Monroe v. City of Jackson, TN Board of Commissioners Brief of Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 77-1123

BRENDA KAY MONROE, et al.,
Plaintiffs-Appellants,

vs.
BOARD OF COMMISSIONERS OF THE CITY OF 

JACKSON, TENNESSEE, et al..
Defendants-Appellees.

Appeal From The United States District Court 
For The Western District Of Tennessee 

Eastern Division

BRIEF OF PLAINTIFFS-APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
MELVYN R. LEVENTHAL 
KELLIS E. PARKER 
BILL LANN LEE

10 Columbus Circle
New York, New York 10019

AVON N. WILLIAMS, JR.
MAURICE FRANKLIN X'

1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

Attorneys for Plaintiffs-Appellants



Table of Contents

Page
Table of Contents ..............................  i
Table of Cases .....................    ii
Statement of Questions Presented .............   1
Statutory Provisions Involved ........       2
Statement of Case ..................................  3
Statement of Facts .................................  9
ARGUMENT

Introduction ......................................  11
Summary of Argument ...........................   14

I. The Lower Court Misapplied Proper Legal 
Standards In Determining Attorneys' Fees 
For Legal Representation Since July 1,
1972.........................................  15
A. Prevailing Upon Every Issue .....  17
B. Application of Factors ...............  21

II. The Lower Court Erred In Denying Attorneys'
Fees For Legal Representation From January
1971 To July 1, 1972   24

III. The Lower Court Erred In Denying Attorneys'
Fees For Legal Representation From January
8, 1963 to July 1, 1972   27

Conclusion ......................................   32
Appendix ..........................................   a -1
Certificate of Service ................. ....... .



•  #
Table of Cases

Ace Heating & Plumbing Co., Inc. v. Crane, 453 F.2d
30 (3rd Cir. 1971) .................................  20

Alyeska Pipeline Serv. v. Wilderness Society,
421 U.S. 240 (1975) ................................  28,2

Armstrong v. Bd. of Education of City of Birmingham, 30
C.A. 9678 (N.D. Ala. Sept. 14, 1976...... ..........

Aspira of New York, Inc. v. Board of Education of
New York, 394 F.Supp. 1161 (S.D. N.Y. 1975) ......  20

Bell v. School Bd. of Powhatan Cty., 321 F.2d
494 (4th Cir. 1963) ................................  12

Bradley v. Richmond School Board, 416 U.S. 696
(1974)   21,17,14,13

29,26,25,24
Brewer v. School Board of the City of Norfolk,

500 F. 2d 1129 (4th Cir. 1974) ...................... 29,25
Brown v. Board of Education, 347 U.S. 483 (1954).....  13
Davis v. County of Los Angeles, 8 EPD f4444

(C.D. Cal. 1974)   18,24
Davis v. Pontiac School Dist., 443 F.2d 255

(6th Cir. 1971)   15
F.D. Rich Co., Inc. v. Industrial Lumber Co.,

417 U.S. 116 (1974)   12
Johnson v. Georgia Highway Express, Inc., 488 F.2d

714 (5th Cir. 1974) ................................  24,22, 17
Lafferty v. Humphrey, 248 F.2d 82 (D.C. Cir. 1957)

cert.denied, 355 U.S. 869 (1957) .................  20
Maddox v. Gulf States Paper Corp., Civil No. 69-M-628

(N.D. Ala. October 18, 1974)   20
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970).. 17
Monroe v. Board of Commissioners of the City of

Jackson, 453 F.2d 259 (6th Cir. 1972) ............ 16,8,4
Monroe v. Bd. of Comm. City of Jackson, 505

F. 2d at 109   21,11,3
Monroe v. County Board of Education of Madison County,

Sixth Cir. No. 76-2389, appeal pending ............ 4

- ii -



Page
Northcross v. Board of Education, 412 U.S. 427

(1973) ..........................................  23,14,13
Norwood v. Harrison, 410 F.Supp. 133 (N.D. Miss.

1976)   25
Palmer v. Rogers, 10 EPD ^[10,499 (D.D.C. 1975) .... 17
Ramey v. The Cincinnati Enquirer, Inc., 508

F. 2d 1188 (6th Cir. 1974) ....................... 20
Robinson v. Shelby County Board of Education,

442 F. 2d 255 (6th Cir. 1971) ...................  15
Sprague v. Ticonic Nat'1 Bank, 307 U.S. (1935) ... 25,12
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.

Cal. 1974)   18,19,24
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971)   19,15
Swann v. Charlotte-Mecklenburg Board of Education,

66 F.R.D. 483 (W.D. N.C. 1975) .................  24,19, 17
Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976) .....  20
United States v. Texas, 495 F.2d 1250 (5th Cir. 1974) 28
Wade v. Mississippi Cooperative Extension Serv.,

378 F.Supp. 1251 (N.D. Miss. 1975) ............ 19

Statutes
20 U.S.C. § 1617 ................................  in passim
42 U.S.C. § 1981 ..................................... 3
42 U.S.C. § 1982   3
42 U.S.C. § 1983 ............................. ......  3
42 U.S.C. § 1985      3
42 U.S.C. § 1986   3
42 U.S.C. § 1988 ........................... . in passim

x n  -



Page
Other Authorities
Hearings Before The Senate Selection Committee 

on Equal Educational Opportunity, 91st Cong.
Part 3B ......................................... 12

H.R. Rep. No. 94-1558, The Civil Rights Attorney's 
Fees Awards Act of 1976, 94th Cong., 2d Sess.
(1976)   16,14,13

25,23
S. Rep. No. 74-1011, 1976 Attorneys' Fees Awards

Act, 94th Cong., 2d Sess. (1976)   15,14,15
24,23,24

Subcomm. on Constitutional Rights of the
S. Comm, on the Judiciary, Civil Rights Attorneys'
Awards Act of 1976, 94th Cong., 2d Sess. (Comm.
Print 1976)   25'13

114 Cong. Rec......................................  13
117 Cong. Rec......................................  13
122 Cong. Rec.......................................  29



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 77-1123

BRENDA KAY MONROE, et al.,
Plaintiffs-Appellants, 

vs.
BOARD OF COMMISSIONERS OF THE CITY OF 

JACKSON, TENNESSEE, et al.,
Defendants-Appellees.

Appeal From The United States District Court 
For The Western District Of Tennessee 

Eastern Division

BRIEF OF PLAINTIFFS-APPELLANTS

Statement Of Questions Presented 
In a pending school desegregation action in which 

plaintiffs, as prevailing party, seek an award of attorney's 
fees pursuant to § 718 of the Emergency School Aid Act of 
1972, 20 U.S.C. § 1617, and the Civil Rights Attorneys Fees 
Award Act of 1976, 42 U.S.C. § 1988:

1. Whether the lower court erred in applying the stand­
ards of the Emergency School Aid Act of 1972 and the



Civil Rights Attorneys Fees Award Act of 1976 to determine 
the attorney's fees for legal representation since July 1, 
1972, the effective date of the School Aid Act?

2. Whether the lower court erred in denying any 
attorney's fees for legal representation prior to July 1, 1972 
pursuant to the Emergency School Aid Act of 1972 and the 
Civil Rights Attorneys Fees Award Act of 1976

a) For the period from January 6, 1971 to 
July 1, 1972 for which no prior attorney's fees 
was determined?

b) For the period prior to January 6, 1971 
for which attorney's fees under the "obdurate 
obstinacy" standard had been previously determined?

Statutory Provisions Involved 
Section 718 of the Emergency School Aid Act of 1972, 

20 U.S.C. § 1617, provides:
"Upon the entry of a final order by a court of 

the United States against a local educational 
agency, a State (or any agency thereof), or the 
United States (or any agency thereof), for failure 
to comply with any provision of this chapter or 
for discrimination on the basis of race, color, or 
national origin in violation of title VI of the 
Civil Rights Act of 1964, or the Fourteenth Amend­
ment to the Constitution of the United States as 
they pertain to elementary and secondary education, 
the court, in its discretion upon a finding that 
the proceedings were necessary to bring about com­
pliance, may allow the prevailing party other than 
the United States, a reasonable attorney's fee as 
part of the costs."

