Opposition Brief — Davis v. East Baton Rouge Parish School Board

Supreme Court, U.S.

rm i. Ss @

j . :

Y)

1s, JAN 12 1998

No. 97-974 CLERK

In The

Supreme Court of the United States

October Term, 1997

+

CLIFFORD EUGENE DAVIS, JR., ET AL.,

and JOHNNIE A. JONES, Attorney,

Petitioner,

versus

EAST BATON ROUGE PARISH

SCHOOL BOARD, ET AL.,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeal

For The Fifth Circuit

¢

BREF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Attorneys for Respondent:

Cuartes L. Partin, Jr.

Counsel of Record

Kean, Miciter, HAwtHorNe, D’ARMOND,

McCowan & Jarman, L.L.P.

22nd Floor, One American Place (70825)

Post Office Box 3513

Baton Rouge, Louisiana 70821

Telephone: (504) 387-0999

COCILE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the law of the case doctrine is applicable

and bars relitigation of Petitioner’s claim for attorney’s

fees for services allegedly rendered during the time

period commencing on September 27, 1962 and ending on

April 22, 1981?

2. Whether Petitioner’s remaining claims for attor-

ney’s fees for work in pursuit of his claims for fees

during the time periods commencing on May 1, 1981 and

ending on April 22, 1996 were properly denied?

ii

LIST OF PARTIES

The following persons were parties to the proceed-

ings in the Court of Appeals:

JOHNNIE A. JONES,

Mover/ Appellant,

and

EAST BATON ROUGE PARISH SCHOOL BOARD,

Defendant/ Appellee.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............-.-seeeeeee i

A gs 2: a rei ris peer ii

TAGE Gr UIE ooo on voce cee dec cice ness vi

TABLE OF OFFICIAL AND UNOFFICIAL OPIN-

> 6 ee oo rer Terre Viii

STATEMENT OF THE CASE..............-------5- 1

A. The April 16, 1981 Application for an Award of

Attorney’s Fees ............----eeeeeeeeeeees 1

B. The Present Application for an Award of Attor-

mey’s Fees... 2... 0. eee e sce c cee c ccc ceeeees 3

C. Rulings of the Lower Courts on the Present

Application. .. .........20.-0- sees sees ceeeeees 5

SUMMARY OF THE ARGUMENT .............---- 6

ARGUMENT ON THE ISSUES............----.+--- 7

1. THE LAW OF THE CASE DOCTRINE BARS

RELITIGATION OF PETITIONER’S CLAIM

rr rr i necse 7

2. PETITIONER’S REMAINING CLAIMS WERE

RR ee 10

oe ceass 11

APPENDIX “A”: Petitioner’s April 16, 1981

Motion for Attorney’s Fees, Clifford Eugene

Davis, Jr., et al. v. East Baton Rouge Parish School

Board, et al., Civil Action No. 56-1662-A, in the

United States District Court for the Middle Dis-

trict of Louisiana. ..........5.cccceesccscens. App. 1

iv

TABLE OF CONTENTS - Continued

Page

APPENDIX “B”: Petitioner’s April 22, 1981 “Affi-

davit Forming Basis of Motion for Attorney’s

Fees Submitted By and On Behalf of Johnnie A,

Jones, Attorney for Plaintiffs”, Clifford Eugene

Davis, Jr., et al. v. East Baton Rouge Parish School

Board, et al., Civil Action No. 56-1662-A, in the

United States District Court for the Middle Dis-

ee SPT rete ry Pree ee eee App.

APPENDIX “C”: Unpublished Minute Entry

Denying Petitioner’s First Application for

Award of Attorney’s Fees, Clifford Eugene Davis,

Jr., et al. v. East Baton Rouge Parish School Board,

et al., Civil Action No. 56-1662-A (M.D. La.

SSA FRRGR sca cancsdvcesvacvne Cetvaseas saeueus App.

APPENDIX “D”: Unpublished Prior Opinion on

Appeal Affirming First District Court Order

Denying Award of Attorney’s Fees, Clifford

Eugene Davis, Jr., et al. v. East Baton Rouge Parish

School Board, et al., No. 81-3287 (5th Cir.

10/ZE/1SGD) .........+ .asstdhann anes daasdaane App.

APPENDIX “E”: Petitioner’s November 4, 1983

“Petition for Rehearing”, Clifford Eugene Davis,

Jr., et al. v. East Baton Rouge Parish School Board,

et al., No. 81-3287 in the United States Court of

Appeals for the Fifth Circuit................. App.

APPENDIX “F”: Unpublished Order Denying

Petition for Rehearing, Clifford Eugene Davis, Jr.,

et al. v. East Baton Rouge Parish School Board, et

al., No. 81-3287 (5th Cir. 11/21/1983)........ App.

APPENDIX “G”: Unpublished “Ruling on

Motions” Denying Petitioner’s Present Applica-

tion for Attorney’s Fees, Clifford Eugene Davis,

Jr., et al. v. East Baton Rouge Parish School Board,

et al., Civil Action No. 56-1662-A (M.D. La.

O/B FUIIIE wc wince s0ccesaveschatteeree. App.

11

15

20

Mme

Vv

TABLE OF CONTENTS - Continued

APPENDIX “H”: Unpublished Opinion on Appeal

Affirming District Court Order Denying Peti-

tioner’s Present Application for Attorney’s

Fees, Clifford Eugene Davis, Jr., et al. v. East Baton

Rouge Parish School Board, No. 96-31074 (5th Cir.

Page

SIDFII sk es eS App. 29

APPENDIX “I”: Judgment dated May 25, 1960,

‘Clifford Eugene Davis, Jr., et al. v. East Baton

Rouge Parish School Board, et al., Civil Action No.

1662, in the United States District Court for the

Eastern District of Louisiana................. App. 32

vi

TABLE OF AUTHORITIES

Page

Cases (REPORTED):

Agostini v, Felton, 521 U.S. __, 138 L. Ed. 2d 391,

SAF Bi Ce ik 50 ee he cnc 8 CAIN ais case 8

Arizona v. California, 460 U.S. 605, 75 L. Ed. 2d 318,

BOS SF. Sy Rae Ce 068 ks ee eee ces 7,8

Brown v. General Motors Corp., Chevrolet Divisicn,

722. R2d S000. Gk Ae SOR hicks’ Aausieecas.. 8

Christianson v. Colt Industries Operating Corp., 486

U.S. 800, 100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988) ..... 7

Collins v. Romer, 962 F.2d 1508 (10th Cir. 1992) ....... 8

Conway v. Chemical Leaman Tank Lines, Inc., 644

ee Oy eo re 8

Johnson v. Georgia Highway Express, Inc., 488 F.2d

rp Si Re OR. | eer: Clee et ie Ce he eee 8

Johnnie A. Jones v. East Baton Rouge Parish School

Board, 469 U.S. 1227, 84 L. Ed. 2d 364, 105 S. Ct.

SN CE i vai Sie no ec exh alee oan oc 3

Kay v. Ehrler, 499 U.S. 432, 113 L. Ed. 2d 486, 111

Se She Ry re ne a i oh a Sines komad axes 9

Missouri v. Jenkins, 515 U.S. 70, 132 L. Ed. 2d 63,

RE Be EF Fab as aioe ive ce Sashes ees 7

Rainey v. Jackson State College, 551 F.2d 672 (5th Cir.

