.pdf

    No. 91-1210

In The

Supreme Court of tije Bntteb iz>tate3
October Term, 1991

Bill Clinton, Governor of Arkansas, et a l ,
Appellants,

v.

M.C. Jeffers, et a l ,
Appellees.

On Appeal from the United States District Court 
for the Eastern District of Arkansas

MOTION TO DISMISS

P.A. Hollingsworth 
415 Main Street 
Little Rock, AR 72201 
(501) 374-3420

Julius LeVonne Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Penda D. Hair*
1275 K Street, N.W. 
Suite 301
Washington, DC 20005 
(202) 682-1300

*Counsel of Record



1

QUESTION PRESENTED

Whether the Court has jurisdiction over an appeal from a 

decision of a three-judge District Court awarding attorney’s 

fees and costs to the prevailing plaintiffs in a voting rights 

case, where the jurisdictional statute authorizes a direct 

appeal to the Supreme Court only "from an order granting 

or denying, after notice and hearing, an interlocutory or 

permanent injunction," 28 U.S.C. § 1253 (1988).



11

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED . 

TABLE OF AUTHORITIES in

THE COURT LACKS JURISDICTION OVER THIS 
APPEAL . . . . . . . . . . ___ _____ . . . . . . . . . . . . . . . . .  7

CONCLUSION 13



TABLE OF AUTHORITIES

CASES PAGE

Clinton v. Jeffers, 111 S. Ct. 1096 (1991) . . . . ................. . 2

Clinton v. Jeffers, 111 S. Ct. 662 (1991), 
affirming 730 F Supp. 196 (E.D. Ark. 1989) 
and 756 F. Supp. 1195 (E.D. Ark. 1990) . . . . . . . . . . .  2

Clinton v. Jeffers, 740 F. Supp. 585 
(E.D. Ark. 1990), appeal dismissed,
111 S.Ct. 1096 (1991) ............................................. ........... 2

Gerstein v. Coe, 417 U.S. 279 (1974) ................................ 11

Goldstein v. Cox, 396 U.S. 471 (1970)...............................  10

Gonzalez v. Automatic Employees Credit Union,
419 U.S. 90 (1974) ...........................................................  11

Gunn v. Committee to End the War in Vietnam,
399 U.S. 383 (1970).................................................... 11, 12

Heckler v. Edwards, 465 U.S. 870 (1984) ...................... 10

League of Women Voters v. FCC,
751 F.2d 986 (9th Cir. 1985) ...................................... 10

Phillips v. United States,
312 U.S. 246 (1940)..................... ............. .. 10, 11

Rockefeller v. Catholic Medical Center,
397 U.S. 820 (1970).......................... ................................  11

iii



IV

CASES PAGE

Supreme Court of Virginia v. Consumers Union, 
446 U.S. 719 (1980) ........................ .. . . . . . . .  9

White v. New Hampshire Department of 
Employment Security, 455 U.S. 445 (1982) . . . . . . . . . .  8

STATUTES

28 U.S.C. § 1252 (1988) ................................... • • . . . . 9, 10

28 U.S.C. § 1253 (1988) . . . . . . . . . . . . . . . . . . . . . .  8,9, 
10, 11, 12

Act of June 27, 1988, 100th Cong., 2d Sess., Pub. 
100-352, § 1, 102 Stat. 662 . . . . .  --------. . . . .

L.
___ _ . 10

Voting Rights Act, 42 U.S.C. § 1973 (1988) . . . . . . . . . .  2

Voting Rights Act, 42 U.S.C. § 1973a(c)(1988) . . . . . . . .  2

MISCELLANEOUS

Sup. Ct. Rule 18.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Wright, Miller & Cooper Federal and Procedure: 
Jurisdiction 2d (1988) ..................................................... .. • 9



In The

Supreme Court of tfje llrnteb States*
October Term, 1991 

No. 91-1210

Bill Clinton, Governor of Arkansas, et a l,
Appellants,

v.

M.C. Jeffers, et a l,
Appellees.

On Appeal from the United States District 
Court for the Eastern District of Arkansas

MOTION TO DISMISS

Appellees move, pursuant to Sup. Ct. Rule 18.6, to 

dismiss the appeal on the ground that the Court lacks 

jurisdiction.'

Proceedings Below

This is the third appeal in this case. The first two 

appeals challenged decisions of the three-judge District 

Court ruling on the merits of plaintiffs’ voting rights claims.



