Gaines v. Dougherty County Bd. of Educ.

• Decision Date: 15 November 1985
• Docket Number: No. 84-8450,84-8450
• Citation: 775 F.2d 1565
• Parties: 28 Ed. Law Rep. 372 Shirley GAINES, et al., Plaintiffs-Appellants, v. DOUGHERTY COUNTY BOARD OF EDUCATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1565

775 F.2d 1565

28 Ed. Law Rep. 372

Shirley GAINES, et al., Plaintiffs-Appellants, v. DOUGHERTY COUNTY BOARD OF EDUCATION, et al., Defendants-Appellees.

No. 84-8450.

United States Court of Appeals, Eleventh Circuit.

Nov. 15, 1985.

C.B. King, Albany, Ga., Charles Stephen Ralston, New York City, for plaintiffs-appellants.

J.W. Walters, County Atty., Albany, Ga., for defendants-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT and VANCE, Circuit Judges, and ATKINS ^*, District Judge.

PER CURIAM:

We are nearing, hopefully, the end of a twenty-three-year saga culminating in the desegregation of schools in Dougherty County, Georgia. At issue today is the proper calculation of attorneys' fees under 42 U.S.C. Sec. 1988 (1982).

I.

This case was initiated in 1963 to bring an end to the de jure segregation of the Dougherty County school system. ¹ When the district court granted the plaintiffs only limited relief, they appealed to this court, ² which directed the district court to accelerate the desegregation of the school system. 329 F.2d 823 (5th Cir.1964); 334 F.2d 983 (5th Cir.1964). Following a series of delays, the district court entered an order approving a desegregation plan. This court, on appeal, reversed, however, finding that the plan failed to comply with the requirements of United States v. Jefferson County School Board, 372 F.2d 836 (5th Cir.1966), aff'd en banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 and 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104 (1967). 392 F.2d 669 (5th Cir.1968). On remand, the district court approved an alternative plan. Again, the plaintiffs appealed, and again we remanded the case to the district court, this time with instructions to comply with Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). 442 F.2d 1344 (5th Cir.1971). The Dougherty County School Board thereafter prepared a revised desegregation plan. The plaintiffs, in July 1971, objected to this plan, contending that it did not conform to the dictates of Swann. They also moved the court to award them attorneys' fees for the work their attorneys had performed up to that time. The district court overruled plaintiffs' objection to the Board's plan and denied their motion for fees, and the plaintiffs appealed. Once again we reversed. We instructed the district court on remand to consider a plan submitted by the Department of Health, Education, and Welfare (HEW). 446 F.2d 907 (5th Cir.1971). The panel's opinion made no reference to the attorneys' fees issue. The district court, over plaintiffs' objection, adopted HEW's plan which left a number of one-race schools. At the same time, the court denied the plaintiffs' application for attorneys' fees. The plaintiffs appealed from both rulings, and again this court reversed, remanding the case with specific instructions that the district court enter a new plan. ³ As before, we were silent as to the district court's denial of attorneys' fees. 465 F.2d 363 (5th Cir.1972).

Upon remand, the plaintiffs sought the immediate implementation of our mandate. The case, however, had been reassigned to a new judge, and he advised the parties that he needed some time to review the file. When after several months he took no action, the plaintiffs renewed their effort to obtain compliance with our mandate. They retained an expert and submitted their own desegregation plan to the court, requesting its implementation. The district court rejected the plan and appointed a panel of experts to draft a plan desegregating all of the schools in Dougherty County. Finally, in 1979, the court ordered the limited desegregation of the county's high schools.

Plaintiffs promptly appealed. We vacated the district court's order and directed the court immediately to enter a comprehensive desegregation order that would bring about the desegregation of all schools in the county, within reasonable time limits. At that time we noted that the district court had delayed carrying out our 1972 mandate for seven years despite the plaintiffs' repeated efforts. 609 F.2d 225, 226 (5th Cir.1980). The district court thereafter complied with our mandate and implemented a comprehensive plan of desegregation in time for the 1980-1981 school year.