2



The Civil Rights Attorneys Fees Act of 1976, 42 U.S.C.
§ 1988, provides:

"In any action or proceeding to enforce a 
provision of sections 1977, 1978, 1979, 1980 
and 1981 of the Revised Statutes, 1/ title IX of 
Public Law 92-318, or in any civil action pro­
ceeding, by or on behalf of the United States 
of America, to enforce or charging a violation 
of, a provision of the United States Internal 
Revenue Code, or title VI of the Civil Rights 
Act of 1964, the court, in its discretion, may 
allow the previaling party, other than the 
United States, a reasonable attorney's fee as 
part of the costs. "

Statement Of The Case

Appeal is sought from the order on attorney fees 
(J.A. 283) and judgment on court decision (J.A. 296) entered 
by U. S. District Court Judge Harry W. Wellford, Western 
District of Tennessee, Eastern Division, on, respectively, 
November 18th and November 29th, 1976. This is the second 
appeal from the lower court's determination of attorney's 
fees originally sought in June 1973. in 1974, the issue was 
whether the $1,500 fees awarded bore any relation either to 
the time and effort of counsel or to any other relevant 
considerations which ought to govern a district court's 
execuse of discretion in setting the amount where district 
court failed to articulate the basis for its award or to 
permit the parties to introduce evidence, Monroe v. Board 
of commissioners of city of Jackson, 505 F.2d 105, 106 
(6th cir. 1974). This Court held that, " [b]ecause our

l/ Presently codified as 42 U.S.C. §§ 1983, 1985-1986.
3



review is dependent upon some sort of record of the basis 
for the decision below, we vacate the judgment insofar as 
it relates to the attorneys' fee and remand the cause to 
the district court for findings of fact and conclusions of 
law as to the amount of any attorneys' fees awarded under 
the standards of Bradley v. School Board of City of Richmond, 
416 U. S. 696 (1974)." 505 F.2d at 109. The basic issue 
now is whether the district court correctly followed this 
Court's mandate in accordance with prevailing law.

All told, this is the sixth time that this action has
come before this court. The action was filed on January 8,
1963 originally as a single school case against both the
Board of Commissioners of the City of Jackson and the
Madison County Board of Education to disestablish the dual
system of public education, and has been vigorously litigated

2/
ever since. Because of the limited nature of the appeal, 
we do not state the detailed history of the litigation which 
is summarized in Monroe v. Board of commissioners of the 
City of Jackson, Tennessee, 453 F.2d 259 (6th Cir. 1972) 
and 505 F.2d 109 (6th Cir. 1974).

The January 1963 complaint concludes, "[p]laintiffs 
further pray that the Court will allow them their costs

2/ The two cases have been separately litigated. Monroe 
v. County Board of Education of Madison county, Sixth 
Circuit No. 76-2389, also is presently pending on appeal on 
questions arising from separate attorneys fees award 
proceedings.

- 4



herein and such further, other or additional relief as may 
appear to the court to be equitable and just," Complaint at 
p. 18. In a motion for further relief and to add parties 
as additional and/or intervening plaintiffs filed September 
4, 1964, plaintiffs requested:

"That the Court award reasonable fees to 
plaintiffs’ attorneys for their services rendered 
to them, including the intervening and/or additional 
plaintiffs, in this cause, and allow plaintiffs 
their reasonable costs and grant such further, 
other, additional or alternative relief as may 
appear to the court to be equitable and just."

Motion For Further Relief at p. 13. Every motion filed
bY plaintiffs to date contains a similar express request
for an award of attorney’s fees. With respect to the 1964
request, the lower court granted an interim award of $1,000
"for the handling of that aspect of the litigation pertaining
to the application of the intervening plaintiffs in the
summer of 1964 to transfer to schools outside of their zones
and the defendants' denial of said application in clear
violation of the constitutional rights of these plaintiffs"
(J.A. 10).

On January 6, 1971, plaintiffs "move [d] the Court to 
allow them attorneys fees for their attorneys" for the then 
entire period of the litigation (J.A. 11). The accompanying 
affidavit of counsel lists in detail the hours worked 
with respect to proceedings (j .a . 13). The district court 
awarded only fees from the period from May 1968 under the



non-statutory "obdurate obstinacy" exception to the American 
rule (J.A. 33).

"The conduct of the defendant, Board of Com­
missioners of the City of Jackson, Tennessee, in 

s^snce to the city School System after the 
decision of the Supreme Court of the united States 

this case in May 1968, in failing and refusing 
to adopt and propose a plan for meaningful and 
prompt desegregation of the City School System, was 
unreasonable and obdurate with regard to its 
affirmative duty, and said counsel for the plaintiffs 
are entitled to a reasonable attorney fee for the 
period commencing after the remand of the case from 
the Supreme Court in 1968 and continuing through

aPPeal of this Court's ruling by the defendant, 
Board of Commissioners of the City phase of the case 
to the court of Appeals for the Sixth Circuit, 
decided June 19, 1970. The sum of Five Thousand 
Dollars ($5000.00) is set as this fee and said defend­
ant, Board of Commissioners, will pay said sum 
forthwith to said counsel for plaintiffs as an 
afforney fee, and not as part of the costs, covering 
said period of time in the city phase of the case 
only. The Court will not attempt to allocate 
proportions of said fee as between said two counsel 
for plaintiffs and the entire amount thereof will 
be paid to Avon N. Williams, Jr., Esquire, for 
appropriate allocation between them according to their agreement and consent."

(J.A. 36). The court added:
"It appearing to the court that the amount of the 

costs to be paid by the defendants is disputed and has 
never been concluded, the undersigned Judge of the 
Court hereby reserves _ for his individual determination 
all questions pertaining to payment of court costs 
to ̂ and including the date of this order upon appro­
priate application to the Clerk and the Court."

Id. To date the question of costs is still pending.
The district court had previously explained its reasoning
at the conclusion of a hearing January 14, 1971 (J.A. 25).

6



"The Court's ruling is going to be based upon 
the Court's conception of the law that the fee in 
a case of this sort is not a fee as a matter of 
right for all services rendered from the time of 
the inception of the case. The court doesn't 
understand that to be the law.

"Of course, there is a strong and convincing 
appeal to the moral right for a fee. When we 
look back at the history of this case, we see a 
sight that isn't pleasant for the white race, of 
which I am a member, of course. It is not a 
panorama of something of which we should be proud. 
It took courage to file this suit, and it took 
courage for people like Brenda K. Monroe to want 
to break the system that was so basically unfair 
and was ingrained into the school systems not 
only in Jackson and Madison County but other places.

"Based on objective fairness in the community 
one hundred thousand dollars would be a modest 
fee, but we cant take that into consideration in 
awarding a fee, nor those matters included in the 
remarks by Mr. Ballard. I am sure he has been 
severely criticized and it did come at some cost 
to his position in the community.

"I don't conceive the law to be for this court 
to try to penalize the defendant because it has 
undertaken to follow its concept of the law from 
the beginning. The law is slow —  slower than it 
should have been. When you stop and look back 
on this era of history the fact that 'due 
deliberate speed' or 'deliberate speed' was 
interpreted to mean fifteen years doesn't look 
very pretty. The Court doesn't believe that it 
should use the awarding of a fee as a penalty 
for the defendants because they haven't done what 
the Constitution requires.

"The Court has also taken into consideration 
that Judge Brown has considered the matter of a 
fee in earlier proceedings.

"It is my conclusion that a fee should be awarded 
in this case based upon the phase of the case that 
commenced after the remand of the Supreme Court."

