The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LINDA STOUT, SANDRA RAY, )
LONNEL AND ALFORNIA CARTER, )
RICKY AND ALENA REEVES, and )
CARTRENA CARTER, on behalf of )
themselves and others similarly situated, )
)
Plaintiffs, )
)
UNITED STATES OF AMERICA, )
) Civil Action Number
Plaintiff-Intervenor, ) 2:65-cv-00396-MHH
)
v. )
)
JEFFERSON COUNTY BOARD OF )
EDUCATION, )
)
Defendant, )
)
GARDENDALE BOARD OF )
EDUCATION, )
)
Defendant-Intervenor. )
MEMORANDUM OPINION
The private plaintiffs have moved to join the City of Gardendale as a
defendant in this public school desegregation case for the limited purpose of
collecting the $870,913.83 attorney fee award that the Court assessed against the
Gardendale Board of Education. (Docs. 1267, 1285). The Court entered judgment
on the fee award in May of 2020. (Doc. 1283). To date, the private plaintiffs have
recovered only $21,040.00 of the award, (Doc. 1301), leaving a principal balance of
just under $850,000.00.
To satisfy the outstanding $849,873.83 judgment, the Gardendale Board of
Education must ask the City of Gardendale to appropriate funds to the Board; the
Board has no independent source of funding. Since the Court entered the judgment
for fees, the Board has not asked the City to appropriate fees to satisfy the judgment
because every member of the Board has resigned. The City is obligated, by state
statute and municipal ordinance, to fill every vacancy on the Board, but the City has
declined to act, allowing the ghost board to avoid the fee award. On a related note,
the attorneys for the Gardendale Board of Education have filed a motion to withdraw
because they say they have no one to represent. (Doc. 1277).1 This opinion
addresses this state of affairs.
Because the current obstacle to the private plaintiffs’ effort to collect their fee
award did not arise in a vacuum, this opinion begins with a summary of the legal
and factual context for the private plaintiffs’ motion for joinder. Against that
backdrop, we will turn to the award itself to explain why the City’s failure to act
exacerbates the bad faith conduct that the fee award addresses. Next, we will
consider whether the Court has available to it a tool that may enable the Court to
1 The Board has no employees, officers, or agents because all have resigned. (Doc. 1259, p. 1, ¶
2).
remove the obstacle to enforcement of the fee judgment. Finally, we will discuss
the private plaintiffs’ request for additional fees. We will weave into our
examination of these issues the Board’s attorneys’ efforts to withdraw from this case.
I.
The Gardendale City Council established the Gardendale City School System
and created the Gardendale Board of Education pursuant to Alabama Code § 16-11-
2. (Doc. 1129-1, pp. 1–3). Alabama Code § 16-11-2(b) provides: “The general
administration and supervision of the public schools and educational interest of each
city shall be vested in a city board of education, to be composed of five members
who shall be residents of the city, and who shall not be members of the city council
or commission.”2 Alabama law mandates staggered five-year terms for municipal
school board members and states that, “[i]n the event of a vacancy in the membership
of the city board of education by resignation or otherwise, the fact shall be reported
to the city council or commission by the board, and the council or commission shall
elect a person to fill the vacancy for the unexpired term.” ALA. CODE § 16-11-3. In
other words, when a city exercises its statutory authority to create a municipal school
system operated by a municipal board of education, Alabama law requires the city
2 For purposes of § 16-11-2, a “city” is an incorporated municipality “of 5,000 or more inhabitants.”
ALA. CODE § 16-11-1 (1975).
to keep all five seats on the Board filled.3 The municipal ordinance pursuant to
which Gardendale’s City Council created the Gardendale municipal public school
system and the Gardendale Board of Education, Gardendale Ordinance 2014-007,
mirrors the language of Alabama Code § 16-11-3, (Doc. 1129-1, p. 2, Section 3),
making the obligation to fill vacancies on the Gardendale Board of Education
mandatory under both state and municipal law.
When the Gardendale City Council created the Gardendale Board of
Education on March 3, 2014, the City Council immediately filled the five seats on
the Board. (Doc. 1129-1, p. 2). From the Board’s inception, its members appeared
devoted to extricating the municipal public school system not only from the
Jefferson County Board of Education that had been running the four public schools
within Gardendale’s municipal boundaries but also from the federal desegregation
order that has governed the Jefferson County system and the municipal districts that
have separated from the county system since the desegregation order was entered in
1971. (Doc. 226). The effort to escape the requirements of the desegregation order
3 As the Eleventh Circuit Court of Appeals recently reiterated, “‘must,’ like ‘shall,’ is a mandatory
term that connotes a requirement.” United States v. Watkins, No. 18-14336, 2021 WL 3700295,
*2 (11th Cir. Aug. 20, 2021) (quoting Burban v. City of Neptune Beach, 920 F.3d 1274, 1279
(11th Cir. 2019)). Thus, the word “shall” in § 16-11-3 means that a city council is required by
state statute to fill vacancies on a municipal board of education.
was consistent with the sentiment that drove the formation of the Gardendale school
district in the first place.4
In 2012, several Gardendale residents began “a grassroots movement” and
“used social media to discuss the changing racial demographics of their schools as
they campaigned for the creation of a city school board and new taxes to support the
proposed school system.” Stout by Stout v. Jefferson Cnty. Bd. of Educ., 882 F.3d
988, 991 (11th Cir. 2018). “[S]ecession leaders expressed ‘a desire to control the
racial demographics of the four public schools in the City of Gardendale and the
racial demographics of the city itself.’” Stout, 882 F.3d at 1007 (quoting Doc.
