*

Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,

sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8204.

Valencia MILLS, a minor, by her parents and next friends, Berta Mills and Roger Mills,

Adesina, Adreana, and Ardona Scott, minors, by their parents and next friends, Cynthia Scott and

Major Scott, Plaintiffs-Appellants, Cross-Appellees,

Ashley and B'randi Armstrong, minors, by their father and next friend, Harold M. Armstrong,

Haraja and Jihan El-Shabazz, minors, by their parents and next friends, Asahita El-Shabazz and

Narwanna El-Shabazz, James Somerville, a minor, by his mother and next friend, Carolyn Saunder,

Nathan Jones, a minor by his parents and next friends, Carolyn Jones and Wayne Jones, Nadrah

Malik, Mangoor Falah, and Salim Sabir, minors, by their parents and next friends, Mahasin Sabir

and Adib Sabir, Christina Thomas, a minor, by her mother and next friend, Grace Thomas, Michael,

Steven and Nicholas Creamer, minors, by their mother and next friend, Marguerite Creamer, Sandi

and Karla Bailey, minors, by their parents and next friends, Evelyn Bailey and Larry Bailey,

Brandon Russell, a minor, by his parents and next friends, Karen Russell and Kevin Russell,

Michael, Gerald and Lacy Perry, minors, by their mother and next friend, Nina Perry, Darius and

Kevin McVay, minors, by their father and next friend, William McVay, Julia Stewart, a minor, by

her mother and next friend, Rose Stewart, Jeezanhay, Halani and Tashiana Blake, minors, by their

mother and next friend, Betty Blake, Plaintiffs-Intervenors,

v.

Robert R. FREEMAN, Superintendent, Elizabeth Andrews, Norma Bergman, Phil McGregor,

Lyman Howard, Donna Wagner, David Williamson and Paul Womack, as DeKalb County Board

of Education, members, Defendants-Appellees, Cross-Appellants.

Aug. 6, 1997.

Appeals from the United States District Court for the Northern District of Georgia. (No. 11946-

WCO), William C. O’Kelley, Judge.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST*

, Senior District Judge.

PER CURIAM:

Appellants, Valencia Mills and a class of individuals composed of all black children enrolled

in the Dekalb County School System and their parents and legal guardians (collectively, appellants),

appeal the district court's order concerning attorney's fees for work performed on various issues

during the final years of this litigation. We affirm.

I. BACKGROUND

Appellee, the Dekalb County Board of Education (the DCBE), operates the Dekalb County
 1

We will use the term "the DCSS" to refer to the DCBE, appellee Robert Freeman, who was

its former superintendent, and appellee James Hallford, his successor. 

School System (the DCSS).1 Historically, in accordance with state law and its own policies, the

DCSS conducted a segregated system of education with separate schools for black and white school

children. Despite the order of the Supreme Court in Brown v. Board of Education, 347 U.S. 483,

74 S.Ct. 686, 98 L.Ed. 873 (1954), declaring all segregated schools unconstitutional, and the Court's

subsequent order in Brown II that all segregated schools were to desegregate with "all deliberate

speed," Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955),

the DCSS remained essentially segregated in 1968, when appellants filed the underlying action on

behalf of all black Dekalb County school children. On June 12, 1969, the United States District

Court for the Northern District of Georgia enjoined the DCSS from discriminating on the basis of

race and ordered the school system to eliminate the effects of the old dual system. The court ordered

the DCSS to close all de jure black schools and to establish a neighborhood school attendance

policy. The court also retained jurisdiction in order to ensure compliance. Pitts v. Cherry, No.

11946, slip op. (N.D. Ga. June 12, 1969). Both parties sought modifications of the desegregation

plan and additional relief, not relevant to this appeal, from 1975 through 1983.

In response to appellants' seeking additional relief in 1983, the district court held that the

DCSS had attained unitary status. The appellants appealed to this court, and we reversed, holding,

among other things, that the district court had improperly declared the DCSS to be a unitary system

without first notifying appellants and conducting a hearing on that issue. Pitts v. Freeman, 755 F.2d

1423, 1426 (11th Cir.1985). In January 1986, the DCSS filed a motion for final dismissal in the

district court, seeking a declaration that it had achieved unitary status. On June 30, 1988, after

conducting a three-week bench trial, the district court granted the DCSS's motion in part and denied

it in part, ordering supplemental relief in the areas of teacher and principal assignments, quality of

education and resource allocation (the June 1988 order). The court, however, concluded that the

DCSS had achieved unitary status in student assignments, transportation, physical facilities and

extra-curricular activities. The district court certified its order for immediate appeal pursuant to 28
U.S.C. § 1292(b), and both parties appealed to this court. In October 1988, this court allowed the

appeals to proceed, and Marcia Borowski replaced previous class counsel Kathleen Wilde with

respect to the appeal of the June 1988 order. In October 1989, Borowski replaced Wilde completely

as class counsel.

