Missouri v. Jenkins Brief of Respondents Kalima Jenkins et al.

    No. 88-64

I n  t h e

Bnprmu (&mxt 0 I  Ulnxttb Butm
O ctober T e e m , 1988

S tate of M issouri, et al.,
Petitioners,

K alima  J e n k in s , et al.
Respondents.

O N  W H IT  O P CER TIO R A R I TO T H E  U N IT E D  STA TES COU RT 

O F A P P E A L S  FO R  T H E  E IG H T H  C IR C U IT

BRIEF OF RESPONDENTS KALIMA JENKINS, et al.

J ay T opkis 
D a n iel  J .  L e ppe l l  
P aul, W eiss , R if k in d ,

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

J u liu s  L eV onnb  Chambers 
C harles S t e p h e n  R alston*

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

A r t h u r  A. B enson , I I
911 Main Street—Suite 1430 
Kansas City, Missouri 64105 
(816) 842-7603

R ussell E. L ovell, I I  
3111 40th Place 
Des Moines, Iowa 50310 
(515) 271-3985

T heodore M. S haw- 
634 S. Spring Street 
Los Angeles, Calif. 90014
(213) 624-2405

Attorneys for Respondents 
*Counsel of Record



STATEMENT OF THE CASE .......................................................  1

A. The Desegregation Litigation.......................................... 1

B. The Fee Award ................................................................. 3

SUMMARY OF A RGU M EN T.......................................................  4

ARGUM ENT.....................................................................................  5

I. THE ELEVENTH AMENDMENT DOES NOT 
BAR COMPENSATION FOR DELAY 
IN PAYM ENT............................................................................  5

A. This Court’s Eleventh Amendment 
Decisions Do Not Support
The State’s Position .........................................................  5

1. The Eleventh Amendment Does 
Not Apply to Awards of 
Costs or to Interest on a
Component of C osts.................................................  7

2. The Eleventh Amendment Does 
Not Require Specific Statutory 
Reference to Compensation
for Delay in Section 1988........................................  10

B. Library o f Congress v. Shaw
Is Not Controlling .........................................................  14

1. The No-Interest Rule Cannot 
Be Extended to the Eleventh 
Am endm ent............................................................. 14

TABLE OF CONTENTS

Page



2. The No-Interest Rule Would 
Be an Unreasonable Rule of
Statutory Construction Here ................................  18

C. This Court Should Overrule 
Hans v. Louisiana if It
Reaches the Question.....................................................  19

D. Section 1988 Authorizes 
Compensation for Delay in 
Fee Awards Against the
S ta tes ................................................................................  21

II. SECTION 1988 AUTHORIZES THE 
AWARD OF FEES FOR PARALEGALS 
AT MARKET RA TES.............................................................  26

A. The Result the State Seeks 
Would Undermine the Purpose
of Section 1988 ................................................................. 28

B. The Result the State Seeks 
Would Increase the Costs of
Litigation ........................................................................  30

C. The State’s Arguments Are
Without Merit ................................................................. 33

CONCLUSION ................................................................................ 35

-  ii -



TABLE OF AUTHORITIES

Cases:
Albrecht v. United States,

329 U.S. 599 (1947)......................................................................  24
Alyeska Pipeline Serv. Co. v.

Wilderness Soc‘y,
421 U.S. 240 (1975)........................    7

Atascadero State Hosp. v.
Scanlon,
473 U.S. 234 (1985).........................................................  6, 8, 11, 20

Behlar v. Smith,
719 F.2d 950 (8th Cir. 1983), 
cert, denied, 466 U.S. 958
(1984).............................................................................................  12

Bernard McMenamy Contractors,
Inc. v. Missouri State Highway 
Comm'n, 582 S.W.2d 305
(Mo. App. 1979) ..........................................................................  17

Blum v. Stenson,
465 U.S 886 (1984) .......................................................  5, 23, 26-30

Bradley v. Richmond School Bd.,
416 U.S. 696 (1974)......................................................................  24

Brown v. Board o f Educ.,
347 U.S. 483 (1954)....................................................................  1, 2

Cameo Convalescent Center, Inc. v.
Senn, 738 F.2d 836 (7th Cir.
1984), cert, denied,
469 U.S. 1106 (1985)....................................................................  32

Chesser v. Illinois,
1987 U.S. Dist. LEXIS 7398
(N.D. 111. Aug. 11, 1987)............................................................... 12

Chisholm v. Georgia,
2 Dali. (2 U.S.) 419 (1793)........................................................... 20

Page(s)

-  iii -



Page(s)
City o f Riverside v. Rivera,

A ll U.S. 561 (1986)................................................. ..................... 22
Daly v. Hill,

790 F.2d 1071 (4th Cir. 1986) .....................................................  25
Davis v. County o f Los Angeles,

8 Fair Empl. Prac. Cas. (BNA)
244, 8 Empl. Prac. Dec. (CCH)
1 9444 (C.D. Cal. June 5, 1974) .....................................  29-30, 33

Denton Constr. Co. v. Missouri 
State Highway Comm’n,
454 S.W.2d 44 (Mo. 1970) ...........................................................  17

Easter House v. Illinois 
Dep ’t o f Children 
and Family Serv.,
663 F. Supp. 456 (N.D.
111. 1987) ...................................................................................... 31

Edelman v. Jordan,
415 U.S. 651 (1974)........................................................................  7

Employees v. Department o f 
Pub. Health & Welfare,
411 U.S. 279 (1973)............................................................... 6, 8, 13

Fairmont Creamery Co. v. Minnesota,
215 U.S. 70 (1927)........................................................................  16

Feher v. Department o f Labor &
Indus. Relations, 561
F. Supp. 757 (D. Hawaii 1983)...................................................  27

Fitzpatrick v. Bitzer,
A ll U.S. 445 (1976)........................................................... 11, 15, 18

Gaines v. Dougherty County Bd. 
o f Educ., 115 F.2d 1565
(11th Cir. 1985) (per curiam) .....................................................  25

Garcia v. San Antonio Metro.
Transit Auth.,
469 U.S. 528 (1985)................................................................. 20-21

-  iv -



Page(s)

Garmong v. Montgomery County,
668 F. Supp. 1000 (S.D.
Tex. 1987)...................................................................................... 32

Gelofv. Papineau,
648 F. Supp. 912 (D. Del. 1986), 
offd in part, vacated in part,
829 F.2d 452 (3d Cir. 1987).........................................................  12

General Motors Corp. v. Devex Corp.,
461 U.S. 648 (1983)......................................................................  24

Graves v. Barnes,
700 F.2d 220 (5th Cir. 1983) .......................................................  12

Green v. Mansour,
474 U.S. 64 (1985)................................................................  7, 9, 16

GrendeVs Den, Inc. v. Larkin,
749 F.2d 945 (1st cir. 1984)...................................................  12, 25

Hans v. Louisiana,
134 U.S. 1 (1890)...............................................................  5, 19-20

Heiar v. Crawford County,
746 F.2d 1190 (7th Cir. 1984) 
cert, denied, A ll U.S. 1027
(1985).......................................................................................  23-24

Hensley v. Eckerhart,
461 U.S. 424 (1983).......................................................  3, 22-24, 29

Hutto v. Finney,
437 U.S. 678 (1978) ...............................................................passim

Jacobs v. Mancuso,
825 F.2d 559 (1st Cir. 1987)...................................................  32, 34

Jenkins v. Missouri,
838 F.2d 260 (8th Cir. 1988) ......................................................  26

Jenkins v. Missouri,
855 F.2d 1295 (8th Cir. 1988) 2



Page(s)

Jenkins v. Missouri,
593 F. Supp. 1485 (W.D. Mo.
1984)   2

Jenkins v. Missouri,
639 F. Supp. 19 (W.D. Mo. 1985), 
a jf d in part, mod. in part,
807 F.2d 657 (8th Cir. 1986)
(en banc)..............................................................  2

