Plaintiffs' Response to Motions to Tax Costs with Cover Letter

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 72-1809 — 72-1814

RONALD BRADLEY, et a l .,

Plaintiffs-Appellees,

-v . -

WILLIAM G. MILLIKEN, et a l . ;
BOARD OF EDUC. OF THE CITY 
OF DETROIT, et a l.,

Defendants-Appellant s,

and

ALLEN PARK PUBLIC SCHOOLS, et a l .,

Defendants-Intervenors- Appellants.

On Appeal from the United States District Court 
for the Eastern District of Michigan, 

Southern Division

RESPONSE OF PLAINTIFFS-APPELLEES TO 
MOTIONS TO TAX COSTS



Two of the principal sets of appellants, which we identify herein
1/ 2/

as State Defendants and Intervenor School Districts and sometimes refer

to collectively as nmovants, " have moved the Court to tax certain costs
3 /

of these appeals against plaintiffs-appellees. These motions are prompted 

by the Supreme Court's July 25, 1974 reversal of this Court's previous 

judgment (484 F.2d 215), insofar as that judgment authorized, on the 

present state of the record, an inter-district remedial decree. The mo­

tions also seek to find support in the Supreme Court's October 15, 1974 

denial of plaintiffs-appellees' (resondents Ronald Bradley, et a l .) motion

1/  These defendants-appellants (William G. Milliken, et a l.) are the 
State of Michigan's Governor, Attorney General, Treasurer, Superinten­
dent of Public Instruction and State Board of Education.

2/  These intervenors-appellants (Allen Park Public Schools, et a l .) are 
43 suburban school districts located in the Detroit metropolitan area 
who intervened as defendants in the district court. (They include Grosse 
Point Public Schools which appeared separately in this case before the 
Supreme Court.)

3 / Plaintiffs-appellees (Ronald Bradley, et a l .) are Detroit school children 
and their parents, and the Detroit Branch NAACP.

Two other parties were principal appellants in this Court: intervenors- 
appellants Kerry Green, et a l., are suburban children and their parents 
who, along with their representative organization, intervened as defendants 
in the district court; defendants-appellants Board of Education of the City 
of Detroit, et a l., are the Detroit Board, its members and Superintendent 
of Schools (hereafter "Detroit Board Defendants"). Neither of these 
parties-appellants have requested retaxation of costs, nor have they joined 
in the motions of the State Defendants and Intervenor School Districts. In 
fact, the Detroit Board defendants have filed papers in opposition to the 
motions, although the motions appear to seek taxation of costs only 
against plaintiffs-appeilees.



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to require each party in the Supreme Court to bear its own costs there.

The precise situation here under consideration is governed explicitly 

neither by the Federal Rules of Appellate Procedure nor by the Supreme 

Court Rules, both of which are silent on the question of what happens 

to a court of appeals' cost disposition when the judgment's substance 

is altered by a supervening Supreme Court judgment. We are of the 

view, nevertheless, that the cost disposition may be revisited following 

decision by the Supreme Court, at least where, as here, the Supreme 

Court’ s opinion and judgment substantively change the court of appeals' 

judgment. We therefore believe that the motions of State Defendants 

and Intervenor School Districts to tax costs, which we construe as motions 

to have the Court reopen its previous judgment as to the disposition of

1/

4 / The Detroit Board Defendants incorrectly assert in their opposition 
papers that the Supreme Court has "ruled" that Supreme Court costs 
"were to be taxed to Respondents Ronald Bradley, et al. ” This state­
ment is accurate only if the "et a l ." is interpreted as including Detroit 
Board Defendants, who were also respondents in the Supreme Court. In 
the Supreme Court the Detroit Board filed a memorandum with regard 
to costs, requesting as follows:

the Detroit Board of Education respectfully 
submits that if this Honorable [Supreme] Court 
chooses to tax costs, rather than permitting 
each participant to bear its own costs, the 
Detroit Board of Education should not be re­
quired to contribute to such taxable costs.

That request was not granted, and the October 23, 1974 letter from the 
Supreme Court Clerk (Exhibit E to State Defendants' motion) gives peti­
tioners recovery for costs to "be collected directly from opposing counsel 
or parties" - -  which includes Detroit Board Defendants.



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5 /
costs, are properly before the Court. We also agree to the applicability 

of Rule 39, F .R . A .P . At that point our agreement with movants ends.