2

Each of those appeals was taken from an order of the three- 

judge District Court granting an injunction. On the first 

appeal, No. 89-2008, the Court summarily affirmed the 

judgment of the three-judge District Court below. Clinton 

v. Jeffers, 111 S.Ct. 662 (1991), affirming 730 F. Supp. 196 

(E.D. Ark. 1989) and 756 F. Supp. 1195 (E.D. Ark. 1990).1 

The defendants withdrew the second appeal, No. 90-394, 

after appellees filed a Motion to Affirm. I l l  S.Ct. 1096 

(1991).2 This appeal involves a challenge to an order of the 

three-judge District Court, entered separately from the 

rulings on the merits and after the entry of injunctive relief

CThe lawsuit challenged the 1981 district lines for the Arkansas 
State House and Senate as violative of § 2 of the Voting Rights Act, 
42 U.S.C. § 1973 (1988), and the United States Constitution, and also 
contended that numerous instances of intentional discrimination by 
State and local officials justified placing Arkansas under pre-clearance 
procedures pursuant to § 3(c) of the Voting Rights Act, 42 U.S.C. 
§ 1973a(c) (1988). The District Court ruled in favor of plaintiffs on 
all but one of the legislative districts challenged under § 2 of the 
Voting Rights Act.

2The second appeal was from a subsequent opinion of the three- 
judge Court finding that a pattern of constitutional violations had 
occurred, which required placing the State under limited pre­
clearance procedures. 740 F. Supp. 585 (E.D. Ark. 1990).



3

became final, awarding attorneys’ fees to the plaintiffs- 

appellees.

In ruling on plaintiffs’ request for an award of 

attorneys’ fees,3 the District Court concluded that this was 

a "mammoth case" and "a Herculean effort," requiring 

expenditure of enormous amounts of time and resources. 

J.S. App. A-5, A-7. The Court explained that the case 

"involved a cloud of witnesses and a mountain of exhibits," 

that "[ejxtensive expert testimony was required," and that 

"[i]t took [the] Court three opinions to consider and decide 

the many issues raised." J.S. App. A-7.4 Despite the

3In that request, plaintiffs voluntarily excluded approximately 900 
hours of work performed on the litigation. J.S. App. A-6.

4The Court found that plaintiffs’ challenge included "numerous 
legislative districts, covering approximately one-third of Arkansas." 
J.S. App. A-5. The Court also pointed out that defendants 
themselves had "recognized the magnitude of the case," noting "that 
the remedy, for example, ‘involvefd] twenty-three of one hundred 
House districts and eight of thirty-five Senate districts [and] affect[ed] 
hundreds of thousands of voters in east and south Arkansas.’” J.S. 
App. A-7 (quoting Defendants’ Motion for a Stay of Judgment 
Pending Appeal, No. 89-2008 (U.S., filed March 12, 1990), at 6.)

The case was so large and complex that the "expertise, energy 
and resources" to litigate it were "simply not . . . available" in the 
State of Arkansas. J.S. App. A-5. Therefore, the Court awarded

(continued...)



4

enormity of the effort required, the District Court denied 

compensation for many of the hours devoted to the case by 

plaintiffs’ attorneys and awarded hourly rates that in many 

cases are significantly below those requested. J.S. App. A-6, 

A-8, A-9.

The District Court found that in order to be 

"reasonable," the statutory fee must be sufficient "to attract 

competent counsel for meritorious cases." J.S. App. A -ll. 

Therefore, the Court adjusted the lodestar upward by 50 

percent to compensate for the contingent nature of the fee 

arrangement.4 5

The Court relied on extensive, undisputed evidence 

submitted by plaintiffs demonstrating that the "market" of 

attorneys in Arkansas willing to undertake representation in

4(...continued)
plaintiffs’ out-of-town, co-lead counsel a rate that "may slightly exceed 
the local market rate for most top-notch lawyers." J.S. App. A-5.

’Defendants argue that "there was very little risk of loss for 
[appellees] in this case." J.S. at 6 n. 3. Defendants’ prior statements 
contradict this assertion. For example, even after plaintiffs prevailed 
in the District Court, defendants argued that "reversal is the most 
likely result on appeal." Defendants’ Motion for a Stay of Judgment 
Pending Appeal, No. 89-2008 (U.S., filed March 12, 1990), at 6.



5

racial discrimination cases is a crisis state.6 Because

6 A prominent Little Rock Attorney stated:

Virtually no attorneys in this area are willing to 
accept complex civil rights cases such as this one on 
a contingent fee basis since current awards to not 
provide a market incentive to attract competent 
counsel to do so. ... [I]n this district ... competent 
counsel have simply been forced by market pressures 
out of these cases and into more renumerative areas 
of practice.

It has been our experience that a number of 
attorneys in this geographic area who once were 
willing to accept civil rights cases on a contingent fee 
basis simply have found that it is economically 
impossible to survive in this manner.

