that this Court's decision in Buian v. Baughard 

687 F .2d 859 (6th Cir. 1982), represented a clear break from 
previous law and should not be applied retroactively to 
preclude fees for previous appeals where costs had not been 
awarded, (4) that the defendants were responsible for fees 
relating to other full parties, with the exception of the 
Metropolitan Government, and (5) that the case should be re­
manded for a determination of when the plaintiffs actually 
prevailed under Hensley v. Eckerhart, 103 S.Ct. 1933 (1983). 
Kelley v. Metropolitan County Board of Education, Nos. 83- 
5175, 5243 (6th Cir. February 12, 1985), submitted herewith as 

Exhibit B.
The defendants assert that the Panel's opinion is 

contrary to the law of this Court and of the Supreme Court 

in the following respects:
(1) The Panel's determination that the 1971 order 

requiring busing and refusing to award costs and fees under 
the law existing at that time limits the final order principle 
enunciated in Northcross v. Board of Education of Memphis City 

Schools, 611 F .2d 624 (6th Cir. 1979), cert, denied, 447 U.S. 
911 (1980), to consent orders, a limitation upon which this 
Court's definition of finality in Northcross did not turn.

While the Court of Appeals did not state that the District 
Court's evaluation of the evidence regarding prevailing or 
appropriate fees was clearly erroneous, this issue is not 
raised in this application.



I r

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(2) The Panel's refusal to apply Buian v. Baughard,
687 F . 2d 859 (6th Cir. 1982) "retrospectively" ignores the 
clear state of the law in this circuit and the Supreme Court 
that the Attorneys Fees Awards Act, 42 U.S.C. §1988 awards 
attorneys* 1 fees as costs which have been repeatedly denied the 
plaintiffs by this Court in this case. Hutto v. Finney, 437 
U.S. 678, 693, 56 L.Ed.2d 522, 536, 98 S.Ct. 2565, 2574 (1978); 
Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981); Fulps v.
City of Springfield, 715 F.2d 1088, 1092-93 (6th Cir. 1984).

(3) The Panel's refusal to eliminate fees for work 
performed by plaintiffs concerning claims and positions of 
parties other than the defendants is inconsistent with 

Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir. 1979)(per 
curiam) and contravenes Hensley v. Eckerhart, 103 S.Ct. 1933 
(1983) because other parties were responsible for plaintiffs' 
fees in this regard and the plaintiffs never prevailed on 

issues relating to these parties.

ARGUMENT FOR REHEARING 
AND FOR REHEARING EN BANC

I. The final order principle enunciated in Northcross v. 

Board of Education of Memphis City Schools, 611 F.2d 624 (6th 

Cir. 1979), cert, denied, 447 U.S. 911 (1980).
The District Court found that its 1971 order (S.R. 4) 

affirmed by this Court in 1972, Kelley v. Metropolitan County 

Board of Education, 463 F.2d 732 (6th Cir. 1972), mandating



- 7 -

square mile county where it was practical to do so pursuant to 
Swann v. Charlotte-Mecklenburg, 401 U.S. 1, 91 S.Ct. 1267, 28 
L.Ed.2d 554 (1971) was, under Northcross, a "'final order,'
disposing of all issues at that time," and that "'plaintiffs 
should not be permitted to reopen that judgment in order to obtain 
attorneys fees.'" District Court's Memorandum, pp. 7, 10, citing 
Northcross, supra, 611 F.2d at 635, Exhibit A. The Panel opinion 
rejects that argument because the subject order in Northcross 
(the 1966 order) was a consent order which resulted in further 
litigation because of a change in the law. Analysis of the Panel's 
opinion indicates that the 1971 order in Kelley was just as final 
as that in Northcross, and was distinguishable only because it 

was a consent order.
The record and the District Court's factual findings 

which were not overturned by the Panel as clearly erroneous 
indicate that the 1971 decree in Kelley was as final as any 
decree in equity. While the Panel's opinion cites continuing 
litigation in this case after 1971, all action since 1971 has 
been taken in Kelley, not in an effort to attack the 1971 order 
but to assure its implementation and to adjust it in light of 
changed circumstances and adverse effects which have come to 

light in the last decade.8 This litigation does not impair 
or refute the order’s finality— if it did no order in equity 
would ever be final. All orders in equity, including the 1966

See District Court's Memorandum, pp. 8-10.



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Northcross order, are susceptible to later enforcement actions
9or actions based upon changes in the law or facts.

Had either party approached the District Court with an 
outright attack on the 1971 plan two or three years after its 
implementation in 1971 without the benefit of contempt labels, 
demonstrable resegregation resulting from the plan itself, or 
demonstrable adverse effects from busing young black children 
out of their neighborhoods, no change in the remedy could have 
been ordered.^ When the 1971 order was affirmed, it "dispose[d] 
of all foregoing issues" under the law and facts existing at 
that time, including costs and attorneys' fees. Northcross v. 
Board of Education of Memphis City Schools, 611 F.2d at 635 ,''''*' 

and the judgment issued thereon should not be reopened for 
an award of costs.

Thus, the Panel's opinion in this case can be explained 

only by the consent nature of the 1966 order in Northcross, a 
distinction that will result in a purely subjective definition

E.g. United States v. Swift Co., 286 U.S. 106, 119, 52 S.Ct. 
460, 76 L.Ed. 999 (1932); Pasadena City Board of Education v. 
Spangler, 427 U.S. 424, 437, 49 L.Ed.2d 599, 96 S.Ct. 2697 
(1976).

10 See District Court's discussion of these arguments, pp. 7-10, 
Exhibit A.

In this case, this Court's affirmance of the 1971 order speci­
fically addressed costs and attorneys' fees requested by the 
plaintiffs and rejected them. Kelley v. Metropolitan Board 
of Education, 463 F.2d 732, 752 (6th Cir. 1972), cert, denied 
409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972).



- 9 -

of finality which is not apparent from the Court's decision 
in Northcross. Thus, unless the Court intends to adopt a 
purely subjective definition of finality, the Panel's opinion 

should be reconsidered.
This issue becomes more critical for resolution prior 

to remand of this case, because at the District Court level 
defendants argued alternatively that several orders between 
1955 and 1972 were also final orders which were later modified 
or abrogated following changes during the 1950's and 1960's 
in desegregation case law. It is clear that during the course 
of this litigation, legal theories regarding desegregation have 
changed substantially, from Brown v. Board of Education, 347 U.S 
483 (1954), to Green v. County School Board, 391 U.S. 430 (1968) 

to Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971), and the multitude of orders in this case since 1955 
demonstrate this change. If a final order in a desegregation 
case must be consensual to apply the finality principle in 
Northcross, this Court should say so in order to avoid further 
prolonged litigation of the attorneys' fees question.

II. The Panel's refusal to apply Buian v. Baughard,

687 F .2d 859 (6th Cir. 1982).
The District Court followed Buian v. Baughard in re-

12

The Panel's opinion seems to turn on whether the parties 
viewed the order as being a final one. See Exhibit B at 
p. 4. This is not the definition recognized by the Supreme 
Court in Bradley v. Richmond School Board, 416 U.S. 696, 40 
L .Ed.2d 476, 94 S.Ct. 2006 (1974) , relied upon by this Court 
in Northcross.



- 1 0 -

fusing to award fees for appellate expenses because this Court 
has consistently refused to award costs to the plaintiffs on 
appeal. For example, the mandate in 1982 issued by this Court 
ordered that the parties bear their own costs, as did the 
mandate in 1972 when the question of double costs and attorneys' 
fees was raised by the plaintiffs and rejected by this Court.

Buian mandates that appellate fees under 28 U.S.C. §1988 
be awarded on appeal only if costs are awarded by this Court, 
yet the Panel opinion reverses the District Court for applying 
this rule "retroactively" because the case presents a "clear 
break" with the past. Defendants respectfully submit that 
Buian is not a departure from the past, that plaintiffs are 
not prejudiced by its application, and that failure to apply 
Buian will result in the District Court's re-examination of 
old appellate decisions without the benefit of participation 
therein if plaintiffs are entitled to attorneys' fees prior 

to 1971.
As Buian indicates, attorneys' fees under 42 U.S.C.

§1988 have long been considered as costs by the Supreme Court 
and by this court, with reference to the statute's specific 

language.^ Hutto v. Finney, 437 U.S. 678, 693, 56 L.Ed.2d

The statute reads as follows:
In any action or proceeding to enforce a provi­
sion of §§1977, 1978, 1979, 1980, and 1981 of the 
revised statutes, or in any civil action or pro­
ceeding, by or on behalf of the United States of 
America, to enforce, or charging a violation of, 
a provision of the United States Internal Revenue 
Code or Title VI of the Civil Rights Act of 1964,



- 1 1 -

522, 536, 98 S .Ct. 2565, 2574 (1978); Johnson v. Snyder, 639
F.2d 316, 317 (6th Cir. 1981). Further, as Buian recognizes, 
the procedural mechanism by which costs are awarded in federal 
court, Rule 39(a), Federal Rules of Appellate Procedure, is 
and has always been clear— this Court must determine who is 
entitled to costs on appeal. Thus, the panel in Buian did 
not state it was breaking new ground and it did not— the panel 
merely reaffirmed what has always been clear from the statute 
and procedural rule. That is, in drafting 42 U.S.C. §1988, 
"Congress expressly characterized fees as costs with the 
intent that the recovery of fees would be governed by the 
substantive and procedural rules applicable to costs."
Fulps v. City of Springfield, 715 F.2d 1088, 1092-93 (6th Cir. 

1983).14 13

13 (continued)
the court, in its discretion, may allow the pre­
vailing party, other than the United States, a 
reasonable attorneys fee as part of the costs.

42 U.S.C. §1988.

^4 In Fulps, this court applied without prior warning, the costs 
language in 42 U.S.C. §1988 to Rule 68, Federal Rules of 
Civil Procedure without ever deeming the result prejudicial. 
The issue in Fulps was whether an offer of judgment under 
Rule 68, Federal Rules of Civil Procedure, providing for 
"costs then accrued" covered fees under 42 U.S.C. §1988.
While 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 de­
scribed attorney's fees "as a part of the costs."
Congress could have simply authorized the re­
covery of attorney's fees, but it chose to go 
further and characterize the fees as costs.