(J.A. 27-28). Plaintiffs appealed the question whether

7



"the award should not have been limited as it was to the
period of the time from the remand from the Supreme Court
to the time of the issuance of this Court's most recent
ruling in June 1970. " Monroe v. Board of commissioners
of City of Jackson, supra, 453 F.2d at 263. This Court
affirmed that, "the determination as to the lack of
unreasonably obstinacy as to this earlier period to have
been proper," id. A subsequent rehearing petition was 

3/ ~
denied.

Thereafter, on June 5, 1973, plaintiffs moved for an 
award of counsel fee for the entire litigation pursuant 
to § 718 of the Emergency School Aid Act of 1972, 20 U.S.C.
§ 1617, supra, which went into effect July 2, 1972 (J.A. 39). 
The district court awarded an attorney's fee of $1,500 "in 
the exercise of equitable discretion" (J.A. 71, 73). As 
noted above, this court vacated the judgment and remanded 
for "findings of fact and conclusions of law as to the 
amount of any attorney's fee awarded," 505 F.2d at 109.
On remand, plaintiffs renewed their request for fees for the 
entire period and for the intervening additional time 
(J.A. 74 et_ seq. and 119 et seq.) . An evidentiary hearing 
was held April 8, 1976 (J.A. 141) and the court issued its

3/ Defendant school board unsuccessfully appealed on the 
merits. its petition for rehearing and latter petition for 
a writ of certiorari also were denied (J.A. 38).



order on attorney fees November 18th (J.A. 283) and 
judgment on court decision November 29th (J.A. 296). In 
the interim, Congress enacted and the President signed the 
Civil Rights Attorneys' Fees Award Act of 1976, 42 U.S.C.
§ 1988, which went into effect October 19th.

The lower court's order, inter alia, (a) denied any 
award for the period before July 1, 1972, including both 
the period from 1963 to January 1971 which had been earlier 
determined under the "obdurate obstinacy" standard, and the 
interim period for which prior determination had been made; 
and (b) conferred an award of $5,000 for plaintiffs' legal 
representation since July 1, 1972. A timely notice of 
appeal was filed (J.A. 297).

1/Statement of Facts
Counsel for plaintiffs have a distinguished record as 

practicing lawyers, having been members of the Bar of 
Tennessee for a combined total of 71 years. Together, they 
spent an approximate total of 672 hours on the case from 
January 8, 1963 to April 8, 1976 of which, at least 40

4/ The facts of this case are those presented by plaintiffs 
at the hearing on April 8, 1976 (J.A. 141) and in the 
affidavit of plaintiffs' counsel (J.A. 120). Although the 
three witnesses who testified at the trial were cross- 
examined by defendants, the defendants made no affirmative 
presentation of facts.



hours were in court. Plaintiffs have not received reasonable 
compensation for services of their counsel.

10



ARGUMENT

Introduction
In the 1974 opinion, this Court stated the rule that, 

"ftjhere is a strong policy in favor of awards of attorneys' 
fees in school desegregation cases, and plaintiffs ''should 
ordinarily recover an attorney's fee unless special circum­
stances would render such an award unjust.'' Northcross v. 
Memphis Board of Education, 412 U.S. 427, 428 . . . (1972),
quoting Newman v. piggie Park Enterprises, Inc., 390 U.S.
400, 402 . . . (1968). Although it is within the district
court's discretion to determine whether or not to award 
attorneys' fees, this court may review the reasonableness of 
any award." Monroe v. Board of commissioners of city of 
Jackson, supra, 505 F.2d at 109. Upon remand, the lower 
court merely reinstated the $1,500 award for fees through 
1973, reversed by this Court, as "fair and reasonable" (with 
only an increase of $1,000 "[s]ince there has been a delay 
in the payment"), (J.A. 294), and allowed an additional 
$2,500 amount for legal services since 1973 under a narrow 
and erroneous legal standard, id. The district court also 
refused to consider any award of fees for legal representation 
prior to July 1, 1972, the effective date of the Educational 
Amendments. The latter consists of two periods: the first
from January 6, 1971 to July 1, 1972 for which no prior

11



j

award was ever sought or determined; the second from the 
filing of the lawsuit in 1963 to January 6, 1971 for which 
a prior award under the "obdurate obstinacy" exception to the 
American rule was sought and determined.

] Plaintiffs-appellants Brenda K. Monroe, et al. submit
i -

that the lower court erred in its determination of attorney's
j . fees for each period, in each instance misapplying legal
-i

standards of § 718 of the Emergency School Aid Act of 1972,
20 U.S.C. § 1617 (hereinafter "1972 Educational Amendments") 
and the Civil Rights Attorneys Fees Act of 1976, 42 U.S.C.
§ 1988 (hereinafter "1976 Attorneys Fee Act"). Initially,

i
however, we note that the two statutory provisions are an

j

intentional Congressional departure from the traditional 
American rule that counsel fees are not included as part of the 
recoverable costs of litigation. See, e.g., Alyeska Pipeline 
Serv. v. Wilderness Soc.. 421 U.S. 240 (1975); Sprague v. Ticonic 
Nat11 Bank, 307 U.S. 161 (1939); F. D. Rich Co., Inc, v. Industrial 
Lumber Co., 417 U.S. 116 (1974). The statutes were intended 
to enlarge the circumstances in which federal district courts 
would exercise their inherent equitable power to award fees, 
Sprague, supra, 307 U.S. at 164, beyond the traditional 
formulation requiring "obdurate and obstinate" conduct by 
school boards, e.g.. Bell v. School Bd. of Powhatan county,
321 F.2d 494 (4th Cir. 1963). For 1972 Educational Amendments, 
see Hearings Before The Senate Selection committee on Equal

12



Educational Opportunity. 91st Cong., Part 3B, pp. 1516-34;
114 Cong. Rec. 10760-64, 1139-45 (Sen. Mondale); 117 Cong.
Rec. 11343, 11521 (Sen. Cook). For 1976 Attorneys' Fees 
Act, see S. Rep. No. 74-1011, 1976 Attorneys' Fees Awards Act, 
94th Cong., 2d Sess. (1976), pp. 2-4; H. R. Rep. No. 94-1558,
The Civil Rights Attorney's Fees Awards Act of 1976, 94th Cong.,

5/2d Sess. (1976), pp. 2-3. Indeed, a specific purpose of the 
broader 1976 Attorney's Fees Act was to redress the irony 
that "in the landmark Brown [v. Board of Education, 347 U.S.
483 (1954)] case challenging school segregation, the plaintiffs 
could not recover their attorney's fees, despite the signifi­
cance of the ruling to eliminate officially imposed segre-

Vgation."
"The plaintiffs in school cases are 'private attorneys 

general' vindicating national policy" who should "'ordinarily 
recover an attorney's fee unless special circumstances would 
render such an award unjust,'" Northcross v. Board of 
Education. 412 U.S. 427, 428 (1973) (construing 1972 Educa-

5/ The committee reports, debates and other legislative 
history of the 1976 Attorney's Fees Act are set forth in one 
volume in Subcomm. on Constitutional Rights of the S. Comm, 
on the Judiciary, Civil Rights Attorney's Fees Awards 
Act of 1976, 94th Cong., 2d Sess. (Comm. Print 1976).
6/ H. R. Rep. No. 94-1558, supra, at pp. 4-5.
Z./ Compare Bradley v. Richmond School Board. 416 U.S. 696, 
719 n. 27 (1974) ("It is particularly in the area of desegre­
gation that this Court. . . recognized that, by their suit, 
plaintiffs vindicated a national policy of high priority.")

13



tional Amendments). Furthermore in Bradley v. Richmond 
School Board, 416 U. S. 696, 710 (1974), the Court decided 
that in a pending case '"§ 718 authorizes an award of 
attorneys' fees insofar as those expenses were incurred

fi/prior to the date that that section came into effect.1"

Summary of Argument
First, the lower court correctly held that plaintiffs 

were "prevailing party" in determining the attorney's fees 
awarded for the period since 1972. However, the district 
court incorrectly applied appropriate standards to determine 
the amount of the award contrary to the statutes and appli­
cable caselaw. Second, the per se denial of an award of 
fees for legal work prior to the effective date of the 1972 
Educational Amendments in a pending case for which no prior 
determination had ever been made was in express violation 
of the statutes as authoritatively construed in Bradley v . 
Richmond School Board, supra. Third, the denial of statutory 
attorney's fees for legal services prior to January 1971 "as 
part of costs" is not precluded by a prior determination under 
the non-statutory "obdurate obstinacy" exception to the 
American rule.

