Robert W. Kelley, Cross-Appellees v. Metropolitan County Board of Education, Cross-Appellants ( 1985 )

KRUPANSKY, Circuit Judge.

Plaintiffs Robert W. Kelley and the class he represents appealed and defendant Metropolitan County Board of Education (Board) cross-appealed the district court’s award of attorney’s fees in this school desegregation case.

Commencing on the heels of the landmark case of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the instant case has spawned volumes of court opinions and orders at both the district and appellate levels. These decisions need not be recounted in detail here. See, e.g., Kelley v. Metropolitan County Board of Education, 687 F.2d 814 (6th Cir.1982), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983); Kelley v. Metropolitan County Board of Education, 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972); Kelley v. Metropolitan County Board of Education, 511 F.Supp. 1363 (M.D.Tenn.1981). Suffice it to say that the litigation undoubtedly required hundreds of hours of work by the plaintiffs’ and Board’s attorneys.

The plaintiffs’ initial motion for attorney’s fees, pursuant to the Educational Amendments of 1972, 20 U.S.C. § 1617, was filed on February 8,1974. Subsequent filings amended the pending motion to include a prayer for relief under the 1976 Civil Rights Attorney’s Fees Act, 42 U.S.C. § 1988. In December, 1982, the trial court conducted hearings on the issue of attorney’s fees. On February 23, 1983, the court awarded plaintiffs’ fees and costs of approximately $139,500 or less than ten percent of the amount requested.² The discrepancy between the amount requested and that awarded formed the basis of plaintiffs’ appeal.

Specifically, plaintiffs alleged error in the district court’s refusal to award attorney’s fees for services rendered prior to 1972, for declining to award fees for appellate services, and for abusing its discretion in calculating the daily and hourly rates of plaintiffs’ attorneys Avon Williams and Richard Dinkins. The defendant Board’s cross-appeal challenged the district court’s failure to discern the specific extent to which plaintiffs prevailed on each of their claims, and in holding the Board liable for services required by plaintiffs’ attorneys due to the intervention of third parties.

The district court’s denial of attorney’s fees for services performed prior to 1972 was predicated on the court’s determination that a 1971 desegregation order, entered by the district court and approved by the Sixth Circuit, was a “final order” which terminated entitlement to attorney’s fees under this court’s mandate in Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980).

In Northcross, .supra, this court cautioned that although attorney’s fees could be awarded retroactively in all desegregation cases pending at the date of § 1988’s enactment, such retroactive relief was not automatic. The court stated:

This is not to say that a retroactive award of attorney’s fees must be made in all school desegregation cases. Certain interim aspects of the case may have been subject to a final order settling the issue of attorney’s fees to that point, rendering the reopening of long-settled aspects of the case unfair.

611 F.2d at 635.

Based on the above guidance, the North-cross district court held on remand that a 1966 consent order entered in the Memphis school desegregation case constituted a final order, thus barring an award of attorney’s fees for work completed prior to 1966.

In the instant case, the court below concluded that the 1971 order of the district court, affirmed in Kelley v. Metropolitan County Board of Education, 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972), constituted a “final order” as did the 1966 consent decree at issue in Northcross. This court, however, is not persuaded by that conclusion.

In upholding the lower court’s sanctioning of the HEW plan in 1972, this circuit initially observed:

The order of the District Judge is the first comprehensive and potentially effective desegregation order ever entered in this [17 years of] litigation. The District Judge tells us that now the remedy is at least in sight.

463 F.2d at 734.

Consequently, this court observed in 1972 that the only issues of substance presented in that appeal were the “practical problems which appellants claim have developed since the entry of the district judge’s [1971] order”, 463 F.2d at 744, such as the lengthy bus rides to which youngsters were subjected as part of the desegregation plan. However, the Sixth Circuit directed the parties to seek a remedy for these problems in the district court. The court instructed:

As appellants well know, the arena for fact-finding in the federal courts is the United States District Court. Until these claims are presented in a trial court, with an opportunity for sworn testimony to be taken and controverted issues of facts decided by the processes of adversary hearing, this court has no jurisdiction.