SE Ce re ee ier Bee ne ay ey AE an 8

Richards v. Reed, 611 F.2d 545 (Sth Cir. 1980) ......... 8

Southern Railway Co. v. Clift, 260 U.S. 316, 67 L. Ed.

ee ee I EE hn 5 ons chips a c¥essenaaone 7

|

|

|

Vii

TABLE OF AUTHORITIES - Continued

Page

Cases (UNPUBLISHED CAsgs, OrDERs):

Clifford Eugene Davis, Jr., et al. v. East Baton Rouge

Parish School Board, et al., Civil Action No. 1662-A

ee IE ON Ea Ge a ciety ak Minn is a paianlas oon ceo 2

Clifford Eugene Davis, Jr., et al. v. East Baton Rouge

Parish School Board, et al., No. 81-3287 (5th Cir.

be ctu ak Sidi nat chs ebebekde es sos 2, 10

Clifford Eugene Davis, Jr., et al. v. East Baton Rouge

Parish School Board, et al., No. 81-3287 (5th Cir.

at ths ss Ciba nk po bua ewes be vie «402 0° 3

Clifford Eugene Davis, Jr., et al. v. East Baton Rouge

Parish School Board, et al., Civil Action No.

56-1662-A (M.D. La. 9/18/1996). ..............0005- 5

Clifford Eugene Davis, Jr., et al. v. East Baton Rouge

Parish School Board, et al., No. 96-31074 (5th Cir.

ee Ray . whi how es pha ae Ch pw wey oe 6

STATUTES:

Ne ee I Wi tid ts Wikis Ss hh snd 8 Shaw's bn he 0'4siates 8, 10

viii

TABLE OF OFFICIAL AND

UNOFFICIAL OPINIONS AND ORDERS

CLIFFORD EUGENE DAVIS, JR., ET AL. vs.

EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL.,

Civil Action No. 1662-A,

United States District Court for the

Middle District of Louisiana

(Unpublished Minute Entry, Dated May 1, 1981)

CLIFFORD EUGENE DAVIS, JR., ET AL.

vs. EAST BATON ROUGE PARISH SCHOOL BOARD,

ET Ai. No. 81-3287,

United States Court of Appeals for the Fifth Circuit

(Unpublished Opinion on Appeal,

Dated October 24, 1983)

CLIFFORD EUGENE DAVIS, JR., ET AL. vs.

EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL.,

No. 81-3287,

United States Court of Appeals for the Fifth Circuit

(Unpublished Order on Petition for Rehearing,

Dated November 21, 1983)

JOHNNIE A. JONES vs. EAST BATON ROUGE PARISH

SCHOOL BOARD, ET AL., 469 U.S. 1227,

84 L. Ed. 2d 364, 105 S. Ct. 1224 (1985)

CLIFFORD EUGENE DAVIS, JR., ET AL.

vs. EAST BATON ROUGE PARISH SCHOOL BOARD,

ET AL., Civil Action No. 56-1662-A,

United States District Court for the

Middle District of Louisiana

(Unpublished Ruling on Motions,

Dated September 18, 1996)

| ix

TABLE OF OFFICIAL AND

UNOFFICIAL OPINIONS AND ORDERS - Continued

EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL.,

No. 96-31074,

United States Court of Appeal for the Fifth Circuit

(Unpublished Opinion on Appeal,

Dated September 10, 1997)

|

| CLIFFORD EUGENE DAVIS, JR., ET AL. vs.

|

STATEMENT OF THE CASE

The present application for an award of attorney’s

fees marks the second time Petitioner has filed an appli-

cation in this civil action.! A summary of the prior pro-

ceedings and rulings is necessary for an understanding of

the matters before this Court.

A. The April 16, 1981 Application for an Award of

Attorney’s Fees

Petitioner’s first application for an award of attor-

ney’s fees was filed on April 16, 1981.2 An “Affidavit

Forming Basis of Motion for Attorney’s Fees Submitted

By and On Behalf of Johnnie A. Jones, Attorney for Plain-

tiffs” was filed on April 22, 1981.9 The application was

not filed by any plaintiff in the civil action. It was filed by

Petitioner, in proper person, for himself. Neither the

application nor the affidavit identified with any speci-

ficity the clients Petitioner had represented, or the result

he obtained for them.

/

Petitioner sought attorney’s fees in the amount of

$350,000.00 for alleged services rendered “over the

years”. He claimed “more than 2800 hours” of services

1 Petitioner omits any discussion of his first application for

an award of attorney’s fees and the proceedings thereon in the

Statement of the Case in the Petition for Writ of Certiorari.

2 The “Motion for Attorney’s Fees” is contained in

Appendix “A”, App. 1.

3 The “Affidavit Forming Basis of Motion for Attorney's

Fees Submitted By and On Behalf of Johnnie A. Jones, Attorney

for Plaintiffs” is contained in Appendix “B”, App. 6.

were performed.* Petitioner submitted that his hourly

rate of compensation was $125.00.5 No contract for legal

services, fee agreement, or other evidence of a client

engagement and the terms of compensation was filed in

support of the application. Petitioner’s papers did not list

the dates his services were rendered, the nature of those

services, or the time and effort expended to provide

them.

The application was denied by the District Court in a

minute entry on May 1, 1981.© From the adverse ruling,

Petitioner perfected an interlocutory appeal to the Court

of Appeals. In an unpublished per curiam opinion, dated

October 24, 1983, the Court of Appeals affirmed the rul-

ing of the District Court.”

Petitioner sought rehearing. He urged as follows:

The case should be remanded to the District

Court to permit appellant, JOHNNIE A. JONES,

as one of the attorneys for the original plaintiffs

and intervenors in this action which commenced

February 29, 1956, and still continues, to meet

the requirements necessary to establish the

detailed list of criteria which must be proved by

a party claiming attorney[’s] fees; and to list the

4 Id.

5 Id.

® Unpublished Minute Entry, Clifford Eugene Davis, Jr., et al.

v. East Baton Rouge Parish School Board, et al., Civil Action No.

1662-A (M.D. La. 5/1/1981), in Appendix “C”, App. 9.

? Unpublished Opinion on Appeal, Clifford Eugene Davis,

Jr., etal. v. East Baton Rouge Parish School Board, et al., No. 81-3287

(Sth Cir. 10/24/1983), in Appendix “D”, App. 11.

a ——

names of the plaintiffs and intervenors Appel-

lant represented by extracting this information

from the voluminous record.®

Rehearing was denied on November 21, 1983.9

A petition for writ of certiorari was filed in this

Court. Certiorari was denied on February 19, 1985.10

B. The Present Application for an Award of Attor-

ney’s Fees

The present application and an “Affidavit of Attor-

ney in Support of ‘Motion for Attorney’s Fees’ ” were

filed on April 30, 1996, some 15 years after Petitioner s

first application.'? Once again, the application was made

by Petitioner in proper person for himself. Once again,

Petitioner failed to identify with any specificity the cli-

ents he had represented, or the result he obtained for

them.

The application seeks an award of attorney’s fees for

alleged services and other work spanning three periods

of time. Petitioner alleges during the first period of time

8 The Petition for Rehearing is contained in Appendix “E”,

App. 15.