1141, p. 138); (see, e.g., Doc. 1141, pp. 81–82). In the eyes of the separation
supporters, a municipal school system would allow the City of Gardendale to shed
“the desegregation from decades ago [] that should have already been changed.”
(Doc. 1141, pp. 82–83 (quoting Doc. 1132-2, p. 183, Sept. 13, 2012, 1:41 p.m.);
Doc. 1124, pp. 170–71, 186, 191–92; Doc. 1131-44, pp. 9–10, tpp. 34–40).
Secession organizers “put the mayor and the council in a head lock until they came
to their own conclusions that the school system had to happen.” Stout, 882 F.3d at
997.5
4 Much of the information that follows is well-developed in Stout by Stout v. Jefferson Cnty. Bd.
of Educ., 882 F.3d 988 (11th Cir. 2018) and in Doc. 1141. In this opinion, we highlight the events
that are most pertinent to the pending motions concerning the vacant Gardendale Board.
5 The four schools within Gardendale’s municipal boundaries included a brand new $ 51 million
high school. The City of Gardendale had explored the possibility of separating from the Jefferson
In anticipation of separation, in September of 2013, the Gardendale City
Council approved a 5-mill ad valorem tax to “be used for public school purposes,”
(Doc. 1298-1) (Gardendale Ordinance No. 2013-11), and voters in Gardendale
approved a second 5-mill ad valorem tax in November of that year to “be used for
public school purposes,” (Doc. 1298-2) (Gardendale Ordinance No. 2013-17).
Stout, 882 F.3d at 998; (Doc. 1124, pp. 21–22; Doc. 1125, pp. 58–59; Doc. 1130-3).
Four months later, the Gardendale City Council established the Gardendale Board
of Education and selected from a pool of 30 applicants five Gardendale citizens, all
of them white, to fill the seats on the Gardendale Board. Stout, 882 F.3d at 998;
Doc. 1124, pp. 21, 27–28; Doc. 1129-1, p. 2.6
County school system twice before, (Doc. 1124, pp. 51–52; Doc. 1128, pp. 101–02, 119–20), but
had determined each time that separation was not feasible. (Doc. 1124, pp. 167–68; Doc. 1128, p.
120). The new high school moved the needle, making separation feasible.
The Gardendale City Council appointed two of the session organizers to the Gardendale Board of
Education. (Doc. 1129-1, p. 2).
6 In its opposition to the private plaintiffs’ motion for joinder, the City states that “[i]t has never
been adjudicated as having violated anyone’s civil rights or otherwise attempting to do so.” (Doc.
1296, p. 3). Though it is true that the City of Gardendale, so far, has not been a party to the
Jefferson County school desegregation case and therefore has not “been adjudicated as having
violated anyone’s civil rights” in this case, the Court has noted in more than one opinion that the
Gardendale City Council systematically excluded Black Gardendale citizens from the nascent
school board. The Court explained that the City:
received more than 30 applications for the five positions on the inaugural
[Gardendale Board of Education]. (Doc. 1124, p. 28). From these applicants, the
Gardendale City Council selected the five initial members of the board. (Doc. 1124,
pp. 21, 27; Doc. 1129-1, p. 2). Each of the individuals whom the city council
selected is white. (Doc. 1124, p. 28).
. . .
A lawyer who represented the Hoover Board of Education, a municipal public
school system that separated from Jefferson County in 1988, (Doc. 1141, pp. 46–
47), had mentioned in hearings with the Court that he was advising the City of
Gardendale, that the city was in the process of forming a splinter district, and that
the city understood that “every aspect of its operation would have to be submitted to
the court for review.” (Doc. 1009, p. 28; see also Doc. 991, p. 17). A member of
the Gardendale Board testified during the bench trial in this case that the members
of the Gardendale Board engaged legal counsel “very early in the board formation
African-American citizens of Gardendale were among the 30 candidates for the
Gardendale Board of Education. (Doc. 1124, p. 28). Dr. Sharon Porterfield Miller
was one of the African-American applicants for the board. Dr. Porterfield Miller
is the division chair of education at Miles College in Fairfield, Alabama. (Doc.
1125, pp. 7-8). Early in her career, Dr. Porterfield Miller worked for the Jefferson
County Board of Education. She held a variety of positions in the Jefferson County
school system, including second grade and kindergarten teacher, assistant principal,
and principal. (Doc. 1125, pp. 8-10, 17-18).
The Gardendale Board of Education called Dr. Porterfield Miller as a witness
during the bench trial in this matter because she favors a municipal school system.
Dr. Porterfield Miller testified that she has more experience in the field of education
than anyone on the Gardendale school board with the possible exception of another
board member who is a college professor. (Doc. 1125, pp. 10, 30-32, 36). Dr.
Porterfield Miller testified that she believes that race was a factor in the Gardendale
City Council’s decision not to select her as a member of the Gardendale school
board. (Doc. 1125, p. 32).
