Missouri v. Jenkins Brief of Petitioners

    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.,

Respondents.

On W rit of Certiorari to the United States Court 
of A ppeals for the Eighth Circuit

BRIEF OF PETITIONERS

W illiam  L. W ebster 
Attorney General 

Terry A llen 
Deputy Attorney General 
Supreme Court Building 
Jefferson City, Missouri 65102 
(314) 751-3321

M ichael L. Boicourt*
Assistant Attorney General 

Bruce Farmer 
Bart A. M atanic 

Assistant Attorneys General 
Counsel for Petitioners

* Counsel of Record

E. L. M endenhall, Inc., 926 Cherry Street, Kansas City, M o. 64106, (816) 421-3030



QUESTIONS PRESENTED

1. Whether the Eleventh Amendment prohibits an 
award of attorney’s fees against a State based on current 
hourly rates which include interest and a delay in pay­
ment factor.

2. Whether paralegal and law clerk expenses awarded 
under 42 U.S.C. § 1988 must be assessed at actual cost 
rather than market rates.



II

PARTIES TO THE PROCEEDING IN THE 
COURT OF APPEALS

The parties to the proceeding in the Court of Appeals 
were as follows:

Appellants/cross-appellees 
(now petitioners):

The State of Missouri
The Honorable John Ashcroft, Governor of the State of 

Missouri
The Honorable Wendell Bailey, Treasurer of the State 

of Missouri
Dr. Robert E. Bartman, The Commissioner of Education 

of the State of Missouri
The Missouri State Board of Education: Roseann Bentley,

Dan L. Blackwell, Terry A. Bond, Thomas R. Davis, 
Susan D. Finke, Raymond F. McAllister, Jr., Cynthia 
B. Thompson and Roger L. Tolliver 

Appellees/'cross-appellants 
(now respondents):

Kalima Jenkins, by her next friend, Kamau Agyei 
Carolyn Dawson, by her next friend, Richard Dawson 
Tufanza A. Byrd, by her next friend, Teresa Byrd 
Derek A. Dydell, by his next friend, Maurice Dydell 
Terrance Cason, by his next friend, Antonia Cason 
Jonathan Wiggins, by his next friend, Rosemary Jacobs 

Love
Kirk Allan Ward, by his next friend, Mary Ward 
Robert M. Hall, by his next friend, Denise Hall



I l l

Dwayne A. Turrentine, by his next friend, Shelia Tur- 
rentine

Gregory A. Pugh, by his next friend, Barbara Pugh 
Cynthia Winters, by her next friend, David Winters, on 

behalf of themselves and all others similarly situated 
Additional

Appellants/cross-appellees below:

The School District of Kansas City, Missouri, and Claude 
Perkins, then-superintendent



IV

TABLE OF CONTENTS

QUESTIONS PRESENTED ..... ........... .........................  t
PARTIES BELOW ........   n
TABLE OF CONTENTS .............. ..... .......... ................  Iv
TABLE OF AUTHORITIES .............................  v
OPINIONS BELOW .............       ]
JURISDICTION_________      ,
STATUTE INVOLVED ..............   2
CONSTITUTIONAL PROVISION ..................... 2
STATEMENT OF THE CASE ........................................... 2
SUMMARY OF THE ARGUMENT...............    7
ARGUMENT........ ..... .......................................................  9

I. The Eleventh Amendment prohibits an award 
of prejudgment interest or compensation for 
delay against a State as part of reasonable 
attorney’s fees under 42 U.S.C. § 1988 ______  9

A. The conflicting decisions of the Courts
of Appeals ................................................... 9

B. Legislative waiver of the Eleventh
Amendment must be unequivocal and ex­
pressed in unmistakable language ........... 11

C. 42 U.S.C. § 1988 does not waive the
States’ Eleventh Amendment immunity 
from prejudgment interest ........ .......... . 16

II. Reimbursing the actual cost of paralegal and 
law clerk services is appropriate under the 
facts of this case ............................  24

CONCLUSION ............ . .................  . .... .....  28



V

TABLE OF AUTHORITIES

Cases:

Alyeska Pipeline Service Co. v. Wilderness So­
ciety, 421 U.S. 240 (1975) .................................. 24,

Atascadero State Hospital v. Scanlon, 473 U.S. 
234 (1985) ............................. -......... 11-12, 13, 14, 15,

Badaracco v. C.I.R., 464 U.S. 386 (1984) ...............
Blanchard v. Bergeron, No. 87-1485 (cert, granted

June 27, 1988) ............................ ............ .................
Blum v. Stenson, 465 U.S. 886 (1984) ......................
City of Riverside v. Rivera, 477 U.S. 561 (1986)
Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986) ____ ___
Davis v. County of Los Angeles, 8 E.P.D. ft 9444

(C.D. Cal. 1974) ...................................................... 20,
Edelman v. Jordan, 415 U.S. 651 (1974) .......14, 18,
Employees v. Missouri Public Health Department,

411 U.S. 279 (1973) ..............................................14,
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ...............
Florida Department of State v. Treasure Salvors,

Inc., 458 U.S. 670 (1982) .......... ......... .............. .
Gaines v. Dougherty County Board of Education,

775 F.2d 1565 (11th Cir. 1985) ..............................
Greater Los Angeles Council on Deafness v. Com­

munity Television of Southern California, 813
F.2d 217 (9th Cir. 1987) ..........................................

Greenspan v. Automobile Club of Michigan, 536
F.Supp. 411 (E.D. Mich. 1982) ..............................

Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 (1st
Cir. 1984) ........................... ......................................

Hensley v. Eckerhart, 461 U.S. 424 (1983) ...............

25

18
26

24
26
25
10

26
23

22
12

23

10

21

24

10
27



VI

Hutto v. Finney, 437 U.S. 678 (1978) .............. passim
Jenkins v. State of Missouri, 838 F.2d 260 (8th

Cir. 1988) .....................................................1,2,9,10,20
Johnson v. Georgia Highway Express, 488 F.2d

714 (5th Cir. 1974) ......... .....................................20, 26
Jordan v. Multnomah County, 815 F.2d 1258 (9th

Cir. 1987) .....................................       io
Lamphere v. Brown University, 610 F.2d 46 (1st

Cir. 1979) .................................... ....... ..... ..... ...........  24
Library of Congress v. Shaw, 478 U.S. 310

(1986) ......... ........ ............. ....... ......... ........ ......... passim
Lightfoot v. Walker, 826 F.2d 516 (7th Cir. 1987) 10
Murray v. Wilson Distilling Co., 213 U.S. 151

(1909) ............................ ........ ..... ............ .................  14
Parden v. Terminal Railway of Ala. Docks Dept.,

377 U.S. 184 (1964) ................................................  14
Pennhurst State School and Hospital v. Halder-

man, 451 U.S. 1 (1981) .......... .......... ...... .... 15,18,22
Pennhurst State School and Hospital v. Halder-

man, 465 U.S. 89 (1984) ...................... 12,13,15,18
Poleto v. Consolidated Rail Corporation, 826 F.2d

1270 (3rd Cir. 1987) .............................................. 21
Quern v. Jordan, 440 U.S. 332 (1979) ................... 14,18
Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983) ....10,24 
Roe v. City of Chicago, 586 F.Supp. 513 (N.D.