- 1 2 -

The law and the record herein demonstrate that the 
plaintiffs have long understood the link between costs and 
fees at the appellate level. The plaintiffs did not raise 
the issue of prejudice with the "retroactive application" of 
Buian in their briefs before this Court. Indeed, they had 
sought fees as appellate costs in this Court in 1972 before the 
enactment of 42 U.S.C. §1988 and were denied them. Kelley v. 
Metropolitan County Board of Education, 463 F.2d 732, 752 
(6th Cir. 1972). In 1972, the plaintiffs knew it was the normal 
practice to pursue appellate costs and fees at the appellate level. 

Surely the explicit language of 42 U.S.C. §1988 gave them 

notice that this practice would continue.^
The application of Buian is particularly important 

in this case. If the plaintiffs are successful in obtaining 
the right to fees for work performed by their attorneys prior 
to 1971 (see discussion in I, supra), then the District Court 14 15

14 (continued)
Required, as we are, to construe the language 
of a statute so as to avoid making any word 
meaningless or superfluous, we conclude that 
Congress expressly characterized fees as 
costs with the intent that the recovery of 
fees be governed by the substantive and pro­
cedural rules applicable to costs.

715 F .2d at 1092-93.
15 This has apparently been the normal practice elsewhere.

E.£. 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).



- 1 3 -

will be required to review appellate decisions prior to 
1971 without the benefit of the appellate record, briefs, 
and arguments. Presumably, this Court has had some reason to 
order that the parties bear their own costs on appeal, reasons 
which may not be readily apparent to the District Court twenty 
or thirty years later. With the mandate in Hensley v. Eckerhart, 
supra, that the extent to which plaintiffs prevail on distinct 
issues in civil rights litigation is to be closely scrutinized 
on an application for attorneys' fees, the District Court's 
task twenty or thirty years after the appeal will be almost 

impossible.

Ill. The award of fees for work relating to parties 

other than the defendants.
The Panel considered the defendants' appeal relating to 

fees incurred because of the intervention of or participation 
by other parties and concluded that, with the exception of 
activities by the Metropolitan Government of Nashville and 
Davidson County which obstructed desegregation efforts and from 
which the plaintiffs actually sought but did not pursue fees, 
the plaintiffs' fee should be paid by the school system.
These fees included those incurred as a result of HEW s

refusal to fund transportation in violation of its regulations,1(

This effort was actually begun by a group of third party 
plaintiffs who intervened, filing suit against the Department 
of Health, Education, and Welfare for funds for busing, in 
which suit the defendants joined. Kelley v. Metropolitan 
County Board of Education, 372 F.Supp. 528 (M.D. Tenn. 1973) ; 
Kelley v. Metropolitan County Board of Education, 372 F.Supp. 
540 (M.D. Tenn. 1973).



- 1 4 -

and the segregative actions of two groups of intervenors, at
least one of which was fully supported by the plaintiffs through

17the testimony of their expert witness, Dr. Hugh Scott.
In each of these instances, it was the defendants who

took up the mantle against the third parties. Had the plaintiffs
prevailed against any one of them and sought fees, this Court
would have awarded them fees pursuant to its decision in

18Haycraft v. Hollenbach, 606 F .2d 128 (6th Cir. 1979).
Merely because the plaintiffs did not seek such fees is no 
reason to require the school system to pick up the tab.

More importantly, after Hensley v. Eckerhart, 103 S.Ct. 

1933 (1983), it cannot be said that the plaintiffs prevailed 
at any stage of the litigation involving these new parties. 
Indeed, the plaintiffs either supported the intervenors against

S.R. 123, 125, 127; Kelley v. Metropolitan County Board of 
Education, 492 F.Supp. 167, 185-192 (M.D. Tenn. 1980). It 
should be noted that the Panel accepted the District Court s 
determination that the plaintiffs' rejection of the testimony 
of Dr. Hugh Scott, who argued at the trial level for some 
neighborhood schools and the retention of several small 
neighborhood high schools, in conformity with the position 
taken by the intervenors, renders Dr. Scott's testimony 
frivolous. Kelley v. Metropolitan County Board of Education, 
492 F.Supp. 167, 185-192 (M.D. Tenn. 1980).

As in Haycraft, in each of these instances, the additional 
parties appeared or sought to appear as full parties, not 
as amicus curiae. In two instances, the parties had complete 
and full participation in this lawsuit— in the case of HEW 
in 1973 and the intervenors in 1980. See Kelley v. Metro­
politan County Board of Education, 372 F.Supp. 528 (M.D.
Tenn. 1973); Kelley v. Metropolitan County Board of Education, 
372 F.Supp. 540 (M.D. Tenn. 1973); Kelley v. Metropolitan
County Board of Education, 492 F.Supp. 167 (M.D. Tenn. 1980).



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19whom the defendants prevailed, or they did not take a stand.
Under Hensley, plaintiffs are not entitled to fees for these 

stages of the litigation.

CONCLUSION

For all of the foregoing reasons, the defendants 
respectfully submit that their petition for rehearing and 

for rehearing eri banc should be granted.

Respectfully submitted,
WILLIS & KNIGHT

Nashville, TN 37201
Attorneys for Defendants

19 See discussion regarding Dr. Hugh Scott at n. 17, supra.



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CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the 
foregoing petition has been forwarded to Mr. Avon Williams, 
Attorney for Plaintiffs, 203 Second Avenue North, Nashville, 
TN 37201; Mr. Jack Greenberg, Mr. James Nabrit, III, 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 

"7- day of February, 1985.

WILLIS & KNIGHT



ExkL/t A
< ^ - 2 3 - 8 3

RECEIVED FOR ENTRY 
T TC_L_M

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE, 

NASHVILLE DIVISION BY
DEPUTY ClER;:

ROBERT W. KELLEY, et al., )
)

Plaintiffs )
)

v. ) NOS. 2094, 2956
)

METROPOLITAN COUNTY BOARD OF )
EDUCATION OF NASHVILLE AND )
DAVIDSON COUNTY, TENNESSEE, et al., )

)
Defendants. )

ORDER

In accordance with the accompanying Memorandum, it is hereby ORDERED that 

plaintiffs are awarded attorney's fees pursuant to 42 U.S.C. I 1988 in the amount of 

$139,214.25; costs of $361.28 are taxed against defendants; and plaintiffs' petition for 

contempt is denied.

—/,
A

UNITED STATES DISTRICT JUDGE



2.-23-Z3
RECEIVED FOR EIJTRY 
--------------' •’ M

f-: '
IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF TENNESSEE, Cut**
NASHVILLE DIVISION BY __________

DEPUTY CLERK

ROBERT W. KELLEY, et al.t )
)

Plaintiffs )
)

v. ) NOS. 2094, 2956
)

METROPOLITAN COUNTY BOARD OF )
EDUCATION OF NASHVILLE AND )
DAVIDSON COUNTY, TENNESSEE, et al., )

)
Defendants. )

MEMORANDUM

1. Background

This lawsuit to compel desegregation of the Nashville school system was originally- 

filed in 1955. The long history of this litigation is summarized in Kelley v. Metropolitan 

City Board of Education, 492 F. Supp. 167, 168-78 (M.D. Tenn. 1980), and need not be 

repeated here. The current phase of the litigation involves four distinct topics: (1)

pupil assignment; (2) teacher and staff assignment; (3) plaintiffs' request for attorney's 

fees; and (4) plaintiffs' petition for contempt against defendant school board. The pupil 

assignment plan took precedence, by agreement of the parties, leaving the three other 

issues to be resolved at a later date. This Court held hearings on the remaining three 

issues on December 6, 7, and 8, 1982, at which time the parties reached a consent 

agreement on the question of teacher and staff assignments.

Plaintiffs now seek an award of attorney's fees pursuant to 42 U.S.C. § 1988. 

Since 1955, Mr. Avon N. Williams, Jr., has represented the plaintiffs in this action. In 

the early years of this lawsuit, Williams teamed with his former law partner, 

Mr. L. Alexander Looby. Since 1977, Williams has been joined by his associate,



Mr. Richard H. Dinkins, in this matter. No attorney’s fees have ever been awarded in 

the history of this litigation.

II. Preliminary matters

A. Applicability of the Civil Rights Attorney's Fees Act

Defendant school board has not contested plaintiffs' claim that the Civil Rights

Attorney’s Fees Act of 1976, 42 U.S.C. § 1988, applies to this litigation. The Act

declares that, in suits brought under 42 U.S.C. § 1983 and certain other statutes, federal

courts may award prevailing parties reasonable attorney's fees as part of the costs.

The Act applies to all cases pending on the date of its enactment. Hutto v. Finney,

437 U.S. 678, 695 n.23, 98 S.Ct. 2565, ___, 57 L.Ed.2d 522, 537 (1978). The Sixth

Circuit has held that the word "pending"

. . . means that all the issues in the case have not been 
finally resolved. So long as there was an active controversy 
in the case at the time the Act became effective, the Act 
applies to authorize fees for the entire case, unless special 
circumstances exist which would make an award manifestly 
unjust.

Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 634 (6th Cir. 

1979), cert, denied, 447 U.S. 911 (1980).1

In Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979), the merits of the case 

were resolved well before passage of the Act, but the application for attorney's fees 

had not been resolved when the Act became effective. The Sixth Circuit held that 

”[s]ince the Act was in existence at the time the district court made the fee awards, it 

is applicable to the instant cases." Id. at 53.

1 Northcross also held that the determination of whether fees were to be awarded 
for the entire case may depend on the existence of a "final order" at any time in the 
litigation. This specific topic is addressed infra.

-



In this case, plaintiffs requested fees in motions dated February 8, 1974, April 11, 

1975, and October 16, 1975. Those motions, and other important motions including 

substantive issues, were pending when the Act took effect in 1976. Thus, Weisenberger 

and Northcross govern, and, as a threshold question, the Act applies.

B. Prevailing party

As a preliminary matter, plaintiffs must first be found to be the prevailing party 

before attorney's fees can be awarded under 42 U.S.C. § 1988. Defendants claim that 

plaintiffs are not the prevailing party because (1) the Board stipulated ab initio that 

its schools were unconstitutionally segregated, and (2) the plaintiffs have never submitted 

a desegregation plan which has been implemented by the Court.