8/ Northcross and Bradley are incorporated by reference 
m  the legislative history of the 1976 Attorneys' Fees Act, 
see H. R. Rep. No. 94-1558, supra; S. Rep. No. 1011, supra.

14



I.
THE LOWER COURT MISAPPLIED PROPER LEGAL 
STANDARDS IN DETERMINING ATTORNEYS FEES 
FOR LEGAL REPRESENTATION SINCE JULY 1,
1972._____________________________________

The district court held that, " [p]laintiffs are . . .  
entitled to an award based upon attorney fees and expenses 
incurred after July 1, 1972, because at least to some extent, 
plaintiffs have been the prevailing party, and proceedings 
were necessary to bring about further compliance in light of 
Swann fv. Charlotte-Mecklenburg Board of Education, 402 
U. S. 1 (1971)]; Robinson v. Shelby County Bd. of Ed., 442 
F.2d 255 (6th Cir. 1971), and Davis v. Pontiac School Dist., 
443 F.2d 255 (6th Cir. 1971)" (J. A. 285) and that, " [t]he 
Court has determined that plaintiffs were 'prevailing parties' 
in the proceedings since the 1972 remand," id. The district 
court which had heard all the proceedings in the case after 
remand, specifically found that plaintiffs were successful 
as an overall matter even though not "entirely successful."
The finding of fact of overall success in court was unappealed 
by defendant Board, and is not clearly erroneous. Indeed,
the finding of the district court was altogether too stinting 
since the proper inquiry was whether plaintiffs were "pre­
vailing party" for the entire litigation, S. Rep. No. 94-1011,

9/ Plaintiffs believe that it is not necessary to the issue 
whether plaintiffs were not "entirely successful", see infra.

15



supra, at pp. 5-6; H. R. Rep. No. 94-1558, supra, at pp. 7-8, 
and numerous authorities cited. On this, the record is clear
and it is the law of this case that, plaintiffs' action has

10/
successful desegregated the public schools of Jackson. 
However, the district court went further and ruled that it 
would "award [ ] fees only to the extent it can fairly be 
determined that plaintiffs' efforts were prevailing and

10/ In the 1972 opinion, this Court found that:
"To the credit of all concerned, certainly 

including the District Judge, it is observed 
that at long last Jackson has made some very 
substantial progress toward the desegregation 
of its school system. For example, we note 
that although Jackson once maintained a dual 
school system, as of October, 1971, all of 
its schools were integrated to some degree; 
that there is now one high school comprised 
of 843 white and 643 black students; that 
there are now three junior high schools inte­
grated in ratios running from to-40 to 50-50; 
that four of the nine elementary schools were 
integrated in ratios similar to those just 
cited for the junior high schools; but that in 
the five remaining elementary schools, three 
are over 90% black and two are over 90% white. 
Integration in these five schools is minimal 
because the location in the city is such that 
no conceivable zoning change would produce 
any substantially greater integration.

"Regardless, however, of these salutary 
evidences of accomplishment, the possibility 
exists that even greater accomplishment might 
result from a further study of the situation 
in the light of Swann, and of Robinson and 
Davis. The cause will therefore be remanded 
to give the District Court opportunity for 
such consideration."

453 F.2d at 262.

16



successful towards further desegregation" (J.A. 286). This 
was legal error. In addition, the lower court erred in 
applying various factors of Johnson v. Georgia Highway Express, 
Inc., 488 F.2d 714 (5th Cir. 1974).

A. Prevailing Upon Every Issue
Plaintiffs are not required to "prevail" on every issue.

In Bradley v. Richmond School Board, supra, 416 U. S. at 710, 
plaintiffs were fully compensated even though the district 
court rejected their plan and accepted that of the defendants. 
1976 Attorney's Fees Act legislative history is clear that, 
"[i]n appropriate circumstances, counsel fees under [the Act] 
may be awarded pendente lite. See Bradley, fsupra]. Such 
awards are especially appropriate where a party has prevailed 
on an important matter in the course of litigation, even when 
he ultimately does not prevail on all issues. See Bradley, 
supra; Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970)"
S. Rep. No. 94-1011, supra, at p. 5 (emphasis added). Thus, 
in Swann v. Charlotte-Mecklenburg Board of Education. 66 F.R.D. 
483 (W.D. N.C. 1975) plaintiffs were awarded fees for the 
entire litigation "as the winners rather than the losers of the 
litigation," even though plaintiffs did not "prevail" on every 
issue because, as here, "the result has been the complete 
desegregation of the Charlotte-Mecklenburg school system,"
69 F.R.D. at 484. Compare Palmer v. Rogers, 10 EPD ^10,499 
at pp. 6130-6131 (D.D.C. 1975). The civil rights attorney's

17



provisions, in short, are result-oriented.
The formulation of Swann was specifically approved in- 

the 1976 Attorney's Fee Actr "The appropriate standards . . . 
are correctly applied in such cases as Stanford Daily v .
Zurcher. 64 F.R.D. 680 (N.D. Cal. 1974); Davis v. County of 
Los Angeles. 8 EPD 59444 (C.D. Cal. 1974); and Swann v . 
Charlotte-Mecklenburg Board of Education fsupra]. . . .  In 
computing the fee, counsel for prevailing parties should be 
paid, as is traditional with attorneys compensated by a fee­
paying client, 'for all time reasonably expended on a matter' 
Davis, supra; Stanford Daily, supra." S. Rep. No. 94-1011, 
supra, at p. 6.

Davis expressly states that, "plaintiffs' counsel are 
entitled to an award of fees for all time reasonably expended 
in pursuit of the ultimate result achieved."

"It also is not legally relevant that plain­
tiffs ' counsel expended a certain limited amount 
of time pursuing certain issues of fact and law 
that ultimately did not become litigated issues 
in the case or upon which plaintiffs ultimately 
did not prevail. Since plaintiffs prevailed on 
the merits and achieved excellent results for the 
represented class, plaintiffs' counsel are 
entitled to an award of fees for all time reasonably 
expended in pursuit of the ultimate result achieved 
in the same manner that an attorney traditionally 
is compensated by a fee-paying client for all time 
reasonably expended on a matter."

8 EPD 59444 at p. 5049. The district court's issue-by-issue
parsing was specifically rejected in Zurcher, supra, 64 F.R.D.
at 684.

18



"However, several recent decisions, adopting a 
different tack, deny fees for clearly meritless 
claims but grant fees for legal work reasonably 
calculated to advance their clients' interests.
These decisions acknowledge that courts should not 
require attorneys (often working in new or changing 
areas of the law) to divine the exact parameters of 
the courts' willingness to grant relief. See, e.g.,
Trans World Airlines v. Hughes, 312 F. Supp. 478 (s.D. N.Y. 1970), aff*d with respect to fee award,
449 F.2d 51 (2d Cir. 1971), rev1d on other grounds,
409 U.S. 363, 93 S. Ct. 647, 34 L.Ed. 2d 577 (1973).
One Seventh Circuit panel, for example, allowed 
attorneys' fees for legal services which appeared 
unnecessary in hindsight but clearly were not 
'manufactured.' Locklin v. Day-Glow color Corporation,
429 F.2d 873, 879 (7th Cir. 1970) (concerning fees 
for antitrust counterclaims)."

Of course the defendant's attorneys have not billed their
client for only those services as to which they prevailed
and we preceive no reason for disparate treatment of plaintiffs'
counsel.

