Gaines v. Dougherty County Board of Education Brief for Plaintiffs-Appellants

    IN THE

ELEVENTH CIRCUIT 

No. 84-8450

SHIRLEY GAINES, et al . 

Plaintiffs-Appellants 

v .

DOUGHERTY COUNTY BOARD 
OF EDUCATION, et a l .

Defendants-Appellees

UNITED STATES COURT OF APPEALS

FOR THE

On Appeal From The United States District Court 
for the Middle District of Georgia 

Albany Division

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for 

piaintiffs-appe11 ants certifies that the following listed parties 

have an interest in the outcome of this action.

1. The piaintiffs-appel1 ants are Shirley Gaines, et 

al . , minor children attending the public schools of Dougherty 

County Georgia, on behalf of themselves and the class of black 

children attending those schools.



2. In addition the attorneys representing the 

plaintiffs, C.B. King and the NAACP Legal Defense and Educational 

Fund, Inc., have an interest in that they are entitled to receive 

any additional fees that may be forthcoming.

3. The defendants are the Dougherty County Board of 

Education, a public body corporate under the laws of Georgia, 

together with the individual members thereof.

These representations are made pursuant to Rule 

22(f)(2) of the Local Rules for the United States Court of 

Appeals for the Eleventh Circuit in order that judges of this 

Court, inter alia, may evaluate possible disgualificat ion or

recusal

ounsel for Plaintiffs- 
Appellants



IN THE

ELEVENTH CIRCUIT 

No. 84-8450

SHIRLEY GAINES, et a l . 

Plaintiffs-Appellants 

v .

DOUGHERTY COUNTY BOARD 
OF EDUCATION, et a l .

Defendants-Appellees

UNITED STATES COURT OF APPEALS

FOR THE

On Appeal From The United States District Court 
for the Middle District of Georgia 

Albany Division

STATEMENT REGARDING PREFERENCE

In accordance with Local Rule 22(f)(3) plaintiffs- 

appellants state that this case is not entitled to preference in 

disposition and processing.

Respectfully submitted

.ounsel for Plaintiffs- 
Appellants



IN THE

ELEVENTH CIRCUIT 

No. 84-8450

SHIRLEY GAINES, et a l . 

Plaintiffs-Appellants 

v .

DOUGHERTY COUNTY BOARD 
OF EDUCATION, et a l .

Defendants-Appellees

UNITED STATES COURT OF APPEALS

FOR THE

On Appeal From The United States District Court 
for the Middle District of Georgia 

Albany Division

STATEMENT REGARDING ORAL ARGUMENT

In accordance with Local Rule 22(f)(4) plaintiffs- 

appellants suggest that the decision of the court below rests on 

clear legal error and may be summarily reversed. However, in 

light of the length and complexity of the procedural history of 

this case, oral argument would be of assistance to the Court.

Respectfully submitted^

n  '  • - /, s  ... s >" v
'Counsel for Plaintiffs- 

Appellants



Table of Contents

Page

iiiTable of Cases

Questions Presented 

STATEMENT OP THE CASE

1. History of the Litigation

2 . Facts Relating to Attorneys' Fees

3 . The Earlier Fee Applications

4. Standard of Review

S umm ar y of Argument

Argument

I. The District Court Abused Its Discretion 
In Denying Attorneys' Fees For Services 
Rendered Prior to 1971

A.

B.

C.

There We re No Final Orders

The District Court's Denial o f
Attorney's Fees During the 1963-71
Period Was Never Impliedly Affirmed
by The Court of Appeals

There Was No Lapse of Activity
During The 1972-1978 Period That
Would Constitute An Interim Aspect
of the Case, Where The Court of
Appeals Has Determined That The
District Court Unreasonably Delayed
The Proceedings During This Period

II. THE DISTRICT COURT ERRED IN DENYING
APPELLANTS' REQUEST FOR DISCOVERY ON THE 
AMOUNT PAID THE DEFENSE ATTORNEYS IN 
THIS CASE

III. THE DISTRICT COURT ERRED IN ITS SETTING 
OF HOURLY RATES

A . The District Court Used Hourly 
R~ates That Were Not Supporte~d~ 
by the Evidence

1

2

2

6

8

9

9

10

10

12

14

18

19

22

22

l



B . The District Court Failed 
to Compensate for Delay in
Payment 24

C . The District Court Erred 
In Using Reduced Rates For
Alleged Duplication 25

Conclusion 27

Certificate of Service

l i



Table of Cases

Page

Cases :

Alyeska Pipeline Service v. Wilderness Society,
421 U.S. 240 (1975) ...............................

Blum v. Stenson, U.S. , 79 L.Ed.2d 891
(1984) ................................................

Bradley v. School Board of Richmond, 416 U.S. 696
( 1 9 7 4 ) ......................................  7, 12 ,

Brown v. B d . of Education, 347 U.S. 483 (1954) . .

Brown v. Culpepper, 559 F.2d 274 (5th Cir.
1 9 7 7 ) ......................................  12 , 22 ,

Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th
Cir. 1982) ..........................................

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.
1980 ) (en b a n c ) ....................................

Ex parte Union Steamboat Co., 178 U.S. 317 (1900)

Foley v. Smith, 437 F.2d 115 (5th Cir. 1971) . .

Gulf Refining Co. v. United States, 269 U.S.
125 (1925) .........................................

Guthrie v. Evans, S.D. Ga. No. 3068, Aug. 4,
1980) ..............................................

Harkless v. Sweeny Independent School District,
608 F . 2 d 594 (5th Cir. 1 9 7 9 ) ...............  21,

Hedrick v. Hercules, Inc., 658 F.2d 1088
(5th Cir. 1981) ...............................

Hensley v. Eckerhart, ___  U.S. ____, 76 L.Ed.2d
40 (1983) ......................................

