Northcross v. Board of Ed. of Memphis City Schools
| Decision Date | 17 January 1980 |
| Docket Number | Nos. 78-1289,s. 78-1289 |
| Citation | 611 F.2d 624 |
| Parties | Deborah A. NORTHCROSS et al., Plaintiffs-Appellants Cross-Appellees, v. BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al., Defendants-Appellees Cross-Appellants, and City of Memphis et al., Added Defendants-Appellees Cross-Appellants. Deborah A. NORTHCROSS et al., Plaintiffs-Appellants Cross-Appellees, v. BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al., Defendants-Appellees Cross-Appellants. to 78-1291, 78-1458 to 78-1459. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Norman J. Chachkin, Washington, D. C., G. Philip Arnold, Memphis, Tenn., for plaintiffs-appellants cross-appellees in Nos. 78-1289 to 78-1291.
Jack Greenberg, James M. Nabrit, III, Bill Lann Lee, New York City, Louis R. Lucas, Richard B. Fields, William E. Caldwell, Ratner, Sugarmon, Lucas & Henderson, Memphis, Tenn., for plaintiffs-appellants cross-appellees in all cases.
Ernest Kelly, Jr., Cobb, Edwards, Hamlet, Nichol & Woodall, Memphis, Tenn., for Board of Education.
Clifford D. Pierce, Jr., City Atty., Arthur J. Shea, Charles V. Holmes, Memphis, Tenn., Frierson M. Graves, Jr., City Atty., Memphis, Tenn., for City of Memphis.
Before WEICK and CELEBREZZE, Circuit Judges, and PECK, Senior Circuit Judge.
These appeals challenge the award of fees made by the district court in the course of the Memphis school desegregation case. In this opinion, the Court will address a few of the remaining legal controversies concerning the proper application and interpretation of 42 U.S.C. § 1988, the Civil Rights Attorney's Fees Awards Act of 1976, which authorizes an award of attorneys' fees to prevailing parties in certain civil rights cases, and sets out standards for the guidance of the district courts in this Circuit to aid them in the exercise of their discretion in the granting of such fees. The first award was made in 1977 (hereinafter, the "1977 Fee Award") during a temporary lull in the litigation of the underlying case, and following the final judicial approval of an adequate desegregation plan. The second award (the "1978 Fee Award") was granted to compensate for subsequent services rendered to the plaintiffs in the course of their opposition to the School Board's attempt to modify the plan. The plaintiffs, the School Board and the City of Memphis have all appealed from the awards made by the district court.
Since these appeals concern only the two fee awards granted by the district court, a detailed explanation of the long, complicated history of this bitterly contested school desegregation case is not necessary. A general description is all that is required to give an understanding of the scope and quality of representation provided by the plaintiffs' attorneys in the course of the last two decades.
The underlying fact is that in 1960, when this suit was first filed, the Memphis schools were segregated on the basis of race, and today an effective, final order of desegregation is in operation. It has required years of constant litigation, numerous reported decisions and several trips to the Supreme Court to achieve that result. The suit was filed in 1960, and was dismissed by the district court. This Court reversed that decision in 1962, and remanded for development of a desegregation plan. A limited plan was adopted in 1963, and a year later, this Court again reversed, rejecting the plan as inadequate. Nearly two years later, in 1966, a modified plan was tentatively approved by the district court, and an uneasy state of repose was reached. While the plaintiffs objected to some aspects of the plan, their motion for an injunction was denied. At the same time however, the Board was put on notice by the court that some aspects of the plan needed further study and additional relief might be ordered in the future.
Nothing further of significance occurred for nearly two years, when the Supreme Court rendered its historic decision in Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), making it clear that the plaintiffs were entitled to further relief which would have real prospects of dismantling the state-imposed dual system at the "earliest practicable date." The plaintiffs promptly moved for further relief, and the case geared up again, not to slow down for years to come.
For the next four and a half years, the case moved at a steady pace back and fourth between the district court, this Court and the Supreme Court, as one phase after another of an effective, comprehensive desegregation plan was hammered out. In 1973, a new twist was added when the City of Memphis attempted to block desegregation by enforcing a city ordinance requiring that certificates of public convenience and necessity be obtained before operating transportation vehicles within the city, withholding funds from the School Board and refusing to supply gasoline to the Board. These matters were all ultimately resolved against the City.
In April of 1974, the Supreme Court denied plaintiffs' petition for certiorari seeking review of this Court's decision approving "Plan Z," a desegregation plan proposed by the Board. With that action, this case entered another period of temporary repose, with an effective desegregation plan finally in operation. Soon after, the plaintiffs filed their application for attorneys' fees and costs, after being unable to reach any settlement with the defendants. This first application was initially based upon 20 U.S.C. § 1617, the Emergency School Aid Act, which had become effective July 1, 1972. Not until November 4, 1977, did the district court enter its final order partially granting the plaintiffs' request. This appeal was taken by the plaintiffs from that award, and the defendants have both cross-appealed.
In the meantime, a new controversy had flared up, when the School Board sought substantial modification of Plan Z which would have slowed down and undermined the progress of desegregation. A five-day trial was held in 1977, and the defendant's proposals were, for the most part, rejected by the court. In 1978, the district court awarded attorneys' fees to the plaintiff to cover the services rendered in connection with the 1977 hearing, but again, only partially granted the plaintiffs' request for fees and costs. The plaintiffs also filed an appeal from that award, and the two appeals have been consolidated for resolution in this opinion, as they raise many of the same issues.
A. The 1977 Fee Award: In their first application for fees, the plaintiffs requested compensation for all documented hours spent on the case since it was first filed in 1960. They argue that they are entitled to fees for services rendered before the Emergency School Aid Act was passed since in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court held that the normal rule that a newly enacted statute will apply to all pending cases meant that an award for services rendered before 1972 could be made so long as the case was pending when the statute was enacted.
The district court rejected this position, ruling that Bradley only applied when there was an application for Fees pending on the date the act became effective; otherwise, the statute only authorized fees from the date of its passage. Since no application for fees was pending in 1972, it held that the plaintiffs could not recover fees based upon the Act for the period prior to 1972. However, the Court also held that the defendant's conduct between 1968 and 1972, after the decision in Green, had been "obstinate and obdurate" in refusing to recognize its duty to devise an effective desegregation plan. Therefore, under its common- law equitable powers, the Court awarded limited fees for that period.
The Court went on to hold that in the pre-1968 period, the state of the law was so uncertain that the defendant's conduct in resisting desegregation could not be considered to have been in bad faith. For the same reason, the court commented in Dicta that even if it was wrong about the retroactivity of § 1617, this same uncertainty about the requirements of the law would render any award of attorneys' fees unjust, under the limitation which the Supreme Court had established in Northcross v. Bd. of Education of Memphis City Schools, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973), holding that an award of fees pursuant to § 1617 should be routinely granted to a prevailing plaintiff unless unusual circumstances would render such an award unjust. The court also held that the City of Memphis was liable for attorneys' fees for the services rendered in opposition to the City's attempt to block desegregation.
A separate hearing was conducted to determine the amount of fees to be awarded pursuant to this ruling establishing the plaintiffs' entitlement to fees. In the meantime, the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, was passed, and the plaintiffs moved for reconsideration of their petition pursuant to the new Act. The court ruled that the new Act did not apply because a final order had been entered in the case in 1974, prior to passage of the Act.
The plaintiffs total request for fees under the 1977 Fee Award is set out in chart form below; with the services devoted to challenging the City's actions in parentheses:
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