United States Court of Appeals,
Eleventh Circuit.
No. 94-8204.
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.
Aug. 6, 1997.
Appeals from the United States District Court for the Northern District of Georgia. (No. 11946-
WCO), William C. O’Kelley, Judge.
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
*
Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
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
1
We will use the term "the DCSS" to refer to the DCBE, appellee Robert Freeman, who was
its former superintendent, and appellee James Hallford, his successor.
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, 1989 WL 136924, 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 until this court and the Supreme Court decided the matters pending
before them.
In March 1992, the Supreme Court reversed this court's decision in Pitts I and held that the
district court had the authority to relinquish its supervision and control over the school system in
incremental stages before unitariness had been achieved in every area of school operations.
Freeman v. Pitts, 503 U.S. 467, 490, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992). The Supreme
Court remanded the case to this court for consideration of any unresolved issues and, if necessary,
for remand to the district court. In December 1992, this court affirmed the June 1988 order of the
district court and remanded the case for the court to consider faculty and staff assignments, resource
allocation, quality of education and the good faith commitment of the school district. Pitts v.
Freeman, 979 F.2d 1472, 1473 (11th Cir.1992) (Pitts II). Both the Supreme Court and this court
ordered the parties to bear their own costs on appeal.
On May 14, 1993, Borowski moved to withdraw and filed her third fee petition for all of the
services she and her law firm provided from November 1988 through May 1993, totaling
$334,266.75 in fees and $11,239.32 in costs. Appellants argued that because they were the
prevailing parties in the 1969 litigation, they would continue to be the prevailing parties until the
DCSS was finally dismissed in its entirety from the court's supervision. Appellants included a
monthly summary of hours expended and costs incurred, but not a detailed accounting because such
accounting would reveal work product and attorney-client privileged matters. The DCSS filed a
response, opposing appellants' request for attorney's fees and costs. The DCSS asserted, among
other things, that (1) Borowski's activities did not generate any substantial benefits for the class, and
thus the appellants had not achieved the requisite degree of success to obtain a fee award; (2)
appellants had been paid fees and costs in connection with the June 1988 order; and (3) appellants
were not entitled to fees for appellate work because the appellate courts had not awarded them fees
or costs.
In January 1994, the district court granted Borowski's petition to withdraw and denied the
first and second fee petitions and all costs. The district court denied the first fee petition based on
the belief that it did not have the authority to award fees for appellate work in the absence of orders
from this court or the Supreme Court, and because the appellate courts had not ordered the DCSS
to pay the appellants' costs on appeal. The court denied the second fee petition because it found that
the parents' motion to intervene, essentially challenging the adequacy of class representation, was
separate from the 1969 desegregation order, and, for the purposes of this issue, the appellants were
not prevailing parties. Finally, the court awarded appellants $56,233.75 in fees and $2,672.80 for
paralegal assistance in connection with monitoring activities.2 The district court denied appellants'
request for $11,735.56 in costs, finding that they were not reasonably necessary to monitor the
DCSS's compliance with the 1969 order. Appellants filed the instant appeal, and the DCSS
cross-appealed.3
II. CONTENTIONS
Appellants first contend that the district court erred in determining that they were not entitled
to attorney's fees and costs in connection with their opposition of the parents' attempted intervention.
Appellants argue that because (1) they have been the prevailing parties since the 1969 order, (2) they
"substantially" prevailed on the issue; and (3) the DCSS initiated the challenge to the adequacy of
class representation and class counsel, appellants are entitled to such fees and costs incurred in
opposing the intervention. Appellants next contend that the court erred in reducing their monitoring
fees and denying them costs. According to appellants, the court should have accepted their proffer
for an in camera review of their detailed time sheets of their activities in connection with monitoring
compliance with the 1969 order. Appellants assert that the time sheets contained information which
supported a larger fee award for monitoring than the court granted and that they did not present the
detailed documents because the documents also contained trial strategy and privileged material
concerning the on-going litigation. Appellants' third contention is that the district court erred in
failing to award attorney's fees for their appellate work. Appellants argue that costs under Federal
Rule of Appellate Procedure 39 and fees pursuant to 42 U.S.C. § 1988 are not analogous. Therefore,
according to appellants, the district court was not precluded from awarding fees merely because this
2
Borowski requested fees for 2,610.65 hours of work on this case. After (1) concluding that
the $125 per hour rate was reasonable; (2) subtracting 1,035 hours for appellate work and the
intervention issues; and (3) further reducing the award by twenty-five percent for time that
would not have been billable to a fee-paying client, duplicative work with other attorneys and
Borowski's lack of practical experience, the court awarded Borowski fees for a total of 449.87
hours.
