Memphis City Schools Board of Education v. Northcross Brief in Opposition to Certiorari

    No. 88-64

I n  th e

&Kpvm? ©mart of %  Initpft £>tate
October T erm, 1988

State of Missouri, et al.,
Petitioners, 

vs.

K alima J enkins, et al., 
and

School, D istrict of K ansas City, Missouri,
Respondents.

on  petition  for w rit  of certiorari to t h e  u n ited  states 
court of appeals for t h e  eig h th  circuit

BRIEF OF RESPONDENTS KALIMA JENKINS, et al. 
IN OPPOSITION TO THE PETITION

Jay T opkis
P aul, W eiss, R ifkind,

W harton & Garrison 
1285 Avenue o f the Americas 
New York, New York 10019 
(212) 373-3000

J ulius L eV onne Chambers
Charles Stephen R alston*

99 Hudson Street
New York, New York 10013
(212) 219-1900

A rthur A. Benson, II
911 Main Street— Suite 1430 
Kansas City, Missouri 64105 
(816) 842-7603

R ussell E. L ovell, II 
3111 40th Place 
Des Moines, Iowa 50310 
(515) 271-2952

Attorneys for Respondents
^Counsel o f Record



i

QUESTION PRESENTED
Does the Eleventh Amendment bar the 

adjustment of an award of attorneys' fees 
against a state under 42 U.S.C. § 1988 to 
compensate for delay in payment, when it 
is reversible error under state law for a 
trial court not to include an award of 
prejudgment interest against state 
agencies when fees are awarded?



TABLE OF CONTENTS
11

Page
Question Presented ................ i
STATEMENT OF THE CASE.............. 3

1. Litigation on the Merits. . 3
2. The Fee Applications. . . .  6
3. The District Court'sDecision. ................  9
4. The Decision of the

Court of Appeals....... 10
ARGUMENT

I. NO ELEVENTH AMENDMENT
ISSUE IS RAISED SINCE 
MISSOURI LAW MANDATES 
THE AWARD OF PREJUDGMENT 
INTEREST AGAINST A STATE AGENCY..................11

II. THE DECISION BELOW IS
CLEARLY CORRECT ......... 17

III. THE AMOUNT OF FEESAPPROPRIATE IN THIS CASE WAS A MATTER WITHIN THE SOUND DISCRETION OF THE 
DISTRICT COURT . . . .  23

CONCLUSION 29



Ill
TABLE OF AUTHORITIES

Page
Cases:
Bernard McMenamy Contractors, Inc. 

v. Missouri State Highway 
Commission, 582 S.W.2d 305 
(Mo. App. 1979) .    15

Blanchard v. Bergeron, 831 F.2d 563(5th Cir. 1987).............. 28
Brown v. Board of Education, 347 U.S.483 (1954).................. 3
Cranford Co. v. City of New York,38 F.2d 52 (2d Cir. 1930) . . .  12
Denton Construction Co. v. Missouri 

State Highway Commission, 454
S.W.2d 44, 60 (Mo. 1970) 13, 15, 16

Garrett v. Citizens Saving Ass'n,
636 S.W. 2d 104 (Mo. App.
1982)..................... 13, 14

Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271 
(1949)....................... 26

Hensley v. Eckerhart, 461 U.S. 424(1983) 7, 9, 10, 20, 23, 24, 26, 27
Hutto v. Finney, 437 U.S. 678 (1978) 20
Jenkins v. Missouri, 807 F.2d 657 (8th 
Cir. 1986)fen banc), cert, denied.484 U.S. __ , 98 L.Ed.2d

34 (1987) 6,11



iv

Jenkins v. Missouri, ___ F.2d ____(8th Cir. Nos. 86-1934; 86-2537 87-1749; 87-2299; 87-2300; 87
August 19, 1988) ............

Knight v. DeMarea, 670 S.W.2d 59
(Mo. App. 1984) ..............

Laughlin v. Boatmen's National
Bank of St. Louis, 189 S.W.2d 974 (Mo. 1945) ...............

Library of Congress v. Shaw, 478 U.S 
310 (1986) ..................

Loeffler v. Frank, 486 U.S.__,
100 L.Ed.2d 549 (1988) . . . .

Moore v. City of Des Moines, 766 
F.2d 343 (8th Cir. 1985), cert, denied. 474 U.S.
1060 (1986) ..................