"Defendants next urge that since the plain­
tiffs did not obtain all relief sought, they 
may not be said to have prevailed in the 
litigation. . . .  The Court's failure to sustain 
plaintiffs on all points is of no consequence 
in our consideration that plaintiffs were the 
prevailing party within the criteria for judg­
ing the propriety of assessing counsel fees."

Wade v. Mississippi Cooperative Extension Serv., 378 F. Supp.
1251, 1254 (N.D. Miss. 1975) (Title VII action). In a suit
on behalf of Puerto Rican students in New York which was
settled by consent decree, the district court also awarded
counsel fees, making the following comment about the

19



prevailing party" language of the 1972 Education Amendments:
' Plaintiffs are, in any apposite and meaningful 
sense, the 'prevailing party.' The decree gives 
the relief they sought, consented to only after 
more than a year and a half of bitter resistance 
that began with a contention that the action 
should be rejected out of hand as insufficient on its face."

Aspira of New York , Inc, v. Board of Education of New York.
394 F.Supp. 1161 (S.D. N.Y. 1975). Cf. Torres v.
Sachs, 538 F.2d 10 (2d cir. 1976). Similarly, in a stock­
holders' derivative action which was terminated by settlement, 
this court upheld a counsel fee award based upon the obvious 
benefits to the corporation incurred as a result of the litiga-
tion* R_amey v. The Cincinnati Enquirer, Inc.. 508 F.2d 1188, 
1196 (6th cir. 1974)7“

It is clear that the lower court's erroneous issue—by— 
issue analysis, alone, requires reversal. "This Court took 
into account in awarding the $1500 fee in 1973 that plaintiffs 
had unsuccessfully challenged the inte [ ]grated Senior High 
and Junior High student and teacher assignments as well as 
administrative assignments." (j. a . 287). The court subse-

sfe ^lso' Lafferty v. Humphrey. 248 F.2d 82 (D.C. Cir.1957), cert, denied, 355 U.S.869 (1957) (awarding fees in case 
rendered moot by compliance, in which original decision was 
vacated on certiorari by Supreme court for this reason);
Ace Heating & Plumbing Co., Inc, v. Crane. 453 F.2d 30 (3d 
Cir. 1971) (awarding fees to attorney for antitrust claimant 
whose claim to share in settlement was disallowed); Maddox
O cto b er f 8 ? t i '9 7 4 f r r  C° r P "  C iV il N° '  6 9 - M“628 ( N - D . T l a . ,

20



brought the amount up to $2,500 solely because of the passage 
of time (J. A. 294). "For services since that time, again. 
having in mind the limited results attained because of plaintiffs' 
counsels' unsuccessful contentions in issue finally ruled upon, 
the Court would allow an additional $2,500 for this services, 
a total of $5,000.00," id. (emphases added).

B. Application of Factors
The attorney fee issue raised by plaintiffs on appeal in 

1974 was that:
"[t]he $1,500 attorney's fee awarded them bears 
no relation either to the time and effort of 
counsel or to any other relevant considerations 
which ought to govern a district court's exercise 
of discretion in setting the amount of the award. 
Plaintiffs also point out that the district court 
failed to articulate the basis for its award or to 
permit the parties to introduce evidence on this 
matter. The latter fact makes it impossible for 
this court to determine the propriety of the award 
as such."

Monroe v. Board of commissioners of City of Jackson, supra,
505 F.2d at 108. This Court held that " [b]ecause our review 
is dependent upon some sort of record of the basis for the 
decision below, we vacate the judgment insofar as it relates 
to the attorney's fee and remand the cause to the district 
court for findings of fact and conclusions of law as to the 
amount of any attorney's fee awarded under the standards 
of Bradley v. School Board of city of Richmond, 416 U. S.
696, 94 S. Ct. 2006, 40 L.Ed. 2d 476 (1974)," 505 F.2d at 109.

21



On remand, the lower court wholly evaded the Court's
instructions, while the district court listed the 
Johnson v . Georgia Highway Express factors (J.A. 292-294), 
these factors are wholly ignored and the original $1,500 
fee simply reannounced; " [a]t the time of the original award, 
1973, $1,500 for fees was considered fair and reasonable, and 
in line with what had previously been allowed in this case 
and in similar cases" (A.A. 294). For the period since 1973, 
the district court simply announced, without any reference 
to the factors, "an additional $2,500." At no point does the 
lower court opinion indicate how the review of the factors 
had any effect on the outcome, much less offer a precise 
statement of the hours in issue, hours added or subtracted, 
or other effective and meaningful consideration of the factors 
in determining the attorney's fees award. clearly, the lower 
court had a sufficient factual record upon which to do so.
On the basis of the lower court opinion on remand, however, 
this Court still does not have "findings of fact and con­
clusions of law as to the amount of any attorney's fee awarded" 
necessary for review as to the reasonableness of the award.

Furthermore, the lower court's opinion reveals apparent 
errors in the existing discussion of factors (J.A. 292-294). 
Thus, as to "novelty and difficulty of question" (J.A. 292), 
the district court was of the view that "[t]his was not a

22



case of first impression on any issue and did not, or should
not have presented any special difficulty," and that as to 
"undesirability of case and reputation of attorneys," that 
Mr. Williams is well-known civil rights lawyer whose reputation 
would not be adversely affected (J.A. 292-293). While 
difficulty and novelty, and undesirability are certainly 
factors to be weighed in giving an additional or bonus award, 
they should not diminish an award. The rule is that, " [t]he 
plaintiffs in school cases are 'private attorneys general' 
vindicating national policy," Northcross v. Board of Education, 
supra, 412 U. S. at 428. " [A]warding counsel fees to prevail­
ing plaintiffs in such litigation is particularly important 
and necessary if federal, civil and constitutional rights are 
to be adequately protected," H.R. Rep. No. 94-1558, supra, 
at p. 9. As to "preclusion of other employment," the lower 
court misconceived that this litigation obviously did preclude 
other employment for Mr. Williams as the extensive record 
makes clear. Throughout its discussion of these factors, the 
lower court failed to follow fundamental congressional 
intent "that the amount of fees awarded under [the 1976 
Attorney's Fees Act] be governed by the same standards which 
prevail in other types of equally complex federal litigation, 
such as antitrust cases and not reduced because the rights 
involved may be nonpecuniary in nature," S. Rep. No. 94-1011, 
supra, p. 6. This intent is borne out by the cases the Senate

23



Report chooses to endorse as those in which Johnson v.
Georgia Highway Express standards are "correctly applied":
Davis v. County of Los Angeles, supra, 8 EPD 59444 (65.24/hour
reasonable); Stanford Daily v. Zurcher, supra, 64 F.R.D. 680
(63.33/hour reasonable); Swann v. Charlotte-Mecklenburg Board
of Education, supra, 66 F.R.D. 483 (64.81/hour reasonable).

12/S. Rep. No. 94-1011, supra, p. 6. This should certainly be 
the case where the " [ajbility and competency of counsel is 
not questioned" and [c]ertainly plaintiffs' counsel possessed 
abundant skill and experience in handling a case and pro­
ceedings attendant thereto without difficulties" (J.A. 292, 
293) .

II.
THE LOWER COURT ERRED IN DENYING ATTORNEYS 
FEES FOR LEGAL REPRESENTATION FROM JANUARY 
1971 TO JULY 1, 1972._______________________

Unlike the fees sought, infra, in part III, no prior
application of fees was made for the period from January
1971, when the request under the "obdurate obstinacy"
standard was sought, to July 1972 when § 718 of the Emergency
School Act became effective. As to the denial of these
fees, reversal is required by the holding of Bradley v .
Richmond School Board, supra, 416 U. S. at 710, that "'§ 718

12/ The lower court stated that, "[i]t is not unreasonable 
for plaintiffs' counsel to expect $50 per ho [u]r or $350 
a day for court time" (J.A. 294).