In July 1989, appellants filed motions objecting to the DCSS's methods of equalizing teacher

resources between black and white schools. At that time, two groups of teachers, who also protested

these methods, moved to intervene. The district court denied them intervention, and they appealed

to this court. We affirmed the district court, and appellants received costs from the attempted

intervenors. Pitts v. Freeman, 1989 WL 136924, No. 89-8612, slip op. (11th Cir. Nov.3, 1989).

In October 1989, this court held that the DCSS had not achieved unitary status. We agreed

with the district court's conclusion that the DCSS had not fulfilled its obligations with respect to

faculty and staff assignments, but reversed the court's decision that the schools were unitary in the

area of student assignments. This court also rejected the DCSS's argument with respect to the

distribution of educational resources. Pitts v. Freeman, 887 F.2d 1438, 1447-48, 1450 (11th

Cir.1989) (Pitts I). In November 1989, this court denied the DCSS's petition for rehearing and

rehearing en banc. In addition, on December 13, 1989, this court granted appellants' motion—filed

in this court—for appellate attorney's fees, and remanded to the district court for a determination of

the appropriate amount. Seven days later, appellants filed a motion for attorney's fees and costs on

appeal in the district court (the first fee petition), and the DCSS opposed the motion. The DCSS

filed a petition for certiorari in the Supreme Court in 1990, which the Supreme Court granted in

1991. In March 1990, the district court stayed consideration of the first fee petition pending

determination of the DCSS's writ petition.

Also in March 1990, a group of parents of and on behalf of black children in the school

system moved to intervene in the remedial phases of this action (the intervenors). Specifically, the

intervenors believed that the appellants' advocacy of large-scale involuntary busing to achieve strict

racial quotas sacrificed the quality of education that the children would receive. In response, the

DCSS filed a motion neither opposing nor supporting the motion to intervene. The DCSS
interpreted the proposed intervention as a challenge to the adequacy of the class and wanted the

court to ensure that the class was sufficiently represented so that the results of any further

proceedings would be binding on the entire class. In April 1990, the DCSS filed an additional

motion, requesting a hearing to determine the issue of class adequacy. Appellants, however,

opposed the intervention, arguing that no intervention as a matter of right existed in class action

school desegregation cases and that the intervenors should not be granted permissive intervention.

Appellants asserted, among other things, that the intervenors did not represent an identifiable class

or subclass, the intervention attempt was untimely, and the current class adequately represented the

interests of the intervenors. The court held a hearing on this and related issues and, in December

1990, concluded that appellants and their counsel were not inadequate per se and thus should not

be replaced. The court, however, did allow the parents to intervene because of the appellants'

limited view of the potential remedies in this case. Appellants appealed this interlocutory order, and

the intervenors cross-appealed. This court, however, dismissed both appeals for lack of jurisdiction.

Mills v. Freeman, No. 91-8065 (11th Cir. June 13, 1991) (order dismissing appeal and cross-appeal).

In January 1991, appellants filed a second fee petition pursuant to 42 U.S.C. § 1988,

requesting attorney's fees and costs for the district court's December 1990 order establishing the

adequacy of class representation and class counsel (the second fee petition). The DCSS opposed

the petition on grounds including (1) that appellants had not prevailed on the merits, (2) the legal

relationship between appellants and the DCSS had not changed to appellants' advantage and (3) the

dispute was among class members. Noting that the appellants themselves had appealed the

December 1990 order to this court, and that the Supreme Court had granted the DCSS's writ of

certiorari concerning this court's reversal of the June 1988 order in Pitts I, the district court deferred

ruling on the second fee petition until this court and the Supreme Court decided the matters pending

before them.

In March 1992, the Supreme Court reversed this court's decision in Pitts I and held that the

district court had the authority to relinquish its supervision and control over the school system in

incremental stages before unitariness had been achieved in every area of school operations.
Freeman v. Pitts, 503 U.S. 467, 490, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992). The Supreme

Court remanded the case to this court for consideration of any unresolved issues and, if necessary,

for remand to the district court. In December 1992, this court affirmed the June 1988 order of the

district court and remanded the case for the court to consider faculty and staff assignments, resource

allocation, quality of education and the good faith commitment of the school district. Pitts v.