(Doc. 1141, pp. 99–100) (footnotes omitted). “One of the white members of the Gardendale
School Board worked for Dr. Porterfield Miller a number of years ago when Dr. Porterfield Miller
was employed by the Jefferson County public school system. The board member was a teacher
while Dr. Porterfield Miller was assistant principal of Fultondale Elementary. (Doc. 1125, pp. 14,
36).” (Doc. 1141, p. 100 n. 49). The evidence that race played a role in the City Council’s decision
not to select Dr. Porterfield Miller as a member of the Gardendale School Board was undisputed
at trial and remains undisputed to date.
process. And our attorney told us at that point, from the very beginning . . . that we
were going to have to get approval from the Court. We understood that.” (Doc.
1124, p. 216; see also Doc. 1124, p. 217:14-17).
The Gardendale Board’s initial attorney gave the board members sound
advice; the 1971 desegregation order governing the Jefferson County public school
district contains specific guidelines that municipal school systems must follow to
separate from the county public school system. (Doc. 226, pp. 8–9). Nevertheless,
to sidestep the desegregation order, the Gardendale Board hired new lawyers and
filed suit in state court to compel Jefferson County to “‘relinquish control of the
public schools’” in the City of Gardendale to the Gardendale Board. (Doc. 1267, p.
33) (quoting the Board’s state court complaint). After this Court enjoined the state
court action, (Doc. 1003), the Gardendale Board dismissed the state court action,
(Doc. 1012, pp. 10–12), and pursued control of the four public schools in Gardendale
in this federal district court.
With that, the Gardendale Board’s first attempt to avoid federal oversight
came to an end, but the Board was not long-deterred. In December of 2015, the
Gardendale Board presented a separation plan to the Court in support of a motion to
secede from the Jefferson County public school system, but the plan was only a draft;
the Board had not voted to approve it. Stout, 882 F.3d at 999; Doc. 1141, p. 115.
The Board stated that it delayed approving the 2015 draft separation plan because
voting on the plan before the Court approved it “would put the cart before the horse.”
(Doc. 1097, p. 48). But binding precedent in Ross v. Houston Independent School
District required the Gardendale Board as a nascent splinter district to, “at the outset,
establish what its operations [would] be” and “express its precise policy positions
on each significant facet of school district operation.” 559 F.2d 937, 944 (5th Cir.
1977).7 The Gardendale Board had to make a “definitive statement of its position”
with respect to its obligations under the 1971 desegregation order. 559 F.2d at 944.
In other words, under Ross, the Board was obligated to commit to a separation plan
before it presented the plan to the Court for approval. The Gardendale Board opted
to ignore this obligation.
Under the December 2015 draft separation plan, to fulfill the 1971
desegregation order’s requirement that new municipal school systems in Jefferson
County “with a black student percentage less than the percentage of black students
then in” the Jefferson County system “make sufficient space available for black
students from the county system in such number that, added to the number of black
students included in the [] new school zone, equal[led] one-third of the white
students included in the [] new school zone,” (Doc. 226, p. 9), the Gardendale Board
required “[a]ll students within North Smithfield Manor and Greenleaf Heights,
7 Under Eleventh Circuit precedent, cases decided by the Fifth Circuit prior to October 1, 1981
are binding authority in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206,
1209–12 (11th Cir. 1981).
grades Kindergarten to 12, [to] attend the Gardendale schools,” (Doc. 1131–2, p. 4).
Under the 1971 desegregation order, in the Jefferson County system, public school
students from the North Smithfield and Greenleaf Heights communities,
predominantly Black communities outside of Gardendale’s municipal limits, were
zoned for Fultondale Elementary, Bragg Middle School in Gardendale, and
Gardendale High School.
Under the December 2015 draft separation plan, North Smithfield students
would move from a new Fultondale Elementary School facility to Gardendale
Elementary, an older facility that already was overcrowded without the addition of
elementary students from North Smithfield. (Doc. 1141, p. 119). Under the
December 2015 draft separation plan, the parents of students from the North
Smithfield community would be disenfranchised because as non-residents of
Gardendale, the North Smithfield parents would not be able to vote for the members
of the Gardendale Board or serve on the Gardendale Board. (Doc. 1124, pp. 50,
166–67). And students from the North Smithfield community would face an
uncertain future because, under the December 2015 draft separation plan, the
Gardendale Board could eliminate North Smithfield and Greenleaf Heights students
from Gardendale’s municipal system if ad valorem tax dollars did not follow the
students, and even if tax dollars did follow the Black students, the Gardendale Board
indicated it would maintain space for the students for the vague term of the
“indefinite future.” (Doc. 1124, pp. 46–47; Doc. 1131-1, p. 5; Doc. 1141, p. 122).
So the Board strategically avoided a meaningful commitment to the Black students
that it needed to separate from the Jefferson County public school district.8
This Court found that the Gardendale Board did not vote on the draft
separation plan because the Board hoped that its attorneys could persuade the Court
that the 1971 federal desegregation order no longer governed splinter districts like
Gardendale’s municipal district. (Doc. 1141, p. 149). If the Court were to find that
the desegregation order did not apply to Gardendale, then Gardendale would not
need the students from North Smithfield to meet the splinter district student
assignment provision in the desegregation order. And,
[i]f Gardendale d[id] not need the students from North Smithfield to
separate, then the board ha[d] no incentive to keep those students in the
Gardendale system. By delaying a vote on the superintendent’s
December 2015 separation plan, the board [] allowed itself the
flexibility to proceed with the December 2015 plan if necessary, revert
to the March 2015 plan under which North Smithfield students would
be phased out of the Gardendale schools, or choose yet another plan.