24



authorizes an award of attorneys' fees insofar as those 
expenses were incurred prior to the date that the section 
came into effect'" in a pending case. The district court, 
however, first, sought to confine Bradley to its specific 
situation of a pending fee application. Nothing in the 
reasoning of Mr. Justice Blackmun's opinion for a unanimous 
Court permits such a construction, which turns not on a 
pending fee application but a pending action, see 416 U. S. 
at 710-721. This was certainly the understanding of Con­
gress; "[i]n accordance with applicable decisions of the 
Supreme Court, the bill is intended to apply to all cases 
pending on the date of enactment as well as all future cases. 
Bradley v. Richmond School Board, [suprah" H.R. Rep. No. 94- 
1558, supra, p. 4 n. 6 (emphasis added). Lower courts have 
so held, see, e.g. Norwood v. Harrison, 410 F. Supp. 133,
141 n. 11 (N.D. Miss. 1976); Brewer v. School Board of the 
City of Norfolk, 500 F.2d 1129 (4th cir. 1974). Moreover, 
nothing requires that fees be sought prior to the end of 
litigation; the Supreme Court, for instance, approved an 
award of fees that was not sought until the end of the 
litigation in the venerable Sprague v. Ticonic National 
Bank, supra, 307 U. S. at 168-169. Second, the lower

.13/ See also legislative history set forth infra at p. 29.
14/ The lower court also cited several pre-Bradley decisions 
wKose utility is questionable (J.A. 284) / see Brewer v. School 
Board of the City of Norfolk, 500 F. 2d 1129 (4th Cir. 1974).

25



court states that, 11 [t]here was no claim for fees pending
■when this section became law on July 1, 1972" (J.A. 284).
Judge Wellford, who was not the trial judge through most
of the proceedings, is clearly in error as to the contents
of the record. The original complaint, filed January 8,
1963, concludes with the request "that the Court will allow
them their costs herein and such further, other or additional
relief as may appear to the Court to be equitable and just,"
Complaint at p. 18 (emphasis added), and all motions of
plaintiffs since the September 1964 motion for further relief
have consistently sought both fees and costs.

Thus, neither legal nor factual circumstances suffice
to rebut the application of Bradley to reverse the denial
of fees for the pre-July 1, 1972 period in question in the

15/
instant pending case.

15/ if the Court concludes that the retroactivity issue 
must be reached in order to decide the question, we rely on 
the discussion of retroactivity in part III, infra.

26



Ill
THE LOWER COURT ERRED IN DENYING ATTORNEYS 
FEES FOR LEGAL REPRESENTATION FROM JANUARY 
8 , 1963 TO JULY 1, 1972____________________

Fully eight years of lawyer services incurred by plain­
tiffs' counsel will not be covered by the lower court's award 
of counsel fees. The lower court rejected "'re-opening' the 
case for further award from 1963 to 1971" because " [t]he prior 
decision of the Court of Appeals precludes any further such 
allowance of fees or costs prior to consideration of matters 
presented to this Court during 1972" (J.A.284). in reaching 
this decision, the trial court read the previous Court of 
Appeals decision too broadly and the Emergency School Act too 
narrowly, errors which unjustly deprived plaintiffs of com­
pensation for virtually 60% of the case.

In effect, the lower court has concluded that the January 
3, 1972 Court of Appeals affirmation of the 1971 district court 
award of $5,000 counsel fees for the period of 1968 to January 
6, 1971 is res judicata with regard to the question of counsel 
fees. But that doctrine applies to bar relitigation of matters 
which were raised or should have been raised. Plaintiffs did 
not nor could they have sought entitlement to counsel fees based 
on the Emergency School Aid Act and the later 1976 Fees Act 
since that statute had not been enacted at the time of the Court 
of Appeals affirmance. The doctrine of res judicata is no 
defense to relitigation where, after the rendition of a judg­
ment, a statute is enacted defining new rights and remedies.
See, lB Moore, Federal Practice § 2055 (1976) and cases cited 
therein.

- 27



The counsel fee issue presented and previously decided 
in 1971 and 1972 differed substantially from the counsel fees 
issue presented to the court below. Prior to the enactment of 
the Emergency School Aid Act, parties had no statutory 
right to counsel fees covering the duration of the case. As the 
district court stated in 1971 "the fee in a case of this sort is 
not a fee as a matter of right for all services rendered from 
the time of the inception of the case" (J.A. 27). Absent a 
statute, a fee could be obtained only if the defendant's con­
duct was "unreasonable, obdurate and obstinate" (J.A. 30).
Thus, the Emergency School Aid Act and 1976 Attorney's 
Fees Act create a right by which prevailing parties may be com­
pensated for engaging counsel in the public interest. The 
difference between the two standards translated in this case 
into years of uncompensated services for plaintiffs' counsel 
because of the absence of "obdurate obstinacy" by the defendant, 
without which plaintiffs had no right to counsel fees. See, 
Alyeska pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 
258 (1975). In United States v. Texas, 495 F.2d 1250, 1251 
(5th Cir. 1974) the court observed that the standard of obstinate 
noncompliance "is separate, apart from, and in addition to the 
counsel fee remedy specifically provided by Congress in § 718 of 
Title VII of the Emergency School Aid Act. . . . "

This is not to say that res judicata has no effect. Rather 
it is to the new statute that one must look for the extent and 
limitations of the right created. We now refer this Court

28



to the clarifying legislative history of the 1976 Fees Act, 
confirming intent to make the right retroactive. Repre­
sentative Drinan, one of the sponsors of the 1976 Fees Act, 
stated:

"I should add also that, as the gentleman from 
Illinois (Mr. Anderson) observed during con­
sideration of the resolution on S.2278, this 
bill would apply to cases pending on the date 
of enactment. It is the settled rule that a 
change in statutory lav? is to be applied to cases 
in litigation. In Bradley versus Richmond SchooT 
Board, the Supreme Court expressly applied that 
longstanding rule to an attorney fee provision, 
including the award of fees for services rendered 
prior to the effective date of the statute"
(emphasis added).

Subcomm. of S . Comm, on the Judiciary, Civil Rights Attorney's 
Fees Awards Act of 1976, supra, pp. 255-256, see also 202 
("The Civil Rights Attorneys' Fees Award Act authorizes 
federal courts to award attorneys' fees to a prevailing 
party in suits presently pending in the federal courts.")
(Rep. Abourezk). See also H. R. Rep. No. 94-1558, supra.

Caselaw is consistent with this construction of the 
statute, in Brewer v. School Board of Norfolk, supra, the 
Fourth Circuit, prior to the enactment of the Emergency 
Aid Act, had ordered the district court to award 
fees based on a common fund theory. The district court 
complied. After the enactment of the Emergency School 
Aid Act, however, the Fourth Circuit vacated the district 
court's award and commanded that court to determine plaintiffs'

- 29



eligibility for attorneys' fees under the new statute. The 
lower court's narrow reading of retroactivity would not permit 
a similar application of statutory standards in this case. See 
also Finney v. Hutto. 548 F.2d 740 (8th Cir. 1976).

Moreover, the record is clear that counsel fee issues 
were "pending" at the time the Emergency School Aid Act was en­
acted. The district court, in 1971, expressly refrained from

16/
ruling on matters regarding plaintiffs' entitlement to "costs."
Thus, all questions regarding "costs" were pending when the
Emergency School Aid Act was subsequently enacted in 1972 and
the Attorney's Fees Act in 1976. Both statutes state, in
pertinent part, that a court may allow "the prevailing party
. . . a reasonable attorney's fee as part of the costs11
(emphasis added). The broad significance of counsel fees as
part of costs is that the statutory fees issue could not be
pinned on the conduct of the losing party, a punitive test,
but must be based on all the case-related services rendered by
counsel, a compensatory standard. The pendency of the issue
of "costs" satisfies even the lower court's narrow reading

12/of retroactivity.
Finally, the equities favoring an award of counsel fees

16/ "The Court would like to make one more observation and that 
is that the Court wishes to assure counsel that this Court 
stands ready to rule upon any dispute over the costs and thinks 
that this matter should be taken up as soon as possible"
(J.A. 31).
17/ For a school desegregation case in which counsel fees were 
awarded from 1963 to 1976, see Armstrong v. Bd. of Educ., 
infra at A-l.