Hutto v. Finney, 437 U.S. 678 ( 1 9 7 8 ) ..........  12,

Johnson v. Chicago Bd . of Education, 457 U.S. 52 
(1982) .........................................

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

15 

23

13, 17 

3

23, 24

23

24

16 

16

16

22 , 23 

23, 25 

24 

26

15, 17 

16 

6, 13
iii .



488Johnson v. Georqia Highway Express, Inc.,
F .2d 714 (5th Cir. 1 9 7 4 ) .............

Johnson v. University College of University of
Ala., 706 F .2d 1205 ( 11th Cir. 1983) . 21, 24, 25,

Jones v. Diamond, 636 F.2d 1364 (5th Cir.
1 9 8 0 ) ......................................... 1 2 ’

Linkletter v. Walker, 381 U.S. 618 (1965) .

Morrow v. Dillard, 580 F.2d 1284 (5th
Cir. 1 9 7 8 ) ..................................  14 »

Mutual Life Ins. Co. of New York v. Hill, 193 
U.S. 551 (1903) ............................

Naismath v. The Professional Golfers Assoc.,
85 F.R.D. 552 (N.D. Ga. 1979) ..........

National Assoc, of Concerned Veterans v.
Secretary of Defense, 675 F.2d 1319 
(D.C. Cir. 1982) .........................

Neeley v. City of Grenada, Miss., 624 F.2d 
547 (5th Cir. 1980) ....................

Northcross v. B d . of Ed. of Memphis, 611 F.2d 
624 (6th Cir. 1979) ....................

Oliver v. Kalamazoo B d . of Ed., 576 F.2d 714 
(6th C i r . 1978) .........................

Rainey v. Jackson State College, 551 F.2d 672 
(5th C i r . 1977) .........................

Robinson v. Kimbrough, 620 F.2d 468
(5th Cir. 1 9 8 0 ) .........................  1 2 > 15

Sherwin v. Welch, 319 F.2d 729
(D.C. Cir. 1963) .......................

Sprague v. Ticonic National Bank, 307 U.S. 161 
(1939) ....................................

Stastny v. Southern Bell Telephone &
Telegraph Co., 77 F.R.D. 662 (W.D.N.C. 1978)

Sullivan v. Pennsylvania Dept, of Labor &
Industry, 663 F.2d 443 (3rd Cir. 1981)

Swann v. Charlotte-Mecklenburg B d . of Education,
402 U.S. 1 ( 1 9 7 1 ) ....................  4 ’ 20

26

23 

13

17

16

22

26

24

25 

25 

12 

17 

16 

16 

22 

13

19

, 25
I V  .



14
Tasby v. Estes, 492 F. Supp. 1130 (N.D.

Tex . 1 9 8 0 ) ............................

Tasby v. Wright, 350 F. Supp. 262 (N.D.
Tex. 1982) ............................

Terrell v. Household Goods Carrier's Bureau,
494 F .2d 16 (5th Cir. 1974) . . .

United States v. Oefferson County School Board, 
372 F . 2d 894 (5th Cir. 1966), a f f 1d e n 
b a n c , 380 F.2d 385 (5th Cir. 1967 )

United States v. McClain, 593 F.2d 658 
(5th Cir. 1979) ....................

Williams v. Kimbrough, 415 F.2d 874 
(5th Cir. 1969) ..................

Wolff Packing Co. v. Court of
Industrial Relations of the State 
of Kansas, 267 U.S. 552 (1924) .

Other Authorities:

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

S. Rep. No. 94-1011 (1976) ..........

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

passim 

1 1 , 20

5

v



IN THE

ELEVENTH CIRCUIT 

No. 84-8450

SHIRLEY GAINES, et al . 

Plaintiffs-Appellants 

v .

DOUGHERTY COUNTY BOARD 
OF EDUCATION, et a l .

Defendants-Appellees

UNITED STATES COURT OF APPEALS

FOR THE

On Appeal From The United States District Court 
for the Middle District of Georgia 

Albany Division

BRIEF FOR PLAINTIFFS-APPELLANTS * 1

Questions Presented

1. Did the district court err in excluding a large 

portion of the time spent in litigating this school desegregation 

case when it awarded attorneys' fees?



2. Did the district court err in holding that 

plaintiffs could not discover the amount of fees paid to de­

fendants' attorneys in order to determine whether the fees 

requested by plaintiffs were reasonable?

3. Were the hourly rates utilized by the district 

court appropriate in light of the evidence presented?

STATEMENT OP THE CASE

This is the eighth (and hopefully last) time that this 

school desegregation case has been before this Court  ̂ to review 

a decision of the district court. The issue on this occasion is 

the adequacy of an award of attorneys' fees in the amount of 

$30,736.34 in a case which began in 1963 and which eventually 

led, through a series of appeals to this Court, to the complete 

desegregation of the Dougherty County School system.

1 . History of the Litigation

A complete statement of the complex and often con­

voluted litigation and proceedings that were necessary to bring 

about a final desegregation plan for the Dougherty County schools 

will not be set forth here. The Court is referred to its

Prior appeals were to the Fifth Circuit prior to its 
division. We will refer throughout this brief to the predecessor 
court as "this Court."

2



decisions which set out much of this history.2 Here, we will 

provide a sufficient summary to put into context the issues 

relating to the district court's award of fees.

This case was commenced in 1963 to end the de jure 

segregation of the Dougherty County, Georgia, school system. 

Although Brown v. Board of Ed uc at io n, 347 U.S. 483 (1934) had 

been decided nine years previously, the school board had taken no 

steps whatsoever to end the illegal segregation of its schools 

prior to the filing of this lawsuit. Indeed, in its answer the 

school board made the wholly frivolous argument that the segre­

gation of black and white students was legally justified ( R.E. 