* Unpublished Order on Petition for Rehearing, Davis,

supra, No. 81-3287 (5th Cir. 11/21/1983), in Appendix “F”, App.

20.

10 Johnnie A. Jones v. East Baton Rouge Parish School Board, et

al., 469 U.S. 1227, 84 L. Ed. 2d 364, 105 S. Ct. 1224 (1985).

1! See “Petition for Writ of Certiorari”, No. 97-974, United

States Supreme Court, October Term 1997, Clifford Eugene Davis,

Jr., et al., and Johnnie A. Jones, Attorney v. East Baton Rouge Parish

School Board, et al., Appendix, pp. 42-57.

he rendered 4,660.5 hours of services. This time period,

which encompasses the period at issue in the first appli- |

cation, covers from September 27, 1962 to April 22,

1981.!2 The second period of time is alleged to consist of

155.5 hours of work. The work was limited to Petitioner’s

unsuccessful efforts to reverse the District Court’s initial

ruling denying him an award of attorney’s fees. Accord-

ing to the present affidavit, this period of time, which

was not involved in the first application, covers from

May 1, 1981 to June 8, 1981. The third period of time,

comprised of 35 hours, covers Petitioner’s preparation of

the present application for an award of attorney’s fees.

According to the affidavit, this work was performed on

April 22, 1996, during a 35 hour period of time.

Petitioner suggests his hourly rate for these time

periods is $250.00, and demands fees in excess of $1.2

million.'> Petitioner claims he spent in excess of 24 hours

in a single day on over 30 different days during the three

periods of time listed in the affidavit.'4

12 Petitioner's present affidavit offers no explanation as to

why the number of hours for this period increased almost

twofold from 2,800, in the 1981 application, to in excess of 4,600

hours in the present application.

Moreover, in 1983 the Court of Appeals, in its initial opinion

on appeal involving Petitioner’s prior application, noted that |

“[t]he last reference to appellant appearing as a representative

of one of the parties in the case is in 1974.” See Appendix “D”.

'3 This hourly rate of compensation is double the hourly

rate stated in the first affidavit. The amount of the fees is over

three times the amount sought in 1981.

‘4 For example, Petitioner claims he worked for 44.5 hours

on February 11, 1963 in connection with review of a “Motion for

Further Relief with Companioned Memorandum Order and

ee

C. Rulings of the Lower Courts on the Present

Application

The District Court denied the application for an

award of attorney’s fees.'5 It addressed Petitioner’s

claims for each of the three periods of time listed in the

affidavit. The District Court relied on the principle of res

judicata in denying the claim for services covering the

period from September 27, 1962 to April 22, 1981. In

regard to the remaining claims, the District Court

observed as follows:

The request for fees connected with the 1981

appeal is clearly unwarranted in view of the fact

that the Fifth Circuit found his prior submission

to be ‘totally inadequate’. Consequently, the

request for fees connected with the present

motion is likewise unfounded.

Notice of Motion”; 85.5 hours are listed for June 28, 1963 for

review of “Defendant's Motion for Approval of Plan for Orderly

Admission of Children to Schools on a Racially Non-

Discriminatory Basis”; 170.5 hours are shown for July 17, 1963

for review of “the Memorandum Decision”; 129.5 hours are

claimed for services on May 25, 1965 for a “Review and

Examination of Deposition of Robert Arthur taken on May 21,

1965 and Attached Exhibits”; a single entry for 460 hours is

shown for the entirety of the year 1966; 119 hours are listed for a

May 8, 1967 review of an opinion of the District Court; 200 hours

are shown on July 31, 1974 for “Review and Examination of

Defendant’s Answers to Interrogatories and Request for

admissions propounded by Intervenors”.

1S Unpublished “Ruling on Motions”, Clifford Eugene Davis,

Jr., et al. v. East Baton Rouge Parish School Board, et al., Civil

Action No. 56-1662-A (M.D. La. 9/18/1996), in Appendix “G”,

App. 22.

The Court of Appeals affirmed.'® It upheld the Dis-

trict Court’s ruling addressing the claim for fees between

1962 and 1981, agreeing that these claims could not be

relitigated. However, its reasoning differed from that of

the District Court. The Court of Appeals opined that the

claim was barred under the doctrine of the law of the

case.'7 None of the recognized exceptions to the doctrine

were found to be present. The Court of Appeals noted in

this regard, and in respect to the remainder of the District

Court’s ruling, as follows:

While, unlike the first fee request, Jones breaks

down his work into various dated entries in an

affidavit, those entries are implausible on their

face. Many of the entries indicate that Jones

worked more than 24 hours in a single day. .. .

Further, the only work Jones claims to have

done after April 16, 1981, the date of his first fee

motion, involved his unsuccessful quest for

attorney’s fees. Accordingly, we follow our prior

decision.

SUMMARY OF THE ARGUMENT

1. There exists no reason to reopen issues decided

in connection with Petitioner’s first application for an

award of attorney’s fees. The prior Court of Appeals’

ruling was not clearly erroneous and does not work a

16 Unpublished Opinion on Appeal, Clifford Eugene Davis,

Jr., et al. v. East Baton Rouge Parish School Board, et al., No.

96-31074 (5th Cir. 9/10/1997), in Appendix “H”, App. 29.

17 Petitioner incorrectly implies the ruling of the Court of

Appeals was based on the principle of res judicata.

manifest injustice. No interim change in the law has

occurred. No plausible new issues are presented by Peti-

tioner in the application.

2. There exists no basis in law entitling Petitioner to

an award of attorney’s fees for work done in connection

with a failed attempt to prosecute the prior appeal or the

present attempt to relitigate his claim.

+

ARGUMENT ON THE ISSUES

1. THE LAW OF THE CASE DOCTRINE BARS

RELITIGATION OF PETITIONER’S CLAIM FOR

LEGAL SERVICES!®

The Court of Appeals correctly applied the law of the

case doctrine in the present matter. Petitioner’s writ

application should be denied.

18 Respondent does not suggest that the doctrine of law of

the case bars this Court’s jurisdiction. (See Christianson v. Colt

Industries Operating Corp., 486 U.S. 800, 817, 100 L. Ed. 2d 811,

831, 108 S. Ct. 2166 (1988).) It is not suggested that this Court’s

prior denial of the former writ application speaks to the merits

of Petitioner’s claims. (See Missouri v. Jenkins, 515 U.S. __, 132

L. Ed. 2d 63, 115 S. Ct. 2038 (1995).) We are mindful that the

doctrine differs from the principle of res judicata. (See Southern

Railway Co. v. Clift, 260 U.S. 316, 319, 67 L. Ed. 283, 284, 43 S. Ct.

126 (1912) (observing that the doctrine of law of the case directs

a court’s discretion, while res judicata supercedes a court's

discretion and compels judgment).) Respondent also is aware

that the utility of the doctrine has been questioned where

“ordinary litigation” is not involved. (See Arizona v. California,

460 U.S. 605, n. 8, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983).)

“Under [the] doctrine, a court should not reopen

issues decided in earlier stages of the same litigation.” !9

It has been observed that the doctrine will not apply

where a court is “convinced that [its prior holding] is

clearly erroneous and would work a manifest injustice.” 2°

A prior holding also will not be followed where a) an

interim change in the law occurs,?! or b) issues not pre-

sented or decided in the prior appeal are subsequently

raised.?2

The prior appellate ruling is not erroneous and works

no injustice. Little was proper with Petitioner’s first

application, or the present one. Indeed, both were “totally

inadequate” under the decisions of the Circuit.2> The

prior opinion on the issue of Petitioner’s right to an

award of attorney’s fees can cause no manifest injustice to

either Petitioner or the plaintiffs in the civil action. Peti-

tioner is not a party.4

19 Agostini v. Felton, 521 U.S. __, 138 L. Ed. 2d 391, 423, 117

S. Ct. 1997 (1997), citing, Messenger v. Anderson, 225 U.S. 436,

444, 56 L. Ed. 1152, 32 S. Ct. 739 (1912).