Pennsylvania v. Delaware Valley
Citizens Council, 483 U.S. ___,
97 L.Ed.2d 585 (1987) . . .  14

Rogers v. Okin, 821 F.2d 22 (1stCir. 1987) ..................
St. Joseph Light & Power Co. v.

Zurich Ins. Co., 698 F.2d 1351 (8th Cir. 1983) .............
Slay Warehouse Co., Inc. v. Re: 

Insurance Co., 480 F.2d 214 (8th Cir. 1974) ..............
Steppelman v. State Highway Comm Missouri, 650 S.W.2d 343 (Mo. App. 1983) .............

2588 , 
6

15

14

18

28

20

17

13
iance
13

n of
16



V

United States v. Johnson, 268 U.S.
220 (1925)................... 26

United States v. North Carolina,
136 U.S. 211 (1890).......... 12

Vaughns v. Board of Education ofPrince Georges County, 598 F.
Supp. 1262 (D. Md. 1984), aff'd. 770 F.2d 1244 (4th 
Cir. 1985).................. 25

Virginia v. West Virginia, 238 U.S.
202 (1915)   12

Whalen, Murphy, Reid v. Estate of Roberts, 711 S.W.2d 587 
(Mo. App. 1983).............. 14

Statutes:
28 U.S.C. § 2516..................19
42 U.S.C. § 1988 .......... 14, 17, 20
Missouri Statutes: § 408.020.................. 12, 14, 15, 16
Missouri Statutes: § 408.040 . . .  16
Other Authorities:
Stern, Gressman & Shapiro, Supreme Court Practice, 198 (6th Ed.) . . . .  22



No. 88-64

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1988

STATE OF MISSOURI, et al.,
Petitioners.

vs.
KALIMA JENKINS, et al., 

and
SCHOOL DISTRICT OF KANSAS CITY, 

MISSOURI,
Respondents.

On Petition For Writ Of Certiorari To The United States Court Of Appeals 
For The Eighth Circuit

BRIEF OF RESPONDENTS KALIMA JENKINS, ET AL. 
IN OPPOSITION TO THE PETITION

Respondents Kalima Jenkins, et al., 
urge that the petition for a writ of 
certiorari be denied on a number of 
grounds: (1) the issue of whether the
Eleventh Amendment bars compensation for



2
delay in payment in calculating an 
attorneys' fee against a state is not
raised by the present case since Missouri, 
by statute, mandates the award of 
prejudgment interest on attorneys' fees 
awards against state governmental
agencies; (2) the issue is not an
important one, since it is clear that 
there is no bar under the Eleventh
Amendment to the award of fully 
compensatory attorneys' fees by a federal 
court against a state agency; (3) the
other issues relating to the amount of 
fees awarded by the district court and 
upheld by the court of appeals are not of 
importance, involve findings of fact that 
are not clearly erroneous but are fully 
supported by the record, and involve the 
application of established law to matters 
within the sound discretion of the
district court.



3

STATEMENT OF THE CASE
The statement of the case in the 

petition does not adequately describe the 
outcome of the litigation on the merits 
nor the lengthy and thorough litigation of 
the fees application in the district 
court.

ii__The Litigation on the Merits.
This case began as a challenge by the 

Kansas City, Missouri School District 
(KCMSD) against the State of Missouri for 
the defendant's failure to correct the 
severe problems of segregation and racial 
discrimination that had their origins in 
the statewide de jure school segregation 
that existed prior to this Court's 
decision in Brown v. Board of Education. 
347 U.S. 483 (1954). Through a succession 
of orders of the district court, 
plaintiffs representing black school



4
children in the KCMSD were intervened, the 
KCMSD was realigned as a party defendant, 
and a series of suburban school districts 
were joined as parties defendant since the 
relief sought included, inter alia, 
interdistrict integration of school 
facilities.

Throughout the course of the 
litigation, the KCMSD admitted its 
historic responsibility for some of the 
remaining segregation in the system and, 
while nominally a defendant, in fact 
supported the plaintiffs during the 
litigation. The state, on the other hand, 
battled to the bitter end against any 
finding of liability and responsibility 
for providing any relief. After a lengthy 
trial of plaintiffs' case, the district 
court first found in favor of the suburban 
schoo l districts as to their 
responsibility for the segregation of



5
KCMSD and therefore dismissed them from 
the case. The state persisted in its 
defense necessitating further proceedings 
on the merits as well as on relief.

