Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Motion for Leave to File Supplemental Reply Brief and Supplemental Reply Brief on Rehearing of Plaintiffs-Appellants, Cross-Appellees

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

Nos. 83-5175/5243

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

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

Defendants-Appellees, 
Cross-Appellants.

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

Nashville Division
MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY 

BRIEF AND SUPPLEMENTAL REPLY BRIEF ON 
REHEARING OF PLAINTIFFS-APPELLANTS, 

CROSS-APPELLEES * 1

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
THEODORE M. SHAW

1 6th Floor 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37201 
(615) 244-3988

Attorneys for Plaintiffs-
Appellants, Cross-Appellees



TABLE OF AUTHORITIES
Pages

Cases :
Bradley v. School Board of Richmond, 416 U.S.

696 ( 19 7 4 )....................................  1 , 2, 3
Hutto v. Finney, 437 U.S.678 (1978) ...............  2
Linkletter v. Walker, 381 U.S. 618 ( 1965)........  2
Morrow v. Dillard, 580 F .2d 1284 (5th Cir. 1978) . . 3
Northcross v. Board of Education, 611 F.2d 624

(6th Cir. 19 7 9 ) ................................  1 / 2
Terrell v. Household Goods Carrier's Bureau, 494 F.2d

16 (5th Cir. 1974)............................ 3
Statutes:
42 U.S.C. § 1988 ....................................  2
Section 718, Emergency School Aid Act of 1972 . . .  2
Other Authorities:
H. Rep. No. 74-1558 (94th Cong., 2d Sess., 1976) . 3, 4
S. Rep. No. No. 94-1011 (94 Cong., 2d Sess., 1976) . 4



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

Nos. 83-5175/5243

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

v .

METROPOLITAN COUNTY BOARD OF EDUCATION, 
et al. ,

Defendants-Appellees, 
Cross-Appellants.

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

Nashville Division
MOTION FOR LEAVE TO FILE 
SUPPLEMENTAL REPLY BRIEF

Plaintiffs-appellants move the Court for leave to file the 
attached Supplemental Reply Brief. Its purpose is to respond 
briefly to arguments made by the defendants-appellees in their 
Supplemental Brief on Rehearing. While the Court's order setting 
a briefing, schedule for the en banc hearing of this case does not 
specify that a reply brief may be filed by plaintiffs-appellants, 
it is appropriate to permit them to file a reply brief in accord 
with usual practice.



WHEREFORE, plaintiffs pray that the attached Supplemental 
Reply Brief on Rehearing plaintiffs-appellants may be filed.

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
THEODORE M. SHAW

16th Floor 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37201 
(615) 244-3988

Attorneys for Plaintiffs-
Appellants, Cross-Appellees



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

Nos. 83-5175/5243

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

v .

METROPOLITAN COUNTY BOARD OF EDUCATION, 
et al. ,

Defendants-Appellees, 
Cross-Appellants.

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

Nashville Division

SUPPLEMENTAL REPLY BRIEF ON REHEARING 
OF PLAINTIFFS-APPELLANTS

Plaintiffs-appellants wish to respond to the first argument 
made by defendants-appellees, whether or not fees should be 
awarded for the litigation up to the 1971 order of the Court. We 
urge that a proper interpretation of the attorneys' fees acts 
which govern here requires that fees be given.

Defendant-appellees, on page 12 of their brief, state that 
"the Attorneys Fees Awards Act could be given retroactive effect 
but . . . retroactive relief was not automatic." This statement
is a misreading of Northcross v. Board of Education, 611 F.2d 624
(6th Cir. 1979), and is inconsistent with the decisions of the 
Supreme Court in Bradley v. School Board of Richmond, 416 U.S.



696 (1974) and Hutto v. Finney/ 437 U.S. 678 (1978). Bradley and 
Hutto squarely stand for the proposition that the two statutes at
issue here, § 718 of the Emergency School Aid Act of 1972 and 42 
U.S.C. § 1988, must be applied in a pending case to all work done 
in that case, including work done prior to the effective date of 
the statutes, unless such a result would cause "manifest injus­
tice". Bradley, 416 U.S. at 715-17; Hutto, 437 U.S. at 694, n. 
23.