Defendants' position appears to be an overly narrow approach to the definition

of prevailing party. The Sixth Circuit has stated:

In accordance with the broad remedial purpose of the statute, 
parties may be considered to have prevailed when they have 

« vindicated important rights through a consent judgment or
without formally obtaining relief.

Northcross, supra, at 633.

Adhering to the Sixth Circuit's mandate to look at this question in practical 

terms, it is clear that plaintiffs in this case are the prevailing party in this litigation. 

Plaintiffs have clearly prevailed as to the basic holding of this Court throughout the 

twenty-seven year course of this case that some type of court-ordered remedy was 

necessary to alleviate the effects of prior de jure segregation.

Furthermore, it is not necessary for plaintiffs to have prevailed on every single 

legal position or argument asserted. To the contrary, plaintiffs are entitled to fees 

for "all time reasonably spent on a matter." Northcross, supra, at 636. In Northcross, 

the Court stated:

-



The fact that some of that time was spent in pursuing issues 
on research which was ultimately unproductive, rejected by 
the court, or mooted by intervening events is wholly irrelevant.
So long as the party has prevailed on the case as a whole 
the district courts are to allow compensation for hours 
expended on unsuccessful research or litigation, unless the 
positions asserted are frivolous or in bad faith. There are 
numerous practical reasons why a court may not be permitted 
to dissect a lawsuit into "issues and parts of issues as to 
which the plaintiffs did not prevail," especially by decimating 
the total hours claimed with arbitrary percentages. Suffice 
it to say, however, that Congress has mandated that a 
prevailing party’s attorney should be compensated "as is 
traditional with attorneys compensated by a fee-paying client, 
for all time reasonably expended on a matter." We know of 
no "traditional" method of billing whereby an attorney offers 
a discount based upon his or her failure to prevail on "issues 
or parts of issues." Furthermore, it would hardly further our 
mandate to use the "broadest and most flexible remedies 
available" to us to enforce the civil rights laws if we were 
so directly to discourage innovative and vigorous lawyering 
in a changing area of the law. That mandate is best served 
by encouraging attorneys to take the most advantageous 
position on their clients'" behalf that is possible in good faith.
The fact that these lawyers advocated a desegregation remedy 
of broader scope and faster pace than was ultimately adopted 
cannot be considered to be unreasonable. Their clients have 
prevailed; the Memphis school system is desegregated.

Id. This approach was recently reaffirmed by the Sixth Circuit. Buian v. Baughard,

Nos. 81-3274 and 81-3275, decided September 7, 1982 (6th Cir.) slip opinion at 5.

Northcross also allowed fees to be awarded for time spent litigating the fees question III.

itself. Northcross, supra, at 643.

Thus, plaintiffs have prevailed and are entitled to fees for all time reasonably 

spent on matters involved in this case.

III. Computation of Hours and Fees 

A. Plaintiffs' Request

Messrs. Williams and Dinkins have filed affidavits wherein they reconstruct their 

time spent on this lawsuit. Although Williams and Dinkins have not kept



contemporaneously maintained records, they claim that the reconstruction adequately 

represents the services which they have performed. Plaintiffs request fees in the 

following amounts:

(1) Avon Williams, for the firm of Looby and Williams, 917.8 hours at $200 per 

hour and 36.4 days at $1,500 a day, totaling $238,160 plus a 100 percent contingency 

factor for a total of $476,320;

(2) Avon Williams, individually, 1,211.5 hours at $200 per hour and 87.3 days at 

$1,500 a day, totaling $373,250 plus a 100 percent contingency factor for a total of 

$746,500;

(3) Richard Dinkins, individually, 215.6 hours at $120 per hour and 38 days at 

$1,500 a day, totaling $82,872, plus a 100 percent contingency factor for a total of 

$165,744;

(4) Norman J. Chachkin, for the Legal Defense Fund, 43 hours at $200 per hour, 

totaling $8,600, plus a 100 percent contingency factor for a total of $17,200;

(5) Bill Lann Lee, for the Legal Defense Fund, 270.4 hours at $115 per hour, 

totaling $31,096, plus a 100 percent contingency factor for a total of $62,192;

(6) Legal Defense Fund, costs and expenses totaling $47,488.15.

In awarding fees, a district court is not compelled to accept automatically all 

the hours claimed, but any reductions must be clearly identified and the reason for 

disallowing claims must be articulated. Northcross, supra, at 636-37. This Court will 

attempt to do just that.

B. The "Final "Order" Question

At the outset of the hearings held in December 1982, this Court made two rulings 

from the bench in order to limit the proof at those proceedings. First, this Court held 

that no fees could be awarded for services rendered prior to May 30, 1972, on which 

date the Sixth Circuit affirmed the desegregation plan entered by this Court in 1971.

~ s -



Second, this Court ruled that it lacked the authority to award fees for appellate work 

in this case. That ruling is addressed infra.

Turning to the "final order" question, one of the many issues addressed in

Northcross, the Sixth Circuit there ruled that a prior final order in that school

desegregation case could bar an award of fees for services rendered prior to that date.

611 F.2d at 635. After ruling that plaintiffs’ attorneys should recover fees which the

district court had denied in part, the Sixth Circuit stated:

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

Northcross, supra, at 635. (emphasis added). The Court held that the fee awarded

should cover at least back to 1968 when the suit became active again following new

pronouncements from the United States Supreme Court which directly affected the

Memphis case. The Court said, however:

There is an unresolved dispute concerning the pre-1968 period, 
which we leave to the district court to resolve. The School 
Board contended below that the district court action of July 
29, 1966, the last action before the Supreme Court's Green 
decision, was a "consent order’’ which undertook to dispose 
of sill outstanding phases of the case, including fees and costs.
It is true that a long, complicated case of this sort can result 
in several "final" orders, which in the interests of finality 
are deemed to dispose of all foregoing issues. Absent a 
timely appeal, a party is bound by the order and any later 
challenge is deemed to be a collateral attack judged by 
different, and more stringent standards than on direct review.
Bradley, supra, 416 U.S. at 7.10-11, 94 S.Ct. 2006. If the 
defendants are correct in their characterization of the 1966 
action in the interest of finality, plaintiffs should not be 
permitted to reopen that judgment in order to obtain attorneys' 
fees. We leave this matter to the district court. However, 
from 1968 until shortly before the application for fees was 
made by the plaintiffs, the case was in continuous, active 
litigation. Not only was there no "final judgment" which 
could reasonably be said to settle the issue of fees during 
that period, but there was no time to raise the matter of 
fees at all.



Id.

On remand, the district court denied plaintiffs' request for fees for services 

rendered prior to 1968. Northcross v. Board of Education of Memphis City Schools, 

Civil Action No. 3931, January 14, 1982 (W.D. Tenn.). Judge McRae gave the following 

explanation:

The Court finds that the services expended on the 
portion of the case occurring prior to the filing on 26 July 
1968 of plaintiff's motion for further relief should be denied. 
A plan of desegregation in this cause conforming to what 
was thought to be the then existing legal standards, was 
developed and filed jointly by the parties on 22 July 1966. 
That plan was intended and treated by the parties as a final 
plan of desegregation, and a distinct break in the proceedings 
in this case occurred at that time. Previous to that time 
there had been two appeals taken successfully by the 
plaintiffs. The 1968 motion for further relief did not grow 
out of any evident intention of these parties to litigate that 
plan further, but was the direct result of subsequent Supreme 
Court decisions in the case of Green v. County School Board 
of New Kent County, Virginia, 391 U.S. 430 (1968), and its 
companion cases which represented very significant new 
development in the law pertaining to school desegregation. 
The case at bar is similar to the case of Wheeler v. Durham 
City Board of Education, 585 F.2d 618 (4th Cir. 1978), wherein 
the Court held that plaintiffs might timely file for a fee 
resulting from the continuous hearings and appeals on their 
motion for further relief, but denied a fee for earlier ''discrete 
steps" in the litigation.

Id. at 6, 7.

The immediate question, then, is whether the May 30, 1972, order was the type 

of "final order," disposing of all issues at that time, contemplated by Northcross. This 

Court holds that the order of the Sixth Circuit on May 30, 1972, upholding the 1971 

plan adopted by Judge Morton, was such a final order.

Plaintiffs have argued that the 1972 order was not a Northcross style "final 

order" because:

(1) the 1971 plan was appealed by both parties;

(2) the district court specifically retained jurisdiction;

-  7 -



(3) the plan was affirmed with the Sixth Circuit observing that matters regarding 

implementation could "be brought to the District Judge's attention when the case is 

back before him." 463 F.2d at 746;

(4) there were further proceedings in 1971-72 in which the Board was allegedly 

adjudged to have engaged in bad faith implementation;

(5) plaintiffs continued to seek more effective desegregation and relief for the 

transportation burden placed on younger black students (Reply of Plaintiffs to Petition 

of Defendants filed on July 18, 1972, filed August 10, 1972), but those requests were 

not heard by the Court until 1978; and

(6) defendants sought modifications of the 1971 plan and those requests were 

also not heard until 1978.

Defendants rely heavily on Judge McRae's opinion in Northcross after the Sixth 

Circuit remanded the case to him to determine whether the 1966 plan in that case was 

a "final order." The Board stated that the 1972 order in Kelley, like the 1966 order 

in Northcross, disposed of all outstanding phases of the case, including fees and costs. 

Citing language from Northcross, the Board calls the 1972 order a "discrete step" which 

constitutes a final order and precludes a retroactive award of attorney's fees. 

Furthermore, the Board claims that the precipitating factor for the 1972 order was 

Green v. School Board of New Kent County, 391 U.S. 430 (1968), just as it was in 

Northcross.

The Court is not persuaded that the 1972 order cannot be considered "final" due 

to the fact that unlike the Northcross case, there was no consent order agreed upon by 

the parties here. An order entered by any court is no less "final" simply because one 

or more of the parties may have lingering doubts about the conclusion reached by the 

court. Nor is this Court's immediate decision altered by the fact that this court in



1971 expressly retained jurisdiction in the case. Where equitable relief is sought, a 

court will often retain jurisdiction to oversee the remedy and monitor its efficacy.

Plaintiffs' claim that no final order was entered because the Sixth Circuit stated 

that matters involving implementation could be brought to the District Court's attention 

also fails to support plaintiffs' position. By focusing on the implementation of the plan, 

plaintiffs at the time necessarily acknowledged that the plan adopted was a comprehensive 

one which addressed all outstanding issues, leaving only matters of implementation to 

be addressed.