20 Arizona v. California, 460 U.S. 605, 618-19, 75 L. Ed. 2d

318, 333, 103 S. Ct. 1382 (1983).

21 Agostini, 138 L. Ed. 2d at 423.

22 See Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d

1059, 1062 (5th Cir. 1981).

23 See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,

717 (Sth Cir. 1974); Rainey v. Jackson State College, 551 F.2d 672,

676 (5th Cir. 1977).

24 42 U.S.C. § 1988. See Richards v. Reed, 611 F.2d 545, 546

(5th Cir. 1980); Brown v. General Motors Corp., Chevrolet Division,

722 F.2d 1009, 1011 (2nd Cir. 1983) (generally noting an award of

attorney’s fees must be sought in the name of the party, not his

attorney); Collins v. Romer, 962 F.2d 1508, 1516 (10th Cir. 1992)

Of the remaining reasons cited against the applica-

tion of the doctrine, only the subsequently raised issues

exception can be even remotely considered as a possible

grounds to justify the granting of the present writ. How-

ever, a simple review of the application and affidavit,

even if they were otherwise adequate in other respects,

demonstrates that no plausible new facts or issues are

raised.

In the present application, Petitioner alleges a greater

number of hours of services rendered for his “clients”. He

seeks amounts for work in connection with the prior

appellate proceedings on his first application and for

preparation of the present application. The affidavit con-

tains a listing of dates, general descriptions of the ser-

vices purportedly rendered or work done, and time

entries for each. However, taken as a whole, these claims

are wholly “implausible on their face”. The service

cescriptions and time entries standing alone suggest that

only minimal effort could have been made to reconstruct

them, or that only a cursory review was made of any

contemporaneous records.

At least 34 of the daily entries are in excess of 24

hours. The affidavit shows 2,419.5 hours of services or

other work from September 27, 1962 to 1972.25 Neverthe-

less, an additional 1,600 hour in globo entry is included

(an award of attorney’s “fees shall be made to a party rather

than to that party’s attorney”); see also Kay v. Ehrler, 499 U.S.

432, 437-38, 113 L. Ed. 2d 486, 492-93, 111 S. Ct. 1435 (1991).

25 This includes 460 hours in a single entry for the entirety

of 1966.

10

for the same period and described as “Hours of Accom-

paniment (Estimated)”. Surely, the subsequently raised

issues exception does not envision, and was never

intended to allow for relitigation of issues based upon

such wholly implausibie “new” facts as those asserted by

Petitioner in the present affidavit in support of his appli-

cation.

2. PETITIONER’S REMAINING CLAIMS WERE

PROPERLY DENIED

The remainder of the Court of Appeals ruling

addresses the claims for the two periods from May 1,

1981 to April 22, 1996, inclusive. The rulings are correct.

The claims for these two periods clearly appear lim-

ited to Petitioner’s unsuccessful efforts to overturn the

initial District Court order denying his first application,

and the preparation of the present application. None of

the entries suggest that fees are sought for any services

rendered on behalf of any plaintiff in the civil action,

even though Petitioner purports to be the “only remain-

ing active ‘Attorney-of-Record’ for the original plaintiffs

and members of their class”.26 42 U.S.C. § 1988 does not

contemplate that an award of attorney’s fees is available

26 Petitioner cites a May 25, 1960 judgment as either

certifying or recognizing that the civil action was a class action.

The May 25, 1960 judgment is contained in Appendix “I”, App.

32.

The Court of Appeals observed in the 1983 opinion on

appeal that the last reference in the record to Petitioner

appearing as a counsel of record was in 1974. See Appendix

“D”, App. 13.

11

for a pro se attorney’s efforts in prosecution of his own

claim for an award of attorney’s fees.?7

e

CONCLUSION

For all the foregoing reasons the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

Attorneys for Respondent

East Baton Rouge Parish School Board:

CuHar.es L. Patin, Jr. (La. Bar Roll

No. 10388)

Counsel of Record

KEAN, MiLiter, HAWTHORNE, D’ARMOND,

McCowan & JARMAN, L.L.P.

22nd Floor, One American

Place (70825)

Post Office Box 3513

Baton Rouge, Louisiana 70821

Telephone: (504) 387-0999

Facsimile: (504) 388-9133

27 See Note 24, infra.

App. 1

APPENDIX “A”

IN THE

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR., ET AL.

versus CIVIL ACTION

NUMBER: 1662-a

EAST BATON ROUGE PARISH SCHOOL

BOARD, ET AL.

SHSSSSH$SSSSSSSSSHISHSSSHHSSHHIISSSSHSIFIS$SHSSISHSSHH$

MOTION FOR ATTORNEY’S FEES

TO THE HONORABLES, THE JUDGES OF THE UNITED

DISTRICT COURT FOR THE MIDDLE DISTRICT OF

LOUISIANA:

NOW INTO COURT, in proper person, comes

JOHHNIE A. JONES, attorney for plaintiffs in the cap-

tioned action, and moves this SCHOOL BOARD, to pay

unto him the sum of Three Hundred Fifty Thousand and

No/100 Dollars ($350,000.00) as attorney’s fees due him

pursuant to the Civil Rights Attorney Fees Awards Act of

1976, 42 U. S. C. §1988.

Wherefore, movant, JOHNNIE A. JONES, prays that

this, his “Motion for Attorney’s Fees,” be maintained: and

that the defendant, EAST BATON ROUGE PARISH

SCHOOL BOARD, be ordered to pay unto movant,

JOHNNIE A. JONES, attorney’s fees in the amount of

App. 2

Three Hundred Fifty Thousand and No/100 Dollars

($350,000.00).

Respectfully submitted,

JOHNNIE A. JONES,

Movant in Proper

Person:

/s/ Johnnie A. Jones

JOHNNIE A. JONES

Jones & Jones

Attorneys at Law

Taylor Building, Suite 215

251 Florida Street

Baton Rouge, Louisiana 70801

Telephone: 504/383-8573

DATED: April 16, 1981

App. 3

IN THE

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR., ET AL.

versus CIVIL ACTION

NUMBER: 1662-A

EAST BATON ROUGE PARISH SCHOOL

BOARD, ET AL.

SSFSSFEFSFSSSFF$SSSFS$F$FSFSFS$FSHSHSSSS$SS$SS$SS$SS$SS$SS$SS$S$$

NOTICE OF MOTION

TO: Attorney for the defendant,

EAST BATON ROUGE PARISH SCHOOL BOARD,

Viz:

Mr. John F. Ward, Jr.