We submit that no such special circumstance exist here and
indeed this case is strikingly similar to the facts of Bradley
itself. Just as in Bradley, this case was on appeal when § 718
became effective on July 1, 1972. Under Bradley, therefore,
there was created a clear entitlement to fees for all the work

2
done in the case up to that point. Thus, this is not a case 
like Northcross where a clearly defined part of the litigation 
had terminated six years prior to the enactment of any statute 
that would give rise to attorneys fees. Similarly, fees are not

This Court handed down its decision on May 30, 1972. 463 F.2d
732. The Supreme Court denied certiorari on November 6, 1972. 409 
U.S. 1001 (1972). The decision of this Court was not final until 
the time for petition for certiorari had elapsed. See Bradley, 
416 U.S. at 711, n. 4; Linkletter v. Walker, 381 U.S. 618, 622 n. 
5 (1965).
As we have noted in our Supplemental Brief at p. 5, n. 4, the 
1972 Act was in effect at the time the attorneys' fees motion was 
filed and remained in effect until superseded by the 1976 Act.

2



barred by the doctrine of the law of the case since a change in 
the law took place while the case was pending. See, e.g.f 
Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 19 (5th 
Cir. 1974); Morrow v. Dillard , 580 F .2d 1284, 1297 (5th Cir.
1978).

The policy reasons urged by defendants on page 14 of their 
brief.would be fully applicable to the circumstances in Bradley 
and Hutto and would result in no fees being awarded under any 
circumstances for work done prior to the effective date of the 
attorneys fees' acts. Similar arguments were squarely rejected 
by the Supreme Court in Bradley and, indeed, when Congress passed 
the 1976 Act it specifically approved the ruling in that case. 
Thus, Congress' intent in enacting the statute encompassed the 
compensation of attorneys for work done prior to the passage 
of the Act.

While one reason for the statutes is to attract competent
counsel to civil rights litigation, another and broader concern
was to relieve private parties and their attorneys of the burden4
of the costs of vindicating constitutional and civil rights. 
Indeed, Congress expressed particular concern over the unjustness 
of defendants' counsel being supported by public funds while they

3 H. Rep. No. 94-1558 (94th Cong., 2d Sess., 1976), p. 4, n. 6.
4 See id., pp. 2-3.

- 3 -

9



attempted to defeat the Constitution, while prevailing plaintiffs
5

received no such compensation. Thus, requiring the school Board 
to compensate plaintiffs' attorneys fully for the years of work 
necessarily expended to bring the school district into compliance 
with the mandates of the Constitution and the Supreme Court is 
just, proper, and mandated by the civil rights fees statutes.

*

Respectfully submitted,

c(kLs&-
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
CHARLES STEPHEN RALSTON
THEODORE M. SHAW 

16th Floor 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37201 
(615) 244-3988

Attorneys for Plaintiffs-
Appellants, Cross-Appellees

Id. at p. 7. ". . . governmental entities and officials have
sUbstantial resources available to them through funds in the 
common treasury, including the taxes paid by the plaintiffs 
themselves. . . . The greater resources available to governments
provide an ample base from which fees can be awarded to the 
prevailing plaintiff in suits against governmental officials or 
entities." See also S. Rep. No. 94-1011 (94th Cong., 2d Sess., 
1976), p. 5.

4



CERTIFICATE OF SERVICE

Undersigned counsel for piaintiffs-appellants certifies that 
on this 31st day of May, 1985,copies of the foregoing Motion for 
Leave to File Supplemental Reply Brief and Supplemental Reply 
3rief for plaint iffs-appellants were served upon counsel for the 
defendants-Appellees by prepaid Express mail addressed to:

WILLIAM R. WILLIS, JR., ESQ 
MARION F. HARRISON, ESQ.
215 S ' ‘ ---"
Nashv

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