Petition for Rehearing and Suggestion for Rehearing En Banc

     [||330e1c1d-3113-47ba-b028-221e8298aecf||] IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PFIFTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, et’ al,, 

Defendants-Appellees. 

Appeal From The United States District Court 

For The Northern District Of Mississippi 

Delta Division 

PETITION FOR REHEARING AND 

SUGGESTION FOR REHEARING EN BANC 

JACK GREENBERG 

BILL ILANN LEE 

Suite 2030 

10 Columbus Circle 

New York, New York 10019 

Attorneys for Plaintiffs-Appellants 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIFPTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, at al., 

Defendants-Appellees. 

CERTIFICATE OF COUNSEL 

The undersigned counsel of record for appellants 

certifies that the following listed parties have an interest 

in the outcome of this case. These representations are 

made in order that Judges of this Court may evaluate possible 

disqualification or recusal pursuant to Local Rule 13 (a). 

l. N.A.A.C.P. Legal Defense and Educational Fund, Inc. 

2. Black school age children of Clarksdale, Mississippi 

3. Board of Trustees of Clarksdale’M.S.S.D. Yi / J 
/ 7 i J 

/ “ Sa } ir” 

A" 

! BILL LANN LEE 
Attorney of Record for 

Appellants 



’ IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIPTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, &t al., 

Defendants-Appellees. 

Appeal From The United States District Court 

For The Northern District Of Mississippi 

Delta Division 

PETITION FOR REHEARING AND 

SUGGESTION FOR REHEARING EN BANC 

REQUIRED STATEMENT FOR REHEARING EN BANC 

I express a belief, based on a reasoned and studied 

professional judgment, that the panel decision is contrary 

to the following decisions of the Supreme Court of the United 

States and the United States Court of Appeals for the Fifth 

Circuit, and that consideration by the full court is necessary 



to secure and maintain uniformity of decisions in this 

Court. Hutto v. Finney, U.S. ,y 46 U.S. LW. 4817 

(decided June 23, 1978); Bradley v. School Board of Richmond, 

416 U.S. 696 (1974); Rainey v. Jackson State College, 551 

F.28 672 (5th Cir. 1977); Davis v., Board of School Commis-— 

sioners of Mobile County, 526 P.24 865 (5th Cir. 1976). 

I express a belief, based on a reasoned and studied 

professional judgment, that this appeal involves one or more 

questions of exceptional importance: 

1. Whether the retroactive application of the Civil 

Rights Attorneys' Fees Act of 1976, 42 U.S.C. § 1988, and 

§ 718 of the Education Amendments Act of 1972, 20 U.S.C. 

§ 1617, requires not only that a case be pending at the time 

the Act becomes effentive but also "the existence of an issue 

actively pending in the District Court, or unsettled on 

appeal”? 

2. Whether a school desegregation action was pending 

within the meaning of the above Acts at a time prior to the 

district court deciding and this Court affirming a signifi- 

cant substantive desegregation issue, or to any determination 

that unitary status has been achieved? 

3. Whether proper legal principles were applied to a 



denial of an award of attorney's fees under the non-statu- 

tory "unreasonable and obdurate obstinacy" standard? 

Bill Lann Lee 

Attorney of Record for 

Plaintiffs-Appellants 



IN THE 

UNITED STATES COURT OF APPEALS 

POR THE PIFPTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, et al., 

Defendants-Appellees. 

Appeal From The United States District Court 

For The Northern District Of Mississippi 

Delta Division 

PETITION FOR REHEARING AND 

SUGGESTION FOR REHEARING EN BANC 

This petition concerns the construction of the two 

federal statutes which provide for reasonable attorney's 

fees and costs to prevailing parties in school desegregation 

actions. The decision from which rehearing is sought is a 

per curiam opinion of September 7, 1978, joined in by 

Judges Coleman and Fay that 20 U.S.C. § 1617 has retroactive 



application to pending cases only when there is "an issue 

actively pending in the District Court, or unsettled on 

appeal": the effect is to require not only that the case 

be pending but that the additional requirement of an "active" 

pending issue be met. Judge Tjoflat dissented in an exten- 

sive opinion. The per curiam opinion was plainly erroneous: 

the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. 

