Metropolitan County Board of Education v. Kelley Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    No

In The

Supreme Qkmrt of tJje United States
October Term, 1985

"̂'■'■'nM etropol it an County Board Of Education Of 
Nashville And Davidson County Tennessee, et al.,

Petitioners,

vs.

Robert W. Kelley, et al., 
Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS  

FOR THE SIXTH CIRCUIT

W illiam R. W illis, Jr. 
Marian F. Harrison 
W illis & Knight 
215 Second Avenue, North 

Nashville, Tennessee 37201 
(615) 259-9600
A ttorneys fo r  Petitioners

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477



QUESTIONS PRESENTED

1. W hether an appellate cou rt’s failure to award costs pu r­
suant to Rule 39, Federal Rules o f  Appellate Procedure, 
precludes an award o f attorneys’ fees under the 1976 Civil 
Rights Attorneys Fees Awards Act, 42 U .S .C . §1988, which 
provides for fee awards “ as part o f the costs.”

2. W hether a 1972 order o f the Court o f Appeals approving a 
desegregation plan as in conform ity with existing Supreme 
Court m andates and resolving all issues then before the Court is 
not a final order precluding the reopening o f the litigation prior 
to 1972 for an award o f attorneys’ fees pursuant to 42 U .S .C . 
§1988, merely because the District Court retained jurisdiction in 
the case and supplemental activity relating to im plem entation o f 
the desegregation plan occurred.

3. W hether, in considering plaintiffs’ application for a t­
torneys’ fees pursuant to 42 U .S .C . §1988, the Court o f Appeals 
may properly reverse the District C ourt’s factual findings con­
cerning the proceedings at the trial level or the appropriate 
hourly rates to be awarded, without finding those decisions 
clearly erroneous.

4. W hether the District Court m ust award a p lain tiff’s 
counsel his requested hourly rate or personal billing rate when 
the proof establishes a lower rate prevailing in the relevant legal 
community.



—  Ill

TABLE OF CONTENTS

Page

Opinions B e lo w ..............................     1

Ju risd ic tion ................................................................................  2

Statutory Provisions In v o lv e d .............................................  2

Statement o f the C a s e ...................    3

A. The Historical Underpinnings o f the Fee
Award .............       4

1. The 1971 desegregation plan deemed
final by the District C o u rt ..........................  4

2. Substantive proceedings after 1971 . . . . .  5

B. The District C ourt’s Fee A w a rd .................  7

C. The En Banc Opinion o f the Court o f Appeals 8

D. Denial o f the Petition to R eh ea r........................ 10

Reasons for Granting the W r i t .............................................  11

1. In Rejecting the Plain Meaning Construction 
Reconciling Costs Under Rule 39(a), Federal 
Rules o f Appellate Procedure, W ith A t­
torneys’ Fees Awarded as Costs Under 42 
U .S .C . §1988, The Sixth Circuit Has Placed 
Itself in Conflict W ith O ther Circuits, With 
the Necessary Implications o f this C ourt’s
Decision in M arek  v. Chesney, ____  U.S.
____ , 87 L .Ed.2d 1 (1985), and With the
Eleventh Am endm ent .........................................  11

II. The M ajority’s Holding that the District 
C ourt’s 1971 Swann Remedy, Affirm ed by 
the Sixth Circuit in 1972, Was Not a Final



IV —

O rder Disposing o f all Issues Between the 
Parties Is Inconsistent With the Decisions o f
Several Circuit C o u r ts ......................................    16

III. The Court o f Appeals Has Totally Usurped 
the District C ourt’s Fact-Finding Function in 
A ttorneys’ Fees Cases ......................................... 21

C o n c lu s io n ...............................................................................  25

TABLE OF AUTHORITIES CITED

Alexander v. Holmes County Board of Education, 396
U.S. 19(1969) ................................................................  4

Atascadero State Hospital v. S can lo n ,___ _ U .S .____ ,
105 S.Ct. 3142(1985) .................................................... 9 , 12

Blum v. S tenson ,____ U .S_____ _ 79 L .Ed.2d 891 (1984) 21

Bond v . S tanton, 630 F . 2d 1231 (7th C ir. 1980)...  11

Bonner v. Coughlin, 647 F.2d 931 (7th Cir. 1981) . 15

Bradley v. City o f Richmond, 416 U.S. 696 (1974) . . . . .  16

Brown v. Board of Education, 347 U.S. 483 (1954)......... 4

Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) 7, 8, 9, 11, 14, 15

Fulps v. City o f Springfield, 715 F.2d 1088 (6th Cir.
1983).................................................................................  12

Gary v. Spires, 634 F.2d 772 (4th Cir. 1980)...................... 11 ,14

Gautreaux v. Chicago Housing Authority, 690 F.2d 601
(7th Cir. 1982)................................................................  20

Green v. County School Board o f New Kent County,
391 U.S. 430 (1968) ...............................................  4, 5, 10, 17

Henry v. Clarksdale Municipal Special School District,
579 F.2d 916 (5th Cir. 1978) ..................................  16 ,18 ,20



—  v  —

Hensley v. Eckerhart, 461 U.S. 424 (1983) 4, 8, 9, 13, 21 ,22 , 25

H utto  v. Finney, 437 U.S. 678 (1978) .................................  12

Johnson v. Snyder, 639 F .2d 316 (6th Cir. 1981)............  12

Kelley v. Board o f Education o f Nashville City Schools,
8 R .R .L .R . 651 (M .D. Tenn. 1958), a ff’d 270 F.2d 
209 (6th Cir. 1959), cert, denied 361 U.S. 924 
(1959) .......................... ............................................. 4, 13

Kelley v. M etropolitan County Board o f Education, 317
F.Supp. 980 (M .D. Tenn. 1970) ................................  17

Kelley v. M etropolitan County Board o f Education o f 
Nashville and Davidson County, Tennessee, 463 
F.2d 732 (6th Cir. 1972), cert, denied, 409 U.S.
1001 (1972)..................................................................  5, 13, 17

Kelley v. M etropolitan County Board o f Education o f 
Nashville and Davidson County, Tennessee, et al.,
479 F.Supp. 120 (M .D. Tenn. 1979)..........................  5 ,6

Kelley v. M etropolitan County Board o f Education o f 
Nashville and Davidson County, Tennessee, et al.,
492 F.Supp. 167 (M .D. Tenn. 1980)..........................  6

Kelley v. M etropolitan County Board o f Education of 
Nashville and Davidson County, Tennessee, et al.,
511 F.Supp. 1363 (M .D. Tenn. 1981) . . . . . . . . . . . .  6

Kelley v. M etropolitan County Board o f Education 
Civil Action No. 81-5370 (6th Cir. August 19,
1981).................................. .............................................6 ,1 0 ,2 3

Kelley v. M etro County Bd. o f E d., 687 F.2d 814 (6th
Cir. 1982), cert, denied, 459 U.S. 1183 (1 9 8 3 ) .. . .  6, 13, 17

Kelley v. M etropolitan Nashville Board o f Education o f 
Nashville and Davidson County, Tennessee, et al.,
558 F.Supp. 468 (M .D. Tenn. 1983) ......... 2, 5, 7, 8, 18, 24



VI

Knighton v. W atkins, 616 F.2d 795 (5th Cir. 1980)......... 11

Kokoszka v. Bedford, 417 U.S. 642 (1974)........................ 15

M arek v. C hesney,____ U .S -------- , 87 L .E d .2d 1 (1985) . .  3 ,9 ,
11, 12, 15, 25

Maxwell v. Board o f Education o f Davidson County,
203 F.Supp. 768 (M .D. Tenn. 1960), a ff ’d, 301 
F.2d 828 (6th Cir. 1962), rev’d in part and rem and­
ed sub nom , Goss v. Board o f Education o f Knox­
ville, 373 U.S. 683 (1 9 6 3 ).............................................  4 , 13

M etcalf v. Borba, 681 F.2d 1183 (9th Cir. 1982) .............  12

New York Ass’n for Retarded Children v. Carey, 711
F.2d 1136 (2nd Cir. 1983).............................................  16

Northcross v. Board o f Education o f Memphis City
Schools, Civil Action No. 3931, July 29, 1966......... 18

Northcross v. Board o f Education o f Memphis City 
Schools, 611 F .2d 624 (6th Cir. 1979), cert, denied,
447 U.S. 911 (1980) ......................................... 7 ,8 ,1 6 ,1 8 ,1 9

Obin v. District No. 9 In t’l Ass’n o f Machinists and
Aerospace W orkers, 651 F.2d 574 (9th Cir. 1981).. 12

Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976) ............................................................... 19

Peacock v. Drew Municipal Separate School District,
433 F.Supp. 1072 (M .D. Miss. 1977) ........................ 16

Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) . . .  15

Shapiro v. United States, 335 U.S. 1 (1 9 4 8 ).....................  15

Shimman v. In t’l Union o f Operating Engineers, Local
18, 719 F.2d 879 (6th Cir. 1983)..................................  11

Sun Oil Co. v. Burford, 130 F.2d 10 (5th Cir. 1942) 10



Swann v. Charlotte-M ecklenburg Board o f Education,
402 U.S. 1 (1 9 7 1 )....................................... 4, 5, 16, 18, 22, 23

United States v. Professional Air Traffic Controllers,
653 F.2d 1134 (7th Cir. 1981)....................................... 15

United States v. Swift Co., 286 U.S. 106(1932)...............  19

Van Ooteghen v. Gray, 628 F.2d 488 (5th Cir. 1 9 8 0 ) .. . .  11

Wheeler v. Durham  City Board o f Education, 585 F.2d
618 (4th Cir. 1978) ......................................................  7, 14, 18

Willie M. by Singer v. H unt, 564 F.Supp. 363 (W .D.
N .C . 1983), a ff ’d as m odified, 732 F.2d 383 (4th 
Cir. 1984) . .......................................................................  14

Wolfel v. Bates, 749 F.2d 7 (6th Cir. 3984)........................ 11

Other Authority:

Eleventh Am endment to the United States Constitution 9, 11

— vii —

12, 16

20U .S .C . §1617..................................................................   16

20 U.S.C. §3205 ............................................................   16

20U .S .C . §3863 ...................     16

28 U .S .C . § 1254(a)................................................................... 2

42 U .S.C. §1988 .........................................................................passim

Rule 39, Federal Rules of Appellate P ro c e d u re ............... passim

Rule 59(e), Federal Rules o f Civil P ro c e d u re ...................  12

Rule 68, Federal Rules o f Civil Procedure ........................ 12, 15

Senate Report 94-1011............................................................  15, 20



No
In The

Supreme (Enurt nf tl|E United States
October Term, 1985

Metropolitan County Board O f Education O f 
Nashville And Davidson County Tennessee, et al.,

Petitioners,

vs.

Robert W. Kelley, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS  

FOR THE SIXTH CIRCUIT

The petitioners, M etropolitan County Board o f Education o f 
Nashville and Davidson County, et al., respectfully pray that a 
W rit o f Certiorari issue to  review the judgment and opinion o f 
the United States Court o f Appeals for the Sixth Circuit entered 
in this proceeding on September 23, 1985.

OPINIONS BELOW

The en banc opinion o f the Court o f Appeals for the Sixth 
Circuit entered on September 23, 1985 (reprinted in the A ppen­
dix at A. 1) is reported a t ____ F .2 d _____(6th Cir. 1985). The
panel’s opinion on the same appeal which was subsequently 
vacated by a m ajority o f the C ourt’s judges upon the peti­



— 2 —

tioners’ application for rehearing en banc is reprinted at A. 29. 
These opinions review the District C ourt’s opinion, Kelley v. 
M etropolitan County Board o f  Education o f  Nashville and  
Davidson County, Tennessee, et al., (reprinted at A. 43), which 
is reported at 558 F.Supp. 468 (M.D. Tenn. 1983).

In addition, for the C ourt’s convenience the most recent 
substantive opinions relating to  the attorneys’ fees issue before 
the Court are contained in the Supplemental Appendix, referred 
to herein as S.A ..

JURISDICTION

The judgm ent o f the Court o f Appeals for the Sixth Circuit 
was entered on September 23, 1985. This C ourt’s jurisdiction is 
invoked pursuant to 28 U .S .C . §1254(a).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42, §1988 as amended. Proceedings in 
vindication o f civil rights; attorney’s fees. (Reproduced in perti­
nent part.)

In any action or proceeding to enforce a provision of 
§1981, 1982, 1983, 1985 and 1986 of this Title, Title IX of 
Public Law 92-318, or Title VI o f the Civil Rights Act of 
1964, the court, in its discretion, may allow the prevailing 
party, other than the United States, a reasonable 
attorney’s fee as part o f the costs.

United States Code, Title 28, Rule 39, Federal Rules o f A p­
pellate Procedure. Costs. (Reproduced in pertinent part.)

(a) To W hom Allowed. Except as otherwise provided by 
law, if an appeal is dismissed, costs shall be taxed against 
the appellant unless otherwise agreed by the parties or 
ordered by the court; if a judgm ent is affirm ed, costs shall 
be taxed against the appellant unless otherwise ordered; if



a judgm ent is reversed, costs shall be taxed against the ap­
pellee unless otherwise ordered; if a judgm ent is affirmed 
or reversed in part, or is vacated, costs shall be allowed on­
ly as ordered by the court.

STATEM ENT OF T H E CASE

This case concerns the application o f the 1976 Civil Rights A t­
torneys Fees Awards Act, 42 U .S.C. §1988, to a thirty year old 
desegregation case in Nashville, Tennessee, and the relative 
roles o f the District Courts and Courts o f Appeal in considering 
awards under that statute.

In 1983, the District Court for the Middle District o f Ten­
nessee acted on the plaintiffs’ m otion for attorneys’ fees filed in 
1975, finding that fees should not be awarded for work per­
formed prior to a 1971 final remedial order, that fees could not 
be awarded for the num erous appeals in which the plaintiffs had 
never been awarded costs, and that the time for which com pen­
sation was requested by the plaintiffs should be reduced 10 % 
for duplication and for reconstruction o f time records. The 
District Court then awarded fees for substantially all hours 
claimed since 1972 at the 1983 prevailing comm unity rates 
($100.00 for experienced counsel and $60.00 for associate 
counsel), and added to this a 25% multiplier. 558 F.Supp. 468 
(M .D. Tenn. 1983) (A. 43-68). On appeal, a panel initially 
reversed and rem anded the case (A. 29), and on application o f 
the Board o f Education, a m ajority o f the active judges voted to 
rehear the case en banc. Following the rehearing, a divided 
Court o f Appeals rejected almost totally the District C ourt’s 
opinion. In so doing, the Sixth Circuit rejected the clear rela­
tionship between costs and attorneys’ fees under 42 U.S.C.
§1988 recognized by this Court in M arek  v. C hesney,____ U.S.
____ , 87 L .Ed.2d 1 (1985), required the reopening o f the 1971
order for an award o f fees, and reversed the District C ourt’s 
decisions concerning finality and appropriate rates without 
holding them clearly erroneous. The Court o f Appeals then

— 3 —



— 4

rem anded the case to  the District Court for further hearings as 
to pre-1972 and appellate fees, along with the direction to deter­
mine, pursuant to Hensley  v. Eckerhart, 461 U.S. 424 (1983), 
when the plaintiffs had prevailed during this thirty year old 
lawsuit. (A. 1-28).

A. The Historical Underpinnings of the Fee Award

1. The 1971 desegregation plan deemed final by the 
District Court.

This desegregation case began in 1955 immediately following 
Brown v. Board o f  Education, 347 U.S. 483 (1954). Since 1955, 
many remedial orders have been entered adopting desegregation 
plans which m irrored the development o f desegregation law 
from  Brown v. Board o f  Education, supra, to Green v. County  
School Board o f  N ew  Kent County, 391 U.S. 430 (1968), to 
Swann v. Charlotte-M ecklenburg Board o f  Education, 402 U.S. 
1 (1971). With each passing era o f desegregation law, new 
remedies were adopted for Nashville’s public schools.1 1

1 For example, in 1958 the District Court approved a remedy pro­
viding for gradual desegregation (not integration) of the Nashville city 
schools. This was the famous “ grade a year” plan, upon which many 
other localities modeled their plans. At that time, this plan was suffi­
cient to comply with Supreme Court mandates, and the District Court 
later adopted a parallel plan for Davidson County. E.g. Kelley v. 
Board o f  Education o f  Nashville City Schools, 8 R.R.L.R. 651 (M.D. 
Tenn. 1958), a ff’d, 270 F.2d 209 (6th Cir. 1959), cert, denied, 361 
U.S. 924 (1959); Maxwell v. Board o f  Education o f  Davidson Coun­
ty, 203 F.Supp. 768 (M.D. Tenn. 1960), a ff’d, 301 F.2d 828 (6th Cir. 
1962), rev ’d in part and remanded sub nom, Goss v. Board o f  Educa­
tion o f  Knoxville, 373 U.S. 683 (1963). These plans remained in effect 
long after the consolidation of the county and city cases by consent 
decree on September 10, 1963. Indeed, there were no efforts to 
change the plan until the decisions of the Supreme Court in Green v. 
County School Board o f  New Kent County, 391 U.S. 430 (1968), and 
Alexander v. Holmes County Board o f  Education, 396 U.S. 19 (1969).



— 5 —

In 1971, the District C ourt, pursuant to the plaintiffs’ m o­
tions for immediate relief based upon Green, supra, ordered the 
im plem entation o f a comprehensive desegregation plan drafted 
by a team  from  HEW , m andating busing for racial balance pu r­
poses in every area o f this 500 square mile county where it was 
practical to do so, pursuant to  the model in Swann, supra. (S.A. 
169). This plan was appealed by both the plaintiffs and defen­
dants, each urging their own plan for the school system. 463 
F.2d 732 (6th Cir. 1972) (S.A. 179). On May 17, 1972, both ap ­
peals were rejected by the Sixth Circuit, which found the HEW  
plan in compliance with Supreme Court m andates. The Court 
o f Appeals thus affirm ed the HEW  plan, rejected the plaintiffs’ 
application for attorneys’ fees and double costs under the law 
prevailing at that time, and ordered the parties to pay their own 
costs. 463 F.2d 734, 743-47, 752 (S.A. 185-86, 205-12, 224). 
While approving the plan as one designed to establish a unitary 
school system, the Court of Appeals recognized that should 
adverse effects or changed circumstances occur after implemen­
tation, these problems could be addressed by the District Court 
under the general notion that all decrees in equity are suscepti­
ble to m odification based upon changes in the law or facts. Id. 
at 745-46 (S.A. 209). On November 6, 1972, the Board o f 
Education’s petition for certiorari was denied by this Court. 409 
U.S. 1001 (1972) (S.A. 225).

2. Substantive proceedings after 1971.

After the im plem entation o f the 1971 desegregation plan in 
the fall of 1971, all efforts o f the District Court were directed 
toward assuring the p lan’s adequate implementation an d /o r ad­
justing it in light o f changed circumstances.2 558 F.Supp. 468,

2 Prior to 1979, only two short hearings were held, one involving the 
recalcitrance of the city council (which was added as a party) in fun­
ding the purchase of sufficient buses, and the other involving a group 
of intervening parties who sought busing costs from the Department 
of Health, Education, and Welfare. See 492 F.Supp. 167, 172-75 
(M.D. Tenn. 1979) (S.A. 72-74).



6 —

473-74 (A. 50-53). On April 11, 1975, the plaintiffs first filed 
their m otion for attorneys’ fees. (A. 106). In 1979, the first new 
round of hearings directed toward changing the plan which had 
been in effect for more than eight years began, the plaintiffs 
asserting that dem onstrable adverse effects associated with bus­
ing young black children m andated changes, and the defendants 
asserting that population growth and shifts m andated changes 
in school utilization and building.

After m onths o f p roof beginning in 1979, the District Court 
in 1980 determined that changed circumstances and resegrega­
tion, resulting from  the 1971 remedy itself, not from  the actions 
o f the school board, m andated consideration o f a new and dif­
ferent remedy. 479 F.Supp. 120, 122-23 (M .D. Tenn. 1979) 
(S.A. 43-45); 492 F.Supp. 167 (M .D. Tenn. 1980) (S.A. 62). On 
April 17, 1981, this plan was approved by the District Court. 
511 F.Supp. 1363 (M .D. Tenn. 1981) (S.A. 128). On August 19, 
1981, just two days before school was to open under the new 
desegregation plan, the Court o f Appeals ordered the District 
C ourt’s new plan stayed, stating in part that “a fin a l desegrega­
tion order”  (the 1971 plan) should not be modified without 
prior appellate review. (S.A. 155-56). Upon the school board ’s 
application for extraordinary writ to this Court, Justice Stevens 
declined to disturb the Court o f Appeals’ stay, sharing the view 
that changes in the final 1971 plan should be reviewed by the 
Court o f Appeals before they were implemented. (S.A. 157-58). 
On July 27, 1982, the Sixth Circuit rejected the District C ourt’s 
new plan, finding that it “ do[es] not withstand constitutional 
scrutiny.” 3

3 The Sixth Circuit’s en banc opinion argues that the plan to which it 
was referring in this statement was the 1971 plan. (A. 6). It is clear 
from the Sixth Circuit’s 1982 opinion that the plan which was being 
considered was the District Court’s new plan, calling in part for 
elementary schools of a neighborhood character. 687 F.2d 814, 824 
(6th Cir. 1982) (S.A. 6). Certiorari was denied by this Court on 
January 24, 1983. 459 U.S. 1183 (1983).



B. The District Court’s Fee Award

In 1982, the District Court held a hearing on the plaintiffs’ re­
quest for over $1.4 million in attorneys’ fees, representing plain­
tiffs’ claim for legal work reconstructed by counsel4 from  1955 
to the date o f the hearing. Relying on Northcross v. Board o f  
Education o f  M em phis City Schools, 611 F.2d 624, 635 (6th Cir. 
1979), cert, denied, 447 U.S. 911 (1980), and Wheeler v. 
D urham City Board o f  Education, 585 F.2d 618 (4th Cir. 1978), 
the District Court initially held that the fee application for work 
perform ed prior to the District C ourt’s approval o f a com­
prehensive desegregation plan in 1971, affirm ed by the Sixth 
Circuit in 1972, was barred, because the 1971 order was a final 
one representing a discrete step in the litigation which settled all 
issues to that point, including costs and attorneys’ fees. The 
District Court found that any litigation after affirm ance o f the 
1971 order was directed not toward attacking the order itself but 
toward implementing it and modifying it as changed cir­
cumstances or adverse effects could be dem onstrated. 558 
F.Supp. 468, 473-74 (M .D. Tenn. 1983) (A. 50-54).

The District Court then applied the rule set forth  in Buian v. 
Baughard, 687 F.2d 859 (6th Cir. 1982), holding that since costs 
had never been awarded to the plaintiffs on any appeal during 
the long history o f the litigation, pursuant to Rule 39(a), Federal 
Rules o f Appellate Procedure, they could not at this late date 
recover attorneys’ fees for those appeals under the Civil Rights 
Attorneys Fees Awards Act, 42 U .S.C. §1988, which awards 
such fees as “ costs.”  558 F.Supp. 468, 476 (A. 55-56).

After excluding pre-1972 and appellate fees, the District 
Court found, based upon the testimony of a myriad of local a t­
torneys, that $100.00 per hour for senior attorney Williams and 
$60.00 per hour for associate attorney Dinkins constituted the

4 Counsel’s claim for the entire thirty year period was based on 
reconstructed time.



prevailing rate in 1983 in the city o f Nashville. 558 F.Supp. 468, 
478 (A. 60-62). The District Court applied these 1983 prevailing 
rates ($100.00 and $60.00) to ail hours claimed by the plaintiffs 
for District Court work since 1971, with the m inor exception o f 
10% for duplication and reconstructed time, and a small 
am ount o f time spent with an expert witness whose testimony 
the plaintiffs had later repudiated. To this sum, the District 
Court added a 25% multiplier, thereby effectively increasing 
M r. W illiams’ rate to $125.00 per hour, and M r. D inkins’ rate 
to $75.00 per hour. 558 F.Supp. 468, 478-79 (A. 60-62).

Both the plaintiffs and defendants appealed. The plaintiffs 
asserted that the 1971 order was not a final one under Nor- 
thcross, 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, 461 U.S. 424 (1983), required the District Court to 
determine specific stages in this lengthy litigation where the 
plaintiffs had prevailed.

C. The En Banc Opinion of the Court of Appeals

After a three-judge panel reversed and rem anded the District 
C ourt’s order on February 12, 1985 (A. 29), a m ajority o f the 
active judges5 o f the Court voted, upon the school board ’s ap­
plication, to rehear the case en banc. A fter the hearing, a divid­
ed Court entered an opinion which (1) reversed its earlier deci­
sion in Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982), holding 
that costs under 42 U.S.C. §1988 are separate and distinct from 
appellate costs under Rule 39(a), Federal Rules of Appellate 
Procedure (A. 6-9); (2) held that the 1971 order was not a final 
order constituting a discrete step in the Nashville school litiga­
tion (A. 3-6); and (3) m andated that the District Court m ust 
award M r. Williams his regular hourly rate o f $120.00 per hour 
and M r. Dinkins $65.00 per hour, in addition to the 25%

— 8 —

5 Two judges recused themselves from consideration of this case: 
Judge Gilbert Merritt and Judge Nathaniel Jones.



multiplier awarded by the District C ourt. (A. 10-12) .6 The Court 
then rem anded the case to the District Court to consider 
pre-1972 fees and appellate fees, and to  determine the specific 
extent to which the plaintiffs had prevailed under Hensley  v. 
Eckerhart, 461 U.S. 424 (1983) (A. 14-16).

A vocal m inority, consisting o f Judges Kennedy, Engle, and 
W ellford, dissented in part in two separate opinions. (A. 17, 
23). In her opinion, Judge Kennedy, joined by Judges Engle 
and W ellford, pointed to two problem areas in the m ajority’s 
opinion. First, the C ourt’s illogical and ill-conceived efforts to 
distinguish costs under Rule 39(a), Federal Rules o f Appellate 
Procedure, from  attorneys’ fees awarded as costs under 42 
U .S .C . §1988 violated all principles of statutory construction, 
created a direct conflict with the Eleventh Am endment pursuant
to  Atascadero State H ospital v. Scanlon, .____U .S ._____, 105
S.Ct. 3142, 3148 (1985), rejected this C ourt’s reasoning in
M arek v. C hesney ,____U .S .____ , 87 L .Ed.2d 1 (1985) and, in
essence, treated attorneys’ fees litigation as an illegitimate child, 
related neither to costs or judgm ents, a view most circuit courts 
had not taken. Second, Judge Kennedy wrote that the $100.00 
per hour rate upon which the District Court based its award to 
Mr. Williams was supported by the record as the generally 
prevailing rate at the time o f the 1983 hearings and was thus 
clearly within the C ourt’s discretion to award, especially for 
earlier years when much lower rates, including those o f Mr. 
Williams, had prevailed. (A. 17-23).

In a separate and vigorous dissent, Judge W ellford joined in 
Judge Kennedy’s criticism of the m ajority’s rejection o f Buian, 
and argued pointedly that the m ajority had abrogated its duty 
to examine the record and the District C ourt’s fact-finding 
before reversing the hourly fee and finality decrees. According 
to Judge W ellford, rates in Tennessee during the 1970’s had 
been much lower than $100.00 and $60.00 per hour, as evidenc­

— 9 —

6 The Court also largely rejected the school board’s contention that 
it should not be billed for work performed relating to the intervening 
parties. (A. 12-13).



10

ed by the m any circuit court opinions involving some of the 
same attorneys. Judge W ellford, therefore, would not have 
disturbed the rates set by the District Court, finding them  well 
within the discretion o f the trial judge who was intimately 
familiar with the local practice and fees charged, and who had 
heard testim ony from  many local attorneys during a three-day 
hearing. (A. 23-28).