Finally, plaintiffs argue that the 1972 order left open the question of whether 

the plan adopted by the District Court in 1971 placed a disproportionate burden on 

young black children. This claim is erroneous. Plaintiffs took that argument to the 

Sixth Circuit and that Court refused to overturn the District Court's plan in that regard. 

The Court stated:

Plaintiffs-Cross-appellants claim that the grade school 
plan discriminates against Negro students in the lowest 
elementary grades.

The feature complained of in this issue is the 
transportation of black students in grades 1-4 to outlying 
schools, paralleled by the cross-transportation of white 
students in grades 5-6. In this regard the HEW plan appears 
to follow the pattern of the school plan approved in Swann.
Swann v. Board of Education, supra, 402 U.S. at 10, 91 S.Ct.
1267, 28 L.Ed.2d 554. The Supreme Court made no reference 
to this feature, and neither in Swann nor in this case does 
the record seem to provide adequate rationale for it. We 
do not believe, however, that we can appropriately hold that 
the District Judge abused his discretion in approving the HEW 
plan which (like the plan in Swann) incorporated this feature.

463 F.2d at 746. Although the Court stated that the District Court could, at a later

date, evaluate any adverse effects of the plan, plaintiffs' specific claim was heard and

rejected on May 30, 1972, when the Sixth Circuit ruled that the District Court had



not abused its discretion. Thus, as of May 30, 1972, there were no unresolved issues in 

the case.

This Court agrees with the defendants' characterization of the 1972 order as a

"discrete step" which constituted a "distinct break in the proceedings" at that time.

See Northcross, Civil Action No. 3931, January 14, 1982 (W.D. Tenn.). At the time of

the 1972 order, the Sixth Circuit clearly viewed the 1971 plan as a "discrete step," saying:

The order of the District Judge is the first comprehensive 
and potentially effective desegregation order ever entered in 
this litigation. The District Judge tells us that now the 
remedy is at least in sight.

463 F.2d at 734. Consequently, this Court concludes that the 1972 order was a "final 

order" and that "plaintiffs should not be permitted to reopen that judgment in order to 

obtain attorneys’ fees." Northcross, supra, 611 F.2d at 635.

Plaintiffs' reliance on Monroe v. Board of Commissioners of Jackson, 581 F.2d 

581 (6th Cir. 1978) does not alter this Court’s conclusion. There, the Sixth Circuit 

ordered $42,833 in fees to be paid under section 1988 for work done since the beginning 

of the litigation, even though a prior order in 1972 awarded $5,000 for costs incurred up 

to that point. Monroe, supra, at 582. This Court will not follow plaintiffs’ reading 

of Monroe for two reasons. First, Monroe was a brief, per curiam opinion written in 

1978. Its impact is reduced significantly by Northcross, which was written in 1979 and 

is regarded across the nation as one of the most thorough and comprehensive opinions 

on the award of fees under section 1988. Insofar as a plausible reading of Monroe 

conflicts with the Northcross guidelines, this Court will view Northcross as taking 

precedence. Second, because this Court is bound by Northcross, the "final order" factor 

is important. In this regard, Monroe can be distinguished from the instant case because

the 1972 order of the Sixth Circuit in Monroe which approved the $5,000 fee award



was clearly not a "final order," whereas the instant case did have a "final order" entered 

(coincidentally, in 19721.2

Thus, plaintiffs are only entitled to fees incurred after May 30, 1972. Therefore, 

plaintiffs' request of fees will be reduced by 917.8 hours and 36.4 days for the work 

performed by Williams in the law firm of Looby and Williams, and 550.7 hours and 44 

days for work performed solo by Williams between 1969 and May 30, 1972. The total 

amount disallowed here comes to 1,468.5 hours and 80.4 days.

C. Fees for Appellate Work

Plaintiffs have included in their request for fees amounts representing work 

performed at the appellate level. At the hearings on the fee issue, this Court ruled that 

it would not entertain requests for fees for appellate work, relying on Buian v. Baughard, 

Nos. 81-3274 and 81-3275, decided September 7, 1982 (6th Cir.). There, the Sixth 

Circuit held that

. . .  a party must be entitled to receive costs on appeal as 
a result of the appellate court's award of costs before it is 
eligible to receive attorney's fees as a part of those costs 
under section 1988.

Id., slip opinion, at 4.

^Plaintiffs also cite Monroe to contest the Board's claim that the Sixth Circuit’s 
failure to award plaintiffs' request for fees in 1972 is res judicata for purposes of this 
question. Because this Court's conclusion is based on the "final order" language of 
Northcross, it is not necessary to address the Board's res judicata analysis. The Court 
believes, however, that it would be inappropriate to give res judicata or collateral 
estoppel effect to the 1972 denial of fees. There, plaintiffs sought fees only for double 
costs incurred due to the Board's appeal of the 1971 plan, an appeal which plaintiffs 
described as "frivolous" for purposes of their fees request under Rule 38 of the Federal 
Rules of Appellate Procedure. Rule 38 allows the court to award double costs to the 
prevailing party when frivolous appeals are taken. In the instant request, plaintiffs 
seek to recover fees for the entire costs of the litigation, not just for costs incurred 
while prevailing on a frivolous appeal. Consequently, this Court would not be inclined 
to give the Sixth Circuit's sub silentio denial of fees under Rule 38 res judicata effect 
in this action.



Plaintiffs have encouraged this Court to adopt a narrow reading of Buian, but, 

due to the lack of any limiting language in the opinion itself, this Court cannot adhere 

to plaintiffs' interpretation. In fact, the Buian opinion contains clear and broad 

statements which this Court will follow unless subsequently ordered otherwise. The 

Sixth Circuit in Buian stated:

It is the duty of this Court to determine who is entitled to 
costs on appeal. In this case, in which no costs were taxed 
on the appeal on the merits, it would also violate this Court's 
mandate for the District Court to award attorney's fees as 
part of the costs under section 1988 because the party 
prevailed on the case as a whole but was not awarded costs 
on appeal.

Id. at 6. (emphasis added).

Buian went on to say:

In summary, we read section 1988 as requiring that attorney’s 
fees be awarded to the party who has prevailed on the case 
as a whole only if costs are awarded to that party at the 
level for which fees for services are sought: the district 
court, the court of appeals, and the Supreme Court.

Id.

This distinction between the district courts, the court of appeals, and the Supreme

Court is jurisdictional in nature, according to Buian:

Cost determinations are made at three levels: the district
court, the court of appeals, and the Supreme court. Each 
court has jurisdiction to make de novo awards of costs only 
for proceedings within its jurisdiction.

Id. at 3.

Thus, because section 1988 permits an award of attorney's fees "as a part of 

the costs," Hutto v. Finney, 437 U.S. 679, 693-99, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), 

this Court cannot, according to Buian, award fees for appellate work. Plaintiffs must 

petition the Court of Appeals, not the District Court, for appellate work. The Court 

notes that in its most recent decision, dated July 27, 1982, the Sixth Circuit ruled that

~  / 3  '



each party was to bear its own costs on that appeal, which also precludes an award of 

fees for that appellate work. Buian, supra, at 4.

Consequently, plaintiffs’ request will be reduced by the number of hours and days 

spent on appeals since May 30, 1972. This amounts to 115.8 hours and five days for 

Williams and 17.5 hours and two days for Dinkins. The request of Mr. Bill Lann Lee, 

who worked only on appeals, is denied in its entirety. As for Norman Chachkin, only 

10 hours of his work was performed after May 30, 1972, and those hours were spent on 

an appellate brief. Thus, his request is denied in its entirety.

D. Other Specific Objections

Defendants have submitted several other objections to plaintiffs' fee requests 

which will be addressed herein.

Services Rendered by Mr. Looby

The School Board argues that because the estate of Z. Alexander Looby was 

closed on November 22, 1972, there is no entity or person remaining to receive 

compensation for services performed by Looby. Moreover, the Board states that plaintiffs 

did not submit a breakdown of what services Mr. Looby performed, and therefore, the 

hours representing work done by Mr. Looby and Mr. Williams should be reduced by one- 

half. The position of the school board is well taken. However, the Court need not 

address this factor due to its earlier ruling that no fees can be awarded for services 

rendered prior to the May 30, 1972, final order, which includes the services performed 

jointly by Messrs. Looby and Williams.

"Collateral” Issues

Defendants also call into question time spent by plaintiffs' counsel on what 

defendants characterize as "collateral" issues. Specifically, defendants cite time 

allocated for matters involving intervening parties, amicus curiae, or third parties, and

/ 3 -



not the Board of Education. 3 Defendants argue that they are not responsible for the 

conduct of these parties, and time spent on those matters should be disallowed as part 

of plaintiffs' fee request as against the Board. Although the defendants did not exercise 

control over these particular facets of the litigation, the congressional intent behind 

the Act militates against adhering to defendant's approach. Congress has mandated that 

a prevailing party's attorney should be compensated "as is traditional with attorneys 

compensated by a fee-paying client, for all time reasonably expended on a matter." 

Northcross, supra, at 636. A private sector attorney normally would be obligated to 

stay fully briefed on all aspects of his or her lawsuit, and no less should be expected of 

the plaintiffs' attorneys in this action. Thus, the hours spent on these matters shall 

be included in the award.

Fees for Time Spent with Consultants

Next, defendants question fees claimed for preparation with two consultants, 

Dr. Hugh Scott and HGH Associates. Defendants point out that HGH Associates proposed 

a desegregation plan which was never approved, either at the trial or appellate levels. 

However, it is not proper for this Court to dissect this lawsuit into "issues and parts 

of issues as to which plaintiffs did not prevail." Northcross, supra, at 636. The fees 

claimed for time spent with HGH Associates shall be allowed.