111. 1984) ........................................     24
Rogers v. Okin, 821 F.2d 22 (1st Cir. 1987) ....9,11, 18,

21,22
Ross v. Saltmarsh, 521 F.Supp. 753 (S.D. N.Y.

1981), affd, 688 F.2d 816 (2nd Cir. 1982) .. ..... 24 
Sisco v. J.S. Alberici Construction Co., 733 F.2d 

55 (8th Cir. 1984) 10



VII

62 Cases of Jam v. United States, 340 U.S. 593
(1951) ..........................................................................  25

Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.
Cal. 1974) .....................      20

Swann v. Charlotte-Mecklenburg Board of Edu­
cation, 66 F.R.D. 483 (W.D. N.C. 1975) ........... 20

Thompson v. Kennickell, 836 F.2d 616 (D.C. Cir.
1988) .................        21

TV A v. Hill, 437 U.S. 153 (1978) ....................... . 26
United States v. Deluxe Cleaners and Laundry,

Inc., 511 F.2d 926 (4th Cir. 1975) ................... 26
United States v. N.Y. Rayon Importing Co., 329

U.S. 654 (1947) .................... ......................... .......  24
Utah International, Inc. v. Department of Inte­

rior, 643 F.Supp. 810 (D. Utah 1986) ............... 21
Welch v. Texas Department of Highways and

Public Transportation, ....... U.S.........., 107 S.Ct.
2941 (1987) ........................................................ 13,14,18

Constitutional Provisions:
Eleventh Amendment .....   passim

Statutes:
28 U.S.C. § 1920 .......................................................... 19
28 U.S.C. § 2411 .......................................... ........ ......  18
28 U.S.C. § 2412(d )(2 )(A ) ....................................  17
28 U.S.C. § 2516 ..................    18
28 U.S.C. § 2674 ..........      18
42 U.S.C. § 1983 .......      14
42 U.S.C. § 1988 .... ..........................  passim
Civil Rights Act of 1964, § 706 (k), as amended, 

42 U.S.C. § 2000(e-5)k (Title VII) ................... 16



V III

Legislative Materials:

S.Rep. No. 94-1011, 94th Cong., 2d Sess., reprinted
in 1976 U.S. Code Cong. & Ad.News 5908 _17, 18,

20, 26

Other:

C. McCormick, Damages § 50, p. 205 (1935) .....  19
10 C. Wright, A. Miller & M. Kane, Federal Prac­

tice and Procedure §§ 2666, 2670 (2d ed. 1983) 19



OPINIONS BELOW

The Opinion of the United States Court of Appeals 
for the Eighth Circuit is reported at 838 F.2d 260 (8th 
Cir. 1988) and is reprinted in Petitioners’ Petition for 
Writ of Certiorari in the Appendix at page A -l.

The May 11, 1987 opinion of the United States Dis­
trict Court for the Western District of Missouri is un­
reported but is reprinted in Petitioners’ Petition for Writ 
of Certiorari in the Appendix at page A-22. The July 14, 
1987 opinion of the United States District Court for the 
Western District of Missouri is unreported but is re­
printed in Petitioners’ Petition for Writ of Certiorari in 
the Appendix at page A-44.

JURISDICTION

On January 29, 1988, the United States Court of 
Appeals for the Eighth Circuit issued its order affirming 
the District Court’s judgment awarding attorney’s fees 
and expenses. On April 13, 1988, the United States Court 
of Appeals for the Eighth Circuit issued its order denying 
Petitioners’ Motion for Rehearing En Banc.

A Petition for Writ of Certiorari was filed by Peti­
tioners herein on July 5, 1988. Pursuant to 28 U.S.C. 
§ 2101(c), the Petition was timely filed. Certiorari was 
granted on October 11, 1988. The jurisdiction of this 
Court is invoked under 28 U.S.C. § 1254(1).



2

STATUTE INVOLVED

In relevant part, 42 U.S.C. § 1988 provides:

In any action or proceeding to enforce a provision 
of sections 1981, 1982, 1983, 1985, and 1986 of this 
title, title IX of Public Law 92-318, or title VI of 
the Civil Rights Act of 1964, the court, in its dis­
cretion, may allow the prevailing party, other than 
the United States, a reasonable attorney’s fee as part 
of the costs.

CONSTITUTIONAL PROVISION

The relevant constitutional provision involved in this 
case is the Eleventh Amendment which provides:

The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens 
or Subjects of any Foreign State.

STATEMENT OF THE CASE

This case is the fee tail of the desegregation litigation 
involving Kansas City, Missouri.1 This Court has granted

1. The Kansas City, Missouri desegregation litigation has 
resulted in numerous published opinions. Jenkins v. State of 
Missouri, 838 F.2d 260 (8th Cir. 1988), is the only published fee 
decision. For information concerning the history of the under­
lying litigation, the Court is referred to the following decisions: 
In re Jackson County, Missouri, 834 F,2d 150 (8th Cir. 1987); 
Jenkins v. State of Missouri, 807 F.2d 657 (8th Cir, 1986) (en 
banc), cert, denied, 108 S.Ct. 70 (1987); School District of Kan-

(Continued on following page)



3

certiorari on two issues concerning the fee awards. One, 
whether the States’ Eleventh Amendment immunity pre­
cludes a fee award based on current hourly rates which 
include prejudgment interest or a delay in payment fac­
tor. Two, whether 42 U.S.C. § 1988 allows reimburse­
ment for paralegal and law clerk services at market rates 
rather than actual cost.

The plaintiff/schoolchildren were represented through­
out most of this litigation by two groups of attorneys— 
Arthur A. Benson II and his staff and the NAACP Legal 
Defense Fund, Inc. (LDF). While this case was orig­
inally filed on May 26, 1977 (J.A. 2), the attorneys 
awarded fees did not enter the case until later. Benson 
entered his appearance on behalf of the plaintiffs on 
March 15, 1979 (J.A. 2). The LDF entered an appear­
ance in the case on May 27, 1982 (J.A. 2).

The liability litigation took a number of years. The 
liability trial began on October 31, 1983 (J.A. 3). After 
ninety-two trial days, the liability trial ended on June 13, 
1984 (J.A. 3-9). On September 17, 1984, the plaintiff/ 
schoolchildren became prevailing parties when the dis­
trict court issued its judgment finding the State defen­
dants (Petitioners herein) and the Kansas City, Missouri 
School District (KCMSD) liable (J.A. 10) (Pet.App. 
A171-A215).

