Pitts v. Freeman Reply Brief for Appellants

    S P E N C E R  O. M E R C E R
C L E R K

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JSmteb j$tate« fllcrurt of Appeal*
E l e v e n t h  C i r c u i t  

O F F I C E  O F  T H E  C L E R K  
9 «  F O R E Y T H  S T R E E T .  N.W. 

A T L A N T A .  G E O R G I A  3 0 3 0 3

November 13, 1984

I N R E P L Y I N G ,  G I V E  N U M B E R  
O F  C A S E  A N O  N A M E S  O F  P A R T I E S

Charles S. Ralston 
99 Hudson Street 
16th Floor 
New York, NY 10013

No. 84-8662
Willie E. Pitts, et al -v- Robert Freeman, et al 
1946 - Dist. Ct. No.

An examination of your brief reveals that it fails to contain or comply with the following 
rules:
____Certificate of Interested Persons [Cir. R. 22(f)(2)]
____ Statement Regarding Oral Argument [Cir. R. 22(f)(4)]
____Summary of Argument [Cir. R. 22(f) (8)]
____ Record Excerpts [Cir. R. 22] - 4 copies required
____ Statement of Jurisdiction [Cir. R. 22(f)(9)]
____ Statement Regarding Preference [Cir. R. 22(f)(3)]
____ Briefs - Form [Cir. R. 22(d)]
XX Reply briefs need to contain Items (f)(5), (6), (10) and (12). Please correct 

briefs to include Table of Contents and Statement of Issues.

One copy of your brief is being filed subject to receipt of seven (7) copies of your 
corrected brief within ten (10) days frcm this date. Failure to forward the corrected 
brief may result in dismissal of this appeal. IN ORDER TO STAY IN'COMPLIANCE, PLEASE 
DO NOT ATTACHED A NEW CERTIFICATE OF SERVICE TO YOUR BRIEF.

Sincerely,
SPENCER D. MERCER, CLERK

By:
Deputy Clerk

BR-8



(1) Title Page. Elements to be shown on the first page include the name of this court, the 
case number, case of parties, Jurisdiction from which the appeal is being taken, identification of 
brief (e.g. appellant, appellee), a statement regarding nature of preference (e.g. Recalcitrant 
Grand Jury Witness, Habeas Corpus, Mandamus), and name of attorney.

(2) Certificate of Interested Persons. A certificate will be furnished by counsel for all 
private (i.e. non-governmental) parties, except in criminal and criminal-related cases, for both 
appellants and appellees, which shall be incorporated on the next page of each brief. It shall 
certify a complete list of the trial Judge(s), all attorneys, persons, associations of persons, 
firms, partnerships, or corporations that have an interest in the outcome of the particular case, 
including subsidiaries, conglomerates, affiliates and parent corporations, and other identifiable 
legal entities related to a party.

(3) Statement Regarding Preference. In addition to the language on the first page, the brief 
shall contain a statement whether the case is entitled to preference in processing and disposition 
and the basis for preference. (See 11th Cir. R. 11).

(**) Statement Regarding Oral Argument. Appellant's brief shall include a short statement of 
whether or not oral argument is desired, and, if so the reasons why oral argument should be heard. 
Appellee's brief shall include a similar statement. The court will accord these statements due, 
though not controlling, weight in determining whether oral argument will be heard in the case. See 
FRAP 3(a) and (f) and 11th Cir. R. 23(c).

(5) Table of Contents and Citations. The table of contents and citations shall include page 
references showing the locations in the brief of citations and other sections required by these rules 
and shall contain asterisks in the margin designating the citations upon which the party primarily 
relies.