29) .

A preliminary injunction was sought to begin the 

process of desegregation but only limited relief was granted by 

the district court ( Hon. 3. Robert Elliot). An appeal 

was taken to this Court, which issued an order requiring that 

accelerated steps be taken to desegregate the school system. 329 

F . 2 d 823 ; 334 E.2d 983 .

329 F .2d 823 (3th Cir. 1964); 334 F.2d 983 (5th Cir. 1964); 
392 F .2d 669 (5th Cir. 1968); 442 F.2d 1344 (5th Cir. 1971); 446 
F . 2 d 907 (5th Cir. 1971); 465 F.2d 363 (5th Cir. 1972); 609 F.2d 
225 (5th Cir. 1980). See also, 222 F. Supp. 166 (M.D. Ga. 1963) 
489 F. Supp. 778 (M.D. Ga. 1980).

3



However, there followed a series of delays occasioned 

by the consistent opposition of the defendants and the entering 

of inadequate orders by the district court. Thus, in 1967 the 

district court entered an order which would allow a desegregation 

plan which did not comply with the requirements of United States 

v. Jefferson County School B o a r d , 372 F.2d 894 (5th Cir. 1966), 

aff'd en b a n c , 380 F.2d 385 (5th Cir. 1967). This order was 

summarily reversed by this Court, with directions to enter a 

decree that conformed with Jefferson C o u n t y . 392 F.2d 669 (5th 

Cir . 1968) .

Subsequently, the district court declined to enter an 

order that would comply with the dictates of Swann v. Char- 

lotte-Mecklenburq Board of Ed uc at io n, 402 U.S. 1 (1971). Once 

again, this denial of effective relief was appealed to this 

Court which, in 1971, reversed again and remanded to the district 

court with directions. 442 F.2d 1344 and 446 F.2d 906. In 1972, 

plaintiffs were forced to appeal once again because the plan that 

was entered left a number of one-race schools. This Court again 

reversed and remanded with specific instructions to enter a new 

plan that would correct the situation. 465 F .2d 365.

Upon remand the plaintiffs immediately filed a motion 

for further relief to carry out this Court's mandate. The case, 

however, was later reassigned to a new judge, the Honorable 

Wilbur D. Owens, Jr., who requested time to review the file. When 

no further action had been taken by the district court, the

4



plaintiffs renewed their motion in 1976 and, faced with the 

failure of the school board to offer a constitutionally adequate 

plan, retained an expert and submitted their own plan for the 

full integration of the Doughtery County schools in 1978. The 

district court responded by appointing its own panel of experts, 

but eventually rejected plans for the desegregation of all 

schools; instead it limited desegregation to the high schools in 

an order entered in 1979. See 609 F.2d at 225-26.

Once again, the plaintiffs appealed to this Court; once 

again the defendants opposed any further steps to bring about the 

full desegregation of the schools that had long been constitu­

tionally mandated. This Court, in early 1980, entered an order 

requiring the immediate entry of a comprehensive desegregation 

order which would bring about the integration of all the schools 

in the county, within reasonable limits. The Court noted the 

district court's seven-year delay in carrying out the mandate of 

its 1972 order "despite appellants' repeated efforts." 609 F.2d 

225, 226-27. The 1980 order was carried out by the district 

court in time for entry of a comprehensive plan of desegregation 

for the fall of 1980. 489 F. Supp. 778 (M.D. Ga. 1980).

Since what hopefully would be a final desegregation 

plan had at last been entered, the plaintiffs filed a motion for 

attorneys' fees under 42 U.S.C. § 1988 and 20 U.S.C. § 1617. (R. 

Item 85.) It is the trial court's ruling on attorneys' fees that 

is the sole issue before this Court in this appeal.

5



2. Facts Relating to Attorneys' Fees

At the time of its filing in 1981 the attorneys' fees 

petition sought fees for the 18 year period from the beginning of 

the lawsuit through the entry of the final desegregation plan. 

Because a significant portion of the work was done prior to the 

existence of a clear right to obtain fees, and since the attor­

neys doing the work had no contemplation of recovering fees from 

their clients, the documentation for the early years of the 

litigation was based on reconstructions of time from a review of 

the documents. (R. Item 85) As recited in their affidavits, and 

uncontested in any way by the defendants or by the district court 

in its findings, time was estimated conservatively, given the 

length of the proceedings and the many appeals.(R. 2193; 2206-7 .)

The total fees reguested were only $143,940.75, for a 

total of number of 1066.55 hours.3 Hourly rates were reguested 

based on current rates in order to compensate for the delay in 

payment. Further, counsel associated with the NAACP Legal 

Defense and Educational Fund, Inc., requested payment at New 

York r a te s.

The defendants' response first argued that none of the 

time expended prior to 1972 could be compensated for, relying on 

the decision of the Fifth Circuit in Johnson v. C o m b s , 471 F.2d

A small number of additional hours were subsequently 
requested after the hearing on fees in June, 1983.

3

6



84 (5th Cir. 1972) a case that, has had been pointed out to 

them, was overruled by the Supreme Court of the United 

States in Bradley v. Richmond School B d ., 416 U.S. 696 (1974). 

Defendants made various other arguments as to why the amount

requested was not reasonable.

In an effort to establish a benchmark for reason­

ableness, and particularly in light of the difficulty in re­

constructing the hours for work done many years before, plain­

tiffs sought through discovery to determine the fees recovered by 

defendants' counsel. (R. Item 88.) The discovery was objected to 

and the court below upheld the objection. (R. Item 94.)

Various other filings were made in response to a number 

of inquiries by the district court, including one relating to 

prior appeals of attorneys' fees denials and proceedings in 

this Court. The district court held a hearing on June 28, 1983, 

at which testimony regarding reasonable hourly rates was pre­

sented by both sides.