Johnson v. Georgia Highway 
Express, Inc.,
488 F.2d 714 (5th Cir. 1974) .......................................................  29

Johnson v. University College,
706 F.2d 1205 (11th Cir.), cert.
denied, 464 U.S. 994 (1983).........................................................  25

Jordan v. Multnomah County,
815 F.2d 1258 (9th Cir. 1987) .....................................................  25

Kawananakoa v. Polyblank,
205 U.S. 349 (1907)................................................................. 15-16

Keith v. Volpe,
501 F. Supp. 403 (C.D. Cal.
1980) .............................................................................................  32

Knight v. DeMarea,
670 S.W.2d 59 (Mo. App. 1984).................................................. 17

Lamphere v. Brown Univ.,
610 F.2d 46 (1st Cir. 1979)...........................................................  34

Laughlin v. Boatmen’s Nat’l Bank,
354 Mo. 467, 189 S.W.2d 974
(Mo. 1945) .................................................................................... 17

-  vi -



Page(s)
Liberies v. Daniel,

26 Fair Empl. Prac. Cas. (BNA)
547, 26 Empl. Prac. Dec. (CCH)
1 31,816 (N.D. 111. March 20,
1981), o ff d in part, rev’d 
in part, 709 F.2d 1122
(7th Cir. 1983)..............................................................................  12

Library o f Congress v. Shaw,
478 U.S. 310 (1986).................................. ..........  4, 9-10, 14-19, 23

Lightfoot v. Walker,
826 F.2d 516 (7th Cir. 1987) ...........................................  12, 24, 25

Loefler v. Frank,
108 S. Ct. 1965 (1988)..................................................................  24

Maher v. Gagne,
448 U.S. 122 (1980)....................................................................  6, 8

Milliken v. Bradley,
433 U.S. 267 (1977)........................................................................  7

Nevada v. Hall,
440 U.S. 410 (1979)................................................................. 15-16

New York State Ass ’n for 
Retarded Children v. Carey,
711 F.2d 1136 (2d Cir. 1983).......................................................  25

Northcross v. Board o f Educ.,
611 F.2d 624 (6th Cir. 1979), 
cert, denied, 447 U.S. 911
(1980).................................................................................  24, 25, 27

Papasan v. Allain,
478 U.S. 265 (1986)..............................................................  7, 9, 16

Pennhurst State School & Hosp. v.
Halderman, 451 U.S. 1 (1980)
(“.Pennhurst 7”) .............................................................................. 8

Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89 (1984)
(“Pennhurst IP’) ................................................................. 8, 13, 16

— vii —



Page(s)

Pennsylvania v. Delaware Valley 
Citizens Council,
107 S. Ct. 3078 (1987)................................................................... 26

Platoro, Ltd. v. Unidentified 
Remains o f a Vessel,
695 F.2d 893 (5th Cir.), cert.
denied, 464 U.S. 818 (1983).........................................................  12

Quern v. Jordan,
" 440 U.S. 332 (1979)...................................................................  7, 8

Ramos v. Lamm,
713 F.2d 546 (10th Cir. 1983) ....................................  12, 25, 27, 28

Richardson v. Byrd,
709 F.2d 1016 (5th Cir.
1983), cert, denied,
464 U.S. 1009 (1985)............................................................... 27, 31

Rogers v. Okin,
821 F.2d 22 (1st Cir. 1987)...........................................................  12

St. Joseph Light & Power Co. v.
Zurich Ins. Co.,
698 F.2d 1351 (8th Cir. 1983) .....................................................  17

Save Our Cumberland Mountains,
Inc. v. Hodel,
826 F.2d 43 (D.C. Cir. 1987), 
vacated in part, 857 F.2d 1516
(D.C. Cir. 1988)............................................................................  27

Sisco v. J.S. Alberici 
Constr. Co.,
733 F.2d 55 (8th Cir. 1984) .........................................................  25

Slay Warehousing Co. v. Reliance 
Ins. Co.,
489 F.2d 214 (8th Cir. 1974) .......................................................  17

Smyth v. United States,
302 U.S. 329 (1937)........................

-  viii -

24



Page(s)
Spanish Action Comm. v. City 

o f Chicago,
811 F.2d 1129 (7th Cir. 1987) .....................................................  27

Spray-Rite Serv. Corp v.
Monsanto Co.,
684 F.2d 1226 (7th Cir. 1982),
affd, 465 U.S. 752 (1984)............................................................. 31

Stanford Daily v. Zurcher,
64 F.R.D. 680 (N.D. Cal. 1974)...................................................  29

Steppelman v. State Highway 
Comm ’n,
650 S.W.2d 343 (Mo. App. 1983)...............................................  17

Swann v. Charlotte-Mecklenburg 
Bd. o f Educ.,
66 F.R.D. 483 (W.D.N.C. 1975) ............................................ 24, 29

The Siren,
1 Wall. (74 U.S.) 152 (1868).........................................................  15

United States v. Chemical 
Found., Inc.,
272 U.S. 1 (1926)..........................................................................  10

Vaughns v. Board of Educ.,
598 F. Supp. 1262 (D. Md. 1984), 
affd, 770 F.2d 1244 (4th Cir.
1985)   27

Whalen, Murphy, Reid v. Estate o f 
Roberts,
711 S.W.2d 587 (Mo. App. 1986)...............................................  17

Welch v. Texas Dep’t o f 
Highways & Pub. Transp.,
107 S. Ct. 2941 (1987).............................................  8, 12, 15-16, 19

Constitutional Provisions and Statutes:

U.S. Const, art III ............................................................................ 20

-  ix -



Page(s)
U.S. Const, amend. XI .............................................................passim

U.S. Const, amend. X IV ................................................... . 4, 6, 20

42 U.S.C. § 1988 ........................................................................ passim

42 U.S.C. § 20003-5(k)....................................................................... 9

Mo. Rev. Stat. § 408.020 (1986) .......................................................  17

Legislative Materials:

H. R. Rep. No. 1558, 94th Cong.,
2d Sess. (1976)............................................................. 18, 20-23, 28

S. Rep. No. 1011, 94th Cong.,
2d Sess. (1976)............................................................. 22-25, 28, 29

2 Annals of Cong. 1897 (1791).........................................................  21

Other Authorities:

Bureau of Labor, Statistics, U.S.
Dep’t of Labor, Occupational
Outlook Quarterly (Spring 1986).................................................  31

Engdahl, Immunity and Account­
ability for Positive Government 
Wrongs,
44 U. Colo. L. Rev. 1 (1972) .......................................................  15

Model Rules o f Professional
Conduct (ABA 1983) ....................................................................  23

Model Standards and Guidelines for 
Utilization o f Legal Assistants,
(NALA 1984) ..............................................................................  31

F. Pollock & F. Maitland,
History o f English Law
(2d ed. 1899) ................................................................................ 15

R. Posner, Economic Analysis o f Law 
(3d Ed. 1986) 23



No. 88-64

In The

SUPREME COURT OF THE UNITED STATES
O ctober Term, 1988

State of M issouri, et al.,

Petitioners,
v.

Kalima Jenkins, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF RESPONDENTS KALIMA JENKINS, et al.

STATEMENT OF THE CASE

Plaintiffs’ counsel come before this Court seeking affir­
mance of the fees awarded them for having proven unconstitutional 
segregated education in Kansas City, Missouri — and having obtained 
extensive remedies that hold real promise of equal educational oppor­
tunity and meaningful desegregation.

The victory was neither swift nor easy.

A. The Desegregation Litigation

In 1977, twenty-three years after Brown v. Board o f Educa­
tion, 347 U.S. 483 (1954), segregation still infected the education of 
black children in the Kansas City School District (the “School Dis­
trict”). The School District, its School Board, and the children of two 
School Board members commenced this action, seeking desegregation 
remedies against the State of Missouri and others.