Attorney at Law

Quad One, Suite “C”

1111 South Foster Drive

Baton Rouge, Louisiana 70806

Telephone: 504/923-3462

PLEASE TAKE NOTICE that the movant, JOHNNIE

A. JONES, in proper person, will bring on for hearing his

“Motion for Attorney’s Fees” before the Honorable John

V. Parker, Judge of the United States District Court for the

Middle District of Louisiana, on Friday, May 1, 1981, at

10:00 A. M., or as soon thereafter as may be heard, or as

App. 4

the Court may fix a day, date and time to take up the

matter.

Very truly yours,

JOHNNIE A. JONES,

Movant to Proper

Person:

/s/ Johnnie A. Jones

JOHNNIE A. JONES

JONES & JONES

Attorneys at Law

Taylor Building, Suite 215

251 Florida Street

Baton Rouge, Louisiana 70801

Telephone: 504/383-8573

DATED: April 16, 1981

CERTIFICATE OF SERVICE

The undersigned does hereby certify that on this day

and by regular United States Mail a copy of the above

and foregoing “Notice of Motion,” together with the

therein referenced “Motion for Attorney’s Fees” and a

copy of its companioned “Memorandum of Authority,”

all as required by Local Rule 5C of this Court, have been

served upon the Attorney for the Defendant, East Baton

Rouge Parish School Board, addressed as follows:

Mr. John F. Ward

Attorney at Law

Quad One, Suite “C”

1111 South Foster Drive

Baton Rouge, Louisiana 70806

a

App. 5

Baton Rouge Louisiana, this 16 April, 1981.

/s/ Johnnie A. Jones

JOHNNIE A. JONES

JONES & JONES

Attorneys at Law

Taylor Building, Suite 215

251 Florida Street

Baton Rouge, Louisiana 70801

Telephone: 504/383-8573

App. 6

APPENDIX “B”

IN THE

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR., ET AL.

versus CIVIL ACTION

NUMBER: 1662-a

EAST BATON ROUGE PARISH SCHOOL

BOARD, ET AL.

SSSS$$SSSSESEFHSSSS$$SSSSSFFSSSSSHSFSHSSSSSSFHS$SHHGHS

AFFIDAVIT FORMING BASIS OF MOTION FOR

ATTORNEY’S FEES SUBMITTED BY AND ON BEHALF

OF JOHNNIE A. JONES, ATTORNEY FOR PLAIN-

TIFFS

STATE OF LOUISIANA

PARISH OF EAST BATON ROUGE

BEFORE ME, A Notary Public, duly commissioned

and qualified, in and for the Parish of East Baton Rouge,

State of Louisiana,

PERSONALLY CAME AND APPEARED:

who, upon Oath, did depose and say:

That he is one of the [A]ttorneys of [R]ecord in the

above entitled and numbered cause; that he has been an

attorney of record over the years, and, as such, has accu-

mulated more than two thousand eight hundred hours

App. 7

(2,800 hours) in working with this case, and parties,

students and persons who were and are involved in this

case: but, however, he does hereby fix his fee for this long

outstanding Civil Rights Action and [C]omplex [L]itiga-

tion at One Hundred Twenty-five Dollars per hour for

twenty-eight hundred hours ($125.00 X 2800 hours); that,

therefore, his fee is in the full and true sum of Three

Hundred Fifty Thousand and No/100 Dollars

($350,000.00), which amount the defendants, EAST

BATON ROUGE PARISH SCHOOL BOARD, ET AL., owe

him under the provisions of “The Civil Rights Attorney’s

Fees Awards Act of 1976,” 42 U.S.C. §1988.

/s/ Johnnie A. Jones

JOHNNIE A. JONES

AND SUBSCRIBED, before me, this 22 day of April,

1981

/s/ Mllegible

Notary Public

CERTIFICATE OF SERVICE

The undersigned does hereby certify that on this day

and by regular United States Mail a copy of the above

and foregoing “Notice of Motion,” together with the

therein referenced “Motion for Attorney’s Fees” and a

copy of its companioned “Memorandum of Authority,”

all as required by Local Rule 5C of this Court, have been

App. 8

served upon the Attorney for the Defendant, East Baton

Rouge Parish School Board, addressed as follows:

Mr. John F. Ward

Attorney at Law

Quad One, Suite “C”

1111 South Foster Drive

Baton Rouge, Louisiana 70806

Baton Rouge Louisiana, this 16 April, 1981.

/s/ Johnnie A. Jones

JOHNNIE A. JONES

JONES & JONES

Attorneys at Law

Taylor Building, Suite 215

251 Florida Street

Baton Rouge, Louisiana 70801

Telephone: 504/383-8573

App. 9

APPENDIX “C”

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MINUTE ENTRY:

MAY 1, 1981

PARKER, C].

CLIFFORD EUGENE DAVIS, JR., ET AL. CIVIL ACTION

VERSUS NUMBER 1662-A

EAST BATON ROUGE PARISH SCHOOL

BOARD, ET AL.

This matter is before the Court on a motion filed by

Johnnie A. Jones, Attorney at Law, requesting that the

Court fix his attorney’s fees at $350,000 and assess them

against the defendant School Board under 42 U.S.C.

§1988. In support of that motion, mover has filed a gener-

alized declaration that he has been an attorney of record

“over the years” and that he has accumulated “more than

2,800 hours” in work on this case and that he desires to

be paid at the rate of $125 per hour. Mover does not

specify what actual work he has performed or when and

has not met any of the other factors which are required to

be considered under Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714 (5th Cir.1974); Rainey v. Jackson State

College, 551 F.2d 672 (5th Cir.1977); and Anthony v. Marion

County General Hospital, 617 F.2d 1164 (5th Cir.1980).

App. 10

For these reasons, the motion to fix attorney’s fees is

hereby DENIED.

/s/ John V. Parker

CHIEF JUDGE

MIDDLE DISTRICT

OF LOUISIANA

App. 11

APPENDIX “D”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-3287

Summary Calendar

CLIFFORD EUGENE DAVIS, JR., ET AL.,

Plaintiffs.

versus

EAST BATON ROUGE PARISH SCHOOL

BOARD, ET AL.,

Defendants-Appellees,

versus

JOHNNIE JONES,

Movant-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

(OCTOBER 24, 1983)

Before REAVLEY, RANDALL and WILLIAMS, Circuit

Judges.

App. 12

PER CURIAM:

This appeal is by attorney Johnnie A. Jones, who is

one of a number of attorneys who have participated at

one time or another in the suit by various plaintiffs to

desegregate the public school system of East Baton Rouge

Parish, Louisiana. This suit was commenced February 29,

1956, and still continues.

In 1981, Jones filed an affidavit forming the basis of

his motion for $350,000 attorneys’ fees for 2,800 hours of

work on behalf of plaintiffs in this case. The district court

denied the request for attorneys’ fees in full, and attorney

Jones has appealed.

Under 42 U.S.C. § 1988, the district court, “in its

discretion, may allow the prevailing party, other than the

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

costs.” It should be noted that an award of attorney’s fees

is discretionary, and by statute the award is to the pre-

vailing “party”.