463 F.2d at 744-45.

The 1972 Sixth Circuit opinion further related that documents included in the appellate record suggest “that local authorities in Nashville and Davidson County have not made good faith efforts to comply with the order of the District Judge,” 432 F.2d at 745. The 1972 appellate decision thus concluded:

The District Court order in this case specifically retained jurisdiction. Thus, upon our affirmance, the door of the District Court is clearly open (as it has been) to the parties to present any unanticipated problems (not resulting from failure to comply with its order) which may have arisen or may arise in the future.

463 F.2d at 747.

Thus, it is clear that the Sixth Circuit did not view the 1971 order as signaling the termination of the litigation. Moreover, the record is replete with disclosures that the plaintiffs, as well as defendants, have continuously engaged in adversary proceedings of magnitude in conjunction with the modification and implementation of the 1970 plan with charges and countercharges of asserted disparate treatment of black children.³ As recently as 1982, this circuit again remanded the case, concluding that “[i]n large measure, the pupil assignment components of this plan do not withstand constitutional scrutiny.” Kelley, 687 F.2d at 817.

In view of the foregoing, it is quite apparent that the 1971 district court’s disposition and this court’s subsequent 1972 affirmance of that decision, did not represent a distinct break in the litigation. Accordingly, as envisioned by the Sixth Circuit in Northcross, an award of fees for legal services performed and accrued prior to 1972 is appropriate.

The trial court having initially disallowed attorneys fees for the period between the inception of this action on September 23, 1955, and May 30, 1972, is directed upon remand to conduct hearings and award attorneys fees for services performed at the trial and appellate levels by determining and applying the prevailing daily hourly rate, daily in-court time, and other awarda-ble fees for each year of the period involved.

Plaintiffs have also challenged the trial court’s refusal to award attorney’s fees for services performed by their counsel at the appellate level. Compensation was sought, inter alia, for appellate services which eul-minated in this court s 1972 and 1982 Kelley opinions. See, 463 F.2d 732; 687 F.2d 814.

The court below predicated its denial of legal fees for the appellate litigation on Buian v. Baughard, 687 F.2d 859 (6th Cir.1982). In Buian, the court announced that the award of costs to a litigant pursuant to the Federal Rules of Appellate Procedure was an absolute prerequisite to the award of attorney’s fees under § 1988 for services resulting from the pursuit of appellate review. Because costs were not awarded by this court to the plaintiffs at the conclusion of the various appellate proceedings entertained by this court, the district court applying Buian barred compensation for their attorneys’ services.

Upon a reconsideration of Buian and its mandates, this court concludes that an award of costs pursuant to Fed.R. App.P. 39(a)⁴ is separate and distinct from and totally unrelated to an award of attorney’s fees pursuant to the directions of § 1988. Accordingly, Buian is hereby overruled. While it is true that § 1988 expressly states that attorney's fees “may be awarded as part of costs,” neither the legislative history nor the express language of § 1988 mandates the conclusion expressed in Buian.⁵ See, Robinson v. Kimbrough, 652 F.2d 458, 463 (5th Cir.1981) (pre-Buian decision expressly rejecting the approach advocated in Buian). See, e.g., Universal Amusement Co., Inc. v. Vance, 587 F.2d 159, 173 (5th Cir.1978) (en banc), aff'd 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (recognizing circuit court’s discretionary power to award costs and fees arising from appeal pursuant to Rule 39 but remanding to district court as proper forum to determine total cost and fees, including attorney’s compensation, for prevailing party in that case); Willie M. by Singer v. Hunt, 564 F.Supp. 363 (W.D.N.C.1983), aff'd as modified, 732 F.2d 383 (4th Cir.1984) (specifically rejecting Buian rationale). To the contrary, the relevant inquiry is simply whether the party seeking compensation substantially prevailed at the appellate level. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (restating the general rule that prevailing plaintiff should ordinarily recover an attorney fee in civil rights cases). Consideration and disposition of this critical issue is pragmatically left to the forum of the trial court. Northcross, 611 F.2d at 637. See also, Doe v. Busbee, 684 F.2d 1375 (11th Cir.1982); Taylor v. Ouachita Parish School Bd., 648 F.2d 959 (5th Cir.1981); Molina v. Richardson, 578 F.2d 846 (9th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 724, 58 L.Ed.2d 707 (1978).⁶