In opposition to the motions to tax costs, plaintiffs- appellees 

respectfully submit that: (1) the Supreme Court’ s reversal of part of 

this Court’ s judgment has not sufficiently altered the won/lost balance 

among the parties to require a change in this Court’ s previously-exercised 

discretion under Rule 39(a); (2) the partial costs for which movants seek 

reimbursement are (insofar as itemized) either excessive or unrecoverable, 

and (insofar as not itemized) they are not properly set forth as required 

by Rule 39(c) so as to enable a determination of their reasonableness;

(3) should the Court nevertheless decide to reopen its previous judgment 

as to costs, the Court should (a) require movants to itemize their costs,

5 / We thus disagree with the Detroit Board’s apparent contention that 
movants’ failure to seek Supreme Court review of that portion of this 
Court’ s judgment directing each party to bear its own costs (see 484 
F. 2d at 258) bars the present motions. We also do not acquiesce in 
the Detroit Board’ s argument that movants’ purported bills of costs 
are untimely because not received by the Clerk of this Court within 
14 days (Rule 39(c), F.R. A .P .) after the October 23 mailing of the 
Supreme Court’ s judgment to this Court (i. e . , after entry of the Supreme 
Court’ s judgment). First, the 19-day delay attributed to movants has not 
prejudiced any party. Second, the papers appear to have been mailed 
within the 14-day period referred to by the Detroit Board. Cf. Rule 25(a), 
F.R. A .P. Third, there is no court rule expressly applicable to this situ­
ation. And, finally, the events which should trigger cost inquiries or 
motions are frequently so obscure and uncertain that parties who proceed 
with due diligence under the circumstances should not be time-barred— 
and certainly not by an implied time rule.



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and allow plaintiffs-appellees an opportunity (b) to challenge the reason­

ableness of movantsT claimed costs and (c) to file a bill of costs on 

behalf of plaintiffs. We discuss these points seriatim.

I.

When this case was before the Court for decision on the merits, 

the issues were large in number and they were multi-faceted. In addi­

tion to the issues presented by appellants (State Defendants, Intervenor 

School Districts, Kerry Green, et a l., and Detroit Board Defendants), 

the Court itself requested briefing of several specified issues: the appli­

cability and constitutionality of §803 of the Education Amendments of

1972 (which had been injected into the litigation by some of the appellants
6/

in their quest for a stay), the precise legal status of local school dis­

tricts under Michigan law, and the existence of Michigan legislation, if
V

any, authorizing district court-required expenditures. The issues argued by 

appellants, and their respective ultimate dispositions, is relevant to the 

present cost dispute. In that regard, we shall briefly summarize the pre­

sent status of the two movants, noting first that the appeal of the Detroit

6/  The Court found it unnecessary to decide the §803 issues "since no final 
desegregation order has been entered. ” 484 F. 2d at 258. These issues were 
not presented to the Supreme Court.

7 / AppellantsT contentions were rejected by the Court’ s conclusion that: "In 
Tlie exercise of its equity powers, a District Court may order that public 
funds be expended, particularly when such an expenditure is necessary to 
meet the minimum requirements mandated by the Constitution." 484 F .2dat 
258.



Board Defendants (challenging the district court's findings and conclusions 

of unconstitutional segregation in Detroit's public schools) was totally 

unsuccessful, which result received Supreme Court approval. See Slip op. 

at 18-19n. 18.

A. Intervenor School Districts. Aside from the issues briefed
8/

(at pp. 55-101 of Intervenor School Districts' Brief) in response to 

this Court's directive (noted above), these appellants made four general 

contentions: (1) that on this record a metropolitan remedy was not per­

missible and a unitary system could be accomplished within Detroit 

(Intervenor School Districts' Brief at 14-40); (2) that the district court 

erred in finding de jure segregation in Detroit Schools (at 40-42); (3) 

that appellants were denied due process by the district court proceedings 

(at 42-47); (4) that a three-judge district court should have been convened 

(at 47-55). Appellants thus requested this Court to "reverse and set aside" 

all of the district court orders being reviewed, and to remand with direc­

tions to dismiss the complaint (at 102-03). Appellants prevailed in this

8 / Page references to the briefs of both movants are to the printed 
briefs substituted for the initially-filed typewritten briefs. We are 
not apprised as to why printing was deemed necessary; the photocopied 
typewritten briefs were quite clear and manageable, and they otherwise 
complied with Rule 32, F. R. A .P.