It is instructive to reproduce in full, except for the

formalities, the affidavit filed by attorney Jones support-

ing his claim for attorneys’ fees. It reads as follows:

PERSONALLY CAME AND APPEARED:

JOHNNIE A. JONES

who, upon Oath, did depose and say:

That he is one of the [A]ttorneys of [R]ecord in

the above entitled and numbered cause; that he

has been an attorney of record over the years

and, as such, has accumulated more than two

thousand eight hundred hours (2,800 hours) in

working with this case, and parties, students

and persons who were and are involved in this

case; but, however, he does hereby fix his fee for

App. 13

this long outstanding Civil Rights Action and

[C]omplex [Litigation at One Hundred Twenty-

five Dollars per hour for twenty-eight hundred

hours ($125.00 x 2800 hours); that, therefore, his

fee is in the full and true sum of Three Hundred

Fifty Thousand and No/100 Dollars

($350,000.00), which amount the defendants,

EAST BATON ROUGE PARISH SCHOOL

BOARD, ET AL., owe him under the provisions

of “The Civil Rights Attorney’s Fees Awards Act

of 1976,” 42 U.S.C. § 1988.

Signed Johnnie A. Jones

It appears that appellant Jones is one of a substantial

number of counsel who have appeared as co-counsel in

the East Baton Rouge Parish desegregation case. The last

reference to appellant appearing as a representative of

one of the parties in the case is in 1974.

The district court found this claim for attorneys’ fees

totally inadequate under our decision in Johnson v. Geor-

gia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974).

That case establishes the requirements for advancing

attorneys’ fees claims. Those requirements have been con-

firmed by us as applicable to civil rights cases. Rainey v.

Jackson State College, 551 F.2d 672, 676 (5th Cir. 1977).

Johnson establishes a detailed list of criteria which must

be proved by a party claiming attorneys’ fees. The district

court was correct in finding that this affidavit is totally

inadequate to carry that responsibility.

Appellant’s reply to this conclusion is that all of his

work is contained in the voluminous record which has

been built in this case, and his activities can be extracted

App. 14

from that record. It is remarkable and totally unaccept-

able that he expects the district court to extract this

information from the record. In any event, it is obvious

that appellant Jones does not even list his clients,

although they are the “parties” who must recover attor-

neys’ fees. We do not know from his affidavit whom he

represented, when he represented them, what he did at

all in connection with their representation. There is no

need to go into a datailed [sic] analysis of all of the

Johnson factors in view of the total inadequacy of appel-

lant’s claim.

We must conclude that the district court was correct

in its discretionary denial of attorneys’ fees to appellant

Jones.

AFFIRMED.

App. 15

APPENDIX “E”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

NUMBER: 81-3287

CLIFFORD EUGENE DAVIS, JR., ET AL.,

Plaintiffs-Appellants

versus

EAST BATON ROUGE PARISH SCHOOL BOARD,

ET AL.,

Defendants-Appellees

36 2 2 a ae a ae a oe a a a ae a a a a a a a a a 2 ae a a a a a a a a a a ae oe oe a

Appeal from the United States District Court

for the Middle Sistrict [sic] of Louisiana, Section

‘A, ’ [sic] the Honorable John V. Parker, Judge

Presiding

36 Oe a a ae a a a a a 2 a a a a a 2 a a a a ae 2 a

PETITION FOR REHEARING

2 a a Oe a a a Oe a a a a a a a a ab a a a ae 2 a ae a a Oe a Oe a a a OF Ob a a Oe

Attorneys for

Plaintiffs-Appellants:

JONES & JONES

JOHNNIE A. JONES,

Trial Attorney

Taylor Building, Suite 215

251 Florida Street

Baton Rouge, Louisiana 70801

Telephone: 504/383-8572

App. 16

IN THE

UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

* * *

NUMBER: 81-3287

CLIFFORD EUGENE DAVIS, JR., ET AL.,

and JOHNNIE A. JONES, Attorney,

Plaintiffs-Appellants

versus

EAST BATON ROUGE PARISH SCHOOL BOARD,

ET AL.,

Defendants-Appellees

2696 3b 2b ae Ee aE a a a a 2 a oe ob a a a ae a a a a 2 a 2 a a a a a a ae 2 a 2 OE 2 OE Oe a

PETITION FOR REHEARING

NOW INTO COURT, pursuant to Rule 40 of the Fed-

eral Rules of Appellate Procedure, comes the appellant,

JOHNNIE A. JONES, pro se, suggesting that a rehearing

be granted herein, for this, to-wit:

.s

This Court erred in affirming the Judgment of the

District Court denying appellant, JOHNNIE A. JONES,

one of the attorneys for the original plaintiffs and inter-

venors in this action, recovery of attorney’s fees under

‘The Civil Rights Attorney’s Fees Awards Act of 1976,’ 42

U.S.C. § 1988; and by not remanding the case to the

District Court to permit Appellant to meet the essential

App. 17

requirements to establish his claim to attorney’s in this

continuing-ongoing, long-outstanding and complexed

Civil Rights litigation.

Where award of attorneys’ fee in equal

employment opportunities case did not eludi-

cate factors upon which it was based and

showed no correlation to facts and figures sub-

mitted by plaintiff and where no differentiation

was made between experienced and nonex-

perienced attorneys representing plaintiff and

disallowance of 239.5 to 299.5 of 659.5 hours

claimed was unexplained, case was remanded for

reconsideration in light of prescribed guidelines.

Civil Rights of 1964, §§ 201 et seq., 706(k), 42

U.S.C.A. §§ 2000a et seq., 2000e-5(g, k). (Under-

scoring added for emphasis.)

9.

The case should be remanded to the District Court to

permit appellant, JOHNNIE A. JONES, as one of the

attorneys for the original plaintiffs and intervenors in this

action which commenced February 29, 1956, and still

continues, to meet the requirements necessary to estab-

lish the detailed list of criteria which must be proved by a

party claiming attorneys’ fees: and to list the names of the

plaintiffs and intervenors Appellant represented by

extracting this information from the voluminous record.

An attorney’s record of time is not a talis-

man. Raniey v. Jackson State College (CA5 1977),

551 F. 2d 672, at 677.

It is submitted that under the discretionary-fee-

award provision of Title II of the Civil Rights Act of 1964

App. 18

it was held that successful plaintiffs were entitled to the

recovery of fees “unless special circumstances would ren-

der such an award unjust.” Cf. Newman v. Piggie Park

Enterprises, Inc. (1968) 396 U.S. 400, at 402.

WHEREFORE, upon the above and foregoing

grounds, appellant, JOHNNIE A. JONES, prays that the

Opinion/Judgment of this court rendered in this action

on October 24, 1983, and received by undersigned coun-

sel on October 25, 1983, be annulled, set aside and

vacated; that it be replaced with an Opinion/Judgment of

this Court remanding the case to the District Court with

directions and instructions for the District Court in accor-

dance with the general tenor of this, Appellant’s ‘Petition

for Rehearing.’

Respectfully submitted,

Attorneys for Plaintiffs-

Appellants

and JOHNNIE A. JONES,

Attorney-Appellant pro se:

JONES & JONES

DATED: November 4, 1983

/s/ Johnnie A Jones

JOHNNIE A. JONES

Taylor Building, Suite 215

251 Florida Street

Baton Rouge, Louisiana 70801

Telephone: 504/383-8573

App. 19

CERTIFICATE OF SERVICE

Undersigned counsel of record for the plaintiffs-

appellants, Clifford Eugene Davis, Jr., Et Al., and attor-

ney-appellant, Johnnie A. Jones, pro se, does hereby cer-

tify that a copy of the above and foregoing ‘Petition for

Rehearing’ has this day, by regular United States Mail,

first-class postage prepaid, been forwarded addressed as

follows:

Mr. John F. Ward

Ward & Hammonds

Attorneys at Law

Quad One, Suite ‘C’

1111 South Foster Drive

Post Office Box 65236

Baton Rouge, Louisiana 70806

Telephone: 504/923-3462

Baton Rouge, Louisiana, this 4 day of November,

1983.