8 The addition of the North Smithfield students to the draft plan that the Gardendale Board filed in
December 2015 came after the Gardendale Board realized that it could meet the student assignment
requirements of the 1971 desegregation order only by including the North Smithfield students in
the Gardendale municipal system. The Gardendale Board’s original draft plan of separation called
for the phase out of all North Smithfield students from Gardendale over a 13-year period. Stout,
882 F.3d at 999; Doc. 1141, p. 118.
The December 2015 draft separation plan also included interdistrict desegregation transfers for
Black students living outside of the City of Gardendale, but the ostensible transfer option was
“subject to space availability” and without bus transportation “unless required by federal courts,”
(Stout, 882 F.3d at 999; Doc. 1129-10, pp. 5–6; Doc. 1141, p. 127).
(Doc. 1141, pp. 149–50).
The Gardendale Board’s attorneys argued that “the Jefferson County School
System is operating on a unitary basis and has since 1976, according to the Fifth
Circuit, and that they have since 1976 successfully dismantled their dual system.”
(Doc. 1114, p. 13) (relying on Stout v. Jefferson Cty. Bd. of Educ., 537 F.2d 800 (5th
Cir. 1976)); see Stout, 882 F.3d at 1001.9 According to Gardendale’s attorneys,
because the 1971 desegregation order did not govern Gardendale’s separation, the
Court could enjoin the splinter district only if it found that the Gardendale Board
itself had violated the Constitution. See, e.g., Doc. 1104, pp. 1–4 (“If the County
system is and has been unitary since 1976, the separation of GBOE schools from the
County cannot be enjoined under any reading of Green or Wright. GBOE cannot
impair what has already been done.”); Doc. 1124, pp. 4–5 (“[T]here is no legal basis
and binding precedent for an injunction of Gardendale’s separation absent a finding
9 Though the attorneys for the Gardendale Board acknowledged that the task of requesting a formal
end to federal supervision of the Jefferson County public school system belonged to the Jefferson
County Board, (Doc. 1114, pp. 13–14), a finding that the Jefferson County Board had successfully
dismantled its dual system, as a practical matter, would have heralded the end of federal
supervision to the detriment of class members throughout the Jefferson County public school
district. The Gardendale Board’s attorney pursued the argument that the Jefferson County Board
had successfully dismantled its dual system of education even though Gardendale’s superintendent
had acknowledged in internal correspondence to the Gardendale Board that “if Jefferson County
really does aim to gain Unitary Status there is going to be an excessive amount of work to be done
across the entirety of the county.” (Doc. 1125, p. 298; Doc. 1131-23, p. 2). As the Court has
explained, “The Gardendale Board and its attorneys were willing to sacrifice the constitutional
remedy that class members have waited 50 years to receive so that Gardendale could preserve its
predominantly white community and operate its predominantly white public school system. This
is bad faith conduct.” (Doc. 1267, p. 40).
of an independent constitutional violation by the Gardendale Board of Education,
which is the burden of proof lying on the objectors, and they cannot possibly meet
it.”).10 This Court rejected the Gardendale Board’s argument that it was not subject
to the 1971 desegregation order. (Doc. 1141, p. 154) (internal citations omitted).
The Eleventh Circuit agreed. Stout, 882 F.3d at 1009–10.
II.
The Gardendale Board’s repeated efforts to avoid federal oversight are
consistent with the City’s failure to fill vacancies on the Gardendale School Board.
It appears that most of the members of the Gardendale Board resigned while the
private plaintiffs’ motion for attorney fees was pending. The private plaintiffs filed
their amended motion for fees in May of 2018. (Doc. 1210). As of July 17, 2018,
the Board still had three members. (Doc. 1242, pp. 1, 8). The record does not
indicate when the first member of the Gardendale Board resigned, but the last board
member had resigned by November 14, 2019. The Court did not receive notice of
the resignations that occurred after July 17, 2018 until every seat on the Gardendale
Board was vacant. The Court issued a lengthy opinion granting the private plaintiffs’
10 This Court found that the United States and the private plaintiffs proved that the Gardendale
Board acted with discriminatory intent and that the plaintiffs established an independent
constitutional violation. (Doc. 1141, pp. 151, 180). The Eleventh Circuit Court of Appeals
reversed the finding of an independent constitutional violation, holding that “the Gardendale Board
only proposed to violate the Fourteenth Amendment.” Stout, 882 F.3d at 1016 (emphasis in Stout).
motion for a fee award in December of 2019 and entered judgment on the fee award
on May 13, 2020. (Docs. 1267, 1283).
In the year since the Board has been obligated to satisfy the judgment against
it, the private plaintiffs’ attorney has negotiated with the City’s attorney for payment
of the fee award but to no avail. (Doc. 1284, pp. 4–5). Absent cooperation from
the City of Gardendale, the private plaintiffs can collect their fee only if the
Gardendale Board of Education requests an appropriation of funds from the City,
the City makes the appropriation, and the Board votes to use the appropriation to
fund the judgment against it.11 For more than 18 months, the City has not selected
Gardendale residents to fill the five vacancies on the Gardendale Board, (Doc. 1297,
pp. 14–18), making it impossible for the Board to act. By maintaining a municipal
board of education as an entity, the City has kept open its option of separating from
the Jefferson County school system.12 At the same time, by avoiding its statutory
11 In the City’s words,
[t]he ad valorem tax proceeds collected by the Jefferson County Tax Collector and
paid over to the City are not GBOE assets. Periodically, the City made
appropriations of its ad valorem tax to the GBOE. However, those appropriations
were made at the City’s discretion; and, only after a GBOE request for funding.