Following the district court's entry of this desegregation plan, the plaintiffs moved the court to award them attorneys' fees under 42 U.S.C. Sec. 1988 (1982) ⁴ for all of the work their lawyers had done in the case up to that time, an eighteen-year period extending from the commencement of the suit in 1963 to the entry of the final desegregation plan. The total fees requested were $143,940.75, representing 1,066.55 hours of work. ⁵ Plaintiffs contended that their local counsel should be compensated on the basis of the hourly rates currently in effect in Albany, Georgia, ⁶ in order to account for the delay in payment. ⁷ The district court, on May 11, 1984, 586 F.Supp. 1324, awarded plaintiffs $50,736.34. ⁸ It ruled that no fees could be recovered for the eight years prior to 1971 because previous opinions of this court, handed down in 1971 and 1972, 446 F.2d 907 (5th Cir.1971); 465 F.2d 363 (5th Cir.1972), had implicitly affirmed the district court's earlier denials of such awards. In addition, the court reduced the amount it might otherwise have awarded plaintiffs because the records of their attorneys were inadequate to enable the court to determine whether there had been any unnecessary duplication of effort. The court effected this reduction by employing hourly rates much lower than those requested by the plaintiffs. ⁹

The plaintiffs now appeal the district court's fee award. They argue that our earlier decisions did not address the issue of attorneys' fees and therefore did not preclude an award for the fees incurred prior to 1971. In addition, they argue that the district court erred in refusing to compel the School Board to disclose the number of hours spent by its attorneys in preparing the defense and the legal fees it incurred in defending the case, and in setting and reducing for inadequate records the hourly rates it used to calculate the fees. Finally, plaintiffs argue that the district court's award failed adequately to account for the delay in payment. We agree with the plaintiffs that the award should have included legal fees incurred prior to 1971. Because we are unable to determine from the district court's dispositive opinion the unadjusted hourly rates the court employed and how the court adjusted these rates to account for counsel's inadequate records and the delay in payment, we remand the case to the district court for further findings.

II.

The district court interpreted our 1971 and 1972 decisions as implicitly affirming its denial of attorneys' fees. Applying the law of the case doctrine, the court refused to award fees for work incurred prior to 1971. We do not so interpret our earlier decisions.

The law of the case doctrine is "an amorphous concept." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). It is clear, however, that a decision of an appellate court at an earlier stage of the same proceedings represents the law of the case. Joshi v. Florida State University Health Center, 763 F.2d 1227, 1231-32 (11th Cir.1985); Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir.1985); Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir.1984). As we have noted before,

[t]he "law of the case" rule is based on the salutary and sound public policy that litigation should come to an end. It is predicated on the premise that "there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions or speculate of chances from changes in its members," and that it would be impossible for an appellate court "to perform its duties satisfactorily and efficiently" and expeditiously "if a question, once considered and decided by it were to be litigate anew in the same case upon any and every subsequent appeal" thereof.

White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967) (footnotes omitted). ¹⁰ The doctrine of the law of the case, however, "comes into play only with respect to issues previously determined," Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358 (1979), although the doctrine applies to issues decided by necessary implication as well as those decided explicitly. Piambino, 757 F.2d at 1120; Wheeler, 746 F.2d at 1440; Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 19 (5th Cir.), cert. dismissed, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974); 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice p 0.404 (2d ed. 1984).

Our 1971 and 1972 decisions did not affirm the district court's denial of attorneys' fees. In both instances desegregation plans approved by the district court were reviewed by this court in light of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and rejected. 446 F.2d at 907; 465 F.2d at 364. Neither decision discussed the trial court's denial of attorneys' fees; the focus of each decision was on the approved plan itself. This is not surprising given that such appeals were expedited, as provided by Singleton v. Jackson Municipal Separate School District, 426 F.2d 1364, 1365 n. 3 (5th Cir.), modified on other grounds, 430 F.2d 368 (5th Cir.1970) (per curiam), cert. denied, 402 U.S. 944, 91 S.Ct. 1611, 29 L.Ed.2d 112 (1971), and promptly decided so as to provide an acceptable desegregation plan prior to the beginning of the school year. Nor does either of our opinions necessarily imply an affirmance of the trial court's denial of attorneys' fees. An evaluation of a desegregation plan may certainly be made independently of the determination of an attorneys' fee issue.

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