Messing v. President and Fellows of Harvard College Brief Amici Curiae

    No. 85-870

I n  t h e

gmjirmp (Emtrt nf tip llnxUb States
October Teem, 1985

Metropolitan County B oard of E ducation of Nashville 
and Davidson County Tennessee, et al.,

Petitioners,
v.

R obert W . K elley, et ah,
Respondents.

on p e t it io n  for  w r it  of certiorari to t h e  u n it e d  states

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO THE PETITION 
FOR A WRIT OF CERTIORARI

J ulius L. Chambers 
James M. Nabrit, H I 
Charles Stephen R alston* 
T heodore M. Shaw 

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

A von N. W illiams, Jr.
R ichard H. D inkins 

Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37202 
(615) 244-3988

Attorneys for Respondents
^Counsel of Record



Questions Presented 

1 . Whether the court of appeals 

correctly decided that, in conformity with 

the practice of this Court and virtually 

every other circuit, the determination of 

entitlement to attorneys' fees for a 

successful appeal in a civil rights case 

should be made in the first instance by 

the district court?
2. Whether the court of appeals, 

based on the facts of this case and its 

determination of the meaning of its own 
prior orders, correctly held that pre­

vailing plaintiffs in this school desegre­
gation suit were entitled to fees for work 

done prior to 1972, in conformity with

i



Bradley v. City of Richmond, 416 U.S. 696 

(1974) and Hutto v. Finney, 437 U.S. 678 

(1978)?
3. Whether the court of appeals 

correctly remanded this case to the 
district court for reconsideration of the 

amount of the fee award under proper legal 

standards?

ii



Table of Contents

Questions Presented .................  i
Table of Contents.....................iii

Table of Authorities . . . . . . . .  iv

Statement of the Case . . . . . . . .  2

Reasons Why the Writ
Should Be Denied ...................  9
I. The Sixth Circuit’s Ruling 

Regarding the Relationship 
Between Costs And Attorneys'
Fees Does Not Conflict With 
The Rulings of Any Other Court
of Appeals Or of This Court . . 9

II. There Is No Conflict Between The 
The Circuits with Regard to
The Availability of Fees for
Work Done Prior to 1972 ......... 17

III. The Question of the Calculation
of The Amount of Fees Does Not 
Warrant Review by This Court . . 23

Conclusion ........... . . . . . . .  25

iii



Table of Authorities

Cases:
Blum v. Stenson, ___ U.S. ___, 79

L.Ed.2d 891 (1984) . . . . . . . .  24

Bradlev v. School Bd. of Richmond,
416 U.S. 696 (1974) . . .  19, 21, 22

Brown v. Board of Education, 347 U.S.
483 ( 1954)........................2

Buian v. Bauqhard, 687 F .2d 859 (6th
Cir. 19 8 2 ) ........... 12, 13, 15

Christiansbura Garment Co. v. EEOC,
434 U.S. 412 ( 1978)............. 1 5

Gaines v. Dougherty County Bd. of 
Ed., 775 F.2d 1565 (11th 
Cir. 1985)...................  19, 20

Hanrahan v. Hampton, 446 U.S. 754
( 1980).......................... 16

Hensley v. Eckerhart, 461 U.S. 424
( 1983).......................... 23

Hutto v. Finney, 437 U.S. 678
( 1978)...............  16, 17, 19, 21

Kelley v. Metropolitan Board of Ed.,
317 F. Supp. 180 (M.D. Tenn.
19 7 0 ) ............................ 3

Kelley v. Metropolitan Bd. of Ed.,
436 F.2d 856 (6th Cir. 1970) . . 3

Kelley v. Metropolitan Bd. of Ed., 463 
F.2d 732 (6th Cir. 1972), cert, 
denied, 409 U.S. 1001 (1972) 4

iv.



Kelley v. Metropolitan Bd. of Ed., 492
F. Supp. 167 (M.D. Tenn. 1980} . . 5

Kelley v. Metropolitan Bd. of Ed., 571
F. Supp. 1363 (M.D. Tenn. 1981) . 6

Kelley v. Metropolitan Bd. of Ed., 687 
F.2d 816 (6th Cir. 1982), cert. 
denied, 459 D.S. 1183 (1983) . . .  6

Marek v. Chesney, ___ U.S. ___, 87 L.Ed.
2d 1 ( 1985) ...................... . 6

Mims v. Wilson, 514 F.2d 106 (5th
Cir. 1975).......................  14

Mount Healthy City Bd. of Ed. v. Doyle,
429 U.S. 214 ( 1977)............. 17

Parham v. Southwestern Bell Tel. Co.,
433 F.2d 421 (8th Cir. 1970) . . 14

Statutes;
20 U.S.C. § 1 6 1 7 ...................  18
42 U.S.C. § 1988 .................  12, 18

Court Rules:
Rule 14(g), Rules of the United States

Court of Appeals for the Ninth 
Circuit . ...........................10

Rule 17, Rules of the United States 
Court of Appeals for the 
Eighth Circuit .................  10

Rule 39, F.R. Civ. Proc. . . . 10, 11, 15
Rule 50, Rules of the Supreme Court of

the United States..................10

v.