Footnote continued—
sas City, Missouri v. State of Missouri, 592 F.2d 493 (8th Cir.
1979) ; Jenkins v. State of Missouri, 672 F.Supp. 400 (W.D. Mo. 
1987); Jenkins v. State of Missouri, 639 F.Supp. 19 (W.D. Mo. 
1985); Jenkins v. State of Missouri, 593 F.Supp. 1485 (W.D. Mo. 
1984); Black v. State of Missouri, 492 F.Supp. 848 (W.D. Mo.
1980) ; School District of Kansas City, Missouri v. State of Mis­
souri, 460 F.Supp. 421 (W.D. Mo. 1978); School District of Kan­
sas City, Missouri v. State of Missouri, 438 F.Supp. 830 (W.D. 
Mo. 1977).



4

Seventeen months later, on February 5, 1986, the 
attorneys filed their initial motion for attorney’s fees and 
expenses (J.A. 12). Subsequent motions were filed (J.A. 
13) and the fees at issue in the instant case involve 
the time period through June 30, 1986 (Pet.App, A 8). 
This includes the litigation in the remedial phase of the 
case as well as the first year of monitoring the deseg­
regation plan. The vast majority of the hours compen­
sated, however, was for the period 1981-1984 when the 
liability phase of the case was litigated.

The fee issues were extensively briefed by all parties 
and a one-day hearing was held on February 27, 1987 
(J.A. 16). On May 11, 1987, the district court issued 
its order (J.A. 16) (Pet.App. A22). As modified on 
July 14, 1987 (Pet.App. A44), the district court awarded 
fees and expenses totalling $4,094,443.66, with Benson 
awarded $1,728,567.92 and LDF $2,365,875.74 (J.A. 16-17) 
(Pet.App. A9).2

The district court awarded Benson an hourly rate 
of $200 per hour (Pet.App. A26-A27). The district court 
determined that reasonable hourly rates for attorneys 
with litigation experience and expertise comparable to 
Benson range from $125 to $175 per hour and Benson 
“would fall at the higher end of this range” (Pet.App. 
A26). This finding was based on 1986 rates and stands

2. While the fee litigation has been pending, the State 
has made partial payments to both Benson and the LDF. Of 
the $1,728,567.92 awarded to Benson, Petitioners have made 
periodic payments totalling $1,147,332.93 (2 /26 /86— $200,000;
6 /2 /86— $100,000; 10 /1 /86— $47,332.93; 8 /3 /87— $300,000;
4 /29 /88— $500,000). Of the $2,365,875.74 awarded to the LDF, 
Petitioners have paid $1,350,000 (5 /29 /87— $850,000; 5 /2 /8 8 —  
$500,000).



5

in contrast to Benson’s statement that his current billing 
rate was $125 per hour,3

The district court enhanced Benson’s rate to $200 
per hour, in part, because of preclusion of other employ­
ment and undesirability of the case (Pet.App. A26). The 
court further found it was “ essential that [Benson’s] 
hourly rate include compensation for the delay in pay­
ment.” (Pet.App. A26). The district court did not indi­
cate what portion of the enhancement was due to delay 
in payment.

For Benson’s staff, the district court awarded current 
hourly rates. The court noted that for the years the 
services were rendered (1982-1984) the average hourly 
rate for the two main associates was $60 to $65 per 
hour (Pet.App. A28). The court, however, awarded $80 
per hour finding the “differential . . . necessary to com­
pensate Mr. Benson for the delay in payment” (Pet.App. 
A28-A29).

Concerning the LDF, the district court awarded fees 
at “ current, rather than historical, rates” to compensate 
for delay in payment (Pet.App. A33). The court did 
not consider preclusion of other employment or undesir­
ability of the case in enhancing the hourly rate for any 
attorney other than Benson.

There were a substantial number of nonattorneys 
assisting the plaintiffs in this case. These were charac­
terized as paralegals, law clerks or recent law graduates. 
These labels are irrelevant to the issues in this case and

3. See Motion for Partial Award of Attorneys’ Fees and 
Expenses, filed February 5, 1986, p. 10 (Record on Appeal 293, 
303).



6

Petitioners will refer to all nonattorney paraprofessionals 
as “paralegals.”

The district court awarded current market rates for 
paralegal services.4 The court emphasized that it was 
compensating for “delay in payment by calculating this 
award based upon the current, rather than historical 
hourly rates” (Pet.App. A30, A34).

Evidence was presented at the February 27, 1987 
fee hearing concerning the actual costs of paralegal ser­
vices. LDF indicated that paralegal salaries ranged from 
$18,000 to $24,000 annually, which is approximately $8.50 
to $11.50 per hour (Transcript of February 27, 1987 
hearing, p. 54). Benson testified that most, if not all, 
of the paralegals were hired specifically to work on this 
case and the average hourly salary was $7 per hour 
(Tr. pp. 125-126).5 Considering benefits and other over­
head associated with paralegal employees, Petitioners sug­
gested that $15 per hour closely approximated the actual 
costs of the paralegals hired to work on this case (Pet. 
App. A15).

The Court of Appeals for the Eighth Circuit affirmed 
the district courts’ orders in all respects. Pertinent to 
the issues involved herein, the Eighth Circuit found that 
the use of current market rates to compensate for delay 
in payment was not prohibited by the Eleventh Amend­
ment (Pet.App. A13-A15). The court recognized that 
paralegal reimbursement has been treated in various ways

4. The district court awarded $40 per hour for paralegals, 
$35 per hour for law clerks and $50 per hour for recent law 
graduates (Pet.App. A29, A34).

5. It is interesting to note that Benson’s expert witness, 
Kansas City attorney Max Foust, testified that he did not bill 
separately for paralegal services (Tr. pp. 73-74).



7

by the courts (Pet.App. A15), but found that the district 
courts use of market rates was not clearly erroneous 
(Pet.App. A15-A16).

SUMMARY OF THE ARGUMENT

The controlling principle is that an increase in a fee 
award to compensate for delay in payment is equivalent 
to an award of interest. This Court’s Library of Congress 
decision analyzed this general rule under the fee-shifting 
provision of Title VII. This Court held that the federal 
government’s waiver of immunity from suit did not also 
waive the sovereign’s immunity from liability for interest 
on fee awards.

The question is then whether the same express waiver 
of immunity from liability for interest or delay required 
for the United States is also required for the States’ under 
the Eleventh Amendment. This Court has required that 
Congress must express an unequivocal intention to waive 
the States’ Eleventh Amendment immunity in unmis­
takable language in the statute itself. This standard is 
virtually identical and intellectually indistinguishable 
from the degree of congressional clarity required to find 
a waiver of the federal government’s sovereign immunity.

Thus, under 42 U.S.C. § 1988, the States’ Eleventh 
Amendment immunity from interest on fee awards has 
not been abrogated by Congress. The language of 42 
U.S.C. § 1988 does not deal with this issue and the legis­
lative history is silent. While § 1988 does allow “attor­
ney’s fees as part of costs” , Library of Congress v. Shaw 
clearly holds that these terms do not include interest 
or compensation for delay.



8

The other issue involved in this case concerns the 
proper method of reimbursing paralegal and law clerk 
services. Again, there is no indication in either § 1988 
or the legislative history addressing this issue. Congress 
did express its intention that § 1988 not result in a 
“windfall” for attorneys. Permitting reimbursement of 
paralegal services at market rates would result in a sub­
stantial profit to attorneys over and above the actual 
cost of such employees. There is no indication that 
Congress intended the attorneys for prevailing parties 
to receive a substantial profit on paralegal expense from 
the losing party.