§ 1988 being completely ignored and the standard in any 

event misperceived. The per curiam opinion also characterizes 

a school desegregation action as inactive even though a 

o
F
 

substantive issue was subsequently decided and affirmed, an 

no ruling that a unitary system has been achieved has ever 

been made. This, too, was error. Last, the per curiam 

erroneously applied the alternative obdurate obstinacy 

standard. 

STATEMENT OF THE CASE 

This school desegregation action was filed in 1964 and 

3/ 

has been the subject of numerous decisions. That the liti- 

gation was hard fought is an understatement. No acceptable 

l1/ Henry v. Clarksdale Municipal Separate School District, 

5 Cir. 1969, 409 P.24 682, cert. danied, 396 .U.8., 940, S90 

S.Ct. 375, 24 L.Ed.2d 242 (Clarksdale I): Henry v. Clarksdale 

Municipal Separate School District, 5 Cir. 1970, 425 F.2d 698 

(Clarksdale II); Henry v. Clarksdale Municipal Separate School 

5 Cir. 1970, 433 pr.24 387 (Clarksdale Ill); and Henrv v. 

Clarksdale Municipal Separate School District, 5 Cir. 1973, 

480 F.2d 583 (Clarksdale IV). 



desegregation plan resulted until 1970 by court order, 

Clarksdale III, with this Court expressly noting that "the 

district may proceed to consider alterations and amendments 

to [the plan], to the extent that they represent forward, 

not backward steps,” 433 F.2d at 392. The plaintiffs did 

so, filing a motion for supplemental relief on the trans- 

portation part of the plan which the district court granted 

and this Court affirmed in Clarksdale IV in 1974. The 

district court and Clarksdale IV also denied a contrary 

request of defendants to minimize transportation requirements 

because resegregation would have resulted. 

At plaintiffs' request for an award for attorney's fees, 

Clarksdale IV states: 

[Tlhe district court upon the entry of 

a final order in this case, is directed to 

grant appellees' request for reasonable 

attorneys' fees incurred since July 1, 1972. 

The district court shall also grant a hear- 

ing to determine whether or not the appellants’ 

actions were carried out in an "unreasonable 

and obdurately obstinate" manner in the years 

preceding July 1, 1972, so as to entitle appel~- 

lees to be awarded reasonable attorneys' fees 

for services before that date. 

480 F.2d at 585-586. July 1, 1972, is the effective date of 

the 20 U.85.C. § 1617. (Post-July 1, 1972, fees have been 

granted and are not in issue.) With respect to the pre-July 1, 

fees, Clarksdale IV was relying on then circuit law construing 



2/ 
§ 1617 as non-retroactive which Bradley v. School Board of 

Richmond, 416 U.S. 696, 715, n. 20 (1974), later expressly 

rejected. The attorney's fees application before the court 

was filed January 10, 1975, and determined pursuant to 

Clarksdale IV. 

No finding that the Clarksdale Municipal Separate School 

District had achieved unitary status has ever been issued. 

The panel did not consider the effect on the passage 

of the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. 

§ 1988, which went into effect October 19, 1976. 