30



so far outweigh any illusion of res judicata or a narrow 
construction of the retroactivity of the pertinent legis­
lation that counsel fees for the entire period should be 

18/
awarded. Again, the equitable justifications for full
compensation are on record. The trial court in 1971 recognized 
some of these factors:

"Of course, there is a strong and convin­
cing appeal to the moral right for a fee. When 
we look back at the history of this case, we 
see a sight that isn't pleasant for the white 
race, of which I am a member, of course. It 
is not a panorama of something of which we 
should be proud. It took courage to file this 
suit, and it took courage for people like Brenda 
K. Monroe to want to break the system that was 
so basically unfair and was ingrained into the 
school systems not only in Jackson and Madison 
County but other places (J.A. 27).

"Based on objective fairness in the community 
one hundred thousand dollars would be a modest 
fee but we cant take that into consideration in 
awarding a fee" (J.A. 27-28).

The time omitted from the lower court's award includes
all the time spent by counsel to obtain the Supreme Court's
decision that the defendants were perpetuating an unconsti-

18/ Equitable factors have been used to overcome the basic 
policies of res judicata. See, e.g., Adams v. Pearson,
411 111. 431, 104 N.E. 2d 267 (1952). A long line of cases 
have recognized that the Emergency School Aid Act should be 
read liberally in favor of awarding fees, see e.g., Norwood 
v. Harrison, 410 F. Supp. 133 (N.D. Miss. 1976), the purpose 
being "'to encourage individuals injured by racial discrimi­
nation to seek judicial relief.'" Northcross v. Bd. of Educ.. 
supra, p. 13, 412 U.S. at 428.

31



tutional dual school system. Despite their protestations, 
defendants benefited from the efforts of plaintiffs, through 
their counsel, to move their school system from a dual to a 
unitary one.

CONCLUSION
For above stated reasons, the order on attorney's fees 

and judgment on the decision should be vacated, and the case 
remanded with directions for proceedings under proper standards 
required by § 718 of the Emergency School Aid Act of 1972,
20 U.S.C. § 1617, and the Civil Rights Attorney's Fees Act 
of 1976, 42 U.S.C. § 1988.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
MELVYN R. LEVENTHAL 
KELLIS E. PARKER 
BILL LANN LEE

10 Columbus Circle
New York, New York 10019

AVON N. WILLIAMS, JR.
MAURICE FRANKLIN

1414 parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

Attorneys for Plaintiffs-Appellants

32



A P P E N D IX

IN  T H E  U N IT E D  S T A T E S  D I S T R I C T  COURT 
F O R  T H E  NO RTH ERN D I S T R I C T  OF ALABAM A 

SO U TH ERN  D I V I S I O N

D W IG H T A RM STRO N G , e t  a l . , 

P l a i n t i f f s ,

*
*
•k

*

k

BOARD OF E D U C A T IO N  OF T H E  * 
C I T Y  OF B IR M IN G H A M , A LA B A M A ,*
e t  a l . , *

*
D efendan ts . *

C I V I L  A C T IO N  NUM BER 

967 8

;?! CLsax’s o?.-ics 
riDHTHinn titrn icT  or Alabama

6up 1 4 i975

F IN D IN G S  O F F A C T  AND 
C O N C LU S IO N S  OF LAW

T h i s  c a u s e  cam e o n  f o r  a  h e a r i n g  o n  p l a i n t i f f s '

M o t io n  f o r  A w a rd  o f  C o u n s e l  F e e s .  B a s e d  o n  a  t w e n t y - s e v e n  

p a g e  d o c u m e n t  s u b m it t e d  b y  p l a i n t i f f s '  c o u n s e l ,  e n t i t l e d ,  

" S t a t e m e n t  o f  T im e  E x p e n d e d  b y  A t t o r n e y s  f o r  t h e  P l a i n t i f f s  

a n d  T h e i r  A s s o c i a t e  C o u n s e l  F ro m  M a y , 1 9 6 3  t o  J u l y ,  1 9 7 6 " ,  

a n d  b a s e d  o n  t h e  o r a l  t e s t i m o n y  o f  p l a i n t i f f s '  c o u n s e l  b e f o r e  

m e , t h e  C o u r t ' s  r e v i e w  o f  t h e  f i l e  i n  t h i s  c a u s e ,  a n d  t h e  

C o u r t ' s  own p e r s o n a l  a c q u a i n t a n c e  w i t h  t h e  s e r v i c e s  o f  

p l a i n t i f f s '  a t t o r n e y s  s i n c e  1 9 7 5 ,  a n d  t h e  a r g u m e n t s  o f  c o u n s e l  

f o r  t h e  p l a i i n t i f f s  a n d  t h e  d e f e n d a n t  S c h o o l  B o a r d ,  t h e  C o u r t  

m a k e s  t h e  f o l l o w i n g  f i n d i n g s  o f  f a c t  a n d  c o n c l u s i o n s  o f  l a w :

1 .  C o u n s e l  f o r  p l a i n t i f f s  a r e  e n t i t l e d  t o  a n  a w a rd  

o f  a  r e a s o n a b l e  a t t o r n e y s '  f e e  i n  t h i s  c a u s e ,  p u r s u a n t  t o

2 0  U . S . C .  § 1 6 1 7 ,  a n d  B r a d l e y  v .  S c h o o l  B o a r d  o f  t h e  C i t y  o f  

R ic h m o n d , 94 S .  C t .  2 0 0 6  ( 1 9 7 4 ) .  T h e  C o u r t  h a s  m ade t h e  

d e t e r m i n a t i o n  o f  t h e  a m o u n t o f  a t t o r n e y s '  f e e s  a p p l y i n g  t h e  

s t a n d a r d s  s e t  f o r t h  b y  t h e  F i f t h  C i r c u i t  C o u r t  o f  A p p e a l s  i n  

J o h n s o n  v .  G e o r g i a  H ig h w a y  E x p r e s s , 4 88  F . 2 d  7 1 4 .

2 .  C o u n s e l  f o r  p l a i n t i f f s  h a v e  c o l l e c t i v e l y  

e x p e n d e d  2 ,1 4 0  h o u r s  i n  t h e  p r o s e c u t i o n  o f  t h i s  c a u s e  f o r

t h e  y e a r s  1 9 6 3  t h r o u g h  1 9 7 6 ,  i n c l u d i n g  t h r e e  s u c c e s s f u l  a p p e a l s



2

t o : t h e . F i f t h  C i r c u i t  C o u r t  o f  A p p e a l s .  T h e  C o u r t  f i n d s  t h a t  . 

c o u n s e l  p r o b a b l y  e x p e n d e d  m o re  t h a n  t h e  2 ,1 4 0  h o u r s  t h a t  

t h e y  s e t  f o r t h  i n  t h e i r  S t a t e m e n t ,  s i n c e  m e t i c u l o u s  r e c o r d s  

w e r e  n o t  k e p t  b y  c o u n s e l  i n  t h e  e a r l y  s t a g e s  o f  t h i s  l i g i -  

g a t i o n  a n d  o n l y  a f t e r  1 9 6 8  w e re  m o re  m e t i c u l o u s  r e c o r d s  k e p t .  

H o w e v e r ,  a f t e r  r e v i e w i n g  t h e  v o lu m in o u s  R e c o r d  i n  t h i s  c a s e ,  

a n d . c o n s i d e r i n g  sam e  i n  t h e  l i g h t  o f  t h e  C o u r t ’ s  own e x p e r i e n c e  

i n  .t h e  t r i a l  o f  h o t l y  c o n t e s t e d  c a s e s ,  i t  i s  t h e  C o u r t ' s  f i n d i n g  

t h a t  2 , 1 4 0  h o u r s  i s  a  m o d e s t  s t a t e m e n t  o f  t h e  t im e  e x p e n d e d  b y  

a t - . l e a s t  s i x  a t t o r n e y s  o v e r  a  p e r i o d  o f  13  y e a r s  o f  l i t i g a t i o n .  

