Mills by Mills v. Freeman, 94-8204

• Decision Date: 06 August 1997
• Docket Number: No. 94-8204,94-8204
• Citation: 118 F.3d 727
• Parties: 119 Ed. Law Rep. 844, 11 Fla. L. Weekly Fed. C 325 Valencia MILLS, a minor, by her parents and next friends, Berta Mills and Roger MILLS, Adesina, Adreana, and Ardona Scott, minors, by their parents and next friends, Cynthia Scott and Major Scott, Plaintiffs-Appellants, Cross-Appellees, Ashley and B'randi Armstrong, minors, by their father and next friend, Harold M. Armstrong, Haraja and Jihan El-Shabazz, minors, by their parents and next friends, Asahita El-Shabazz and Narwanna El-Shabazz, James Somerville, a minor, by his mother and next friend, Carolyn Saunder, Nathan Jones, a minor by his parents and next friends, Carolyn Jones and Wayne Jones, Nadrah Malik, Mangoor Falah, and Salim Sabir, minors, by their parents and next friends, Mahasin Sabir and Adib Sabir, Christina Thomas, a minor, by her mother and next friend, Grace Thomas, Michael, Steven and Nicholas Creamer, minors, by their mother and next friend, Marguerite Creamer, Sandi and Karla Bailey, minors, by their parents and next friends, Evelyn Bailey and Larry Bailey, Brandon Russell, a minor, by his parents and next friends, Karen Russell and Kevin Russell, Michael, Gerald and Lacy Perry, minors, by their mother and next friend, Nina Perry, Darius and Kevin McVay, minors, by their father and next friend, William McVay, Julia Stewart, a minor, by her mother and next friend, Rose Stewart, Jeezanhay, Halani and Tashiana Blake, minors, by their mother and next friend, Betty Blake, Plaintiffs-Intervenors, v. Robert R. FREEMAN, Superintendent, Elizabeth Andrews, Norma Bergman, Phil McGregor, Lyman Howard, Donna Wagner, David Williamson and Paul Womack, as DeKalb County Board of Education, members, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 727

118 F.3d 727

119 Ed. Law Rep. 844, 11 Fla. L. Weekly Fed. C 325

Valencia MILLS, a minor, by her parents and next friends,

Berta Mills and Roger MILLS, Adesina, Adreana, and Ardona

Scott, minors, by their parents and next friends, Cynthia

Scott and Major Scott, Plaintiffs-Appellants, Cross-Appellees,

Ashley and B'randi Armstrong, minors, by their father and

next friend, Harold M. Armstrong, Haraja and Jihan

El-Shabazz, minors, by their parents and next friends,

Asahita El-Shabazz and Narwanna El-Shabazz, James

Somerville, a minor, by his mother and next friend, Carolyn

Saunder, Nathan Jones, a minor by his parents and next

friends, Carolyn Jones and Wayne Jones, Nadrah Malik,

Mangoor Falah, and Salim Sabir, minors, by their parents and

next friends, Mahasin Sabir and Adib Sabir, Christina

Thomas, a minor, by her mother and next friend, Grace

Thomas, Michael, Steven and Nicholas Creamer, minors, by

their mother and next friend, Marguerite Creamer, Sandi and

Karla Bailey, minors, by their parents and next friends,

Evelyn Bailey and Larry Bailey, Brandon Russell, a minor, by

his parents and next friends, Karen Russell and Kevin

Russell, Michael, Gerald and Lacy Perry, minors, by their

mother and next friend, Nina Perry, Darius and Kevin McVay,

minors, by their father and next friend, William McVay,

Julia Stewart, a minor, by her mother and next friend, Rose

Stewart, Jeezanhay, Halani and Tashiana Blake, minors, by

their mother and next friend, Betty Blake, Plaintiffs-Intervenors, v. Robert R. FREEMAN, Superintendent, Elizabeth Andrews, Norma

Bergman, Phil McGregor, Lyman Howard, Donna Wagner, David

Williamson and Paul Womack, as DeKalb County Board of

Education, members, Defendants-Appellees, Cross-Appellants.

No. 94-8204.

United States Court of Appeals, Eleventh Circuit.

Aug. 6, 1997.

Marcia Borowski, Stanford, Fagan & Giolito, Atlanta, GA, Willie Abrams, NAACP Special Contribution Fund, Baltimore, MD, Bruce K. Roberts, NAACP Southern Regional Office, Atlanta, GA, for Mills, et al.

Thomas A. Eaton, Univ. of Georgia School of Law, Athens, GA, for ACLU.

Gary M. Sams, J. Stanley Hawkins, Weeks & Chandler, Decatur, GA, Pamela V. Sloane, Georgia Association of Educators, Decatur, GA, for Defendants-Appellees.

Appeals from the United States District Court for the Northern District of Georgia.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST ^*, Senior District Judge.

PER CURIAM:

Appellants, Valencia Mills and a class of individuals composed of all black children enrolled in the Dekalb County School System and their parents and legal guardians (collectively, appellants), appeal the district court's order concerning attorney's fees for work performed on various issues during the final years of this litigation. We affirm.