3
On June 12, 1996, the district court concluded that the DCSS's constitutional violations had
been fully remedied and granted the DCSS's motion for final dismissal from the court's
supervision. Mills v. Freeman, 942 F.Supp. 1449, 1464 (N.D.Ga.1996). Appellants have not
appealed that order.
court and the Supreme Court ordered both parties to bear their own appellate costs or because this
court was silent on the issue of fees.
In response to appellants' first contention, the DCSS contends that the standard for awarding
fees is the extent that the appellants have prevailed on each substantive issue and that appellants did
not succeed in opposing the parents' intervention. With regard to appellants' monitoring fees claim,
the DCSS cross-appeals and argues that because the record contains no evidentiary basis to support
the fee award that the district court granted for monitoring activities, appellants should not have
received any fees for monitoring. According to the DCSS, appellants never met their burden of
submitting supporting documentation with their fee requests and could have protected any sensitive
material through redaction. Finally, the DCSS contends that the district court did not have the
authority to award attorney's fees or costs for appellants' appellate work because this court failed to
do so on remand after the Supreme Court reversed this court's decision in Pitts I. The DCSS asserts
that since this court's previous award of attorney's fees was based on Pitts I, that award was no
longer viable.
III. ISSUES
We discuss three issues in this case: (1) whether appellants are entitled to attorney's fees in
connection with opposing the intervention of the parents; (2) whether the district court correctly
awarded monitoring fees to the appellants; and (3) whether Borowski was entitled to attorney's fees
for the work expended appealing the June 1988 district court order concerning the status of the
school system.
IV. DISCUSSION
The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, directs that "the
court, in its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs" incurred in certain proceedings to enforce civil rights. 42
U.S.C.A. § 1988(b) (West Supp.1997) (emphasis added). A prevailing party is one who "
"succeed[s] on any significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.' " Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76
L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). The party
seeking the fees has the burden of submitting evidence in support of the hours and rates claimed and
is entitled to recover those fees for hours that were "reasonably expended." Hensley, 461 U.S. at
433-34, 103 S.Ct. at 1939-40. The most critical factor in determining the award of attorney's fees
is the degree of success that the party obtained. Hensley, 461 U.S. at 436, 103 S.Ct. at 1941. We
review a district court's order for attorney's fees for abuse of discretion. Loranger v. Stierheim, 10
F.3d 776, 779 (11th Cir.1994). This court reviews the district court's findings of fact on issues of
attorney's fees, however, under the clearly erroneous standard. Lattimore v. Oman Constr., 868 F.2d
437, 440 (11th Cir.1989).
The district court denied appellants' petition for attorney's fees with regard to work done to
oppose the parents' motion to intervene in this case because it found that the challenge to the
adequacy of class representation had no effect on the 1969 desegregation order and appellants'
opposition to that motion was not reasonably related to monitoring compliance with the
desegregation order. In addition, the court found that the appellants were not prevailing parties with
respect to the intervention issue because although appellants were not inadequate class
representatives per se, they did not sufficiently represent the views of all of the class members. As
a result, the district court granted the parents' motion to intervene.
We agree that the appellants were not prevailing parties with respect to the intervention issue
and find that the intervention claim was distinct from appellants' success on the 1969 desegregation
order. The motion to intervene concerned a challenge to the adequacy of the class and class counsel.
The court found that appellants failed to represent the views of all class members and thus allowed
the intervention. "Where the plaintiff has failed to prevail on a claim that is distinct in all respects
from his [or her] successful claims, the hours spent on the unsuccessful claim should be excluded
in considering the amount of a reasonable fee." Hensley, 461 U.S. at 440, 103 S.Ct. at 1942. The
district court thus properly excluded the time spent opposing the intervention issue from the fees it
awarded to appellants.
The second issue we address is whether the district court correctly awarded appellants fees
for their post-judgment monitoring activities. The district court awarded appellants 449.87 hours
for monitoring the 1969 desegregation order at a rate of $125 per hour and 66.82 hours for paralegal
assistance at a $40 per hour rate. The court denied any compensation for costs because the court
found that they were not reasonably necessary to the monitoring.
We have previously granted attorney's fees for post-judgment monitoring in a civil rights
case. See Miller v. Carson, 628 F.2d 346, 348-49 (5th Cir.1980).4 The district court has wide
discretion in exercising its judgment on determining an appropriate fee award. Norman v. Housing
Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir.1988). Although the party seeking fees has
the burden of supplying the court with detailed evidence from which the court can determine a
reasonable fee, where that party presents inadequate documentation the court may determine a
reasonable award based on its own experience. Norman, 836 F.2d at 1303. The court may also rely
on affidavits in the record. Norman, 836 F.2d at 1303. In the present case, the district court based
its award of fees on
all three motions for attorney's fees and the supporting documents filed with them, all
pleadings and other documents filed with the court, all hearing and conferences before this
court, as well as information regarding all appeals, petitions, briefs, and motions filed with
both the Eleventh Circuit and the Supreme Court on [appellants'] behalf.