Reimbursement of paralegal expense at actual cost 
is particularly appropriate in the instant case. The dozens 
of paralegals and law clerks employed by the attorneys 
for the plaintiff/schoolchildren were hired specifically 
for this case. Under such circumstances, reimbursement 
at actual cost is equitable to all parties and does not 
run contrary to Congress’ intent that attorneys not re­
ceive a “windfall” under § 1988.



9

ARGUMENT

I. The Eleventh Amendment prohibits an award of 
prejudgment interest or compensation for delay 
against a State as part of reasonable attorney’s 
fees under 42 U.S.C. § 1988,

In Library of Congress v. Shaw, 478 U.S. 310 (1986), 
this Court held that the federal government’s traditional 
sovereign immunity prohibited an award of interest or 
compensation for delay as part of reasonable attorney’s 
fees under Title VII. The question in the instant case 
is whether the States’ Eleventh Amendment immunity 
prohibits an award of prejudgment interest or compen­
sation for delay as part of reasonable attorney’s fees 
under 42 U.S.C. § 1988.

A. The conflicting decisions of the Courts of Ap­
peals.

This issue has resulted in two conflicting decisions 
in the appellate courts. In the instant case, the Court 
of Appeals for the Eighth Circuit held that compensa­
tion for delay in payment is not prohibited by the Elev­
enth Amendment. Jenkins v. State of Missouri, 838 F.2d 
260, 266 (8th Cir. 1988). This conflicts with a prior 
decision by the Court of Appeals for the First Circuit 
which held that prejudgment interest on fee awards or 
compensation for delay is prohibited by the Eleventh 
Amendment. Rogers v. Okin, 821 F.2d 22, 28 (1st Cir. 
1987). In reaching opposite conclusions, the two courts 
disagreed on the applicability of Library of Congress v. 
Shaw.



10

In Jenkins, the Eighth Circuit declined “to extend 
Shaw to the body of Eleventh Amendment law, which 
was not covered by [Shaw’s] rationale.” 838 F.2d at 
265. The Eighth Circuit assumed, without discussion, 
that the rule of statutory interpretation applicable in 
suits against the federal government was inapplicable in 
an Eleventh Amendment analysis. Id. The Eighth Cir­
cuit also refused to equate prejudgment interest with 
compensation for delay. Finally, the Eighth Circuit em­
phasized that “ courts have regularly interpreted § 1988 
to permit compensation for delay in the payment of 
fees.” Id.e

In contrast, the First Circuit analyzed the issue in 
light of Library of Congress v. Shaw and the legislative 
history of 42 U.S.C. § 1988. In addition, unlike the 
Eighth Circuit, the First Circuit discussed the critical 
issue of Congress’ intent. The First Circuit noted the 
holding in Hutto v. Finney, 437 U.S. 678 (1978), that 
§ 1988 abrogated Eleventh Amendment immunity for 
attorney’s fees, but emphasized this Court’s Library of 
Congress v. Shaw decision that prejudgment interest is 
not considered a component of attorney’s fees or costs. 6

6. The cases cited by the Eighth Circuit in support of this 
proposition are inapposite, either because a State was not in­
volved, or the Eleventh Amendment issue was not raised. See 
Light-foot v. Walker, 826 F.2d 516 (7th Cir. 1987) (State in­
volved; no discussion of Eleventh Amendment issue); Jordan 
v. Multnomah County, 815 F.2d 1258 (9th Cir. 1987) (State not 
involved); Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986) (county 
involved, not State); Gaines v. Dougherty County Board of Ed­
ucation, 775 F.2d 1565 (11th Cir. 1985) (State not involved); 
Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984) (State 
involved; no discussion of Eleventh Amendment issue); Sisco 
v. J.S. Alberici Construction Co., 733 F.2d 55 (8th Cir. 1984) 
(State not involved; private defendant); Ramos v. Lamm, 713 
F.2d 546 (10th Cir. 1983) (State involved; no discussion of 
Eleventh Amendment).



11

Rogers v. Okin, 821 F.2d at 27. Reviewing the legisla­
tive history of § 1988, the First Circuit correctly noted 
Congress’ silence on whether an attorney’s fee award 
should include prejudgment interest. Because “neither 
the statutory language nor the legislative history” con­
tained a clear indication of Congress’ intent, the First 
Circuit refused to “ infer” a waiver of the States’ Elev­
enth Amendment immunity from “substantial sums of 
prejudgment interest on attorney’s fee awards.” Id. at 
27-28.

As discussed below, the First Circuit’s analysis is 
consistent with the rationale set forth by this Court in 
Library of Congress v. Shaw. More importantly, the 
First Circuit’s decision is a faithful adherence to the 
rigorous standards established by this Court in numerous 
cases addressing congressional waivers of the States’ Elev­
enth Amendment immunity.

B. Legislative waiver of the Eleventh Amend­
ment must be unequivocal and expressed in 
unmistakable language.

The Eleventh Amendment provides:

The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens 
or Subjects of any Foreign State.

This Court has repeatedly emphasized the significance 
of this Amendment “lies in its affirmation that the fun­
damental principle of sovereign immunity limits the grant 
of judicial authority in Art. I ll” of the Constitution. 
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238



12

(1985); Pennhurst State School and Hospital v. Haider - 
man, 465 U.S. 89, 98 (1984) (Pennhurst II).

The similarity between the States’ Eleventh Amend­
ment immunity and the federal government’s sovereign 
immunity is inescapable; both protect the sovereign from 
liability. In Library of Congress v. Shaw, this Court 
noted that waivers of immunity must be construed 
“strictly in favor of the sovereign” and cautioned that 
the waiver not be enlarged beyond what the language 
requires. 478 U.S. at 318. The court emphasized that 
a waiver requires an “affirmative congressional choice.” 
Id. at 319 (emphasis added).

The language used by this Court in Eleventh Amend­
ment waiver cases is virtually identical to the rigorous 
standard articulated in Library of Congress v. Shaw. In 
deciding whether Congress has abrogated the Eleventh 
Amendment immunity, this Court has required a clear 
expression of legislative intent, In Atascadero, this Court 
emphasized the “ well-established” requirement that “Con­
gress unequivocally express its intention to abrogate the 
Eleventh Amendment bar to suits against the States in 
federal court.” 473 U.S. at 242.

While this Court has recognized that the Eleventh 
Amendment is “necessarily limited by the enforcement 
provisions of § 5 of the Fourteenth Amendment,” Fitz­
patrick v. Bitzer, 427 U.S. 445, 456 (1976), this Court 
has nonetheless required “ that Congress must express 
its intention to abrogate the Eleventh Amendment in 
unmistakable language in the statute i t s e l fA ta sc ade r o .  
473 U.S. at 243 (emphasis added).