In addition to challenging the lower court’s exclusion of time accrued for pre-1972 and appellate work, plaintiffs urge that the hourly and daily rates awarded by the lower court for legal services rendered subsequent to May 30, 1972, by Avon Williams and Richard Dinkins were inadequate. Compensation at the rate of $200 per hour and $1,500 per day in court was requested for Williams, and $120 hourly and $1,500 per day sought for Dinkins’ services. Subsequent to evaluating the prevailing rate charged by experienced and skillful lawyers in the Nashville area, the court below determined that the market rate in federal court litigation for an.attorney of Williams’ experience, ability and stature was $100 per hour and $1,000 per day of trial. The rate for Dinkins, who was introduced into the case upon gaining admission to the bar, was $60 per hour and $600 per day in court. The court also rejected plaintiffs’ prayer for a 100 percent contingency factor, but approved a 25 percent upward adjustment to compensate for the difficulty of the prolonged litigation and its unpopularity in some sectors of the community. The court then reduced the amount 10 percent to account for duplication of services and possible miscalculations in the attorneys reconstruction of their time records.

In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), the Fifth Circuit listed 12 factors to be considered in determining an appropriate award of attorney’s fees. These factors include, inter alia, the time and labor required, the novelty and difficulty of the litigation, the customary fee, and the experience, reputation and ability of the attorneys. In Northcross, this court observed that Johnson did not provide guidanee as to the relative weight to be accorded each factor, and suggested that an analytical approach be applied. North-cross instructs:

We conclude that an analytical approach, grounded in the number of hours expended on the case, will take into account all of the relevant factors and will lead to a reasonable result. The number of hours of work automatically reflect the “time and labor involved,” “the novelty and difficulty of the question,” and “preclusion of other employment.” The attorney’s normal hourly billing rate will re-fleet “the skill requisite to perform the legal service properly,” “the customary fee,” and the “experience, reputation and ability of the attorney.” Adjustments upward may be made to reflect the contingency of the fee, unusual time limitations and the “undesireability” of the case.

611 F.2d at 642-43.

Fairly read, Northcross advises that the attorney’s normal hourly billing rate should be a key focal point in award determinations. In the recent case of Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court further instructed that “reasonable rates” are to be determined under § 1988 “according to the prevailing market rates in the relevant community.” 104 S.Ct. at 1547.

jn contesting the $100 per hour award to Williams, plaintiffs cited testimony adduced ^he hearing on the motion for fees evinc-¡ng (i) Williams’ reputation as an experienced and successful civil rights lawyer; (2) that “customary fees” for similar work in the Nashville area ranged from $100 to $200 an hour; (3) that Williams’ hourly fee for office work was $120; and (4) that the unpopularity of the case has resulted in threats against Williams. Testimony that the standard fee for someone of Dinkins’ stature was $65 to $130 an hour was also cited to support plaintiffs’ contention that Dinkins’ award was inadequate. In addition, plaintiffs recounted the unpopularity and length of the litigation in arguing that the contingency fee should be higher than the 25 percent awarded by the court below,

Considering in tandem the pronouncements of the Supreme Court and Sixth Circuit delineating the correct meth0(j for calculating attorney’s fees, this court concludes that Williams is entitled to at least a minimum rate of $120 per hour, This amount is a reasonable point of departure in calculating Williams’ hourly rate in accordance with prevailing Supreme Court and this circuit’s directions and is within the parameters of the evidence that “mistomary fees” for similar work in the Nashville area ranged between $100 and $200 an hour. The award to Dinkins must also be reconsidered using as a minimum point of departure an amount of $65 per hour as the prevailing value of his skills in the Nashville legal community. The daily (in court) rate for Williams and Dinkins should also be upgraded to $1,200 and $650 respectively.