* * *

It is my opinion that the fee awards in 
federal courts to prevailing plaintiffs in civil rights 
cases have been grossly inadequate to attract a 
sufficient number of competent counsel willing to 
take these cases so that prospective plaintiffs in 
these cases are able to secure counsel.

Decl. of R. Quiggle, Aug. 30, 1990, at 2-5 (HU 3, 6, 12). Similarly, 
Little Rock Attorney John Walker explained:

The willingness of attorneys as a group to 
accept civil rights cases is on a rapid decline. I 
regularly receive between five and ten calls per day 
from race discrimination victims who are in need of 
legal representation. In addition, each week my firm 
receives so many referrals of civil rights cases from 
other attorneys that we generally are unable to

(continued...)



6

adequate compensation for the risk inherent in a contingent 

fee case had not been consistently awarded in Arkansas, 

attorneys had fled this type of work. Plaintiffs’ evidence 

showed that the attorneys who remained in this field of 

practice could not survive financially without adequate 

compensation for risk.7 Plaintiffs’ evidence conclusively

6(...continued)
consult with most. The persons making referrals 
normally have nowhere else to send the prospective 
plaintiffs, and, in most cases, given the decline in 
attorneys accepting civil rights cases, I am unable to 
recommend another attorney. Of those prospective 
plaintiffs with whom I consult, I am forced to turn 
down many cases — even very solid claims. ...

* * * *

[Tjhere is presently no "market" for federal 
civil right cases, since federal judges in the past have 
simply decided the fee after the litigation was 
completed on an ad hoc basis. The only measure of 
"market" is the number of lawyers who will not 
accept the burdens of civil rights litigation, given this 
"market’s" experience with fees awarded when cases 
have been successful.

Walker Deck, August 1990, at 4, 8 (1111 6, 14).

’Plaintiffs’ co-lead attorney, P.A. Hollingsworth, stated: "My law 
firm is currently on the brink of financial disaster because civil rights 
cases have represented a substantial portion of my docket in the past 
few years." Supp. Deck of P.A. Hollingsworth, April 25, 1991, at 3, 
112.



7

demonstrated that without compensation for risk, victims of 

racial discrimination in Arkansas would not be able to find 

legal representation.8

The Court made explicit findings of fact that the 

plaintiffs in this case experienced actual difficulty in locating 

competent counsel and that the relevant market 

compensates contingency cases as a class by enhancing 

attorneys’ fees by two to five times the normal hourly billing 

rates. J.S. App. A-13. Even though the record more than 

justified the requested risk adjustment of 100 percent, the 

Court awarded only a 50 percent enhancement.

THE COURT LACKS JURISDICTION 
OVER THIS APPEAL

Defendants-appellants claim that the Court has 

jurisdiction under 28 U.S.C. § 1253. J.S. at 2. Defendants 

cite no other basis of jurisdiction and plaintiffs are aware of 

no other jurisdictional basis.

“The Lieutenant Governor of Arkansas, a prominent Arkansas 
attorney, stated: "Unless the market compensates for the economic 
risks of contingency fee cases, attorneys generally will not accept such 
cases." Decl. of Jim Guy Tucker, Aug. 30, 1990, at 2, H 5.



8

The provision on which defendants base jurisdiction 

reads in its entirety as follows:

Except as otherwise provided by law, any 
party may appeal to the Supreme Court from 
an order granting or denying, after notice and 
hearing, an interlocutory or permanent 
injunction in any civil action, suit or 
proceeding required by any Act of Congress 
to be heard and determined by a district court 
of three judges.

28 U.S.C. § 1253 (1988). This provision on its face does not 

apply to an order awarding attorneys’ fees and costs. An 

award of attorneys’ fees and costs is not an interlocutory or 

permanent injunction.9 The statute authorizes a direct 

appeal only from an order granting or denying an 

interlocutory or permanent injunction. Therefore, the 

statute does not provide jurisdiction over the order at issue 

in this appeal.

The Court has previously addressed the precise issue 

raised by this appeal and has unanimously concluded that

9The Court has observed that an award of attorneys’ fees is a 
collateral matter "uniquely separable from the cause of action to be 
proved at trial." White v. New Hampshire Dept, of Employment 
Security, 455 U.S. 445, 452 (1982).