Subsequently, the district court 
issued its decision holding the state 
liable for creating and maintaining, 
through its failure to carry out its duty 
to disestablish, the segregation and 
racial isolation of the KCMSD. The court 
found that state policies with regard to 
segregated schools within districts, the 
exclusion of black schools from suburban 
districts and their isolation in Kansas 
City, underfunding of black schools, 
discrimination in housing, and other 
matters, all were directly responsible for 
the creation of KCMSD as a black school 
district. It ordered further proceedings 
to determine appropriate relief and 
subsequently entered a series of remedial



6
orders that require the state and the 
KCMSD to spend a total to date of more 
than $400,000,000 in capital improvements, 
remedial programs, magnet schools, etc.^

2. The Fee Applications.
Following the decision finding 

liability on the part of the state, 
plaintiffs filed lengthy fee applications 
on behalf of private local counsel, Arthur 
Benson, as well as counsel provided by the 
NAACP Legal Defense and Educational Fund, 
Inc. The applications meticulously
detailed all of the time spent by 
attorneys, paralegals, and law clerks, as 
well as all expenditures. The
applications then excluded time that was 
allocable to the claims relating to the

-̂The Eight Circuit has affirmed the 
district court's remedial orders in nearly
all respects. Jenkins v. Missouri, ___F.2d ___  (8th Cir. Nos. 86-1934; 86-2537;
87-1749; 87-2299; 87-2300; 87-2588, August 
19, 1988).



7
issues and defendants concerning which 
plaintiffs had not prevailed, pursuant to 
this Court's decision in Hensley v. 
Eckerhart, 461 U.S. 424 (1983).2 All 
other time, it was urged, was either 
clearly allocable to claims upon which 
plaintiffs had prevailed or was spent on 
tasks regarding which prevailing and non­
prevailing claims were interwoven and 
interrelated. The state filed lengthy 
objections and took the position that not 
only should clearly allocable time be 
excluded, but that then an arbitrary fifty 
percent of all remaining time be excluded 
on the assumption that that amount of time 
was probably spent on non-prevailing

2Benson cut 2017 attorney hours and 2521 paralegal hours from his claim. The 
total Benson reduction was approximately 21% of Benson's requested lodestar. The 
LDF attorneys eliminated 1611 attorney 
hours, 319 recent law graduate hours, 920 
paralegal hours, and 3286 law clerk hours. 
The total LDF reduction was approximately 16% of LDF's lodestar request.



8
issues. Although the state made some 
generalized objections to specific entries 
and to the requested hourly rates, it 
conducted no discovery.

The district court held a one-day 
hearing on the fee applications. At the 
hearing, the plaintiffs put on two expert 
witnesses, William Taylor, Esq., an 
expert in the area of school
desegregation litigation, and Mr. Robert 
Weil, an expert in the area of the 
economics of legal practice. Mr. Taylor 
testified concerning the interrelatedness 
of the issues litigated in the case and 
the excellent results obtained. Mr. Weil 
testified concerning appropriate hourly 
rates for the lawyers, paralegals, and law 
clerks, and concerning the absolute 
necessity for compensating for delay in 
payment in order to be able to attract 
attorneys to take on this type of case.



9
Further testimony was given by a 
prominent local Kansas City attorney 
concerning hourly rates and the 
undesirability of a civil rights case of 
the magnitude of the present one.

The state put on no testimony of its 
own, except to call Mr. Arthur Benson, 
plaintiffs' local counsel, to the stand to 
ask a few questions about his application.

3. The District Court's Decision.
Following the hearing, both sides 

submitted proposed findings of fact and 
were give an opportunity to supplement the 
record. The district court entered its 
order accompanied with detailed findings 
of fact regarding the reasonableness of 
the hours requested and the hourly rates. 
With regard to Hensley reductions, the 
court found that the specific allocations 
made by plaintiffs were accurate and the
other work was so interrelated between



10
further reductions were not appropriate. 
The court made similar findings with 
regard to expenses as well as specific 
findings regarding hourly rates of 
attorneys, paralegals, and law clerks.
4. The Decision of the Court of Appeals.