-  1 -



In 1979, Arthur Benson entered an appearance on behalf 
of the plaintiff school children. Mr. Benson and his small staff prose­
cuted the case through three years of extensive motion practice and 
discovery. By 1982, however, it was apparent that this bitterly con­
tested litigation would require resources far beyond Mr. Benson’s. The 
School District, which had been realigned as a nominal defendant, ad­
mitted its historic responsibility for discrimination and supported 
plaintiffs. But the State — whose pre-Brown laws required segrega­
tion, and which had done virtually nothing post-Brown to end segrega­
tion — fought this litigation at every step, and with every resource at its 
disposal. And so, Mr. Benson sought and obtained the assistance of 
the NAACP Legal Defense and Educational Fund, Inc. (“the LDF”), a 
nonprofit organization dedicated to the enforcement of civil rights. 
The LDF entered the case as Mr. Benson’s co-counsel in March 1982.

In September 1984, after a 92-day bench trial, the district 
court held the State defendants and the School District liable. 
Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984). In June 1985, 
after a further two-week hearing on remedies, plaintiffs obtained an 
order requiring $37 million in capital improvements and $50.7 million 
in new operating programs. Jenkins v. Missouri, 639 F. Supp. 19 (W.D. 
Mo. 1985), (iff d in part, mod. in part, 807 F.2d 657 (8th Cir. 1986) (en 
banc).

While the initial remedial order was on appeal, and after 
the appeal, the district court ordered greatly increased relief: an initial 
$25 million magnet-school plan, later expanded by $196 million, and 
long-range capital improvements totalling $260 million. The court of 
appeals affirmed. Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988).

Achieving these results in the face of Missouri’s recalci­
trance was not easy. From 1979, Mr. Benson and attorneys he em­
ployed devoted 10,875 hours to the case. His law clerks (working law 
students) and paralegals worked 8,108 hours. From early 1983 to the 
end of 1985, Mr. Benson devoted nearly all of his professional time to 
this case — he could accept no other employment. Although his dedi­
cated associates and employees agreed to defer payment for overtime 
work, he paid them their base salaries throughout the litigation. He

-  2 -



exhausted his personal resources and was able to persist only by bor­
rowing $633,000. Through December 31,1986, he paid $113,706 in in­
terest on this debt and continued to pay approximately $5,000 a month 
(Benson Aff., filed Jan. 16, 1987; Tr. 131-32).

Beginning in 1982, LDF attorneys spent 10,854 hours on 
the case. Recent law school graduates, law clerks and paralegals 
worked 15,517 hours. This was the most expensive case in which the 
LDF had ever been involved; largely because of it, the LDF had deficits 
of $700,000 in 1983 and more than $1 million in 1984 (Tr. 46, 48; PI. 
Ex. 2).

B. The Fee Award

Mr. Benson and the LDF, as attorneys for the prevailing 
plaintiffs, filed applications under the Civil Rights Attorney’s Fees 
Awards Act of 1976, 42 U.S.C. § 1988 (“Section 1988”). The district 
court held a one-day hearing, at which plaintiffs presented four wit­
nesses. The State presented no witnesses; it did no more than ask 
Mr. Benson a few clarifying questions about his application (Tr. 
121-30).

On May 11, 1987, the district court issued an opinion me­
ticulously analyzing the positions of the parties. The court awarded 
Mr. Benson fees and expenses of $1,614,437 for work on the merits, 
and $72,702 for the fees litigation. The court later awarded Mr. Benson 
an additional $42,090 for monitoring fees and expenses, bringing the 
total Benson fees judgment to $1,729,230. The court awarded the LDF 
fees and expenses of $2,323,730 for work on the merits, and $42,145 for 
work on the fees litigation, for a total LDF judgment of $2,365,875. V

V Counsel did not request fees for all the time spent on the litigation. In compli­
ance with Hensley v. Eckerhart, 461 U.S. 424 (1983), the applications excluded 3,628 at­
torney hours and 7,046 hours for paralegals, law clerks and recent law graduates, repre­
senting time allocable to unsuccessful claims. Based on the hourly rates actually 
awarded, these reductions amounted to more than $700,000. The district court required 
a further reduction of 3.5 hours in the LDF application (Pet. App. A32).

-  3 -



The court found that current market rates for Kansas City 
attorneys with litigation experience and expertise comparable to 
Mr. Benson’s ranged from $125 to $175 an hour, and that Mr. Benson’s 
rate “would fall at the higher end of the range based on his expertise in 
the area of civil rights” (Pet. App. A26). The court applied a small en­
hancement to Mr. Benson’s time, awarding him $200 an hour to com­
pensate for “preclusion of other employment,” the “undesirability of 
this case” and “delay in payment” (id.). The court based its award for 
the work of the other attorneys, as well as paralegals, law clerks and 
recent law graduates, on current Kansas City market rates, “to com­
pensate . . .  for the delay in payment” (id.; see also id. at A30, A33, 
A34).

SUMMARY OF ARGUMENT

Section 1988 authorizes the federal courts to award pre­
vailing civil rights plaintiffs “a reasonable attorney’s fee as part of the 
costs.” The courts below did so. Before this Court, the State raises two 
objections to the award. Each is without merit.

1. The State contends that the courts below, by con­
sidering delay in payment in assessing a “reasonable” fee, awarded 
“prejudgment interest” (Pet. Br. 9, 21). This violates the Eleventh 
Amendment, the State claims, because Section 1988 does not provide 
for prejudgment interest against the states “in unmistakable lan­
guage” (id. at 11).

The Eleventh Amendment, however, does not apply to fee 
awards in actions for prospective relief, such as this. Moreover, Sec­
tion 1988, enacted pursuant to the Fourteenth Amendment, abrogates 
any immunity the states might otherwise enjoy. The Eleventh Amend­
ment does not require that such a statute authorize compensation for 
delayed payment “in unmistakable language” or in any particular 
form. Library o f Congress v. Shaw, 478 U.S. 310 (1986), on which the 
State relies, has no application to the Eleventh Amendment.

Moreover, this case — an action by citizens of a state 
against that state — does not fall within the plain language of the Elev­

-  4 -



enth Amendment. Hans v. Louisiana 134 U.S. 1 (1890), which held the 
Eleventh amendment applicable to such cases, should be overruled.

2. The State contends that the courts below erred in 
awarding fees for paralegals at market rates rather than “cost” (Pet. 
Br. 24-27). Neither the language of Section 1988, nor its legislative his­
tory, nor any decision of this Court supports the State’s position. In­
deed, this Court has specifically rejected the view that fees under Sec­
tion 1988 should “be calculated according to the cost of providing legal 
services rather than according to the prevailing market rate.” Blum v. 
Stenson, 465 U.S. 886, 895 (1984). The result Missouri seeks would un­
dermine the purpose of Section 1988 by discouraging private enforce­
ment of the civil rights laws. It would also promote costly, inefficient 
litigation by pressuring lawyers to do work that could be done by 
paralegals.

ARGUMENT

I.

THE ELEVENTH AMENDMENT DOES NOT BAR 
COMPENSATION FOR DELAY IN PAYMENT

The State does not suggest that the Eleventh Amendment 
restricts Congress’ power to authorize fee awards against the states. 
Nor does the State dispute Congress’ power to authorize compensa­
tion for delay. Rather, the State contends that such compensation con­
stitutes “interest,” and that the Eleventh Amendment bars the federal 
courts from awarding interest against a state absent a specific, explicit 
statutory mandate. Neither precedent nor policy supports the State’s 
view.