NO. 85-870

IN THE

SUPREME COURT OF THE UNITED STATES 

October Terra, 1985

METROPOLITAN COUNTY BOARD OF EDUCATION 
OF NASHVILLE AND DAVIDSON COUNTY 

TENNESSEE, et al.,

Petitioners,
v.

ROBERT W. KELLEY, et al., 

Respondents.

On Petition for Writ of Certiorari to 
the United States Court of Appeals 

for the Sixth Circuit

BRIEF IN OPPOSITION TO THE PETITION 
FOR A WRIT OF CERTIORARI

Respondents respectfully urge that 
this case presents no issues that warrant 

review by this Court. Rather, it



2

involves: (1) an internal operating

procedure of the Sixth Circuit; (2) a 

nonrecurring issue relating to the 
retroactive application of the attorney 
fee statutes; and (3) the specific facts 

relating to an appropriate fee award in 

this case.
STATEMENT OF THE CASE 

This school desegregation case, which 

was filed one year after Brown v. Board of 

Education, 347 U.S. 483 (1954), is finally 

reaching its end. Filed in 1955 against 

the Nashville, Tennessee Board of Educa­

tion, in 1963 it was consolidated with a 

parallel class action suit initiated 
against the Davidson County Board of 

Education in 1960. Although plaintiffs 

continued to press for relief, no signifi­
cant school desegregation had occurred by 

the end of the decade. On July 16, 1970,



3

the District Court enjoined defendants 

from any construction and ordered the 

Board to develop a comprehensive desegre­

gation plan* Kelley v. Metropolitan Board 

of Education,, 317 F.'Supp. 180 (M.D. Tenn. 

1970).
The Board submitted its plan on 

August 25, 1970, but the District Court 

effectively stayed its order until the 

Supreme Court's resolution of pending 

school desegregation cases. The Court of 
Appeals for the Sixth Circuit vacated the 

stay and reinstated the District Court's 

order and noted that ". . . the instant 

case is growing hoary with age." Kelley 

v. Metropolitan Bd. of Ed., 436 F. 2d 856, 

858 ( 6th Cir. 1970). Upon remand the 

district court heard various desegregation 

plans, and selected an HEW plan. The

Sixth Circuit affirmed. Kelley v.



4

Bd. of Ed. , 463 F.2d 732 (6th Cir. 1972), 
cert. denied, 409 O.S. 1001 (1972), 

noting that "[t]he order of the District 

Judge is the first comprehensive and 

potentially effective desegregation order 

ever entered in this litigation." 463 

F.2d at 734 (emphasis added).
During the ensuring years the 

plaintiffs continued to press for complete 

and effective relief, moved for the 
addition of new part ies-def endant, 

objected to proposed attendance zone 

changes and school utilization plans and 

sought a more equitable distribution of 
desegregation burdens. Between 1973 and 

1979 the District Court did not take any 

action in this case, although the School 

Board filed various petitions relating to

1 For a detailed account of events between 
1971 and 1975, see 492 F. Supp. 172-75.



5

construction and the utilization of 

facilities. The plaintiffs responded to 

these petitions and filed motions for 

contempt in 1976 and 1979. In the latter 

motion plaintiffs alleged that the Board 

did not implement the 1971 plan in good 

faith and that the Board had contrived to 

perpetuate segregation.

The District Court held hearings in 

August of 1979. After finding that the 
Board had violated the spirit of the 1971 

order, the District Court ordered it to 
devise a new comprehensive desegregation 

plan. After further hearings in the 

spring of 1980, the District Court held 
that the 1971 plan had been ineffective 
and gave specific direction to the Board 

on the necessary elements of a new plan. 
Kelley v. Metropolitan Bd. of Ed., 492 F.

Supp. 167 (M.D. Tenn. 1980)



6

The Board filed its plan on January 

19, 1981, and plaintiffs filed objections 

on March 25, 1981. After a further 
hearing on March 30, 1981, the District 

Court rejected plaintiffs' plan and 

ordered implementation of the Board's

plan. The court also lifted its 1971

restriction on new construction. Kelley

v. Metropol it an Bd. of Ed., 571 F. Supp.