Freeman, 979 F.2d 1472, 1473 (11th Cir.1992) (Pitts II). Both the Supreme Court and this court

ordered the parties to bear their own costs on appeal.

On May 14, 1993, Borowski moved to withdraw and filed her third fee petition for all of the

services she and her law firm provided from November 1988 through May 1993, totaling

$334,266.75 in fees and $11,239.32 in costs. Appellants argued that because they were the

prevailing parties in the 1969 litigation, they would continue to be the prevailing parties until the

DCSS was finally dismissed in its entirety from the court's supervision. Appellants included a

monthly summary of hours expended and costs incurred, but not a detailed accounting because such

accounting would reveal work product and attorney-client privileged matters. The DCSS filed a

response, opposing appellants' request for attorney's fees and costs. The DCSS asserted, among

other things, that (1) Borowski's activities did not generate any substantial benefits for the class, and

thus the appellants had not achieved the requisite degree of success to obtain a fee award; (2)

appellants had been paid fees and costs in connection with the June 1988 order; and (3) appellants

were not entitled to fees for appellate work because the appellate courts had not awarded them fees

or costs.

In January 1994, the district court granted Borowski's petition to withdraw and denied the

first and second fee petitions and all costs. The district court denied the first fee petition based on

the belief that it did not have the authority to award fees for appellate work in the absence of orders

from this court or the Supreme Court, and because the appellate courts had not ordered the DCSS

to pay the appellants' costs on appeal. The court denied the second fee petition because it found that

the parents' motion to intervene, essentially challenging the adequacy of class representation, was

separate from the 1969 desegregation order, and, for the purposes of this issue, the appellants were
 2

Borowski requested fees for 2,610.65 hours of work on this case. After (1) concluding that

the $125 per hour rate was reasonable; (2) subtracting 1,035 hours for appellate work and the

intervention issues; and (3) further reducing the award by twenty-five percent for time that

would not have been billable to a fee-paying client, duplicative work with other attorneys and

Borowski's lack of practical experience, the court awarded Borowski fees for a total of 449.87

hours. 

 3

On June 12, 1996, the district court concluded that the DCSS's constitutional violations had

been fully remedied and granted the DCSS's motion for final dismissal from the court's

supervision. Mills v. Freeman, 942 F.Supp. 1449, 1464 (N.D.Ga.1996). Appellants have not

appealed that order. 

not prevailing parties. Finally, the court awarded appellants $56,233.75 in fees and $2,672.80 for

paralegal assistance in connection with monitoring activities.2 The district court denied appellants'

request for $11,735.56 in costs, finding that they were not reasonably necessary to monitor the

DCSS's compliance with the 1969 order. Appellants filed the instant appeal, and the DCSS

cross-appealed.3

II. CONTENTIONS

Appellants first contend that the district court erred in determining that they were not entitled

to attorney's fees and costs in connection with their opposition of the parents' attempted intervention.

Appellants argue that because (1) they have been the prevailing parties since the 1969 order, (2) they

"substantially" prevailed on the issue; and (3) the DCSS initiated the challenge to the adequacy of

class representation and class counsel, appellants are entitled to such fees and costs incurred in

opposing the intervention. Appellants next contend that the court erred in reducing their monitoring

fees and denying them costs. According to appellants, the court should have accepted their proffer

for an in camera review of their detailed time sheets of their activities in connection with monitoring

compliance with the 1969 order. Appellants assert that the time sheets contained information which

supported a larger fee award for monitoring than the court granted and that they did not present the

detailed documents because the documents also contained trial strategy and privileged material

concerning the on-going litigation. Appellants' third contention is that the district court erred in

failing to award attorney's fees for their appellate work. Appellants argue that costs under Federal

Rule of Appellate Procedure 39 and fees pursuant to 42 U.S.C. § 1988 are not analogous. Therefore,

according to appellants, the district court was not precluded from awarding fees merely because this
court and the Supreme Court ordered both parties to bear their own appellate costs or because this

court was silent on the issue of fees.

In response to appellants' first contention, the DCSS contends that the standard for awarding

fees is the extent that the appellants have prevailed on each substantive issue and that appellants did

not succeed in opposing the parents' intervention. With regard to appellants' monitoring fees claim,

the DCSS cross-appeals and argues that because the record contains no evidentiary basis to support

the fee award that the district court granted for monitoring activities, appellants should not have

received any fees for monitoring. According to the DCSS, appellants never met their burden of

submitting supporting documentation with their fee requests and could have protected any sensitive

material through redaction. Finally, the DCSS contends that the district court did not have the

authority to award attorney's fees or costs for appellants' appellate work because this court failed to

do so on remand after the Supreme Court reversed this court's decision in Pitts I. The DCSS asserts

that since this court's previous award of attorney's fees was based on Pitts I, that award was no

longer viable.