A. This Court’s Eleventh Amendment 
Decisions Do Not Support 
The State’s Position

This Court has held that the Eleventh Amendment re­
quires “an extraordinarily explicit statutory mandate” before a federal 
court may infer that Congress has authorized it to hear certain claims

-  5 -



against the states. Hutto v. Finney, 437 U.S. 678, 695 (1978). Where it 
applies, this requirement “insures that Congress has not imposed 
'enormous fiscal burdens on the States’without careful thought.” Id. at 
697 n.27 (quoting Employees v. Department o f Pub. Health & Welfare, 
411 U.S. 279,284 (1973)). Accordingly, before a federal court may hear 
a federal claim against a state for retroactive, monetary relief, “Con­
gress must express its intention to abrogate the Eleventh Amendment 
in unmistakably clear language in the statute itself.” Atascadero State 
Hosp. v. Scanlon, 473 U.S. 234, 243 (1985). Relying on Atascadero and 
similar decisions, the State contends that the fee awards in this case 
were impermissible, because Section 1988 does not expressly refer, “in 
the statute itself,” to liability of the states or compensation for delay 
(Pet. Br. 16).

The State’s reliance is misplaced. The stringent standards 
for abrogation set forth in this Court’s Eleventh Amendment decisions 
do not address litigation costs. Rather, they are informed and limited 
by concern for the “enormous fiscal burdens” that retroactive liability 
for prelitigation conduct may impose upon the states. Moreover, those 
decisions have no bearing on the issue here — the scope of a statute 
that lawfully and undisputedly applies against the states.

In Hutto, the Court held that Section 1988 authorizes costs, 
including attorneys’ fees, against state defendants, notwithstanding 
the Eleventh Amendment. Two rationales compelled this conclusion. 
First, Section 1988 “imposes attorney’s fees ‘as part of the costs,”’ and 
the Court “has never viewed the Eleventh Amendment as barring such 
awards.” 437 U.S. at 695; see Maher v. Gagne, 448 U.S. 122,131-32 & 
n.14 (1980). Second, “even if the Eleventh Amendment would other­
wise present a barrier to an award of fees against a state, Congress was 
clearly acting within its power under § 5 of the Fourteenth Amendment 
in removing that barrier.” Maher, 448 U.S. at 132. Either of these ra­
tionales disposes of Missouri’s claim to immunity.

-  6 -



1. The Eleventh Amendment Does Not 
Apply to Awards of Costs or to 
Interest on a Component of Costs

In enacting Section 1988, Congress provided the statutory 
authorization necessary to award attorney’s fees to prevailing civil 
rights plaintiffs. SeeAlyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 
U.S. 240 (1975). This Court’s decisions make clear that the Eleventh 
Amendment has no effect on this statute.

In Edelman v. Jordan, 415 U.S. 651 (1974), the Court held 
that the Eleventh Amendment bars actions in federal court seeking to 
impose retrospective monetary liabilities on the states. Id. at 668. The 
Court distinguished prospective relief, even though prospective relief 
may have “an ancillary effect on the state treasury.” Id. 2/ As the 
Court has explained, “Remedies designed to end a continuing viola­
tion of federal law are necessary to vindicate the federal interest in as­
suring the supremacy of that law.” Green v. Mansour, 474 U.S. 64, 68 
(1985). But “compensatory or deterrence interests are insufficient to 
overcome the dictates of the Eleventh Amendment.” Id.; see also 
Papasan v. M ain, 478 U.S. 265, 278 (1986).

In holding Section 1988 applicable to the states in Hutto, 
the Court rested its decision squarely on this distinction. The Court 
recognized that the Eleventh Amendment requirement of “an extraor­
dinarily explicit statutory mandate” is limited to “retroactive liability 
for prelitigation conduct rather than expenses incurred in litigation 
seeking only prospective relief.” 437 U.S. at 695. The Court empha­
sized that, since 1849, “[c]osts have traditionally been awarded without 
regard for the States’ Eleventh Amendment immunity,” and that “[t]he 
Court has never viewed the Eleventh Amendment as barring such 
awards, even in suits between States and individual litigants.” Id. (cita­
tions and footnote omitted).

2/ See also Quern v. Jordan, 440 U.S. 332 (1979) (mailing to inform class members of 
legal rights in federal court); Milliken v. Bradley, 433 U.S. 267 (1977) ($6 million in pro­
spective relief).

-  7 -



Accordingly, the Court held that the Eleventh Amendment 
does not affect attorney’s fees under Section 1988, because they are 
“part of the costs,” rather than retroactive liability:

Unlike ordinary “retroactive” relief such as damages or resti­
tution, an award of costs does not compensate the plaintiff for 
the injury that first brought him into court. Instead, the award 
reimburses him for a portion of the expenses he incurred in 
seeking prospective relief.

Id. at 695 n.24. And because the Eleventh Amendment does not apply, 
attorney’s fees may be awarded against the states without an “explicit 
statutory mandate” from Congress:

Just as a federal court may treat a State like any other litigant 
when it assesses costs, so also may Congress amend its defini­
tion of taxable costs and have the amended class of costs apply 
to the States, as it does to all other litigants, without expressly 
stating that it intends to abrogate the States’ Eleventh Amend­
ment immunity.

Id. at 696.

The Court reaffirmed the vitality of the retroactive-pro­
spective distinction in Quern v. Jordan, 440 U.S. 332, 344-45 n.16 
(1979), and in Maher v. Gagne, 448 U.S. 122,131 n.14. (1980). See also 
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 105-06 
(1984) (“Pennhurst IF). No Eleventh Amendment decision of this 
Court has required an “explicit statutory mandate” for prospective re­
lief from a violation of federal law, or for awards of costs incurred in 
obtaining such relief. 3/

3/ See Welch v. Texas Dep’t o f Highways & Pub. Transp., 107 S. Ct. 2941,2944 & n. 1
(1987) (action for damages under the Jones Act), Atascadero, 473 U.S. at 235 (“retroac­
tive monetary relief under § 504 of the Rehabilitation Act of 1973”); Pennhurst II, 465 
U.S. at 91 (state law claim); Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1,24 
(1980) (“Pennhurst P’) (no violation of federal law; “Congress must express clearly its in­
tent to impose conditions on the grant of federal funds”); Employees v. Department o f 
Pub. Health & Welfare, 411 U.S. 279,281 (1973) (overtime compensation under Fair La­
bor Standards Act of 1938).

-  8 -



This distinction negates any inference that the Eleventh 
Amendment affects compensation for delay in payment of attorney’s 
fees under Section 1988, Such compensation does not constitute ’’ret­
roactive liability for prelitigation conduct.” Hutto, A2>1 U.S. at 695. It 
does not “compensate the plaintiff for the injury that first brought him 
into court.” Id. at 695 n.24. Merely ancillary to prospective substantive 
relief, compensation for delay in a fee award is part of a remedy “de­
signed to end a continuing violation of federal law,” Green v. Mansour, 
474 U.S. 64, 68 (1985); it does not “compensate a party injured in the 
past by an action . . . that was illegal.” Papascm v. Attain, 478 U.S. 265, 
278 (1986).

The State, relying on Library o f Congress v. Shaw, 478 U.S. 
310 (1986), contends that compensation for delay in payment of attor­
ney’s fees is “damages,” not “costs” (Pet. Br. 19). But Library o f Con­
gress does not support the State’s position. In that case, the Court ap­
plied the “no-interest rule,” a longstanding rule of statutory construc­
tion applicable in actions against the federal government. As the Court 
stated the rule:

In the absence of express congressional consent to the award of 
interest separate from a general waiver of immunity to suit, the 
United States is immune from an interest award.