1363 (M.D. Tenn. 1981). The Sixth

Circuit's opinion and order, which

affirmed in part and reversed in part, 

remanded for, inter alia, the development 

and implementation of a more comprehensive 
student assignment plan and for resolution 

of plaintiffs1 unresolved requests for 

attorneys' fees dating back to the 
inception of the lawsuit. Kelley v.



7

Metropolitan Bd. of Ed», 687 F.2d 814 (6th 

Cir. 1 9 8 2 ) ,  cert, denied, 459 U.S. 1183 

( 1983) .
On remand, the parties agreed to a 

final desegregation plan which, hopefully, 
will result in a desegregated and unitary 

system. The issue in the case as it 
reaches this Court relates solely to the 

appropriate amount to be awarded as 
attorneys fees to plaintiffs' counsel for 

their unremitting efforts over three 
decades to finally bring the Nashville 

school system into compliance with the law 
of the land as declared by this Court in 

1954.

The initial attorneys' fee applica­

tion was filed in early 1974. However, no 
action was taken on it by the district 

court until 1982.  Pet. p. A - 2 .  Through a 
variety of procedural rulings the district



8

court limited the award to $139,000, far

less than the school board paid to counsel

to defend it in its attempts to evade its
2obligations under the law. The court of 

appeals held, rightly, that the amount 

awarded was inadequate and has remanded 

the case to the district court for further 

proceedings to determine the appropriate 

award.
None of the questions decided by the 

court of appeals are of such general 

applicability that they require review by 

this court. Rather, they arise from the 

specific factual context of the present 

case, relate to internal operating

As the court of appeals noted, in one 
five-year period alone, the defense 
attorneys received $288,000 in fees. Pet. 
p. A-16, n . 8.



9

procedures of the court of appeals, and to 

that court's interpretation of the meaning 

of its prior orders.

REASONS WHY THE WRIT SHOULD BE DENIED

I.

The Sixth Circuit's Ruling 
Regarding The Relationship 
Between Costs And Attorneys' Fees 
Does Not Conflict With The 
Rulings of Any Other Court of 
Appeals Or of This Court.

The first issue presented by the

petition in fact relates primarily to the
procedures to be followed by a court of

appeals in awarding attorneys' fees
relating to a successful appeal in a
civil rights case. The decision of the

court below has put it in conformity with
the practice of every other court of

3appeals, save two, and is fully consis-

3 Only the Eighth and Ninth Circuits have



10

tent with the civil rights attorneys' fees

statutes and Rule 39{a), P. R. App. Proc.

The practice of the courts of appeals
and of this Court is to award costs

mandated by rule or statute automatically

under certain circumstances. Thus, for

example, if an appellant prevails he will

ordinarily be reimbursed for printing the

appendix, for filing fees, and, in the
4circuit courts, for printing the briefs. 

On occasion, where, for example, there 

have been cross-appeals and the court has 

affirmed the judgment of the lower court 

in toto the appellate court will simply

adopted the practice of the appellate 
court determining fee awards for appeals 
in civil rights cases. Rule 17, Rules of 
the United States Court of Appeals for the 
Eighth Circuit, Rule 14(g) of the Rules of 
the United States Court of Appeals for the 
Ninth Circuit.

Rule 50, Rules of the Supreme Court of the 
United States? Rule 39, F.R. App. Proc.



- 1 1 -

provide that both parties will bear their
Cown costs. with the exceptions of the

Courts of Appeals for the Eighth and Ninth
6Circuits , on the other hand, the 

practice of the courts of appeals has been 
to leave the award of attorneys® fees with 

regard to appeals to the district court 

when, at the end of either the entire case 

or some discreet part thereof, it deals 

with the issue of entitlement to fees. 

The advantage of this practice as a 
practical matter, of course, is that where 
an attorneys' fee application is disputed 

issues relating to the appropriate amount 

may be resolved in a forum appropriate for 

the taking of evidence.

5 See, Rule 39, F.R. App. Proc., giving 
discretion to the court in assesssment of 
costs where a judgment is affirmed or 
reversed in part.