On appeal, the state pursued its 
various arguments relating to proper 
Hensley reductions in view of the 
decisions of the district court and the 
court of appeals on the merits of the 
case. The court of appeals upheld the 
district court in all respects, holding 
that its findings were fully supported by 
the record. The full court declined to 
hear the case en banc, thereby implicitly 
rejecting the state's argument that the 
panel decision on attorneys' fees was in 
any way inconsistent with the en banc 
decision on the merits rendered just one 
year before. Jenkins v. Missouri. 807



11
year before. Jenkins v. Missouri. 807 
F.2d 657 (8th Cir. 1986) fen banc) . cert.
denied. 484 U.S. ____ , 98 L.Ed.2d 34
(1987), Appendix, p. A50. Judge John 
Gibson, the author of the en banc decision 
on the merits was also the author of the 
panel decision on attorneys' fees.

ARGUMENT
I.

NO ELEVENTH AMENDMENT ISSUE IS RAISED 
SINCE MISSOURI LAW MANDATES THE AWARD OF 

PREJUDGMENT INTEREST AGAINST A STATE AGENCY
As we demonstrate in Part II, infra, 

the Eleventh Amendment does not bar a 
f e d e r a l  court from including 
compensation for delay in payment when it 
awards attorneys' fees against a state. 
However, this issue would never be reached 
in this case because of the well 
established rule that even in 
circumstances where there is a general



12
prohibition against the award of interest 
against a state, that prohibition 
disappears if state law itself permits 
such an award. See United States v. 
North Carolina, 136 U.S. 211 (1890);
Virginia v. West Virginia. 238 U.S. 202 
(1915) ; Cranford Co. v. City of New York. 
38 F.2d 52 (2d Cir. 1930). Since Missouri 
law not only allows but mandates awards of 
interest against state governmental 
agencies, including prejudgment interest 
on fees claims, the inclusion of interest 
in the fees awarded by the federal court 
was consistent with Missouri law; as a 
result, the Eleventh Amendment issue 
sought to be presented here simply does 
not arise.

Section 408.020 of the Missouri 
Statutes3 has been construed by the

3Section 408.020 provides:Creditors shall be allowed to receive interest at the rate of nine



13
Missouri Supreme Court to require trial 
courts to award prejudgment interest 
whenever the amount due is liquidated, or, 
although not strictly liquidated, is 
readily ascertainable by reference to 
recognized standards. Denton Construction 
Co. v. Missouri State Highway Commission. 
454 S. W. 2d 44, 60 (Mo. 1970); St. Joseph 
Light & Power Co. v. Zurich Ins. Co.. 698 
F.2d 1351, 1355 (8th Cir. 1983); see 
also, Slay Warehouse Co., Inc, v. Reliance 
Insurance Co.. 480 F.2d 214, 215 (8th Cir. 
1974)("[T]he award of prejudgment interest 
in a case in which Section 408.020 is

percent per annum, when no other rate is 
agreed upon, for all moneys after they 
become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; 
for money recovered for the use of another, and retained without the owner's knowledge of the receipt, and for all other money due or to become due for the 
forbearance of payment whereof an express 
promise to pay interest has been made.



14
applicable is not a matter of court 
discretion; it is compelled.") It is 
readily evident from a substantial body of 
Missouri case law that attorneys' fees 
awards pursuant to 42 U.S.C. § 1988, based 
as they are on the lodestar method of 
calculation, are readily ascertainable 
within the meaning of § 408.020 and 
therefore must include an award of 
prejudgment interest.

Prejudgment interest under § 408.020 
has been awarded in quantum meruit actions 
on unliquidated claims for legal services 
that were measured and determined by the 
standard of reasonable value of services 
rendered. Laughlin v. Boatmen's National 
Bank of St. Louis. 189 S.W.2d 974 (Mo. 
1945) ; Garrett v. Citizens Saving Ass'n. 
636 S.W. 2d 104, 112 (Mo. App. 1982). 
See also, Whalen. Murphy, Reid v. Estate 
of Roberts. 711 S.W.2d 587, 590 (Mo. App.