The district court's decision was entered on May 11, 

1984. The Court awarded fees for only 35% of the amount re­

quested by the plaintiffs, reducing the request from $143,000 to 

$50,000. A large amount of time (over 300 hours)was excluded by 

its ruling that no fees could be recovered for the eight years 

before 1971 because of earlier orders of the court. (R. E. 62.) 

Other time was cut as duplicative, and lower hourly rates were 

awarded. (R.E. 65-66; 70.)

7



3. The Earlier Fee Applications.

On two earlier occasions plaintiffs had applied for 

fees for limited portions of work done in the district court. In 

1971 and in 1972 applications were made under the then prevailing 

standard in the Fifth Circuit, viz., that the defendants had 

acted obstinately and obdurately in opposing the desegregation of 

the schools. Williams v. Ki mb ro ug h, 415 F.2d 874 (5th Cir.

1969). In both instances the district court denied both the 

requests for further relief on the merits, and the requests for 

attorneys' fees.^

In both instances appeals were taken to the Fifth 

Circuit from the orders on the merits and from the denials of 

fees. ( See R. Item 97, Plaintiffs' Response to The Inquiry of 

the Court Re Counsel Fees. Attached to this response are copies 

of the notices of appeal involved and the relevant portions of 

the briefs filed in the Fifth Circuit.) In both instances the 

court of appeals reversed the district court on the merits and 

remanded for further proceedings without speaking in any way with

regard to the fee requests.

In its order of May 11, 1984, however, the district 

court concluded that the two prior orders of the Fifth Circuit 

constituted sub rosa affirmances of the denials of attorneys'

On one other occasion, not relevant to the issues here, the 
district court awarded fees for a separate proceeding in the case 
in 1976 . R . E .

8



fees. Therefore, it reasoned, those orders were the "law of the 

case" and plaintiffs were forever cut off from recovering fees 

for the work done in the nine year period from 1963 through 1972. 

(R.E. 58-62.) The district court also relied on alleged delays 

by plaintiffs' counsel from the period 1972 to 1978 to reduce the 

fees during that period.

4. Standard of Review

1. With regard to Arguments I, II, asnd III, the

district court erred as a matter of law.

2. With regard to Argument III. A., the district 

court also made findings of fact that were clearly erroneous.

Summary of Argument 

I .

The district court erred in excluding time spent from 

1963 until 1972. All denials of fees were appealed. The 

earlier orders of this Court did not speak to counsel fees.

Thus, since the issue was neither explicitly nor impliedly 

decided there were no final orders barring an award of the full 

amount reguested. In addition, equitable considerations compel, 

rather than prohibit, an award for the entire period.

9



The Court below erred in not allowing plaintiffs to 

discover the amount of fees paid to defendants' counsel. The 

amount was probative of the issue of whether the amount 

requested by plaintiffs was reasonable, porticularly in light of 

the court's awarding only one-third of the amount requested.

III.

The court erred in setting the hourly rates. The 

failure to account for delay in payment was contrary to the law 

in this Circuit, as was the arbitrary reduction of the fee for 

alleged duplication. The undisputed record establishes that 

customary and appropriate rates of counsel, in light of prior 

court awards, were substantially higher than those arrived at by 

the trial c o u r t .

I I .

ARGUMENT 

I .

THE DISTRICT COURT ABUSED ITS DISCRETION 
IN DENYING ATTORNEYS' FEES FOR SERVICES 
RENDERED PRIOR TO 1971.

42 U.S.C. § 1988 was enacted to ensure that persons 

with civil rights grievances would have effective access to the 

judicial process. A party who has succeeded in enforcing civil 

rights is entitled to a reasonable attorneys' fee for all 

services rendered in furtherance of this success. It took

10



appellants seventeen years to bring about a unitary school system 

in Dougherty County, Georgia. As the prevailing party they are 

entitled to an award for their services during that entire 

period. The senate report clearly indicates that the work done 

throughout the litigation is compensable.

It is intended that the amount 
of fees awarded . . .  be governed 
by the same standards which prevail 
in other types of equally complex 
litigation, . . . and not be
reduced because the rights involved 
may be nonpecuniary in nature. The 
appropriate standards, see Johnson 
Georgia Highway Express, I n c . , 488 
F . 2d 714 (CA 5 1974), are correctly 
applied in such cases as Stanford 
Daily v . Z u r c he r, 64 F.R.D. 680 
(N.D. Cal. 1974); Davis v. County 
of Los Angeles, 8 E . P . D . I 9 444 ("CD 
Cal. 1974); and Swann v. Char- 
lotte-Mecklenburg Board of Ed­
ucation , 66 F.R.D. 483 (W .D .N .C . 
1975 ) . . . .  In computing the
fee, counsel for a prevailing party 
should be paid, as is traditional 
with attorneys compensated by a 
fee-paying client, 'for all time 
reasonably expended in a matter 
Davis supra, Stanford D a i l y , supra 
at 684" S. Rep. No. 94-1011, p. 6 
( 1976) .

Clearly the work done by appellants from 1963— 1981 was reasonably 

expended and necessary for the result finally achieved.

Furthermore, the Supreme Court of the United States has 

held specifically that both 20 U.S.C. § 1617 and 42 U.S.C. § 1988 

not only authorize, but require, the payment of fees for work 

done prior to the effective dates of the acts in cases pending on



those dates. Bradley v. Richmond School B o a r d , 416 U.S. 696 

( 1974); Hutto v . Fi nn ey, 437 U.S. 678 ( 1978).  ̂ As litigation in 

this case was pending at all times from 1963 to the present fee 

award controversy, it is an inescapable conclusion that all work 

done on this case is compensable.