6 See, n. 3, supra.



12

In Buian v» Baughard, 687 F. 2d 859 

(6th Cir. 1982), the Sixth Circuit 

departed from this procedure and announced 

that a prevailing plaintiff would not 

receive fees for appellate work unless he 

had already been awarded costs for the 

appeal. Thus, it equated the standards for 

awarding costs under Rule 39 and awarding 

fees under 42 U.S.C. § 1988.
Despite the announcement of this rule 

by one panel of the Sixth Circuit, various 
other panels did not follow if in prac­

tice, and there were a series of orders 

sending back to the district court the 

question of the disposition of fee 

requests for work done on appeal. ̂  In the

7 See e ,g. , Greer v. Holt, No. 80-1548, 
Order of November 9, 1983; Buchanan v. 
City of Jackson, No. 81-5333, Order of 
April 23, 1984; Rowe v. Cleveland Pneuma­
tic Company, No. 80-1407; King v. Roberts, 
No.82-54277 Order of Oct. 7, 1983; League 
of Women Voters of Tennessee v. Collins, 
No.81-5625, Order of Dec. 22, 1983. See



13

present case the original panel avoided 

the Buian rule by holding that it only 
applied to appeals decided after its 

announcement. Therefore, it was inappro­

priate for the district court to deny fees 
to the plaintiffs for successful appeals 

disposed of before Buian was decided.
Faced with the confusion which Buian 

had generated between panels of the court, 

the Sixth Circuit appropriately decided to 

deal with the question eri banc in the 

present case. It held that because of the 
different standards for awarding attor­

neys' fees in civil rights cases and in 
awarding costs under Rule 39, the appro­
priate procedure to follow would be to 

have a district court award fees to 
prevailing plaintiffs for appeals in which

also, Green v. Francis, No.81-5870, Order 
of June 20, 1983.



14

they were successful irrespective of 

whether costs were awarded under the rules 

of appellate procedure. (Pet., pp. A-6 to 

A-9. )
This is precisely the practice 

followed by virtually all other courts of 

appeals and, indeed, is the practice 
followed by this Court. Clearly, pre­

vailing plaintiffs are entitled to fees 

for the time spent on successful
Qappeals, and just as clearly courts of 

appeals and this Court are ill-equipped to 

determine the amount of such fees. Since 

the standards for fees are different than 

the standards for awards of costs, the 

automatic and mechanical linking of the

See, e.g., Mims v. Wilson, 514 F.2d 106 
(5th Cir. 1975); Parham v. Southwestern 
Bell Tel. Co., 433 F.2d 421 (8th Cir. 
1970).

8



15

two, as was done in Bulan, was in error 

and the court of appeals below has adopted 

the appropriate practice.
The petitioner’s attempts to argue 

that there is no difference between fees 

and costs is simply a semantic game. For 
example, a successful defendant-appellee 

would be entitled to costs incurred in the 
court of appeals for printing its brief as 

matter of course. It would not, however, 

be entitled to attorneys' fees as a matter 

of course since a defendant may only 

receive fees under the strict standards of 
Christiansburg Garment Co. v. EEOC, 434 

U.S. 412 (1978). Conversely, a plaintiff- 
appellant may receive its appellate costs 

as a matter of course if successful on 
appeal from a dismissal of the action but 

would not be entitled to fees for that

9 Rule 39(a), F.R. App. Proc.



16

appeal unless and until it was successful 

in some degree on the merits. Hanrahan v. 

Hampton, 446 U.S. 754 (1980).

Thus, the sum and substance of the 
decision of the court below to reject its 

own rule in Buian, is one of the proce­

dures to be followed by the Sixth Circuit. 
None of the cases cited from other 

circuits by petitioner took the position 

of the Buian panel and, therefore, there 
is no conflict. Nor is the decision in 

conflict with Marek v. Chesny, ___  U.S.

____ , 87 L . Ed. 2d 1 ( 1985) which dealt

with an entirely different question 

relating to the relationship of attorneys’ 

fees and costs under Rule 68.

Finally, the petitioner’s suggestion 

that the decision below is in conflict 
with the Eleventh Amendment, is totally 
without foundation. First, this action



17

involves local government bodies, Davidson 

County and the county school board. This 

Court has long held that the Eleventh 

Amendment does not apply to local govern- 

mental units. Second, this Court held 

squarely in Hutto v. Finney, 437 D.S. 678 

(1978), that there was no Eleventh 
Amendment bar to the award of attorneys' 

fees even against states.

II.

There Is No Conflict Between The 
Circuits With Regard to The 
Availability of Fees for Work 
Done Prior to 1972

Petitioners, by their second question 
presented, similarly seek to construct a 

significant issue involving a conflict 

between circuits where there simply is

See, Mount Healthy City Bd. of Ed. v. 
Doyle, 429 U.S. 274, 280 (1977) and cases 
there cited.