The lower court’s overall reduction of fees by 10 percent for duplication of services is justified under the holdings of Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir.1979) and Oliver v. Kalamazoo Board of Education, 576 F.2d 714, 715 n. 2 (6th Cir.1976) (per curiam). In addition, the Supreme Court recently approved a 30 percent overall reduction in a case, like the one at bar, where the attorneys failed to keep contemporaneous time records and thus had to reconstruct them from memory. See Hensley v. Eckerhart, 461 U.S. 424, 428, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). However, the reduction in Hensley was also designed to compensate for the attorney’s inexperience. Thus, the 10 percent reduction in the instant case is reasonable and should not be disturbed.

Plaintiffs also challenged the district court’s refusal to award fees for the two days and seven hours plaintiffs’ attorneys attributed to discussions with Dr. Scott, the plaintiffs’ expert witness at the 1979 and 1980 hearings. The court’s opinion was based on its finding that Dr. Scott’s testimony was frivolous under Northcross, 611 F.2d at 636, in light of plaintiffs’ repudiation of much of Dr. Scott’s testimony after the court had admitted it. The district court’s conclusion in this respect is proper.

In its cross-appeal, the defendants alleged that the trial court erred in failing to exclude fees for services rendered by plaintiffs’ attorneys arising from claims and proceedings stemming from the intervention or joining of other parties. These “outside” parties were:

1. The Metropolitan (Nashville/Davidson Co.) Mayor and Council, which plaintiffs joined as defendants in 1972. (Plaintiffs prevailed in their effort to enjoin these defendants from interfering with the desegregation plan.)

2. The intervention by the Board itself as a third party plaintiff in 1973 to present its claim against third-party defendant HEW.

3. A group of otherwise unidentified “intervenors” who proposed a desegregation plan to the district court in 1979.

4. Another unidentified group of inter-venors who entered the case to propose the creation of a magnet school.

The defendant Board further noted that it vehemently opposed the intervention of the third and fourth group of intervenors listed above.

Plaintiffs responded to the Board’s argument on this issue by observing that it was the Board’s failure to dismantle its dual school system that occasioned the interventions and prolonged the litigation in this lawsuit.

Defendants relied primarily on Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir.1979) (per curiam) for the proposition that plaintiffs should look to the intervenors, rather than the defendant, for expenses occurred as a result of the intervention. However, Haycraft is distinguishable from the instant case in several important respects.

In Haycraft, L.J. Hollenbach, a county judge of Jefferson County, Kentucky, intervened on behalf of “all the people of Jefferson County” in a desegregation case pending in federal court. The judge proposed an alternative desegregation plan which protracted the litigation and resulted in several appeals. Following the appeals, the original plaintiffs sought an award of attorney’s fees to be assessed against the intervenor pursuant to the Emergency School Aid Act of 1972, 20 U.S.C. § 1617. In granting the order, the district court held the $11,312 award against the inter-venor appropriate, as plaintiffs would have saved countless hours were it not for the intervenor. On appeal, this circuit affirmed the award, holding that the plaintiffs became the “prevailing party” as regarded Hollenbach “when the district court rejected his desegregation plan and dismissed him as an intervenor.” 606 F.2d at 132.

Thus, the award assessed against the intervenor in Haycraft was predicated on the court’s finding that the intervenor obstructed rather than aided in the development of the court-ordered desegregation scheme. The award was also sought by the plaintiffs directly from the intervenor. In the instant case, there is no evidence that the intervenors in any way interferred with the progress of the litigation, and thus plaintiffs would not, under the Haycraft analysis, be entitled to remuneration from the intervenors. The question remains, of course, whether the plaintiff is entitled to attorney’s fees from the Board for the extra time which the plaintiffs’ counsel devoted to issues raised by the intervenors.

There appears to be no case law which directly resolves this issue. Common sense dictates that the Board should not be held liable for the costs plaintiffs incurred in seeking an injunction against the Metropolitan Mayor and Council, as that group was itself a third-party defendant, unrelated to the Board. Thus, if any party is liable for those expenses, it would be the Metropolitan government and not the Board. As to the other intervenors, however, (i.e. the Board itself as a third-party plaintiff, the group which proposed a desegregation plan in 1979, and the advocates of the magnet school) plaintiffs’ argument that the Board’s failure to dismantle its dual school system caused the intervention is persuasive. Thus, plaintiffs are entitled to compensation from the Board for all legal services except those resulting from plaintiff’s addition of the Metropolitan mayor and Council as third-party defendants.