478 U.S. at 314. Under this standard, the Court held that the attorney’s 
fees provision of Title VII, 42 U.S.C. § 2003e-5(k), does not authorize 
prejudgment interest on fees awarded against the federal government. 
Although the statute authorizes “a reasonable attorney’s fee as part of 
the costs” and provides that “the United States shall be liable for costs 
the same as a private person,” the Court held that these references to 
“costs” do not satisfy the stringent requirements of the no-interest 
rule. As the Court observed, “Prejudgment interest. . .  is considered 
as damages, not a component of ‘costs.’” 478 U.S. at 321.

The distinction between “costs” and “damages,” while sig­
nificant in Library o f Congress, is immaterial here. First, the issue here 
is not whether compensation for delay in payment of costs is “costs” or 
“damages.” The issue under the Eleventh Amendment is only whether

-  9 -



such compensation constitutes “retroactive liability for prelitigation 
conduct,” Hutto, 437 U.S. at 695 — clearly it does not.

Second, Library o f Congress rested on the federal govern­
ment’s sovereign immunity, which specifically includes an immunity 
from the award of any costs, absent the government’s consent. See 
United States v. Chemical Found., Inc., 272 U.S. 1, 20-21 (1926). The 
statute at issue in Library o f Congress was thus a waiver of immunity 
from “costs,” to be strictly construed. Library o f Congress, 478 U.S. 
at 318. And the view of prejudgment interest as “damages, not a com­
ponent of ‘costs,’” informed the Court’s determination that Congress’ 
general reference to “costs,” did not satisfy the stringent requirements 
of the no-interest rule. Id. at 321.

Here, by contrast, the states do not enjoy any Eleventh 
Amendment immunity from costs comparable to the sovereign immu­
nity of the federal government. See Hutto, 437 U.S. at 695-97. A statute 
providing for costs against the states is thus not a waiver to be narrowly 
construed. Nor do the states enjoy the benefit of an Eleventh Amend­
ment “no-interest rule” requiring the searching and technical exami­
nation into the meaning of “costs” that was appropriate in Library o f 
Congress. (See infra pp. 14-19.) Here it is more appropriate to recog­
nize that interest on costs is not any part of damages on the underlying 
claim; interest on costs is fairly only a part of costs.

2. The Eleventh Amendment Does 
Not Require Specific Statutory 
Reference to Compensation for 
Delay in Section 1988

Even if compensation for delayed payment of attorney’s 
fees were a retroactive liability —- though the attorney’s fees them­
selves are not — that characterization would not affect the result in 
this case. Even if the Eleventh Amendment would otherwise immunize 
the states from compensation for delay in a fee award, Congress has 
abrogated that immunity. In holding that the Eleventh Amendment 
does not bar application of Section 1988 to the states, this Court reaf­
firmed that “Congress has plenary power to set aside the States’ immu­

-  10 -



nity from retroactive relief in order to enforce the Fourteenth Amend­
ment.” Hutto, 437 U.S. at 693 (citing Fitzpatrick v. Bitzer, 427 U.S. 445 
(1976)). The Court held that Congress, in enacting Section 1988, “un­
doubtedly intended to exercise that power.” Id. at 693.

The State contends that this exercise of Congress’ power 
may not be construed to embrace compensation for delay in payment, 
absent a clear reference to such compensation in the statute itself (Pet. 
Br. 12). While the State seeks to ground this requirement in the Elev­
enth Amendment, none of this Court’s Eleventh Amendment deci­
sions suggests such a rule. Of the cases on which the State relies, only 
Atascadero held Congress’ intent insufficiently clear to abrogate the 
Eleventh Amendment in enforcing the Fourteenth Amendment. And 
the issue in Atascadero was whether a particular statute (Section 504 of 
the Rehabilitation Act of 1973) authorized actions against the states at 
all. Neither Atascadero nor any of this Court’s other decisions suggests 
that the requirement of “unmistakably clear language” might apply in 
determining the scope of a statute, such as Section 1988, that undis- 
putedly abrogates the states’ Eleventh Amendment immunity.

The State cannot and does not dispute that Section 1988 
applies against it. It cannot and does not dispute that the balance re­
quired by the federal system has been struck in favor of fee awards 
against the states when they have violated the civil rights laws. The 
State contends only that one of the natural incidents of such awards — 
compensation for delay in payment — occupies a special position and 
requires separate, explicit congressional authorization. This conten­
tion has no more basis in the Eleventh Amendment than it does in 
logic.

This Court has never held that the Eleventh Amendment 
requires a separate, express reference to prejudgment interest, or com­
pensation for delay, before a state may be held liable for such pay­
ments under a federal statute that otherwise lawfully applies to it. And

-  11 -



the lower courts have routinely made such awards under Section 1988, 
as well as under other statutes that create rights against the states. 4/ 
Indeed, even where an express waiver of Eleventh Amendment immu­
nity by the state is required, no separate, express waiver respecting 
prejudgment interest has previously been considered necessary. See 
Platoro, Ltd. v. Unidentified Remains o f a Vessel, 695 F.2d 893, 906 & 
n.20 (5th Cir.), cert, denied, 464 U.S. 818 (1983).

The state urges that “the Eleventh Amendment issue was 
not raised” in cases such as these (Pet. Br. 10 n.6). Yet the one lower 
court case the State cites against these precedents did not consider 
“the Eleventh Amendment issue” at all. It merely assumed the exis­

tence of an “Eleventh Amendment immunity from prejudgment inter­
est on fee awards,” without explanation. Rogers v. Okin, 821 F.2d 22,27 
(1st Cir. 1987).

Nothing in this Court’s Eleventh Amendment jurispru­
dence supports the assumption in Rogers. In Welch v. Texas Depart­
ment o f Highways & Public Transportation, 107 S. Ct. 2941 (1987), the 
Court elaborated the rationale behind the requirement that Congress 
express its intention to abrogate the Eleventh Amendment “in unmis­
takable language in the statute itself’:

We have been unwilling to infer that Congress intended to ne­
gate the States’ immunity from suit in federal court, given the 
“vital role of the doctrine of sovereign immunity in our federal 
system.” . . . Moreover, the courts properly are reluctant to in­
fer that Congress has expanded our jurisdiction.

4/ See, e.g., Lightfoot v. Walker, 826 F.2d 516 (7th Cir. 1987) (Section 1988); Gren­
der s Den, Inc., v. Larkin, 749 F.2d 945 (1st Cir. 1984) (same); Ramos v. Lamm, 713 F.2d 
546 (10th Cir. 1983) (same); Graves v. Barnes, 700 F.2d 220,224 (5th Cir. 1983) (fee award 
under 42 U.S.C. § 19731(e)); Behlar v. Smith, 719 F.2d 950 (8th Cir. 1983) (backpay award 
under Title VII), cert, denied, 466 U.S. 958 (1984); Chesser v. Illinois, 1987 U.S. Dist. 
LEXIS 7398, at 12 (N.D. 111. Aug. 11,1987) (same); Gelofv. Papineau, 648 F. Supp. 912, 
929,931 (D. Del. 1986) (same), a ff d in part, vacated in part on other grounds, 829 F.2d 452 
(3d Cir. 1987); Liberies v. Daniel, 26 Fair Empl. Prac. Cas. (BNA) 547, 26 Empl. Prac. 
Dec. (CCH) 11 31,816 (N.D. 111. March 20,1981) (same), affd in part, rev’d in part on other 
grounds, 709 F.2d 1122 (7th Cir. 1983).

-  12 -



Id. at 2946 (quoting Petmhurst II, 465 U.S. at 99). 'These considerations 
properly require a searching inquiry before courts conclude that Con­
gress intended a particular enactment to impose retroactive liability 
on the states. As this Court has recognized, the requirement of a for­
mal indication of Congress’ intent “insures that Congress has not im­
posed ‘enormous fiscal burdens on the States’ without careful 
thought”. Hutto, 437 U.S. at 697 n.27 (quoting Employees v. Depart­
ment o f Pub. Health & Welfare, 411 U.S. 279, 284 (1973)).