A . There Were No Final Orders in 1971
Denying Attorneys' Fees.

The District Court incorrectly concluded that the 

Memorandum Opinion And Order, filed September 3, 1971 (R.E. 47) 

in which the Court approved the HEW Plan with certain modi­

fications was a final order. While the Order proclaimed to "be a 

final judgment" and declared "the Dougherty County School System 

to be a Unitary System," (R.E. 51), it was no such thing. An 

appeal was filed on September 7, 1971, and in 1972 Gaines v. 

Dougherty County Board of E d u c a t i o n , 465 F.2d 363 (5th Cir.

1972), reversed and remanded for submission of another desegre­

gation plan. An order is not a final order merely because the 

author foresees no further litigation.

See also. Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977); 
Jones v. D i a m o n d , 636 F.2d 1 3 6 4 T 1 3 8 1  (5 th Cir 1980) (en banc); 
Robinson v. Kimbrough, 620 F.2d 468 (5th Cir. 1980); Rainey v_̂_ 
Jackson State Coll eg e, 551 F.2d 672 (5th Cir. 1977).

12



A final judqment was defined in Brad1e y , 416 U.S. at 

711, n. 14, as "one where the availability of appeal" has been 

exhausted or has lapsed, and time to petition for certiorari as 

passed. Linkletter v. W a l k e r , 381 U.S. 618, 622 n. 3 (1965). As 

noted in Johnson v . C o m b s ;

Section 718 expressly allows attorneys' fees 
awards only upon 'the entry of a final order.'
The most suitable test for such finality exists 
in the body of law which has been developed in 
determining appealability under 28 U.S.C.A. §
1291. In general, this means a judgment or 
order which ends the litigation on the merits 
and comprehends only the execution of the 
Court's decree. See C. Wright, Federal Courts 
§ 101 (2d ed. 19 7CD

471 F.2d 84 (5th Cir. 1973). The order the district court 

considered final for the purposes of determining the pendency of 

this litigation, was merely one of the "several links in the 

chain of events connecting the claim brought and relief granted."

Sullivan v. Pennsylvania Dept, of Labor & Industry, 663 F.2d 443 

(3rd Cir. 1981). The Order neither ended the litigation on the 

merits nor precipitated the execution of the court's decree.

J ohnson v . C o m b s , supra at 87 suggests that:

since most school cases involve relief of an 
injunctive nature which must prove its 
efficacy over a period of time, it is obvious 
that many significant and appealable decrees 
will occur in the course of litigation which 
should not qualify as final in the sense of 
determining the issues in controversy. The 
ultimate approach to finality must be an 
individual and pragmatic one.



B . The District Court's Denial of Attorney's 
Fees During The 1963-19/1 Period Was Never 
Impliedly Affirmed by The Court of Appeals.

Because there was no final order prior to 1980, the 

Court of Appeals could not have impliedly affirmed the district 

court's denial of attorneys' fees for the 1963-1971 period. The 

district court erred in equating reversals and remands with sub 

rosa affirmances. The issue of attorneys' fees was merely held 

in abeyance in contemplation of further litigation. A similar 

approach was taken in Tasby v . E s t e s , 492 F. Supp. 1130 (N.D.

Tex. 1980), where issues taken upon appeal had not been fully 

decided. It was only after further fact findings had been 

entered and changes in a student assignment plan made if nec­

essary,—  and upheld or reversed if appealed— that it could it be 

said that a final order had been entered. Therefore, a request 

for attorneys' fees would be deemed held under advisement.

There is further support for the fact that there has 

been no final adjudication of fees. In Morrow v. D i l l a r d , 580 

F . 2d 1284 (5th Cir. 1978 ), the Fifth Circuit held that the "law 

of the case" did not foreclose reconsideration of an attorney's 

fees award under the Civil Rights Attorney's Fees Awards Act of 

1976, 42 U.S.C. § 1988. There, the district court had awarded 

fees to the prevailing party on the basis of pre-Act standards. 

580 F .2d at 1296 . On the first appeal, the panel decision was 

silent on the issue of fees; however, the e_n banc court upon 

rehearing ordered the district court to reconsider the amount of 

the fee award. Id. at 1297. On remand, the district court again

14



denied any fee award to the prevailing party because of the 

intervening Alyeska Pipeline Service v. Wilderness S o c i e t y , 421 

U.S. 240 (1975) However, after the district court's remand 

opinion, § 1988 was enacted and the Supreme Court held that it 

was to be applied to all cases pending at the time of enactment 

i.e. on October 19, 1976. Hutto v. Fi n n e y , 437 U.S. 678, 694 n. 

23 (1978). The Court of Appeals therefore declared that these 

intervening events "reguir[ed] reversal of the District Court s 

Order denying attorney's fees and costs", and that the prevailing 

party was to be awarded "costs and attorney's fees for all 

proceedings of this case at both the trial and appellate levels. 

580 F . 2d at 1297 , 1300.

The Fifth Circuit again considered the impact of a 

previous ruling on a subsequent attorneys' fees decision in 

Robinson v. Ki mb ro ug h, 620 F.2d 468 (5th C i r . 1980). The Court 

found that the Act constituted a material intervening change in 

the law on attorneys' fees. Because "plaintiffs had their first 

opportunity to present to any court their reguest for attorneys 

fees under the Act for specific findings and conclusions only 

upon remand to the district court in 1977 . . .  it would be 

ineguitable to deny plaintiffs a hearing on this issue.

474.

Indeed, this case comes squarely within the well-es­

tablished rule that "reversal is not necessarily an adjudication 

by the appellate court of any other than the questions in terms



expressed and decided." Mutual Life Insurance Co. of New York v. 