ARGUMENT 

Rehearing and rehearing en banc should be granted for 

the following reasons: 

1. Plaintiffs-appellants Henry, et al. should prevail 

even under the literal terms of the standard enunciated by 

the per curiam opinion that an active issue exist 1n a pend- 

ing case when the Act went into effect. This is because the 

per curiam opinion never considered the effect of the Civil 

Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988, which 

: 2/ Johnson v. Combs, 471 7.28484, 86 {5th Civ. 1972), cert, 

denied, 413 U.S. 922 (1973). 



was passed, signed and became effective during the pendency 

of the instant appeal. On October 19, 1976, the effective 

date of the Act, there was no doubt in this case of "an issue 

actively pending in the District Court, or unsettled on 

appeal," i.e., the attorney's fees issue, Bradley v. School - 

Board of Richmond, supra (§ 1617); Rainey v. Jackson State 

College, 551 ¥.24 672, 676 (5th Cir. 1977) (1976 Act). {only 

attorney's fees issue pending in both cases). Therefore, 

even 1f the standard enunciated by the per curiam is right, 

it was erroneously applied to this very case. 

Moreover, as the dissent points out, the panel was 

bound by Clarksdale IV's order that fees be considered for 

pre-July 1, 1972, fees award under the obdurate obstinacy 

standard. When the intervening fees statutes came into 

effect, the district court under the law of the case lost 

its jurisdiction to decline to award fees; with the passage 

of the statutes, the standard for fees awards was changed 

3/ 
to presumptive entitlement of the prevailing party. 

Thus, the per curiam rule, its merits aside, does not 

apply to this very case. For these reasons alone, the 

opinion should be vacated. 

3/ Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 

(1968); Northcross v. Board of Education, 412 U.S. 427, 428 

(1973). 



2. As to the per curiam standard, it is an improper 

and unprecedented additional requirement that prevailing 

parties inpending cases must meet. Simply put, the imposi- 

tion of this additional requirement that there be an "active" 

issue as well as a pending case for retroactive application 

of the attorney's fees statutes is against the purpose of 

the statutes and all precedent. Thus, both Acts make fees 

4/ 
awardable as "part of the costs” which commonly are not 

sought or awarded until the conclusion of litigation. 

As recently as last term, the Supreme Court cited the 

legislative history of the 1976 Act that "'[i]ln accordance 

with applicable decisions of the Supreme Court, the bill is 

intended to apply to all cases pending on the date of enact- 

ment.' H.R. Rep. No. 94-1558, p. 4, n. 6 (1976). See also, 

Bradley v. School Board, 416 U.S. 696," Hutto v. Finney, 

supra, 46 U.S.L.W. at 4821 (emphasis added). Prior to Hutto, 

this Court had also ruled that "[t]he legislative history 

of the Act clearly reveals that it was Congress' intent to 

have the award provisions apply to all cases pending at the 

time of enactment," Rainey v. Jackson: State College, supra, 

551 F.2d at 675 (emphasis added). 

4/ See, Hutto v. Finney, 46 U.S.L.W. 4817, 4821-4822 (decided 
June 23, 1978). 



The per curiam opinion, on the other hand, can cite 

no actual authority in behalf of its unique rule. 

If the per curiam rule is right, then it would lead to 

anomalous results: whether the statute was retroactive in 

a given pending case would depend entirely on whether an issue 

or appeal was pending on July 1, 1972, or October 19, 1976, 

no matter what happened in the litigation before or after 

those dates and no matter what the character or significance 

of the pending matter. Some parties, as plaintiffs-appel- 

lants here, would be deprived of a fees award only because 

they were waiting for the conclusion of the substantive part 

of the litigation before seeking ancillary relief, as was 

5/ 
the case in Bradley itself, see also Sprague v. Ticonic 

National Bank, 307 U.S. 161, 168-169 (1939). 

Thus, there is no basis in the statute, ER or 

reason that permits the additional restrictive rule propounded 

by the per curiam opinion for retroactive application of the 

Acts to pending cases. 

3. Moreover, the per curiam opinion erred that ‘the 

litigation was somehow concluded and final by July 1, 1972. 