Judge W ellford also dissented vigorously from the m ajority’s 
finding that the 1971 order was not a final one, disposing o f all 
pending issues resurrected with the change in the law brought 
about by Green v. County School Board o f  N ew  K ent County, 
391 U.S. 430 (1968). His dissent recognized that all school 
desegregation cases are continuing in the sense that jurisdiction 
is always retained to m onitor and m odify final injunctive orders 
if necessary, in light o f changed circumstances or changes in the 
law. Thus, Judge W ellford reasoned that the District Court was 
well within its discretion when it found as a m atter of fact, that 
the 1971 comprehensive desegregation plan was a final discrete 
step which should not be reopened for an award o f fees for legal 
work performed prior to the order under the 1976 Civil Rights 
Attorneys Fees Awards Act. (A. 28).

D. Denial of the Petition to Rehear

Because the en banc opinion was glaringly inconsistent with 
the Sixth C ircuit’s own order in 1981 holding that the 1971 
desegregation plan was a final order (S.A. 155), the Board of 
Education petitioned again for a rehearing, which application 
was summarily rejected. (A. 69-76).7 A  stay o f the Court o f A p­
peals’ m andate was granted pending the application to  this 
Court. (A. 77).

7 The petition for a second rehearing was filed in order to give the 
Sixth Circuit an opportunity to resolve this conflict. See Sun Oil Co. 
v. Burford, 130 F.2d 10, 13 (5th Cir. 1942) (discussing power of 
federal circuit court to consider a second petition for rehearing and to 
recall its mandate to correct inconsistencies).



— 11

REASONS FOR GRANTING THE WRIT

I.

In Rejecting The Plain Meaning Construction Reconciling 
Costs Under Rule 39(a), Federal Rules Of Appellate Procedure, 

With Attorneys’ Fees Awarded As Costs Under 42 U.S.C.
§1988, The Sixth Circuit Has Placed Itself In Conflict With 

Other Circuits, With The Necessary Implications Of This
Court’s Decision In M arek v. Chesney, ____U .S .____ ,

87 L.Ed.2d 1 (1985), And With The Eleventh Amendment.

The m ajority’s outright rejection o f its previous rule ar­
ticulated in Buian v. Baughard, 687 F,2d 859 (6th Cir. 1982),8 
reconciling costs under Appellate Rule 39 with the award o f a t­
torneys’ fees as part o f the costs by the 1976 Civil Rights A t­
torneys Fees Awards Act, 42 U .S .C . §1988, has created un­
toward confusion in this circuit and underscored a conflict 
across the country regarding the nature o f attorneys’ fees litiga­
tion. This position leaves the Sixth Circuit in conflict with opi­
nions from  the Fourth , Fifth and Seventh Circuits, e.g. Gary v. 
Spires, 634 F.2d 772, 773 (4th Cir. 1980); Knighton  v. Watkins, 
616 F.2d 795, 797-98 (5th Cir. 1980); Van Ooteghen v. Gray, 
628 F.2d 488, 497 (5th Cir. 1980), cert, dismissed, 451 U.S. 935 
(1981); B ond  v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980), 
and with the reasoning o f this Court in M arek  v. Chesney, _ _  
U.S. ____ , 87 L .Ed.2d 1 (1985). Judge Kennedy’s dissent

8 The Sixth Circuit subsequently recognized on several occasions 
that fees pursuant to 42 U.S.C. §1988 could not be awarded for ap­
pellate work where costs had not been awarded pursuant to Rule 
39(a), Federal Rules of Civil Procedure. Cf. Shimman v. International 
Union o f  Operating Engines, Local 18, 719 F.2d 879 (6th Cir. 1983) 
(not related to fees under 42 U.S.C. §1988 but recognizing rule). It 
should be noted that in Shimman, Judge Merritt, who had recused 
himself from the Kelley litigation, specifically stated that appellate 
fees are to be considered as part of the costs under Rule 39(a). See also 
Wolf el v. Bates, 749 F.2d 7 (6th Cir. 1984), where the mandate was 
recalled by the Sixth Circuit in order to award costs and fees.



— 12 —

reaches the heart o f the conflict when she writes that apparently 
the m ajority, w ithout even overruling inconsistent authority in 
the Sixth Circuit (A. 22),9 has tacitly adopted the Ninth Cir­
cuit’s treatm ent o f applications for fees pursuant to 42 U .S.C. 
§1988 as illegitimate children, falling nowhere within the pro­
cedural framework o f other civil lawsuits. Obin v. District No. 
9 In t’l A s s ’n o f  M achinists and Aerospace Workers, 651 F.2d 
574 (9th Cir. 1981); M etca lf v. Borba, 681 F.2d 1183 (9th Cir. 
1982).

This Court in M arek  recognized the problems in ignoring the 
clear cost language o f Rule 68, Federal Rules o f Civil P ro ­
cedure, and §1988. W ithout procedural rules neutral in nature 
governing all types o f civil cases, including presumably applica­
tions for attorneys’ fees falling within them, the adm inistration 
o f justice can never be predictable or efficient. Thus, even apart 
from  the substantive Eleventh Amendment problems raised by 
the m ajority’s decision to treat civil rights fees as something 
other than costs without a clear indication that Congress intend­
ed to abrogate the Eleventh A m endm ent,10 the m ajority’s deci­
sion, if allowed to stand, has created a muddle for District 
Courts considering applications for appellate fees, particularly 
in protracted cases.

9 See Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981) (at­
torneys’ fees awarded under §1988 are awarded as costs and are not 
controlled by the time limitations of Rule 59(e)); Fulps v. City o f  Spr­
ingfield, 715 F.2d 1088 (6th Cir. 1983) (costs in Rule 68 do include at­
torneys’ fees when an applicable statute such as §1988 allows at­
torneys’ fees to be taxed as costs to the prevailing party). The Fulps 
reasoning was adopted by this Court in Marek.

10 This problem, articulated by Judge Kennedy in reliance on Hutto 
v. Finney, 437 U.S. 678, 695-98 (1978), and Atascadero State Hospital
v. Scanlon,___ U .S .____ , 105 S.Ct. 3142, 3148 (1985) is clear, and is
not addressed further herein. See Judge Kennedy’s discussion at A. 
18-19.



— 13

The problem  for District Courts can be no clearer than in the 
instant case. During thirty  years o f litigation and a myriad of 
appeals, the Sixth Circuit has never once, except in the m ost re­
cent en banc hearing, awarded costs to  either p a rty .11 As Judge 
Kennedy writes, cost awards are generally m atters considered at 
each level o f the federal judicial system for obvious 
reasons—each level is far more intimately familiar with its own 
proceedings and the degree to  which either party has prevailed. 
(A. 17-18). W ith the m ajority’s opinion, not only will the 
District Courts in the future receive no guidance as to when the 
plaintiffs may be entitled to fees for appellate work; in this case, 
and presumably in other protracted cases such as school 
desegregation cases, the District Court may be required to pass 
on appellate fee requests based totally on reconstructed time 
records for thirty years o f appeals.11 12 This o f course will occur 
without the benefit o f the appellate record, briefs, and 
argum ents, and often without the availability o f some of the 
m ajor participants.13 Under Hensley  v. Eckerhart, 461 U.S. 424 
(1983), this task is well-nigh impossible; under principles of

11 There have been many appellate decisions in this case. E.g, Kelley 
v. Board o f  Education o f  the City o f  Nashville, 270 F.2d 209 (6th Cir. 
1959), cert, denied (upon application of the plaintiffs) 361 U.S. 924 
(1959); Maxwell v. Board o f  Education o f  Davidson County, 301 F.2d 
828 (6th Cir. 1962), rev’d sub nom, Goss v. Board o f  Education o f  the 
City o f  Knoxville, 373 U.S. 683 (1963); Kelley v. Metropolitan County 
Board o f  Education, et al., 463 F.2d 732 (6th Cir. 1972); Kelley v. 
Metropolitan County Board o f  Education, et al., 687 F.2d 814 (6th 
Cir. 1982), cert, denied, 459 U.S. 1183 (1983).

12 This will occur, of course, if the final order rule enunciated by the 
District Court, discussed infra, is not addressed by this Court.

13 It should be noted that the plaintiffs here seek fees for services 
performed prior to 1972 for Mr. Z. Alexander Looby, who died in 
1972. 558 F.Supp. at 476 (A. 57).



14 —

comm on sense and orderly procedure this task is clearly 
avoidable, given the intim ate knowledge o f each level o f the 
federal judiciary regarding their own proceedings.

For the bad results that the m ajority’s opinion portends, one 
need only examine closely the litigation in Willie M . by Singer v. 
H unt, 564 F.Supp. 363 (W .D .N .C . 1983), a f f ’d  as modified, 
732 F.2d 383 (4th Cir. 1984), relied upon by the m ajority opi­
nion. (A. 8). In Willie M ., the District Court noted the conflict 
in the circuits and specifically rejected the Buian rationale, in­
dicating that cost awards under Rule 39(a) and 42 U .S .C . §1988 
are totally distinct. As Judge Kennedy wrote, the plaintiffs 
prevailed overall in a class action, but the defendants prevailed 
on one issue which was the subject o f an appeal. The Fourth 
Circuit awarded no costs on the appeal, but nevertheless the 
District Court allowed the plaintiffs to  recover attorneys’ fees, 
including time spent on the lost appeal. In line with their deci­
sion regarding costs previously, the Fourth Circuit on the new 
appeal reversed the part o f the decision that allowed attorneys’ 
fees, presumably for the same reason that costs had not been 
awarded. In so doing, the Fourth Circuit did not address the 
link between costs and fees or the Buian ru le .14 However, had 
costs and fees gone hand in hand, as Judge Kennedy suggests, 
there would have been no need for this further protracted litiga­
tion regarding fees.

There is simply no need to  engage in such double processes, 
given the clear language o f Rule 39(a) and the clear Congres­
sional intent behind 42 U .S .C . §1988. As recognized in M arek, 
when Congress passed 42 U .S .C . §1988, it was well aware o f the 
Federal Rules o f Civil Procedure, and presumably also the 
Federal Rules o f Appellate Procedure. The Civil Rights A t­

14 Contrary to the District Court’s opinion in Willie M., the Fourth 
Circuit had previously recognized the link. See Gary v. Spires, 634 
F.2d 772 (4th Cir. 1980).



— 15

torneys Fees Awards Act was passed in 1976; Rule 39(a) came 
into existence in 1968 along with the body o f uniform  appellate 
rules. Thus, when Congress enacted 42 U .S .C . §1988 and 
ordered attorneys’ fees as part o f the costs, and further 
specifically indicated that attorneys’ fees were to  be treated 
“ like other items o f costs,” 15 Congress clearly understood the 
inevitable links to the already existing procedural ru les.16

Thus, the better rule is the simplest one — the one embodying 
the plain and simple meaning o f the term  costs in the rule and 
statute in issue. This Court applied that rule in M arek ; 17 the 
Sixth Circuit previously applied it in Buian v. Baughard, and

15 Senate Report 94-1011 at 5913 reads in part as follows:
[D]efendants in these cases are often state or local bodies or state 
or local officials. In such cases it is intended that the attorneys’ 
fees, like other items o f  costs, will be collected either directly 
from the official, in his official capacity, from funds of his agen­
cy or under his control, or from the state or local government 
(whether or not the agency or government is a named party). 
(Emphasis supplied.) (Footnotes omitted.)

16 Of course, in interpreting legislative history, there is a presump­
tion that Congress was aware of the judicial construction of existing 
law and that new legislation therefore was to be construed within the 
entire framework of federal statutes. See Shapiro v. United States, 
335 U.S. 1 (1948); United States v. Professional Air Traffic Con­
trollers, 653 F.2d 1134, 1138 (7th Cir. 1981). Further, statutes are to 
be construed so that they harmonize with one another and are applied 
in a consistent fashion. Kokoszka v. Bedford, 417 U.S. 642 (1974); 
Bonner v. Coughlin, 647 F.2d 931 (7th Cir. 1981).

17 The majority’s efforts to distinguish Marek in footnoted (A. 7-8), 
with reference to this Court’s discussion of Roadway Express, Inc. v. 
Piper, 447 U.S. 752 (1980) in n. 2 to the Marek opinion must fail. Rule 
39 does not carry with it its own definition of costs and neither does 42 
U.S.C. §1988. Indeed, the Advisory Committee notes to Rule 39 not 
only refer to 42 U.S.C. §1920 where some costs are defined, but also 
to other statutes defining or precluding cost awards. Thus, Rule 39 
contemplates a search of federal substantive statutes for its applica­
tion, just as does Rule 68, Federal Rules of Civil Procedure.



— 16 —

continues to do so apparently in other contexts. (See n . 9, 
supra). This case presents a particularly appropriate mechanism 
to resolve the conflicts among the circuits, the inconsistencies 
within the Sixth Circuit, and the conflict with the Eleventh 
Am endment.

II.

The Majority’s Holding That The District Court’s 1971 
Swann Remedy, Affirmed By The Sixth Circuit In 1972, 
Was Not A Final Order Disposing Of All Issues Between 

The Parties Is Inconsistent With The Decisions Of Several 
Circuit Courts.

In Northcross v. Board o f  Education o f  M em phis City 
Schools, 611 F.2d 624, 635 (6th Cir. 1979), cert, denied, 447 
U.S. 911 (1980), the Sixth Circuit previously recognized a rule 
o f finality in protracted civil rights cases which it and other cir­
cuit courts o f appeal have gleaned from  Bradley v. City o f  R ich­
mond, 416 U.S. 696 (1974).18 While this C ourt’s holding in 
Bradley was expressly limited to the retroactive application of 
the attorneys’ fees provision contained in 20 U .S .C . § 161719 
when the propriety o f a fee award was pending resolution on ap­
peal at the time the statute was enacted, 416U .S . at 710, other 
courts, including the Sixth Circuit, have prom ulgated a rule 
precluding the reopening o f final orders in protracted cases for

18 See Wheeler v. Durham City Board o f  Education, 585 F.2d 618, 
623 (4th Cir. 1978); Henry v. Clarksdale Municipal Special School 
District, 579 F.2d 916, 918-19 (5th Cir. 1978); New York A ss’n fo r  
Retarded Children v. Carey, 711 F.2d 1136, 1145 (2nd Cir. 1983); 
Peacock v. Drew Municipal Separate School District, 433 F.Supp. 
1072, 1075-76 (M.D. Miss. 1977).

19 This statute was initially used by the plaintiffs as a basis for their 
fee application in this case. The statute has since been repealed, and 
the award herein was made pursuant to 42 U.S.C. §1988. (See 20 
U.S.C. §§3205, 3863.)



— 17 —

the award o f attorneys’ fees under the 1976 Civil Rights A t­
torneys Fees Awards Act, 42 U .S .C . §1988. In the m ajority opi­
nion, the Sixth Circuit again recognized the finality principle, 
but refused to  consider the District C ourt’s 1971 plan, affirm ed 
by the Court o f Appeals in 1972, as such a final order disposing 
o f all claims. (A. 3-6). In so doing, the Sixth Circuit has applied 
a test o f finality which is subjective in nature and is inconsistent 
with other desegregation orders deemed to  be final.

The District C ourt’s 1971 order o f a comprehensive 
desegregation plan ushered in by this C ourt’s decision in Green 
v. Board o f  Education o f  N ew  Kent County, 391 U.S. 430 
(1968) (S.A. 59); Kelley v. M etropolitan County Board o f  
Education, 317 F.Supp. 980 (M .D. Tenn. 1970), fully settled the 
issues before the Court. The 1971 plan was implemented 
without a stay from  the District Court (S.A. 169, 178), and was 
in effect in Nashville even before the Court o f Appeals affirm ed 
the plan on May 30, 1972, and denied a stay o f its m andate pen­
ding a petition for certiorari by the school board. (S.A. 212, 
225).

In 1983, the District C ourt, relying on Northcross, supra, 
held that this comprehensive desegregation plan was a final one 
which could not be reopened for an award o f fees requested by 
the plaintiffs on April 10, 1975.20 At the time of the plaintiffs’ 
m otion, the desegregation plan had been in effect for almost 
five full school years. The only litigation had concerned matters 
related to im plem entation, particularly the need for and source 
o f additional buses. The only filings had concerned plaintiffs’ 
efforts to  dem onstrate certain adverse effects from  the plan, 
and the defendants’ efforts to take care o f and house the 
burgeoning and ever-changing population in Nashville and

20 While the District Court and the Court of Appeals noted that 
plaintiffs had filed their petition for fees on February 8, 1974, the 
record reveals that the petition referred to was filed by a group of 
third party plaintiffs. Instead, the plaintiffs filed their petition for 
fees on April 10, 1975. (A. 100, 106).



18 —

Davidson C ounty.21 Thus, the District Court, pursuant to Nor- 
thcross, deemed the 1971 order a final one, upon which a col­
lateral attack in the form  o f a delayed fee application should not 
be made. 558 F.Supp. at 472-475 (A. 48-54).

The m ajority only attacks the District C ourt’s decree as to 
finality under the 1976 Civil Rights Attorneys Fees Awards Act 
because litigation resulted after 1971, and because, in its opi­
nion, neither the parties nor the Court o f Appeals deemed the 
order an end to  the litigation. Aside from the gross usurpation 
o f the District C ourt’s particular fact-finding function in fee 
cases and the inconsistencies apparent in the Court o f Appeals’ 
characterization o f the substantive as opposed to the fees issues 
in this case, discussed infra in III, these factors have simply not 
been deemed the critical test o f finality by other circuits.

As an example, in Henry v. Clarksdale M unicipal Separate 
School District, 579 F.2d 916 (5th Cir. 1978), neither pending 
litigation to require bus transportation nor the pending o f an a t­
torneys’ fees m otion was deemed sufficient to disturb the finali­
ty o f a comprehensive remedial order. Similarly, in Wheeler v. 
Durham City Board o f  Education, 585 F.2d 618 (4th Cir. 1978), 
the court’s retention o f jurisdiction in order to supervise the ci­
ty ’s desegregation plan was not sufficient to disturb the finality 
o f a previous remedial order, even when accompanied by a m o­
tion for further relief following Swann. Curiously, the Sixth 
Circuit in Northcross alluded to the possibility that a 1966 order 
might meet the requirements for finality, a finding later made 
by the District Court (A. 84-85),22 but the Sixth Circuit

21 A close examination of the Court of Appeals’ description of the 
action in this case after 1971, reveals that the proceedings were sup­
plemental in nature and were not designed to attack the 1971 order 
itself. (A. 5, n. 3.)

22 The 1966 order to which this Court was referring merely approved 
tentatively the implementation of a desegregation plan for the coming 
school year, and ordered the plaintiffs to file objections within three 
weeks. Northcross v. Board o f  Education o f  Memphis City Schools, 
Civil Action No. 3931, July 29, 1966. (A. 78).



— 19 —

simultaneously recognized that no one understood this order to 
be the end o f the litigation in M em phis.23

By reversing the District Court, the Sixth Circuit has left the 
door open in these protracted civil rights cases. As this Court is 
aware, m any district courts across the country have retained 
jurisdiction o f civil rights cases subject to “ final”  remedial in­
junctions, all o f which may be m odified as appropriate show­
ings o f adverse effects, changed circumstances, or contem pt are 
m ade.24 W ithout those showings or a change in the applicable 
law, presum ably these final remedial orders may not be d isturb­
ed. Similarly, in the absence o f changed circumstances 
(resegregation) or adverse effects shown to be caused by the 
1971 plan, that plan would presum ably be in effect today.

Does the Sixth C ircuit’s opinion mean that the door is always 
open for applications relating to fees long since incurred and 
m andates long since issued? The Court o f Appeals has 
answered a hazy yes, calling into question the finality o f other 
remedial orders entered prior to  1971 in this th irty  year old

23 In Northcross, the Sixth Circuit stated as follows: “ A limited plan 
was adopted in 1963, and a year later, this Court again reversed, re­
jecting the plan as inadequate. Nearly two years later, in 1966, a 
modified plan was tentatively approved by the District Court, and an 
uneasy state of repose was reached. While the plaintiffs objected to 
some aspects of the plan, their motion for an injunction was denied. 
At the same time, however, the board was put on notice by the court 
that some aspects of the plan needed further study and additional 
relief might be ordered in the future.” 611 F.2d at 628-629.

24 This litigation does not impair or refute any order’s finality — if 
it did no order in equity would ever be final. All orders in equity are 
susceptible to later enforcement actions or actions based upon changes 
in the law or facts. E.g. United States v. Swift Co., 286 U.S. 106, 119 
(1932); Pasadena City Board o f  Education v. Spangler, 427 U.S. 424 
(1976).



—  2 0

desegregation case,25 and presumably in other long-running civil 
rights actions across the country.

The position taken by the Sixth Circuit in this case does 
nothing to enhance the ultimate goal o f 42 U .S .C . §1988 — the 
attraction o f competent counsel to civil rights litigation.26 Cases 
such as Northcross and Kelley were begun long before fee 
awards were generally available, and critical stages o f these 
cases were decided long before any lawyers could be lured by the 
prospect o f fees pursuant to the 1976 civil rights statute. Con­
versely, if the parties’ subjective intent or continued litigation of 
any nature after a final decision in a desegregation case such as 
Northcross and Kelley reopens the entire case for an award o f 
fees, the prospects for abuse will be great, and it will be impossi­
ble to  find a reliable factual basis for a fee award for services 
performed ten or twenty years earlier. See Gautreaux v. 
Chicago Housing Authority, 690 F.2d 601, 608 (7th Cir. 1982); 
H enry v. Clarksdale M unicipal Separate School District, 579 
F.2d 916, 919 (5th Cir. 1978).27

To petitioners’ knowledge, this Court has not directly passed 
on this finality issue. Consideration by this Court, particularly 
in light o f the rem and whereby the District Court will be re­
quired to review other final remedial orders in this case, appears 
appropriate.

25 See n. 1, supra.

26 Senate Report 94-1011, reprinted in 1976 U.S. Code Congres­
sional Administrative News, p. 5908.

27 In this instance it should be noted here that all fees requested by 
the plaintiffs in Kelley were based upon reconstructed time, including 
those hours plaintiffs claim their counsel expended in the 1950’s and 
60’s. Further, Mr. Z. Alexander Looby, one of the counsel for whom 
plaintiffs seek fees, died several years ago. 558 F.Supp. at 476 (A. 57).



21 —

III.

The Court Of Appeals Has Totally Usurped The District
Court’s Fact-Finding Function In Attorneys’ Fees Cases.

As Judge W ellford wrote in dissent, in two separate instances 
the Court o f Appeals flagrantly violated this C ourt’s often 
repeated directive that the “ District Court has discretion in 
determining the am ount o f a fee aw ard .”  Hensley  v. Eckerhart, 
416 U.S. at 437. (A. 25). W ithout ever determining tha t the 
District C ourt’s fact-finding was clearly erroneous, the Court o f 
Appeals required the District Court to raise the hourly rates 
awarded to M r. Williams and M r. Dinkins and to consider 
pre-1972 fees because the 1971 HEW  plan was not a final one. 
Such holdings obliterate the functions o f the two levels o f the 
federal judiciary, remove the decisions from  the District Court 
which is m ost familiar with the various elements thereof, and 
unnecessarily prolong attorneys’ fees litigation.

As Judges Kennedy and W ellford recognized in their separate 
opinions (A. 17 and 23), the Court o f Appeals totally ignored 
the myriad o f lawyers who testified as to  prevailing rates in 
Nashville, Tennessee, a necessary inquiry in light o f this C ourt’s
recent opinion in Blum  v. S ten so n ,____ U .S ._____, 79 L .Ed.2d
891 (1984). According to the m ajority’s opinion, such inquiries 
are apparently superfluous — the rate awarded must be the plain­
tiffs’ lawyers’ current billing rate — in this case for M r. 
Williams $120.00 per hour. It did not m atter that the prevailing 
rate among respected and experienced members o f the Nashville 
Bar in December, 1982 was closer to  $100.00 per hour, the rate 
awarded by the District Court for M r. W illiams’ services.28 It 
did not m atter, as Judge Kennedy noted, that M r. Williams had

28 See Transcript, December 6, 1982: testimony of Thomas W. 
Steele, p. 207, exhibit 5; testimony of Charles Hampton White, p. 204, 
exhibit 4; testimony of Ward DeWitt, pp. 152-153, exhibit 3; 
testimony of John Hollins, p. 224, exhibit 6; testimony of George Bar­
rett, p. 360. Mr. DeWitt testified that he often charged much less to 
his volume clients, p. 154.



— 22 —

only begun charging $120.00 per hour less than a year before the 
1982 hearings. (A. 23). It did not m atter that from  1977 to the 
date o f the hearings, fees paid to  defendants’ counsel ranged 
from  $75.00 per hour in 1978 to  $95.00 per hour in 1982 for Mr. 
Willis, and $50.00 per hour in 1978 to $75.00 per hour in 1982 
for Ms. H arrison .29 It did not m atter that Mr. Dinkins had no 
personal hourly rate, but that the testimony showed the fair 
value o f his services to be somewhere between $50.00 to $75.00 
per h o u r.30 It did not m atter that the fees applied by the District 
Court ($100.00 for Mr. Williams and $60.00 for M r. Dinkins) 
were applied to all hours compensated from  1972 to 1983, du r­
ing which period, as Judge W ellford graphically points out, 
hourly rates were much lower. (A. 25-28). It did not m atter that 
the time compensated was based totally upon reconstructed 
time, a practice this Court has previously criticized, Hensley v. 
Eckerhart, 461 U.S. 424, 437, 441-42 (1983),31 and that the 
District Court nevertheless added on a 25% multiplier.

The Court o f Appeals’ cavalier handling o f the hourly fee 
question underscores its further usurpation and torturing o f the 
District C ourt’s fact-finding relative to the finality o f the 1971 
order. Never did the Court o f Appeals consider that a massive 
busing order affirm ed pursuant to  Swann v. Charlotte-

29 Exhibit 17 to hearings of December 6, 1982.

30 See Transcript of December 6, 1982; testimony of Ward DeWitt 
($50.00 per hour), p. 154; testimony of Cecil Branstetter ($60.00 to 
$70.00 per hour), p. 126; testimony of John Hollins ($65.00 to $75.00 
per hour), p. 224, See also testimony of Mr. Dinkins, Transcript, 
December 6, 1982, pp. 312-315.

31 Significantly, no court has recognized that plaintiffs’ counsel 
charged more than $14,000.00 in fees for reconstructing time records, 
for which, along with other time spent, plaintiffs sought a 100% 
multiplier. Transcript, December 6, 1982, p. 260. The District Court 
did not eliminate this time.



— 23 —

M ecklenburg  had been in place for twelve years at the time o f 
the fee hearings. Never did the Court o f Appeals acknowledge 
that the 1971 plan was ordered changed only because changes in 
population and adverse effects had directly resulted from  the 
plan itself over the intervening decade. 479 F.Supp. at 123 
(S.A. 45). Never did the Court o f Appeals acknowledge that its 
own panel had clearly viewed the 1971 plan as a final order 
when it had stayed the im plem entation o f the District C ourt’s 
new plan in 1981, only two days before school was to start with 
the following language:

A nd co nc lud ing .. .that where (as here) after many, many 
years a fin a l school desegregation order has been entered in 
the District Court, and appealed to this Court and affirm ­
ed, and then appellants’ petition for certiorari has been 
denied in the Supreme Court, it is in the public interest for 
a proposed departure from said order to be reviewed by the 
Court o f Appeals prior to, rather than after, the institution 
o f the change sought.

Kelley v. M etropolitan County Board o f  Education, No. 
81-5370 (6th Cir. August 19, 1981) (S.A. 156) (Emphasis sup­
plied).