GBOE could not at any time demand from the City any ad valorem tax monies nor
did the GBOE ever have any legal or equitable entitlement to them.
(Doc. 1296, p. 9) (emphasis in Doc. 1296). To the City’s knowledge, the Gardendale Board “has
never had any [] source of revenues,” other than “periodic appropriations” from the City. (Doc.
1296, p. 3).
12The Eleventh Circuit has held that Gardendale may move forward with a municipal school
district if the City “satisfies its burden to develop a secession plan that will not impede the
obligation to fill vacancies on the Board, the City has made it impossible for the
private plaintiffs to satisfy their judgment against the Board. That is a win-win for
Gardendale, but not so for the private plaintiffs’ attorneys who, without a fee award,
will have donated thousands of hours of service to derail Gardendale’s proposed
constitutional violation. Stout, 882 F.3d at 1016.
The City offers the private plaintiffs this conciliatory note: “To the extent that
the GBOE’s assets may be insufficient to satisfy the Private Plaintiffs’ judgment
against it, the Private Plaintiffs will still possess a judgment lien that will have to be
first paid and satisfied, including post-judgment interest, when and if the GBOE ever
resumes its operations.” (Doc. 1296, p. 11). This is another Gardendale promise
tethered to the “indefinite future.”
The Gardendale City Council and the constituents who drive the Council’s
decisions have sole ownership of the date on which the Gardendale Board will be
repopulated, and the City can fill the vacancies on the Gardendale Board without
plans to begin operating a public school system. By statute, the City Council must
fill those vacancies if it maintains the Gardendale Board of Education. The City’s
conduct in avoiding the steps that would enable the Board to pay the fee award
reinforces the finding of bad faith that underpins the award.
desegregation efforts of the Jefferson County Board. . . .” (Doc. 1267, p. 53 n.26 (quoting Stout,
882 F.3d at 1016)).
The Court entered the fee award under the bad faith exception to the American
rule to satisfy the interests of justice and punish the Gardendale Board for its efforts
to sidestep the 1971 desegregation order. (Doc. 1267, pp. 3–4). Among the factual
findings underpinning the fee award is this one, affirmed by the Eleventh Circuit and
binding as the law of the case: “secession leaders” in the City of Gardendale
“expressed ‘a desire to control the racial demographics of the four public schools in
the City of Gardendale and the racial demographics of the city itself.’” (Doc. 1267,
p. 8) (quoting Stout IV, 882 F.3d at 1007, in turn quoting Doc. 1141, p. 138). The
Court noted that separation organizers looked for ways to include in their municipal
system non-resident white neighbors from the Mount Olive community while
eliminating non-resident Black students from North Smithfield, zoned for
Gardendale schools under the 1971 desegregation order, and non-resident Black
students attending schools in Gardendale on racial transfers pursuant to the 1971
desegregation order. (Doc. 1267, pp. 8–9, 12–13). The organizers wanted no part
of the 1971 desegregation order, and the Board, once constituted, worked to achieve
that goal. (Doc. 1267, pp. 30–42). That bad faith merited a sanction of fee-shifting.
Chambers v. NASCO, 501 U.S. 32, 50, 53 (1991).
The Court also entered the fee award to punish the Board for the harm done
to Black students attending public schools in Gardendale pursuant to the 1971
desegregation order, either by zoning or by desegregation transfer. (Doc. 1267, pp.
12–29). The Court explained that the message of racial inferiority conveyed by the
Gardendale Board was unmistakable: “It is enough simply to recognize that in its
refusal to speak to parents of class members from North Smithfield, the Gardendale
Board treated those students as tokens to be numbered and included in a municipal
district only if necessary to achieve a court-ordered racial quota. The message is one
of fungibility, like so many commercial goods counted and exchanged.” (Doc. 1267,
p. 24). In Stout IV, the Eleventh Circuit held that “the law and the record” support
this Court’s finding that “the secession movement communicated a ‘message’ that
‘cannot have escaped the children in the [C]ounty.’” (Doc. 1267, p. 26) (quoting
Stout IV, 882 F.3d at 1012, in turn quoting Wright v. Council of the City of Emporia,
407 U.S. 451, 466, (1972)). The fee award serves the interests of justice by
addressing the oppressive message that the Gardendale Board’s conduct conveyed
to class members, especially class members living in North Smithfield and Center
Point.
The City’s refusal to abide by its statutory obligation and take the steps
required to enable the Gardendale Board to pay the fee award amplifies the message
of inferiority that warranted the award in the first place. As the private plaintiffs
have pointed out, the City appropriated more than $1 million to pay the Board’s
attorneys. (Doc. 1297, p. 13). The City is actively avoiding appropriations to pay
the private plaintiffs’ attorneys. The clear message communicated by the City’s
priorities and the City’s and Board’s efforts to avoid federal court orders designed
to preserve class members’ constitutional rights cannot have escaped the class
members.
