Petition — HENRICO COUNTY SCHOOL BOARD v. SUSAN PAXMAN (Nos. 80-452, 80-270, 80-451)

R)-452

No. ——

THE THE

Supreme Court of the United States

OCTOBER TERM, 1980

HENRICO COUNTY SCHOOL BOARD,

Petitioner,

Vv.

SUSAN PAXMAN and LESLIE GOUGH,

Respondents.

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM G. BROADDUS*

County Attorney

JOHN L. KNIGHT

J. T. TOKARZ

Assistant County Attorneys

County of Henrico

Parham and Hungary Spring Roads

P. O. Box 27032

Richmond, Virginia 23273

(804) 747-4342

Attorneys for

Henrico County School Board

September, 1980

*Counsel of Record

tetera ad ee ee oe

nay 2 oe

QUESTION PRESENTED

Whether the United States Court of Appeals For the

Fourth Circuit in Paxman, et al., v. Campbell, et al., 612

F.2d 848 (4th Cir. 1980), properly awarded appellate at-

torneys’ fees under 42 U.S.C. §1988 to respondents when

they were not substantially the prevailing party?

TABLE OF CONTENTS

Page

Cptntans Be a 6.5 ia a kn a es be ease 2

PaO... 0.x 0.5 sn a ee EE theses cases 2

ee ee re ee ee rere 3

ee ee re 3

Reasons for Allowance of the Writ .............ceceeccees 5

The Court of Appeals’ decision to allow attorneys’ fees is

contrary to the requirements of 42 U.S.C. §1988 as in-

terpreted by other Courts of Appeals ................. 5

ee s

TABLE OF AUTHORITIES

Cases

Bly v. McLeod, 605 F.2d 134 (4th Cir. 1979), cert. denied

me U.S. ——~ CRO i wc hae Ba Pred ccccceees 7

Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979) ............ 7

Cohen v. Chesterfield County School Board, 326 F.Supp. 1159

(E.D. Va. 1971), rev’d, 474 F.2d 395 (4th Cir. 1973), rev'd,

424 US. GOS Core ie io ee a eis os babies. 4

Huntley v. Community School Board of Brooklyn, 579 F.2d 738

(2nd Cir. SOF oa cs vin wee tc cee sk cess 7

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) ......... 7

Paxman, et al. v. Campbell, et al., 612 F.2d 848 (4th Cir. 1980) 2

Paxman, et al. v. Wilkerson, et al., 390 F.Supp. 442 (E.D. Va.

i) ere 2

Statutory Provisions

2B USL. SER cc Ea see cdsccees 2

28 USC. BED sis vu eae oka cee sees 3

26 US. SRO oan x5 See ea kbc hires cans 4

423 UBS. SRRGR: s bs:4 cae ee cote dae 3, 7, 8

Constitution

Fourteenth Amendment to the Constitution of the

en I ee 6

iii

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THE THE

Supreme Court of the United States

OCTOBER TERM, 1980

HENRICO COUNTY SCHOOL BOARD,*

Petitioner,

SUSAN PAXMAN and LESLIE GOUGH,

Respondents.

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

*Susan Paxman and Leslie Gough apparently adopted the style

“Henrico County School Board and Albemarle County School

Board, et al.” in their Petition for a Writ of Certiorari as a short-

hand by which to refer to the defendants “connected with Albemarle

and Henrico Counties,” which defendants were not dismissed by the

Court of Appeals in Paxman, et al. v. Campbell, et al., 612 F.2d 848,

854. In this Cross-Petition For Writ Of Certiorari, petitioner, to avoid

confusion, will adopt this shorthand to refer to all defendants con-

nected with Henrico County. These defendants are: Dr. W. E. Camp-

bell, Mrs. John Deusebio, Cecil Childress, Mrs. Betty McMiullin,

Cecil F. Jones, Oliver J. Sands, Jr. and Rev. Walter Whitt. For a full

style of the case before the Court of Appeals, see Appendix, pp. 22a-

28a filed with the original Petition for a Writ of Certiorari.

None of the Henrico defendants presently holds the position

which he or she held in 1971 when the Complaint was filed. The

School Board recognizes, however, that any judgment against any

named individuals in their official capacities as School Board mem-

bers would effectively be a judgment against the School Board as

presently constituted.

2

OPINIONS BELOW

Paxman, et al. v. Campbell, et al., 612 F.2d 848 (4th Cir.

1980).

Paxman, et al. v. Wilkerson, et al., 390 F.Supp. 442 (E.D.

Va. 1975).

The relevant orders and opinions are printed in the Ap-

pendix filed with the original Petition for a Writ of Certi-

orari and reference is made to that Appendix for purposes

of satisfying Rule 21.1(k), Rules of the Supreme Court of

the United States.

JURISDICTION

On January 2, 1980, the Court of Appeals entered its

decision below and, as part of its holding, granted to Mrs.