/s/ Johnnie A Jones

JOHNNIE A. JONES

Jones & Jones, Attorneys at Law

Taylor Building, Suite 215

251 Florida Street

Baton Rouge, Louisiana 70801

Telephone: 504/383-8573

App. 20

APPENDIX “F”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-3287

CLIFFORD EUGENE DAVIS, JR., ET AL.,

Plaintiffs,

versus

EAST BATON ROUGE PARISH SCHOOL BOARD,

ET AL.,

Defendants-Appellees,

versus

JOHNNIE JONES,

Movant-Appellant.

Appeal from the United States District Court for the

Middle District of Louisiana

ON PETITION FOR REHEARING

(November 21, 1983)

Before REAVLEY, RANDALL and WILLIAMS, Circuit

Judges.

Vo aaQNeeEeaaoanOt

App. 21

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

/S/ illegible

United States Circuit Judge

App. 22

APPENDIX “G”

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, )

JR., ET AL ) CIVIL ACTION

VERSUS . NO. 56-1662-A

EAST BATON ROUGE PARISH )

SCHOOL BOARD, ET AL

RULING ON MOTIONS

This matter is before the court on a motion by John-

nie A. Jones for an award of attorney’s fees and a motion

by the City of Baker to intervene.

I. Motion by Jones for Attorney’s Fees

Johnnie Jones contends that he is entitled to compen-

sation for some 4,850 hours of legal services that he

performed for the plaintiffs in this case commencing on

September 27, 1962 through the preparation of the motion

at hand. Jone’s [sic] affidavit indicates that approximately

4660 hours relate to services he performed through April

of 1981. Approximately 155 hours were spent on an

unsuccessful appeal of a prior motion by Jones for attor-

ney’s fees in May through June of 1981. Additionally,

Jones claims to have expended 35 hours in his prepara-

tion of the motion presently before the court.

The question of whether Jones is entitled to compen-

sation for services rendered through April of 1981 is a

question that has been finally adjudged through the

United States Supreme Court. See, Davis v. East Baton

App. 23

Rouge Parish School Board, 719 F2d 403 (5th Cir. 1983),

cert. denied, 469 U.S. 1227, 105 S.Ct. 1224, 84 L.Ed.2d 364

(1985). The court agrees with the School Board that the

request for fees through April of 1981 is a matter that is

res judicata.

The request for fees connected with the 1981 appeal

is clearly unwarranted in view of the fact that the Fifth

Circuit found his prior submission to be “totally inade-

quate”. Consequently, the request for fees connected with

the present motion is likewise unfounded.

II. Motion by City of Baker to Intervene’

The City of Baker contends that it is entitled to inter-

vene of right under Fed. Rule Civ. P. 24(a)(2) because it

has a cognizable interest in this matter that will not be

adequately represented by the present parties to this

lawsuit. In its proposed petition of intervention, the City

of Baker identifies its purpose or interest in intervening

as follows:

“(1) to establish that the creation of its indepen-

dent school system will not impede the creation

of unitary system(s) in the Parish; and (2) to

participate in submitting desegregation plan(s)

consistent with the existence of an independent

system in the City of Baker.” Proposed Petition

of Intervention, paragraph five.

1 On July 31st, the City of Baker filed a “request to delay

ruling” on its motion to intervene for an additional ninety days.

The court finds no reason for delaying any further.

App. 24

The City argues that the “Baker School system”,

which has been authorized by constitutional amendment?

and statute>, will not impede the dismantling of the for-

mer dual system in East Baton Rouge Parish. The City of

Baker argues that the “Baker School system” is presently

in effect and its “status” should be addressed now.

According to the City of Baker, if it is not allowed to

intervene it will “likely be enjoined from proceeding by

one of the parties presently in this lawsuit. Alternatively,

the City of Baker moves for permissive intervention

based upon the same arguments.

The opponents argue that the motion for intervention

should be denied because the issue is not ripe for adjudi-

cation. Opponents argue that the City of Baker must at a

minimum: (1) develop a single member district election

plan; (2) obtain preclearance from the Department of

Justice; and (3) hold an election for school board mem-

bers in the fall of 1998. According to opponents, it is

purely speculative what the “Baker school system” will

be prior to the time that there is a new school board in

place because only the school board is empowered to

establish a plan for the operation of schools in Baker.

Consequently, it would be premature for the court to

consider the questions raised in the proposed interven-

tion.

The court agrees with the present parties to this

lawsuit that the City of Baker itself does not have a

2 Article VIII, Sec. 13(D) of the Louisiana Constitution.

3 Act 973 of the 1995 Regular Session of the Louisiana

Legislature.

App. 25

“direct, substantial, legally protectable interest” in these

proceedings. Act 973 makes it plain that the Baker School

Board will be the entity authorized to adopt rules and

regulations pertaining to the Baker school system. La.

R.S. 17:72(H). It is well established that an applicant for

intervention of right must have a “direct, substantial,

legally protectable” in the litigation. New Orleans Public

Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452

(5th Cir. 1984), cert. denied, 469 U.S. 1019, 105 S.Ct. 434,

83 L.Ed.2d 360 (1984). The interest must be one that the

substantive law recognizes as belonging to the applicant,

Id, at p. 464.

The first reason given by the City of Baker for its

proposed intervention is to establish that the creation of

its independent school system will not impede the cre-

ation of unitary system(s) in the Parish. Act 973 autho-

rizes the City to develop election districts and order

elections for the Baker School Board. That is the extent of

the legal authority given the City of Baker. Act 973 makes

it plain that the Baker School Board will be the entity

authorized to adopt rules and regulations pertaining to

the establishment and operation of the Baker School sys-

tem. La. R.S. 17:72(H). The city is anticipating that a suit

will be filed to enjoin implementation of Act 973. As yet,

however, there is no actual controversy relating to the

creation of election districts for members of the Baker

School Board and the holding of elections in the fall of

1998. Thus, it is clear that the City of Baker has no legally

protectable interest in any issue presently being litigated

in these proceedings

The second reason advanced by the City of Baker is

to participate in submitting a desegregation pian to the

App. 26

court. As noted above, the City of Baker has no authority

to act as a school boar. The Baker School Board, rather

than the City of Baker, will be the legal entity authorized

to establish a plan for the operation of public schools in

Baker. Consequently, it is clear that the City of Baker has

no cognizable interest belonging to it that would support

an intervention or right.

In its reply brief, the City of Baker contends that the

“Baker school system” is in existence because Act 973

provides that: “[o]n the effective date of this Section,

there shall be established a municipal school system in

the city of Baker.” There is no dispute that the Act

became effective upon the passing of the constitutional

amendment last fall. The City argues that this legislation

created a school system and a school board for the City of

Baker despite the fact that no school board members have

yet been elected. According to the City of Baker, the East

Baton Rouge Parish school system no longer includes the

territorial jurisdiction of the City of Baker. It contends

that its presence is “absolutely required” to have a com-

plete adjudication of this case. In short, the City contends

that it is the proper party to act for the Baker School

Board until its members are elected.