I. BACKGROUND

Appellee, the Dekalb County Board of Education (the DCBE), operates the Dekalb County School System (the DCSS). ¹ Historically, in accordance with state law and its own policies, the DCSS conducted a segregated system of education with separate schools for black and white school children. Despite the order of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), declaring all segregated schools unconstitutional, and the Court's subsequent order in Brown II that all segregated schools were to desegregate with "all deliberate speed," Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955), the DCSS remained essentially segregated in 1968, when appellants filed the underlying action on behalf of all black Dekalb County school children. On June 12, 1969, the United States District Court for the Northern District of Georgia enjoined the DCSS from discriminating on the basis of race and ordered the school system to eliminate the effects of the old dual system. The court ordered the DCSS to close all de jure black schools and to establish a neighborhood school attendance policy. The court also retained jurisdiction in order to ensure compliance. Pitts v. Cherry, No. 11946, slip op. (N.D. Ga. June 12, 1969). Both parties sought modifications of the desegregation plan and additional relief, not relevant to this appeal, from 1975 through 1983.

In response to appellants' seeking additional relief in 1983, the district court held that the DCSS had attained unitary status. The appellants appealed to this court, and we reversed, holding, among other things, that the district court had improperly declared the DCSS to be a unitary system without first notifying appellants and conducting a hearing on that issue. Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir.1985). In January 1986, the DCSS filed a motion for final dismissal in the district court, seeking a declaration that it had achieved unitary status. On June 30, 1988, after conducting a three-week bench trial, the district court granted the DCSS's motion in part and denied it in part, ordering supplemental relief in the areas of teacher and principal assignments, quality of education and resource allocation (the June 1988 order). The court, however, concluded that the DCSS had achieved unitary status in student assignments, transportation, physical facilities and extra-curricular activities. The district court certified its order for immediate appeal pursuant to 28 U.S.C. § 1292(b), and both parties appealed to this court. In October 1988, this court allowed the appeals to proceed, and Marcia Borowski replaced previous class counsel Kathleen Wilde with respect to the appeal of the June 1988 order. In October 1989, Borowski replaced Wilde completely as class counsel.

In July 1989, appellants filed motions objecting to the DCSS's methods of equalizing teacher resources between black and white schools. At that time, two groups of teachers, who also protested these methods, moved to intervene. The district court denied them intervention, and they appealed to this court. We affirmed the district court, and appellants received costs from the attempted intervenors. Pitts v. Freeman, 890 F.2d 1166, No. 89-8612, slip op. (11th Cir. Nov. 3, 1989).

In October 1989, this court held that the DCSS had not achieved unitary status. We agreed with the district court's conclusion that the DCSS had not fulfilled its obligations with respect to faculty and staff assignments, but reversed the court's decision that the schools were unitary in the area of student assignments. This court also rejected the DCSS's argument with respect to the distribution of educational resources. Pitts v. Freeman, 887 F.2d 1438, 1447-48, 1450 (11th Cir.1989) (Pitts I). In November 1989, this court denied the DCSS's petition for rehearing and rehearing en banc. In addition, on December 13, 1989, this court granted appellants' motion--filed in this court--for appellate attorney's fees, and remanded to the district court for a determination of the appropriate amount. Seven days later, appellants filed a motion for attorney's fees and costs on appeal in the district court (the first fee petition), and the DCSS opposed the motion. The DCSS filed a petition for certiorari in the Supreme Court in 1990, which the Supreme Court granted in 1991. In March 1990, the district court stayed consideration of the first fee petition pending determination of the DCSS's writ petition.

Also in March 1990, a group of parents of and on behalf of black children in the school system moved to intervene in the remedial phases of this action (the intervenors). Specifically, the intervenors believed that the appellants' advocacy of large-scale involuntary busing to achieve strict racial quotas sacrificed the quality of education that the children would receive. In response, the DCSS filed a motion neither opposing nor supporting the motion to intervene. The DCSS interpreted the proposed intervention as a challenge to the adequacy of the class and wanted the court to ensure that the class was sufficiently represented so that the results of any further proceedings would be binding on the entire class. In April 1990, the DCSS filed an additional motion, requesting a hearing to determine the issue of class adequacy. Appellants, however, opposed the intervention, arguing that no intervention as a matter of right existed in class action school desegregation cases and that the intervenors should not be granted permissive intervention. Appellants asserted, among other things, that the intervenors did not represent an identifiable class or subclass, the intervention attempt was untimely, and the current class adequately represented the interests of the intervenors. The court held a hearing on this and related issues and, in December 1990, concluded that appellants and their counsel were not inadequate per se and thus should not be replaced. The court, however, did allow the parents to intervene because of the appellants' limited view of the potential remedies in this case. Appellants appealed this interlocutory order, and the intervenors cross-appealed. This court, however, dismissed both appeals for lack of jurisdiction. Mills v. Freeman, No. 91-8065 (11th Cir. June 13, 1991) (order dismissing appeal and cross-appeal).

In January 1991, appellants filed a second fee petition pursuant to 42 U.S.C. § 1988, requesting attorney's fees and costs for the district court's December 1990 order establishing the adequacy of class representation and class counsel (the second fee petition). The DCSS opposed the petition on grounds including (1) that appellants had not prevailed on the merits, (2) the legal relationship between appellants and the DCSS had not changed to appellants' advantage and (3) the dispute was among class members. Noting that the appellants themselves had appealed the December 1990 order to this court, and that the Supreme Court had granted the DCSS's writ of certiorari concerning this court's reversal of the June 1988 order in Pitts I, the district court deferred ruling on the second fee petition un...