Rather, in all instances the Sixth Circuit m ajority has begun, 
w ithout examining the extensive record or the specific findings 
made by the District Court, with the proposition that the award 
o f $139,500.00 in fees was “ inadequate.”  (A. 16). From  that 
proposition alone the Court o f Appeals set about determining 
how that fee could be raised without reference to  the District 
C ourt’s fact-finding or deference to its intimate knowledge con­
cerning its own proceedings.

Nowhere is the error in this approach m ore glaring than in the 
Court o f Appeals’ opening rem arks that the $139,500.00 con­
stituted less than ten percent o f the am ount requested, a disturb­
ing statement at best when the bill presented by the plaintiffs is 
closely examined. The $1.4 million fee request was bottom ed on



—  24 —

rates for M r. Williams and M r. Dinkins that were fo u r  times the 
prevailing rates in Nashville, Tennessee — $400.00 for Mr. 
Williams and $240.00 for M r. Dinkins taking into account the 
requested 100% m ultiplier.32 Similarly, the Court o f Appeals’ 
effort at comparing attorneys’ fees paid defendants’ attorneys is 
problem atic, since the Court simultaneously failed to  recognize 
that for the same period during which defendants’ counsel were 
paid for their hourly time expended, plaintiffs’ counsel were 
awarded almost their full request in terms o f hours minus a 
small am ount for time spent with an expert witness whose 
testimony they repudiated before the Court o f Appeals and this 
Court. 558 F.Supp. at 478-79 (A. 60-62).33 These examples are 
merely indicative o f the reasons why this Court has given the 
District Court wide berth in attorneys’ fees cases.

This Court recently re-emphasized the wide discretion vested 
in the District Court in determining the am ount o f a fee award. 
The reasoning behind this balancing o f roles was deemed to be

32 See Exhibit 13 to December 6, 1982, hearings.

33 The only hours subtracted by the District Court outside of the ap­
pellate and final order issues considered previously were 10% for 
duplication (offset by the 25% enhancement) and a small amount 
of time spent with Dr. Hugh Scott, whose neighborhood school ap­
proach the plaintiffs abandoned on appeal. (A. 60-62).

The Court of Appeals further attempted to compare fees paid to 
defendants’ counsel to those awarded plaintiffs’ counsel in n. 8, A. 
16. Here the Court also failed to note that the Board of Education 
developed three desegregation plans during this period, held hundreds 
of hours of public hearings thereon which the school board’s at­
torneys were required to attend, and actively pursued a time- 
consuming third party complaint against several state defendants 
which is now on appeal. Accordingly, while the defendants’ lawyers 
did bill more hours for their time during the same period compensated 
the plaintiffs, their tasks were not comparable to those of the plain­
tiffs and they also billed at a significantly lower rate than did the 
plaintiffs’ attorneys.



— 25 —

“ the District C ourt’s superior understanding o f the litigation 
and the desirability o f avoiding frequent appellate review of 
what essentially are factual m atters.”  Hensley  v. Eckerhart, 
461 U.S. 424, 437 (1983). Here, the District Court 
dem onstrated unequivocally its grasp o f the litigation and its 
full consideration o f the record before it in m aking its award. In 
contrast, the Court o f Appeals has opted for a generalization. 
If this type o f review is allowed to  stand and to continue, the 
District C ourt’s function in the Sixth Circuit, and perhaps in 
other Circuits, will be forever usurped, and appellate review will 
be the rule rather than the exception in attorneys’ fees litigation.

CONCLUSION

This Court has stated that a “ request for attorneys’ fees 
should not result in a second m ajor litigation.”  Hensley v. 
Eckerhart, 461 U.S. 424, 437 (1983). In arriving at this policy 
statement the Court has underscored the District C ourt’s discre­
tion in reviewing and characterizing the proceedings and work 
before it, in view of the District C ourt’s intim ate familiarity 
with its own proceedings. Id.

The Sixth C ircuit’s opinion in this case is worthy o f review 
because it misconstrues the Civil Rights Attorneys Fees Awards 
Act o f 1976, 42 U .S .C . §1988, and in so doing comes into con­
flict with at least one decision o f this Court, M arek  v. Chesney,
____ U .S ._____, 87 L .Ed.2d 1 (1985), and with several circuit
court opinions. Perhaps m ost im portantly, however, the Sixth 
C ircuit’s opinion, if allowed to stand, has increased exponen­
tially the inevitability o f protracted attorneys’ fees litigation. It 
has done so by removing the Court o f Appeals’ first hand con­
trol over appellate fees through its power to  award its own costs, 
by perm itting the reopening o f a final desegregation order which 
settled all issues then pending, and by usurping the District 
C ourt’s discretion to examine its own proceedings and local fee 
standards to  award fees at the trial level.



—  26 —

As Judge W ellford stated in his opinion, “ I dissent because I 
believe Judge W iseman acted fairly and within the bounds o f his 
sound discretion and applied the law reasonably to the facts o f 
the case. (A. 28). If  the Sixth C ircuit’s opinion is perm itted to 
stand, such a result will never be sufficient to withstand ap­
pellate scrutiny, particularly in protracted civil rights cases.

Respectfully submitted,

W ILLIS & KNIGHT
William R. Willis, Jr.
M arian F. Harrison
215 Second Avenue North
Nashville, Tennessee 37201

A ttorneys fo r  Petitioners

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy o f the foregoing 
petition has been mailed to M r. Avon Williams, 203 Second 
Avenue N orth, Nashville, TN 37201; M r. Theodore Shaw, 
NAACP Legal Defense Fund, 99 H udson Street, 16th Floor, 
New York, NY 10013; and Mr. Stephen Nunn, Deputy A t­
torney General, 450 James Robertson Parkway, Nashville, TN 
37219 on this 19th day o f November, 1985.

W ILLIS & KNIGHT

By: / s /  William R. Willis, Jr.
Attorneys for Peteitioners



APPENDIX



TABLE OF CONTENTS

Page

Appendix A  —  En Banc Opinion o f the Sixth Circuit
Court o f Appeals dated September 23, 1985 ...........  A -l

Appendix B — Panel Opinion o f the Sixth Circuit Court
o f Appeals dated February 12, 1985 .........................  A-29

Appendix C — 558 F.Supp. 468 (M .D. Tenn. 1983) —
Kelley v. M etropolitan Board o f Education, et al. . A-43

Appendix D — Order o f the District Court for the 
Middle District o f  Tennessee dated February 23,
1983....................................................................................  A-68

Appendix E — Petition for Rehearing and for Rehear­
ing En Banc filed October 7, 1985 (Exhibit B om it­
ted) .....................................................................   A-69

Appendix F — Letter from  Sixth Circuit Court o f 
Appeals dated October 15, 1985 regarding Petition 
to R e h e a r .......................    A-76

Appendix G — Order o f the Sixth Circuit C ourt o f
Appeals Staying M andate dated October 25, 1985 . A-77

Appendix H  — Order o f the District Court for the 
W estern District o f Tennessee dated July 29, 1966, 
in Northcross v. Board of Education o f Memphis 
City S chools.....................................................................  A-78

Appendix I — Findings o f Fact and Conclusions o f Law 
with Respect to Fees and Costs o f the District 
Court for the W estern District o f Tennessee dated 
January 4, 1982, in N orthcross v. Board o f Educa­
tion o f Memphis City S ch o o ls ..................................... A-80

Appendix J — Petition for A ttorneys’ Fees on Behalf
o f Third Party  Plaintiffs filed February 8, 1974 . . .  A-102

Appendix K — M otion o f Plaintiffs for Granting o f
their Request for Counsel Fees filed April 10, 1975 A-106



APPENDIX A

Nos. 83-5175, 5243

U N ITED STATES COURT O F APPEA LS 

FOR TH E SIXTH CIRCUIT

Robert W. Kelley et al., 
Plaintiffs-Appellants,

Cross-A ppellees,

v.

M etropolitan County Board o f 
Education, et al.,

D efendants-Appel lees,
Cross-Appellants.

On Appeal from the 
United States District 
Court for the Middle 
District o f Tennessee.

Decided and Filed September 23, 1985

Before: Lively, Chief Judge; Engel, Keith, Kennedy, Mar­
tin, Contie, Krupansky, Wellford and M ilburn, Circuit 
Judges; and Edwards and Celebrezze, Senior Circuit Judges.1

Krupansky, Circuit Judge, delivered the opinion o f the court 
in which Lively, C .J ., Keith, Martin, Contie and M ilburn, 
J J ., joined. Kennedy, J ., (pp. 17-23) delivered a separate opi­
nion, concurring in part and dissenting in part in which Engel 
and Wellford, JJ ., jo ined, with Wellford, J ., (pp. 24-29) also

1 The court’s decision to review the instant case en banc effectively 
vacated the prior Sixth Circuit opinion on this case which was printed 
at 755 F.2d 67 (6th Cir. 1985).



A-2 —

delivering a separate opinion, concurring in part and dissenting 
in part.

Krupansky, Circuit Judge. Plaintiffs Robert W. Kelley and 
the class he represents appealed and defendant M etropolitan 
County Board o f Education (Board) cross-appealed the district 
cou rt’s award o f attorney’s fees in this school desegregation 
case.

Commencing on the heels o f the landm ark case o f Brown v. 
Board o f  Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 
(1954), the instant case has spawned volumes o f court opinions 
and orders at both the district and appellate levels. These deci­
sions need not be recounted in detail here. See, e.g., Kelley v. 
M etropolitan County Board o f  Education, 687 F.2d 814 (6th 
Cir. 1982), cert, denied, 459 U.S. 1183 (1983); Kelley v. 
M etropolitan County Board o f  Education, 463 F.2d 732 (6th 
Cir.), cert, denied, 409 U.S. 1001 (1972); Kelley v. M etropolitan  
County Board o f  Education, 511 F.Supp. 1363 (M.D. Tenn. 
1981). Suffice it to say that the litigation undoubtedly required 
hundreds o f hours o f work by the plaintiffs’ and B oard’s a t­
torneys.

The plaintiffs’ initial m otion for attorney’s fees, pursuant to 
the Educational Amendments o f 1972, 20 U .S .C . § 1617, was 
filed on February, 8, 1974. Subsequent filings amended the 
pending m otion to include a prayer for relief under the 1976 
Civil Rights A ttorney’s Fees Act, 42 U .S .C . § 1988. In 
December, 1982, the trial court conducted hearings on the issue 
o f attorney’s fees. On February 23, 1983, the court awarded 
plaintiffs’ fees and costs o f approximately $139,500 or less than 
ten percent o f the am ount requested.2 The discrepancy between 
the am ount requested and that awarded formed the basis of 
plaintiffs’ appeal. 1

2 In its motion for attorneys fees, plaintiff requested the following 
amounts for services rendered in the 28-year history of the case:

(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



— A-3

Specifically, plaintiffs alleged error in the district cou rt’s 
refusal to award attorney’s fees for services rendered prior 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 Williams and Richard Dinkins. The 
defendant B oard’s cross-appeal challenged the district court’s 
failure to discern the specific extent to which plaintiffs prevailed 
on each o f their claims, and in holding the Board liable for ser­
vices required by plaintiffs’ attorneys due to  the intervention o f 
third parties.

The district cou rt’s denial of attorney’s fees for services per­
formed prior to 1972 was predicated on the court’s determ ina­
tion that a 1971 desegregation order, entered by the district 
court and approved by the Sixth Circuit, was a “ final o rder”  
which term inated entitlement to attorney’s fees under this 
court’s m andate in Northcross v. Board o f  Education o f  M em ­
phis City Schools, 611 F.2d 624 (6th Cir. 1979), cert, denied, 
447 U.S. 911 (1980).

In Northcross, supra, this court cautioned that although a t­
torney’s fees could be awarded retroactively in all desegretation 
cases pending at the date o f § 1988’s enactm ent, such retroactive 
relief was not autom atic. The court stated:

This is not to  say that a retroactive award o f attorney’s fees 
m ust be made in all school desegregation cases. Certain in­
terim  aspects o f the case may have been subject to a final 
order settling the issue o f attorney’s fees to  that point,

$238,160plus a 100percent contingency factor fora  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 $372,250 plus 100 percent con­
tingency 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 con­
tingency factor for a total of $165,744.

An additional $126,000 was requested for work performed by Legal 
Defense Fund attorneys.



—  A - 4  —

rendering the reopening o f long-settled aspects o f the case 
unfair.

611 F.2d at 635.

Based on the above guidance, the Northcross district court 
held on rem and that a 1966 consent order entered in the Mem­
phis school desegregation case constituted a final order, thus 
barring an award o f attorney’s fees for work completed prior to 
1966.

In the instant case, the court below concluded that the 1971 
order of the district court, affirm ed in Kelley v. M etropolitan  
County Board o f  Education, 463 F.2d 732 (6th Cir.), cert, 
denied, 409 U.S. 1001 (1972), constituted a “ final o rder”  as did 
the 1966 consent decree at issue in Northcross. This court, 
however, is not persuaded by that conclusion.

In upholding the lower court’s sanctioning o f the HEW  plan 
in 1972, this circuit initially observed:

The order of the District Judge is the first comprehensive 
and potentially effective desegregation 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.

Consequently, this court observed in 1972 that the only 
issues o f substance presented in that appeal were the “ practical 
problems which appellants claim have developed since the entry 
o f the district judge’s [1971] o rder” , 463 F.2d at 744, such as the 
lengthy bus rides to which youngsters were subjected as part of 
the desegregation plan. However, the Sixth Circuit directed the 
parties to seek a remedy for these problems in the district court. 
The court instructed:

As appellants well know, the arena for fact-finding in the 
federal courts is the United States District Court. Until 
these claims are presented in a trial court, with an oppor­



— A-5 —

tunity for sworn testim ony to be taken and controverted 
issues of facts decided by the processes o f adversary hear­
ing, this court has no jurisdiction,

463 F.2d at 744-745.

The 1972 Sixth Circuit opinion further related that 
documents included in the appellate record suggest “ that local 
authorities in Nashville and Davidson County have not made 
good faith efforts to comply with the order o f the District 
Judge,”  432 F.2d at 745. The 1972 appellate decision thus con­
cluded:

The District Court order in this case specifically retained 
jurisdiction. Thus, upon our affirm ance, the door o f the 
District Court is clearly open (as it has been) to the parties 
to  present any unanticipated problems (not resulting from 
failure to comply with its order) which may have arisen or 
may arise in the future.

463 F.2d at 747.

Thus, it is clear that the Sixth Circuit did not view the 1971 
order as signaling the term ination of the litigation. M oreover, 
the record is replete with disclosures that the plaintiffs, as well 
as defendants, have continously engaged in adversary pro­
ceedings of m agnitude in conjunction with the modification and 
im plem entation o f the 1970 plan with charges and counter­
charges o f asserted disparate treatm ent of black children.3 As

3 For example, on October 21, 1971, plaintiffs moved to join the 
metropolitan government, mayor and council members as parties due 
to the control these officials exhibited over the financial resources 
necessary to implement the transportation aspect of the plan; on 
March 17, 1972, the Board submitted its second report to the court in 
which it suggested, inter alia, plans for a new high school and a capital 
improvement schedule for schools which were at least 15% black; in 
June, 1972, the Board sought changes in the 1971 plan concerning 
elementary and junior high school attendance zones which plaintiffs 
opposed while reiterating their claims that the plan in effect had a



— A-6

recently as 1982, this circuit again rem anded the case, con­
cluding that “ [i]n large measure, the pupil assignment com­
ponents o f this plan do not withstand constitutional scrutiny.” 
Kelley, 687 F.2d at 817.

In view of the foregoing, it is quite apparent that the 1971 
district court’s disposition and this court’s subsequent 1972 af­
firmance o f that decision, did not represent a distinct break in 
the litigation. Accordingly, as envisioned by the Sixth Circuit in 
Northcross, an award o f fees for legal services perform ed and 
accrued prior to 1972 is appropriate.

The trial court having initially disallowed attorneys fees for 
the period between the inception o f this action on September 23, 
1955, and May 30, 1972, is directed upon rem and to conduct 
hearings and award attorneys fees for services perform ed at the 
trial and appellate levels by determining and applying the 
prevailing daily hourly rate, daily in-court time, and other awar- 
dable fees for each year o f the period involved.

Plaintiffs have also challenged the trial cou rt’s refusal to 
award attorney’s fees for services performed by their counsel at 
the appellate level. Com pensation was sought, inter alia, for 
appellate services which culminated in this court’s 1972 and 
1982 Kelley opinions. See, 463 F.2d 732, 687 F.2d 814.

The court below predicated its denial of legal fees for the ap­
pellate litigation on Buian v. Baughard, 687 F.2d 859 (6th Cir. 
1982). In Buian, the court announced that the award o f costs to 
a litigant pursuant to the Federal Rules of Appellate Procedure 
was an absolute prerequisite to the award o f attorney’s fees 
under § 1988 for services resulting from  the pursuit of appellate

disparate impact on black children; and on May 20, 1973, the Board 
petitioned for approval of its “ Long Range Building Program” . In 
sum, the district court’s docket sheet evinces a steady stream of activi­
ty from the initiation of this litigation to the date of the present ap­
peal.



A-7 —

review. Because costs were not awarded by this court to the 
plaintiffs at the conclusion o f the various appellate proceedings 
entertained by this court, the district court applying Buian bar­
red com pensation for their attorneys’ services.

U pon a reconsideration o f Buian and its m andates, this court 
concludes that an award o f costs pursuant to Fed.R .A pp.P . 
39(a)4 is separate and distinct from  and totally unrelated to an 
award o f attorney’s fees pursuant to the directions o f § 1988. 
Accordingly, Buian is hereby overruled. While it is true that § 
1988 expressly states that attorney’s fees “m ay  be awarded as 
part o f costs,”  neither the legislative history nor the express 
language of § 1988 m andates the conclusion expressed in 
Buian.5 See, Robinson  v. Kimbrough, 620 F.2d 468, 474 (10th

4 While Fed.R.App.P. 39(a) sets forth general guidelines for the 
award of costs on appeal, governing such items as the copying of 
briefs, appendices and records, it also allows the appellate tribunal 
wide discretion in reimbursing a party for its expenses. The rule states 
in pertinent part:

Rule 39. Costs

(a) To whom allowed. Except as otherwise provided by law, if 
an appeal is dismissed, costs shall be taxed against the appellant 
unless otherwise agreed by the parties or ordered by the court; if 
a judgment is affirmed, costs shall be taxed against the appellant 
unless otherwise ordered; if a judgment is reversed, costs shall be 
taxed against the appellee unless otherwise ordered; if a judg­
ment is affirmed or reversed in part, or is vacated, costs shall be 
allowed only as ordered by the court.

5 The dissent’s argument that Buian’s pronouncements are sup­
ported by cases such as Hutto v. Finney, 437 U.S. 678 (1978) and 
Marek v. Chesney, 53 U.S.L.W. 4903 (June 27, 1985) is not per­
suasive. Hutto simply determined that attorney’s fees may be 
classified as “ costs,” and as such, are not subject to eleventh amend­
ment immunity which normally bars monetary damage awards when a 
state is the defendant in a civil rights action. Similarly, the Court in 
Marek, after reviewing the legislative history, purpose and express 
language of § 1988 and Fed.R.Civ.P. 68 respectively, concluded that 
Congress intended the Rule 68’s cost sanctions, which are



— A-8

Cir. 1980) (]pre-Buian decision expressly rejecting the approach 
advocated in Buiari). See, e.g., Universal A m usem ent Co., Inc. 
v. Vance, 587 F.2d 159, 173 (5th Cir. 1978) (en banc), a f f ’d  445 
U.S. 308, 100 S.Ct. 1156, 63 L .Ed.2d 413 (1980) (recognizing 
circuit cou rt’s discretionary power to award costs and fees aris­
ing from  appeal pursuant to  Rule 39 but remanding to district 
court as proper forum  to determine total cost and fees, in­
cluding attorney’s compensation, for prevailing party in that 
case); Willie M . by Singer v. H unt, 564 F.Supp. 363 (W.D. 
N .C . 1983), a f f ’d  as modified, 732 F.2d 383 (4th Cir. 1984) 
(specifically rejecting Buian rationale). To the contrary, the 
relevant inquiry is simply whether the party seeking compensa­
tion substantially prevailed at the appellate level. See, e.g., 
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 
76 L .Ed.2d 40 (1983) (restating the general rule that prevailing 
plaintiff should ordinarily recover an attorney fee in civil rights

mandatorily-imposed upon a party who refuses a settlement offer and 
who subsequently fails to recover a final judgment greater than the of­
fer, to include attorneys’s fees. In determining that the cost-shifting 
provision of Rule 68 encompasses an award of attorneys fees under § 
1988, the Marek Court, in footnote 2, distinguished its prior opinion 
in Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980). The Court 
observed that, unlike Rule 68, the cost provision at issue in Roadway 
(28 U.S.C. §§ 1920 and 1927) specifically enumerated the type of costs 
awardable as sanctions under certain circumstances, thus making it in­
appropriate for the Court to interpret “ costs” as including § 1988 at­
torney’s fees. In other words, the Marek Court recognized a critical 
distinction between interpretation of “ costs” where the relevant 
statute sets forth its own definition of the term, as opposed to situa­
tions where “ costs” are undefined. As appellate Rule 39 specifically 
delineates the “ costs” to which it applies, i.e. the “ traditional” costs 
of printing briefs, appendices, records, etc. the pronouncements of 
Marek render it inappropriate for this court to judicially-amend Rule 
39’s cost provisions to include § 1988 attorney’s fees. In sum, neither 
Hutto nor Marek addressed the narrow issue presented by Buian, to 
wit, whether the appellate court’s discretionary decision to award or 
deny costs pursuant to Fed.R.App.P. 39 should be considered an ab­
solute prerequisite to the prevailing party’s § 1988 entitlement to at­
torney’s fees for legal services rendered at the appellate level.



— A-9

cases). Consideration and disposition o f this critical issue is 
pragmatically left to the forum  o f the trial court. Northcross, 
611 F.2d at 637. See also, D oe  v. Busbee, 684 F.2d 1375 (11th 
Cir. 1982); Taylor v. Ouachita Parish School Bd., 648 F.2d 959 
(5th Cir. 1981); M olina  v. Richardson, 578 F.2d 846 (9th Cir.), 
cert, denied, 439 U.S. 1048 (1978).6

In addition to challenging the lower court’s exclusion o f time 
accrued for pre-1972 and appellate work, plaintiffs urge that the 
hourly and daily rates awarded by the lower court for legal ser­
vices rendered subsequent to May 30, 1972, by Avon Williams 
and Richard Dinkins were inadequate. Com pensation at the 
rate o f $200 per hour and $1,500 per day in court was requested 
for W illiams, and $120 hourly and $1,500 per day sought for 
D inkins’ services. Subsequent to evaluating the prevailing rate 
charged by experienced and skillful lawyers in the Nashville 
area, the court below determined that the m arket rate in federal 
court litigation for an attorney o f W illiams’ experience, ability 
and stature was $100 per hour and $1,000 per day o f trial. The 
rate for Dinkins, who was introduced into the case upon gaining 
admission to the bar, was $60 per hour and $600 per day in 
court. The court also rejected plaintiffs’ prayer for a 100 per­
cent contingency factor, but approved a 25 percent upward ad­
justm ent to compensate for the difficulty o f the prolonged 
litigation and its unpopularity in some sectors of the comm uni­
ty. The court then reduced the am ount 10 percent to account 
for duplication o f services and possible miscalculations in the 
attorneys’ reconstruction o f their time records.

6 Contrary to the concerns articulated by the dissent, the majority 
does not foresee its opinion as impacting or overruling the decision in 
Johnson v. Snyder, 639 F.2d 316 (6th Cir. 1981) (per curiam), as 
Johnson merely concluded that since § 1988 attorney’s fees may be 
considered as part of costs, the filing of petition for attorney’s fees is 
not governed by the time limitations of Fed.R.Civ.P. 59 for motions 
to alter or amend the judgment or for a new trial.



A-10 —

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 o f attorney’s 
fees. These factors include, inter alia, the time and labor re­
quired, the novelty and difficulty o f the litigation, the 
custom ary fee, and the experience, reputation and ability o f the 
attorneys. In Northcross, this court observed that Johnson  did 
not provide guidance as to the relative weight to be accorded 
each factor, and suggested that “ an analytical approach”  be ap­
plied. Northcross instructs:

We conclude that an analytical approach, grounded in the 
num ber o f hours expended on the case, will take into ac­
count all of the relevant factors and will lead to a 
reasonable result. The number of hours of work 
autom atically reflect the “ time and labor involved,”  “ the 
novelty and difficulty o f the question,”  and “ preclusion of 
other em ploym ent.”  The attorney’s normal hourly billing 
rate will reflect “ the skill requisite to perform  the legal ser­
vice properly ,”  “ the custom ary fee,”  and the “ experience, 
reputation and ability o f the atto rney .” Adjustm ents up­
ward may be made to reflect the contingency o f the fee, 
unusual time limitations and the “ undesireability”  of the 
case.

611 F.2d at 642-43.

Fairly read, Northcross advises that the attorney’s normal 
hourly billing rate should be a key focal point in award deter­
minations. In the recent case of Blum  v. S te n so n ,____ U.S.
____ , 104 S.Ct. 1541 (1984), the Supreme Court further in­
structed that “ reasonable rates”  are to be determined under § 
1988 “ according to the prevailing market rates in the relevant 
com m unity.”  104 S.Ct. at 1547.

In contesting the $100 per hour award to Williams, plaintiffs 
cited testimony adduced at the hearing on the m otion for fees 
evincing (1) W illiams’ reputation as an experienced and suc­
cessful civil rights lawyer; (2) that “ custom ary fees”  for similar



A-l 1

work in the Nashville area ranged from  $100 to  $200 an hour; 
(3) that Williams hourly fee for office work was $120; and (4) 
that the unpopularity o f the case has resulted in threats against 
Williams. Testimony that the standard fee for someone of 
D inkins’ stature was $65 to $130 an hour was also cited to sup­
port p laintiffs’ contention that Dinkins’ award was inadequate. 
In addition, plaintiffs recounted the unpopularity and length of 
the litigation in arguing that the contingency fee should be 
higher than the 25 percent awarded by the court below.

Considering in tandem  the pronouncem ents of the Supreme 
Court and Sixth Circuit delineating the correct m ethod for 
caluclating attorney’s fees, this court concludes that Williams is 
entitled to at least a minimum rate o f $120 per hour. This 
am ount is a reasonable point o f departure in calculating 
W illiams’ hourly rate in accordance with prevailing Supreme 
Court and this circuit’s directions and is within the param eters 
o f the evidence that “ custom ary fees”  for similar work in the 
Nashville area ranged between $100 and $200 an hour. The 
award to Dinkins must also be reconsidered using as a minimum 
point o f departure an am ount o f $65 per hour as the prevailing 
value o f his skills in the Nashville legal community. The daily (in 
court) rate for Williams and Dinkins should also be upgraded to 
$1,200 and $650 respectively.

The lower court’s overall reduction o f fees by 10 percent for 
duplication o f services is justified under the holdings of 
Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979) and 
Oliver v. Kalamazoo Board o f  Education, 576 F.2d 714, 715 n.2 
(6th Cir. 1976) (per curiam). In addition, the Supreme Court 
recently approved a 30 percent overall reduction in a case, like 
the one at bar, where the attorneys failed to keep contem ­
poraneous time records and thus had to reconstruct them  from 
memory. See Hensley v. Eckerhart, 461 U.S. 424, 428, 103 
S.Ct. 1933, 1939, 76 L .Ed.2d 40 (1983). However, the reduc­
tion in Hensley was also designed to  compensate for the a t­
torney’s inexperience. Thus, the 10 percent reduction in the ins­
tan t case is reasonable and should not be disturbed.