Petitioners recognize that Hutto v. Finney, 437 U.S. 
678 (1978), held that the Eleventh Amendment did not 
prevent an award of attorney’s fees payable by the States



13

when their officials are sued in their official capacities 
under § 1988, notwithstanding the fact that the statute 
does not contain an express statutory waiver of the States’ 
immunity. Some may suggest, therefore, that the degree 
of congressional clarity required to abrogate the Elev­
enth Amendment immunity under § 1988 is less than 
that required to waive the federal government’s sov­
ereign immunity as discussed in Library of Congress v. 
Shaw.

The analysis employed in Hutto v. Finney, however, 
has been ignored by this Court in more recent decisions 
regarding the standard for congressional waivers of the 
Eleventh Amendment. For example, Atascadero repeat­
edly emphasizes the requirement of “an unequivocal ex­
pression of congressional intent to ‘overturn the consti­
tutionally guaranteed immunity of the sovereign states’ ” . 
473 U.S. at 240, citing Pennhurst II, 465 U.S. at 99. See 
also Atascadero, 473 U.S. at 242 (“Congress unequiv­
ocally express its intention” ); at 243 (“ incumbent upon 
the federal courts to be certain of Congress’ intent before 
finding that federal law overrides the guarantees of the 
Eleventh Amendment” ) ; id. (“ the requirement that Con­
gress unequivocally express this intention in the statutory 
language ensures such certainty” ); id. (“ it is appropriate 
that we rely only on the clearest indications in holding 
that Congress has enhanced our power” ) ; id. (“Congress 
must express its intention to abrogate the Eleventh 
Amendment in unmistakable language in the statute it­
self” ).7

7. See also Welch v. Texas Department of Highways and
Public Transportation, . U.S...... . , 107 S.Ct. 2941, 2948 (1987)
(“the Court consistently has required an unequivocal expres-

(Continued on following page)



14

Atascadero is a reaffirmation of this Court’s consis­
tent holdings on Eleventh Amendment waiver issues. For 
example, in Employees v. Missouri Public Health Depart­
ment, 411 U.S. 279 (1973), this Court concluded that 
Congress did not lift the sovereign immunity of the States 
by enacting the Fair Labor Standards Act of 1938. This 
Court emphasized the absence of any indication “by clear 
language that the congressional immunity was swept 
away.” 411 U.S. at 285. In Edelman v. Jordan, 415 U.S. 
651 (1974), this Court acknowledged a State may waive 
its immunity but such a waiver can be found “only where 
stated ‘by the most express language or by such over­
whelming implication from the text as [will] leave no 
room for any other reasonable construction.’ ” 415 U.S.
at 673, quoting Murray v. Wilson Distilling Co., 213 U.S. 
151, 171 (1909).

In Quern v. Jordan, 440 U.S. 332 (1979), this Court 
held that 42 U.S.C. § 1983 does not override the States’ 
Eleventh Amendment immunity. This Court further 
noted that “general language” used by Congress is not 
sufficient to “overturn the constitutionally guaranteed 
immunity of the sovereign states.” 440 U.S. at 342 (foot­
note omitted).

Footnote continued—

sion that Congress intended to override Eleventh Amendment 
immunity” ). In Welch, the Court held that Congress had not 
abrogated the States’ Eleventh Amendment immunity under the 
Jones Act. 107 S.Ct. at 2947. In so doing, the Court expressly 
overruled Parden v. Terminal Railway of Ala. Docks Dept., 377 
U.S. 184 (1964), which did not require waiver by “unmistakably 
clear language.” Id. at 2948 (Per Justice Powell, with three 
Justices concurring, and one Justice concurring in the judgment). 
The repudiated Parden analysis is similar to the analysis in 
Hutto v. Finney.



15

The Eighth Circuit implies that the standard is more 
lenient when reviewing legislation enacted pursuant to 
§ 5 of the Fourteenth Amendment. The Atascadero and 
Pennhurst cases, however, analyze the Eleventh Amend­
ment in terms of Congress’ enforcement powers under 
the Fourteenth Amendment. In Pennhurst State School 
and Hospital v. Halderman, 451 U.S. 1 (1981) (Penn­
hurst I), this Court emphasized that “such legislation 
imposes congressional policy on a State involuntarily and 
. . . we should not quickly attribute to Congress an 
unstated intent . . 451 U.S. at 16. Pennhurst II re­
emphasized the requirement of “ an unequivocal expres­
sion of congressional intent to overturn the constitution­
ally guaranteed immunity of the sovereign states.” 465 
U.S. at 99.

Pennhurst II also acknowledges the “vital role of 
the doctrine of sovereign immunity in our federal sys­
tem.” Id. Atascadero expanded on this concept noting 
that in determining whether Congress has abrogated the 
Eleventh Amendment immunity, “the courts themselves 
must decide whether their own jurisdiction has been 
expanded.” 473 U.S. at 243. This Court emphasized 
that “ it is appropriate that we rely only on the clearest 
indications in holding that Congress has enhanced our 
power.” Id.

Thus, this Court has established rigorous guidelines 
for finding a congressional abrogation of a sovereign’s 
immunity. These strict standards apply when analyzing 
both the federal government’s sovereign immunity or 
the States’ Eleventh Amendment immunity. Neither 42 
U.S.C. § 1988, nor its legislative history, contains the 
unmistakable language necessary to find an unequivocal 
expression of Congress’ intent.



16

C. 42 U.S.C. § 1988 does not waive the States’ 
Eleventh Amendment immunity from pre­
judgment interest.

It is undisputed that 42 U.S.C. § 1988 does not con­
tain any language “ in the statute itself” addressing Elev­
enth Amendment immunity. In pertinent part, § 1988 
provides:

In any action or proceeding to enforce a provision 
of sections 1981, 1982, 1983, 1985, and 1986 of this 
title, title IX of Public Law 92-318, or title VI of 
the Civil Rights Act of 1964, the court, in its discre­
tion, may allow the prevailing party, other than the 
United States, a reasonable attorney’s fee as part 
of the costs.

Neither does the language of § 1988 explicitly address the 
issue of prejudgment interest or compensation for delay. 
The question remains whether the language actually used 
in the statute includes such compensation by implication.

Again, Library of Congress v. Shaw provides unmis­
takable guidance on this issue. There, this Court was con­
sidering whether the Civil Rights Act of 1964, § 706 (k), 
as amended, 42 U.S.C. § 2000(e-5)k (Title VII), waived 
the federal government’s immunity from interest. 478 
U.S. at 313. That statute provides in relevant part:

In any action or proceeding under this subchapter 
the court, in its discretion, may allow the prevailing 
party, other than the [EEOC] or the United States, 
a reasonable attorney’s fee as part of the costs, and the 
[EEOC] and ‘the United States shall be liable for 
costs the same as a private person.’



17

Emphasis added. This statute contains the language identi­
cal to the relevant portion of 42 U.S.C. § 1988. In fact, 
the legislative history of § 1988 notes its reliance of the 
“language of Title [] . . . VII of the Civil Rights Act of 
1964.” S.Rep. No. 94-1011, 94th Cong., 2d Sess., reprinted 
in 1976 Code Cong. & Ad.News 5908, 5910.