But the needs of the federal system certainly do not suggest 
that compensation for delay should occupy any special place under the 
Eleventh Amendment, any more than any other particular that “a rea­
sonable attorney’s fee” may embrace. The State contends that includ­
ing compensation for delay in fee awards would “impose what could be 
a substantial financial obligation on the States” (Pet. Br. 22). Admit­
tedly, the state treasuries will pay somewhat greater awards if they 
must compensate for delay. But the same is true “whenever a filing fee, 
or a new item, such as an expert witness’ fee, is added to the category of 
taxable costs.” Hutto, 437 U.S. at 697. And “it would be absurd to re­
quire an express reference to state litigants” for each such item. Id. 
at 696-97. Indeed, the State’s contention is belied by the circumstances 
of this case. The total fee award here — approximately $4 million for 
nearly a decade of litigation — is about one percent of the cost of the 
substantive remedies ordered to date. The compensation for delay is 
only a fraction of that one percent. To the State, the additional burden 
is inconsequential — only to the attorneys is it significant.

Nor does the inclusion of compensation for delay consti­
tute an expansion of the federal courts’ jurisdiction. Congress has by 
statute given the federal courts jurisdiction to entertain applications 
for costs, including attorney’s fees, against the states. It cannot be a 
further expansion of jurisdiction to consider, in assessing such awards, 
all the factors normally required by the statute’s purposes, including 
delay in payment.

-  13 -



B. Library of Congress v. Shaw
Is Not Controlling

The State contends that Library o f Congress v. Shaw, 478 
U S. 310 (1986), proscribes compensation for delayed payment in any 
fee award against a state under Section 1988. As the State would have 
it, the no-interest rule applied in Library o f Congress is a principle of 
Eleventh Amendment jurisprudence. That view, however, finds no 
support in Library o f Congress, which has nothing to do with the Elev­
enth Amendment, does not mention the Eleventh Amendment and 
does not rely on any precedent construing the Eleventh Amendment.

1. The No-Interest Rule Cannot
Be Extended to the Eleventh 
Amendment

In Library o f Congress, the Court traced the history of the 
no-interest rule to the “historical view that interest is an element of 
damages separate from damages on the substantive claim,” and the 
corollary common-law rule that, because interest was “generally pre­
sumed not to be within the contemplation of the parties,” courts in 
England “allowed interest by way of damages only when founded upon 
agreement of the parties.” 478 U.S. at 314-15 (footnote omitted). The 
Court noted that the common-law requirement of an agreement 
gradually faded in suits between private parties, but “assumed special 
force when applied to claims for interest against the United States,” 
since “[a]s sovereign, the United States, in the absence of its consent, is 
immune from suit.” Id. at 315. As the Court stated, “This basic rule of 
sovereign immunity, in conjunction with the requirement of an agree­
ment to pay interest, gave rise to the rule that interest cannot be recov­
ered unless the award of interest was affirmatively and separately con­
templated by Congress.” Id. This explanation of the no-interest rule 
demonstrates its inapplicability here.

First, the common-law requirement of an agreement to pay 
interest can have no effect where, as here, Congress has acted to en­
force the Fourteenth Amendment. When Congress has done so, the 
states’ consent to suit is irrelevant:

-  14 -



Congress can abrogate the Eleventh Amendment without the 
States’ consent when it acts pursuant to its power “‘to enforce, 
by appropriate legislation’ the substantive provisions of the 
Fourteenth Amendment.”

Welch v. Texas Dep’t o f Highways & Pub. Transp., 107 S. Ct. 2941,2946 
(1987) (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)).

Congress undoubtedly had the power, in Section 1988, to 
require fee awards, including compensation for delay, with or without 
states agreement. The only question is whether Congress made that 
choice. All the available evidence indicates it did. {See infra pp. 21-26.)

Second, the “basic rule of sovereign immunity” relied on in 
Library o f Congress is not applicable to actions governed by the Elev­
enth Amendment. It derives from the common-law doctrine under 
which the sovereign was immune, absent its consent, “from suit in its 
own courts.” Nevada v. Hall, 440 U.S. 410, 414 (1979); see also The Si­
ren, 7 Wall. (74 U.S.) 152, 154 (1868) (“It is a familiar doctrine of the 
common law, that the sovereign cannot be sued in his own courts with­
out his consent.”). That common-law doctrine has origins — and con­
tours — very different from those of the constitutional immunity em­
bodied in the Eleventh Amendment.

The common-law doctrine “had its origins in the feudal 
system,” under which “no lord could be sued by a vassal in his own 
court, but each petty lord was subject to suit in the courts of a higher 
lord. Since the King was at the apex of the feudal pyramid, there was no 
higher court in which he could be sued.” Nevada v. Hall, 440 U.S. at 415 
(citing F. Pollock & F. Maitland, History o f English Law 518 (2d ed. 
1899); Engdahl, Immunity and Accountability for Positive Government 
Wrongs, 44 U. Colo. L. Rev. 1, 2-5 (1972)). The doctrine has been ex­
plained also as embodying a fundamental attribute of sovereignty, “the 
right to determine what suits may be brought in the sovereign’s own 
courts.” Id. Thus, Justice Holmes explained sovereign immunity as 
based “on the logical and practical ground that there can be no legal 
right as against the authority that makes the law on which the right 
depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907),

-  15 -



quoted in Nevada v. Hall, 440 U.S. at 415-16. Accordingly, the 
common-law doctrine of sovereign immunity does not apply to actions 
against a sovereign in the courts of another, co-equal (or “higher”) sov­
ereign.

The Eleventh Amendment, by contrast, embodies a consti­
tutional principle that is necessarily subject to the demands of our fed­
eral system. In particular, the immunity conferred by the Eleventh 
Amendment must be reconciled with “the need to promote the vindi­
cation of federal rights.” Pennhurst II, 465 U.S. at 105; see also 
Papasan v. Attain, 478 U.S. 265, 276-78(1986); Green v. Mansour, 474 
U.S. 64, 68 (1985). There is thus no reason to assume that immunity 
under the Eleventh Amendment is coextensive with the sovereign’s 
common-law immunity from suit in its own courts.

Nothing in the “structure and requirements of the federal 
system,” Welch, 107 S. Ct. at 2953, requires this Court to read a no­
interest rule into the Eleventh Amendment. Once Congress has deter­
mined, as it did with Section 1988, that a particular federal policy mer­
its enforcement against the states, Congress has declared that the 
usual federal-state balance does not obtain. And the requirements of 
the federal system dictate that the state is, to that extent at least, no 
longer sovereign, but is subject to the same rights and liabilities as 
other parties. The applicable principle of federalism is that articulated 
in Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 (1927):

Though a sovereign, in many respects, the state when a party to 
litigation in this Court loses some of its character as such.

Id. at 74. Specifically in the matter of costs — the issue under Section 
1988 — “a federal court may treat a State like any other litigant.” 
Hutto, 437 U.S. at 696.

Third, even if the constitutional immunity of the states un­
der the Eleventh Amendment were coextensive with their common- 
law immunity as sovereigns in their own courts, that would not require 
application of a no-interest rule here. Although common-law notions 
of sovereign immunity are a necessary predicate to the no-interest

-  16 -



rule, it is far from clear that the rule is an inescapable feature of 
common-law sovereign immunity. The State of Missouri, for example, 
does not apply such a rule in its own courts. While Missouri has a gen­
eral statute authorizing awards of prejudgment interest, the statute 
does not explicitly provide for such awards against the state. Mo. Rev. 
Stat. § 408.020 (1986). 5/ The Missouri courts, however, apply it 
against the State.6 7/ The no-interest rule, which Missouri itself does 
not credit, cannot reasonably be considered so basic to sovereign im­
munity as to warrant being enshrined in the Constitution. V

5/ Section 408.020 provides:
Creditors shall be allowed to receive interest at the rate of nine percent per an­
num. 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 prom­
ise to pay interest has been made.