I

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Court on the third argument (484 F. 2d at 251-52), and in the Supreme 

Court on the first argument. The fourth argument was rejected sum­

marily by this Court (484 F. 2d at 258), and review thereof was not 

sought. The second argument was lost both here and in the Supreme 

Court. Slip op. at 18-19n. 18.

B. State Defendants. These appellants, in addition to the CourtTs 

stated issues (State’ s Brief at 6-26, 102-135), made five general conten­

tions: (1) the district court’ s findings of de jure segregation in Detroit’ s 

schools was error (at 26-37); (2) the district court erred in implicating 

State Defendants in the Detroit violations (at 38-40, 54-76); (3) the lower 

court erred in denying State Defendants’ Rule 41(b) motions and in re­

lying on evidence received after the motions were made (at 40-54); (4) 

even intra-Detroit desegregation should not be system-wide, but should 

be limited to certain schools (76-80, 135-36); (5) on this record an 

inter-district remedy is impermissible and a unitary system can be 

accomplished within Detroit (at 80-101). This Court was requested to 

reverse all orders and remand with directions to dismiss the complaint 

’ ’with prejudice.” (at 136-37). State Defendants lost all five arguments 

in this Court. In the Supreme Court they prevailed on argument five, 

but the Supreme Court accepted arguendo this Court's disposition of 

State Defendants’ second argument. Slip op. at 26, 28. And, as 

previously noted, the Supreme Court rejected the first argument.



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Slip op. at 18-19n. 18. No review was sought of the third and fourth 

arguments.

Thus, both movants have failed to prevail, either here or in 

the Supreme Court, on a number of principal issues which they pre­

sented on appeal to this Court. True, the inter-district remedy has 

beeh held improper on the present state of the record, but despite 

their persistence movants have not be en successful in their efforts to 

reverse the Detroit violation findings and conclusions. Moreover, it 

has been conclusively determined that State Defendants share responsi­

bility for Detroit’ s public school segregation; they are therefore required 

to participate in the intra-district remedy ordered by the Supreme Court.

Although plaintiffs-appellees were the primary prevailing parties 

in this Court, it was determined, both in panel and en banc, that: tTNo 

costs are taxed. Each party will bear his own costs .tT 484 F. 2d at 

258. We presume that the Court’ s previous dispositions as to costs 

were exercises of Court discretion under Rule 39(a), which directs in

pertinent part: ”if a judgment is affirmed or reversed in part, or is
9 /

vacated, costs shall be allowed only as ordered by the court. ”

9 / Supreme Court Rule 57 contains no similar provision. That Court’ s 
Rule 57(2) provides that ” [i]n cases of reversal or vacating of any judgment 
or decree by this court, costs shall be allowed to the appellant or petitioner, 
unless otherwise ordered by the court. ” In the Supreme Court, plaintiffs- 
appellees were thus attempting to be exempted from the normal operation 
of the Rules, The Supreme Court's assessment of costs, upon which movants 
appear to rely, is clearly not applicable to the taxation of costs in this Court, 
where the judgement is broader and more complex, and where a different 
rule governs.



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The Supreme Court’ s decision, supervening part of this Court’ s judgment, 

has not altered the Rule 39(a) status of the case. This Court’ s judgment, 

as changed in part by the Supreme Court, continues to be one affirming 

in part, and reversing and vacating in part, the orders of the district 

court. Plaintiffs-appellees continue to be prevailing parties, as against 

all appellants, in a very substantial and important part of the case.

The Court’ s discretion under Rule 39(a) remains, and we respectfully 

submit that its exercise should remain the same.

In conclusion, the present circumstances no more favor allowing 

costs to movants than the previous situation favored allowing costs to
W

plaintiffs-appellees. Consistency requires the result to remain unchanged.

II.

For reasons set forth above, this Court’ s prior judgment as to 

the assessment of costs should not be disturbed. Here we offer additional

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10/  We also note that, notwithstanding the impression they attempt to 
leave, movants have not borne the burden of the appellate costs by 
any means. As the State Defendants point out in their motion (p. 2), 
’ ’the total costs of printing the appendix in this Court was $69,985.00.” 
Yet, State Defendants request reimbursement for only $17, 524.85, and 
Intervenor School Districts request $21,131.13 (or $491,42 for each 
of the 43 intervenor districts), making a total request of $38, 655.98. 
We are advised that the Detroit Board defendants are responsible for 
the remaining $31, 329.02 in appendix costs. Thus, movants have 
undertaken only about 55% of the appendix costs.



support for that conclusion by pointing out the extravagence of some of 

the expenses sought to be included in the bills of costs, and by empha­

sizing that movants have not complied with Rule 39(c)Ts requirement 

of "an itemized and verified bill of costs ." (emphasis added).