Defendant’s final argument on cross appeal was that the court erred in not determining the specific extent to which plaintiffs had prevailed in the action. The defendant contended that while the court’s focus on the “overall results” of the case was sufficient to satisfy the “prevailing party" requirement as defined by this circuit in Northcross, a recent Supreme Court decision has changed the standard. Defendant cites Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) for the proposition that the North-cross approach has been modified, and that awards under § 1988 now require that a party’s request for attorney’s fees be carefully scrutinized as to the extent of success on each claim, and further, that time spent on unsuccessful claims that are distinct from successful claims should be excluded in determining a reasonable fee.⁷ Thus, defendant suggested that under the mandate of Hensley, the case should be remanded with instructions to examine the extent to which plaintiffs have prevailed on each substantive issue before awarding fees. The court agrees.

In Hensley, plaintiffs brought a lawsuit on behalf of all persons involuntarily confined at the Forensic Unit of the Fulton State Hospital in Missouri. The complaint challenged the treatment and conditions at the Forensic Unit presenting a wide variety of alleged constitutional infringements. The court found constitutional violations in five of six general areas cited in plaintiffs’ complaint: physical environment; individual treatment plans; least restrictive environment; visitation, telephone and mail privileges; and seclusion and restraint. However, it found the sixth general area, staffing, to be sufficient.

In ruling on an attorney’s fees (notion, the Hensley district court first determined that plaintiffs were prevailing parties even though they had not succeeded on all six claims, and further refused to eliminate from the award hours spent on the unsuccessful claim. The Supreme Court reversed and remanded, reasoning that two questions must be addressed when a motion for attorney’s fees is presented in a case involving numerous claims: (1) did the plaintiff fail to prevail on claims that were unrelated to the, claims on which he succeeded?; and (2) did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? 461 U.S. at 434; 103 S.Ct. at 1940.

However, Hensley does not, as defendant suggested, represent a total break from the approach taken regarding the “prevailing party” issue by this circuit in Northcross. Rather, the Hensley court noted that in some cases, the litigation cannot be “viewed as a series of discrete claims.” Id. In such a case, the Court stated, the overall result would remain as the primary factor in determining attorneys fees.

The Hensley court instructs:

Many civil rights cases will present only a single claim. In other cases the plaintiffs claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.

461 U.S. at 435, 103 S.Ct. at 1940.

On remand, the district court must follow the mandates of Hensley as explicated above. .

In sum, this court finds the amounts awarded by the lower court inadequate.⁸ This case is therefore remanded to the district court with instructions to award fees for services performed by plaintiffs’ attorneys prior to 1972; award fees for appellate work; reevaluate the hourly rate to be awarded to Williams and Dinkins for the period subsequent to May 30, 1972 in accordance with the direction of this decision; reevaluate the court time for Williams and Dinkins with a minimum departure point of $1,200 and $650 respectively for the period subsequent to May 30, 1972; decrease the award for the time spent by plaintiffs’ attorneys to bring in the city government as a third party defendant; follow the mandate of Hensley to determine which claims plaintiffs have succeeded upon and those which they have not, and to calculate the attorneys’ compensable hours accordingly; allow a 25% increase as a contingency factor; and decrease the overall award by 10% for duplication of services and the reconstruction of time records from memory.

In view of the foregoing, this case is Reversed and Remanded. Costs awarded to plaintiffs.

2 . In its motion for attorneys fees, plaintiff requested the following amounts for services rendered in the 28-year history of the case:

(1) Avon Williams, for the firm of Looby and Williams, 917.8 hours at $200 per hour and 36.4 days at $1,500 a day, totaling $238,160 plus a 100 percent contingency factor for a total of $476,320;

(2) Avon Williams, individually, 1,211.5 hours at $200 per hour and 87.3 days at $1,500 a day, totaling $372,250 plus 100 percent contingency factor for a total of $746,500;

(3) Richard Dinkins, individually, 215.6 hours at $120 per hour and 38 days at $1,500 a day, totaling $82,872, plus a 100 percent contingency factor for a total of $165,744.