15
1983), holding that the trial court erred 
in not awarding prejudgment interest on an 
attorney's fees claim and that plaintiff's 
failure to "receive an award for the full 
amount of the claim does not bar the right 
to receive pre-judgment interest on the 
amount the trial court actually awarded." 
Thus, the fact that the defendant denies 
liability or challenges the amount claimed 
will not relieve the defendant of his duty 
to pay the pre judgment interest of the 
award found to be due. Knight v. DeMarea. 
670 S.W.2d 59 (Mo. App. 1984); St. Joseph 
Light & Power Co. v. Zurich Ins. Co. . 
supra.

Finally, the Missouri courts have 
also made clear that § 408.020 is fully 
applicable in litigation involving the 
State of Missouri as a defendant. Denton 
Construction, supra. Bernard McMenamy 
Contractors, Inc., v. Missouri State



16
Highway Commission, 582 S.W.2d 305 (Mo. 
App. 1979). Indeed, the state defendants' 
argument that the prejudgment interest 
provision of § 408.020 did not authorize 
awards against the state was expressly- 
rejected in Steppelman v. State Highway 
Comm'n of Missouri. 650 S.W.2d 343, 345 
(Mo. App. 1983), citing Denton 
Construction and McMenamv Contractors.4

Since under Missouri law the award of 
prejudgment interest is permissible 
against the state or one of its agencies, 
and would be mandated by Missouri Statute 
§ 408.020 with regard to plaintiffs' 
attorneys' fees claim in the instant case, 
there can be no bar under the Eleventh 
Amendment or otherwise to such an award by

4Section 408.040 of the Missouri Statutes, which provides for interest on judgments or orders of any Court, has also 
been interpreted to permit the award of 
post-judgment interest against the state 
of Missouri. Steppelman. supra at 345.



17
a federal court. Thus, whatever may be 
the resolution of the issue posed by 
Rogers v. Okin. 821 F.2d 22 (1st Cir.
1987) , it simply does not arise in the
present case and should not be addressed
herein by the Court.

II.
THE DECISION BELOW IS CLEARLY CORRECT

The Eighth Circuit correctly rejected 
the view of the First Circuit in Rogers v. 
Okin, supra, that this Court's decision in 
Library of Congress v. Shaw. 478 U.S. 310 
(1986) somehow barred the use of current 
rates to compensate attorneys under 42 
U.S.C. § 1988 when fees are awarded
against a state agency. As we will 
explain below, the First Circuit's 
decision is based on a fundamental 
misreading of Shaw and the Eleventh 
Amendment and is not likely to be 
followed by any other court. Moreover,



18
the limited nature of the Shaw rule, as
explicated by this Court in the recent
decision of Loeffler v. Frank, 486 U.S.
100 L.Ed.2d 549 ( 1988 ) , and the
unlikelihood that the issue will arise in 
other cases, make the issue presented 
unimportant. Respondents therefore urge 
that the Court should deny certiorari and 
decline to review the issue unless and 
until a widespread conflict among the 
courts of appeals becomes evident.

As explained in Lpeffler, the Shaw 
rule derives from an ancient doctrine 
applicable only to federal agencies; that 
is, the federal government's sovereign 
immunity prohibits an award of interest 
against it unless Congress so provides
either by a specific statute dealing with
interest or by a general waiver of
sovereign immunity with regard to a
particular agency of the government. This



19
doctrine has been codified in 28 U.S.C. § 
2516 and, therefore, is binding on the 
courts.

The Eleventh Amendment, the basis of 
the First Circuit's decision in Rogers. on 
the other hand, is not a general statement 
of sovereign immunity. Rather, as the 
Eighth Circuit correctly held in the 
present case, it is a limitation on the 
power of the federal courts to hear 
certain types of actions against states 
unless Congress provides otherwise or the 
state itself acquiesces in the 
jurisdiction of the federal courts 
expressly or by implication. Once, 
however, relief is properly awardable 
against a state, there are no general 
limitations on such relief that stem from 
any residual sovereign immunity that the 
state may claim.

Thus, as again the Eighth Circuit



20
properly held, the governing decision here 
is Hutto v. Finnev. 437 U.S. 678 (1978), 
which held that fees could be awarded 
against a state pursuant to § 1988 despite 
the Eleventh Amendment. Hutto held that 
§ 1988 was enacted pursuant to Congress' 
power to enact legislation to enforce the 
Fourteenth Amendment; therefore, that 
power overrode the Eleventh Amendment's 
limitation on the power of the federal 
courts.