The question raised by defendants regarding Dr. Hugh Scott poses an altogether 

different concern. Defendants note that the hearings held by this Court in 1979 and 

1980 involved lengthy testimony by Dr. Hugh Scott, plaintiffs' expert witness. Further, 

defendants point out that this Court's plan, as adopted in 1981, was based in a significant

^Defendant also challenges time spent regarding plaintiffs' request for an injunction 
against the Board of Education and the Tennessee Secondary School Athletic Association 
prohibiting the proposed suspension of Cameron High School from participating in 
organized sports. Proceedings on this matter were held in 1968, which means that the 
disputed time here has already been disallowed pursuant to the "final order" ruling as 
stated earlier in this opinion.



measure upon the testimony of Dr. Scott, only to have the plaintiffs subsequently alter

their position. In essence, plaintiffs rejected the testimony of Dr. Scott in subsequent

proceedings. As to this factual issue, the position taken by defendants is entirely

correct. Plaintiffs selected this expert, put him on the witness stand, and knew what

his testimony would be. Plaintiffs then made the decision to repudiate Dr. Scott’s

testimony, and that decision now acts to estop plaintiffs from seeking to recover

attorney’s fees against the defendant Board of Education for time spent by plaintiffs’

counsel with Dr. Scott. The Sixth Circuit has held that

[s]o long as the party has prevailed on the case as a whole 
the district courts are to allow compensation for hours 
expended on unsuccessful research or litigation, unless the 
positions asserted are frivolous or in bad faith.

Northcross, supra, at 636. Assuming that standard applies in this instance as well,

plaintiffs’ utilization and subsequent repudiation of Dr. Scott was frivolous, at best.

Plaintiffs' request will be reduced only by the time clearly attributable to Dr. Scott.

General requests regarding expert witnesses will not be eliminated since the Court

cannot determine from the affidavits whether those requests pertain to Dr. Scott or

other consultants. The amount deducted here amounts to two days and three hours for

Mr. Williams and four hours for Mr. Dinkins.

"Unreasonable and Excessive” Requests

Defendants have sifted through the affidavits of plaintiffs' counsel and registered 

specific line-item objections to the amount of hours claimed for specific tasks performed. 

On a more general level, defendants seek an across-the-board percentage reduction for 

duplication of effort among defense counsel and the fact that the request for fees was 

based on reconstructed time records. On the latter topic, defendants argue that 

plaintiffs' local counsel have never kept daily time records, even though they submitted 

requests for fees as long ago as 1974. Defendants propose a twenty percent reduction

- A T -



for reconstruction, based on the figure utilized by the district court in Haigler v. 

Gatter, 463 F. Supp. 802 (E.D. Pa. 1978). Further, defendants argue for a ten percent 

reduction due to duplication of effort among the several attorneys for the plaintiffs, 

citing Weisenburger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979); Oliver v, Kalamazoo 

Board of Education, 576 F.2d 714, 715 n.2 (6th Cir. 1976).

Rather than pick out specific hours which appear to be duplicative or excessive, 

this Court has taken the "arbitrary but essentially fair" approach of deducting a small 

percentage of the total hours to eliminate duplication and padding, and to compensate 

for the use of reconstructed time records. See Northcross, supra, at 636-637. A ten 

percent reduction here appears reasonable.^ Thus, plaintiffs' request shall be reduced 

by 54.5 hours and 3.83 days for Mr. Williams and 19.81 hours and 3.6 days for Mr. Dinkins.

E. Reasonable Rates

Northcross makes it clear that a fee based on the hours of service provided is 

the preferred approach to this request. 611 F.2d at 636. The level of compensation 

should represent the fair market value of the services provided, and despite defendants' 

arguments to the contrary, current hourly rates should be applied to plaintiffs' request, 

even for work performed some ten years ago. This method avoids the problem of taking 

proof to ascertain the fair market value of the services in prior years and, more 

importantly, takes inflation into account.

slightly higher percentage would be appropriate here, but for two factors. 
First, plaintiffs' counsel in their affidavits claim that their documented request did not 
include a significant amount of time spent on phone calls and other conversations among 
counsel. This statement militates against defendants’ request to apply a twenty percent 
reduction for reconstructed time as well as defendants' objections as to padding. Second, 
some, but not all, of the duplication here occurred between local counsel and those 
attorneys hired for appellate purposes. This Court has already ruled that it cannot 
entertain plaintiffs' request for appellate fees and consequently, that duplication cannot 
be considered here. Thus, a total reduction of ten percent appears to be an appropriate 
response to defendants' objections as to padding, duplication, and the use of reconstructed 
time records.



This Court has taken extensive proof regarding the prevailing rate charged by 

experienced and skillful trial lawyers in this region. From this proof, it appears that 

the prevailing market rate in federal court litigation for an attorney of Mr. Williams' 

experience and skill is $100 per hour for office work and $1,000 per trial day. A 

reasonable rate in this community for Mr. Dinkins, who began working on this case upon 

gaining admission to the Bar five years ago, is $60 per hour and $600 per trial day.

Plaintiffs request that a contingency factor of 100 percent be applied to these 

rates, due in part to the difficulty of this prolonged litigation and its unpopularity in 

some sectors of the community.^ An upward adjustment of some type is appropriate 

here. See Northcross, supra, at 638-39. However, the Court concludes that a contingency 

factor of 25 percent will serve the purpose of the Fees Award Act, i.e., to attract 

competent counsel by awarding adequate compensation. With this upward adjustment of 

25 percent, the effective hourly rate will be $125 for Mr. Williams and $75 for 

Mr. Dinkins. The daily rate for trial time will be $1,250 and $750, respectively.

The compensation for Mr. Williams is based on the following calculations:

Mr. Williams (individually):

1,221.5 hrs.
less 550.7 hrs.
= 660.8 hrs.
less 115.8 hrs.
= 545.0 hrs.
less 3.0 hrs.
= 542.0 hrs.
less 54.2 hrs.
= 487.8 hrs.

87.3 days (amount requested)
44.0 days (pre May 30, 1972 work)
43.3 days

5.0 days (appellate work)
38.3 days
2.0 days (time spent with Dr. Scott)

36.3 days
3.63 (10% across the board reduction)

32.67 days

487.8 hrs. X $125 ($100/hr. X .25 contingency) = $ 60,975.00
32.67 days X $1,250 ($l,000/day X .25 contingency) = 40,837.50

Total = $101,812.50

^Defendants argue that no contingency factor should be applied because the 
defendants stipulated at the very beginning of this litigation that Nashville schools were 
unconstitutionally segregated. While this is true, this lawsuit has progressed through 
several distinct phases, and plaintiffs have, for the most part, continued to prevail, 
over and above the initial inquiry as to defendants' liability.

-  / 7 -



Mr. Dinkins:

215.6 hrs. 38.0 days (amount requested)
less 17.5 hrs. 2.0 days (appellate work)
= 198.1 hrs. 36.0 days
less 4.0 hrs. 0.0 days (time spent with Dr. Scott)
= 194.1 hrs. 36.0 days
less 19.41 3.60 (10% across the board reduction)
= 174.69 hrs. 32.4 days

174.69 hrs. X $75 ($60/hr. X .25 contingency) = $ 13,101.75
32.4 days X $750 ($600/day X .25 contingency) = 24,300.00

Total = $ 37,401.75

Mr. Williams shall be awarded $101,812.50 and Mr. Dinkins shall receive $37,401.75. 

IV. Costs

Plaintiffs also seek to recover certain costs pursuant to Rule 54(d), Fed. R. 

Civ. P., and Rule 13 of the Local Rules of Court.

Included in plaintiffs’ request are costs involved with plaintiffs’ appeal of this 

Court's 1981 decision to the Sixth Circuit Court of Appeals. The Sixth Circuit affirmed 

this Court's opinion in part, reversed in part, and remanded for further proceedings. 

That order, dated July 27, 1982, also stated that each party was to bear its own costs 

in the appeal. Order dated July 27, 1982, No. 81-5370. Thus, plaintiffs' request for 

costs incurred on that appeal has already been denied, and cannot be granted by this 

Court. This eliminates all of the costs incurred by Mr. Lee, and those expenses incurred 

by Mr. Williams after April 17, 1981, the date of this Court’s order.

Plaintiffs' Bill of Costs also contains items which traditionally are not taxable 

as costs under Rule 54(d). These include expenditures for postage, telephone calls, 

photocopying, and meals. See 10 Wright, Miller Jc Kane, Federal Practice and Procedure: 

Civil 2d § 2677 at 370-373 (1983). Certain of the expenditures are taxable, however, 

under section 1988. The Sixth Circuit in Northcross held that

- / 8  -



[t]he authority granted in section 1988 to award a "reasonable 
attorney's fee" included the authority to award those 
reasonable out-of-pocket expenses incurred by the attorney 
which are normally charged to a fee-paying client, in the 
course of providing legal services. Reasonable photocopying, 
paralegal expenses, and travel and telephone costs are thus 
recoverable pursuant to the statutory authority of § 1988.

611 F.2d at 639.

Thus, plaintiffs are entitled to recover costs incurred for postage, telephone 

calls, parking, photocopying, and air freight, as long as those costs were incurred prior 

to April 17, 1981, the date of this Court's order. As stated earlier, plaintiffs were 

ordered to bear their own costs on the appeal. The amount taxed as costs here amounts 

to $361.28, based on the affidavit of Mr. Williams. Meal expenses incurred by Mr. 

Williams are disallowed, as are the undocumented expenses of Mr. Dinkins, listed in the 

amount of $144.87.

Turning now to costs relating to expert witnesses, fees paid to Dr. Scott and 

HGH Associates to retain their consulting services are not to be taxed against defendants. 

Normally, Dr. Scott's expenditures for travel, subsistence, and overnight accommodations 

would be taxable pursuant to 28 U.S.C. 5 1821. However, "the award of statutory costs 

is a matter for the district court, in its best judgment as to what was reasonable and 

necessary." Northcross, supra, at 640. For the reasons stated earlier regarding the 

recovery of attorney's fees for time spent with Dr. Scott, expenses incurred by Dr. 

Scott are also disallowed. The Court finds that it would be unreasonable to tax Dr. 

Scott's expenses against defendants. Plaintiffs will not be heard at this juncture to 

claim that Dr. Scott's testimony was "relevant and material" or "reasonably necessary" 

to support the position taken by the plaintiffs in this litigation. See 6 Moore's Federal 

Practice f 54.77[5.-l] (2d ed. 1982) and cases cited therein.



In all other respects, plaintiffs' request for costs shall be denied. Costs in the 

amount of $361.28 shall be taxed against defendants.