III. ISSUES

We discuss three issues in this case: (1) whether appellants are entitled to attorney's fees in

connection with opposing the intervention of the parents; (2) whether the district court correctly

awarded monitoring fees to the appellants; and (3) whether Borowski was entitled to attorney's fees

for the work expended appealing the June 1988 district court order concerning the status of the

school system.

IV. DISCUSSION

 The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, directs that "the

court, in its discretion, may allow the prevailing party, other than the United States, a reasonable

attorney's fee as part of the costs" incurred in certain proceedings to enforce civil rights. 42

U.S.C.A. § 1988(b) (West Supp.1997) (emphasis added). A prevailing party is one who "

"succeed[s] on any significant issue in litigation which achieves some of the benefit the parties

sought in bringing suit.' " Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76
L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). The party

seeking the fees has the burden of submitting evidence in support of the hours and rates claimed and

is entitled to recover those fees for hours that were "reasonably expended." Hensley, 461 U.S. at

433-34, 103 S.Ct. at 1939-40. The most critical factor in determining the award of attorney's fees

is the degree of success that the party obtained. Hensley, 461 U.S. at 436, 103 S.Ct. at 1941. We

review a district court's order for attorney's fees for abuse of discretion. Loranger v. Stierheim, 10

F.3d 776, 779 (11th Cir.1994). This court reviews the district court's findings of fact on issues of

attorney's fees, however, under the clearly erroneous standard. Lattimore v. Oman Constr., 868 F.2d

437, 440 (11th Cir.1989).

 The district court denied appellants' petition for attorney's fees with regard to work done to

oppose the parents' motion to intervene in this case because it found that the challenge to the

adequacy of class representation had no effect on the 1969 desegregation order and appellants'

opposition to that motion was not reasonably related to monitoring compliance with the

desegregation order. In addition, the court found that the appellants were not prevailing parties with

respect to the intervention issue because although appellants were not inadequate class

representatives per se, they did not sufficiently represent the views of all of the class members. As

a result, the district court granted the parents' motion to intervene.

We agree that the appellants were not prevailing parties with respect to the intervention issue

and find that the intervention claim was distinct from appellants' success on the 1969 desegregation

order. The motion to intervene concerned a challenge to the adequacy of the class and class counsel.

The court found that appellants failed to represent the views of all class members and thus allowed

the intervention. "Where the plaintiff has failed to prevail on a claim that is distinct in all respects

from his [or her] successful claims, the hours spent on the unsuccessful claim should be excluded

in considering the amount of a reasonable fee." Hensley, 461 U.S. at 440, 103 S.Ct. at 1942. The

district court thus properly excluded the time spent opposing the intervention issue from the fees it

awarded to appellants.

 The second issue we address is whether the district court correctly awarded appellants fees
 4

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc ), this court

adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to the close

of business on September 30, 1981. 

for their post-judgment monitoring activities. The district court awarded appellants 449.87 hours

for monitoring the 1969 desegregation order at a rate of $125 per hour and 66.82 hours for paralegal

assistance at a $40 per hour rate. The court denied any compensation for costs because the court

found that they were not reasonably necessary to the monitoring.

 We have previously granted attorney's fees for post-judgment monitoring in a civil rights

case. See Miller v. Carson, 628 F.2d 346, 348-49 (5th Cir.1980).4 The district court has wide

discretion in exercising its judgment on determining an appropriate fee award. Norman v. Housing

Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir.1988). Although the party seeking fees has

the burden of supplying the court with detailed evidence from which the court can determine a

reasonable fee, where that party presents inadequate documentation the court may determine a

reasonable award based on its own experience. Norman, 836 F.2d at 1303. The court may also rely

on affidavits in the record. Norman, 836 F.2d at 1303. In the present case, the district court based

its award of fees on

all three motions for attorney's fees and the supporting documents filed with them, all

pleadings and other documents filed with the court, all hearing and conferences before this

court, as well as information regarding all appeals, petitions, briefs, and motions filed with

both the Eleventh Circuit and the Supreme Court on [appellants'] behalf.