18

none. At issue in this case was whether 

the Sixth Circuit's disposition of earlier 

appeals constituted such a break in the 

litigation that fees should not be awarded 

for work done prior to the effective dates 
of the subsequently enacted attorneys' 

fees statutes. ̂
First this question lacks importance 

because it is unlikely to be recurring. 

Counsel for respondents have been involved 

in virtually all of the school desegrega­

tion litigation that arose prior to the 
effective date of the 1972 and 1976 fees 

acts. To our knowledge, there are at best 

two or three cases, that may involve 

issues even remotely similar to the one

20 U.S.C. § 1617 (1972) and 42 U.S.C. 
§ 1988 (1976).



19

presented here. See, e.g.,Gaines v. 

Dougherty County Bd. of Education, 775 

F. 2d 1565 {11th Cir. 1985) .
Rather, the question of entitlement 

to fees for work done prior to the 

enactment of these statutes was largely 
disposed of by this Court’s decisions in 

Bradley v. School Board of Richmond, 416 

U.S. 696 ( 1 974) and Hutto v. Finney, 
supra. In a few cases, the question arose 
whether there had been a break in the 
litigation either through the entry of a 
final desegregation order or through the 

final disposition of a fee application 

prior to the effective dates of the fee 
statutes. With the exception of the 

present case and Gaines those cases were 

decided years ago.^2

T2 The cases cited in the Petition for Writ 
of Certiorari at pp. 16-20 are essentially 
all of the cases in which the issue arose.



20

In each instance, whether fees could 

be recovered for pre-1972 work depended on 

the peculiar facts of each case and of 

courts of appeals' interpretations of 

their own disposition of earlier appeals. 

In Gaines, for example, whether or not 
plaintiffs' attorneys were entitled to 

fees for pre-1972 work was dependent on 

the meaning of prior orders of the 

appellate court that vacated or reversed 

district court orders relating to desegre­

gation plans but that did not implicitly 
dispose of appeals of denials of attor­

neys' fees. The Eleventh Circuit 

reviewed the record and dispositively
interpreted the meaning of its prior

- 13orders.

The earlier decisions were rendered by the 
Fifth Circuit before its split into the 
Fifth and Eleventh Circuits.



- 21 -

Here, similarly, the issue of entitle­
ment to fees for pre-1972 work depended on

the interpretation of the meaning and

effect of earlier orders within the

peculiar facts of this case. The court of 
appeals, interpreting its own earlier 

decisions as well as those of the district 
court, concluded that there had been no 

break in the litigation, either actual or 

by contemplation of the parties. There­

fore, there was no bar to the award of 
fees to which the plaintiffs would 

otherwise be clearly entitled under the 
decisions of this court in Bradley and 

Hutto. In light of the facts that (1) the 
disposition of this question depends on 

the specific facts of the case and the 
court of appeals' interpretation of its



22

own orders and (2) the unlikelihood of the 

issue recurring, there is no warrant for 

review by this court on certiorari.
Further, the alleged conflict between 

circuits simply does not exist. In all 
instances the courts of appeals, in 

deciding whether the fees to which 
plaintiffs were presumptively entitled 

under Bradley should be denied, have 
applied the same legal standards and have 

determined the question according to the 

peculiar facts of the case before it. 

Thus, there is no necessity for review of 

the question by this Court.



23

The Question of the Calculation 
of the Amount of Fees Does Not 
Warrant Review By This Court.

With regard to the final question, 

there is similarly no basis for invocation 

of this Court's discretionary review. The 
court of appeals determined that the 
district court had determined an hourly 

rate based on improper legal standards. It 

remanded the case to the district court 

for determination of the rate on an 
appropriate basis. Given the peculiar 

factual issues raised in a disputed fee 
proceeding, the question does not present 

any overriding issues that have not 
already been sufficiently addressed by 

this court in its recent decisions in 

Hensley v. Eckerhart, 461 U.S. 424 (1983),

III.



24

and Blum v. Stenson, ___ D.S. ___, 79

L.Ed. 891 ( 1984), which were cited and 

followed by the court below.

Thus, for example, the court of 
appeals applied the Blum rule that 

attorneys are to be awarded hourly rates 

that are within the parameters of custo­

mary fees in the community. The district 

court was directed to redetermine a proper 

hourly rate, which had to be at least the 
minimum that the record established was 

appropriate.



25

'CONCLUSION

For the foregoing reasons, the issues 
in this case do not require review by this 

Court. The petition for writ of certior­

ari should be denied.

Respectfully submitted,,

JULIUS LeVONNE 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 Respondents

♦Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177