(6) Statement of the Issues.
(7) Statement of the Case. In the statement of the case, as in all other sections of the 

brief, every assertion regarding matter in the record shall be supported by a reference to the volume 
and page number of the original record where the matter relied upon is to be found. .The statement 
of the case shall include:

(i) course of proceedings and dispositions in the court below;
(ii) a statement of the facts. A proper statement of facts reflects a high standard of 

professionalism. It must state the facts accurately, those favorable and those 
unfavorable to the party. Inferences drawn from facts must be identified as such;

(iii) a statement of the standard or scope of review for each contention. For example, 
where the appeal is from an exercise of district court discretion, there shall be 
a statement that the standard of review is whether the district court abused its

* discretion. The appropriate standard or scope of review for other contentions 
should be similarly indicated, e.g. , that the district court erred in formulating 
or applying a rule of law; or that there is insufficient evidence to support a 
verdict; or that fact findings of the trial judge are clearly erroneous under 
Fed.R.Civ.P. 52(a); or there is a lack of substantial evidence in the record as a 
whole to support the factual findings of an administrative agency, or that the 
agency's action, findings and conclusions should be held unlawful and set aside 
for the reasons set forth in 5 U.S.C.A. §706(2).

(8) Summary of the Argument. In addition to the requirements of FRAP 28, the opening briefs 
of the parties shall contain a summary of argument, suitably paragraphed, which should be a succinct, 
but accurate and clear, condensation of the argument actually made in the body of the brief. It 
should not be a mere repetition of the headings under which the argument is arranged. It should 
seldom exceed two and never five pages.

(9) Statement of Jurisdiction. Each brief shall Include a concise statement of the 
statutory or other basis of the jurisdiction of this court, containing citations of authority when 
necessary.

OO) Argument and Citations of Authority. Citations of authority in the brief shall comply 
with the rules of citation in A Uniform System of Citation (13th ed. 1981), or the latest edition of 
that book. State case references should also cite national reporter cross references (e.g. Southern 
Reporter, Southeast Reporter).

(11) Conclusion. A short conclusion stating the precise relief sought.
(12) Certificate of Service. —______________ _______________

(h) Pro Se Briefs. In a case in which counsel has been appointed for a litigant, the court will 
not thereafter receive a pro se brief from the litigant.
Cross Reference: FRAP 28, 29, 30, 31 , 32, 31*; I OP IV F.

(g) Reply Brief. A reply brief need contain only ite: . (6). (10)._-aruL-U24..'-



»

ROLE 22. RECORD EXCERPTS, APPENDIX AND BRIEFS

(a) Record Excerpts and Appendix - Appeals from District Court and Tax Court. Appeals from 
district courts and the tax court shall be on the original record without requirement of the appendix 
prescribed by FRAP 30. When appellant files his brief, he shall file four copies of the following 
portions, and only the following portions of the district court record, to be bound together but not 
in the brief:

(1) the district court docket sheet;
(2) the indictment, information, or complaint as amended;
(3) the answer, counterclaim, cross-claim, and replies thereto;
(U) those parts of any pretrial order relative to the issues on appeal;
(5) the judgment or interlocutory order appealed from;
(6) any other order or orders sought to be reviewed;
(7) any supporting opinion, findings of fact and conclusions of law filed or delivered 

orally by the court, and
(8) if the correctness of a jury instruction is in issue, the instruction in question 

and any other relevant part of the jury charge.
These copies shall be reproduced on white paper by any duplicating or copying process capable 

of producing a clear black image, with a cover sheet bearing the case number and style and captioned 
"Record Excerpts". Record excerpts shall be assembled with a front and back durable, thick covering 
and shall be bound across the top with a secure fastener.

(b) Record Excerpts and Appendix - Agency Review Proceedings. Petitions for review of order 
of an administrative agency, board, commission or officer shall proceed on the original record on 
review, without the requirement of the appendix prescribed by FRAP 30.

If a certified list of documents comprising the record is filed in lieu of the formal record, 
petitioner shall obtain from the agency, board, or commission a certified copy of the portions of the 
record relied upon by the parties in their briefs, to be numbered and indexed and filed within 21 days 
from the date of filing of respondent's brief, with a suitable cover bearing the case number and style 
and captioned "Record Excerpts".