V. Contempt

The remaining issue to be resolved at this time is plaintiffs' petition for contempt, 

filed December 27, 1976, and amended August 28, 1978. The gravamen of the petition 

is that defendants have intentionally engaged in a course of conduct which violated 

this Court’s prior order entered in 1971. The 1971 order enjoined the use of portable 

classrooms for any purpose other than integration. It also enjoined the Board from 

renovating or enlarging by either construction or use of portables any schools that 

served less than fifteen percent black students after implementation of the plan.

Plaintiffs allege that the Board violated the order by using portables to implement 

a kindergarten program, by using the vacated Turner Elementary School as an annex 

for Cole Elementary, by expanding Hillsboro, Glencliff, Hillwood, Maplewood, Overton, 

and Stratford High Schools, and by proposing to build a Goodlettsville-Madison 

Comprehensive High School.

The Board contends that none of the acts alleged to be violations of the 1971 

order actually constituted proscribed activity under the restrictions imposed by the 

Court. Moreover, the Board states that it diligently notified the Court and counsel 

for plaintiffs regarding any changes in the school system, even when the Board's attorney 

found that the changes were not of the type requiring prior judicial approval.

Regarding the use of portables at the kindergarten level, the Board argues that 

the 1971 order never addressed kindergarten, and that the HEW plan did not include 

them. The Board relies on proof presented at hearings in 1979, where a Board official 

testified that new portables had been placed only at schools having fifteen percent 

black students under the plan as implemented, or in elementary schools to permit the 

opening of kindergartens. Finally, the Board points out that it petitioned this Court



on May 30, 1973, for explicit approval of the plan to use portables in this manner. 

This petition was never acted upon.

The Board also notified the Court concerning its plans to use Turner as an annex 

for Cole Elementary School, although the notification did not take the form of a formal 

pleading. In implementing this change, the Board claims that it relied on the precedent 

of a 1972 ruling by this Court approving the use of an annex at Mt. View Elementary 

School to relieve overcrowding at Lakeview Elementary School, and on the fact that 

other similar changes had been adopted without any expressed dissent from the Court 

or counsel for plaintiffs. The Board also claims that the 1971 order was silent as to 

the use of closed, existing buildings to relieve over-crowding.

Turning now to the Board's decision to expand certain high schools, the Board 

filed its original proposal with the Court on May 30, 1973. For the next two or three 

years, the Board claims to have notified the court of revisions in its plan for area high 

schools. Eventually, the Board implemented some of the proposals under the belief that 

the schools affected d id  not come under the 1971 order because they would continue 

to maintain a black population of fifteen percent or more. Plaintiffs' other allegation 

concerning the proposed Goodlettsville-Madison Comprehensive High School is not well 

founded in that the school was never built. As discussed in this Court's 1980 Memorandum 

and O r d e r , 6 the 1971 Court order specifically enjoined the construction of the 

Goodlettsville-Madison High School as proposed because it was to be located within the 

city limits of Goodlettsville, a location which would have promoted segregation. The 

subsequent proposal, although never implemented, called for the school to be built nearer 

to the imaginary line of Briley Parkway extended, thereby arguably conforming with

6See Kelley, supra, 492 F. Supp. at 174.

-  J U  -



this Court's directive. According to Board officials, the school, under this revised plan, 

had a projected black enrollment of greater than twenty percent.

Finally, plaintiffs contend that the Board's action in closing certain schools or 

changing the grade levels accommodated by particular schools somehow violate the 1971 

order. Plaintiffs contend that these decisions demonstrate a discriminatory motivation 

on the part of the Board. The Board has responded by setting forth its objective 

reasons for making changes in schools located in predominantly white as well as 

predominantly black neighborhoods, and argues these actions in no way contravened the 

letter or the spirit of the 1971 order.

From the preceding recitation of the facts and positions asserted by the parties, 

this Court concludes that the contempt charges against the defendants should be 

dismissed. This Court finds that the Board, in the years following the 1971 order, acted 

in good faith in its efforts to comply with that order while going about the task of 

operating a school system. There is no proof that the Board's actions were a subterfuge 

to undermine the 1971 order. Furthermore, there is no evidence that the decisions of 

the Board were part of an effort to block the desegregation of the Metropolitan Nashville 

city schools. This Court has consistently found that the Board has acted in good faith 

in implementing the 1971 order. Plaintiffs claim in this motion for contempt that this 

Court had previously found that the schools became resegregated due to the Board's 

efforts to accommodate white flight into the suburbs. This contention is totally incorrect. 

During the December 1982 hearings this Court explained its position on this question, 

stating that the resegregation resulted not from actions taken by the Board, but rather, 

from the 1971 plan itself which did not include the outer-reaches of Davidson County. 

Even after this explanation, plaintiffs continue to press forward with their inaccurate 

interpretation of this Court's opinion. It is time to lay that false allegation to rest 

once and for all.

" 2 2  '



As stated by the Supreme Court and repeated by the Sixth Circuit, "the judicial 

power of contempt is a potent weapon." Reed v. Cleveland Board of Education, 607

F.2d 749, 752 (6th Cir. 1979), quoting from ILA, Local 1291 v. Philadelphia Marine 

Trade Association. 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967). Such a 

potent weapon should be used only where the evidence of contempt is clear and 

convincing. That is not the case here. The Board acted only where, upon the advice 

of counsel, it felt the 1971 order provided some latitude, and diligently notified the 

Court and plaintiffs about proposed changes, although little guidance from this Court 

was forthcoming once the 1971 order was entered. To find the Board in contempt, it 

would be necessary to read more into the 1971 order than was stated in its clear and 

express terms, and that type of approach to a contempt charge is impermissible. Reed, 

supra, at 752 (”[t]he notice of a judicial order upon violation of which a contempt 

finding may properly be based is such notice as would clearly tell a reasonable person 

what he is required to do or abstain from doing").^

The facts in this case, as presented to this Court, simply do not warrant a 

finding that the Board's actions placed it in contempt.

An appropriate order shall enter.

Judge's orders, but they were not required to obey the interpretations of the District 
Judge's orders made by- plaintiffs." 607 F.2d at 752.

r

UNITED STATES DISTRICT JUDGE

^Additionally, Reed states that "defendants were required to obey the District



E x k ' i b / b  6

Re c o m m e s d l d for n  LL text publicaiios
See, Sixth Circuit Rule r.~

Nos. 83-5175, 5243

UNITED STATES COURT OF APPEALS
t-l »r CVTU

Before: E d w a r d s * and K rupanskv Circuit ludees: and 
C elebrezze. Senior Circuit judge.

K ru pa nsk v, Circuit Judge. Plaintiff Robert W . Kelley and 
the class he represents appealed arid defendant Metropoh* :u 
County Board of Education (Board cross-appealed the 
trict court’s award of attorney’s fees in this school desegrega­
tion case.

* The Hon. George Edwards took senior status January 15. 1985.

FOR THE SIXTH CIRCUIT

R obert \V. K elley, et al.,
Plaintiffs-Appellants, 

Cross-Appellees.

v.

M etropolitan C o u n t y B oard o ! 
E ducation, et al..

Defendants-Appellees, 
Cross-Appellants.

Decided and Filed Februan !-



2 Kelley: et ui v. Board, cl ui. \ OS >51 : 0

Commencing on the heels ol the landmark case 
Board of Educatioih 347 U.S. 483, 74 S.Ct. 6b6 cjs x-i.t •
(1954), the instant case has spawned volumes o! court <»p;n- 
ions and orders at both the district and -ppvllau a-.els. 
These decisions need not be recounted in tic-tin m u . ^  
e.g.. Kelley v. Metropolitan County Boatu Educat.on »S.
F.2d S14 (1982); Kelley v. Metropolitan Com.1:: EocaO;  
Education, 463 F.2d 732 (6th Cir. >, cert denied. 4U‘. l .S 
1001 (1972;: Kelley v. Metropolitan Cornua o: Lt.nca-
tion. 511 F.Supp. 1363 (M.D. Tenn. 1931 S'lMcv u< sa>
that the litigation undoubtedly required hundreds o. ‘murs 
of work by the plaintiffs’ and Board s attorneys

The plaintiffs' initial motion for attorney's fees, pursuant 
to die Educational Amendments of 1972 20 l  ,S.C § 161.. 
was filed on February S, 1974. Subsequent filings ..mendeo 
the pending motion to include a prayer for reheMmde- 
1976 Civil Rights Attorney’s Fees Act. 42 L .S.C. > i9 '■ 
December. 19S2. the trial court conducted hearing- 
issue of attorney's fees. On February c - t9So. * V   ̂
awarded plaintiffs’ fees and costs of appruximateb M-: 
or less than ten percent of the amount request•"i; 1 
crepanev between the amount requeued .ok. th.o 
formeddhe basis of plaintiff's appeal.

Specifically, plaintiffs alleged error m  the distri 
refusal to award attorney's fees for sen-ices rendered prior

i In its motion for attorneys ^es. pi&mtrcques i ec  
amounts 'or services rendered in the 2b-.eu . - - . c . o .  nt . as
T n  Avon Williams for the firm of i-oofcy anc A V

hours at $200 per hour and oo.4 da>s v *.o00 c Qc ■ ‘ ng 
*238 160 plus a 100 percent contingency factor ler a total o* -■>' J-i * 3 * *- ; 
$23( |  6 Av^n V ill.aPms. individually, 1.211.5 hour, at $200 pr- hour 
and 87.3 days at $1,500 a day. lo ttin g  $•>..,-..0 plus a K 
contingency factor for a total of $(46,500

anf 38 ’E S I  W  * W  Percent
contingency fa^ or ^  AQo^was^requested for work performed by 

S l ^ r F u n d ^ o r n e y l .  buTThe* denial of this repuest was
not challenged on appeal.

the

til!
1" .)t!ri 
?. 1 o-.o*1:1 
; di'- 
av. ;vdec

•t c u ir l  s



Nos. 83-5175/5243 Kelley, d  al. v. Board, cl al. o

to 1972, for declining to award fees for appellate services, 
and for abusing its discretion in calculating the daily and 
hourly rates of plaintiffs’ attorneys Avon M illiams and Ricn- 
ard Dinkins. The defendant Board's cross-appeal challenged 
tne district court’s failure to discern the specific extent to 
which plaintiffs prevailed on cacti of then claims, and in hold­
ing the Board liable ior services required by plaintiffs at­
torneys due to the intervention ol third parties.