— A-12 —

Plaintiffs also challenged the district court’s refusal to award 
fees for the two days and seven hours plaintiffs’ attorneys a t­
tributed to discussions with Dr. Scott, the plaintiffs’ expert 
witness at the 1979 and 1980 hearings. The court’s opinion was 
based on its finding that Dr. Scott’s testimony was frivolous 
under Northcross, 611 F.2d at 636, in light of plaintiffs’ 
repudiation o f much of Dr. Scott’s testimony after the court 
had adm itted it. The district cou rt’s conclusion in this respect is 
proper.

In its cross-appeal, the defendants alleged that the trial court 
erred in failing to exclude fees for services rendered by plain­
tiffs’ attorneys arising from  claims and proceedings stemming 
from  the intervention or joining o f other parties. These “ ou t­
side”  parties were:

1. The M etropolitan (Nashville/Davidson Co.) Mayor 
and Council, which plaintiffs joined as defendants in 
1972. (Plaintiffs prevailed in their effort to enjoin 
these defendants from interfering with the desegrega­
tion 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 desegregation plan to the district court in 
1979.

4. A nother unidentified group o f intervenors who 
entered the case to propose the creation of a magnet 
school.

The defendant Board further noted that it vehemently oppos­
ed the intervention o f the third and fourth group of intervenors 
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



— A-13

school system that occasioned the interventions and prolonged 
the litigation in this lawsuit.

Defendants relied primarily on H aycraft v. Hollenbach, 606 
F.2d 128 (6th Cir. 1979) (per curiam) for the proposition that 
plaintiffs should look to the intervenors, rather than the defen­
dant, for expenses occurred as a result of the intervention. 
However, H aycraft is distinguishable from  the instant case in 
several im portant respects.

In Haycraft, L. J. Hollenbach, a county judge o f Jefferson 
County, Kentucky, intervened on behalf o f “ all the people of 
Jefferson C ounty”  in a desegregation case pending in federal 
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 intervenor pursuant to 
the Emergency School Aid Act o f 1972, 20 U .S.C. § 1617. In 
granting the order, the district court held the $11,312 award 
against the intervenor appropriate, as plaintiffs would have sav­
ed countless hours were it not for the intervenor. On appeal, 
this circuit affirm ed 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 Haycraft 
was predicated on the court’s finding that the intervenor 
obstructed rather than aided in the developement 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 o f the litigation, and thus plaintiffs would not, 
under the H aycraft analysis, be entitled to rem uneration fro m  
the intervenors. The question remains, o f course, whether the 
plaintiff is entitled to attorney’s fees fro m  the Board  for the ex­
tra time which the plaintiffs’ counsel devoted to issues raised by 
the intervenors.



— A-14 —

There appears to be no case which directly resolves this issue. 
Com m on sense dictates that the Board should not be held liable 
for the costs plaintiffs incurred in seeking an injunction against 
the M etropolitan M ayor and Council, as that group was itself a 
third-party defendant, unrelated to the Board. Thus, if any 
party is liable for those expenses, it would be the M etropolitan 
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 desegregation plan in 1979, and the ad­
vocates o f the magnet school) plaintiffs’ argum ent that the 
B oard’s failure to dismantle its dual school system caused the 
intervention is persuasive. Thus, plaintiffs are entitled to com ­
pensation from the Board for all legal services except those 
resulting from plain tiff’s addition o f the M etropolitan mayor 
and Council as third-party defendants.

D efendant’s final argument on cross appeal was that the 
court erred in not determining the specific extent to which plain­
tiffs had prevailed in the action. The defendant contended that 
while the court’s focus on the “ overall results’’ o f the case was 
sufficient to satisfy the “ prevailing party”  requirement as defin­
ed by this circuit in Northcross, a recent Supreme Court deci­
sion has changed the standard. Defendant cites Hensely v. 
Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L .Ed.2d 40 (1983) 
for the proposition that the Northcross approach has been 
modified, and that awards under § 1988 now require that a par­
ty ’s request for attorney’s fees be carefully scrutinized as to the 
extent o f success on each claim, and further, that time spent on 
unsuccessful claims that are distinct from successful claims 
should be excluded in determining a reasonable fee.7 Thus,

7 Specifically, defendant alleged that plaintiffs have been erroneous­
ly awarded fees for time spent pursuing unsuccessful charges of con­
tempt against the Board, yet unresolved matters as to faculty composi­
tion, and their effort to keep Pearl High School open.



— A-15

defendant suggested that under the m andate o f Hensley, the 
case should be rem anded 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 o f all per­
sons involuntarily confined at the Forensic Unit o f the Fulton 
State Hospital in Missouri. The complaint challenged the treat­
ment and conditions at the Forensic Unit presenting a wide 
variety o f alleged constitutional infringements. The court 
found constitutional violations in five or six general areas cited 
in plaintiffs’ complaint: physical environment; individual trea t­
ment plans; least restrictive environment; visitation, telephone 
and mail privileges; and seclusion and restraint. However, it 
found the sixth general area, staffing, to be sufficient.

In ruling on an attorney’s fees m otion, the Hensley district 
court first determined that plaintiffs were prevailing parties 
even though they had not succeeded on all six claims, and fur­
ther refused to eliminate from the award hours spent on the un ­
successful claim. The Supreme Court reversed and rem anded, 
reasoning that two questions must be addressed when a m otion 
for attorney’s fees is presented in a case involving num erous 
claims: (1) did the p laintiff fail to prevail on claims that were 
unrelated to the claims on which he succeeded?; and (2) did the 
plaintiff achieve a level o f success that makes the hours 
reasonably expended a satisfactory basis for making a fee 
award? 461 U.S. at 434; 103 S.Ct. at 1940.

However, Hensley  does not, as defendant suggested, repre­
sent a total break from  the approach taken regarding the 
“ prevailing party”  issue by this circuit in Northcross. Rather, 
the Hensley court noted that in some cases, the litigation cannot 
be “ viewed as a series o f discrete claim s.”  Id. In such a case, the 
Court stated, the overall result would remain as the prim ary fac­
tor in determining attorneys fees.



— A-16 —

The Hensley court instructs:

M any civil rights cases will present only a single claim. In 
other cases the p lain tiff’s claims for relief will involve a 
common core o f facts or will be based on related legal 
theories. Much of counsel’s time will be devoted generally 
to the litigation as a whole, m aking it difficult to divide the 
hours expended on a claim-by-claim basis. Such a lawsuit 
cannot be viewed as a series o f discrete claims. Instead the 
district court should focus on the significance of the 
overall relief obtainted by the plaintiff in relation to the 
hours reasonably expended on the litigation.

461 U.S. at 435, 103 S.Ct. at 1940.

On rem and, the district court m ust follow the mandates of 
Hensley as explicated above.

In sum, this court finds the am ounts awarded by the lower 
court inadequate.8 This case is therefore rem anded to the 
district court with instructions to award fees for services per­
formed by plaintiffs’ attorneys prior to 1972; award fees for ap ­
pellate work; reevaluate the hourly rate to be awarded to 
Williams and Dinkins for the period subsequent to  May 30, 
1972 in accordance with the direction o f this decision; 
reevaluate the court time for Williams and Dinkins with a 
minimum departure point of $1,200 and $650 respectively for 
the period subsequent to May 30, 1972; decrease the award for 
the time spent by plaintiffs’ attorneys to bring in the city 
government as a third party defendant; follow the m andate of 
Hensley to determine which claims plaintiffs have succeeded 
upon and those which they have not, and to calculate the a t­

8 This court also notes that the entire amount awarded to plaintiffs’ 
attorneys for 28 years of service in this case was less than one-half of 
the $288,000 which the Board paid its attorneys to defend against the 
litigation in just one five-year period, i.e. 1978-1982.



— A-17 —

torneys’ compensable hours accordingly; allow a 25% increase 
as a contingency factor; and decrease the overall award by 10% 
for duplication of services and the reconstruction o f time 
records from memory.

In view o f the foregoing, this case is Reversed and Remanded. 
Costs awarded to plaintiffs.

Kennedy, Circuit Judge, concurring in part and dissenting in 
part, joined by Engel and Wellford, JJ . I concur in the 
court’s holding that the 1971 desegregation order did not con­
stitute a distinct break in the litigation. I dissent, however, from 
the m ajority’s decision to  overrule Buian v. Baughard, 687 F.2d 
859 (6th Cir. 1982). I remain convinced that the award o f costs 
on appeal is a prerequisite to  the award o f appellate attorney 
fees under 42 U .S .C . § 1988.

The statutory authorization for attorney fees in civil rights 
cases provides that

In any action or proceeding to enforce a provision o f sec­
tions 1981, 1982, 1983, 1985, and 1986 of this title . . .  the 
court, in its discretion, may allow the prevailing party, 
other than the United States, a reasonable attorney’s fee as 
part o f the costs.

42 U .S .C . § 1988.

Traditionally, the Supreme Court, the courts o f appeals and 
the district courts each issue cost awards only for the p ro­
ceedings within their own sphere. Rule 39(a) o f the Federal 
Rules o f Appellate Procedure governs the award o f costs on ap­
peal. It provides that costs shall be awarded to the prevailing 
party, unless otherwise ordered. W here each party prevails in 
part, costs are allowed only as ordered by the court. Normally, a 
prevailing party receives costs and a partially prevailing party



— A-18

receives partial costs.1 In the rare situation where the appellate 
court disallows costs entirely, the court very likely has a good 
reason for doing so, a reason which may or may not be apparent 
to the district court when it decides the subsequent m otion for 
attorney fees. I do not see how we can allow a district court the 
discretion to award appellate attorney fees “ as part o f the 
costs”  when we have refrained from  awarding costs.1 2

M oreover, I do not see how we can, consistent with the 
Eleventh Am endm ent, allow an award o f attorney fees against a 
state other than as part o f costs. Section 1988 does not expressly 
abrogate Eleventh Am endment immunity, cf. Atascadero State 
Hospital v. Scanlon, 105 S.Ct. 3142, 3148 (“ Congress must ex­
press its intention to  abrogate the Eleventh Am endment in un­

1 If there is an appeal and a cross appeal and the plaintiff prevails on 
one and loses on the other, costs would ordinarily be awarded only on 
the successful appeal. Although the attorney’s servcies could not 
readily be divided, under Hensley v. Eckerhart, 461 U.S. 424 (1983), 
the fee award could be reduced according to the degree of success. 
This need not involve the courts of appeals in determining the amount 
of the fees. The court need only state in its award of costs that at­
torney fees should be reduced by the appropriate percentage because 
of the limited success.

21 am not insensitive to the harshness of disallowing attorney fees in 
the instant case because of the absence of cost awards. I do not know 
why the panels in the 1972 and 1982 Kelley decisions ordered each par­
ty to bear its own costs on appeal. Appellants prevailed on the school 
district’s appeal in 1972 and also prevailed in 1982. If it was through 
inadvertence, or through a perception that each party had partially 
prevailed and the costs balanced out, the cost issue could have been 
made the subject of a motion for rehearing by appellants, in anticipa­
tion of seeking attorney’s fees. Appellants never filed such a motion. 
The 1982 Kelley case, however, was decided six weeks prior to Buian 
and appellants might reasonably not have realized what the failure to 
award costs portended for their impending attorney’s fee motion. 
Because of the harshness of the result, we might decline to apply 
Buian in the present case. I would prefer this approach to the majori­
ty’s discarding of Buian.



— A-19 —

mistakable language in the statute itself” ), and the Supreme 
Court has upheld § 1988 fee awards against states only because 
they are part o f costs:

The Act imposes attorney’s fees “ as part of the costs.” 
Costs have traditionally been awarded without regard for 
the States’ Eleventh Amendment immunity. The practice 
o f awarding costs against the States goes back to  1849 in 
this Court. The Court has never viewed the Eleventh 
Am endm ent as barring such awards, even in suits between 
States and individual litigants.

Just as a federal court may treat a State like any other 
litigant when it assesses costs, so also may Congress amend 
its definition o f taxable costs and have the amended class 
o f costs apply to the States, as it does to all other litigants, 
without expressly stating that it intends to abrogate the 
States’ Eleventh Amendment immunity. For it would be 
absurd to require an express reference to state litigants 
whenever a filing fee, or a new item, such as an expert 
witness’ fee, is added to the category o f taxable costs.

There is ample precedent for Congress’ decision to 
authorize an award of attorney’s fees as an item o f costs. . .  
It is much too late to  single out attorney’s fees as the one 
kind o f litigation cost whose recovery may not be authoriz­
ed by Congress without an express statutory waiver of the 
S tate’s immunity.

H utto  v. Finney, 437 U.S. 678, 695-98 (1978) (citations and 
footnotes om itted).

As recently as this term , the Court has shown that it regards 
the “ as part o f the costs”  language as more than mere 
surplusage. In M arek  v. Chesny, 105 S.Ct. 3012, the Court held 
that the “ costs”  contem plated by Federal Rule o f Civil P ro ­
cedure 68 — which shifts to the plaintiff all costs incurred subse­



A-20 —

quent to a rejected settlement offer which is not exceeded by the 
eventual recovery — include attorney’s fees awardable under § 
1988. Plaintiffs in M arek  had rejected a $100,000 settlement o f­
fer in their § 1983 suit, and subsequently won only a $60,000 
judgm ent. Thus, under Rule 68, plaintiffs could not recover 
“ costs”  incurred during the period after the settlement offer. 
Plaintiffs nonetheless sought attorney’s fees for that period. 
The Court ruled that since § 1988 defined attorney’s fees as 
costs, fees could not be awarded for any period for which costs 
were not awarded:

Pursuant to . . .  § 1988, a prevailing party in a § 1983 ac­
tion may be awarded attorney’s fees “ as part of the costs.” 
Since Congress expressly included A ttorney’s fees as 
“ costs”  available to plaintiff in a § 1983 suit, such fees are 
subject to  the cost-shifting provision o f Rule 68.

105 S.Ct. at 3017.

In dissent, Justice Brennan argued that it was wrong to  let a 
determ ination o f attorney’s fees, which is governed by a 
reasonableness standard, be subordinated to and subsumed by a 
rule on costs, which may have a much more mechanical applica­
tion. 105 S.Ct. at 3020-21. In the instant case, I take it that 
essentially this sentiment underlies the m ajority’s decision to 
reverse Buian. But the Supreme Court rejected that argum ent in 
favor o f the “ plain language”  view that since attorney’s fees are 
defined as part o f costs, they cannot be separately awarded 
where costs are not awarded.

Notwithstanding all o f this, the m ajority, with an absence of 
analysis and a dearth o f support, “ concludes that an award of 
costs pursuant to Fed .R .A pp.P . 39(a) is separate and distinct 
from  and totally unrelated to an award o f attorney’s fees pur­
suant to the directions o f § 1988.”  The m ajority adds that 
“ [wjhile it is true that § 1988 expressly states that attorney’s fees 
‘may be awarded as part o f the costs,’ neither the legislative 
history nor the express language o f § 1988 m andates the conclu­



sion expressed in Buian.” (Emphasis added). I do not know 
what that “ express language”  m andates if not B ulan’s conclu­
sion. The refusal to award costs precludes the award o f any part 
o f the costs, and the express language o f section 1988 defines a t­
torney’s fees as part o f the costs, as discussed in H utto  and 
Marek.

The m ajority cites two cases as support for rejecting the 
Buian approach. While the district court in Willie M . by Singer 
v. H unt, 564 F. Supp. 363 (W .D .N .C . 1983), did explicitly re­
ject Buian, the m ajority’s subsequent history o f Willie M. as 
“ a f f ’d a s  m od ified” disguises the Fourth Circuit’s partial rever­
sal.

In Willie M „  the plaintiffs prevailed overall in a class action, 
but defendants prevailed on one issue —- the scope o f the class 
—- which was the subject o f an independent appeal. The ap­
pellate court awarded no costs on that appeal. Nonetheless, the 
district court allowed plaintiffs to  recover attorney’s fees, in­
cluding fees for time spent on the lost appeal, because they had 
largely prevailed overall. The Fourth Circuit reversed that part 
o f the decision and disallowed attorney fees for the lost appeal 
because plaintiffs had not prevailed — precisely the reason, of 
course, that costs had not been awarded. See Willie M . v. 
H unt, 732 F.2d 383, 386-87 (1984). Thus, the Fourth Circuit 
reversed the district court on the very issue that brought Buian 
into play, albeit in such a way that the court avoided altogether 
a Buian-type question.

N ot only was the Willie M . district court reversed,3 but one of 
the cases it relied upon in rejecting Buian had been reversed by

— A-21 —

3 In addition to Willie M., the majority cites Robinson v. Kim­
brough, 620 F.2d 468 (10th Cir. 1980), in which the court did allow an 
attorney’s fee award where costs had been denied. Aside from my 
plain disagreement with the Robinson holding, it does not appear that 
a Buian-typz question was squarely addressed by that court.



— A-22 —

the Supreme Court. White v. N ew  Hampshire D epartm ent o f  
Em ploym ent Security, 629 F.2d 697 (1st Cir. 1980), had held 
that Fed.R .C iv.P . 59(e)’s time limit on m otions to alter or 
amend judgm ents applied to m otions for attorney’s fees. The 
court rejected the argum ent that fees are more like costs than 
like part o f the judgm ent and thus should be governed by 
Fed.R .C iv.P . 54(d), which contains no time limit.

The Supreme Court, however, reversed White, see 455 U.S. 
445 (1982), holding that a m otion for attorney’s fees was not 
like a m otion to alter or amend the judgm ent and so not subject 
to Rule 59(e). The Court declined, though, to rule specifically 
on whether a request for fees was an application for costs, as 
three circuits had held, see Johnson  v. Snyder, 639 F.2d 316, 
317 (6th Cir. 1981);4 B ond  v. Stanton, 630 F.2d 1231, 1234 (7th 
Cir. 1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir. 
1980), or was a third kind o f creature, related neither to  costs 
nor judgm ent, as the Eighth Circuit had held in Obin v. District 
No. 9 International Association o f  M achinists and Aerospace 
Workers, 651 F.2d 574 (1981), and as the Ninth Circuit later 
held in M etcalf v. Borba, 681 F.2d 1183 (1982).5

It appears that the m ajority now tacitly adopts the Obin view 
that a claim for attorney’s fees is not a request for costs nor part 
o f the judgm ent but “ a m atter collateral to and independent of 
the merits o f the litigation.”  651 F.2d at 583. Justice 
Blackmun’s concurring opinion in White called for the Court to 
go “ one step further”  and affirmatively adopt the Obin view 
rather than the “ costs”  view o f Johnson, B ond  and Knighton.

4 In Snyder, we held that “ attorney’s fees awarded under § 1988 are 
awarded as costs and are not controlled by the time limitations” of 
Rule 59(e). 639 F.2d at 317. The majority’s opinion would seem 
necessarily to overrule Snyder as well as Buian.

5 The Willie M. district court relied on Obin and Metcalf in addition 
to White.



— A-23

See 455 U.S. at 455-56. Evidently, a m ajority o f the Court was 
not willing to  do that. Nor am 1.

1 also dissent from  the holding that the District Court abused 
its discretion in awarding Mr. Williams an hourly rate o f $100 
for all hours since 1972. The evidence was that rates for a t­
torneys with Mr. W illiams’ experience were from  $100 to $200 
per hour at or about the time of the hearing in 1982. However, 
$100 per hour was the generally prevailing rate. There was also 
undisputed testimony that rates generally were lower in the early 
and middle 1970’s. The court relies on Mr. W illiams’ testimony 
that he charges $120 per hour. It overlooks his testimony that 
he began charging $120 per hour in January 1981. (App. at 
783). Based on the evidence before it, I do not believe the 
District Court abused its discretion by adopting the $100 rate, 
although it might have been preferable to approve a lower rate 
for earlier years and a higher rate for later years.

Wellford, Circuit Judge. (Concurring in part and dissenting 
in part.) I concur with Judge Kennedy in her discussion and 
reiteration o f the rationale o f Buian v. Boughard, 687 F.2d 859 
(6th Cir. 1982).

I concur in Judge Krupansky’s opinion to the extent it ap­
proves o f the district court’s overall reduction o f fees by 10 per­
cent for duplicaiton o f services. The opinion observes that a 
larger reduction under appropriate circumstances may be 
justified where there has been a failure “ to  keep contem ­
poraneous time records.”  The fact that only a modest reduc­
tion was directed by the trial judge is evidence o f a sensitive and 
understanding approach by him in considering all o f the aspects 
o f the attorney fee request in this case under standards set by the 
Supreme C o u rt.1

1 “ Where the documentation of hours is inadequate, the district 
court may reduce the award accordingly. The district court also 
should exclude from this initial fee caluclation hours that were not 
‘reasonably expended.’ ” Hensley v. Eckerhart, 461 U.S. 424, 
433-434 (1983).



— A-24 —

I also concur in the court’s judgm ent that the district cou rt’s 
conclusion properly refused to award fees for the period during 
1979 and 1980 hearings when the essentially frivolous testimony 
o f plaintiffs’ expert witness, Scott, was discussed and produced 
but later repudiated. I agree, furtherm ore, that defendant 
Board should not be held liable for the costs plaintiffs incurred 
in seeking an injunction against the M ayor and Council, since 
the latter, if anyone, should be responsible, rather than defen­
dant Board, for those expenses. In addition, I agree that there 
should be a rem and to consider to what extent, if at all, plain­
tiffs should be considered “ prevailing parties”  on certain issues 
still pending, or in respect to charges or claims in which plain­
tiffs failed to  succeed before the trial court (or this court). See 
Hensley v. Eckerhart, 461 U.S. 424 (1983) (a case in which some 
of plaintiffs’ counsel participated as did the A ttorney General 
o f the State o f Tennessee by amicus brief).2 The district court, 
on rem and, may find some of the claims made by plaintiffs 
essentially “ unrelated”  to those on which plaintiffs were found 
to prevail. See Hensley, 461 U.S. at 435. As the Supreme Court 
stated:

If, on the other hand, a p laintiff has achieved only par­
tial or limited success, the product o f hours reasonably ex­
pended on the litigation as a whole time a reasonable hour­
ly rate may be an excessive am ount.

*  *  *

That the plaintiff is a “ prevailing party”  therefore may say 
little about whether the expenditure o f counsel’s time was 
reasonable in relation to the success achieved.

*  *  *

2 It should be noted that the successful plaintiffs’ attorney in 
Hensley claimed nearly 3000 hours of time and requested a rate of $40 
to $65 an hour from  1975 through 1979.



— A-25

There is no precise rule or form ula for making these deter­
m inations. The district court may attem pt to  identify 
specific hours that should be eliminated, or it may simply 
reduce the award to account for limited success. The court 
necessarily has discretion in making this equitable judg­
ment.

Hensley, 461 U.S. at 436-37.

I respectfully dissent, however, from  other portions o f the 
m ajority opinion. I would hold Buian v. Baughard, 687 F.2d 
859 (6th Cir. 1982) to be essentially sound in requiring a deter­
m ination about allowance o f costs as a condition for subsequent 
allowance o f fees in civil rights attorney fee award requests. 
Buian is not inconsistent with the practice of pragmatic referral 
to the district court for determ ination of the reasonable amount 
o f an attorney fee award in a proper case. See Smith  v. Detroit 
Board o f  Education, 728 F,2d 359 (6th Cir. 1984). I would not 
overrule Buian, and I would affirm  the judgm ent below to the 
extent that it applied Buian to reduce a portion o f the fee re­
quest.

W ith regard to the hourly and daily rates awarded to counsel 
Williams and Dinkins, remembering that “ the fee applicant 
bears the burden o f establishing entitlement . . . and docum en­
ting the appropriate hours and hourly ra tes,”  and emphasizing 
that “ the district court has discretion in determining the am ount 
o f a fee aw ard ,”  Hensley, 461 U.S. at 437, (emphasis added), I 
would affirm  the district court’s action as being within his 
sound discretion. M uch o f the fee award claim in this case goes 
back to services rendered a num ber of years ago when, in Ten­
nessee, it was rare for an attorney in any case to  claim an hourly 
or daily fee equal to that awarded by the district court in this 
case. It should be remembered that plaintiffs’ attorneys are en­



A-26

titled only to  an award for reasonable value o f their services.3 In 
perhaps this court’s most frequently cited case dealing with a t­
torney fees in a com parable school desegregation situation,4 
reference was m ade to an allowance o f fees through 1977 to an 
experienced and successful civil rights lead counsel, Louis 
Lucas, who requested $75 an hour for services in a 1977 hearing. 
That same attorney, involved in num erous school desegregation 
cases in this Circuit (as has been M r. Williams, one o f the clai­
m an t’s here), requested an hourly fee o f $125 an hour for ser­
vices in a 1978 hearing in the Memphis desegregation case. He 
was awarded $75 an hour by this court for non-courtroom  time 
because the requested rate was found to  be too high. Nor- 
thcross, 611 F.2d at 641. In that same case, another experienced 
civil rights p laintiff attorney, William Caldwell, requested $60 
an hour for his services under the 1976 Civil Rights A ttorney’s 
Fees Awards Act; Elijah Noel, J r., in a com parable position 
with M r. Dinkins, requested $50 an hour for his services to 
plaintiffs through 1977, $60 thereafter. Id.

In Oliver v. Kalamazoo Board o f  Education, 576 F.2d 714 
(6th Cir. 1978), another leading school desegregation case com ­
parable to  the one at issue, lead counsel Lucas (and others in the 
category o f M r. W illiams)5 received fees ranging from  $60 to 
$100 an hour for courtroom  services, and this allowance, in­

3 As a former district judge for many years in the Western District 
of Tennessee and, before 1971, a practicing lawyer in the largest city in 
the state, my own experience indicates that Judge Wiseman was, if 
anything, generous in his award and rate of compensation granted to 
plaintiffs’ attorneys.

4 Northcross v. Board o f  Education o f  Memphis City Schools, 611 
F.2d 624 (6th Cir. 1979), cert, denied, 447 U.S. 911 (1980).

5 Including a judge on this court, then chief counsel for the NAACP 
Legal & Defense Fund, and a federal district judge in Michigan.



A-27 —

stead o f “ bonus aw ards,”  was approved by this court. O ther 
attorneys in the case for plaintiffs were awarded fees ranging 
from $35 to  $60. Oliver, 576 F.2d at 717 n .3. M r. Williams was 
awarded total fees o f $47,833 by this court arising from his ser­
vices to plaintiffs as lead counsel over approxim ately fifteen 
years in another school case with a similar appellate history, in­
cluding Supreme Court hearings. M onroe  v. Board o f  Com m is­
sioners o f  the City o f  Jackson, Tennessee, 581 F.2d 581 (6th 
Cir. 1978). See also M onroe  v. Board o f  Commissioners o f  
Education o f  M adison County, Tennessee, 583 F.2d 263 (6th 
Cir. 1976). The rates ultimately approved in those cases were 
less than those approved by Judge W iseman after the full hear­
ing conducted by him before m aking his decision.

I therefore depart from  the m ajority view that an increase in 
hourly rates or daily rates over and above that established in the 
reasonable discretion o f the trial judge, who is familiar with 
local practice and local fee rates, was m andated. The m ajority 
seems unm indful o f the Supreme C ourt’s advice:

We reemphasize that the district court has discretion in 
determining the am ount o f a fee award. This is ap­
propriate in view of the district court’s superior understan­
ding o f the litigation and the desirability o f avoiding fre­
quent appellate review of what essentially are factual m at­
ters.

Hensley, 461 U.S. at 437.

With the contingency factor added in this case, for service 
beginning in 1972, plaintiffs attorneys are also being rewarded 
on a substantially higher basis than were plaintiffs’ attorneys in 
Northcross and in Oliver. No added contingency factor at all 
was allowed in Hensley.

The concurring opinion o f Justice Brennan in Hensley, 461 
U.S. at 455, admonishes:



If a district court has articulated a fair explanation for 
its fee award in a given case, the court of appeals should 
not reverse or rem and the judgm ent unless the award is so 
low as to provide clearly inadequate compensation [em­
phasis added].