6/ Denton Constr. Co. v. Missouri State Highway Comm’n, 454 S.W.2d 44 (Mo. 
1970); Steppelman v. State Highway Comm ’n., 650 S. W.2d 343,345 (Mo. App. 1983); Ber­
nard McMenamy Contractors, Inc. v. Missouri State Highway Comm’n, 582 S.W.2d 305 
(Mo. App. 1979).

71 Alternatively, the Missouri decisions awarding prejudgment interest against the
State may be viewed as construing § 408.020 to waive any no-interest immunity that 
might otherwise exist. Specifically, an award of attorney’s fees meets the standards of 
Section 408.020. See Laughlin v. Boatmen’s Nat'l Bank, 354 Mo. 467, 189 S.W.2d 974 
(Mo. 1945) (unliquidated claims for legal services); Whalen, Murphy, Reid v. Estate o f 
Roberts, 711 S.W.2d 587,590 (Mo. App. 1986) (error not to award prejudgment interest 
on an attorney’s fees claim); Knight v. DeMarea, 670 S.W.2d 59 (Mo. App. 1984). And 
where Section 408.020 applies, its provisions are mandatory; Denton Constr. Co. v. Mis­
souri State Highway Commit, 454 S. W. 2d (Mo. 1970); St. Joseph Light & Power Co. v. 
Zurich Ins. Co., 698 F.2d 1351,1355 (8th Cir. 1983); see also Slay Warehousing Co. v. Reli­
ance Ins. Co., 489 F.2d 214, 215 (8th Cir. 1974).

While a waiver of immunity in Missouri’s own courts would be insufficient “to 
subject [it] to suit in federal court,” Atascadero, 473 U.S. at 241 (emphasis omitted), Mis­
souri is already subject “to suit in federal court,” by virtue of the important federal poli­
cies embodied in the Fourteenth Amendment and the statutes implementing it.Thus, 
even if the Eleventh Amendment otherwise entailed an immunity from interest, feder­
alism concerns would not justify its invocation by a defendant like Missouri, which has 
waived the immunity in cases where no national policy is involved.

-  17 -



2. The No-Interest Rule Would 
Be an Unreasonable Rule of 
Statutory Construction Here

Library o f Congress in the last analysis did no more than 
apply an established principle of statutory construction in its tradi­
tional context. To apply the no-interest rule here would be a very dif­
ferent matter.

Library o f Congress rested explicitly on a long-established 
and oft-repeated fixture of our national jurisprudence:

For well over a century, this Court, executive agencies, and 
Congress itself have recognized that federal statutes cannot be 
read to permit interest to run on a recovery against the United 
States unless Congress affirmatively mandates that result.

478 U.S. at 316. The Court cited numerous decisions, prior to the en­
actment of Title VII, the statute in issue, affirming and reaffirming the 
requirements of the no-interest rule. See id. at 315-17. The Court cited 
numerous opinions of Attorneys General, over the past 170 years, ar­
ticulating the same rule. Indeed, the Court noted Congress’ own recog­
nition of the no-interest rule: “When Congress has intended to waive 
the United States’ immunity with respect to interest, it has done so ex­
pressly.” Id. at 318 (footnote omitted).

Congress acted against a very different background when 
it authorized the award of civil rights attorney’s fees against the states. 
Congress specifically relied upon the fact that “the 11th Amendment is 
not a bar to the awarding of counsel fees against state governments.” 
H.R. Rep. No. 1558, 94th Cong., 2d Sess. 7 n.14 (1976) (“House Re­
port”) (citing Fitzpatrick v. Bitzer, A ll U.S. 445 (1976)). Congress had 
no reason to suspect that a separate, express reference to interest or 
compensation for delay was necessary. There is no reason to ignore

-  18



Congress’ purpose solely because it was not expressed in a particular 
form — a form that this Court has never previously required. 8/

C. This Court Should Overrule 
Hans v. Louisiana if It Reaches 
the Question

If this Court were to conclude, with the State, that the Elev­
enth Amendment bars compensation for delay, it would then face the 
question whether the Eleventh Amendment applies in this case. The 
language of the amendment could scarcely be simpler, plainer or 
clearer: it prohibits only actions “against one of the United States by 
Citizens of another State, or by Citizens or Subjects of any Foreign 
State.” U.S. Const, amend. XI. This action, however, involves claims 
by citizens of a state against their own state.

In Welch, four members of this Court reaffirmed the hold­
ing of Hans v. Louisiana, 134 U.S. 1 (1890), that the Eleventh Amend­
ment embodies a principle of state sovereign immunity broader than 
its terms, extending to actions by a citizen of a state against that state. 
But four other members of the Court reaffirmed the view they ex­
pressed in Atascadero, 473 U.S. at 247-302 (Brennan, J., dissenting), 
that Hans misconstrued the Eleventh Amendment. Welch, 107 S. Ct. at 
2958-70. They argued that the Eleventh Amendment does not bar 
claims under the federal question and admiralty jurisdictions or ac­
tions by a citizen against his or her own state. Id. Justice Scalia found it 
unnecessary to consider whether Hans was correctly decided, saying 
that Congress had enacted the statute in question (the Jones Act)

8/ Even if the no-interest rule applied under the Eleventh Amendment, it would 
not apply here, because no interest was awarded. Unlike the award in Library o f Con­
gress, the award here was based on current market rates; it was not adjusted by an overall 
factor to compensate for all losses due to delay. Indeed, the record here shows that use of 
hourly rates could not fully compensate for lost interest (Tr. 113-16; PI. Ex. 5, at 10; 
Ward Aff., filed Jan. 16,1987). While the Court in Library o f Congress stated that awards 
of interest, under any name, are forbidden absent the consent of the United States, the 
present case does not involve “simply. . .  devising a new name for an old institution.” 
Library o f Congress, 478 U.S. at 321. Here, the method used — not just the name applied 
— was different from awarding interest. And this method, basing the lodestar on current 
market rates, was not before the Court in Library o f Congress.

-  19 -



against the background of Hans and therefore could not have intended 
to grant to federal courts jurisdiction over actions against the states. 
Id. at 2957-58.

If the Court were now to conclude that the Eleventh 
Amendment includes a no-interest rule, this case would necessarily 
raise the question that Justice Scalia did not reach. In enacting Section 
1988, Congress clearly intended that it apply against the states, as this 
Court has held. Rather than acting within the confines of Hans, Con­
gress explicitly relied on Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which 
held that “the Eleventh Amendment, and the principle of state sover­
eignty which it embodies . . . are necessarily limited by the enforce­
ment provisions of § 5 of the Fourteenth Amendment.” Id. at 456 (cit­
ing Hans); see House Report at 7 n.14.

In urging the Court to overrule Hans, we have little to add 
to Justice Brennan’s dissenting opinions m Atascadero and Welch. We 
do note, however, with all respect, that the plain language of the Elev­
enth Amendment is impossible to square with the holding in Hans. In 
its extraordinarily precise specificity — prohibiting suits “against one 
of the United States by Citizens of another State, or by Citizens or Sub­
jects of any Foreign State” — it stands in stark contrast to the broad 
language of the first ten amendments. That specificity suggests an 
equally specific intent: to override the holding in Chisholm v. Georgia, 
2 Dali. (2 U.S.) 419 (1793), which construed Article III to confer juris­
diction of precisely such suits, even where jurisdiction would not other­
wise obtain. See Welch, 107 S. Ct. at 2964-68 (Brennan, J., dissenting).