The purpose of the itemization requirement is revealed by another 

portion of Rule 39(c) which states that printing costs "shall be taxable... 

at rates not higher than those generally charged for such work in the 

area where the clerk’ s office is located." If the "rates" are not reflected 

in the bill of costs, then the rule has not been complied with and it is 

impossible to determine the reasonableness of the costs asserted. Inter- 

venor School Districts’ bill of costs is in total noncompliance. It merely 

lists $21,131.13 for the joint appendix and $4,340.00 for the brief, at­

tributable to the J. D. Reardon Printing Company. How these figures
11/

were computed and the printing rates are nowhere revealed. The invoices 

submitted by the State Defendants with reference to appendix costs

11/ They are patently excessive, however. These movants, for example, 
claim $4, 340.00 in costs for their 104-page printed brief. The State 
Defendants, on the other hand, claim $2,547.95 for 179 copies of their 
137-page printed brief. Thus, Intervenor School Districts either ordered 
twice as many (or more) copies, or paid twice the rate, as the State 
Defendants. In either event, the claim is patently excessive. And since 
the Reardon Co. also printed the Appendix, we presume a similar extrav­
agence in connection with the appendix costs asserted by both sets of 
movants.



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(Exhibits B and C to State’ s Motion) are likewise inadequate, in addition 

to being completely confusing. Nowhere are the rates revealed, and 

we are not informed as to why there are two invoices (one dated 

10/11/72 and one dated 12/4/72), nor how they are compiled.

State Defendants’ invoice (dated 8/31/72) for printing their 

brief (Exhibit A) might comply with the itemization requirement, but 

we think it reveals an excessive rate ($7. 70 per page) and a patently 

excessive number of copies (179). No explanation is proferred.

In short, movants are seeking to impose a $45, 000 cost liability 

on plaintiffs-appellees (the proven victims of state-imposed racial discrim­

ination in public education), without full--indeed, any--disclosure of how 

the liability is computed. It is difficult to recall that these are the same 

parties who have vociferously insisted on ’ ’due process” throughout this 

litigation. Movants’ failure to comply with Rule 39(c), standing alone, 

requires denial of their motions.

m .

Should the Court nevertheless determine to reopen its judgment 

as to costs, plaintiffs-appellees respectfully request that movants be 

required to disclose the rates and methods of computation for the 

amounts contained in their bills of costs, and that plaintiffs-appellees 

be afforded an opportunity to contest the reasonableness of the amounts



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claimed. Plaintiffs-appellees further request, in such event, that 

they be allowed to file a bill of costs in connection with those aspects 

of these appeals upon which they prevailed, to be paid by movants and

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the Detroit Board defendants.

Respectfully submitted,

LOUIS R. LUCAS
Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

£
J. HAROLD FLANNERY 
PAUL R. DIMOND 
WILLIAM E0 CALDWELL 

520 Woodward Bldg.
733 - 15th Street, N.W. 
Washington, D. C. 20005

NATHANIEL R. JONES 
1790 Broadway 
New York, New York 10019

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellees



CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 3  day of December, 

1974, he served one copy of the foregoing Response on each of the parties 

herein by United States air mail, postage prepaid, addressed as follows:

Gerald F. Young, Esq.
Assistant Attorney General 
750 Law Buildi g 
525 West Ottawa Street 
Lansing, Michigan 48913

George T. Roumell, J r., Esq.
Riley and Roumell 
7th Floor Ford Building 
Detroit, Michigan 48226

William M. Saxton, Esq.
John B. Weaver, Esq.
Robert M. Vercruysse, Esq.
X. Orhan, Esq.
Butzel, Long, Gust, Klein & Van Zile 
1881 First National Building 
Detroit, Michigan 48226

Douglas H. West, Esq.
Hill, Lewis, Adams, Goodrich 

& Tait
3700 City National Bank Building 
Detroit, Michigan 48226

Richard P. Condit, Esq.
Condit and McGarry, P. C.
860 West Long Lake Road 
Bloomfield Hills, Michigan 48013

Kenneth B. McConnell, Esq.
Hartman, Beier, Hewlett, McConnell 

& Googasian
74 West Long Lake Road 
Bloomfield Hills, Michigan 48013

WILLIAM E. CALDWELL