The message the City’s conduct conveys to other government entities is
equally loud and clear. Fee awards, whether statutory or common law, are available
in civil rights litigation to ensure legal representation for victims of discrimination.
The proposition that a city may refuse to fund a fee award against a municipal entity
that depends upon the city council for appropriations opens a Pandora’s Box. The
City of Gardendale’s actions in leaving the Gardendale Board of Education unstaffed
and unfunded until the City decides to pursue a municipal school system again, all
the while amassing ad valorem tax assessments to “be used for public school
purposes,” encourages other municipalities to thwart fee awards to dissuade
attorneys from undertaking the expense of civil rights litigation. (Docs. 1298-1,
1298-2) (Gardendale Ordinance Nos. 2013-11 and 2013-17).13
Failure to pay the fee award in a timely manner guts the penalty that the Court
imposed, leaving the bad faith of the Board unpunished and justice for the Black
13 The City of Gardendale has been collecting the ad valorem tax that it passed for its municipal
school system since 2013. Campbell v. City of Gardendale, ---So.3d---, 2020 WL 5268049, *1
(Ala. Sept. 4, 2020). In a hearing regarding the plaintiffs’ motion for joinder, the attorney for the
City of Gardendale explained that the revenue from the ad valorem tax is held in a bank account
because there is now no reason to appropriate the funds. (11/21/2020 Minute Entry). The City of
Gardendale retains exclusive control of the ad valorem tax revenue earmarked for public school
purposes.
students harmed by the Board’s conduct a hollow promise for another day. If the
Court were to accept the City’s argument that satisfaction of the fee judgment can
wait until the City decides to resume the Gardendale Board’s operations, the Court
would place the fee award within the control of the City and allow the City to hold
payment of the fee award just out of reach of the private plaintiffs for as long as the
City chooses. The Court rejects the City’s argument and opts to use available
procedural tools to avoid this injustice and pave the way for enforcement of the fee
judgment.
III.
The solution to the challenge created by the City’s refusal to fill the vacancies
on the Gardendale School Board seems simple enough – a court order requiring the
City to fulfill its statutory obligation to appoint members to the Board. Such an order
not only would open the door to satisfaction of the fee award to the private plaintiffs
but also would restore the client that the Board’s attorneys serve. The City argues
that the Court has no power to order the City to do anything because the City is not
a party to this litigation. True, the City is not a named party to this litigation, but the
Court is not powerless to act. The Court may exercise ancillary jurisdiction over the
Gardendale City Council.
Ancillary jurisdiction is a form of supplemental jurisdiction. A court may
exercise ancillary jurisdiction to enable the court “to function successfully, that is,
to manage its proceedings, vindicate its authority, and effectuate its decrees.”
Peacock v. Thomas, 516 U.S. 349, 354 (1996) (quoting Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 379–80 (1994)). To effectuate court orders, a district court
may exercise jurisdiction over “a broad range of supplementary proceedings
involving third parties to assist in the protection and enforcement of federal
judgments—including attachment, mandamus, garnishment, and the prejudgment
avoidance of fraudulent conveyances.” Peacock, 516 U.S. at 356. The concept is
important because “[w]ithout jurisdiction to enforce a judgment entered by a federal
court, ‘the judicial power would be incomplete and entirely inadequate to the
purposes for which it was conferred by the Constitution.’” Peacock, 516 U.S. at 356
(quoting Riggs v. Johnson County, 6 Wall. 166, 187 (1868)).
There are limits to ancillary jurisdiction. Ancillary jurisdiction cannot be used
“in a subsequent lawsuit to impose an obligation to pay an existing federal judgment
on a person not already liable for that judgment.” Peacock, 516 U.S. 357. A district
court “cannot guarantee payment of every federal judgment,” but a district court may
exercise ancillary jurisdiction in an existing action to protect a party’s ability to
recover a judgment, provided that the use of ancillary jurisdiction is not “entirely
new and original.” Peacock, 516 U.S. at 358–59 (quoting Krippendorf v. Hyde, 110
U.S. 276, 282–85 (1884) and Dugas v. American Surety Co., 300 U.S. 414, 428
(1937)) (internal citations omitted).
In Labette County Com’rs v. United States, the plaintiff recovered a judgment
against a town for interest on bonds issued by Labette County Board of County
Commissioners in the name of the town pursuant to a state statute. 112 U.S. 217
(1884). The town was unable to pay the judgment, so the district court, by
mandamus, ordered the county commissioners to levy a tax to raise funds to satisfy
the judgment. 112 U.S. at 218. The county commissioners argued that the district
court did not have jurisdiction to compel them to levy a tax to fund the judgment
because the county commissioners were not a party to the judgment against the town.
The Supreme Court held that the district court properly issued the writ “in aid of
jurisdiction previously acquired” over the town and that the writ was “justified in
such cases as the present as the only means of executing” the district court’s
judgment. 112 U.S. at 221. The Supreme Court stated: “it does not follow that
because the jurisdiction in mandamus is ancillary merely that it cannot be exercised
over persons not parties to the judgment sought to be enforced.” 112 U.S. at 221.