The district court's denial of attorney’s iees for services per­
formed prior to 1972 was predicated on the court s determin­
ation that a 1971 desegregation order, entered by the district 
court and approved b> the Sixth Circuit, was a final order 
which terminated entitlement to attorney s fees under this 
court’s mandate in Korthcross v. board oj Education oj 
Memphis City Schools. 611 F.2d 624 (6th Cir. 1979). cert, 
denied, 447 U.S. 911 (I960).

In Kortlicross, supra, this court cautioned that although 
attornev s fees could be awarded retroactis eh foi all de­
segregation cases pending at tin date ol § 1988 s enactment, 
such retroactive relief was not automatic. The court stated:

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

611 F.2d at 635.
Based on the above guidance, the N crthcross district court 

held on remand that a 1966 consent order entered in the 
Memphis school desegregation case constituted a final order, 
thus barring an award of attorney s fees ior work completed 
prior to 1966.

In the instant case, the court below concluded that the 
1971 order of the district court, affirmed in Kelley v. Metro­



4 Kelley, el ai \ . Board, et al. Nos. 83-5175/5243

politan County Board ot Education. 463 F.2d 732 (6th Cir. ). 
cert, denied. 409 U.S. 1001 (1972j. constituted a “final order 
as did the 1966 consent decree at issue in North cross. This 
court, however, is not persuaded by that conclusion.

The critical distinction between Northcross and the instant 
case is the nature of the orders at issue. In Northcross. thc 
1966 order was the result of a consent decree, drafted by the 
parties and approved by the district court. No further liti­
gation was contemplated by the parties at that time, and in 
fact neither part} sought additional relief until the Supreme 
Court rendered its historic decision in Green v. County School 
Board, 391 U.S. 430. 88 S.Ct. 1689 (1968), which clarified 
plaintiffs’ entitlement to a more drastic desegregation plan 
than that provided in the 1966 consent decree

In contrast, the 1971 order at issue herein was not a re­
sult of an agreement drafted by the parties; to the contrary, 
the court expressly rejected the desegregation proposals sub­
mitted by the Board and the plaintiffs in favor of a plan pre­
sented by the Department of Health. Education and Welfare 
(HEW :, an intervener in the suit. Both the Board and the 
plaintiffs appealed the adoption of the HEW scheme. And 
in upholding the lower court's sanctioning of the HEW plan, 
this circuit observed:

The order of the District Judge is the first compre­
hensive and potentially effective desegretation order 
ever entered in this [17 years of] litigation. The District 
Judge tells us that now the remedy is at least in sight.

463 F.2d at 734. Thus, it is clear that neither the parties nor 
the appellate court viewed the 1971 order as signaling the 
termination of the litigation. The plaintiffs have continuously 
sought modification of the 1971 plan and subsequent revisions 
bv the court due to their convictions that the implemented 
schemes have had a disparate impact on black children. As 
recently as 1982, this circuit again remanded the case, con-



D

eluding that "ph large measure. tin pupil assignment com­
ponents of this plan d- not withstand constitutional scrutiny. 
KcUcy. su/na. 6a" F.2d at 824.

in view of tin lorcu hug. tin 19" 1 district court’s adoption 
of the HEW plan, and this court's subsequent affirmance in 
1972. did not j epresi nt a di-tinci break in the litigation. 
There! ore. an award oi fees for legal services performed and

Nos 83-5175/5243 Kelley. ci at. s Board, ct al.

accrued prior to 1972 is appropriate
Plaintiff- have also challenged the trial court's refusal to 

award attornev** lees tor services rendered by their attorneys 
at the appellate level Compensation was sought, inter alia. 
for appelate work which culminat' d in this court’s 1972 and 
1982 Krilov opinions. See. 467 F.2d i3_; 68< F.2d S14.

The court be) w predicated its venial of compensation ioi 
th' services performed by the attorneys in the appellate liti­
gation on Buian v. Bauzhard. 677 F.2d S59 16th Cir. 19S2 . 
i-„ Bttiai:. the court aunounci d. that the award of costs to a 
litigant rs-usuali' to th- Federal Rules of Appellate Procedure 
wa< an absolut- prerequisite to the award of attorney’s fees 
under ? F ’SS for’services performed at that level. As costs 
v.vre nuf await "d R\ tins co'trt to plaintiffs in conjunction 
with their nrevi us appeals, the district court, applying Buian. 
barred compensation for their attorneys’ sen-ices. However, 
this court is oi the opinion that the district court erred in 
retroactivelv annlvinc Buian to the case at bar.

To determine whether a particular decision should be given 
retroactive effect, the test articulated in Chevron Oil v. Hu­
snu. 404 U.S. 97 106-107 ■ 1S7P. must be applied. Under 
Chevron, a new decision should be applied to pending cases 
“unless it represents a ‘clear break :h the past and unless 
in addition it would ne fundamentally unfair or othenvise 
burdensome to apply it.” Caswno. Jr. v. Heckler. No. 83-3481 
(6th Cir. Oct. 22. 19S4 ' t quoting Lawson v. Truck Drivers. 
Chauffeurs & H Ipcrs. Local Union 100. 698 F.2d 250, 254 
/6th Cir. . ceri deni, cl. 104 S.Ct. 69 19830. Applying this



6 Kelley, e1 al v. Board, et al Nos. 83-5175/5243

criteria, it is clear that Buian should uoi be retroacth ely ap­
plied to deny compensation ior appellate work performed 
prior to 19S2 by plaintiffs' attorneys.2

Regarding the initial criterion of the Chevron test, it is 
obvious that Buian represented a “clear break from past law. 
Prior to Buian, a civil rights litigant simply had to “prevail” 
on appeal to qualify for attorney's fees for sendees rendered 
at the appellate level. Buian. however, placed an additional 
burden on a litigant, i.e.. seeking and securing an award of 
costs from the appellate court pursuant to Fed.R.App.P. 39, 
as an absolute prerequisite to receiving attorneys fees undei 
§ 1988.3

As for the other criteria of Chevron, this court concludes 
that it would be fundamentally inequitable to deny plain­
tiffs’ attornevs compensation for appellate work performed 
prior to the pronouncements of Buian in 19S2 because plain­
tiffs failed to secure an award of costs, which was a non­
existent prerequisite prior to 19S2. A contrary disposition 
would completely undermine the purpose of $ 19SS. which 
was designed to compensate attorneys whose efforts resulted 
in the vindication of important constitutional rights. Korth- 
cross. sui2r.£. In sum. Buian is not applicable to the case at 
bar for pre-1982 appeals and the trial court erred in failing 
to award attorney's fees for work related to those appeals.

2 This court takes judicial notice that while at least one Belle v 
appellate decision was rendered the same year as Buton sec 68- 
F at 814 that appeal was arsuec on Decembei l i .  1-81. Thus, 
the appellate work for which plaintiffs seek compensation was un­
doubtedly substantially completed Veil before Butnn was issued 
in September. 1982.

3 The Butnn court itself recognized the burden w.uch its decision 
placed on the court as well as on a litigant. The court observed:

A special responsibilitv is placed upon the court of appeals 
in awarding costs in civil rights cases that does not exist in 
other cases because of the fact that fees for attorney s services 
on appeal will be denied where costs are not awarded.

687 F.2d at 862, n.5.



In addition to challenging the lower court's exclusion of 
time accrued for pre-1972 and appellate work, plaintiffs urge 
that the hourly and daily rates awarded by the lower court 
lor legal services rendered by Avon Williams and Richard 
Dinkins were inadequate Compensation at the rate of S200 
per hour and 81.500 per day in court was requested for Wil­
liams. and $120 hourly mid 81.500 per day sought for Din­
kins' services. Subsequent to evaluating the prevailing rate 
charged by experienced and skillful lawyers in the Nashville 
area, the court below determined that the market rate in 
federal court litigation for an attorney of Williams’ experience, 
ability and stature was 3100 per hour and $1,000 per day of 
trial. The rate for Dinkins, who was introduced into the case 
upon gaining admission to the bar. was S60 per hour and 
$600 per day in court. The court also rejected plaintiffs’ 
prayer for a 100 percent contingency factor, but approved a 
25 percent upward adjustment to compensate for the dif­
ficulty of the prolonged litigation and its unpopularity in 
some- sectors of the community The court then reduced the 
amount 10 percent to account for duplication of services and 
possible miscalculations in the attorneys’ reconstruction of 
their time records.

In Johnson v. Georgia Highway Express, Inc., 488 F.2d 
714. 717-719 (5th Cir. 1974'. the Fifth Circuit listed 12 
factors to be considered in determining an appropriate award 
of attorney’s fees. These factors include, inter alia, the time 
and labor required, the novelty and difficulty of the litiga­
tion. the customary fee. and the experience, reputation and 
ability of the attorneys. In Horthcross, supra, this court ob­
served that Johnson did not provide guidance as to the rela­
tive weight to be accorded each factor, and suggested that 
“an analytical approach" be applied. Northcross instructs:

We conclude that an analytical approach, grounded in 
the number of hours expended on the case, will take 
into account all of the relevant factors and will lead to

Nos. 83-5175/5243 Kelley, ct al. v. Board, ct al. 7



Kelley, el e l  v. Board, el al Km . 83-5175/5243

a reasonable result The number 

^ e ^ r ^ n
C n ^ r f T e l r u n u s u a l  tune imitations and * ,  
“undesireability of the case.

LI F.2d at 642-43.

Pair,,- read, ~
onrlv billing j ^ j o c a l  p • ^

T  I  104 SC, 541 119641, .he Supreme Court fur_
J‘S- ------’ 1 ; ui0 rotpc” are to be determined
her instructed that reasona market rates in the
ir,der 5 19SS “according to the prevailnv
■elevant community. 104 S.Ct. at V ‘ Williams plain- 

contesting the 3100 motion
riffs cited testimony adduced at the = experienced

ZZZ-^-X ~ uf“ ' ? £

in<r that the contingency fee should oe mg

S n S r , " n c e m  ents o l ^ p r e m e  

«  ! « m n ^ s d“  c o L lX d ta .  Williams



Nos. 83-5175/5243 Kelley. cl al. v. Board, et al. 9

is entitled to at least a minimum rate of S120 per hour. This 
amount is a reasonable point of departure in calculating Wil­
liams hourly rate in accordance with prevailing Supreme 
Court and this circuit s directions and is within the para­
meters ol the evidence that “customary fees" for similar work 
ii the Nashville area ranged between S100 and $200 an hour. 
The award to Dinkins must also be reconsidered using as a 
minimum point of departure an amount of $65 per hour as 
the prevailing value of his skills in the Nashville legal com­
munity. The daily ; in court) rate for Williams and Dinkins 
should also be upgraded to at least $1,200 and $650 re­
spectively.