The phrase “reasonable attorney’s fee as part of costs” 
is found in both statutes. Library of Congress v. Shaw 
expressly held that the phrase “reasonable attorney’s fee” 
did not waive the federal government’s sovereign im­
munity from interest. 478 U.S. at 320. This Court further 
held that the term “ costs” did not waive the federal govern­
ment’s sovereign immunity from interest. Id. at 321.8

If Library of Congress v. Shaw is applied consistently, 
then the identical language used in 42 U.S.C. § 1988 also 
does not evidence Congress’ intent to waive the States’ 
Eleventh Amendment immunity for prejudgment interest 
or compensation for delay. It would be anomalous to 
suggest that Congress intended a waiver of immunity 
under § 1988 by use of the phrases “reasonable attorney’s 
fee” and “costs” and did not intend such a waiver when 
using the identical phrases in Title VII.

Petitioners’ position is supported by congressional ac­
tion in another fee-shifting statute. The 1985 amendments 
to the Equal Access to Justice Act (EAJA) explicitly per­
mit adjustments to compensate attorneys for “ increasefs] 
in the cost of living.” 28 U.S.C. § 2412(d )(2 )(A ). Thus, 
when Congress has intended to increase fee awards to

8. Library of Congress v. Shaw further held that the phrase 
“the United States shall be liable for costs the same as a private 
person” did not evidence the “requisite affirmative congressional 
choice” to waive sovereign immunity. 478 U.S. at 319.



18

compensate for delay, it has done so expressly in the 
language of the statute.8

The First Circuit correctly noted that the “legislative 
history . . .  is completely silent on the subject of pre­
judgment interest.” Rogers v. Okin, 821 F.2d at 22. The 
Senate Report does state that “citizens must have the 
opportunity to recover what it costs them to vindicate 
[their civil rights] in court.” See S.Rep. No. 94-1011, 94th 
Cong., 2d Sess,, reprinted in 1976 U.S. Code Cong. & Ad. 
News 5908, 5910. Hutto v. Finney also suggests that 
“ Congress [may] amend its definition of taxable costs and 
have the amended class of costs applied to the States . . . 
without expressly stating that it intends to abrogate the 
States’ Eleventh Amendment immunity.” 437 U.S. at 
696.9 10

This Court, however, has emphasized that prejudg­
ment interest, compensation for delay, or whatever term

9. Similarly, when Congress has intended to waive the 
United States’ immunity from interest, it has done so in ex­
press language. See, e.g., 28 U.S.C. § 2411 (expressly authoriz­
ing pre- and post-judgment interest payable by the United 
States in tax refund cases). Congress has also reiterated the 
general rule that interest cannot be allowed absent express 
waiver. See 28 U.S.C. § 2516 ( “Interest on a claim against 
the United States shall be allowed in a judgment of the United 
States Claims Court only under a contract or Act of Congress 
expressly providing for payment thereof” ) ; 28 U.S.C. § 2674 
(“The United States . . . shall not be liable for interest prior to 
judgment” under the Federal Torts Claim Act).

10. In light of subsequent decisions by this Court, par­
ticularly Atascadero, a reasonable argument could be made that 
the apparently more lenient standard set forth in Hutto v. Finney 
is no longer valid. Because Hutto v. Finney appears to have 
been superseded in this Court’s subsequent Eleventh Amendment 
waiver decisions, its scope should not be expanded. To hold 
that § 1988 implicitly allows recovery of prejudgment interest or 
compensation for delay in payment would cast doubt on the 
Eleventh Amendment analysis set forth in Atascadero, Quern, 
Edelman, Pennhurst 1, Pennhurst 11, and Welch.



19

used to describe compensation for the time value of money 
is not a component of “ costs.” “Costs” is a term of spe­
cific and narrow content; in federal adjudication, the word 
“ costs” has never been understood to include any interest 
component. 28 U.S.C. § 1920. See also 10 C. Wright, A. 
Miller & M. Kane, Federal Practice and Procedure '§§ 
2666, 2670 (2d ed. 1983). Historically, prejudgment in­
terest has been viewed as an element of damages, not as 
a component of “costs.” Id. § 2664, at 159-60.

In Library of Congress v. Shaw, this Court reiterated 
that “prejudgment interest is considered as damages, not 
a component of ‘costs’ . . .  A statute allowing costs, and 
within that category, attorney’s fees, does not provide 
the clear affirmative intent of Congress to waive the 
sovereign’s immunity.” 478 U.S. at 321. Therefore, this 
Court emphasized that the “requirement of a separate 
waiver reflects the historical view that interest is an 
element of damages separate from the damages on the 
substantive claim.” Id. at 314 (emphasis added), citing 
C. McCormick, Damages § 50, p. 205 (1935).

Hutto v. Finney actually supports, rather than dis­
putes, petitioners’ position on this issue. There, this Court 
indicated that “ it would be absurd to require an express 
reference to State litigants whenever a filing fee, or a 
new item, such as an expert witness’ fee, is added to 
the category of taxable costs.” 437 U.S. at 696-97. In 
a footnote, however, this Court indicated that the analysis 
might be different “if Congress were to expand the con­
cept of costs beyond the traditional category of litigation 
expenses.” 437 U.S. at 697, note 27. Because prejudg­
ment interest or compensation for delay is not a tradi­
tional component of costs, but rather considered as dam­



20

ages, a clear affirmative indication from Congress is nec­
essary to waive immunity therefrom.

The legislative history of § 1988, however, contains 
no indication that Congress intended to expand the tra­
ditional components of costs to include prejudgment in­
terest. The legislative history identifies four cases as 
reflecting the appropriate standards for calculating fee 
awards. See S.Rep. No. 94-1011, 94th Cong., 2d Sess., 
reprinted in 1976 U.S. Code Cong. & Ad.News 5908, 5913. 
None of the four cases, however, addressed the issue of 
prejudgment interest or compensation for delay.11

The Eighth Circuit attempted to avoid the holding 
of Library of Congress v. Shaw by refusing to equate 
interest with compensation for delay. Jenkins, 838 F.2d 
at 265. The court approved the district court’s consid­
eration of “delay as one factor in setting the hourly 
fee.” Id. In Library of Congress v. Shaw, however, 
this Court cautioned that “the no-interest rule cannot 
be avoided simply by devising a new name for an old 
institution.” 478 U.S. at 321. There, the respondent 
argued that interest and a delay factor had distinct pur­
poses. Id. at 322. This Court rejected that argument 
noting that interest and a delay factor share an identical 
function, both “ designed to compensate for the belated 
receipt of money.” Id.