While the Act does purport to establish a municipal

school system in the City of Baker as of the passage of the

constitutional amendment last fall, the reality is that there

is no Baker school system in place. There has to be a plan

4 The City additionally argues that the Education

Commission for the Baker school system is effectively operating

the Baker school system. The court finds no merit to this

argument in fact or in law.

App. 27

established by the proper governing authority, i.e. the

Baker School Board, before this court has anything to rule

on. The Act makes it plain that the East Baton Rouge

Parish School Board has until January 1, 1997, to develop

an election plan that excludes the City of Baker. The

Legislature has not shortened the length of the terms of

the members presently on the East Baton Rouge School

Board and they continue to represent the entire parish

until their successors are elected. As the City itself

observes, the Act merely authorizes the City to “set up”

the Baker school system. As a practical matter, until the

Baker school system is “set up”, there is nothing for this

court to rule on with respect to that system.

The court observes that the City has presented no

separate argument relating to its request to permissively

intervene. One of the things that the City would have to

establish under Fed. Rule Civ. P. 24 (b) is that it has a

claim or defense that has a common question of law or

fact with the main action. For the reasons noted above,

the court finds that the request for permissive interven-

tion should likewise be denied.

In short, the court finds that City the [sic] Baker has

no right to intervene in these proceedings. The matter

may be revisited, however, if and when a Baker School

Board, having the power to sue and be sued, is estab-

lished and moves for intervention.

III. Conclusion

Accordingly, the motion by Jones for attorney’s fees

is hereby DENIED and the motion by the City of Baker to

intervene is hereby DENIED.

App. 28

Baton Rouge, Louisiana, September 18, 1996.

/s/ John V. Parker

JOHN V. PARKER,

CHIEF JUDGE

MIDDLE DISTRICT OF

LOUISIANA

App. 29

APPENDIX “H”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-31074

Summary Calendar

CLIFFORD EUGENE DAVIS, JR. and

UNITED STATES OF AMERICA,

Plaintiffs,

JOHNNIE A. JONES,

Movant-Appellant,

versus

EAST BATON ROUGH PARISH

SCHOOL BOARD, a Corporation,

Defendant-Appellee.

Appeal from the United States District Court for

the Middle District of Louisiana

(56-CV-1662)

(Filed Sep. 10, 1997)

Before REAVLEY, JOLLY and HIGGINBOTHAM,, Circuit

Judges.

PER CURIAM:*

* Pursuant to 57TH Cir. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 57TH Cir. R.

47.5.4.

a

App. 30

Johnnie Jones appeals an order denying his request

for over $1.2 million in attorney’s fees for his work in this

decades-old desegregation suit, over which the district

court has retained jurisdiction. We conclude that we have

appellate jurisdiction under the collateral order doctrine,

see Walker v. U.S. Dept. of Housing and Urban Dev., 99 F.3d

761, 766-67 (5th Cir. 1996), and affirm.

In 1981 Jones filed a similar request for fees. The

district court denied the motion, reasoning that Jones had

not complied with the requirements of Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and

related cases. Jones appealed the order and we affirmed

in an unpublished opinion. Davis v. East Baton Rough [sic]

Parish School Bd., No. 81-3287 (5th Cir. Oct. 24, 1983). We

agreed with the district court that his fee application was

“totally inadequate” under Johnson. Davis, supra, at 3.

In 1996 Jones filed a motion for attorney’s fees which

is the subject of the present appeal. The district court

properly denied the motion, since both the district court

and this court are bound by the prior appellate decision

under the law of the case doctrine. That doctrine “pre-

cludes reexamination of issues decided on appeal, either

by the district court on remand or by the appellate court

itself upon a subsequent appeal.” Quest Medical, Inc. v.

Apprill, 90 F.3d 1080, 1094 (5th Cir. 1996).

Recognized exceptions to the law of the case doctrine

are that “evidence in the subsequent trial is substantially

different, the prior decision was clearly erroneous and

would work manifest injustice, or controlling authority

has in the interim made a contrary rule of law applica-

ble.” Id. The only conceivable exception which might

App. 31

apply here is that Jones has somehow augmented his fee

request with additional evidence.

The renewed fee request, however, remains totally

inadequate to support an award. We noted in the prior

appeal that Jones “does not even list his clients, although

they are the ‘parties’ who must recover attorneys’ fees.”

Davis, supra, at 3. In his renewed motion for fees, Jones

again fails to list which plaintiffs he represented, fails to

move for fees on their behalf, and instead requests fees as

“movant in proper person.” The fee request fails to delin-

eate, among other Johnson factors, the novelty and diffi-

culty of the questions presented in the case, whether the

fee agreement with the clients was fixed or contingent, or

the results obtained. See Johnson, 488 F.2d at 718.

While, unlike the first fee request, Jones breaks down

his work into various dated entries in an affidavit, those

entries are implausible on their face. Many of the entries

indicate that Jones worked more than 24 hours in a single

day. By way of example, Jones claims he spent 157.5

hours on July 23, 1970 (at a requested rate of $250 an

hour) on a “memorandum opinion and order.” Further,

the only work Jones claims to have done after April 16,

1981, the date of his first fee motion, involved his unsuc-

cessful quest for attorney’s fees. Accordingly, we follow

our prior decision.

AFFIRMED.

App. 32

APPENDIX “I”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BATON ROUGE DIVISION

EAEEEEEEEALALEAEAEEEAEEE EE EEAEEE SEAS EE EE AAAS ES

CLIFFORD EUGENE DAVIS, JR., a

minor by his father and next friend,

Clifford Eugene Davis, Sr., et al

Plaintiffs, NO. 1662

versus CIVIL ACTION

EAST BATON ROUGE PARISH

SCHOOL BOARD, a corporation,

and LLOYD FUNCHESS, as

Superintendent of Public Schools in

East Baton Rouge Parish

Defendants

ERE EEEEEA LEASES EE EE EE EEEEEE SEES SEES SEES ES EES

* * * &*#* * &* &* &©& *&* &# H& H& BH

JUDGMENT

This cause having come on for hearing on the 29th

day of April, 1960, on plaintiffs’ motion for summary

judgment, and the court being of the opinion that the

motion for summary judgment should be granted,

IT IS ORDERED, ADJUDGED AND DECREED that

the defendant East Baton Rouge Parish School Board, its

agents, its servants, its employees and successors in

office, and those acting in concert with them, be, and they

are hereby, restrained and enjoined from requiring seg-

regation of the races in any school under their supervi-

sion, and from engaging in any and all action which

App. 33

limits or affects the admission to, attendance in, or educa-

tion of plaintiffs or any other negro child similarly situ-

ated in schools under defendants’ jurisdiction, on the

basis of race and color, from and after such time as may

be necessary to make arrangements for admission of chil-

dren to such schools on a racially non-discriminatory

basis with all deliberate speed, as required by the deci-

sion of the Supreme Court in Brown v. Board of Education

of Topeka, 349 U.S. 294.

This court retains jurisdiction of this cause for the

purpose of entering such further orders or granting such

further relief as may be necessary to bring about compli-

ance with this decree.

May 25, 1960

/s/ J. Scully Wright

UNITED STATES

DISTRICT JUDGE