Finally, 1 would affirm  the trial judge in his holding that the 
May 30, 1972 order in this case was a type o f “ final order settl­
ing the issue o f attorney’s fees to  that p o in t.” Northcross, 611 
F.2d at 635. That order, as found by the district court, disposed 
o f all outstanding phases o f the case; it was a “ discrete step” 
deciding the then pending issues arising from the change in the 
law brought about by Breen v. School Board o f  N ew  Kent 
County, 391 U.S. 430 (1968). As in all substantial school 
desegregation cases of this type, including the Northcross case, 
the court retained jurisdiction for such implementation that ex­
perience and future changing circumstances might bring about. 
This did not prevent the 1972 order, affirm ed by this court, 
from being the kind of “ discrete step or distinct break in the 
proceedings” described in Northcross. It was a comprehensive 
order directing desegregation o f the m etropolitan school system 
from which both sides unsuccessfully appealed up to  the United 
States Supreme Court. There were no further substantial hear­
ings in this case until 1978, further evidencing that the district 
court was not clearly erroneous in making a factual finding to 
that effect and limiting the fee award in light o f that finding. It 
is abundantly clear that m ajor school desegregation cases of this 
kind may extend over many years, but that interim final orders 
may come about reflecting a distinct conclusion o f then pending 
issues, which in light o f the changes in applicable law, (such as 
Green, supra, and Swann v. Charlotte-Mecklenburg Board, 402 
U.S. 1 (1972)) may be revised to reflect current standards or 
new, unforeseen conditions.

In sum, I dissent because I believe Judge Wiseman acted fair­
ly and within the bounds o f his sound discretion and applied the 
law reasonably to the facts o f the case.

— A-28 —



A-29 —

A PPEN D IX  B

UNITED STATES COURT OF APPEA LS 
FOR TH E SIXTH CIRCUIT

Nos. 83-5175, 5243

Robert W. Kelley, et al., 
Plaintiffs-Appellants, Cross-Appellees,

vs.

M etropolitan County Board o f Education, et al. 
Defendants-Appellees, Cross-Appellants.

On Appeal from the United States District Court 
for the Middle District o f Tennessee.

Decided and Filed February 12, 1985

Before Edwards* and Krupansky, Circuit Judges; and 
Celebrezze, Senior Circuit Judge.

Krupansky, Circuit Judge. Plaintiffs Robert W. Kelley and 
the class he represents appealed and defendant M etropolitan 
County Board o f Education (Board) cross-appealed the district 
cou rt’s award o f attorney’s fees in this school desegregation 
case.

Commencing on the heels o f the landm ark case o f Brown v. 
Board o f  Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 
(1954), the instant case has spawned volumes o f court opinions 
and orders at both the district and appellate levels. These deci­
sions need not be recounted in detail here. See, e.g., Kelley v. 
M etropolitan County Board o f  Education, 687 F.2d 814 (1982); 
Kelley v. M etropolitan County Board o f  Education, 463 F.2d

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



A-30 —

732 (6th C ir.), cert, denied, 409 U.S. 1001 (1972); Kelley v. 
M etropolitan County Board o f  Education, 511 F.Supp. 1363 
(M .D. Tenn. 1981). Suffice to say that the litigation un­
doubtedly required hundreds o f hours o f work by the plaintiffs’ 
and B oard’s attorneys.

The plaintiffs’ initial m otion for attorney’s fees, pursuant to 
the Educational Amendments o f 1972, 20 U .S .C . § 1617, was 
filed on February 8, 1974. Subsequent filings amended the pen­
ding m otion to  include a prayer for relief under the 1976 Civil 
Rights A ttorney’s Fees Act, 42 U .S .C . § 1988. In December, 
1982, the trial court conducted hearings on the issue o f a t­
torney’s fees. On February 23, 1983, the court awarded plain­
tiffs’ fees and costs o f approximately $139,500 or less than ten 
percent o f the am ount requested.* 1 The discrepancy between the 
am ount requested and that awarded formed the basis o f plain­
tiff’s appeal.

Specifically, plaintiffs alleged error in the district cou rt’s 
refusal to award attorney’s fees for services rendered prior to 
1972, for declining to award fees for appellate services, and for 
abusing its discretion in calculating the daily and hourly rates of

1 In its motion for attorneys fees, plaintiff requested the following 
amounts for services rendered in the 28-year history of the case:

(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 per day, totaling $373,250 plus a 100 percent con­
tingency 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 con­
tingency factor for a total of $165,744.

An additional $126,000 was requested for work performed by Legal 
Defense Fund attorneys, but the denial of this request was not 
challenged on appeal.



— A-31 —

plaintiffs’ attorneys Avon Williams and Richard Dinkins. The 
defendant B oard’s cross-appeal challenged the district cou rt’s 
failure to discern the specific extent to which plaintiffs prevailed 
on each o f their claims, and in holding the Board liable for ser­
vices required by plaintiffs’ attorneys due to the intervention of 
third parties.

The district cou rt’s denial o f attorney’s fees for services per­
formed prior to 1972 was predicated on the court’s determ ina­
tion that a 1971 desegregation order, entered by the district 
court and approved by the Sixth Circuit, was a “ final o rder” 
which term inated entitlement to attorney’s fees under this 
court’s m andate in Northcross v. Board o f  Education o f  M em ­
phis City Schools, 611 F.2d 624 (6th Cir. 1979), cert, denied, 
447 U.S. 911 (1980).

In Northcross, supra, this court cautioned that although a t­
torney’s fees could be awarded retroactively for all desegrega­
tion cases pending a t the date o f § 1988’s enactm ent, such 
retroactive relief was not autom atic. The court stated:

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

611 F.2d at 635.

Based on the above guidance, the Northcross district court 
held on rem and that a 1966 consent order entered in the Mem­
phis school desegregation case constituted a final order, thus 
barring an award o f attorney’s fees for work completed prior to 
1966.

In the instant case, the court below concluded that the 1971 
order o f the district court, affirm ed in Kelley v. M etropolitan  
County Board o f  Education, 463 F.2d 732 (6th Cir.), cert.



— A-32 —

denied, 409 U.S. 1001 (1972), constituted a “ final o rder”  as did 
the 1966 consent decree at issue in Northcross. This court, 
however, is not persuaded by that conclusion.

The critical distinction between Northcross and the instant 
case is the nature o f the orders at issue. In Northcross, the 1966 
order was the result o f a consent decree, drafted by the parties 
and approved by the district court. No further litigation was 
contem plated by the parties at that time, and in fact neither p a r­
ty 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 result of 
an agreement drafted by the parties; to the contrary, the court 
expressly rejected the desegregation proposals submitted by the 
Board and the plaintiffs in favor o f a plan presented by the 
Departm ent o f Health, Education and Welfare (HEW ), an in- 
tervenor in the suit. Both the Board and the plaintiffs appealed 
the adoption o f the HEW  scheme. A nd in upholding the lower 
court’s sanctioning o f the HEW  plan, this circuit observed:

The order o f the District Judge is the first comprehensive 
and potentially effective desegregation 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 termina­
tion of the litigation. The plaintiffs have continuously sought 
modification of the 1971 plan and subsequent revisions by 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, concluding that “ [i]n 
large measure, the pupil assignment components of this plan do 
not withstand constitutional scrutiny.” K e lle y , su p ra , 687 F.2d 
at 824.



A-33 —

In view of the foregoing, the 1971 district cou rt’s adoption of 
the HEW  plan, and this court’s subsequent affirm ance in 1972, 
did not represent a distinct break in the litigation. Therefore, 
an award o f fees for legal services performed and accrued prior 
to 1972 is appropriate.

Plaintiffs have also challenged the trial cou rt’s refusal to 
award attorney’s fees for services rendered by their attorneys at 
the appellate level. Com pensation was sought, inter alia, for 
appellate work which culminated in this court’s 1972 and 1982 
Kelley opinions. See, 463 F.2d 732; 687 F.2d 814.

The court below predicated its denial o f compensation for the 
services perform ed by the attorneys in the appellate litigation on 
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982). In Buian, the 
court announced that the award o f costs to  a litigant pursuant 
to the Federal Rules o f Appellate Procedure was an absolute 
prerequisite to  the award o f attorney’s fees under § 1988 for ser­
vices perform ed at that level. As costs were not awarded by this 
court to plaintiffs in conjunction with their previous appeals, 
the district court, applying Buian, barred compensation for 
their attorneys’ services. However, this court is o f the opinion 
that the district court erred in retroactively applying Buian to 
the case at bar.

To determine whether a particular decision should be given 
retroactive effect, the test articulated in Chevron Oil v. Huson, 
404 U.S. 97, 106-107 (1971), must be applied. Under Chevron, 
a new decision should be applied to pending cases “ unless it 
represents a ‘clear break’ with the past and unless in addition it 
would be fundam entally unfair or otherwise burdensom e to ap­
ply i t .”  Casiano, Jr. v. Heckler, No. 83-3481 (6th Cir. Oct. 22, 
1984) {quoting, Lawson  v. Truck Drivers, Chauffeurs & 
Helpers, Local Union 100, 698 F.2d 250, 254 (6th Cir.), cert, 
denied, 104 S.Ct. 69 (1983)). Applying this criteria, it is clear 
that Buian should not be retroactively applied to deny compen­



A-34 —

sation for appellate work perform ed prior to 1982 by plaintiffs’ 
attorneys.2

Regarding the initial criterion o f the Chevron test, it is ob­
vious 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 services rendered at the 
appellate level. Buian, however, placed an additional burden 
on a litigant, i.e ., seeking and securing an award o f costs from 
the appellate court pursuant to Fed .R .A pp.P . 39, as an absolute 
prerequisite to receiving attorney’s fees under § 1988.3

As for the other criteria o f Chevron, this court concludes that 
it would be fundam entally inequitable to deny plaintiffs’ a t­
torneys compensation for appellate work perform ed prior to the 
pronouncem ents o f Buian in 1982 because plaintiffs failed to 
secure an award o f costs, which was a non-existent prerequisite 
prior to 1982. A contrafy disposition would completely under­
mine the purpose o f § 1988, which was designed to compensate 
attorneys whose efforts resulted in the vindication o f im portant 
constitutional rights. Northcross, supra. In sum, Buian is not 
applicable to  the case at bar for pre-1982 appeals and the trial

2 This court takes judicial notice that while at least one Kelley ap­
pellate decision was rendered the same year as Buian, see 687 F.2d at 
814, that appeal was argued on December 11, 1981. Thus, the ap­
pellate work for which plaintiffs seek compensation was undoubtedly 
substantially completed well before Buian was issued in September, 
1982.

3 The Buian court itself recognized the burden which its decision 
placed on the court as well as on a litigant. The court observd:

A special responsibility 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 ap­
peal will be denied where costs are not awarded.

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



A - 3 5

court erred in failing to award attorney’s fees for work related 
to those appeals.

In addition to  challenging the lower court’s exclusion o f time 
accrued for pre-1972 and appellate work, plaintiffs urge that the 
hourly and daily rates awarded by the lower court for legal ser­
vices rendered by Avon Williams and Richard Dinkins were in­
adequate. Com pensation at the rate o f $200 per hour and 
$1,500 per day in court was requested for Williams, and $120 
hourly and $1,500 per day sought for D inkins’ services. Subse­
quent to evaluating the prevailing rate charged by experienced 
and skillful lawyers in the Nashville area, the court below deter­
mined that the m arket rate in federal court litigation for an a t­
torney o f W illiams’ experience, ability and stature was $100 per 
hour and $1,000 per day o f trial. The rate for Dinkins, who was 
introduced into the case upon gaining admission to  the bar, was 
$60 per hour and $600 per day in court. The court also rejected 
plaintiffs’ prayer for a 100 percent contingency to compensate 
for the difficulty o f the prolonged litigation and its unpopulari­
ty in some sectors o f the community. The court then reduced 
the am ount 10 percent to account for duplication o f services 
and possible miscalculations in the attorneys’ reconstruction o f 
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 o f attorney’s 
fees. These factors include, inter alia, the time and labor re­
quired, novelty and difficulty o f the litigation, the customary 
fee, and the experience, reputation and ability o f the attorneys. 
In Northcross, supra, this court observed that Johnson  did not 
provide guidance as to the relative 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 
num ber o f hours expended on the case, will take into ac­
count all o f  the relevant factors and will lead to a



— A-36

reasonable result. The num ber o f hours o f work 
autom atically reflect the “ time and labor involved,”  “ the 
novelty and difficulty o f the question,”  and “ preclusion of 
other em ploym ent.”  The attorney’s normal hourly billing 
rate will reflect “ the skill requisite to perform  the legal ser­
vice properly ,”  “ the custom ary fee ,”  and the “ experience, 
reputation and ability o f the atto rney .”  Adjustm ents up­
ward may be made to  reflect the contingency o f the fee, 
unusual time limitations and the “ undesirability” o f the 
case.

611 F.2d at 642-43.

Fairly read, Northcross advises tha t the attorney’s normal 
hourly billing rate should be a key focal point in award deter­
m inations. In the recent case o f Blum  v. Stenson, ____ U.S.
____ , 104 S.Ct. 1541 (1984), the Supreme Court further in­
structed that “ reasonable rates”  are to be determined under § 
1988 “ according to the prevailing m arket rates in the relevant 
com m unity.”  104 S.Ct. at 1547.

In contesting the $100 per hour award to Williams, plaintiffs 
cited testim ony adduced at the hearing on the m otion for fees 
evincing (1) W illiams’ reputation as an experienced and suc­
cessful civil rights lawyer; (2) that “ customary fees”  for similar 
work in the Nashville area ranged from  $100 to $200 an hour; 
(3) that W illiams’ hourly fee for office work was $120; and (4) 
that the unpopularity o f the case has resulted in threats against 
Williams. Testimony that the standard fee for someone of 
Dinkins’ stature was $65 to  $130 an hour was also cited to sup­
port plaintiffs’ contention that Dinkins’ award was inadequate. 
In addition, plaintiffs recounted the unpopularity and length of 
the litigation in arguing that the contingency fee should be 
higher than the 25 percent awarded by the court below.

Considering in tandem  the pronouncem ents o f the Supreme 
Court and Sixth Circuit delineating the correct m ethod for 
calculating attorney’s fees, this court concludes that Williams



is entitled to  at least a minimum rate o f $120 per hour. This 
am ount is a reasonable point o f departure in calculating 
W illiams’ hourly rate in accordance with prevailing Supreme 
Court and this circuit’s directions and is within the param eters 
o f the evidence that “ custom ary fees’’ for similar work in the 
Nashville area ranged between $100 and $200 an hour. The 
award to Dinkins m ust also be reconsidered using as a minimum 
point o f departure an am ount o f $65 per hour as the prevailing 
value o f his skills in the Nashville legal community. The daily 
(in court) rate for Williams and Dinkins should also be upgrad­
ed to at least $1,200 and $650 respectively.

The lower court’s overall reduction o f fees by 10 percent for 
duplication o f services is justified under the holdings of 
Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979) and 
Oliver v. Kalamazoo Board o f  Education, 576 F.2d 714, 715 n.2 
(6th Cir. 1976) (per curiam). In addition, the Supreme Court 
recently approved a 30 percent overall reduction in a case, like 
the one at bar, where the attorneys failed to keep contem ­
poraneous time records and thus had to reconstruct them from
memory. See Hensley  v. E ckerhart,____ U .S .------- , 103 S.Ct.
1933, 1939 (1983). However, the reduction in Hensley was also 
designed to  compensate for the attorney’s inexperience. Thus, 
the 20 percent reduction in the instant case is reasonable and 
should not be disturbed.

Plaintiffs also challenged the district cou rt’s refusal to award 
fees for the two days and seven hours plaintiffs’ attorneys a t­
tributed to  discussions with Dr. Scott, the plaintiffs’ witness at 
the 1979 and 1980 hearings. The court’s opinion was based on 
its finding that Dr. Scott’s testimony was frivolous under Nor- 
thcross, supra, 611 F.2d at 636, in light o f plaintiffs’ repudia­
tion o f much o f Dr. Scott’s testimony after the court had adm it­
ted it. The district cou rt’s conclusion in this respect is proper.

In its cross-appeal, the defendants alleged that the trial court 
erred in failing to  exclude fees for services rendered by plain­

— A-37 —



— A-38

tiffs’ attorneys arising from  claims and proceedings stemming 
from  the intervention or joining o f other parties. These “ o u t­
side”  parties were:

1. The M etropolitan (Nashville/Davidson Co.) Mayor 
and Council, which plaintiffs joined as defendants in 
1972. (Plaintiffs prevailed in their effort to enjoin 
these defendants from  interfering with the desegrega­
tion 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 o f otherwise unidentified “ intervenors”  who 
proposed a desegregation plan to the district court in 
1979.

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

The defendant Board further noted that it vehemently oppos­
ed the intervention of the third and fourth group o f intervenors 
listed above.

Plaintiffs responded to the B oard’s argum ent on this issue by 
observing that it was the B oard’s failure to dismantle its dual 
school system that occasioned the intervention and prolonged 
the litigation in this lawsuit.

Defendants relied primarily on Haycraft v. Hollenbach, 606 
F.2d 128 (6th Cir. 1979) (per curiam) for the proposition that 
plaintiffs should look to the intervenors, rather than the defen­
dant, for expenses occurred as a result of the intervention. 
However, Haycraft is distinguishable from  the instant case in 
several im portant respects.

In Haycraft, L. J. Hollenbach, a county judge o f Jefferson 
County, Kentucky, intervened on behalf o f “ all the people of



A-39 —

Jefferson C ounty” in a desegregation case pending in federal 
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 intervenor pursuant to 
the Emergency School Aid Act o f 1972, 20 U .S .C . § 1617. In 
granting the order, the district court held the $11,312 award 
against the intervenor appropriate, as plaintiffs would have sav­
ed countless hours were it not for the intervenor. On appeal, 
this circuit affirm ed 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 H ay craft 
was predicated on the court’s finding that the intervenor 
obstructed rather than aided in the development o f 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 interfered 
with the progress o f the litigation, and thus plaintiffs would not, 
under the H ay craft analysis, be entitled to  rem uneration from  
the intervenors. The question remains, o f  course, whether the 
plaintiff is entitled to attorney’s fees fro m  the Board  for the ex­
tra  time which the plaintiffs’ counsel devoted to issues raised by 
the intervenors.

There appears to  be no case law which directly resolves this 
issue. Com m on sense dictates that the Board should not be held 
liable for the costs plaintiffs incurred in seeking an injunction 
against the M etropolitan Mayor and Council, as that group was 
itself a third-party defendant, unrelated to  the Board. Thus, if 
any party is liable for those expenses, it would be the 
M etropolitan 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 desegregation plan in 
1979, and the advocates o f the magnet school) plaintiffs’ argu­



A - 4 0  —

m ent that the B oard’s failure to  dismantle its dual school system 
caused the intervention is persuasive. Thus, plaintiffs are entitl­
ed to  com pensation from  the Board for all legal services except 
those resulting from  plaintiffs’ addition o f the M etropolitan 
M ayor and Council as third-party defendants.

D efendant’s final argum ent on cross appeal was that the 
court erred in not determining the specific extent to which plain­
tiffs had prevailed in the action. The defendant contended that 
while the cou rt’s focus on the “ overall results”  o f the case was 
sufficient to  satisfy the “ prevailing party”  requirement as defin­
ed by this circuit in Northcross, supra, a recent Supreme Court 
decision has changed the standard. Defendant cites Hensley v. 
E ckerh a rt,____ U .S______ _ 103 S.Ct. 1933 (1983) for the p ro ­
position that the Northcross approach has been modified, and 
that awards under § 1988 now require that a party ’s request for 
attorney’s fees be carefully scrutinized as to the extent o f success 
on each claim, and further, that time spent on unsuccessful 
claims that are distinct from  successful claims should be exclud­
ed in determining a reasonable fee.4 Thus, defendant suggested 
that under the m andate o f Hensley, the case should be rem and­
ed 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 o f all per­
sons involuntarily confined at the Forensic Unit o f the Fulton 
State Hospital in Missouri. The complaint challenged the treat­
ment and conditions at the Forensic Unit as presenting a wide 
variety o f alleged constitutional infringements. The court 
found constitutional violations in five o f six general areas cited 
in plaintiffs’ complaint: physical environment; individual trea t­

4 Specifically, defendant alleged that plaintiffs have been erroneous­
ly awarded fees for time spent pursuing unsuccessful charges of con­
tempt against the Board, yet unresolved matters as to faculty composi­
tion, and their effort to keep Pearl High School open.



— A-41 —

m ent plans; least restrictive environment; visitation, telephone 
and mail privileges; and seclusion and restraint. However, it 
found the sixth general area, staffing, to be sufficient. 103
S .Q . at 1936.

In ruling on an attorney’s fees m otion, the Hensley district 
court first determined that plaintiffs were prevailing parties 
even though they had not succeeded on all six claims, and fu r­
ther refused to  eliminate from the award hours spent on the un­
successful claim. The Supreme Court reversed and rem anded, 
reasoning that two questions must be addressed when a m otion 
for attorney’s fees is presented in a case involving num erous 
claims: (1) did the plaintiff fail to prevail on claims that were 
unrelated to  the claims on which he succeeded?; and (2) did the 
p laintiff achieve a level o f success that makes the hours 
reasonably expended a satisfactory basis for m aking 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 party”  issue by this circuit in Northcross. Rather, 
the Hensley  court noted that in some cases, the litigation cannot 
be “ viewed as a series o f discrete claim s.”  Id. In such a case, 
the Court states, the overall result will still be the prim ary factor 
in determining attorneys fees.

The Hensley court instructs:

M any civil rights cases will present only a single claim. In 
other cases the p lain tiff’s claims for relief will involve a 
comm on core o f facts or will be based on related legal 
theories. M uch o f counsel’s time will be devoted generally 
to  the litigation as a whole, making it difficult to divide the 
hours expended on a claim-by-claim basis. Such a lawsuit 
cannot be viewed as a series o f discrete claims. Instead the 
district court should focus on the significance o f the 
overall relief obtained by the plaintiff in relation to the 
hours reasonably expended on the litigation.

103 S.C t. at 1940.



A-42 —

On rem and, the district court m ust follow the m andates o f 
Hensley as explicated above.

In sum, this court finds the am ounts awarded by the lower 
court inadequate.5 This case is therefore rem anded to the 
district court with instructions to  award fees for services per­
formed by plaintiffs’ attorneys prior to 1972; award fees for ap­
pellate work; reevaluate the hourly rate to  be awarded to 
Williams and Dinkins in accordance with the direction o f this 
decision; reevaluate the court time for Williams and Dinkins 
with a minimum departure point o f $1,200 and $650 respective­
ly; decrease the award for the time spent by plaintiffs’ attorneys 
to bring in the city government as a third party defendant; 
follow the m andate o f Hensley, supra, to  determine which 
claims plaintiffs have succeeded upon and those which they 
have not, and to  calculate the attorneys’ compensable hours ac­
cordingly; allow a 25% increase as a contingency factor; and 
decrease the overall award by 10% for duplication o f services 
and the reconstruction o f time records from  memory.

In view of the foregoing this case is Reversed and Remanded. 
Costs awarded to  plaintiffs.

5 This court also notes that the entire amount awarded to plaintiffs’ 
attorneys for 28 years of service in this case was less than one-half of 
the $288,000 which the Board paid its attorneys to defend against the 
litigation in just one five-year period, i.e. 1978-1982.



— A-43

A PPEN D IX  C

Robert W. Kelley, et al.,
Plaintiffs,

v.

M etropolitan County Board of 
Education of Nashville and 

Davidson County, Tennessee, et 
al.,

Defendants.

Nos. 2094, 2956

United States District Court,
M .D. Tennessee,

Nashville Division.

Feb. 23, 1983.

M EM ORANDUM  

W ISEM AN, District Judge.

I. Background

This lawsuit to compel desegregation o f the Nashville school 
system was originally filed in 1955. The long history of this 
litigation is summarized in Kelley v. M etropolitan City Board o f  
Education, 492 F.Supp. 167, 168-78 (M.D. Tenn.1980), and 
need not be repeated here. The current phase o f 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 contem pt against defendant 
school board. The pupil assignment plan took precedence, by 
agreement o f the parties, leaving the three other issues to be 
resolved at a later date. This Court held hearings on the rem ain­
ing three issues on December 6, 7, and 8, 1982, at which time the 
parties reached a consent agreement on the question o f teacher 
and staff assignments.



_  A-44 —

Plaintiffs now seek an award o f 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 o f this 
lawsuit, Williams teamed with his form er law partner, M r. Z. 
Alexander Looby. Since 1977, Williams has been joined by his 
associate, M r. Richard H. Dinkins, in this m atter. No 
attorney’s fees have ever been awarded in the history o f this 
litigation.

II. Preliminary matters

A. Applicability o f  the Civil R ights A tto rn e y ’s Fees A c t

Defendant school board has not contested plaintiffs’ claim 
that the Civil Rights A ttorney’s Fees Act o f 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 a t­
torney’s fees as part o f the costs. The Act applies to all cases 
pending on the date o f its enactment. H utto  v. Finney, 437 U.S. 
678, 695 n. 23, 98 S.Ct. 2565, 2575, n. 23, 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 final­
ly resolved. So long as there was an active controversy in 
the case at the time the Act became effective, the Act ap­
plies to authorize fees for the entire case, unless special cir­
cumstances exist which would make an award manifestly 
unjust.

Northcross v. Board o f  Education o f  M em phis City Schools, 
611 F.2d 624, 634 (6th Cir.1979), cert, denied, 447 U.S. 911, 100 
S.Ct. 2999, 64 L .Ed.2d 862 (1980).1

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 ad­
dressed infra.



— A-45

In Weisenberger v. Huecker, 593 F.2d 49 (6th Cir.1979), the 
merits o f the case were resolved well before passage o f the Act, 
but the application for attorney’s fees had not been resolved 
when the Act became effective. The Sixth Circuit held that 
“ [sjince 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.

In this case, plaintiffs requested fees in m otions dated 
February 8, 1974, April 11, 1975, and October 16, 1975. Those 
m otions, and other im portant m otions including substantive 
issues, were pending when the Act took effect in 1976. Thus, 
Weisenberger and Northcross govern, and, as a threshold ques­
tion, the Act applies

B. Prevailing party

As a preliminary m atter, 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 plain­
tiffs have never submitted a desegregation plan which has been 
implemented by the Court.

D efendants’ position appears to be an overly narrow ap­
proach 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 im portant rights through a consent 
judgm ent or without formally obtaining relief.

Northcross, supra, at 633.

Adhering to the Sixth Circuit’s m andate to  look at this ques­
tion in practical terms, it is clear that plaintiffs in this case are 
the prevailing party in this litigation. Plaintiffs have clearly



A-46 —

prevailed as to the basic holding o f this Court throughout the 
twenty-seven year course o f this case that some type o f court- 
ordered remedy was necessary to alleviate the effects o f prior de 
ju re  segregation.

Furtherm ore, it is not necessary for plaintiffs to have prevail­
ed on every single legal position or argument asserted. To the 
contrary, plaintiffs are entitled to fees for “ all time reasonably 
spent on a m atte r.’’ 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, re­
jected by the court, or m ooted 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 compensa­
tion for hours expended on unsuccessful research or litiga­
tion, unless the positions asserted are frivolous or in bad 
faith. There are num erous practical reasons why a court 
may not be perm itted to dissect a lawsuit into “ issues and 
parts o f issues as to  which the plaintiffs did not prevail,” 
especially by decimating the total hours claimed with ar­
bitrary percentages. Suffice it to say, however, that C on­
gress has m andated 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 m atter.”  We know o f no “ traditional”  
m ethod of billing whereby an attorney offers a discount 
based upon his or her failure to prevail on “ issues or parts 
o f issues.”  Furtherm ore, it would hardly further our m an­
date 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 m andate 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 desegrega­



—  A - 4 7  —

tion remedy o f broader scope and faster pace than was 
ultim ately  adop ted  canno t be considered to  be 
unreasonable. Their clients have prevailed; the Memphis 
school system is desegregated.