11. See Johnson v. Georgia Highway Express, 488 F.2d 
714 (5th Cir. 1974) (sets forth twelve factors to consider in 
determining fee awards, not one of which expressly or implicitly 
deals with prejudgment interest); Stanford Daily v. Zurcher, 
64 F.R.D. 680 (N.D. Cal. 1974) (follows modified Johnson ap­
proach, no discussion of interest); Swann v. Charlotte-Mecklen- 
hurg Board of Education, 66 F.R.D. 483 (W.D. N.C. 1975) (no 
discussion of interest); Davis v. County of Los Angeles, 8 E.P.D. 
I  9444 (C.D. Cal. 1974) (no discussion of interest).



21

The compensation for delay is intellectually indis­
tinguishable from prejudgment interest; both function to 
compensate the attorney for the delayed receipt of fees. 
The First Circuit analysis of this issue is consistent with 
the standards this Court clearly articulated in Library 
of Congress v. Shaw. See Rogers v. Okin, 821 F.2d at 26.

The lower courts have consistently applied Library 
of Congress v. Shaw to prohibit interest on fee awards 
against the federal government whether it be called pre­
judgment interest, compensation for delay or compensa­
tion at current billing rates. See, e.g., Thompson v. Ken- 
nickell, 836 F.2d 616, 619 (D.C. Cir. 1988) (“ Shaw 
precludes . . . use of current billing rates for work 
performed under the Equal Pay Act” ); Greater Los 
Angeles Council on Deafness v. Community Television of 
Southern California, 813 F.2d 217 (9th Cir. 1987) (Re­
habilitation Act case - Shaw “prohibit[s] the use of a 
multiplier to enhance fee awards because of delay in 
payment” ); Utah International, Inc. v. Department of 
Interior, 643 F.Supp. 810, 830 (D. Utah 1986) (“ com­
pensation for delay is the equivalent of interest” ).12

The cases discussed in Part I B, supra, hold that an 
unequivocal expression of Congress’ intent is required to 
override the States’ Eleventh Amendment immunity. 
Hutto v. Finney recognizes that the “reasons for requiring 
a formal indication of Congress’ intent . . . insures that 
Congress has not imposed ‘enormous fiscal burdens on

12. While not citing Library of Congress v. Shaw, the Court 
of Appeals for the Third Circuit has held that prejudgment in­
terest could not be awarded under FELA. Poleto v. Consolidated 
Rail Corporation, 826 F.2d 1270, 1279 (3rd Cir. 1987). While 
the court recognized strong policy considerations in favor of 
such an award, it noted the decision was for Congress to make. 
Id. at 1274-79.



22

the States’ without careful thought.” 437 U.S. at 697, 
note 27, citing Employees v. Missouri Public Health 
Department, 411 U.S. 279, 284 (1973). Since Hutto 
v. Finney, the Court has reemphasized that “ [t]he case 
for inferring intent is at its weakest where . . .  the 
rights asserted impose affirmative obligations on the 
States . . ., since we may assume that Congress will not 
implicitly attempt to impose massive financial obligations 
on the States.” Pennhurst State School and Hospital v. 
Halderman, 451 U.S. 1, 16-17 (1981) (emphasis in the 
original) (Pennhurst I ) .

As demonstrated above, the terms used in § 1988— 
reasonable attorney’s fees and costs—do not include the 
concept of prejudgment interest or compensation for delay. 
Therefore, there is certainly no unequivocal evidence of 
Congress’ intent to impose what could be a substantial 
obligation on the States. Undeniably, prejudgment in­
terest can result in a substantial financial obligation. In 
Rogers v. Okin, supra, the First Circuit’s recalculation 
based on historical rates resulted in a total reduction of 
about 40%, or approximately $600,000 of a $1.47 million 
fee award. In the case at bar, similar reductions are 
anticipated although the exact calculations would be de­
termined on remand.13

13. The use of current rates in the case at bar inflated 
the fee award more than usual. The plaintiff/schoolchildren 
became prevailing parties on September 17, 1984 when the dis­
trict court issued its liability orders (Pet.App. A171), The 
initial motion for attorney’s fees was not filed until seventeen 
months later on February 5, 1986 (J.A. 12) and 1986 hourly 
rates were requested. Had the motion been filed in 1984, the 
hourly rates requested presumably would have been based on 
1984 rates. Because the vast majority of the hours compensated 
were spent on the discovery and liability phase of the litigation, 
the attorneys were, in effect, rewarded for delaying the fee 
application.



23

The use of current market rates to compensate for 
delay in payment is in effect an award of prejudgment 
interest. It thus becomes a retroactive award of damages, 
which is clearly prohibited by the Eleventh Amendment. 
Edelman v. Jordan held that a federal court’s remedial 
power, consistent with the Eleventh Amendment, is lim­
ited to prospective injunctive relief and may not include 
a retroactive award requiring payment of damages from 
the state treasury. 415 U.S. at 677.

Thus, the Eleventh Amendment is a limitation on the 
type of relief a party may receive from a State. See 
Florida Department of State v. Treasure Salvors, Inc., 
458 U.S. 670, 689 (1982) (“ [Eleventh] Amendment places 
a limit on the relief that may be obtained by the plain­
tiff” ). While under Hutto v. Finney, § 1988 allows for 
recovery of attorney’s fees and costs, the Eleventh Amend­
ment still protects the States from a separate assessment 
of prejudgment interest.

There may be reasonable policy reasons to compen­
sate civil rights attorneys for the time value of money 
on fee awards. The vindication of constitutional rights 
is a legitimate goal of Congress and obviously, the more 
money lawyers make on civil rights cases, the more civil 
rights cases will be litigated. In § 1988, however, Con­
gress clearly indicated that other factors had been con­
sidered and specifically cautioned that § 1988 should not 
produce a windfall for attorneys.

Policy arguments, however, should be addressed to 
Congress. In Library of Congress v. Shaw, this Court 
emphasized that “policy, no matter how compelling, is 
insufficient, standing alone, to waive . . . immunity.” 478 
U.S. at 321. See also United States v. N.Y. Rayon Im-



24

porting Co., 329 U.S. 654, 662 (1947), (Courts lack the 
power to award interest against the United States on 
the basis of what they think is or is not sound policy).

II. Reimbursing the actual cost of paralegal and law
clerk services is appropriate under the facts of
this case.

At the current time, there are at least three different 
approaches to the problem of compensating paralegal ser­
vices.14 Some courts consider paralegal services a part 
of normal office overhead and completely deny separate 
reimbursement. See, e.g. Roe v. City of Chicago, 586 
F.Supp. 513, 516 (N.D. 111. 1984). Others reimburse the 
actual costs of such services. See Lamphere v. Brown 
University, 610 F.2d 46, 48 (1st Cir. 1979) (reimburse­
ment at actual cost when paralegals hired specifically 
for purpose of a certain litigation, as in the instant case). 
See also Greenspan v. Automobile Club of Michigan, 536 
F.Supp. 411, 415 (E.D. Mich. 1982); Ross v. Saltmarsh, 
521 F.Supp. 753 (S.D. N.Y. 1981), affd, 688 F.2d 816 
(2nd Cir. 1982). Other courts have reimbursed at mar­
ket rates. See, e.g. Ramos v. Lamm, 713 F.2d 546, 558-59 
(10th Cir. 1983). While the policies behind each of these 
methods differ, one thing is clear from the confusion 
between the lower courts—Congress has not clearly stated 
its intention on this issue. Given such uncertainty, this 
Court should not imply what could be a substantial finan­
cial obligation on the States.