An additional $126,000 was requested for work performed by Legal Defense Fund attorneys.

3 . For example, on October 21, 1971, plaintiffs moved to join the metropolitan government, mayor and council members as parties due to the control these officials exhibited over the financial resources necessary to implement the transportation aspect of the plan; on March 17, 1972, the Board submitted its second report to the court in which it suggested, inter alia, plans for a new high school and a capital improvement schedule for schools which were at least 15% black; in June, 1972, the Board sought changes in the 1971 plan concerning elementary and junior high school attendance zones which plaintiffs opposed while reiterating their claims that the plan in effect had a disparate impact on black children; and on May 20, 1973, the Board petitioned for approval of its "Long Range Building Program". In sum, the district court’s docket sheet evinces a steady stream of activity from the initiation of this litigation to the date of the present appeal.

4 . While Fed.R.App.P. 39(a) sets forth general guidelines for the award of costs on appeal, governing such items as the copying of briefs, appendices and records, it also allows the appellate tribunal wide discretion in reimbursing a party for its expenses. The rule states in pertinent part:

Rule 39. Costs

(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.

5 . The dissent’s argument that Buian’s pronouncements are supported by cases such as Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) and Marek v. Chesny, — U.S.-, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) is not persuasive. Hutto simply determined that attorney’s fees may be classified as "costs," and as such, are not subject to eleventh amendment immunity which normally bars monetary damage awards when a state is the defendant in a civil rights action. Similarly, the Court in Ma-rek, after reviewing the legislative history, purpose and express language of § 1988 and Fed.R. Civ.P. 68 respectively, concluded that Congress intended the Rule 68's cost sanctions, which are mandatorily-imposed upon a party who refuses a settlement offer and who subsequently fails to recover a final judgment greater than the offer, to include attorney's fees. In determining that the cost-shifting provision of Rule 68 encompasses an award of attorneys fees under § 1988, the Marek Court, in footnote 2, distinguished its prior opinion in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). The Court observed that, unlike Rule 68, the cost provision at issue in Roadway (28 U.S.C. §§ 1920 and 1927) specifically enumerated the type of costs awardable as sanctions under certain circumstances, thus making it inappropriate for the Court to interpret "costs” as including § 1988 attorney's fees. In other words, the Marek Court recognized a critical distinction between interpretation of "costs” where the relevant statute sets forth its own definition of the term, as opposed to situations where "costs” are undefined. As appellate Rule 39 specifically delineates the "costs” to which it applies, i.e. the "traditional" costs of printing briefs, appendices, records, etc., the pronouncements of Marek render it inappropriate for this court to judicially-amend Rule 39’s cost provisions to include § 1988 attorney’s fees. In sum, neither Hutto nor Marek addressed the narrow issue presented by Buian, to wit, whether the appellate court’s discretionary decision to award or deny costs pursuant to Fed.R.App.P. 39 should be considered an absolute prerequisite to the prevailing party’s § 1988 entitlement to attorney’s fees for legal services rendered at the appellate level.

6 . Contrary to the concerns articulated by the dissent, the majority does not foresee its opinion as impacting or overruling the decision in Johnson v. Snyder, 639 F.2d 316 (6th Cir.1981) (per curiam), as Johnson merely concluded that since § 1988 attorney's fees may be considered as part of costs, the filing of a petition for attorney’s fees is not governed by the time limitations of Fed.R.Civ.P. 59 for motions to alter or amend the judgment or for a new trial.

7 . Specifically, defendant alleged that plaintiffs have been erroneously awarded fees for time spent pursuing unsuccessful charges of contempt against the Board, yet unresolved matters as to faculty composition, and their effort to keep Pearl High School open.

8 . This court also notes that the entire amount awarded to plaintiffs' attorneys for 28 years of service in this case was less than one-half of the $288,000 which the Board paid its attorneys to defend against the litigation in just one five-year period, i.e. 1978-1982.