The lower court’s overall reduction of fees by 10 percent 
for duplication of services is justified under the holdings of 
Weisenbcraer v. Huecker. 593 F.2d 49 . 54 ( 6th Cir. 1979) 
and Oliver v. Kalamazoo Board of Educ ation. 576 F.2d 714. 
” 15 n. 2 (6th Cir. 1976) t per curiam '. In addition, the 
Supreme Court recently approved a 30 percent overall re­
duction iii a case, like the one at bar. where the attorneys 
failed to keep contemporaneous time records and thus had 
to reconstruct them from memory. See Hensley v. Eckerhart, 
—  U.S. — . 103 S.Ct. 1933. 1939 (19S3). However, the 
reduction in Hensley was also designed to compensate for the 
attorney’s inexperience Thus, the 10 percent reduction in 
the instant case is reasonable and should not be disturbed.

Plaintiffs also challenged the district court’s refusal to 
award fees for the two days and seven hours plaintiffs’ at­
torneys attributed to discussions with Dr. Scott, the plain­
tiffs’ witness at the 1979 and 1980 hearings. The court’s 
opinion was based on its finding that >:. Scott’s testimony 
was frivolous under Northcross, supra. 611 F.2d at 636. in 
light of plaintiffs’ repudiation of much of Dr. Scott’s testi­
mony after the court had admitted it. The district court's 
conclusion in this respect is proper.



]0 Kelley, et al. v. Board, et al. Nos. 83-5175/5243

In its cross-appeal; the defendants alleged that the trial 
coin i erred in failing to exclude fees for services rendered 
b\ plaintiffs’ attorneys arising from claims and proceedings 
stemming from the intervention or joining of other parties. 
TlnAe “outside” parties were:

1. The Metropolitan ( Nashville/Davidson Co.) Mayor 
and Council, which plaintiffs joined as defendants 
in 1972. (Plaintiffs prevailed in their effort to en­
join these defendants from interfering with the de­
segregation plan.)

2. The intervention by the Board itself as a third party 
plaintiff in 1973 to present its claim against third- 
party defendant HEW.

3. A group of otherwise unidentified “intervenors’ who 
proposed a desecresation plan to  the district court 
in 1979.

4. Another unidentified group of intervenors who 
entered the case to propose the creation of a magnet
school.

'1 he defendant Board further noted that it vehemently op­
posed the intervention of the third and fourth group of inter- 
vein irs listed-'above.

Plaintiffs responded to the Board’s argument on this issue 
by observing that it was the Board’s failure to dismantle its 
dual school system that occasioned the interventions and 
prolonged the litigation in this lawsuit.

Defendants relied primarily on Haycraft v. Hollenbach, 
60ft F.2d 128 (6th Cir. 1979) (per curiam) for the proposi- 
tim, h a t plaintiffs should look to the intervenors, rather than 
t1 lefendant, for expenses occurred as a result of the in­
tervention. However, Haycraft is distinguishable from the 
instant case in several important respects.

In Haycraft, L. J. Hollenbach, a county judge of Jefferson 
Countv, Kentucky, intervened on behalf of “all the people 
of b fferson County” in a desegregation case pending in fed­



Nos. S3-5175/5243 Kelley, et al. v. Board, et al. 11

eral court. The judge proposed an alternative desegregation 
plan which protracted the litigation and resulted in several 
appeals. Following the appeals, the original plaintiffs sought 
an award of attorney's fees to be assessed against the inter- 
venor pursuant to the Emergency School Aid Act of 1972, 20 
U.S.C. § 1617. In granting the order, the district court held 
the 811,312 award against the intervenor appropriate, as 
plaintiffs would have saved countless hours were it not for 
the intervenor. On appeal, this circuit affirmed the award, 
holding that the plaintiffs became the “prevailing party” as 
regarded Hollenbach “when the district court rejected his 
desegregation plan and dismissed him as an intervenor.” 606 
F.2d at 132.

Thus, the award assessed against the intervenor in Haij- 
craft was predicated on the court’s finding that the inter­
venor obstructed rather than aided in the development of the 
court-ordered desegregation scheme. The award was also 
sought by the plaintiffs directly from the intervenor. In the 
instant case, there is no evidence that the intervenors in any 
way interferred with the progress of the litigation, and thus 
plaintiffs would not. under the Haycraft analysis, be entitled 
to remuneration from the intervenors. The question remains, 
of course. wh<?tFier the plaintiff is entitled to attorney’s fees 
from the Board for the extra time which the plaintiffs’ coun­
sel devoted to issues raised by the intervenors.

There appears to be no case law which directly resolves 
this issue. Common sense dictates that the Board should not 
be held liable for the costs plaintiffs incurred in seeking an 
injunction against the Metropolitan Mayor and Council, as 
that group was itself a third-party defendant, unrelated to 
the Board. Thus, if anv party is liable for those expenses, it 
would be the Metropolitan government and not the Board. 
As to the other intervenors, however, (i.e. the Board itself 
as a third-party plaintiff, the group which proposed a de­
segregation plan in 1979. and the advocates of the magnet 
school) plaintiffs’ argument that the Board’s failure to dis-



mantle its dual school system caused the intervention is per­
suasive. Thus, plaintiffs are entitled to compensation from 
the Board for all legal services except those resulting from 
plaintiffs’ addition of the Metropolitan Mayor and Council 
as third-party defendants.

Defendant’s final argument on cross appeal was that the 
court erred in not determining the specific extent to which 
plaintiffs had prevailed in the action. The defendant con­
tended that while the court’s focus on the overall results 
of the case was sufficient to satisfy the “prevailing part)' 
requirement as defined by this circuit in Northcross, supra. 
a recent Supreme Court decision has changed the standard.
Defendant cites Hensley v. Eckcrhart, ------ U .S .------ , 103
S.Ct. 1933 (1983) for the proposition that the Northcross 
approach has been modified, and that awards under § 19SS 
now require that a part)7 s request for attorne) s fees be care­
fully scrutinized as to the extent of success on each claim, 
and further, that time spent on unsuccessful claims that are 
distinct from successful claims should be excluded in determin- 
ing a reasonable fee.4 Thus, defendant suggested that under 
the mandate of Hensley, the case should be remanded with 
instructions^to examine the extent to which plaintiffs have 
prevailed on each substantive issue before awarding fees. The 
court agrees.

In Hensley, plaintiffs brought a lawsuit on behalf of all per­
sons involuntarily confined at the Forensic Unit of the Ful­
ton State Hospital in Missouri. The complaint challenged the 
treatment and conditions at the Forensic Unit as presenting a 
wide varietv of alleged constitutional infringements. The court 
found constitutional violations in five of six general areas

12 Kelley, ct al. v. Board, el al. Nos. 83-5175/5243

4 Specifically, defendant alleged that plaintiffs have been erron­
eously awarded fees for time spent pursuing unsuccessful charges 
of contempt against the Board, yet unresolved matters as to faculty 
composition, and their effort to keep Pearl High School open.



Nos. 83-5175/5243 Kelley, el al. v. Board, el al. 13

cited in plaintiffs complaint: physical environment, individual 
treatment plans; least restrictive environment; visitation, tele­
phone and mail privileges; and seclusion and restraint. How­
ever, it found the sixth general area, staffing, to be sufficient. 
103 S.Ct. at 1936

In ruling on an attorney’s fees motion, the Hensley district 
court first determined that plaintiffs were prevailing parties 
even though they had not succeeded on all six claims, and 
further refused to eliminate from the award hours spent on 
the unsuccessful claim. The Supreme Court reversed and 
remanded, reasoning that two questions must be addressed 
when a motion for attorney’s fees is presented in a case in­
volving numerous claims: (1 ) did the plaintiff fail to prevail 
on claims that were unrelated to the claims on which he 
succeeded?; and (2) did the plaintiff achieve a level of suc­
cess that makes the hours reasonably expended a satisfactory 
basis for making a fee award? 103 S.Ct. at 1940.

However. Hensley, does not. as defendant suggested, repre­
sent a total break from the approach taken regarding the 
“prevailing part\“ issue by this circuit in Northcross. Rather, 
the Hensley court noted that in some cases, the litigation 
cannot bcaAiewed as a scries of discrete claims.” Id. In such 
a case, the Court states, the overall result will still be the 
primary factor in determining attorneys fees.

The Hensley court instructs:

Many civil rights cases will present only a single claim. 
In other cases the plaintiff’s claims for relief will in­
volve a common core of facts or will be based on related 
legal theoric - Much of < nisei’s time will be devoted 
generally ti the litigation as a whole, making it dif­
ficult to divide* the hours expended on a claim-bv-claim 
basis. Such a lawsuit cannot be viewed as a series of 
discrete claims. Instead the district court should focus



on the significance 
plaintiff in relation to the 
on the litigation.

^ O n  retnand^the district court must follow tlie mandates 

H e n s l e y as explicated above. fded by the lower
In sum, this court finds ^  a™ °^erefore remanded to the 

court inadequate.* This cas {ees ior services per-
/Vctriet court with instructio 1972- award fees for
E e d  by plaintiffs attoreieys ,0 t a  awarded*,
appellate work; reevaluate 1 . ^  direction of this
Wiliams and Dinkins in accorim c a„a Dinkins
decision; reevaluate t h e rf sl>200 and S650 respect 
with a minimum departure P ,pcn! by plaintiffs
dvely; decrease the award t o ^  a thjrd partv de- 
attorneys to bring in the n f  supra, to determine
fendant; follow the mandate 0 d ^  m d those which
which claims plaintiffs bare attorneys compensable
they have not, and to M a contingency fac-
hours accordingly; allocs a bv )0! for duplication o

“ d — m in  of time records from memory,
serviceman ^  ^  is Beversed and Be-

xnanded. Costs awarded to plamti s.

s T h iT ^ r t also not-“  0?se” ice* in ^ a t to rn e y s  t f  defend

"  1978'1982

14 Kelley,el d  v. hoard, et d . ^  kW 1'S,0“