The Supreme Court continued:
The question is whether the [county commissioners], to whom the writ
is addressed, have the legal duty to perform, which is required of them,
and whether the [judgment holder] has a legal right to performance
from them, by virtue of the judgment he has already obtained. If so,
then they are, as here, the legal representatives of the defendant in that
judgment, as being the parties on whom the law has cast the duty of
providing for its satisfaction. They are not strangers to it, as being new
parties, on whom an original obligation is sought to be charged, but are
bound by it, as it stands, without the right to question it, and under a
legal duty to take those steps which the law has prescribed as the only
mode of providing means for its payment.
112 U.S. at 221.
The Supreme Court held that it was appropriate for the district court to issue
an order in favor of the judgment holder and to leave to the county commissioners
responsibility for fulfilling the steps necessary to raise the funds to satisfy the
judgment. The Supreme Court held that the district court should not have to issue a
new writ to compel each step needed to obtain the funds to pay the judgment; the
single writ directed to the county commissioners, to be effective, “command[ed] all
those whose co-operation [was] by law required” to perform their legal duties to
secure the judgment. 112 U.S. at 224. “Otherwise,” the Court stated, “the whole
proceeding is liable to be rendered nugatory and abortive” because successive writs
“would prolong the proceeding to such indefinite length as to deprive the writ of the
very character of a remedy.” 112 U.S. at 224–25.
Here, the Court has the power under the All Writs Act to order the Gardendale
City Council, by writ, to take the steps necessary to have the Gardendale Board pay
the fee judgment against it.14 “The power conferred by the Act extends, under
appropriate circumstances, to persons who, though not parties to the original action
14 The All Writs Act provides: “[t]he Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651(a).
or engaged in wrongdoing, are in a position to frustrate the implementation of a court
order or the proper administration of justice, and encompasses even those who have
not taken any affirmative action to hinder justice.” U.S. v. New York Tel Co., 434
U.S. 159, 174 (1977) (citations omitted). In New York Telephone Co., the Supreme
Court affirmed the district court’s use of a writ directed to a non-party because
without the third-party’s assistance, there was “no conceivable way” in which the
district court’s underlying order “could have been successfully accomplished.” 434
U.S. at 175.
The same is true here. The Court entered judgment on an award of attorney
fees as the remedy for the Board’s bad faith conduct in the Stout litigation, and the
City, by law, is the entity capable of and obligated to appoint members to the Board
and appropriate funds to the Board to facilitate payment of the judgment. The
Gardendale City Council created the Board for purposes that violate this Court’s
desegregation order; the City Council retains control over the Board under Alabama
law; and the City holds the exclusive power to take the steps necessary to fund the
fee award judgment. Therefore, the Court may exercise ancillary jurisdiction over
the Gardendale City Council and issue a writ that will enable the Gardendale Board
to fulfill its obligation under the judgment against it.
By separate order, the Court will order the Gardendale City Council to take
the steps necessary to fund the judgment against the Gardendale Board. The Court
anticipates that for a period of time, there will be members of the Gardendale Board.
After the Gardendale Board satisfies the judgment in favor of the private plaintiffs,
the Board shall provide written notice of satisfaction to the Court. When the Court
receives that notice, the Court will dismiss the Gardendale Board as a party to this
litigation, mooting the Board’s attorneys’ motion to withdraw.15
IV.
The Court allowed the private plaintiffs to supplement their motion for
attorney fees with evidence concerning the Board’s conduct during the appeal to the
United State Courts of Appeals for the Eleventh Circuit. (Doc. 1267, pp. 65–66).
The private plaintiffs request additional fees to punish the Board for allegedly acting
in bad faith in its cross-appeal, and the private plaintiffs ask for fees incurred during
the parties’ briefing of the attorney fee issue in this district court. (Doc. 1273; Doc.
1274).
As explained in the order awarding fees to the private plaintiffs, courts have
discretion to award attorney fees “when the interests of justice so require,” including
when a party “has acted in bad faith, vexatiously, wantonly, or for oppressive
reasons.” Hall v. Cole, 412 U.S. 1, 5, 15 (1973) (citing Bell v. School Bd. of
15 The Eleventh Circuit Court of Appeals has held that “an artificial entity that can act only through
agents[] cannot appear pro se, and must be represented by counsel.” Palazzo v. Gulf Oil Corp.,
764 F.2d 1381, 1385 (11th Cir. 1985). At no point in this litigation could the Board’s current
attorneys withdraw unless the Board retained new attorneys to replace them.
Powhatan Cty., 321 F.2d 494 (4th Cir. 1963) (pre-§ 1988 public school
desegregation case)). The bad faith exception to the general rule that courts typically
do not grant attorney fees, known as the American Rule, “serve[s] the same purpose
as a remedial fine imposed for civil contempt,” because “[i]t vindicate[s] the
District Court’s authority over a recalcitrant litigant.” Hutto v. Finney, 437 U.S.
678, 691 (1978).
“In determining the propriety of a bad faith fee award, ‘the inquiry will focus
primarily on the conduct and motive of a party, rather than on the validity
of the case.’” Rothenberg v. Security Management Co., Inc., 736 F.2d 1470, 1472
(11th Cir. 1984) (quoting Michael D. Green, From Here to Attorney’s Fees:
Certainty, Efficiency, and Fairness in the Journey to the Appellate Courts, 69
CORNELL L. REV. 207, 279–80 (1984)). If a district court finds that a party acted in
bad faith, then the court must provide specific findings of facts to support the
conclusion. Rothenberg, 736 F.2d at 1472 (citing FED. R. CIV. P. 52(a)).