Id. This approach was recently reaffirm ed by the Sixth Circuit. 
Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) at 862. N or­
th cross also allowed fees to be awarded for time spent litigating 
the fees question itself. Northcross, supra, at 643.

Thus, plaintiffs have prevailed and are entitled to fees for all 
time reasonably spent on m atters involved in this case.

III. Com putation o f  H ours and Fees

A. P la in tiffs’ Request

Messrs. Williams and Dinkins have filed affidavits wherein 
they reconstruct their time spent on this lawsuit. A lthough 
Williams and Dinkins have not kept contem poraneously m ain­
tained records, they claim that the reconstruction adequately 
represents the services which they have perform ed. Plaintiffs 
request fees in the following amounts:

(1) Avon Williams, for the firm o f 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 o f 
$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 o f $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 o f $165,744;

(4) N orm an J. Chachkin, for the Legal Defense Fund, 43 
hours at $200 per hour, totaling $8,600, plus a 100 percent con­
tingency factor for a total o f $17,200;



_  A-48 —

(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 o f $62,192;

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

In awarding fees, a district court is not compelled to accept 
autom atically all the hours claimed, but any reductions must be 
clearly identified and the reason for dis-allowing claims must be 
articulated. Northcross, supra, at 636-37. This Court will a t­
tem pt to do just that.

B. The “Final Order” Question

At the outset o f the hearings held in December 1982, this 
Court made two rulings from the bench in order to  limit the 
p roof 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 affirm ed the desegregation plan 
entered by this Court in 1971. 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 o rder” question, one o f 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 o f fees for services rendered prior to that date. 611 F.2d 
at 635. A fter 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 o f attorney’s fees 
must be made in all school desegregation cases. Certain in­
terim aspects o f  the cae m ay have been subject to a fin a l  
order settling the issue o f  a ttorney’s fees  to that point, 
rendering the reopening o f  long-settled aspects o f  the case 
unfair.



— A-49

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 pronouncem ents 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 ac­
tion of July 29, 1966, the last action before the Supreme 
C ourt’s Green [v. County School Bd., 391 U.S. 430, 88 
S.Ct. 1689, 20 L .Ed.2d 716] decision, was a “ consent 
o rder”  which undertook to dispose of all outstanding 
phases o f the case, including fees and costs. It is true that a 
long, complicated case o f this sort can result in several 
“ final”  orders, which in the interests o f finality are deem­
ed to dispose o f all foregoing issues. Absent a timely ap­
peal, a party is bound by the order and any later challenge 
is deemed to be a collateral attack judged by different, and 
m ore stringent standards than  on direct review. Bradley [v. 
School Bd. o f  Richmond}, supra, 416 U.S. [696] at 710-11, 
94 S.Ct. 2006 [at 2015-16, 40 L .Ed.2d 476]. If  the defen­
dants are correct in their characterization o f the 1966 ac­
tion in the interest of finality, plaintiffs should not be per­
mitted to reopen that judgm ent in order to obtain a t­
torneys’ fees. We leave this m atter to the district court. 
However, from  1968 until shortly before the application 
for fees was made by the plaintiffs, the case was in con­
tinuous, active litigation. Not only was there no “ final 
judgm ent”  which could reaonably be said to settle the 
issue of fees during that period, but there was no time to 
raise the m atter of fees at all.

Id.

On rem and, the district court denied plaintiffs’ request for 
fees for services rendered prior to 1968. Northcross v. Board o f



A-50 —

Education o f  M em phis City Schools, Civil Action No. 3931, 
January 14, 1982 (W.D. Tenn.). Judge McRae gave the follow­
ing explanation:

The Court finds that the services expended on the po r­
tion of the case occurring prior to  the filing on 26 July 1968 
of p laintiff’s m otion for further relief should be denied. A 
plan o f 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 p ro ­
ceedings 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 o f any evident intention o f these parties to litigate that 
plan further, but was the direct result o f subsequent 
Supreme Court decisions in the case o f Green v. County  
School Board o f  N ew  Kent County, Virginia, 391 U.S. 430 
[88 S.Ct. 1689, 20 L .Ed.2d 716] (1968), and its companion 
cases which represented very significant new development 
in the law pertaining to  school desegregation. This case at 
bar is similar to the case of Wheeler v. Durham City Board  
o f  Education, 585 F.2d 618 (4th C ir. 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 o rder,”  disposing o f all issues at 
that time, contemplated by Northcross. This Court holds that 
the order o f the Sixth Circuit on May 30, 1972, upholding the 
1971 plan adopted by Judge M orton, was such a final order.

Plaintiffs have argued that the 1972 order was not a N or­
thcross style “ final order” because:



— A-51

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

(2) the district court specifically retained jurisdiction;

(3) the plan ws affirm ed with the Sixth Circuit observing that 
m atters regarding implem entation could “ be brought to  the 
District Judge’s attention when the case is back before h im .” 
Kelley v. M etropolitan Cty. Bd. o f  Education, 463 F.2d 732 at 
746;

(4) there were further proceedings in 1971-72 in which the 
Board was allegedly adjudged to have engaged in bad faith im­
plem entation;

(5) plaintiffs continued to seek more effective desegregation 
and relief for the transportation burden placed on younger 
black students (Reply o f Plaintiffs to Petition o f Defendants fil­
ed on July 18, 1972, filed August 10, 1972), but those requests 
were not heard by the Court until 1978; and

(6) defendants sought m odifications of the 1971 plan and 
those requests were also not heard until 1978.

Defendants rely heavily on Judge M cRae’s opinion in Nor- 
thcross after the Sixth Circuit rem anded the case to him to 
determine whether the 1966 plan in that case was a “ final 
o rder.”  The Board stated that the 1972 order in Kelley, like the 
1966 order in Northcross, disposed o f all outstanding phases of 
the case, including fees and costs. Citing language from  N or­
thcross, the Board calls the 1972 order a “ discrete step”  which 
constitutes a final order and precludes a retroactive award of a t­
torney’s fees. Furtherm ore, the Board claims that the 
precipitating factor for the 1972 order was Green v. School 
Board o f  N ew  K ent County, 391 U.S. 430, 88 S.Ct. 1689, 20 
L .Ed.2d 716 (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



— A-52 —

here. A n order entered by any court is no less “ final” simply 
because one or more o f the parties may have lingering doubts 
about the conclusion reached by the court. Nor is this C ourt’s 
immediate decision altered by the fact that this court in 1971 ex­
pressly retained jurisdiction in the case. Where equitable relief 
is sought, a court will often retain jurisdiction to oversee the 
remedy and m onitor its efficacy.

Plaintiffs’ claim that no final order was entered because the 
Sixth Circuit stated that matters involving implem entation 
could be brought to the District C ourt’s attention also fails to 
support plaintiffs’ position. By focusing on the implementation  
o f 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 implem entation to 
be addressed.

Finally, plaintiffs argue that the 1972 order left open the 
question o f 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 
C ourt’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 transporta­
tion o f black students in grades 1-4 to outlying schools, 
paralleled by the cross-transportation o f white students in 
grades 5-6. In this regard the HEW  plan appears to follow 
the pattern o f the school plan approved in Swann. Swann 
v. Board o f  Education, supra, 402 U.S. [1] at 10, 91 S.Ct. 
1267 [at 1273], 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 ra­
tionale for it. We do not believe, however, that we can ap­



A-53

propriately hold that the District Judge abused his discre­
tion 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 o f 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 o f 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 o rder”  and that “ plaintiffs should not 
be perm itted to reopen that judgm ent in order to obtain a t­
torneys’ fees.”  Northcross, supra, 611 F.2d at 635.

P lain tiffs’ reliance on M onroe  v. Board o f  Commissioners o f  
Jackson, 581 F.2d 581 (6th Cir. 1978) does not alter this C ourt’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. M onroe, supra, at 582. This 
Court will not follow plaintiffs’ reading o f M onroe  for two 
reasons. First, M onroe  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



— A-54

one o f the most thorough and comprehensive opinions on the 
award o f fees under section 1988. Insofar as a plausible reading 
of M onroe  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 im­
portant. In this regard, M onroe  can be distinguished from  the 
instant case because the 1972 order of the Sixth Circuit in 
M onroe  which approved the $5,000 fee award was clearly not a 
“ final o rder,”  whereas the instant case did have a “ final order” 
entered (coincidentally, in 1972).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 o f Looby and Williams, and 550.7 
hours and 44 days for work perform ed solo by Williams bet­
ween 1969 and May 30, 1972. The total am ount disallowed here 
comes to 1,468.5 hours and 80.4 days.

2 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 con­
clusion 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.



A-55

C. Fees fo r  Appellate W ork

Plaintiffs have included in their request for fees am ounts 
representing work perform ed at the appellate level. At the hear­
ings on the fee issue, this Court ruled that it would not entertain 
requests for fees for appellate work, relying on Bulan v. 
Baughard, 687 F.2d 859 (6th Cir.1982). There, the Sixth Circuit 
held that

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

Id., at 861.

Plaintiffs have encouraged this Court to adopt a narrow 
reading o f Bulan, but, due to the lack o f any limiting language 
in the opinion itself, this Court cannot adhere to  plaintiffs’ 
itnerpretation. In fact, the Bulan opinion contains clear and 
broad statements which this Court will follow unless subse­
quently ordered otherwise. The Sixth Circuit in Bulan stated:

It is the duty o f 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 
C ourt’s m andate for the District Court to  award attorney’s 
fees as part o f the costs under section 1988 because the par­
ty prevailed on the case as a whole but was not awarded 
costs on appeal.

Id. at 862. (emphasis added).

Bulan went on to say:

In summary, we read section 1988 as requiring that a t­
torney’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



A-56 —

district court, the court o f appeals, and the Supreme 
Court.

Id.

This distinction between the district courts, the court of ap­
peals, and the Supreme Court is jurisdictional in nature, accor­
ding to Buian:

Cost determinations are m ade at three levels: the district 
court, the court o f appeals, and the Supreme Court. Each 
court has jurisdiction to  make de novo  awards of costs on­
ly for proceedings within its jurisdiction.

Id. at 861.

Thus, because section 1988 permits an award o f attorney’s 
fees “ as a part o f the costs,”  H utto  v. Finney, 437 U.S. 678, 
679, 693-99, 98 S.Ct. 2565, 2568, 2574-78, 57 L .Ed.2d 522 
(1978), this Court cannot, according to  Buian, award fees for 
appellate work. Plaintiffs m ust petition the Court o f 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 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 861.

Consequently, plaintiffs’ request will be reduced by the 
number o f 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 o f M r. Bill 
Lann Lee, who worked only on appeals, is denied in its entirety. 
As for Norm an Chachkin, only 10 hours o f his work was per­
formed 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 plain­
tiffs’ fee requests which will be addressed herein.



— A-57 —

Services Rendered by Mr. Looby

The School Board argues that because the estate o f Z. Alex­
ander Looby was closed on November 22, 1972, there is no enti­
ty or person remaining to receive compensation for services per­
formed by Looby. M oreover, the Board states that plaintiffs 
did not submit a breakdow n of what services M r. Looby per­
form ed, and therefore, the hours representing work done by 
M r. Looby and M r. Williams should be reduced by one-half. 
The position o f 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 m atters involving 
intervening parties, amicus curiae, or third parties, and not the 
Board o f E ducation .3 Defendants argue that they are not 
responsible for the conduct o f these parties, and time spent on 
those m atters should be disallowed as part of plaintiffs’ fee re­
quest as against the Board. A lthough the defendants did not ex­
ercise control over these particular facets o f the litigation, the 
congressional intent behind the Act militates against adhering to 
defendant’s approach. Congress has m andated that a prevailing 
party ’s attorney should be compensated by a fee-paying client, 
for all time reasonably expended on a m atte r.”  Northcross,

3 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.



— A-58 —

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 o f the plaintiffs’ a t­
torneys in this action. Thus, the hours spent on these m atters 
shall be included in the award.

Fees fo r  Time Spent with Consultants

Next, defendants question fees claimed for preparation with 
two consultants, Dr. Hugh Scott and H G H Associates. Defen­
dants point out that H G H  Associates proposed a desegregation 
plan which was never approved, either at the trial or appellate 
levels. However, it is no t proper for this Court to dissect this 
lawsuit into “ issues and parts o f issues as to which plaintiffs did 
not prevail.”  Northcross, supra, at 636. The fees claimed for 
time spent with H G H  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, p laintiffs’ expert witness. Fur­
ther, defendants point out that this C ourt’s plan, as adopted in 
1981, was based in a significant measure upon the testimony of 
Dr. Scott, only to  have the plaintiffs subsequently alter their 
position. In essence, plaintiffs rejected the testim ony 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 o f 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 ex­
pended on unsuccessful research or litigation, unless the 
positions asserted are frivolous or in bad faith.



— A-59 —

Northcross, supra, at 636. Assuming that standard applies in 
this instance as well, p laintiffs’ utilization and subsequent 
repudiation o f Dr. Scott was frivolous, at best. P laintiffs’ re­
quest 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 am ount deducted here am ounts to two days and three hours 
for M r. Williams and four hours for M r. Dinkins.

“ Unreasonable and Excessive” Requests

Defendants have sifted through the affidavits o f p laintiffs’ 
counsel and registered specific line-item objections to  the 
am ount o f hours claimed for specific tasks perform ed. On a 
more general level, defendants seek an across-the-board percen­
tage reduction for duplication o f effort am ong defense counsel 
and the fact that the request for fees was based on reconstructed 
time records. On the latter topic, defendants argue that plain­
tiffs’ 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 for reconstruc­
tion, based on the figure utilized by the district court in Heig/er 
v. Gatter, 463 F.Supp. 802 (E .D .Pa.I978). Further, defendants 
argue for a ten percent reduction due to duplication o f effort 
among the several attorneys for the plaintiffs, citing 
Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir.1979); Oliver 
v. Kalamazoo Board o f  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 o f reconstructed time records. See N or­
thcross, supra, at 636-637. A  ten percent reduction here ap­



— A-60

pears reasonable.4 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 o f ser­
vice provided is the preferred approach to this request. 611 F.2d 
at 636. The level o f com pensation should represent the fair 
m arket value o f the services provided, and despite defendants’ 
arguments to the contrary, current hourly rates should be ap ­
plied to plaintiffs’ request, even for work perform ed some ten 
years ago. This m ethod avoids the problem of taking proof to 
ascertain the fair m arket value o f the services in prior years and, 
more im portantly, takes inflation into account.

This Court has taken extensive p roof regarding the prevailing 
rate charged by experienced and skillful trial lawyers in this 
region. From this proof, it appears that the prevailing m arket 
rate in federal court litigation for an attorney of Mr. W illiams’ 
experience and skill is $100 per hour for office work and $1,000 
per trial day. A resonable rate in this community for Mr. 
Dinkins, who began working on this case upon gaining admis­
sion to  the Bar five years ago, is $60 per hour and $600 per trial 
day.

4 A 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 per­
cent reduction for reconstructed time as well as defendants’ objections 
as to padding. Second, some, but not all, of the duplication here oc­
curred between local counsel and those attorneys hired for appellate 
purposes. This Court has already ruled that it cannot entertain plain­
tiffs’ request for appellate fees and consequently, that duplication 
cannot be considered here. Thus, a total reduction of ten percent ap­
pears to be an appropriate response to defendants’ objections as to 
padding, duplication, and the use of reconstructed time records.



A-61 —

Plaintiffs request that a contingency factor o f 100 percent be 
applied to these rates, due in part to the difficulty o f this pro­
longed litigation and its unpopularity in some sectors o f the 
com m unity.5 An upward adjustm ent o f some type is ap­
propriate here. See Northcross, supra, at 638-39. However, the 
Court concludes that a contingency factor o f 25 percent will 
serve the purpose o f the Fees Award Act, i.e ., to  attract compe­
tent counsel by awarding adequate compensation. W ith this up­
ward adjustm ent o f 25 percent, the effective hourly rate will be 
$125 for M r. Williams and $75 for M r. Dinkins. The daily rate 
for trial time will be $1,250 and $750, respectively.

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

M r. Williams (individually):

less
1,221.5 hrs. 

550.7 hrs.
87.3 days (amount requested)
44.0 days (pre May 30, 1972 work)

less
660.8 hrs.
115.8 hrs.

43.3 days
5.0 days (appellate work)

less
545.0 hrs. 

3.0 hrs.
38.3 days

2.0 days (time spent with Dr. Scott)

less
542.0 hrs. 
54.2 hrs.

36.3 days
3.63 (10% across the board reduction)

— 487.8 hrs. 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

5 Defendants argue that no contingency factor should be applied 
because the defendants stipulated at the very beginning of this litiga­
tion 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.



A-62 —

Mr. Dinkirs:
215.6 hrs. 38.0 days (amount requested)

less 17.5 hrs. 2.0 days (appellant 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 (107r 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 .C iv.P ., and Rule 13 o f the Local Rules o f Court.

Included in plaintiffs’ request are costs involved with plain­
tiffs’ appeal o f this C ourt’s 1981 decision to  the Sixth Circuit 
Court o f Appeals. The Sixth Circuit affirm ed this C ourt’s opi­
nion in part, reversed in part, and rem anded for further pro­
ceedings. 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 incur­
red on that appeal has already been denied, and cannot be 
granted by this Court. This eliminates all o f  the costs incurred 
by M r. Lee, and those expenses incurred by M r. Williams after 
April 17, 1981, the date o f this C ourt’s order.

P laintiffs’ Bill of Costs also contains items which traditional­
ly are not taxable as costs under Rule 54(d). These include ex­
penditures for postage, telephone calls, photocopying, and 
meals. See 10 W right, Miller & Kane, Federal Practice and Pro­
cedure: Civil 2d § 2677 at 370-373 (1983). Certain o f the expen­
ditures are taxable, however, under section 1988. The Sixth Cir­
cuit in Northcross held that



A-63 —

[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 o f providing legal services. Reasonable 
photocopying, paralegal expenses, and travel and 
telephone costs are thus recoverable pursuant to  the 
statutory authority  o f § 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 o f this C ourt’s order. As stated earlier, plaintiffs 
were ordered to  bear their own costs on the appeal. The am ount 
taxed as costs here am ounts to $361.28, based on the affidavit 
o f M r. Williams. Meal expenses incurred by M r. Williams are 
disallowed, as are the undocum ented expenses o f M r. Dinkins, 
listed in the am ount o f $144.87.

Turning now to costs relating to  expert witnesses, fees paid to 
Dr. Scott and H G H  Associates to retain their consulting services 
are not to be taxed against defendants. Normally, Dr. Scott’s 
expenditures for travel, subsistence, and overnight accom m oda­
tions would be taxable pursuant to 28 U .S .C . § 1821. However, 
“ the award o f statutory costs is a m atter for the district court, in 
its best judgm ent as to  what was reasonable and necessary.”  
Northcross, supra, at 640. For the reasons stated earlier regar­
ding the recovery o f a ttorney’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 ex­
penses against defendants. Plaintiffs will not be heard at this 
juncture to  claim that Dr. Scott’s testimony was “ relevant and 
m aterial”  or “ reasonably necessary”  to support the position 
taken by the plaintiffs in this litigation. See 6 M oore’s Federal 
Practice f  54.77[5.-l] (2d ed. 1982) and cases cited therein.



A-64 —

In all other respects, plaintiffs’ request for costs shall be 
denied. Costs in the am ount of $361.28 shall be taxed against 
defendants.

V. Contempt

The remaining issue to be resolved at this time is plaintiffs’ 
petition for contem pt, filed December 27, 1976, and amended 
August 28, 1978. The gravamen o f the petition is that defen­
dants have intentionally engaged in a course of conduct which 
violated this C ourt’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 o f por­
tables any schools that served less than fifteen percent black 
students after implem entation o f 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, 
M aplewood, Overton, and Stratford High Schools, and by p ro­
posing to build a Goodlettsville-M adison Comprehensive High 
School.

The Board contends that none of the acts alleged to be viola­
tions o f the 1971 order actually constituted proscribed activity 
under the restrictions imposed by the Court. M oreover, the 
Board states that it diligently notified the Court and counsel for 
plaintiffs regarding any changes in the school system, even when 
the B oard’s attorney found that the changes were not o f the 
type requiring prior judicial approval.

Regarding the use o f 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 hav-



— A-65 —

ing fifteen percent black students under the plan as im­
plem ented, or in elementary schools to  perm it the opening o f 
kindergartens. Finally, the Board points out that it petitioned 
this Court on May 30, 1973, for explicit approval o f the plan to 
use portables in this m anner. 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 o f a form al pleading. In im­
plementing this change, the Board claims that it relied on the 
precedent o f a 1972 ruling by this Court approving the use o f 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 o f closed, existing 
buildings to relieve over-crowding.

Turning now to the B oard’s decision to  expand certain high 
schools, the Board filed its original proposal with the Court on 
M ay 30, 1973. For the next two or three years, the Board claims 
to have notified the court o f revisions in its plan for area high 
schools. Eventually, the Board implemented some o f the pro­
posals under the belief that the schools affected did not come 
under the 1971 order because they would continue to  m aintain a 
black population of fifteen percent or more. P lain tiffs’ other 
allegation concerning the proposed Goodlettsville-M adison 
Comprehensive Fligh School is not well founded in that the 
school was never built. As discussed in this C ourt’s 1980 
M em orandum  and O rder,6 the 1971 Court order specifically en­
joined the construction of the Goodlettsville-M adison High 
School as proposed because it was to be located within the city 
limits of Goodlettsville, a location which would have prom oted

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



—A-66 —

segregation. The subsequent proposal, although never im­
plemented, called for the school to be built nearer to  the im­
aginary line of Briley Parkway extended, thereby arguably con­
forming with this C ourt’s directive. According to Board o f­
ficials, the school, under this revised plan, had a projected black 
enrollment o f greater than twenty percent.

Finally, plaintiffs contend that the B oard’s action in closing 
certain schools or changing the grade levels accom modated by 
particular schools somehow violate the 1971 order. Plaintiffs 
contend that these decisions dem onstrate a discriminatory 
motivation on the part o f the Board. The Board has responded 
by setting forth its objective reasons for making changes in 
schools located in predom inantly white as well as predom inantly 
black neighborhoods, and argues these actions in no way con­
travened the letter or the spirit o f the 1971 order.

From the preceding recitation of the facts and positions 
aseerted by the parties, this Court concludes that the contem pt 
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 o f operating a school system. There is no 
proof that the B oard’s actions were a subterfuge to  undermine 
the 1971 order. Furtherm ore, there is no evidence that the deci­
sions of the Board were part o f an effort to block the desegrega­
tion o f the M etropolitan Nashville city schools. This court has 
consistently found that the Board has acted in good faith in im­
plementing the 1971 order. Plaintiffs claim in this m otion for 
contem pt that his Court had previously found that the schools 
became resegregated due to  the B oard’s efforts to accom modate 
white flight into the suburbs. This contention is totally incor­
rect. 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 con­



— A-67

tinue to  press forw ard with their inaccurate interpretation of 
this C ourt’s opinion. It is time to  lay that false allegation to  rest 
once and for all.

As stated by the Supreme Court and repeated by the Sixth 
Circuit, “ the judicial power of contem pt is a potent w eapon.” 
R eed  v. Cleveland Board o f  Education, 607 F.2d 749, 752 (6th 
Cir.1979), quoting from  IL A , Local 1291 v. Philadelphia 
M arine Trade Association, 389 U.S. 64, 76, 88 S.C t. 201, 208, 
19 L .Ed.2d 236 (1967). Such a potent weapon should be used 
only where the evidence o f contem pt is clear and convincing. 
That is not the case here. The Board acted only where, upon the 
advice o f 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 forthcom ­
ing once the 1971 order was entered. To find the Board in con­
tem pt, it would be necessary to read more into the 1971 order 
than was stated in its clear and express term s, and that type of 
approach to a contem pt charge is impermissible. Reed, supra, at 
752 (“ [t]he notice o f a judicial order upon violation o f which a 
contem pt finding may properly be based is such notice as would 
clearly tell a reasonable person what he is required to do or abs­
tain from  doing” ).7

The facts in this case, as presented to this Court, simply do 
not warrant a finding that the B oard’s actions placed it in con­
tem pt.

An appropriate order shall enter.

7 Additionally, Reed states that “ defendants were required to obey 
the District Judge’s orders, but they were not required to obey the in­
terpretations of the District Judge’s orders made by plaintiffs.” 607
F.2d at 752.



A-68

A PPEN D IX  D

IN TH E UNITED STATES DISTRICT COURT 
FOR TH E M IDDLE DISTRICT O F TENNESSEE,

NASHVILLE DIVISION

Nos. 2094, 2956

Robert W. Kelley, et al.,
Plaintiffs,

vs.

M etropolitan County Board o f Education o f Nashville 
and Davidson County, Tennessee, et al.

Defendants.

ORDER
(Filed February 23, 1983)

In accordance with the accompanying M em orandum , it is 
hereby ORDERED that plaintiffs are awarded attorney’s fees 
pursuant to 42 U .S .C . § 1988 in the am ount o f $139,214.25; 
costs o f $361.28 are taxed against defendants; and plaintiffs’ 
petition for contem pt is denied.

United States District Judge



A-69 —

APPENDIX E

IN TH E UNITED STATES COURT OF APPEA LS 
FO R TH E SIXTH CIRCUIT

Nos: 83-5175, 5243

Robert W. Kelley, et al., 
P laintiffs/A ppellants/Cross-A ppellees,

vs.

M etropolitan County Board o f  Education o f  Nashville 
and Davidson County, Tennessee, et al.

D efendants/Third Party  P lain tiffs/ 
Appellees/Cross-Appellants.

PETITION FOR REHEARING AND FOR 
REHEARING EN BANC

The appellees and cross-appellants, M etropolitan County 
Board o f Education, et al. (hereinafter M etro), hereby petition 
the Court for a rehearing o f the case resulting in the opinion o f 
the Court en banc on September 23, 1985. Further, M etro re­
quests a rehearing en banc.

M etro’s counsel believe, based upon their reasoned and 
studied professional judgm ent, that the C ourt’s decision con­
cerning the finality o f the 1971 desegregation plan is contrary 
not only to  Northcross v. Board o f  Education o f  M em phis City 
Schools, 611 F.2d 624 (6th Cir. 1979), cert, denied, 447 U.S. 911 
(1980), but also to  the panel’s decision in this case August 19, 
1981, granting a stay o f a District Court order, Kelley v. 
M etropolitan County Board o f  Education, No. 81-5370 (6th 
Cir. August 19, 1981) (attached hereto as Exhibit A). Further, 
consideration by the full Court, in light o f the previous en banc 
determ ination, is necessary to  m aintain uniform ity with the 
decisions o f this Court in this case.



— A-70

STATEMENT OF THE CASE

This is the attorneys’ fees aspect o f a desegregation case 
which began in 1955. In 1971, the District Court ordered the 
implementation o f a comprehensive desegregation remedy 
utilizing extensive cross-town bussing wherever it was practical 
to use this mechanism in the 500 square mile county which con­
stituted the school system. Kelley v. M etropolitan County  
Board o f  Education, M emorandum  Opinion, June 28, 1971, 
App. 140. The District C ourt’s order was entered pursuant to 
Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), and the 
new desegregation plan was affirm ed by this Court. Kelley v. 
M etropolitan County Board o f  Education, 463 F.2d 732 (6th 
Cir. 1972).

In 1979, the District Court held that this 1971 plan, well inten- 
tioned though it was, and grounded in the circumstances as they 
then existed, had the effect o f fostering resegregation over the 
years, despite the good faith efforts o f M etro in implementing 
the p lan .1 Based upon this finding, consideration o f a new 
desegregation plan was ordered, which the District Court ap­
proved and ordered implemented on April 17, 1981. Kelley v. 
M etropolitan County Board o f  Education, 511 F.Supp. 1363 
(M .D. Tenn. 1981).