9

there is no jurisdiction under 28 U.S.C. § 1253 over an 

independent appeal of an award of attorneys’ fees. In 

Supreme Court o f Virginia v. Consumers Union, 446 U.S. 719, 

737 n.16 (1980), the Court explained: "we would not have 

appellate jurisdiction under 28 USC § 1253 to decide the 

attorney’s fee question had it alone been appealed."10

Dismissal of this appeal for lack of jurisdiction is 

consistent with the concern previously expressed by the 

Court about the need to avoid mandatory jurisdiction over 

collateral matters, such as attorneys’ fees. In interpreting 28 

U.S.C. § 1252 (1988), a former basis of mandatory appellate 

jurisdiction, the Court stated: "[A] construction of § 1252 

that would require us to review collateral issues coming to 

us as independent matters . . . would undermine the

10In Supreme Court of Virginia, the Court took jurisdiction, under 
§ 1253, of an appeal from the imposition of an injunction and also of 
the simultaneous appeal from an award of attorneys’ fees. In finding 
jurisdiction over the attorneys’ fee question, the Court relied on the 
"whole case" doctrine. Under the "whole case" doctrine, if the appeal 
is from an order granting or denying an injunction, the Court may 
also decide other issues in the case that are presented at the same 
time. See Wright, Miller & Cooper, Federal Practice and Procedure: 
Jurisdiction 2d § 4040, at 157 & n.49 (1988).



10

effectiveness of the direct appeal provision. . . . [T]his 

Court would be required to give precedence to issues outside 

the congressional definition of public importance. We 

would, for example, be obliged to crowd our docket with 

appeals concerned solely with attorney’s fee awards or 

pendent claims arising under state law." Heckler v. Edwards, 

465 U.S. 870, 884-85 (1984).11

A long line of decisions holds that 28 U.S.C. § 1253 

is limited to appeals from the grant or denial of an 

injunction. Attempted appeals from other types of orders 

must be dismissed for lack of jurisdiction. "Jurisdiction 

under the Three-Judge Court Act is to be narrowly 

construed since ‘any loose construction of the requirements 

of [the Act] would defeat the purpose of Congress . . .  to 

keep within narrow confines our appellate docket.’" 

Goldstein v. Cox, 396 U.S. 471, 478 (1970) (quoting Phillips

“ Section 1252 was repealed in 1988. Act of June 27, 1988, 100th 
Cong., 2d Sess., Pub.L. 100-352, § 1, 102 Stat. 662. Prior to the 
repeal of § 1252, the Court of Appeals for the Ninth Circuit ruled 
that a decision awarding or denying attorneys’ fees is not directly 
appealable under 28 U.S.C. § 1252. League of Women Voters v. FCC, 
751 F.2d 986 (1985).



11

v. United States, 312 U.S. 246, 250 (1940)). See also Gunn v. 

Committee to End the War in Vietnam, 399 U.S. 383, 387 

(1970). "[Ojnly a narrow construction [of § 1253] is 

consonant with the overriding policy, historically encouraged 

by Congress, of minimizing the mandatory docket of this 

Court in the interests of sound judicial administration." 

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 

98 (1974) (footnote omitted).

Where no injunction was at issue, the Court has 

consistently dismissed appeals based on § 1253. For 

example, Rockefeller v. Catholic Medical Center, 397 U.S. 820 

(1970)(per curiam), held: "The judgment appealed from 

does not include an order granting or denying an 

interlocutory or permanent injunction and is therefore not 

appealable to this Court under 28 USC § 1253." In Gerstein 

v. Coe, 417 U.S. 279 (1974)(per curiam), the Court 

dismissed, "for want of jurisdiction," an appeal from a 

declaratory judgment entered by a three-judge District 

Court, ruling: "Title 28 USC § 1253, under which this



12

appeal is sought to be taken, does not authorize an appeal 

from the grant or denial of declaratory relief alone." 

Similarly, in Gunn, the Court dismissed, for want of 

jurisdiction, an appeal taken under 28 U.S.C. § 1253, 

because the three-judge District Court had neither granted 

nor denied an injunction, but had merely written "a rather 

discursive per curiam opinion," 399 U.S. at 387.

In this case, the only issue presented in the 

Jurisdictional Statement is the award of attorneys’ fees. The 

merits were finally determined in two prior appeals. 

Therefore, it is clear that the Court lacks jurisdiction over 

the instant appeal and that the appeal must be dismissed.



13

CONCLUSION

For the reasons stated, the appeal should be 

dismissed for lack of jurisdiction.

Julius LeVonne Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 

99 Hudson Street 
16th Floor
New York, NY 10013
(212) 219-1900 "“Counsel of Record

Respectfully submitted,

P.A. Hollingsworth 
415 Main Street 
Little Rock, AR 72201 
(501) 374-3420

Penda D. Hair*
1275 K Street, N.W. 
Suite 301
Washington, DC 20005 
(202) 682-1300

Dated: February 21, 1992