Hutto held, in the alternative, that 
a reasonable attorney's fee in a suit 
against the state for prospective relief 
was itself prospective relief not barred 
by the Eleventh Amendment. Id. at 695. 
This latter ground was completely 
overlooked by the First Circuit in Rogers.

Once the court below had the power to 
assess fees against the defendant state at 
all, it had power to assess a fee that was



21
fully compensatory. As Loeffler makes 
clear,5 an adjustment for delay in payment 
is part of a fully compensatory fee, but 
was not awardable against a federal 
government agency solely because of the 
sovereign immunity of the federal 
government itself.

Reading Rogers one is left with the 
firm impression that the parties viewed 
the Eleventh Amendment issue as an 
afterthought in an appellate battle that 
concentrated on issues raised by Henslev 
v. Eckerhart. 461 U.S. 424 (1983).
Respondents submit there is reason to 
doubt whether the First Circuit's 
consideration of the Eleventh Amendment 
issue in Rogers was guided by the 
thorough briefing warranted by its

5See 100 L.Ed. 2d at 558, n. 5. See 
also, Pennsylvania v. Delaware Valley Citizens Council. 483 U.S. , 97 l .Ed 2d 585, 592, 604-05 (1987).



22
complexity. First, the issue was neither 
raised in nor considered by the district 
court, since this Court's decision in Shaw 
was issued after the district court's fee 
award. 821 F.2d at 28. Second, the First 
Circuit itself expressly noted that the 
Eleventh Amendment issue "was allowed only 
five pages in [the Commonwealth's] 98-page 
main brief." 821 F.2d at 28. Respondents 
submit that the issue raised by 
petitioners was correctly resolved by the 
Eighth Circuit in the instant case by 
routine application of Eleventh Amendment
case law, and that therefore certiorari
should be denied until more than two
courts of appeal have considered the
guestion, since it is likely the seeming 
conflict may be resolved as a result of 
future cases in the courts of appeals. 
See Stern, Gressman & Shapiro, Supreme 
Court Practice 198, 200 (6th Ed.).



23
THE AMOUNT OF FEES APPROPRIATE IN THIS CASE 
WAS A MATTER WITHIN THE SOUND DISCRETION 

OF THE DISTRICT COURT.
Despite the efforts of the

petitioners, the remaining issues
presented by the petition for a writ of 
certiorari are simply not appropriate for 
review by this Court. As demonstrated by 
the decisions below and by the Statement 
of the Case above, there were no novel 
issues of law presented by the fee 
applications here. The problem faced by 
the district court was the correct
application of the law as established by 
this Court in Hensley v. Eckerhart. 461
U.S. 424 (1983) to a particular set of 
facts unique to this case. Indeed, the 
fees hearing was postponed until the 
Eighth Circuit's en banc decision on the 
merits had been reached, in order that the 
district court's Hensley determinations 
would be guided by the appeals court's



24
would be guided by the appeals court's 
decision. The parties^ere able to make 
as complete a factual record as they 
desired, argued their positions as to the 
proper application of Hensley. were 
provided a hearing by the district court, 
and submitted detailed proposed findings. 
The district court, after these exhaustive 
submissions, reviewed the record and made 
its findings of fact based not only on the 
fee applications and the evidence adduced 
in relation thereto, but on its own 
intimate knowledge of the litigation as a 
whole. Its resolutions of the myriad 
factual questions thus presented, which 
were upheld in their entirety by the court 
of appeals, simply do not merit the 
exercise of this Court's discretionary 
review.

In affirming the district court's 
application of Hensley, a resolution that



25
adopted the 15 to 20 percent lodestar 
reduction proposed by plaintiffs, the 
Eighth Circuit was cognizant that it was 
this same district court that had ruled 
against plaintiffs on their inter-district 
claims against the suburban districts and 
the federal defendants and thereby 
necessitated the application of Hensley in 
the first place. Without question, the 
district court had intimate familiarity 
with the plaintiffs' successful and 
unsuccessful claims, the interrelatedness 
of the claims, and the results obtained.6