Except in review proceedings covered by Eleventh Circuit Rule 20, petitioner shall file 
separately with the brief four copies of "Record Excerpts" consisting of any order sought to be 
reviewed and any supporting opinion, findings of fact and conclusions of law filed by the agency, 
board, commission or officer.

(o) Briefs - Length. Except by permission of the court, principal briefs shall not exceed 50 
pages (except that the opening brief of an appellant shall not exceed 55 pages) and reply briefs shall 
not exceed 25 pages, exclusive of materials referred to in subparagraphs (f)(1) through (5), and any 
addendum containing statutes, rules, or regulations, regardless of the form of printing or 
reproduction used. Motions for leave to file briefs in excess of the page requirements of this rule 
must be filed at least 10 days in advance of the due date of the brief. The court looks with disfavor 
upon motions t>o exceed the page limitation and will only grant such a motion for extraordinary and 
compelling reasons.

(d) Briefs - Form. The cover of the brief must clearly indicate the name of the party on whose 
behalf the brief is filed. Each copy, whether produced by a commerical printing or duplicating firm 
or otherwise, must, in addition to compliance with FRAP, have a cover of durable quality on both front 
and back sides, and shall be securely bound by three heavy staples or other secure binding device 
along the left-hand margin so as to insure that the bound copy will not loosen or fall apart or the 
cover be detached by shipping and use. For color of covers, see FRAP 32(a) and IOP IV F.

Pages of briefs produced by any printing or duplicating process must have sufficient spacing 
between the lines of text to permit the briefs to be easily read. Within the type character 
limitation prescribed by FRAP 32, a brief produced by the standard typographic process should contain 
not more than 34 lines of text on a page with a proportionate adjustment to be made for quoted matter 
or footnotes. Briefs produced by any duplicating or copying process shall not have more than 27 lines 
of text, with appropriate adjustment to be made for single-space quoted matter or footnotes. Elite, 
or type similar thereto, shall not be considered 11-point type. A typed brief should be double 
spaced, pica type or equivalent to include footnoted material. Footnotes, direct quoted material 
from other sources, and citations may be single spaced.

Briefs produced by any duplicating process on 8 1/2 x 11 inch size paper shall use only one side 
of each sheet.

Unless each copy of the brief, in the judgment of the clerk, conforms to this rule and to 
provisions of FRAP 32, the clerk at his discretion may either return nonconforming coDies unfiled for 
refiling after submission in the proper form or, in order to minimize delay, may have the 
nonconforming copies corrected and bill the party filing the nonconforming copies for the expense 
thereof.

(e) Briefs - Number of Copies. Seven copies of briefs shall be filed in all cases.
Briefs - Contents. Each principal and amicus brief shall consist, in the order listed, 

of the following:



non 3W
^TLANl^i^ IN THE

UNITED STATES COURT OF APPEALS 
FOR THE

ELEVENTH CIRCUIT 
No. 84-8662

WILLIE EUGENE PITTS, et al . ,
Plaintiffs-Appellants 

v .
ROBERT FREEMAN, e_t al ■

Defend ants-Appellees

REPLY BRIEF FOR APPELLANTS

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
THEODORE SHAW

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

DONALD P. EDWARDS
Thomas, Kennedy,
Sampson & Edwards, P.C. 
1200 First 
Federal Building 
40 Marietta St., N.W. 
Atlanta, Georgia 30303 
(404) 688-4303

Attorneys for Appellants



Table of Authorities

Cases:
Hensley v. Eckerhart, ___ U.S. ___, 76 L.Ed. 2d

AO (1983) ..............................
Sanders v. Russell, 401 F.2d 241 (3th Cir.