H i l l , 193 U.S. 531, 553-54 (1903); Wolff Packing Co. v. Court of 

Industrial Relations of the State of K a n s a s , 267 U.S. 552, 562 

(1924). Therefore, "while a mandate is controlling as to matters 

within its compass, on the remand a lower court is free as to 

other issues," Sprague v. Ticonic National B a n k , 307 U.S. 161, 

168-169 (1939), and a remand order is not ordinarily final. Gulf 

Refining Co. v. United S t a t e s , 269 U.S. 125, 135, 137 (1925). See 

also, Johnson v. Chicago B d . of Ed uc at io n, 457 U.S. 52, 53-54 

( 1982) .

The law in this Circuit is clear that the law of the 

case doctrine is not limitless. Thus, the "rule applies only to 

issues that were decided and does not include determination of 

all guestions which were within the issues of the case and which, 

therefore, might have been decided." Terrell v. Household Goods 

Carrier's B u r e a u , 494 F.2d 16 (5th Cir. 1974). United States v. 

M c C l a i n , 593 F.2d 658, 664 (5th Cir. 1979) (law of the case 

doctrine does not apply to issues that might have been decided, 

but were not). A c c o r d , Sherwin v. W e l c h , 319 F.2d 729, 732 (D.C. 

Cir. 1963). See also, Ex parte Union Steamboat C o . , 178 U.S.

317, 319 (1900). Therefore, although "a mandate is completely 

controlling as to all matters within its compass, . . .  on remand 

the trial court is free to pass upon any issue which was not 

expressly or impliedly disposed of on appeal." Foley v . Smith , 

437 F .2d 115, 116 (5th Cir. 1971).

16



Here, the issue of attorneys' fees was clearly not 

expressly disposed of in any of the prior appeals. Nor can it be 

fairly said to have been impliedly decided. The Fifth Circuit, 

faced with upcoming school terms and operating under the expe­

dited Singleton procedures then in effect, issued brief decisions 

designed to ensure that legally adequate school plans would be 

entered as soon as possible. On both occasions it vacated and 

remanded the case on the merits and in its entirety. The fact 

that it did not speak to an issue of collateral relief, one which 

could well wait until a final desegregation plan had been 

ordered, provides no basis to infer a sub rosa and unarticulated 

purpose to affirm the lower court's denial of fees. Indeed, the 

lack of any intent to do so is demonstrated by the fact that the 

1971 and 1972 orders of this Court were also silent as to the 

award of costs to plaintiffs by the district court (see R.E. 71), 

even though it is uncontestable that plaintiffs were entitled to

them under then existing law.

Finally, during the 1963-1971 period the standard for 

obtaining fees in this Circuit was that the defendant school 

board had to be shown to be acting obdurately and obstinately.

See Williams v. Ki mb ro ug h, 415 F.2d 874 (5th Cir. 1969). Because 

of the limitations of this standard, appellants' early requests 

were limited. As Morrow v . D i l l a r d , supra and Robinson v. 

Ki mb r o u g h , supra demonstrate, the intervening change in the law 

during the pendency of this suit requires that the attorneys' 

fees issue be reconsidered in light of the broader private



attorney general standard for the entire duration of the case. 

B r a d l e y , s u pr a; Hutto, s u p r a . This the district court failed to 

do .

C.
1972-1978 Period That Would Constitute An
Interim Aspect of The Case, Where The
Court of Appeals Has Determined That The
District Court Unreasonably Delayed The
Proceedings During This Period.

The District Court judge noted that even if the 1971

Order was not a final order in the strictest sense, the period 

between the 1972 motion for further relief and the 1978 filing of 

the proposed plan was barren of motions or activity and marked a 

meaningful break in the litigation. He concluded that of this 

point the issue of attorneys' fees was considered settled. While 

an interim aspect of a case may in some instances make an award 

for prior services unjust, this is not such a case. The 1980 

opinion criticized the district court for its inaction during 

this period and noted that this inaction was "despite [plain­

tiffs'] repeated efforts." 609 F.2d at 226. If there was a 

meaningful lapse in this case it was on the part of defendant 

school board, which did absolutely nothing towards development of 

an adequate plan, and of the district court in carrying into 

effect the constitutional mandate.

Appellants' continued involvement in the case is 

evidenced by the motion for further relief filed immediately 

after the mandate came down in 1972 (which motion renewed the

request for fees), their filing a new motion in 1976, and

1 8



finally, faced with a total lack of action by either the de­

fendant or the district court, their filing of their own de­

segregation plan.

In short, to hold that a party who pursued a unitary 

school system in 1963 and finally achieved it in 1980 is not 

entitled to fees for the first eight years because the district 

court refused to act on the Fifth Circuit's remand for six years 

would make a mockery of the Act, as well as the Supreme Court 

which has repeatedly held that prevailing parties are entitled to 

fees for work done throughout the course of the litigation.

There is absolutely nothing in law or in fact to support the 

district court's decision to cut off the award where meaningful 

activity has stopped as a result of the court's own remiss.

I I .

THE DISTRICT COURT ERRED IN DENYING APPELLANTS'
REQUEST FOR DISCOVERY ON THE AMOUNT PAID THE 
DEFENSE ATTORNEYS IN THIS CASE.

Although the district court ostensibly applied the 

twelve factors set forth in Johnson v. Georgia Highway Express, 

Inc., 488 F .2d 714 (3th Cir. 1974), 6 it neglected to give

The twelve factors are: (1) the time and labor required;
(2) the novelty and difficulty of the questions; (3) the skill 
requisite to perform the legal service properly; (4) the pre­
clusion of employment by the attorney due to acceptance of the 
case; (3) the customary fee; (6) whether the fee is fixed or 
contingent; (7) time limitations imposed by the client or the 
circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and abilities of the attorneys;
(10) the "undesirability" of the case; (11) the nature and length 
of the professional relationship with the client; and (12) awards 
in similar cases. 488 F.2d at 717-719.



meaning to factor twelve by denying appellants' request for 

interrogatories as to what the school board defense attorneys 

received as a fee. Surely, there is no case more similar to the 

present one than itself. Therefore, the total amount defendant s 

counsel received, as well as the number of hours expended and the 

rate and basis of payment, is relevant to a determination of 

whether plaintiff's reguest is reasonable.