Paxman and Mrs. Gough, respondents here, an appellate

attorneys’ fee in an amount still to be determined. Paxman

and Gough’s Petition for Rehearing en banc to address

issues Other than the question of attorneys’ fees was denied

on March 27, 1980. On June 24, 1980 respondents’ ap-

plication for an extension of time in which to file a Petition

for Certiorari was granted to and including August 20,

1980. Petitioner files this Cross-Petition For Writ of

Certiorari pursuant to Rule 19.5 of the Rules of the Su-

preme Court of the United States. Petitioner received the

original Petition For Writ Of Certiorari to which this Cross-

Petition For Writ Of Certiorari corresponds on August 22,

1980. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1254(1).

3

STATUTORY PROVISION

42 U.S.C. § 1988:

Proceedings in vindication of civil rights.

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

chapter and Title 18, for the protection of all persons

in the United States in their civil rights, and for their

vindication, shall be exercised and enforced in con-

formity with the laws of the United States, so far as

such laws are suitable to carry the same into effect; but

in all cases where they are not adapted to the object, or

are deficient in the provisions necessary to furnish suit-

able remedies and punish offenses against law, the com-

mon law, as modified and changed by the constitution

and statutes of the State wherein the court having juris-

diction of such civil or criminal cause is held, so far as

the same is not inconsistent with the Constitution and

laws of the United States, shall be extended to and gov-

ern the said courts in the trial and disposition of the

cause, and, if it is of a criminal nature, in the infliction

of punishment on the party found guilty. In any action

or proceeding to enforce a provision of sections 1981,

1982, 1983, 1985 and 1986 of this title, title IX of

Public Law 92-318, or in any civil action or proceed-

ing, by or on behalf of the United States of America,

to enforce, or charging a violation of, a provision of

the United States Internal Revenue Code, or title VI of

the Civil Rights Act of 1964, the court, in its discre-

tion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of the

costs.

STATEMENT OF THE CASE

This litigation began in 1971 when two teachers brought

a class action suit against the members of the Henrico and

Albemarle County School Boards. Jurisdiction in the Dis-

trict Court was invoked under 28 U.S.C. § 1343(3) and

4

§ 2201. The plaintiffs alleged that they represented all preg-

nant teachers in Virginia and that the members of the two

school boards represented all other school boards in Vir-

ginia having discriminatory maternity leave policies. The

filing of this case closely followed the District Court’s de-

cision in Cohen v. Chesterfield County School Board, 326

F.Supp. 1159 (E.D.Va. 1971), rev'd, 474 F.2d 395 (4th

Cir. 1973), rev’d, 414 U.S. 632 (1974), which concerned

a somewhat similar school board policy but which had not

been brought as a class action. The Henrico and Albemarle

School Boards in this case voluntarily abandoned the chal-

lenged policies in 1972 and did not seek to reestablish them

despite the later decision of the Court of Appeals sitting

en banc in Cohen upholding such policies. Accordingly,

the focus of this litigation for the past eight years has been

on the nature of the relief demanded by the teachers—a

judgment granting monetary damages regardless of whether

it is called back pay or something else—and on the District

Court’s orders certifying the respective classes as encom-

passing “all public school female teachers in Virginia” and

all individual “members of all public county and city”

school boards having pregnancy policies which require a

pregnant teacher to cease teaching at some time other than

a time of her own choosing.’

On January 2, 1980, in an en banc decision, the Court of

Appeals below reversed the District Court’s decision in this

case on each significant issue. The Court of Appeals re-

versed the orders of the District Court that certified both a

plaintiff class and a defendant class.* The Court of Appeals

then dismissed all defendants except those connected with

1 The District Court had first certified the defendant class as being

composed of “all school boards. . .” but sua sponte amended the class

definition to include the “members” of all school boards. See Ap-

pendix 15a, 36a-38a; 390 F.Supp. at 449; 612 F.2d at 852.

* See Appendix 39a; 612 F.2d at 854.

5

Albemarle and Henrico County.’ The Court next reversed.

the District Court’s award of monetary relief against the

School Board members in their individual capacity.* The

Court held that monetary damages could not be awarded

against the School Board niembers in their official capaci-

ties.” Inexplicably, however, four of seven Judges then

agreed that the School Board members “must offer rein-

statement to Mrs. Paxman and Mrs. Gough at the first avail-

able opportunity, upon their written requests. . . .”° The

Court imposed this requirement even though neither teacher

had sought reinstatement following the end of her preg-

nancy; there is no indication that either teacher now seeks

reinstatement; and neither has ever been denied reinstate-

ment. The Court of Appeals then awarded to Mrs. Paxman

and Mrs, Gough appellate attorneys’ fees in an amount as

yet undetermined with six of the seven Judges basing their

decision upon the theory that the teachers were entitled to

attorneys’ fees for “defending their reinstatement on ap-

peal....°

REASONS FOR ALLOWANCE OF THE WRIT

The Court Of Appeals’ Decision To Allow Attorneys’ Fees Is

Contrary To The Requirements Of § 42 U.S.C. § 1988 As

Interpreted By Other Courts Of Appeals.

The District Court’s order of March 5, 1975, granted

summary judgment in favor of a class of pregnant teachers

against a class purporting to include all members of certain

school boards throughout the Commonwealth of Virginia.