Just a few days before school was to open on August 21, 1981 
for the fall semester, the plaintiffs applied to  this Court for a 
stay o f the District C ourt’s order. A large part o f the plaintiffs’ 
rationale for the stay o f the new order was that the 1971 plan 
was a plan approved by this Court and the District Court pur-

' As the District Court said: “ The resegregation, resulting, at least 
in part, from the nonetheless good faith efforts of the school board in 
the implementation of the Court’s order amounts to a de jure segrega­
tion.” Kelley v. Metropolitan County Board o f  Education, 479 
F.Supp. 120, 122-23 (M.D. Tenn. 1979). See also Kelley v. 
Metropolitan County Board o f  Education, 492 F.Supp. 167, 170-71 
n. 10-11, 175-76 (M.D. Tenn. 1980).



A-71 —

suant to Swann, and that it was entitled to a “ presumptive 
validity.”  (P laintiffs’ Application for Stay, attached hereto as 
Exhibit B, pp. 12-13.)

Just two days before school was to begin in Nashville, this 
C ourt, through its panel, stayed im plem entation o f the District 
C ou rt’s new plan with the following language:

In conc lud ing .. .th a t where (as here) after many years a 
final school desegregation order has been entered in the 
District Court, appealed to  this Court and affirm ed, and 
then appellants’ petition for certiorari has been denied in 
the Supreme Court, it is in the public interest for a propos­
ed departure from  said order to  be reviewed by the Court 
o f Appeals prior to , rather than after, the institution o f the 
change sought.

Kelley v. M etropolitan County Board o f  Education, No. 
81-5370 (6th Cir. August 19, 1981) (Exhibit A) (Emphasis sup­
plied).

ARGUM ENT FOR REH EA RIN G  AND 
FOR REH EA RIN G  EN BANC

M etro respectfully asserts that this Court, in its stay order o f 
August 19, 1981, addressing the substantive issues in this case, 
recognized the 1971 desegregation plan for what it was— a fin a l 
order requiring im plem entation o f a comprehensive desegrega­
tion plan in Nashville, Tennessee, pursuant to  the existing case 
law. Accordingly, this Court declined to permit deviations from 
the fin a l  desegregation plan until the case could be heard fully 
on its merits. The stay opinion recognized implicitly that unless 
changes in the law or circumstances regarding the parties had 
occurred since 1972, the comprehensive plan approved by this 
Court in 1972 on appeal could not be m odified.2

2 As this Court earlier recognized, if the plaintiffs or defendants 
found adverse effects from or changed circumstances after implemen-



— A-72 —

M etro respectfully submits that the 1971 court order, affirm ­
ed by this Court in 1972, should be treated no differently during 
the attorneys’ fees portion o f this case than it was during the 
substantive portion. The 1971 plan, affirm ed by this Court was 
a fin a l order which a panel o f this Court in 1981 viewed as a 
discrete step in the litigation. Indeed, deviations therefrom  
could not be perm itted without prior appellate review, even 
when a failure to permit such deviations resulted in a significant 
delay in the opening o f schools.

Thus, in addition to the District C ourt’s factual findings con­
cerning finality o f the 1971 desegregation plan which were not 
held by this Court in its recent opinion to be clearly erroneous, a 
panel o f this Court in 1981 also recognized that the 1971 plan 
represented a clear break in the proceedings. The inconsistency 
now apparent on the record should be resolved, and M etro 
respectfully submits that a rehearing and reconsideration en 
banc should be granted.

Respectfully submitted,

W ILLIS & KNIGHT

By: / s /  William R. Willis, Jr.

By: / s /  M arian F. Harrison

215 Second Avenue North 
Nashville, Tennessee 37201

Attorneys for Appellees/ 
Cross-Appellants

tation of the 1971 plan, these problems could be addressed at the 
District Court level, under the general notion that all decrees in equity 
are susceptible to modification based upon changes in the law or facts. 
Kelley v. Metropolitan County Board o f  Education, 463 F.2d 732, 
745-46 (6th Cir. 1972).



EX H IBIT A

Office o f the Clerk 
United States Court o f Appeals 

For The Sixth Circuit 
Cincinnati, Ohio 45202

August 19, 1981

Mr. Avon N. Williams, Jr.
Mr. Jack Greenberg 
Mr. William R. Willis, Jr.

Re: Our Case No. 81-5370
Robert W. Kelley, et al; Henry C. Maxwell, J r., et al, 
P la in tiffs-A ppellan ts, vs. M etropolitan  County 
Board o f Education o f Nashville and Davidson C oun­
ty, Tennessee, Defendants-Appellees.
Dist. Ct. No. 2094 & 2956

Dear Counsel:

Enclosed is a copy o f an order which was entered today in the 
above-styled case.

— A-73 —

Very truly yours,

John P. Hehm an, Clerk

By: / s /  Suzanne W. Hogan 
Deputy Clerk

Enclosure
Cert, copy: Ms. Julia B. Cross, Clerk

H on. Thomas H. W iseman, Jr.



—  A - 7 4

No. 81-5370

UNITED STATES COURT OF APPEA LS 
FOR TH E SIXTH CIRCUIT

Robert W. Kelley, et al.; Henry C. Maxwell, J r., et al., 
Plaintiffs-Appellants,

vs.

M etropolitan County Board o f Education o f Nashville 
and Davidson County, Tennessee, 

Defendants-Appellees.

ORDER

Before: EDW ARDS, Chief Circuit Judge, JONES, Circuit 
Judge, and CELEBREZZE, Senior Circuit Judge.

On receipt and consideration o f a m otion for stay filed by 
Robert W. Kelley, et al., plaintiffs-appellants; and

On consideration o f said m otion under terms o f Rule 8 o f the 
Rules o f Appellate Procedure and pertinent case law, Virginia 
Petroleum Job. A ss ’n v. Federal Power Com ’n, 259 F.2d 921, 
925 (D.C. Cir. 1958); see also N orth Avondale Neighborhood  
A s s ’n v. Cincinnati M etropolitan Housing A uthority, 464 F.2d 
486, 488 (6th Cir. 1972); and

Further noting that generally four factors are required for the 
issuance o f a stay, as follows:

1. Has the petitioner made a strong showing that it is 
likely to  prevail on the merits o f its appeal?

2. Has the petitioner shown that without such relief, it 
will be irreparably injured?

3. W ould the issuance o f a stay substantially harm  other 
parties interested in the proceedings?

4. Where lies the public interest?



— A-75

Observing from  this record that affirm ative answers 
favorable to p laintiffs’ m otion m ust be given in relation to the 
first two o f these questions, while a negative answer appears ap ­
propriate to  the third;

A nd concluding as to  the fourth question that where (as here) 
after many years a final school desegregation order has been 
entered in the District Court, appealed to  this court and affirm ­
ed, and then appellants’ petition for certiorari has been denied 
in the Supreme Court, it is in the public interest for a proposed 
departure from  said order to  be reviewed by the Court o f A p­
peals prior to , rather than after, the institution o f the change 
sought;

Now, therefore, plaintiffs’ m otion for stay is hereby granted, 
the m andate is ordered issued forthw ith, and the appeal is ex­
pedited for hearing in the October term o f this court.

Entered by order o f the Court

/ s /  John P. Hehm an 
Clerk



— A-76

A PPEN D IX  F

UNITED STATES COURT OF APPEA LS 
SIXTH CIRCUIT

U.S. Post Office & Courthouse Building 
Cincinnati, Ohio 45202

October 15, 1985

Mr. I . Michael Cody 
Mr. Charles Ralston 
Mr. Avon N. Williams, Jr.
Mr. William R. Willis, Jr.

Re: Case Nos. 83-5175/5243
Robert W. Kelley, et al. vs. M etropolitan County 
Board of Education o f Nashville, et al.

Dear Counsel:

Enclosed with this letter are the copies o f the petition to 
rehear and for rehearing in banc which you submitted last week. 
These are being returned to  you at the direction of the Court, in­
asmuch as neither the Federal Rules of Appellate Procedure nor 
the Rules o f the Sixth Circiut provide for the filing o f a petition 
to rehear a case which has already been reheard.

Accordingly, the filing of the second petition has been 
withdrawn and the docket o f the Court so reflects. The m an­
date o f the Court will issue in due course.

Very truly yours,

/ s /  Leonard Green 
Chief Deputy Clerk

L G /jj
Enclosures



— A-77

APPENDIX G

U N ITED STATES COURT OF A PPEA LS 
FOR TH E SIXTH CIRCUIT

No. 83-5175/5243

Robert W. Kelley, et al., 
Plaintiff-A ppellants,

vs.
M etropolitan County Board o f  Education o f Nashville 

and Davidson County, Tennessee, et al. 
Defendants-Appellees/Cross-Appellants.

ORDER STAYING MANDATE
(Filed October 25, 1985)

O RDERED, That m otion ty stay m andate herein pending ap ­
plication to the Supreme Court for writ o f  certiorari is hereby 
granted and the m andate is stayed for thirty days from  this date; 
provided that, if within such thirty days, the applicant shall file 
with the Clerk o f this Court the certificate o f the Clerk o f the 
Supreme Court that the certiorari petition, record, and brief 
have been filed, the stay shall continue until the final disposition 
o f the case by the Supreme Court. Unless this condition is com ­
plied with within such thirty days or any extension thereof made 
by the Court or any judge thereof, or if the condition is com ­
plied with, then upon the filing o f copy o f an order denying the 
writ applied for, the m andate shall issue.

EN TERED BY ORDER OF TH E COURT

/ s /  John P. Hehman



— A-78

APPENDIX H

IN TH E UNITED STATES DISTRICT COURT 
FOR TH E W ESTERN DISTRICT OF TENNESSEE 

W ESTERN DIVISION

Civil Action No. 3931

Deborah A. Northcross, et al.,
Plaintiffs,

vs.

Board o f Education o f the Memphis City Schools, et al., 
Defendants.

ORDER
(Filed July 29, 1966)

This cause came on to be heard on the report to the Court and 
motion o f defendants for an order approving the m odified plan 
o f desegregation; and

It appearing to the Court from  the statement o f counsel that 
plaintiffs have not had sufficient time to study the proposed 
modified plan of desegregation, nor have plaintiffs had an op­
portunity to obtain an opinion from  Jack Greenberg, Esq., one 
o f plaintiffs’ associate counsel, so that plaintiffs request an ad­
ditional three (3) weeks within which to study the plan; and

It further appearing to the Court from  statement o f counsel 
that within three (3) weeks the parties will advise the Court 
whether or not plaintiffs agree or object to the modified plan of 
desegregation, and in the event that plaintiffs do not approve 
the plan, request will be made for a hearing on their objections.

And it further appearing to the Court that the parties agree 
that the defendants may put such parts o f the m odified plan in­
to effect as are possible for the coming school year, except that 
plaintiffs expressly waive the requirement for the filing o f the



A-79

report due on August 15, 1966, as provided for in sub- 
paragraph 2 o f paragraph IX o f the modified plan.

IT IS TH EREFO RE, ORDERED, A D JU D G ED  AND 
DECREED, that on or before August 19, 1966, the parties 
report to  the Court as to whether the plaintiffs approve the 
modified plan o f desegregation heretofore filed in the cause by 
defendants.

IT IS FU R T H E R  O R D E R E D , A D JU D G E D  A N D 
DECREED, that the defendants may put such parts o f the 
m odified plan o f desegregation into effect as are possible for the 
school year commencing July 1, 1966.

/ s /  M arion D. Bond 
Judge

Approved:

/ s /  A. W. Willis, Esq.
For Plaintiffs

Evans, Petree, Cobb & Edwards 
B y _____________________

For Defendants



— A-80 —

A PPEN D IX  I

IN THE UNITED STATES DISTRICT COURT 
FOR TH E W ESTERN DISTRICT OF TENNESSEE 

W ESTERN DIVISION

C.A. No. 3931

Deborah A. Northcross, et al.,
Plaintiffs,

vs.

Board of Education o f the 
Memphis City Schools, et al.,

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW  
W ITH RESPECT TO FEES AND COSTS

This school desegregation case is before the Court on rem and 
from the United States Court o f Appeals for the Sixth Circuit 
for “ a complete recalculation”  o f certain attorneys fees and 
litigation expenses due under 42 U .S.C. §1988. Northcross v. 
Board o fE duc . o f  the M em phis City Schools, 611 F.2d 624, 640 
(6th Cir. 1979), cert, denied, 447 U.S. 911 (1980).

The opinion o f the Court o f Appeals dealt with consolidated 
appeals from two judgments entered by this Court on two 
separate applications of the plaintiffs for awards o f costs, ex­
penses, and attorneys fees. The first judgm ent dealt with plain­
tiffs’ application for compensation for services and expen­
ditures from the commencement o f this suit in 1960 through 
1976. With respect to this judgm ent, the Court o f Appeals 
remanded the case to this Court ‘‘for any necessary evidentiary 
proceedings, a resolution o f the legal issue concerning the finali­
ty o f the 1966 ruling, and a recalculation of attorneys fees due to 
the plaintiffs for services rendered to them  until the final 
desegregation order was entered in 1974.”  Id. at 643.



— A-81

The second judgm ent before the Court o f Appeals disposed 
o f p laintiffs’ application with respect to  services and expen­
ditures in connection with a hearing in this Court in May 1977 
necessitated by a Board o f Education request to m odify the 
final plan o f desegregation (Plan Z) in various ways. As to this 
judgm ent, the Court o f Appeals reviewed the record and made 
its own determ ination o f reasonable fees and costs to be aw ard­
ed. Thus, with respect to  that judgm ent, the Court o f Appeals 
“ rem anded with instructions to the district court to enter judg­
ment for plaintiffs in the am ount o f $22,604.02 to compensate 
them for services rendered by their attorneys and expenses in­
curred in 1977.”  Id. at 643. On 3 October 1980 this Court 
entered an order directing the Board to pay the am ount set by 
the Court o f Appeals, plus interest, for a total award on this 
part of the case o f $25,605.51. This order also directed the 
Board to pay plaintiffs $4,020.55 in appellate costs as per the 
m andates issued by the C ourt of Appeals.

Following the Supreme C ourt’s denial o f certiorari, this 
Court held several conferences with counsel for the parties, the 
parties have submitted supplemental affidavits, stipulations and 
docum entation, proposed findings and conclusions, and the 
Court has conducted a hearing. While these proceedings were 
going on, plaintiffs and the City o f Memphis settled their 
dispute for $20,000, as reflected by the consent order approved 
and entered by the Court on 1 December 1980.

This opinion incorporates findings of fact and conclusions of 
law with respect to all services rendered by plaintiffs’ counsel 
and expenditures incurred from  the commencement o f this 
litigation in 1960 until the date o f this opinion, exclusive of 
those aspects o f the fee/cost dispute described above, which 
have been resolved.

In the rem and opinion the Court o f Appeals explained that 
fee awards in civil rights cases may no longer be determined on 
the basis o f the appropriate statute in this case, the Civil Rights



A-82

Attorneys Fees Awards Act o f 1976 (42 U .S.C. §1988). Now 
“ the courts are obligated to apply the standards and guidelines 
provided by the legislature in m aking an award o f fees.”  Id. at 
632. The Court o f Appeals indicated that it found from  the 
legislative history o f the statute that Congress expressly com­
mands the courts to  use the broadest and most effective 
remedies available to  them to achieve the goals o f the civil rights 
laws. Id. at 633. The examples which the Court o f Appeals gave 
to explain the “ broadest and m ost effective remedies which 
Congress intended” and the many holdings which sometimes 
sternly and critically found that this Court had abused the 
“ discretion”  referred to in the statute wherein it provides: “ the 
court, in its discretion may allow the prevailing party . . .  a 
reasonable attorney’s fee as part of the costs,”  indicate that this 
Court far too narrowly interpreted the law. In these findings 
and conclusions this Court will undertake to award fees com­
mensurate with the command of the Court o f Appeals as set 
forth in the rem and opin ion .1

Since 1968 the plaintiffs have been represented by the Mem­
phis law firm o f Ratner & Sugarmon and its predecessor part­
nerships. Four o f the firm ’s lawyers at various times have p ro ­
vided representation to plaintiffs: Louis R. Lucas, an initial 
partner in the firm; William E. Caldwell, a partner in the firm 
since spring 1974 and an associate prior to that time; Elijah 
Noel, Jr., a former associate in the firm; and Richard B. Fields, 
an associate in the firm. Prior to  1968 the plaintiffs were 
represented primarily by A. W. Willis and R. B. Sugarmon, Jr., 
who became initial partners in the firm when it was formed in 
1967.

From the commencement of the litigation in 1960 until the 
present time, the representation o f plaintiffs has been assisted,

1 It is here noted that the relative positions of the parties are typical 
of their positions on all of the major issues in this much litigated case 
— opposite extremes.



— A-83 —

both with financial support and professional services, by the 
N A ACP Legal Defense and Educational Fund, Inc. (Legal 
Defense Fund). The Legal Defense Fund is a non-profit cor­
poration chartered by the New York Court o f Appeals and 
authorized to serve as a legal aid society, one o f its purposes be­
ing to render legal assistance gratuitously to  “ colored persons”  
suffering injustice by reason o f race or color who are unable on 
account o f poverty to  employ and engage legal aid in their own 
behalf. The Legal Defense Fund does not charge individuals 
whom it represents for its services. Affidavit o f  N orm an J. 
Chachkin 16 (filed 21 September 1976). The Legal Defense 
Fund has paid most o f the litigation expenses incurred by plain­
tiffs in this litigation. In addition, the Legal Defense Fund has 
periodically paid to the firm a relatively small per diem 
allowance for professional services for the purpose o f helping 
defray the overhead expenses as a result o f its participation in 
the case. Throughout the 20-year history o f the litigation the 
firm has received about $27,000 in such per diem allowances. 
Second Supplemental Affidavit o f N orm an J. Chachkin, 14 (fil­
ed 8 November 1976); Supplemental Affidavit o f William E. 
Caldwell, 13 (filed 4 October 1976). Fees recovered by the Legal 
Defense Fund for the services o f its staff attorneys in litigation 
are utilized in furtherance o f the organization’s civil rights 
litigation and its other purposes. Supplemental Affidavit o f 
N orm an J. Chachkin, 16 (filed 4 October 1976).

The bulk o f the services rendered by the Legal Defense Fund 
since 1968 were provided by N orm an J. Chachkin and, more 
recently, by Bill Lann Lee. Prior to 1968 most o f the Legal 
Defense Fund services were provided, first, by Constance Baker 
Motley, now a United States District Judge for the Southern 
District o f New York, under the supervision o f Legal Defense 
Fund director-counsel Thurgood M arshall, now an Associate 
Justice o f the Supreme Court; and later by Derrick A. Bell, now 
a professor o f law at H arvard Law School. In their initial sub­
mission on fee am ounts o f 4 October 1976 the plaintiffs re­
quested an award for services rendered by the Legal Defense



—  A - 8 4

Fund while Judge Motley and Justice Marshall were associated 
with the organization. On 5 October 1976, however, plaintiffs 
withdrew their request with respect to  these services — 
estimated at 210.8 hours — “ [i]n order to avoid any possibility 
of the appearance of impropriety or public m isunderstanding” 
even though any fees recovered for these services would have 
gone to the Legal Defense Fund, not to the individuals.

Entitlement to Fees for Pre-1968 Services

The first issue this Court will address under the Court of A p­
peals’ m andate is whether or not plaintiffs are entitled to 
recover attorneys fees for services rendered prior to 1968. With 
respect to  the post-1968 period, the Court o f Appeals directed: 
“ The fee awarded should cover at least the period back to 1968 
when the suit became active again following the Supreme 
C ourt’s Green decision.”  611 F.2d at 635. The Court then 
described the issue which this Court is now required to resolve 
(id.):

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 ac­
tion of July 29, 1966, the last action before the Supreme 
C ourt’s Green decision, was a “ consent order”  which 
undertook to dispose of all outstanding phases o f 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 interest o f finality are deemed to dispose o f all 
foregoing issues. Absent a timely appeal, a party is bound 
by the order and any later challenge is deemed to be a col­
lateral attack judged by different, and more stringent stan­
dards than on direct review. Bradley, supra, 416 U.S. at 
710-11, 95 S.Ct. 2006. If the defendants are correct in 
their characterization o f 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 
m atter to the district court.



— A-85 —

The Court finds that the services expended on the portion o f 
the case occurring prior to the filing on 26 July 1968 o f 
p laintiff’s m otion for further relief should be denied. A plan of 
desegregation in this cause conform ing 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 o f desegregation, and a 
distinct break in the proceedings in this case occured at that 
time. Previous to  that time there had been two appeals taken 
successfully by the plaintiffs. The 1968 m otion for further relief 
did not grow out o f any evident intention o f these parties to 
litigate that plan further, but was the direct result o f subsequent 
Supreme Court decisions in the case o f Green v. County School 
Board o f  N ew  K enty County, Virginia, 391 U.S. 430 (1968), and 
its com panion cases which represented very significant new 
development in the law pertaining to school desegregation. The 
case at bar is similar to the case o f Wheeler v. Durham City 
Board o f  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 m otion for 
further relief, but denied a fee for earlier “ discrete steps”  in the 
litigation.

Calculation of a Reasonable Fee

The Court o f Appeals summarized the approach required to 
arrive at a reasonable attorneys fee as follows: (id. at 642):

We conclude that an analytical approach, grounded in the 
num ber o f hours expended on the case, will take into ac­
count all the relevant factors, and will lead to a reasonable 
result. The num ber o f hours o f work will automatically 
reflect the “ time and labor involved,”  “ the novelty and 
difficulty o f the question,”  and “ preclusion o f other 
em ploym ent.”  The attorney’s norm al hourly billing rate 
will reflect “ the skill requisite to perform  the legal service



A-86

properly,”  “ the customary fee,”  and the “ experience, 
reputation and ability o f the attorney.”  Adjustm ents up­
ward may be made to reflect the contingency o f the fee, 
unusual time limitations and the “ undesirability”  of the 
case.

The Court of Appeals has thus required a three-pronged ap­
proach which requires this Court to determine (1) the number of 
hours of services performed by plaintiffs’ attorneys, (2) the 
“ normal hourly billing rate”  applicable for each attorney, and 
(3) whether upward adjustments should be made and the 
amount thereof.

Hours of Service Provided

The Court o f Appeals made it clear that plaintiffs’ attorneys 
are entitled to compensation for all the time reasonably expend­
ed on this case because the plaintiffs prevailed in the case as a 
whole. The Court said (id. at 636):

The question as to whether the plaintiffs have prevailed 
is a preliminary determination, necessary before the statute 
comes into play at all. Once that issue is determined in the 
plaintiffs’ favor, they are entitled to recover attorneys’ fees 
for “ all time reasonably spent on a m atter.”  The fact that 
some of that time was spent in pursuing issues on research 
which was ultimately unproductive, rejected by the court, 
or m ooted 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 expend­
ed on unsuccessful research or litigation, unless the posi­
tions asserted are frivolous or in bad 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 M em phis school system  is 
desegregated.



A-87 —

The Court further stated on page 636:

We conclude that a fee calculated in terms o f hours of 
service provided is the fairest and most manageable ap­
proach. The district court should indicate on the record the 
num ber o f hours it finds the plaintiffs’ attorneys have ex­
pended on the case. This finding m ust first take into ac­
count the affidavits o f counsel. The hours claimed need 
not be autom atically accepted by the district court, but to 
the extent that hours are rejected, the court must indicate 
some reason for its action, so that we may determine 
whether the court properly exercised its discretion or made 
an error o f law in its conclusion. Hours may be cut for 
duplication, padding or frivolous claims. In complicated 
cases, involving many lawyers, we have approved the ar­
bitrary but essentially fair approach o f simply deducting a 
small percentage o f the total hours to eliminate duplication 
o f services.

This Court has never found, and does not find, that any of 
the positions asserted by plaintiffs were m ade in bad faith or 
were frivolous. Accordingly, plaintiffs are entitled to compen­
sation for all claimed hours which were actually spent on the 
case except an “ arbitrary”  adjustm ent for duplication and 
other reasons set forth below. The various affidavits o f plain­
tiffs’ counsel claim a total o f 5,213.5 hours o f services. The ser­
vices o f plaintiffs’ counsel, as well as litigation expenses and 
counsels’ backgrounds and experiences, are set forth  in 18 af­
fidavits of counsel. The Court will analyze these services with 
respect to each phase o f this case in greater detail below. P lain­
tiffs’ attorneys did not m aintain detailed contem poraneous time 
records prior to 1974 (Stipulation o f Counsel, 13, filed 18 Nov. 
1980).

They have reconstructed the services rendered for that period 
from  billings submitted to the Legal Defense Fund for per diem 
allowances, from  partial calendar records, and from  the file in



— A-88

the case. The reconstruction process is described in Caldwell 
Aff. 16, Supp. Caldwell Aff. 13, 2d Supp. Caldwell Aff. 12, 
Lucas Aff. 15, Chachkin Aff. 13, and Stipulation o f Counsel 12 
(filed 18 Nov. 1980).

It is the opinion o f this Court that the directions of the Court 
of Appeals intended for this Court to accept these calculations 
in spite of their faults. Therefore, the Court finds that the 
hours claimed on the affidavits are allowed as a basis for the 
fees except to the extent that they are expressly disallowed in 
these findings.2

The Court disallows 12.55 hours from  the total shown on the 
affidavit of Elijah Noel dated September 20, 1976, on the basis 
that there is an error in addition.

Since the remand o f this case, further affidavits have been 
submitted including the affidavit o f Richard B. Fields dated 
August 5, 1980, seeking an award for services in m onitoring the 
Court Order and in negotiating modifications to Plan Z since 
June 1977. The Court o f Appeals has held that m onitoring ser­
vices are allowable, and Mr. Fields is seeking an award based on 
a total o f 127.6 hours. The bulk o f these hours is allowable with 
the exception o f some items which fall outside the scope o f this 
lawsuit. Those items include such matters as attendance at an 
Urban League Symposium and lunch with representatives of 
such community organizations as M IFA and the news media are 
not sufficiently connected to  the litigation o f this case to  war­
rant compensation. Those items are numbers 61, 65, 66, and 76 
on the attachm ent to the affidavit and they total 12 hours, leav­
ing a total o f 115.6 allowable hours.

2 While plaintiffs’ lawyers have utilized considerable law-student 
and paralegal assistance during various phases of the litigation, they 
make no request that those services be compensated (because of the in­
adequacy of records reflecting those services). Caldwell Aff. 19.



— A-89 —

In determining the net allowable hours, the Court is also call­
ed on to determine whether reductions should be made based 
upon duplication of hours an d /o r over-estimates as to  the 
num ber o f hours spent. It has been fairly settled in this Circuit 
that, where duplication appears, the Court is entitled to make 
an across-the-board “ arbitrary”  adjustm ent based on an 
estimated percentage o f duplication, rather than attempting to 
eliminate specific hours on an itemized basis. This approach 
was approved in Oliver v. Kalamazoo Board o f  Education, 576 
F.2d 714 (6th Cir. 1978), and used by the Court o f Appeals in 
reaching a final award of attorneys fees for the 1977 hearing in 
the appeal o f this case. Similarly, a 10% reduction in total 
hours based on duplication alone was used by the Court of A p­
peals in Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979). 
In the present case substantial duplication o f effort appears not 
only from  the num ber of counsel appearing on briefs and ap­
pearing at particular trials of this cause, but from  the fee af­
fidavits themselves, which reflect extensive consultation and 
conferences among co-counsel and which show that the receipt 
o f documents, pleadings, and orders usually occasioned the ex­
penditure of a good deal more time than was necessary to review 
the documents. This time was obviously occasioned by the 
multiplicity o f counsel in the case and by the fact that the case 
was handled throughout on the basis o f continuing comm unica­
tions between trial counsel and Legal Defense Fund counsel in 
New York. Even at appellate arguments in the case, co-counsel 
would frequently appear, as exemplified by the ninth item on 
Mr. Caldwell’s original affidavit o f September 20, 1976. This 
item claims 16 hours for Caldwell based upon the argument of 
Louis Lucas in the 6th Circuit Court o f Appeals. Based on the 
record and on this Judge’s familiarity with the proceedings in 
this case, the Court finds that a Court o f Appeals maximum of 
10% reduction in otherwise allowable hours should be granted 
as the means of accounting for these duplicative services, except 
for the portion o f the case pertaining to  fee litigation.