In addition to the common sense reason, there is legal 

precedent for allowing interrogatories in determining reasonable 

attorneys' fees in a school desegregation case. Swann v.

Char1otte-Mecklenburg Board of E d u c a t i o n , 66 F.R.D. 483, 483, 486 

(W.D. No. Car. 1975), the district court used as one of its fee 

computation criteria the fees paid to school board counsel.

The legislative history of the Act gives approval to 

Swann, supra. The Senate Report states:

It is intended that the amount of fees 
awarded under S.2278 be governed by the same 
standards which prevailing other types of 
equally complex Federal litigation, such as 
anti-trust cases and not be reduced because 
the rights involved may be non-precuniary in 
nature. The appropriate standards, see 
Johnson v. Georgia Highway Express, I n c . , 488 
F . 2d 714 (5th Cir. 1974), are correctly 
applied in such cases as Stanford Daily v. 
Z u r c ke r, 64 F.R.D. 680 (Northern N.D.
District of California, 1974); Davis v .
County of Los Anqeles, 8 E.P.D. Paragraph 
9444 (E.D. California, 1974); and Swann v. 
Charlotte-Mecklenburq Board of E d u c a t i o n , 66 
F.R.D. 483 Western District, North Carolina, 
1975. S. R. No. 94-1011, 94th Congress, 2nd 
session, 1976, p. 6.

20



Thus, Congress has specifically endorsed the relevance 

of fees paid to opposing counsel in determining the reason­

ableness of a fee for plaintiffs. Of course, since it is 

relevant, the information is discoverable from defendants.

Given the relevance of, and grounds for, the inter­

rogatories, the district court erred when it denied plaintiffs' 

motion. (R.E. 53). The amount paid the defense attorneys in 

this case was a critical factor which should have been considered 

in determining a "reasonable" award within the meaning of the 

Act .

The decision in Johnson v. University College of 

University of A l a , , 706 F.2d 1205 (11th Cir. 1983) is not to the 

contrary. There, this Court held that it was not error to deny 

discovery of the defendants' counsel's fee in the context of a 

case where plaintiffs were able to introduce other evidence 

relating to defense fees. Here, no such opportunity was given. 

Indeed, the underlying basis for the district court's refusal of 

discovery was that the information was privileged. However, this 

was clearly in error and although the fees received by opposing 

counsel are not determinative of the reasonableness of a fee 

request, they do provide a relevant benchmark. Certainly if, as 

plaintiffs expected to show, defense counsel received far more in 

fees in a losing cause then they claimed plaintiffs should obtain 

in a winning one, that information would be probative on the 

question of reasonableness. Comp ar e, Harkless v. Sweeny Inde­

21



pendent School D i s t r i c t , 608 F.2d 594 (5th Cir. 1979). See a l s o , 

Stastny v» Southern Bell Telephone & Telegraph Co . , 77 F.R.D. 662 

(W.D.N.C. 1978); Naismath v. The Professional Golfers A s s o c . , 85 

F.R.D. 552 (N.D. Ga. 1979).

Ill .

THE DISTRICT COURT ERRED IN ITS SETTING OF
HOURLY RATES.

A . The District Court Used Hourly Rates
That Were Not Supported By The Evidence.

In its order the court below awarded the three counsel 

fees using hourly rates of $75 per hour for New York counsel 

Charles Stephen Ralston, $65 per hour for C.B. King, and $50 per 

hour for Herbert Phipps, both local Albany, Georgia, counsel.

None of these rates are supported by the record.

With regard to Mr. Ralston, it is undisputed that he 

has recently received awards at substantially higher rates in 

recent years. Thus, in Tasby v. W r i g h t , 550 F. Supp. 262, 277 

(N.D. Tex. 1982) he was awarded fees at the rate of $160 per hour 

for appellate work in a school desegregation case, precisely the 

work performed here. In Guthrie v. E v a n s , S.D. Ga. C.A. No.

3068, Aug. 4, 1980, the court found that a rate of $135 per hour 

for work done in 1976-79 was within the range of his customary 

fee. (R. 2208.) And in Brown v, Cu lp ep pe r, 559 F.2d 274 (5th 

Cir. 1977) the predecessor to this Court found, in a case also 

originating in the Middle District of Georgia, that $75 per hour

22



was an appropriate rate for work done in 1976 and 1977. Finally, 

in Harkless v. Sweeny Independent School D i s t r i c t , 608 F.2d 594 

(5th Cir. 1979), this Court approved an award at a rate of $75 

per hour for time spent in 1966-79 by Legal Defense Fund attor­

neys in a school case. See also Chrapliwy v . Uniroyal, Inc., 670 

F.2d 760 (7th Cir. 1982) (fees of $175 and $200 per hour awarded 

for experienced New York and Washington civil rights attorneys).

With regard to Mr. King, the record evidence was clear 

that a higher rate for contingent fee litigation was required in 

the Albany, Georgia, area. Indeed, the evidence introduced by 

defendants all related to attorneys in non-contingent practice 

(such as insurance defense work) who got paid win or lose on a 

regular basis. See Jones v. D i a m o n d , 636 F.2d 1364, 1382 

(5th Cir. 1981) (en bane).

With regard to both Mr. King and Mr. Phipps, again the 

Fifth Circuit in 1977 awarded Mr.Phipps, a junior attorney to Mr. 