The effect of that judgment was to award monetary relief

® See Appendix 39a; 612 F.2d at 854.

“See Appendix 42a; 612 F.2d at 855.

5 See Appendix 44a; 612 F.2d at 856.

® See Appendix 54a-55a; 612 F.2d at 861.

7 See Appendix 55a; 612 F.2d at 861.

6

against a class of school board members in both their indi-

vidual and official capacities.

On appeal the defendant school board members “sub-

stantially prevailed” * and the Court of Appeals reversed

the District Court on each point which had any substance.’

The certification of both the plaintiff and defendant classes

was reversed. The award of monetary damages was re-

versed.

The only relief obtained by the teachers was the require-

ment that “the individual defendants . . . must offer rein-

statement to Mrs. Paxman and Mrs. Gough at the first avail-

able opportunity, upon their written requests, which will

not affect the continuity of instruction.” * [Footnote omit-

ted.] It was “for defending their reinstatement on appeal,

for in that one aspect they prevailed”,” that the Court

awarded the teachers attorneys’ fees.

As Chief Judge Haynesworth succinctly and without

contradiction observed, however,

There is in this case no showing of any failure to

comply with any reemployment commitment. Neither

teacher sought post-birth reemployment, and neither

was wrongly denied it. Under these circumstances, “re-

instatement” to a position never sought seems entirely

inappropriate.”* [Emphasis added. ]

Thus, it is clear that the teachers have been granted an at-

torneys’ fee as an award for obtaining relief which they

never never sought and which was never denied.

~ 8 See Ap a 55a; 612 F.2d at 861.

° While Court agreed that the policies violated the Due Process

Clause of the Fourteenth Amendment, that point was moot because

the School Boards had repealed the policies in 1972. See Appendix

34a; 612 F.2d at 852.

1° See Appendix 54a-55a; 612 F.2d at 861.

11 See Appendix 55a; 612 F.2d at 861.

12 See Appendix 59a; 612 F.2d at 863.

7

Judges Widner, Russell, and Phillips would grant an at-

torneys’ fee of $500, while Judges Butzner, Winter, and

Hall believe that $500 is “grossly inadequate.” Chief Judge

Haynesworth believes $500 to be “inadequate.” With these

guidelines, the Court of Appeals directed the District Court

to inquire into and ascertain appropriate appellate attor-

neys’ fees’ and also to resolve the question of attorneys’ fees

in the District Court.“

In Huntley v. Community School Board of Brooklyn, 579

F.2d 738 (2nd Cir. 1978), the Court affirmed a district

court’s refusal to award attorneys’ fees under 42 US.C.

$1988 to a plaintiff who at most had won a “moral vic-

tory.” Of course, in order to be eligible for attorneys’ fees

a party must be a “prevailing party.” In refusing an award

of fees in Huntley, the Court properly ascribed meaning to

the “prevailing party” requirement. In Nadeau v. Helgemoe,

581 F.2d 275, 278-279 (1st Cir. 1978), the Court held

that in order to be considered a “prevailing party” one must

succeed on a significant issue in litigation and that the

award of fees should be based upon the amount of work

performed on the issue in which the party was successful.

Even prior decisions decided by panels of the Court of Ap-

peals below accord the prevailing party requirement a sig-

nificance which the Court subsequently ignored in its Pax-

man opinion. Bly v. McLeod, 605 F.2d 134 (4th Cir.

1979), cert. denied, U.S. —— (1980); Bonnes v.

Long, 599 F.2d 1316 (4th Cir. 1979).

The Court of Appeals’ award of appellate attorneys’ fees

in this case does not meet the $1988 prevailing party re-

quirement because reinstatement was never an issue, As

Judge Haynesworth found, reinstatement was neither sought

nor denied. Because reinstatement was not an issue, it is

18 See Appendix 31a-32a; 612 F.2d at 851.

14 See Appendix 55a; 612 F.2d at 861.

8

impossible to find that the teachers prevailed upon it within

the meaning of $1988.

CONCLUSION

Because the judgment of the Court of Appeals, insofar

as it awards appellate attorneys’ fees and permits the award

of attorneys’ fees in the District Court, is contrary to 42

U.S.C. §1988, conflicts with decisions of other Courts of

Appeals and, indeed, is totally unsupported by the facts,

the Henrico County School Board, cross-petitioner, respect-

fully prays that this Court grant its Cross-Petition For A

Writ Of Certiorari and reverse that portion of the judgment

below awarding attorneys’ fees to the teachers Susan Pax-

man and Leslie Gough.

Respectfully Submitted,

THE HENRICO COUNTY SCHOOL BOARD

WILLIAM G. BROADDUS

WILLIAM G. BROADDUS

County Attorney

JOHN L. KNIGHT

J. T. TOKARZ

Assistant County Attorneys

County of Henrico

P. O. Box 27032 |

Richmond, Virginia 23273

(804) 747-4342

Counsel for Cross Petitioner,

The Henrico County School Board