Som e o f  t h e  h o u r s  f o r  c e r t a i n  w o r k  w e re  e x p e n d e d  s e p a r a t e l y ,  

a n d  som e h a v e  b e e n  lu m p e d  t o g e t h e r .

3 .  P l a i n t i f f s  k e p t  n o  a c c u r a t e  r e c o r d s  o f  c o s t  

e x p e n d e d  i n  h o t e l ,  t r a n s p o r t a t i o n  a n d  m e a l s ,  a s  w e l l  a s  l o n g  

d i s t a n c e  t e l e p h o n e  c a l l s .  C o n s i d e r i n g  t h e  v e r y  l e a s t  t h a t  

c o u l d  b e  e x p e n d e d ,  t a k i n g  i n t o  c o n s i d e r a t i o n  t h a t  t h r e e  

a p p e l l a t e  a p p e a l s  w e r e  m a d e , a n d  som e o f  t h e  l a w y e r s  i n  t h i s  

c a s e  r e s i d e d  i n  New Y o r k  C i t y ,  $ 3 , 5 0 0 . 0 0  i s  a m o d e s t  a m o u n t 

t o  a w a rd  a s  c o s t s  f o r  t h e s e  i t e m s  i n  t h i s  c a s e .  T h e  C o u r t  

s o  f i n d s  t h a t  p l a i n t i f f s  i n c u r r e d  $ 3 , 5 0 0 . 0 0  i n  c o s t s  i n  

m a i n t a i n i n g  t h i s  a c t i o n .

4 .  T h e  r e p u t a t i o n ,  e x p e r i e n c e  a n d  s k i l l  o f  p l a i n t i f f s '  

c o u n s e l  f o r  w o r k  i n  t h e  f i e l d  o f  c i v i l  r i g h t s  i s  i m p r e s s i v e .  

R e c e n t l y ,  t h e  F i f t h  C i r c u i t  C o u r t  o f  A p p e a l s  co m m e n te d  o n  t h e  

s k i l l  o f  t h e s e  a t t o r n e y s ,  i n  t h e  c a s e  o f  U n it e d  S t a t e s  v .

U n it e d  S t a t e s  S t e e l , 5 2 0 ,  F . 2 d  1 0 4 3 .  A l t h o u g h  p l a i n t i f f s '  

a t t o r n e y s  c l a i m  f o r  t h e i r  s e r v i c e s ,  $ 7 5 .0 0  a n  h o u r  a n d  t h i s  

f i g u r e  d o e s  n o t  a p p e a r  t o  b e  a n  u n r e a s o n a b l e  c h a r g e ,  t h e

C o u r t  r e c o g n i z e s  t h a t  som e o f  t h e  s e r v i c e s  p e r f o r m e d  b y  

p l a i n t i f f s '  c o u n s e l  w e re  p e r f o r m e d  m o re  t h a n  12  t o  13 y e a r s  

a g o .  T a k i n g  i n t o  c o n s i d e r a t i o n  t h a t  a  f e e  o f  l e s s e r  a m o u n t 

m ig h t  h a v e  b e e n  r e a s o n a b l e  i n  t h e  e a r l y  y e a r s  o f  t h i s  l i t i g a t i o n ,

A - 2



(

3

c e r t a i n l y  $ 7 5 . 0 0  a n  h o u r  o r  p e r h a p s  m o r e , w o u ld  b e  r e a s o n a b l e  

d u r i n g  t h e  l a t t e r  s t a g e s  o f  t h i s  l i t i g a t i o n .  F o r  t h i s  r e a s o n ,  

t h e  C o u r t  f i n d s  t h a t  t h e  r e a s o n a b l e  v a l u e  o f  t h e  h o u r l y  s e r v i c e s
J

t o t a l l y  r e n d e r e d  b y  p l a i n t i f f s '  c o u n s e l  s h o u l d  b e  f i x e d  a t  

$ 6 0 - 0 0  p e r  h o u r .  B a s e d  o n  h o u r l y  r a t e s ,  p l a i n t i f f s  w o u ld  b e  

e n t i t l e d  t o  a n  a t t o r n e y s '  f e e  o f  $ 1 2 3 ,4 0 0 1 0 0 .  H o w e v e r ,  t h e  

t e a c h i n g  o f  J o h n s o n  v .  G e o r g i a  H ig h w a y  E x p r e s s  i s  t h a t  h o u r l y  

c o n s i d e r a t i o n s  a r e  n o t  t h e  s o l e  c r i t e r i a  o n  w h ic h  a t t o r n e y s '  

f e e s  s h o u l d  b e  a w a r d e d .  S e e  a l s o  B i r d i e  Mae D a v i s  v .  M o b i le  

C o u n t y  B o a r d  o f  E d u c a t i o n , 5 2 5  F . 2 d  8 6 5 .  T h e  n a t u r e  o f  t h e  

p l a i n t i f f s '  l e g a l  s e r v i c e s  w e r e  i n v a l u a b l e  t o  t h e  c l a s s  t h e y  

r e p r e s e n t e d  a n d  t o  t h e  C i t y  o f  B i r m in g h a m ,  a s  w e l l  a s  t o  p r o t e c t  

a n d  i n s u r e  r i g h t s  g u a r a n t e e d  b y  t h e  C o n s t i t u t i o n  o f  t h e  U n i t e d  

S t a t e s ,  a n d  T i t l e  V I  o f  t h e  C i v i l  R i g h t s  A c t  o f  1 9 6 4 .  D u r i n g  

t h e  p e r i o d  o f  t im e  t h a t  p l a i n t i f f s '  a t t o r n e y s  h a v e  b e e n  i n  

t h i s  c a s e ,  t h e i r  f e e ,  t o  som e e x t e n t  h a s  b e e n  o f  a  c o n t i n g e n t  

n a t u r e .  T h e r e f o r e ,  t h e  C o u r t  f i n d s  t h a t  i n  a d d i t i o n  t o  t h e  

h o u r l y  r a t e  h e r e t o f o r e  d e t e r m in e d ,  p l a i n t i f f s  a r e  a l o s  e n t i t l e d  

t o  a n  a d d i t i o n a l  $ 1 8 , 0 0 0 . 0 0  b y  r e a s o n  o f  t h e  r e s u l t s  o b t a i n e d ,  

a s  w e l l  a s  b y  r e a s o n  o f  t h e  c o n t i n g e n t  n a t u r e  o f  t h e i r  p r o ­

f e s s i o n a l  r e l a t i o n s h i p .

t h e  C o u r t  i s  o f  t h e  o p i n i o n  t h a t  t h e  f a i r  a n d  r e a s o n a b l e  v a l u e  

o f  t h e  s e r v i c e s  o f  A d a m s , B a k e r  a n d  C le m o n ,  a n d  t h e  NAACP 

L e g a l  D e f e n s e  F u n d ,  s i n c e  1 9 6 3 ,  i s  $ 1 5 0 , 0 0 0 . 0 0 ,  w h ic h  a m o u n t 

t h e y  a r e  e n t i t l e d  t o  r e c o v e r  f r o m  t h e  d e f e n d a n t s .

5 .  T h e r e f o r e ,  i n  c o n s i d e r a t i o n  o f  t h e  f o r e g o i n g .

DONE a n d  O RD ER

7 r/i

A -3



CERTIFICATE OF SERVICE

The undersigned certifies on this 25th day of April
1977 that copies of the foregoing Brief Of plaintiffs-
Appellants were served on counsel for all parties by U. S.
mail, first class, postage prepaid, addressed to:

Sidney W. Spragins, Esq.
P. 0. Box 2004
Jackson, Tennessee 38301
Mr. Nat Douglas, Esq.
Ms. Kaydell Wright, Esq.
U. S . Department of Justice 
Civil Rights Division 
Education Section 
Washington, D. C. 20530

Attorney for Plaintiffs-Appellants