The fact that this Court had to issue a substantive ruling 

5/ See also, Davis v. Board of School Commissioners of Mobile 

County, 526 7.24 865, 86% (5th Cir. 1975). 



in Clarksdale IV in 1973 is answer enough. This is after all 

a school desegregation case; the obligation of the district 

court is to retain jurisdiction, Brown v., Board of Education II, 

349 U.S. 294 (1955), until racial segregation is eliminated 

root and branch, Green v. County School Board, 391 U.S. 430, 

437-438 (1968), and the most effective desegregation plan 

put into effect, Wright v. Council of City of Emporia, 407 

U.S. 451 (1972); Adams v. Rankin County Board of Education, 

485 F.24 324, 325-326 (5th Cir. 1973). Only when a legal 

Toy = ruling of unitary status can be made, Pasadena City Board of 

Education v. Spangler, 427 U.S. 424 (1976), can a school 

desegregation case be declared concluded and final. 

These are familiar principles which this Court has done much 

in framing and ins lehenting. Yet, the per curiam opinion 

wholly ignores that there is no ruling that a unitary system 

now eiste. 

Indeed, the per curiam ruling is directly at odds with 

Bradley v. School Board of Richmond, supra, and Brewer v. 

School Board of Norfolk, 456 .F.28 943 (4th Cir.), cert. denied, 

406 U.S. 933 (1972), in which fees were awarded under the 

1972 Act after all substantive lssues were resolved. 3 

fortiori, the ruling that the litigation was over by July 1, 

1972 was error. 



It is no fault of plaintiffs that the case was not 

completed long ago; it was defendants' resistance to effec- 

tive desegregation that caused this prolonged litigation in 

the face of ever-clearer Supreme Court law. There is thus no 

‘equitable reason to deprive plaintiffs of an award of reason- 

ble attorneys' fees, Bradley v. School Board of Richmond, 

supra. Furthermore, the 1976 Act has as one of its express 

aims to broaden and clarify the provision for fees in school 

desegregation cases, see, e.g., H.R. Rep. No. 94-1558, supra, 

“ak pp. 4-5. 

4. As an alternative ground, defendant school board was 

obdurately obstinant in the defense of the action under the 

non-gstatutory standards of Hutto v. Fimev, supra {part II.A.) 

and Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 

258-259 (197 ). We submit that the chronicle of successive 

appeals in this Court in the face of clear law of the Supreme 

Court and this Court, constitute a record of unreasonable 

and obdurately obstinate behavior by defendants which cannot 

be refuted. 

5. Both the per curiam opinion and the lower court 

opinion determined that if mistaken, $8,500 was a reasonable 

fees award for services of Melvyn R. Leventhal, Esq., from 

1969 - July 1, 1972. This amount should be assessed. However, 



the lower court determined that the fees for services of 

Derrick Bell, Esqg., and now Professor of Law, Harvard Law 

School, would be unjust, a conclusion at odds with the 

clear purpose of the Acts and their construction in Hutto, 

Northcross and Bradley, as discussed above, that fees are 

ordinarily to be awarded and awarded "as part of the costs." 

The lower court was 1n error to completely deny plaintiffs 

an award for the extent of documentation. At most, the 1964- 

1969 portion of the fees application should be remanded for 

consideration as to whether fees should be reduced for rea- 

sons of documentation. (The lower court had no warrant to 

deny fees because of appellate change of law.) 

CONCLUSION 

For the above reasons, rehearing en banc should be 

granted. 

Respectfully submitted, 
i 4 

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JACK GREENBERG 

BILL IANN LEE 

Suite 2030 

10 Columbus Circle 

New York, New York 10019 

Attorneys for Plaintiffs- 

Appellants 



CERTIFICATE OF SERVICE 

The undersigned certifies that copies of the foregoing 

Petition for Rehearing and Suggestion for Rehearing En Banc 

were served on counsel for the defendants by United States 

mail, postage prepaid, this 19th day of September, 1978, as 

follows: 

Semmes Luckett, Esq. 

121 Yazoo Avenue 

Clarksdale, Mississippi 38614 

/ 
/ frre ae / { hE Of 

Bill Lann Lee 

Attorney for Plaintiffs- 

Appellants 

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