1968) ...................................
White v. New Hampshire Dept, of Employment

Security, 455 U.S. 445 (1982) ..........
Statutes:
Equal Access to Justice Act ................
42 U.S .C. § 1988 ..........................  1 >

Pages

2

2

3
2, 3



IN THE
UNITED STATES COURT OE APPEALS 

FOR THE
ELEVENTH CIRCUIT 

No. 84-8662

WILLIE EUGENE PITTS, et al■,
Plaintiffs-Appellants 

v .
ROBERT FREEMAN, e_t al .

De fend ants-Appellees

REPLY BRIEF FOR APPELLANTS

The arguments of appellees simply miss the point of our 
central contentions in this case.

1 . it is true that district courts have the authority to 
enact local rules and that generally their interpretations of 
their own local rules will be given deference. However, it is 
also clear that any local rule must be consistent with acts of 
Congress and the federal rules. See Sanders v. Russell, 401 F.2d 
241 (5th Cir. 1968). The issue we have presented is not whether, 
in the abstract, a local rule needs to be complied with, but 
whether the local rule at issue here, as applied by the court 
below, conflicts with congressional purpose with regard to attor­
neys' fees under Section 1988. Thus, while appellees are correct 
in citing parts of the legislative history and earlier court



decisions that make applications for interim fees permissible, 
they are incorrect in their attempt to draw the conclusion that 
interim fees must be applied for. As we have discussed in our 
main brief Congress' purpose was clearly to give plaintiffs the 
option to apply either for interim fees at particular points in 
the litigation, or to wait until the conclusion of the litigation 
and then apply for fees. Thus, the local rule, to be consistent 
with the statute and congressional purpose, could only impose a 
strict time limit upon an application of fees made at the 
conclusion of a case, not for fees applied for on an interim 

basis.
2. The appellees pass over, without squarely addressing, our 

contention that a district court cannot single out fees under § 
1988 for disfavored treatment. As the courts have consistently 
noted, 42 U.S.C. § 1983 is a remedial statute. See, e.g.,
Hensley v. Eckerhart, ___U.S. ___, 76 L.Ed.2d 40, 47-48 (1983).
Therefore, it must be construed broadly in favor of the award of 
fees in all appropriate instances. The district court's rule 
itself, and the brief of the appellees, have advanced no justi­
fication for singling out fees under § 1988 out of all the 
various fee provisions in the federal statutes for such dis­
favored treatment.

2



3. White v. New Hampshire Dept, of Employment Security,
455 U.S. 445 (1982), does not support the result urged by
appellees. White dealt with fees under § 1988, but its ruling

*related to counsel fee applications in general. The Supreme
Court suggested that time limits could be established for fee 
applications by local rules, but in no way can that suggestion be 
read as authority for singling out § 1988 applications as does 
the local rule here.

Building

Resaect fully submitted,.
^  ^  < r

* //C Jtr  CHAMBERS 
CHARLES STEPHEN RALSTON 
THEODORE SHAW

99 Hudson Street

(
SHlLl US LeVONNE

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

DONALD P. EDWARDS
Thomas, Kennedy,
Sampson & Edwards, P.C. 
1200 First Federal
40 Marietta St., N.W. 
Atlanta, Georgia 30303 
(404) 688-4503

Attorneys for Appellants

*/ In this connection, it should be noted that appellees' heavy 
reliance on cases decided under the Equal Access to Justice Act 
is misplaced. that Act contains itself a 30-day limitation, 
while there is none in § 1988. Since the Equal Access to Justice 
Act is a waiver of the sovereign immunity of the United States 
against awards of attorneys' fees, it is appropriate to require 
strict compliance with its express terms.

3



CERTIFICATE OF SERVICE
I hereby certify that I have served copies of the Reply 

Brief for Appellants in this case by depositing the same in the 
United States mail, first class postage pre-paid, addressed:

Dated this 9th day of 
November , 1984 .

Gary M. Sams, Esq.
Suite 450
1 West Court Square
Decatur, Georgia 30030
Attorney for De fendants-Appelieeg/

<• K .A-ttorney for Plaintiffs- 
Appellants