Petitioners also cite Vaughns v. 
Board of Education of Prince Georges 
County. 598 F.Supp. 1262 (D. Md. 1984),
aff'd. 770 F.2d 1244 (4th Cir. 1985), for
the proposition that expenses incurred on 
unsuccessful claims must be excluded per 
Hensley. Petitioners, however, do not 
claim that Vaughns represents a conflict among the circuits, as they indeed cannot, 
for the question of a percentage reduction of plaintiffs' expenses based on Hensley was not appealed to the Fourth Circuit. 
Furthermore, although the district court in Vaughns did apply the percentage 
reduction used on the fees claim to



26
Of course, this Court does not grant 

certiorari to review evidence and discuss 
specific facts. United States v. Johnson, 
268 U.S. 220, 227 (1925). Although, as 
petitioner notes, the Eighth Circuit did 
comment that it "might not have arrived at 
the same result as the district court" had 
it fixed the initial percentage reduction, 
838 F.2d at 264, it concluded the district 
court's Hensley findings were not clearly 
erroneous. Findings of fact made by the 
district court and concurred in by the 
court of appeals are subject to the "two 
court" rule, Graver Tank & Mfcr. Co. v. 
Linde Air Products Co.. 336 U.S. 271, 275 
(1949),* 7 the application of which is made

plaintiffs' expenses claim, the district 
court implied it retained discretion to 
conclude otherwise, stating only that "on 
a rough justice basis" the same percentage "is appropriate." Id. at 1290.

7"A court of law, such as this Court 
is, rather than a court for correction of errors in fact finding, cannot undertake



27

all the more compelling in the instant 
case because each, of ^he judges on the 
panel that decided the fees appeal 
participated in the en banc decision on 
the merits and, most importantly, the 
judge who wrote the en banc decision also 
wrote the panel decision on fees.

In Hensley this Court expressed the 
strong view that fee applications should 
not give rise to extended independent 
litigation (461 U.S. at 437); a number of 
courts of appeals, including the Eighth 
Circuit, have repeatedly admonished that 
parties should not routinely seek review 
of the manner in which a district court 
has exercised its sound discretion in 
awarding fees, in the absence of 
compelling indications that that

to review concurrent findings of fact by two courts below in the absence of a very 
obvious and exceptional showing of error." 336 U.S. at 275.



28
discretion has been abused. E.g.. Moore 
v. City of Des Moines. #766 F.2d 343, 345- 
46 (8th Cir. 1985), cert, denied. 474 U.S. 
1060 (1986). Nevertheless, petitioner has 
continued to pursue just such an appeal; 
to grant certiorari on the issues thus 
presented, would encourage other 
litigants, plaintiffs and defendants 
alike, to appeal fee decisions they are 
dissatisfied with and discourage the 
prompt compromise and reasonable 
resolution of fee claims.8

Petitioners noted that this Court has granted review in Blanchard v. Bergeron. 831 F.2d 563 (5th Cir. 1987), 
review granted, No. 87-1485, 56 U.S.L.W.
3873 (June 28, 1988), . and assert that
Blanchard raises a "similar issue" to 
petitioners' contention that § 1988 does
not permit the award of fees for 
paralegals and law clerks at market rates. 
Respondents would observe that the 
question of paralegal hourly rates, 
although raised, was not addressed by the 
Fifth Circuit in Blanchard. That court 
only held that a contingency fee agreement 
between plaintiff and his counsel would 
operate as a cap on the fee which could be 
recovered from the defendant. Because the



29

CONCLUSION
For the foregoing reasons, the 

petition for a writ of certiorari should 
be denied.

Respectfully submitted,

JAY TOPKIS
PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Ave. of the Americas New York, N.Y. 10019 (212) 373-3000

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 99 Hudson Street 
New York, N.Y. 10013 (212) 219-1900

fee cap imposed by the contingency 
agreement was apparently substantially below the lodestar, the Fifth Circuit 
declined any discussion of paralegal and law clerk hourly rates, stating only that 
such hours "would also naturally be included within the contingency fee." id. 
at 564. Even if this Court reverses the 
Fifth Circuit's holding on the fee cap issue, it would seem unlikely that it 
would decide the paralegal rates issue.



30
ARTHUR A. BENSON, II 
911 Main Street 
Suite 1430
Kansas City, Mo. 64105 (816) 842-7603

RUSSELL E. LOVELL, II 
3111 40th Place Des Moines, Iowa 50310 
(515) 271-2952
Attorneys for Respondents
*Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177