Robert W. Kelley, Cross-Appellees v. Metropolitan County Board of Education, Cross-Appellants

773 F.2d 677, 2 Fed. R. Serv. 3d 811, 1985 U.S. App. LEXIS 23240, 54 U.S.L.W. 2189
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 23, 1985
Docket83-5175, 83-5243
StatusPublished
Cited by79 cases

This text of 773 F.2d 677 (Robert W. Kelley, Cross-Appellees v. Metropolitan County Board of Education, Cross-Appellants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert W. Kelley, Cross-Appellees v. Metropolitan County Board of Education, Cross-Appellants, 773 F.2d 677, 2 Fed. R. Serv. 3d 811, 1985 U.S. App. LEXIS 23240, 54 U.S.L.W. 2189 (6th Cir. 1985).

Opinions

KRUPANSKY, Circuit Judge.

Plaintiffs Robert W. Kelley and the class he represents appealed and defendant Metropolitan County Board of Education (Board) cross-appealed the district court’s award of attorney’s fees in this school desegregation case.

Commencing on the heels of the landmark case of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the instant case has spawned volumes of court opinions and orders at both the district and appellate levels. These decisions need not be recounted in detail here. See, e.g., Kelley v. Metropolitan County Board of Education, 687 F.2d 814 (6th Cir.1982), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983); Kelley v. Metropolitan County Board of Education, 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972); Kelley v. Metropolitan County Board of Education, 511 F.Supp. 1363 (M.D.Tenn.1981). Suffice it to say that the litigation undoubtedly required hundreds of hours of work by the plaintiffs’ and Board’s attorneys.

The plaintiffs’ initial motion for attorney’s fees, pursuant to the Educational Amendments of 1972, 20 U.S.C. § 1617, was filed on February 8,1974. Subsequent filings amended the pending motion to include a prayer for relief under the 1976 Civil Rights Attorney’s Fees Act, 42 U.S.C. § 1988. In December, 1982, the trial court conducted hearings on the issue of attorney’s fees. On February 23, 1983, the court awarded plaintiffs’ fees and costs of approximately $139,500 or less than ten percent of the amount requested.2 The discrepancy between the amount requested and that awarded formed the basis of plaintiffs’ appeal.

Specifically, plaintiffs alleged error in the district court’s refusal to award attorney’s fees for services rendered prior to 1972, for declining to award fees for appellate services, and for abusing its discretion in calculating the daily and hourly rates of plaintiffs’ attorneys Avon Williams and Richard Dinkins. The defendant Board’s cross-appeal challenged the district court’s failure to discern the specific extent to which plaintiffs prevailed on each of their claims, and in holding the Board liable for services required by plaintiffs’ attorneys due to the intervention of third parties.

The district court’s denial of attorney’s fees for services performed prior to 1972 [680]*680was predicated on the court’s determination that a 1971 desegregation order, entered by the district court and approved by the Sixth Circuit, was a “final order” which terminated entitlement to attorney’s fees under this court’s mandate in Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980).

In Northcross, .supra, this court cautioned that although attorney’s fees could be awarded retroactively in all desegregation cases pending at the date of § 1988’s enactment, such retroactive relief was not automatic. The court stated:

This is not to say that a retroactive award of attorney’s fees must be made in all school desegregation cases. Certain interim aspects of the case may have been subject to a final order settling the issue of attorney’s fees to that point, rendering the reopening of long-settled aspects of the case unfair.

611 F.2d at 635.

Based on the above guidance, the North-cross district court held on remand that a 1966 consent order entered in the Memphis school desegregation case constituted a final order, thus barring an award of attorney’s fees for work completed prior to 1966.

In the instant case, the court below concluded that the 1971 order of the district court, affirmed in Kelley v. Metropolitan County Board of Education, 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972), constituted a “final order” as did the 1966 consent decree at issue in Northcross. This court, however, is not persuaded by that conclusion.

In upholding the lower court’s sanctioning of the HEW plan in 1972, this circuit initially observed:

The order of the District Judge is the first comprehensive and potentially effective desegregation order ever entered in this [17 years of] litigation. The District Judge tells us that now the remedy is at least in sight.

463 F.2d at 734.

Consequently, this court observed in 1972 that the only issues of substance presented in that appeal were the “practical problems which appellants claim have developed since the entry of the district judge’s [1971] order”, 463 F.2d at 744, such as the lengthy bus rides to which youngsters were subjected as part of the desegregation plan. However, the Sixth Circuit directed the parties to seek a remedy for these problems in the district court. The court instructed:

As appellants well know, the arena for fact-finding in the federal courts is the United States District Court. Until these claims are presented in a trial court, with an opportunity for sworn testimony to be taken and controverted issues of facts decided by the processes of adversary hearing, this court has no jurisdiction.

463 F.2d at 744-45.

The 1972 Sixth Circuit opinion further related that documents included in the appellate record suggest “that local authorities in Nashville and Davidson County have not made good faith efforts to comply with the order of the District Judge,” 432 F.2d at 745. The 1972 appellate decision thus concluded:

The District Court order in this case specifically retained jurisdiction. Thus, upon our affirmance, the door of the District Court is clearly open (as it has been) to the parties to present any unanticipated problems (not resulting from failure to comply with its order) which may have arisen or may arise in the future.

463 F.2d at 747.

Thus, it is clear that the Sixth Circuit did not view the 1971 order as signaling the termination of the litigation. Moreover, the record is replete with disclosures that the plaintiffs, as well as defendants, have continuously engaged in adversary proceedings of magnitude in conjunction with the modification and implementation of the 1970 plan with charges and countercharges [681]*681of asserted disparate treatment of black children.3 As recently as 1982, this circuit again remanded the case, concluding that “[i]n large measure, the pupil assignment components of this plan do not withstand constitutional scrutiny.” Kelley, 687 F.2d at 817.

In view of the foregoing, it is quite apparent that the 1971 district court’s disposition and this court’s subsequent 1972 affirmance of that decision, did not represent a distinct break in the litigation. Accordingly, as envisioned by the Sixth Circuit in Northcross, an award of fees for legal services performed and accrued prior to 1972 is appropriate.

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Cite This Page — Counsel Stack

Bluebook (online)
773 F.2d 677, 2 Fed. R. Serv. 3d 811, 1985 U.S. App. LEXIS 23240, 54 U.S.L.W. 2189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-w-kelley-cross-appellees-v-metropolitan-county-board-of-ca6-1985.