Mills v. Freeman, No. 11946-WCO, slip op. at 33 (N.D.Ga. Jan. 20, 1994). In addition, the court

articulated the reasons for its decision and showed its calculations, allowing for a meaningful review

of its judgment. See Norman, 836 F.2d at 1304 (district court's order must allow for a meaningful

review when the court uses its own expertise to award appropriate attorney's fees). We conclude

that the district court did not abuse its discretion in determining the amount to which appellants were

entitled for their monitoring activities.

 Finally, we address the issue of whether appellants should have been awarded attorney's fees

for their work in appealing the June 1988 order of the district court granting in part and denying in

part the DCSS's attainment of unitary status. It is long established in this circuit that this court has
the discretion to award attorney's fees and costs for the work expended before it. See Davis v.

Roadway Express, Inc., 590 F.2d 140, 143 (5th Cir.1979) (this court has the discretion to award

costs and fees for appellate work), aff'd on other grounds, 621 F.2d 775 (1980); Universal

Amusement Co. v. Vance, 587 F.2d 159, 172-73 (5th Cir.1978) (same), aff'd, 445 U.S. 308, 100 S.Ct.

1156, 63 L.Ed.2d 413 (1980); Panior v. Iberville Parish Sch. Bd., 543 F.2d 1117, 1120 (5th

Cir.1976) (same). In Davidson v. City of Avon Park, 848 F.2d 172, 173 (11th Cir.1988), we held

that a district court is "not authorized, by local rule or otherwise, to control the filing time or

assessment of attorney's fees for services rendered on appeal." If a party wishes to obtain fees on

appeal, he or she must file a petition with the clerk of this circuit within fourteen days of the

issuance of the opinion of this court. Davidson, 848 F.2d at 174 n. 4.

 In the present case, this court initially awarded appellants attorney's fees for their work

appealing the June 1988 order. The Supreme Court, however, reversed the decision underlying that

award. Freeman, 503 U.S. at 490, 112 S.Ct. at 1445. Therefore, this court's previous order granting

fees to appellants cannot be the basis for any subsequent fee award. See Lattimore, 868 F.2d at 440

(court rejected appellant's argument that appellee should not receive attorneys' fees because the

appellee was not the original prevailing party in a previous appeal, which the en banc court later

vacated); cf. Furman v. Cirrito, 782 F.2d 353, 355 (2d Cir.1986) (when the Supreme Court reverses

a circuit court's order that included an award of costs to the then-successful appellee, any costs

previously awarded are automatically vacated). After the Supreme Court's decision in Freeman,

however, this court affirmed the June 1988 order and remanded to the district court to consider

faculty and staff assignments, resource allocation, quality of education and the good faith

commitment of the school district. Pitts II, 979 F.2d at 1473. At this time, appellants did prevail,

in part, for the purposes of their appeal of the June 1988 order. See Furman, 782 F.2d at 355 ("

"Prevailing party' has been variously interpreted to include an appellant who has had his [or her]

case remanded to [the] district court...."). Appellants therefore had fourteen days from the issuance

of this court's order on December 7, 1992, remanding the case to the district court, to file a petition

with this court for attorney's fees for their appellate work. Because appellants failed to file such a
 5

The district court erred in concluding that because this court did not award appellants costs

pursuant to rule 39, the court did not have the authority to award fees pursuant to section 1988. 

The award of costs pursuant to rule 39 is "separate and distinct from and totally unrelated to an

award of attorney's fees pursuant to the directions of [section] 1988." Kelley v. Metropolitan

County Bd. of Educ., 773 F.2d 677, 681-82 (6th Cir.1985) (citing Robinson v. Kimbrough, 652

F.2d 458, 463 (5th Cir. Aug.1981)), cert. denied, 474 U.S. 1083, 106 S.Ct. 853, 88 L.Ed.2d 893

(1986); see also Lattimore, 868 F.2d at 440 n. 6 (rejecting appellant's argument that this court's

mandate requiring each party to bear its own costs on appeal precludes recovery of attorneys'

fees for appellate representation pursuant to 42 U.S.C. § 2000e-5(k)). 

petition, and thus this court did not award attorney's fees, the district court did not have the authority

to award appellants appellate fees.5

V. CONCLUSION

For the foregoing reasons, we find that appellants were not prevailing parties for the purposes

of the intervention issue. In addition, the district court did not abuse its discretion in its

determination of fees for the monitoring efforts of appellants. Finally, we conclude that the district

court did not have the authority to award attorney's fees for appellate work because appellants did

not timely file a petition in this court for the work accomplished on the appeal of the June 1988 order

of the district court. Accordingly, we affirm the district court's judgment.

AFFIRMED.