Mills v. Freeman, No. 11946-WCO, slip op. at 33 (N.D.Ga. Jan. 20, 1994). In addition, the court
articulated the reasons for its decision and showed its calculations, allowing for a meaningful review
of its judgment. See Norman, 836 F.2d at 1304 (district court's order must allow for a meaningful
review when the court uses its own expertise to award appropriate attorney's fees). We conclude
that the district court did not abuse its discretion in determining the amount to which appellants were
entitled for their monitoring activities.
Finally, we address the issue of whether appellants should have been awarded attorney's fees
for their work in appealing the June 1988 order of the district court granting in part and denying in
part the DCSS's attainment of unitary status. It is long established in this circuit that this court has
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc ), this court
adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to the close
of business on September 30, 1981.
the discretion to award attorney's fees and costs for the work expended before it. See Davis v.
Roadway Express, Inc., 590 F.2d 140, 143 (5th Cir.1979) (this court has the discretion to award
costs and fees for appellate work), aff'd on other grounds, 621 F.2d 775 (1980); Universal
Amusement Co. v. Vance, 587 F.2d 159, 172-73 (5th Cir.1978) (same), aff'd, 445 U.S. 308, 100 S.Ct.
1156, 63 L.Ed.2d 413 (1980); Panior v. Iberville Parish Sch. Bd., 543 F.2d 1117, 1120 (5th
Cir.1976) (same). In Davidson v. City of Avon Park, 848 F.2d 172, 173 (11th Cir.1988), we held
that a district court is "not authorized, by local rule or otherwise, to control the filing time or
assessment of attorney's fees for services rendered on appeal." If a party wishes to obtain fees on
appeal, he or she must file a petition with the clerk of this circuit within fourteen days of the
issuance of the opinion of this court. Davidson, 848 F.2d at 174 n. 4.
In the present case, this court initially awarded appellants attorney's fees for their work
appealing the June 1988 order. The Supreme Court, however, reversed the decision underlying that
award. Freeman, 503 U.S. at 490, 112 S.Ct. at 1445. Therefore, this court's previous order granting
fees to appellants cannot be the basis for any subsequent fee award. See Lattimore, 868 F.2d at 440
(court rejected appellant's argument that appellee should not receive attorneys' fees because the
appellee was not the original prevailing party in a previous appeal, which the en banc court later
vacated); cf. Furman v. Cirrito, 782 F.2d 353, 355 (2d Cir.1986) (when the Supreme Court reverses
a circuit court's order that included an award of costs to the then-successful appellee, any costs
previously awarded are automatically vacated). After the Supreme Court's decision in Freeman,
however, this court affirmed the June 1988 order and remanded to the district court to consider
faculty and staff assignments, resource allocation, quality of education and the good faith
commitment of the school district. Pitts II, 979 F.2d at 1473. At this time, appellants did prevail,
in part, for the purposes of their appeal of the June 1988 order. See Furman, 782 F.2d at 355 ("
"Prevailing party' has been variously interpreted to include an appellant who has had his [or her]
case remanded to [the] district court...."). Appellants therefore had fourteen days from the issuance
of this court's order on December 7, 1992, remanding the case to the district court, to file a petition
with this court for attorney's fees for their appellate work. Because appellants failed to file such a
petition, and thus this court did not award attorney's fees, the district court did not have the authority
to award appellants appellate fees.5
V. CONCLUSION
For the foregoing reasons, we find that appellants were not prevailing parties for the purposes
of the intervention issue. In addition, the district court did not abuse its discretion in its
determination of fees for the monitoring efforts of appellants. Finally, we conclude that the district
court did not have the authority to award attorney's fees for appellate work because appellants did
not timely file a petition in this court for the work accomplished on the appeal of the June 1988 order
of the district court. Accordingly, we affirm the district court's judgment.
AFFIRMED.
5
The district court erred in concluding that because this court did not award appellants costs
pursuant to rule 39, the court did not have the authority to award fees pursuant to section 1988.
The award of costs pursuant to rule 39 is "separate and distinct from and totally unrelated to an
award of attorney's fees pursuant to the directions of [section] 1988." Kelley v. Metropolitan
County Bd. of Educ., 773 F.2d 677, 681-82 (6th Cir.1985) (citing Robinson v. Kimbrough, 652
F.2d 458, 463 (5th Cir. Aug.1981)), cert. denied, 474 U.S. 1083, 106 S.Ct. 853, 88 L.Ed.2d 893
(1986); see also Lattimore, 868 F.2d at 440 n. 6 (rejecting appellant's argument that this court's
mandate requiring each party to bear its own costs on appeal precludes recovery of attorneys'
fees for appellate representation pursuant to 42 U.S.C. § 2000e-5(k)).