— A-90

Reasonable Hourly Rates

The guiding standard laid down by the Court of Appeals for 
determining the reasonable hourly rates o f compensation for 
each of the Attorneys for the plaintiffs in this cause — the se­
cond part o f the m andated “ analytical approach”  — is the 
“ fair market value o f the services provided.”  The Court 
elaborated as follows (id. at 638):

We have indicated in several opinions that it is desirable, 
whenever possible, to vary the hourly rate awarded depen­
ding upon the type o f service being provided. Again tu rn ­
ing to our m andate to  award fees “ as is traditional with a t­
torneys compensated by a fee-paying client,”  a scale of 
fees as is used by most law firms is appropriate to use in 
making fee awards pursuant to  §1988. The use o f broad 
categories, differentiating between paralegal services, in­
office services by experienced attorneys and trial service, 
would result in a fair and equitable fee.

In determining what the level of compensation for each 
category o f service should be, the court should look to the 
fair m arket value o f the services provided. In most com ­
munities, the marketplace has set a value for the services of 
attorneys, and the hourly rate charged by an attorney for 
his or her services will normally reflect the training, 
background, experience and skill o f  the individual a t­
torney. For those attorneys who have no private practice, 
the rates customarily charged in the community for similar 
services can be looked to for guidance.

The Court of Appeals illustrated this m ethod of arriving at 
normal hourly rates in its disposition with respect to the 1978 fee 
award. There the Court applied a “ bifurcated scale”  in deter­
mining the normal hourly rate for plaintiffs’ counsel Lucas. In 
calculating the fee for Lucas the Court used “ as base figures 
$125 per hour for trial work and the $75 per hour which the 
district court found to  be reasonable for office services.”  Id. at



A - 9 1  —

641. W ith respect to the services o f plaintiffs’ counsel Noel and 
Fields, the Court o f Appeals accepted this C ourt’s across-the- 
board base fee o f $60 per hour for Noel and $40 per hour for 
Fields. Id.

In its previous decision o f November 4, 1977, this Court set 
the base fee rate for services rendered between m id-1971 and 
1974 at $60 per hour for Lucas and $40 per hour for Caldwell 
during the earlier parts o f that time frame, and $60 per hour for 
Caldwell during the later proceedings. Neither the plaintiffs in 
their appeal nor the Board in its cross-appeal challenged these 
rates, and the Court o f Appeals “ express[ed] opinion as to the 
accuracy o f the fee per hour awarded in the 1977 award . . . ” 
Id. at 641. The record herein persuasively demonstrates that the 
rates previously established by this Court for the 1971-74 period 
are reasonable reflections of the fair m arket value at the time of 
the services provided by Caldwell and Lucas.

Inflation Factor

The question remains whether the base fee rates applicable 
for earlier time periods should be adjusted to account for the 
greatly diminished purchasing power of such early-year dollars 
in light o f the intervening years o f inflation. This Court is re­
quired to  resolve this issue by the following directive o f the 
Court o f Appeals: “ Among other factors, the district court will 
be required to consider whether the inflation o f the intervening 
years must be taken into account, or whether the lower rate 
which prevailed for services at the time they were rendered has 
been balanced by the long delay which will reduce the purchas­
ing power o f the aw ard’s dollars in the present m arketplace.”  
Id. at 640. The inflation problem can be resolved either by ap­
plying an inflation factor to the norm al hourly rates into line 
with 1980 dollars, or, alternatively, by applying recent hourly 
rates to the services rendered in the earlier years.

The attorneys for the plaintiffs advocate and claim that infla­
tion should be compensated for by paying 1981 hourly rates for



— A-92

all hours devoted to the case. This means that Louis Lucas 
would be paid $125 per hour for services rendered in 1971, a 
period in which this Court found and plaintiffs concede an 
hourly rate for his services to be $60. As experience and the 
record reflect, the value o f the hourly rate has increased for a t­
torneys based upon the inflationary trend and the increased 
value o f the services o f the attorney due to experience. 
Therefore, the use of current or recent rates appears to be a 
plausible m ethod o f adjusting for inflation even though it is a r­
bitrary for some times.

This Court is of the opinion that hourly rates used by the 
Court o f Appeals in its November 1979 remand opinion should 
be used as a basic starting point. It awarded Louis Lucas $125 
per hour as a base fee for court work, and found that rate to be 
high for office services. Those services were established at $75 
per hour. The only other attorneys who were awarded fees by 
the Court o f Appeals were Mr. Noel, at $60 per hour, and Mr. 
Fields, at $40, with no differentiation for court and office work.

The other lawyers who are entitled to compensation are 
William E. Caldwell, Norm an J. Chachkin and Bill Lann Lee.

Caldwell became involved in this case as an attorney from the 
commencement of his practice in 1970. He took a leave of 
absence from the firm of Ratner & Sugarmon to work with the 
Lawyers Committee for Civil Rights Under Law in W ashington, 
D .C. He returned in October 1978 and assumed the role of lead 
counsel in these attorneys fee proceedings. As o f the time o f his 
Third Supplemental Affidavit filed August 5, 1980, he stated his 
“ professional rate for federal litigation on behalf of the few fee­
paying clients”  o f his was $90 per hour. This Court finds that 
the rates per hour to be paid him to compensate for inflation 
should be $90 per hour for in-court services and $60 per hour 
for office services.

Norm an J. Chachkin was a staff attorney for the Legal 
Defense Fund from April 1969 until June 1975. He did much of 
the appellate work on the case and reviewed or duplicated the



— A-93

work o f local counsel in this Memphis school case. Bill Lann 
Lee was the staff Legal Defense Fund attorney who replaced 
Chachkin as overseer o f the local attorneys. They are attorneys 
whom the Court o f Appeals have ordered to be compensated. 
They are attorneys who had no private practice. Therefore, we 
look to  the rates customarily charged in the community for 
similar services for guidance. Id. at 638. Their community is 
New York, and they say that the rates for their com parable ser­
vices are $125 for Chachkin and $90 for Lee. Based upon the 
m andate o f the Court of Appeals and the only evidence in the 
record, this Court establishes the rate for Chachkin to be $125 
for in-court services and $75 for out-of-court services, and the 
rate for Lee to be $90 for in-court and $60 for out-of-court ser­
vices.

The “ Appellate”  category includes briefing and argum ent — 
which the Court deems to be the equivalent o f being “ in court” 
on appeal — but such appeal-related services as record designa­
tion, appendix preparation, and procedural m otions are 
categorized as “ in-office”  services. The Court further finds 
that “ A ppellate”  services should be compensated at the same 
rate as “ In-court”  services.

Upward Adjustm ents

The Court o f Appeals noted on page 638 o f the rem and opi­
nion that the routine hourly rate o f an attorney may not be the 
maximum which can and should be awarded because it might 
not take into account the special circumstances which authorize 
a higher fee. The Court noted that perhaps the m ost significant 
factor which renders an hourly rate unreasonably low is the fact 
that the award is contingent upon success.

The attorneys for the plaintiffs in their proposed findings 
have divided the sevices rendered into categories which are bas­
ed upon the time and nature o f the services rendered. There are 
seven such categories for services rendered after 1968. These 
categories and the proposed upward adjustm ent for the con­
tingency factor are as follows:



— A-94 —

Upward Adjustment

Services Rendered Between 1968 
and This C ourt’s Liability Deci­
sion in December 1971 150%

Services Rendered Between
December 1971 and June 1972 50%

Appellate Services Between
June 1972 and August 1972 100%

Services Rendered During Final
Plan Proceedings August 1972
— July 1973 10%

M onitoring Services 1973-80 0%

Fees Litigation 1974-79 100%

Fees Litigation November 1979
to date 0%

This m ethod embraces in some categories the very thing that 
the Court o f Appeals rejected as not authorized, namely the 
“ bonus”  multiplier or “ w indfall,”  611 F.2d page 638.

For the period between 1968 and 1971, Louis Lucas and N or­
m an Chachkin seek compensation for courtroom  work at the 
rate o f $312.50 per hour. In the opinion o f this Court this is not 
what the Court o f  Appeals mandated.

Although the Court o f Appeals allowed a 10% contingency 
adjustm ent for the 1978 fee award, which they summarily ruled 
upon, this Court is not adjusting the hourly rates on the basis of 
the contingency element. On page 641 o f the remand opinion 
the Court o f Appeals distinguished the 1978 fee award fact 
situation from  the earlier phase o f the case in the following
manner:



— A-95

The hearings here involved were collateral to and 
distinct from the desegregation suit itself, which had been 
finally term inated in 1974, so had the plaintiffs failed to 
prevail on the merits the district court would have been 
justified in denying fees altogether. Therefore, there was a 
real element o f contingency as to whether the attorneys 
would be compensated for their services at all.

In the post 1968 phase o f this desegregation suit, the plaintiffs 
were seeking appropriate student and faculty desegregation 
against a defendant Board o f Education that had openly and de­
fiantly violated the constitution and was reluctant to  come into 
compliance with the constitution. It was actually a m atter of 
perseverence and allowing the trial and appellate courts to 
establish the ultimate standards in a rather slow trial and error 
m ethod.

Plaintiffs and their attorneys were the vicarious beneficiaries 
o f the landm ark trilogy o f Green, Raney  and M onroe, 391 U.S. 
430 et seq. (1968) (elimination o f ineffective freedom of choice 
and freedom of transfer, desegregation plans); Alexander v. 
Holm es County Bd. o f  Ed., 396 U.S. 19 (1969); and Carter v. 
West Felincia Parish School Board, 396 U.S. 226 (1969) (do it 
now); United States v. M ontgom ery County Bd. o f  Ed., 395 
U.S. 225 (1969) (a faculty desegregation case); Swan v. 
Charlotte-M ecklenburg Bd. o f  Ed. and Davis v. Bd. o f  School 
C o m m ’rs, 402 U.S. 1 and 33 (1971) (the busing cases); and Nor- 
thcross v. Bd. o f  Ed. M em phis City Schools, 412 U.S. 427
(1973) 3 or Bradley v. Richm ond School Bd., 416 U.S. 696
(1974) , (attorneys fee cases).

3 The Supreme Court opinion in this Northcross case was one which 
indicated fees were allowable on the application of the plaintiffs based 
upon the first application for fees in this case, which application was 
made in the Court of Appeals, not this Court. In spite of the Supreme 
Court opinion, which was favorable for fees to be awarded, on re­
mand the Court of Appeals for the Sixth Circuit refused to award fees 
because the application was untimely filed.



A-96

It must be remembered that in many instances the plaintiff 
took implausible, extreme positions that were not adopted. 
While the Court o f Appeals has ruled that this does not prevent 
awarding fees for those unsuccessful services, those services 
should certainly not be a factor in a contingency additur.

Based upon the above reasons the Court hereby makes the 
following findings for the hours worked by the respective a t­
torneys for the various allowable periods covered by this ruling.

Services Rendered between Plaintiffs’ 1968 G reen  Motion 
for Further Relief and this Court’s Decision of December 
10, 1971:

The Court finds that the following hours o f services were 
rendered by plaintiffs’ attorneys during the period between 
plaintiffs’ 1968 Green m otion for further relief and this C ourt’s 
opinion o f December 10, 1971, holding the Board constitu­
tionally liable for the school segregation then existing. Ten per­
cent has been deducted for duplication.

Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Lucas 361 -36.1 =324.9 391 -39.1 =351.9 352.1 -35.21 =316.89
Caldwell 126 -12 .6  =93.4 22 -2 .2  = 19.8 275.6 -27.56 =248.04

Chachkin — — — 125 -  12.5 = 112.5 115.6 -11.56 =104.04

Services Rendered between December 10, 1971, 
and June 1972 (Plan A proceedings):

The Court finds that the following hours o f services were provided by 
plaintiffs’ lawyers during the remedial proceedings from  December 
1971 to June 1972.

Lawyer: In-Court Hours:
Lucas 1 4 -1 .4 = 1 2 .6
Caldwell 96 -9 .6  =86.4 
Chachkin — — —

Appellate Hours:

20 - 2  =18

In-Office Hours:
70 -  7 = 63

243 -24.3  =218.7 
33 -  3.3 = 29.7



A-97 —

Appellate Services Rendered between 
June 1, 1972 and August 29, 1972:

The Court finds that the following appellate services were 
rendered between June 1 and August 29, 1972.

Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Lucas — 24 -  2.4 = 21.6 4 -  .4 = 3.6

Caldwell — 186 -18 .6  =167.4 35 -3 .5  =31.5

Chachkin — 237 -23 .7  =213.3 27.5 -2 .75 =24.75

Services Rendered during Plan Z Proceedings 
August 29, 1972 to July 1973:

The Court finds that the following hours o f services were 
rendered by plaintiffs’ counsel during the rem and proceedings 
leading up to  this C ourt’s Plan Z orders.

Lawyer: In-Court Hours: Appellate Hours:
Lucas 18 -1 .8  =16.2 —
Caldwell 90 -  9 = 81 —
Chachkin 75(A p)-7.5 = 67.5

In-Office Hours:
10 - 1  = 9 

306.6 -30 .6  =275.4 
67.3 -6 .73 = 60.57

Monitoring Services — 1973-1980

The Court finds that the following hours o f m onitoring ser­
vices have been provided by plaintiffs’ counsel since 1973.

Lawyer: In-Office Hours:

Caldwell 104.4 -1 0 .4 4 = 93.96

Chachkin 11 -  1.1 = 9.9

Noel 28.9 -  2.89 = 26.01

Fields 115.6 -1 1 .5 6 = 104.04

Fees Litigation------ 1974-1979

The Court finds that plaintiffs’ counsel expended the follow­
ing hours litigating their entitlement to  attorneys fees between 
1974 and the November 1979 decision o f the Court o f Appeals.



— A-98

Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Lucas 8 18
Caldwell 18 202.99 278.45
Chachkin 76* — 60.5
Noel — — 5

No duplication adjustm ent is applied to  this category o f service.

* Includes 70 hours from 1972-73 re: 20 U .S .C . §1617 (items 
143 and 162, Ex. 1 to Chachkin Aff.).

Fees Litigation------November 1979 to Date

The Court finds that the following hours o f service have been 
expended on the fees issue since the decision o f the Court o f Ap-
peals.

Lawyer: In-Court Hours: Appellate Hours: In-Office Hours:
Caldwell —— 17.65 38.5
Chachkin ----- 3.0 —
Lee ----- 7.9 ___

TOTAL FEE AWARD
Lawyer: In-Court Hours: Appellate Hours: In-Office Hours: Total:
Lucas (735.2 @ $125.) 

$91,900.00
(410.49 @ $75.) 
$30,786.75 $122,686.75

Caldwell (704.64 @ $90.) 
$63,417.60

(1184.1 @ $60.) 
$71,046.00 $134,463.60

Chachkin (472.30 @ $125.) 
$29,037.50

(289.46 @ $75.) 
$21,709.95 $80,747.45

Fields (104.04 @ $40.) 
$4,161.60 $4,161.60

Noel (31.01 @ $60.) 
$1,860.60 $1,860.60

Lee (7.9 @ $90.) 
$711.00 $711.00

TOTAL: $344,631.00



— A-99 —

In summary the Court notes that it has accepted the hours 
claimed by the plaintiffs’ attorneys even though in some 
respects they were based upon estimates due to a lack o f ac­
curate records. These hours were subject only to an 
“ arb itrary” duplication adjustm ent applied to certain types of 
services. The Court has also increased the rate for earlier ser­
vices by an inflation factor by applying a recent rate retroactive­
ly. It has also refused to  award a “ bonus”  or “ w indfall,”  it has 
refused to award an “ arbitrary”  upward adjustm ent for a con­
tingency for the period 1968 to date, and it has denied the 
pre-1968 claim. This represents this C ourt’s attem pt to comply 
with the comm and of the Court o f Appeals as set forth in the re­
m and opinion and in the light o f the “ discretion”  given to 
district courts by the congress in the applicable statutes.

While this award appears to be a large am ount o f money, it 
must be remembered that the services extended over a long 
period o f time and were required in a large measure because the 
defendant school board took a determined position not to com­
ply with the constitution as interpreted by the rulings o f the 
Supreme Court.

Litigation Costs and Expenses

The plaintiffs have itemized litigation expenses and costs in 
the am ount o f $35,128.22 (3d Supp. Caldwell A ff., 13) (Supp. 
Chachkin Aff. 113, 4 and Exhibit 1) (Joint Caldwell/Chachkin 
A ff., 17 and Exhibit 2). There is no dispute that the plaintiffs 
actually expended this am ount o f money in connection with this 
litigation, and the Court so finds.

The Court o f Appeals held as follows with respect to plain­
tiffs’ entitlement to  recovery of out-of-pocket expenses (611 
F.2d at 639):

There are two separate sources o f authority to award 
out-of-pocket expenses. Some expenses are included in the 
concept o f attorneys’ fees, as “ incidental and necessary ex-



A-100

penses incurred in furnishing effective and competent
representation,”  and are thus authorized by §1988-----The
authority granted in §1988 to  award a “ reasonable a t­
torney’s fee”  included the authority to award those 
reasonable out-of-pocket expenses incurred by the a t­
torney which are normally charged to a fee-paying client, 
in the course o f providing legal services. Reasonable 
photocopying, paralegal expenses, and travel and 
telephone costs are thus recoverable pursuant to the 
statutory authority o f §1988.

Other costs are on a different footing. These include 
those costs incurred by a party to be paid to a third party, 
not the attorney for the case, which cannot reasonably be 
considered to be attorneys’ fe e s .. .  .These include, among 
others, docket fees, investigation expenses, deposition ex­
penses, witness expenses, and the cost of charts and maps. 
Most o f these expenses have long been recoverable, in the 
C ourt’s discretion as costs, pursuant to  28 U.S.C. §1920

With respect to statutory costs, the Court o f Appeals further 
stated as follows {icl. at 640):

The award of statutory costs is a m atter for the district 
court, in its best judgment as to what was reasonable and 
necessary, and the appellate courts will not normally in­
terfere with the exercise o f that discretion. . . .  It would be 
advisable for litigants to obtain authorization from the 
district court before incurring large items o f expense, 
though of course, failure to do so does not bar reimburse­
ment if the trial court should decide that the expenditures 
were nevertheless reasonable and necessary.

This Court disallows the following items in that they do not 
fit into the reasonable and necessary category:



— A-101 —

3/31/60 Cost bond $250.00

2/23/63 Dr. Floyd Bass, Expert $492.58

6/4/63 Dr. Floyd Bass, Expert $ 54.13

3/14/69 Dr. Gordon Foster, Expert $1246.75

10/19/71 Lunch for Experts $ 16.35

12/5/71 Dr. Gordon Foster, Expert $218.95

1/24-26/72 Dr. Gordon Foster and 
Dr. Marzell, Experts $1569.19

3 /5 /72 Dinner for experts $ 39.22

2 /1 /72  - 
3/20/72 Dr. Gordon Foster, Expert $793.59

3/20/72 Dr. Gordon Foster, Expert $205.78

3/28/72 - 
4 /5 /72 Dinner Expenses for Experts $ 44.57

12/7/73 Barry W iener, Investigator $ 50.00

6/12/79 Lunch $ 3.50

6/13/79 Lunch $ 5.00

$7002.61

Dr. Foster was a way-out expert that recommended some ex­
treme plans for allegedly desegregating the schools.

Therefore, the Court deducts from  the expenses claimed the 
sum of $7002.61 and awards as reasonable and necessary ex­
penses $28,125.61.

All am ounts previously paid on the fees award herein shall be 
credited in the judgm ent, and no interest is allowed in view o f 
the inflation factor phase o f the award.

IT IS SO ORDERED.
ENTER: This 4th day o f January 1982.

/ s /  Robert M. McRae, J r., Judge



— A-102 —

APPENDIX J

IN TH E UNITED STATES DISTRICT COURT FOR TH E 
M IDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

Civil Action Nos. 2094 & 2956

Robert W. Kelley, et al,
Henry C. Maxwell, et al,

Plaintiffs,

vs.

M etropolitan County Board 
o f Education of Nashville 

and Davidson County,
Tennessee, et al,
Defendants and 

Third-Party Plaintiffs,

Mansfield Douglas, et al and 
M etropolitan County Board of 

Education o f Nashville and 
Davidson County, Tennessee, 

et al,

v.

Elliott L. Richardson, et al,
Third-Party Defendants.

PETITION FOR ATTORNEYS FEES 

(Filed Feb. 8, 1974)

The petitioners, Third-Party Plaintiffs in the above action, 
move the Court to allow them an attorneys fee in the am ount of 
thirty-five thousand ($35,000) dollars, or in such other lessor



A - 1 0 3  —

am ount as the Court deems reasonable, and reimbursement of 
the costs they have incurred in the course o f this litiation. This 
petition is filed pursuant to  the authority o f Title 7, Section 718 
o f the Emergency School Aid Act (20 USC §1617), and is based 
upon the following grounds:

1. The above statute provides that, upon the entry o f a final 
order by a court o f the United States against the United States 
or any agency thereof, for failure to comply with the Emergency 
School Aid Act or for discrimination on the basis o f race, color 
or nationality in violation o f the Fourteenth Am endment to the 
Constitution o f the United States as they pertain to elementary 
and secondary education, the Court may allow the prevailing 
party a reasonable attorneys fee, in addition to other costs of 
litigation.1 This provision became effective on July 1, 1972, and 
has been in effect throughout the pendency o f this Third-Party 
action.

2. The United States Supreme Court has construed this provi­
sion to mean that a plaintiff who obtains affirmative relief in a 
civil rights case involving elementary and secondary education 
“ should ordinarily recover an attorneys fee unless special cir­
cumstances would render such an award un ju st” , Northcross v. 
Board o f  Education o f  the M em phis City Schools, 93 Sup. Ct. 
2201 (1973). No such circumstances exist in the present case. 
The Third-Party plaintiffs have derived no personal benefit

1 “ Upon the entry of a final order by a Court of the United States 
against a local educational agency, a State (or any agency thereof), or 
the United States (or any agency thereof), for failure to comply with 
any provision of this chapter or for discrimination on the basis of 
race, color, or national origin, in violation of Title VI of the Civil 
Rights Act of 1964, or the Fourteenth Amendment to the Constitution 
of the United States as they pertain to elementary and secondary 
education, the Court, in its discretion, upon finding that the pro­
ceedings were necessary to bring about compliance may allow the 
prevailing party, other than the United States a reasonable attorney’s 
fee as part of the cost.” 20 USC



A-104 —

from  the assertion o f their claim, the judicial assertion o f the 
claim was clearly necessary in order to obtain the relief sought, 
and the judgm ent obtained may assist the M etropolitan School 
System very significantly in its efforts to achieve desegregation 
in accordance with the C ourt’s previous orders. Under these 
circumstances an award o f attorneys fees would be appropriate 
even in the absence o f statutory authorization. Bell v. School 
Board o f  Powhatan County, Virginia, 321 F.2d 494, 500 
(Fourth Cir. 1963) (“ Attorneys fees justified when the bringing 
of action “ should have been unnecessary and was compelled by 
unreasonable, obduite obstinacy” ) and Brewer v. School Board 
o f  City o f  N orfolk, Virginia, 456 F.2d 943, 951 (Fourth Cir. 
1972) (Award o f attorneys fees justified when plaintiff obtained 
monetary benefit for a class o f persons, equivalent to a ‘com­
mon fund’).

3. It has been held that, in determining the appropriate o f at­
torneys fees to be awarded in cases o f this nature, the following 
factors may be considered: The nature o f the litigation, the 
amount involved in the controversy, the result o f the suit, the 
length o f time spent on the case, the care and diligence exercis­
ed, and the character and standing o f the attorney. Berkshire 
M utual Insurance Company  v. M offe tt, 378 F.2d 1007 (Fifth 
Cir. 1967). The petitioners respectfully submit that the fee re­
quested is justified on the above grounds, and that it is consis­
tent with fees customarily paid for the performance o f similar 
legal services in the Federal Courts for the Middle District of 
Tennessee.2 The petitioners submit herewith a summary o f the 
hours spent and expenses incurred in the preparation and 
presentation o f the Third-Party claim in this case.

2 Note for example that the private attorneys representing 
Metropolitan Government on appeal from the Court’s latest 
desegregation order in the captioned case, were paid a fee of fifty 
thousand ($50,000) dollars.



— A-105 —

Respectfully submitted,

GU LLETT, STEELE, SANFORD, 
ROBINSON & M ERRITT

BY: / s /  Gilbert S. M erritt

W ILLIS, KNIGHT & BARR

BY: / s /  Alfred H. Knight, III



— A-106 —

APPENDIX K

IN TH E DISTRICT COURT OF TH E UNITED STATES 
FOR TH E M IDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

Civil Action Nos. 2094 & 2956

Robert W. Kelley, et al

vs.

The M etropolitan County 
Board o f Education, et al

MOTION OF PLAINTIFFS FOR GRANTING OF THEIR 
REQUESTS FOR COUNSEL FEES

Plaintiffs, by their undersigned counsel, respectfully renew 
their repeated requests, during the course o f this litigation, for 
an award o f costs and reasonable counsel fees; specifically, 
plaintiffs would show this Court that Sec. 718 o f the Education 
Amendments o f 1972, 20 U .S.C. Sec. 1617, requires such an 
award in their favor since they are the prevailing parties in this 
school desegregation case, prosecution o f which was made 
necessary by the defendants’ continuous failure and refusal to 
carry out their constitutional obligations, and further, that Sec. 
718 requires that this Court make such an award for the entire 
course of this litigation, see Bradley v. School Bd. o f  R ich­
mond, 416 U.S. 696 (1974). Plaintiffs submit herewith a legal 
m em orandum  which outlines their right to such an award.

Plaintiffs respectfully suggest that it would be appropriate for 
this Court to decide the issue o f defendants’ liability for an 
award o f fees in favor of plaintiffs before issues concerning the 
am ount of a reasonable award are litigated. Such a procedure 
would also permit the parties to attem pt to settle those issues 
through settlement negotiations which are, however, unlikely to 
be fruitful in the absence of a ruling on plaintiffs’ entitlement to 
an award. See Bradley, supra, 416 U.S. at 705. Accordingly,



— A-107

plaintiffs do not submit herewith docum entation o f the 
thousands o f hours’ work perform ed by their counsel over the 
years in this m atter, nor o f the thousands o f dollars o f expenses 
incurred in the successful prosecution o f this action. That 
materia! is being prepared, however, for submission to  the 
Court at the appropriate time.

W HEREFO RE, plaintiffs respectfully pray that upon con­
sideration o f this M otion, the M emorandum  filed herewith, and 
after such further proceedings as are appropriate, this Court 
issue its Order awarding plaintiffs costs and reasonable counsel 
fees from  the commencement o f this litigation — and its predec- 
cessor Kelley and M axwell actions— to date, and directing the 
parties to  attem pt to agree upon the am ount o f such a 
reasonable fee, reserving power unto the Court to set such 
am ount in the absence o f agreement.

Respectfully submitted,

AVON N. W ILLIAM S, JR.
1414 Parkway Towers 
Nashville, Tennessee 37219

JACK GREENBERG 
JAM ES M. NABRIT, III 
NORM AN J. CHACHKIN 
10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Plaintiffs



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