The private plaintiffs cite two main ways in which they believe the Board
acted in bad faith on appeal: the Board represented that the Jefferson County Board
of Education had achieved unitary status, and the Board “mischaracterized this
Court’s opinion when arguing at length that this Court had misapplied the Equal
Protection Clause of the Fourteenth Amendment.” (Doc. 1274, pp. 7–8). The Court
has reviewed the transcript of the oral argument before the Court of Appeals and the
parties’ appellate briefs for evidence of bad faith. (Doc. 1274-1; Doc. 1274-2; Doc.
1274-4; Doc. 1274-5; Doc. 1276).
The Court already has held that the Board acted in bad faith in arguing to the
Court of Appeals that the Jefferson County Board had fully dismantled its dual
system decades ago. In its Statement of the Issues to the Court of Appeals, the Board
wrote that “Jefferson County was held by [the Court of Appeals] to have fully
dismantled its dual system 41 years ago.” (Doc. 1274-2, p. 17). The Board repeated
this argument throughout its briefs. (Doc. 1272-2, pp. 20, 31–32, 49–54; Doc. 1274-
4, p. 18). Because the Gardendale Board urged the Court of Appeals to find that the
Jefferson County Board of Education had dismantled its dual system decades ago,
despite explaining to this Court that it “abandoned” the argument prior to trial, (Doc.
1215, p. 15), the Court awarded the plaintiffs a fee award of $25,000 for the Board’s
bad faith in that respect. (Doc. 1267, pp. 41, 65–66). This amount already is
included in the attorney fee judgment entered on May 13, 2020. (Doc. 1283).
Otherwise, the Board did not pursue its cross-appeal in bad faith. The Board
argued in its briefs and during oral argument that this Court improperly imputed
discriminatory intent to the Board by relying on, for example, public comments
made on Facebook and the FOCUS Gardendale flyer. The Gardendale Board also
argued that the Court erred in finding that Black students’ constitutional rights were
violated when discriminatory actions by the Board conveyed a message of
inferiority. (Doc. 1274-2, pp. 35–47; Doc. 1276, p. 45).16 In its cross-appeal, the
Board was within its right to challenge this Court’s factual findings and legal
conclusions. The Board failed in its argument regarding evidence of discriminatory
intent, but the Board succeeded in persuading the Court of Appeals that this Court
erred in finding that the Board had violated the constitutional rights of Black
students.
The private plaintiffs may not recover fees for time devoted to seeking a fee
award from the Board. Though they did not succeed, the Board’s arguments in
opposition to a fee award were fair and had a sound basis in the law; the Board’s
arguments do not warrant a finding of bad faith. And the Court cannot award fees
against the Gardendale Board for the Gardendale City Council’s failure to appoint
16 During oral argument before the Eleventh Circuit Court of Appeals, when questioned about
details of the Board’s plan to separate from the Jefferson County Board of Education, the Board
appeared to change its separation plan regarding the ability of students outside of Gardendale’s
municipal boundaries to attend Gardendale schools. In plans presented to this Court, the Board
initially suggested that transfer students would have to pay a substantial tuition fee to attend
Gardendale schools. (Doc. 1133-5). The most recent draft of the plan submitted to the Court did
not include the tuition provision. (Doc. 1040-1). But, because the Board never adopted a plan,
the superintendent of the Board was unable to say at the trial which of the plans the Board would
be willing to implement and whether tuition would be required for transfer students. (Doc. 1125,
p. 293). During oral argument, the attorney for the Board remarked that the Gardendale Board
would be “quite happy to not charge tuition” for these students. (Doc. 1276, p. 32). Judges on the
appellate panel cautioned that the Board appeared to “amend[] the plan in front of” them and that
the plan had been “a bit of a moving target.” (Doc. 1276, pp. 32–33).
The Court cannot say with certainty that the Board’s wavering regarding the plan before the Court
of Appeals was intended to obfuscate the plan or otherwise strategically abandon troubling parts
of the plan. But the record demonstrates that the Eleventh Circuit addressed the potential change
of course directly without effort from counsel for the private plaintiffs. Therefore, this brief
interchange does not warrant an additional award of fees.
residents to fill the prolonged vacancies on the Board. Though the City Council and
the Board are closely related, so much so that the Board depends on the City for its
operations, the two entities are separate, and the Court cannot punish one for the
conduct of the other. If there were to be a fee award based on the Gardendale City
Council’s abdication of its statutory obligation to fill Board vacancies, the fees must
be assessed against the City, not the Gardendale Board. The private plaintiffs have
not requested an award of fees against the City.
CONCLUSION
For the reasons stated above, the Court will exercise ancillary jurisdiction over
the Gardendale City Council and will, by mandamus, order the City Council to take
the steps required to satisfy the fee judgment against the Gardendale Board of
Education. In the writ of mandamus, the Court also will prohibit the Gardendale
City Council from dissolving the Gardendale Board of Education before the fee
judgment against the Board is satisfied. The Court directs the Clerk to please TERM
Docs. 1277, 1284, and 1285.
DONE and ORDERED this September 3, 2021.
adil Basa
Madeline
UNITED STATES DISTRICT JUDGE
28