In Alyeska Pipeline Service Co. v. Wilderness So­
ciety, 421 U.S. 240 (1975), this Court held that absent

14. A similar issue concerning compensation for paralegal 
expense is currently before this Court in Blanchard v. Bergeron, 
No. 87-1485 (cert, granted June 27, 1988).



2 5

Congressional authorization, courts lack the inherent 
power to award attorney’s fees to prevailing litigants. 
As this Court stated, Congress has not “extended any 
roving authority to the judiciary to allow counsel fees 
as costs or otherwise whenever the courts might deem 
them warranted.” Alyeska, 421 U.S. at 260. Congress 
enacted 42 U.S.C. § 1988 as a reaction to Alyeska. See 
City of Riverside v. Rivera, 477 U.S. 561 (1986). How­
ever, the statute only modified the Alyeska decision 
for the matters specified within it, i.e., allowing a rea­
sonable attorney’s fee as a part of costs. There is no 
indication whatsoever in the statute that prevailing lit­
igants are entitled to a reasonable paralegal fee as part 
of their costs. Therefore, Alyeska controls the result of 
this case with regard to paralegal fees, and the judgment 
should be reversed and the case remanded. If federal 
courts do not have any power to award attorney’s fees 
without Congressional authorization, they surely do not 
have the power to award paralegal fees at market rates 
without Congressional authorization.15

The Petitioners’ approach to this issue is also sup­
ported by the ordinary rules of statutory construction. 
In construing a statute, the Supreme Court construes 
what Congress has written and does not add, subtract, 
delete or distort the words used. 62 Cases of Jam v. 
United States, 340 U.S. 593, 596 (1951). The Fourth 
Circuit has stated

15. A  persuasive argument could be made that paralegal 
fees should be included in the attorney’s reasonable hourly rate 
as numerous cases have done. In the instant case, however, the 
State has taken the position that the actual cost method be used. 
Because the paralegals were employed specifically for this litiga­
tion, the State believes the actual cost method is an equitable 
resolution of this issue.



26

[W ]e do not think it permissible to construe a stat­
ute on the basis of a mere surmise as to what the 
legislature intended and to assume that it was only 
by inadvertence that it failed to state something 
other than what it plainly stated.

United States v. Deluxe Cleaners and Laundry, Inc., 511 
F.2d 926, 929 (4th Cir. 1975). Additionally, “ [cjourts are 
not authorized to rewrite a statute because they might 
deem its effects susceptible of improvement.” Badaracco 
v. C.I.R., 464 U.S. 386, 398 (1984); TV A v. Hill, 437 U.S. 
153, 194-95 (1978). Therefore, as there is no discussion 
of paralegal fees in the statute, market rates should not 
be awarded against the State.

Further, reimbursing paralegal services at market 
rates would produce a windfall to attorneys as these mar­
ket rates have a built in profit factor within them. As 
the legislative history indicates, § 1988 was never intended 
to produce windfalls to attorneys. See S.Rep. No. 94-1011, 
94th Cong., 6, reprinted in 1976 U.S. Code Cong. & Ad. 
News, 5908, 5913 (cited in Blum v. Stenson, 465 U.S. 886, 
893-94 (1984)). The legislative history is also silent on 
whether paralegal and law clerk fees are to be awarded 
and at what rates.16 Since Congress has not spoken on 
this issue, there is no clear indication of Congressional 
intent and this Court should not rewrite § 1988 to serve 
any policy purpose.

16. Only one case cited in the legislative history included 
any reference to paralegal reimbursement. In Davis v. County 
of Los Angeles, 8 E.P.D. 9444 (C.D. Cal. 1974), paralegals and 
law clerks were awarded rates of $10 per hour. The Senate 
Report, however, cites the case only for its correct applicaton 
of the Johnson v. Georgia Highway Express, 488 F.2d 714 (5th 
Cir. 1974), factors, none of which deal with law clerk and para­
legal fees.



2 7

The acceptance of the State’s position that paralegal 
expenses should only be awarded at actual costs would 
also make those costs easier to calculate. The attorney 
requesting paralegal costs would simply reveal through 
financial records how much the paralegals were generally 
paid per hour, including benefits. This would avoid un­
necessary litigation over this issue. Cf., Hensley v. Ecker- 
hart, 461 U.S. 424, 437 (1983) (fee request should not 
result in a second major litigation).

In the instant case, the use of market rates results 
in a huge profit to the attorneys. The record reflects 
that the average salary range for the paralegals was be­
tween $7 and $11 per hour. For easy calculation, the 
State suggested that $15 per hour closely approximated 
the actual costs of such employees when benefits and 
other overhead are considered. Reimbursing these hours 
at $35, $40 or $50 per hour results in an unjustified wind­
fall. These paralegals were hired specifically for this case 
and are an expense incurred.

Therefore, reimbursement at actual cost is the ap­
propriate method for compensation. This takes into ac­
count the various interests indicated by Congress. Pre­
vailing plaintiffs receive the reasonable costs of such 
services and the attorneys do not receive a windfall at 
the expense of Missouri taxpayers.



28

CONCLUSION

This case is a straightforward application of the prin­
ciples discussed in Library of Congress v. Shaw. Con­
gressional abrogation of immunity must be clearly ex­
pressed. In the Eleventh Amendment context, Atascadero 
requires an unequivocal expression of intent in unmistak­
able language that the States’ Eleventh Amendment im­
munity has been waived. The reasoning of the court 
below is erroneous because it does not defer to the rigor­
ous standards required for waivers of immunity.

42 U.S.C. § 1988 does not address, either explicitly or 
by implication, compensation for delay or prejudgment 
interest on fee awards. Under such circumstances, the 
Eleventh Amendment retains sufficient vitality to pro­
hibit the assessment of this separate, retroactive financial 
obligation on the States.

Further, under the factual circumstances of this case, 
paralegal services should be reimbursed at actual costs. 
The paralegals were hired specifically to assist in the 
prosecution of this case. Reimbursement at actual costs 
results in fair compensation, but does not provide a wind­
fall at taxpayer expense.

Accordingly, for all the above reasons, Petitioners 
pray this honorable Court to reverse the decision of the 
court of appeals and to remand this case for a redetermina­
tion of the attorney’s fees award. On remand, the district 
court would determine the historical hourly rates to be 
used in calculating the lodestar. The court would also



29

recalculate the award for paralegal services based on
actual costs.

Respectfully submitted,

W il l ia m  L. W ebster 
Attorney General 

T erry A llen

Deputy Attorney General 
Supreme Court Building 
Jefferson City, Missouri 65102 
(314) 751-3321

M ichael L. B o ico ur t*
Assistant Attorney General 

B ruce F ar m er  
B art A. M atan ic  

Assistant Attorneys General 
Counsel for Petitioners

Counsel of Record



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