King, fees at a rate of $65 per hour in a case arising out of the 

same district court. Brown v. Cu lp ep pe r, s u p r a . And in Guthrie, 

v. Evans, s u p r a , a rate of $80 per hour was found to be appro­

priate for Mr. Phipps.

It should also be noted that the fees awarded here are 

far below those approved by the Supreme Court in Blum v .

S t e n s o n ,____U.S.____, 79 L.Ed.2d 891 ( 1984). There, attorneys of

far less experience than any of counsel here were awarded fees at 

$95, $100, and $105 per hour. 79 L.Ed.2d at 897, n. 4. In Blum,

23



as here, those awards were based on uncontradicted affidavits 

showing counsel's experience and expertise and on other cases in 

which fees had been awarded. 7

B . The District Court Failed to Compensate 
for Delay In Payment.

In Johnson v. University College of the University of 

A l a b a m a , 706 F.2d 1205, 1210-11 (11th Cir. 1983) this Court 

squarely held that a court was required to adjust rates to 

reflect delays in payment. This could be done by any of the 

three methods described in Copeland v. M a r s h a l l , 641 F.2d 880,

893 (D.C. Cir. 1980), viz., using present rates, adjusting hourly 

rates, or adjusting the total base amount. It is clear that the 

court below used none of these methods.

For example, the decision in Brown v . Cu lpepper, s u p r a , 

established that the rates for Mr. Ralston and Mr. Phipps in 1977 

were $75 and $65 per hour respectively. However, the court 

granted the former $75 and the latter $50 in 1 9 8 4 . In the 

record, and undisputed by any other evidence or findings by the 

court was a demonstration by plaintiffs that, using any of four 

different methods, substantially higher rates were required to 

make up for the effect of inflation and delay. See R. Item 95 

(p. 2240 et se q .) , Affidavit of Charles Stephen Ralston. These

7

See also, Hedrick v. Hercules, I n c . , 658 F.2d 1088 (5th Cir. 
1981) ($120 per hour, Birmingham, Ala.); Neeley v. City of 
Grenada, Miss., 624 F.2d 547 (5th Cir. 1980) ($100 per hour) .

24



calculations were fully consistent with the requested rates and 

more recent awards to counsel. The failure to make such an 

adjustment was clear error under J o h n so n, s u p r a .

C . The District Court Erred In Using Reduced
Rates For Alleged Duplication.

Johnson v. University C o l l eg e, s u p r a , also makes it 

clear that a court cannot reduce fee requests for duplication 

without a specific finding that such duplication was not nec­

essary. Here, however, the court sought to justify its lower 

rates by alleged duplication of effort. This result was also 

clear error.

First, the record is clear that the hours and total 

fees requested were modest and conservative estimates, given the 

length of the litigation and the number of appeals required. S e e , 

e . g . ; Harkless v. Sweeny Independent School Di s t r i c t , 608 F.2d 

594 (5th Cir. 1979) ($294,562 for a case lasting from 1966 to 

1979); Oliver v. Kalamazoo B d . of E d . , 576 F.2d 714 (6th Cir. 

1978) ($283,925 ); Northcross v. B d . of Ed. of M e m p h i s , o p . on 

remand from, 611 F.2d 624 (6th Cir. 1979) (W.D. T e n n . , C.A. No. 

3931, Jan. 4, 1982) ($344,631 in fees, $28,125 in expenses for 

work from 1968-1981); Swann v. Charlotte-Mecklenburq B d . of E d . , 

66 F.R.D. 483 (W.D.N.C. 1975) ($175,000 in fees, $29,000 in 

expenses).

25



Second, the record is also undisputed that counsel, in 

the exercise of sound billing judgment, excluded hours that were 

duplicative and that therefore would not be billed to a client. 

See Hensley v. E c k e r h a r t , ___ U.S. ____, 76 L.Ed.2d 40, 51 (1983).

Third, the reasons given by the court for nonetheless 

reducing the award are not supported by the record. It is clear, 

for example, that Mr. Ralston's time was primarily for handling 

the various appeals, while local counsel's was for work at the 

district court level. It is further clear that any overlap was 

for consultation that is not only normal but, indeed, essential 

for proper representation in a complex civil rights case. See 

Nat'l Assoc, of Concerned Veterans v. Secretary of D e f e n s e , 675 

F . 2d 1319 , 1337 (D.C. Cir. 1982); R. Item 102, Supp. Affidavit of 

Charles Stephen Ralston, Sept. 14, 1983, pp. 2455-57; Transcript 

of Hearing of June 28 , 1983 , p p . 57-58 .

With regard to the alleged duplication of work between 

Mr. King and Mr.Phipps, the record is also clear that joint 

appearances were reasonable (see Johnson v. University C o l l e g e , 

supra) and, indeed, in some instances required by the district 

court. R. Item 103, pp. 2458-64, Affidavit of C.B. King.

In summary, under the standards established by Johnson 

v. University C o l l e g e , s u p r a , the district court erred in 

reducing the amount of fees for duplication of effort.

26



CONCLUSION

For the foregoing reasons, the decision below should be 

reversed and the case remanded with instructions to award fees 

and costs in the amount requested, with an additional amount for 

\ time expended in this appeal.

Respectfully submitted,

99 Hudson Street 
16th Floor
New York, N.Y. 10013

C. B. KING
P.0. Drawer 3468 
Albany, GA 31706

Attorneys for Plaintiffs- 
Appellants

27



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the Brief 

for Appellants and the Record Excerpts in this case by depositing 

the same in the United States mail, first class postage pre-paid, 

addressed to:

lesse Walters, Esq. 
P .0. Box 527 
Albany, Ga. 31703

Attorney for Defendants-Appellees

Dated this 

S e p t e m b e r ,