We note also that the framers of the Eleventh Amendment 
would not likely have considered the states to need protection from 
Congress or, therefore, from the federal courts under the federal ques­
tion jurisdiction. Congress was limited to enumerated powers, and the 
Tenth Amendment reserved to the states, and to the people, all powers 
not conferred on Congress. As this Court has recognized, the structure 
of the federal government provided whatever protection the states 
might need from the federal legislature:

It is no novelty to observe that the composition of the Federal
Government was designed in large part to protect the States

-  20 -



from overreaching by Congress. The Framers thus gave the 
States a role in the selection both of the Executive and the Leg­
islative Branches of the Federal Government. The States were 
vested with indirect influence over the House of Representa­
tives and the Presidency by their control of electoral qualifica­
tions and their role in Presidential elections . .  . They were 
given more direct influence in the Senate, where each State re­
ceived equal representation and each Senator was to be se­
lected by the legislature of his State.

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-51 
(1985); see also id. at 549 (“’Interference with the power of the states 
was no constitutional criterion of the power of Congress.’”) (quoting 2 
Annals of Cong. 1897 (1791) (Madison)).

If the Constitution leaves Congress free to regulate the 
states under its commerce power — if the political process is pre­
sumed to afford the states any needed protection from such regula­
tion — then surely the framers of the Eleventh Amendment did not 
believe that the same political process would be inadequate to protect 
the states, to the extent necessary, from claims arising under the Con­
stitution and laws of the United States.

D. Section 1988 Authorizes
Compensation for Delay in Fee 
Awards Against the States

Since Congress undisputedly has the power to require that 
the states compensate for delay in payment under Section 1988, and 
since the Eleventh Amendment imposes no special standard in deter­
mining whether Congress exercised that power, the ultimate question 
is whether Congress has done so.

The anwer is clear. As this Court has observed, Section 
1988 “primarily applies to laws passed specifically to restrain state ac­
tion.” Hutto, 437 U.S. at 694. It “has a history focusing directly on the 
question of state liability.” Id. at 698 n.31. According to the House 
Report:

-  21 -



The greater resources available to governments provide an am­
ple base from which fees can be awarded to the prevailing 
plaintiff in suits against governmental officials or entities.

House Report at 1, quoted in Hutto, 437 U.S. at 694. To hold that Sec­
tion 1988 applies against the states with any less force than against 
other parties would be to ignore Congress’ intent. And Congress’ pur­
pose in Section 1988 -  to attract first-quality lawyers to civil rights 
cases by providing fully compensatory fees -  cannot be accomplished 
without compensation for delay.

Congress enacted Section 1988 in recognition of the impor­
tant role of private plaintiffs in civil rights enforcement — a recogni­
tion that plaintiffs with meritorious civil rights claims “appear before 
the court cloaked in a mantle of public interest.” Id. at 6. “The pur­
pose of § 1988 is to ensure ‘effective access to judicial process’ for per­
sons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 
429 (1983) (citing House Report at 1).

Congress considered fee awards an “essential remedy,” be­
cause civil rights plaintiffs often have little or no money with which to 
hire a lawyer. See S. Rep. No. 1011,94th Cong., 2d Sess. 2 (1976) (“Sen­
ate Report”). In addition, the remedies in civil rights litigation may be 
“nonpecuniary in nature.” Id. at 6. Such remedies provide no fund 
from which to pay a lawyer. See generally City o f Riverside v. Rivera, 
A ll U.S. 561, 577-78 (1986). Without fee awards, private enforcement 
of the civil rights laws would thus be an empty promise — private citi­
zens would have no “meaningful opportunity to vindicate the impor­
tant Congressional policies which these laws contain.” Senate Report 
at 2.

In view of the critical importance of private civil rights en­
forcement, it is necessary to attract first-rate lawyers to the task — 
persons deprived of their civil rights should not be sent to the back of 
the bus to find a lawyer — and Congress so understood. Congress 
sought “to attract competent counsel in cases involving civil and con­
stitutional rights.” House Report at 9. To accomplish this, Congress 
determined to compensate prevailing counsel in civil rights cases just

-  22 -



as in other complex litigation on behalf of paying clients. Fee awards 
under Section 1988 must be similar to what “is traditional with attor­
neys compensated by a fee-paying client.” Senate Report at 6. Ac­
cordingly:

It is intended that the amount of fees awarded . . .  be governed 
by the same standards which prevail in other types of equally 
complex Federal litigation, such as antitrust cases . . . .

Id., quoted in Blum v. Sternon, 465 U.S. 886, 893 (1984); see also House 
Report at 8-9. As this Court held in Blum:

The statute and legislative history establish that “reasonable 
fees” under § 1988 are to be calculated according to the pre­
vailing market rates in the relevant community.

465 U.S. at 895. And where “a plaintiff has obtained excellent results, 
his attorney should recover a fully compensatory fee.” Hensley, 461 
U.S. at 435.

These principles require that fee awards include, in appro­
priate circumstances, an element of compensation for delay in pay­
ment. Lawyers typically bill their clients, and expect payment, on a cur­
rent basis, monthly or quarterly. Indeed, lawyers are free to require 
advance payment of a fee. Model Rules o f Professional Conduct, 
Rule 1.5 comment (ABA 1983). In contrast, an attorney enforcing the 
civil rights laws on behalf of an impecunious client must await pay­
ment until his or her client becomes a “prevailing party.” And, of 
course, compensation delayed is compensation diminished. As infla­
tion erodes the real value of currency, delayed payment has less value 
than prompt payment in the same amount. Moreover, obtaining 
money — and the use of it — earlier rather than later has a recognized 
economic value; in addition to losses from inflation, delayed payment 
entails a “real opportunity cost of capital.” Library o f Congress, 478 
U.S. at 322 n.7 (citing R. Posner, Economic Analysis o f Law 180 (3d ed.
1986)). As Judge Posner has put it:

The usual assumption in economics as in life is that a dollar
today is worth more than a dollar tomorrow, both because it

-  23 -



can be invested and earn interest and because the future is un­
certain.

Heiar v. Crawford County, 746 F.2d 1190,1203 (7th Cir. 1984), cert, de­
nied, 472 U.S. 1027 (1985). Accordingly, this Court has recognized in 
other contexts that full compensation must include compensation for 
delay in payment. 9/

These concerns take on special importance for fee awards 
under Section 1988, because civil rights litigation often takes many 
years before counsel receive any payment. 10/ A prevailing civil rights 
plaintiffs lawyer, absent compensation for delay, would receive less 
compensation — in most cases a great deal less — than he or she could 
have received doing the same work for a currently-paying client at rea­
sonable market rates. And that result would flatly contravene Con­
gress’ objective that these lawyers receive what “is traditional with at­
torneys compensated by a fee-paying client.” Senate Report at 6. A 
fee award diluted by the passage of time cannot be “fully compensa­
tory.” Hensley, 461 U.S. at 435.

The legislative history of Section 1988 demonstrates that 
awards must account for the hardship that results from delayed pay­
ment. The Senate Report cited Bradley v. Richmond School Board, 416 
U.S. 696 (1974), in which this Court upheld an interim fee award and 
noted:

To delay a fee award until the entire litigation is concluded 
would work substantial hardship on plaintiffs and their coun­
sel, and discourage the institution of actions despite the clear 
congressional intent to the contrary. . .  .

9/ Loefler v. Frank, 108 S. Ct. 1965, 1971 (1988) (backpay award under Title VII); 
General Motors Corp. v. Devex Corp., 461 U.S. 648 (1983) (damages for patent infringe­
ment); Albrecht v. United States, 329 U.S. 599, 605 (1947) (“just compensation” under 
Fifth Amendment); Smyth v. United States, 302 U.S. 329, 353-54 (1937) (same).

10/ See, e.g., Hutto, 437 U.S. at 681 (9 years); Lightfoot v. Walker, 826 F.2d 516, 517 
(7th Cir. 1987) (14 years); Northcrvss v. Board ofEduc., 611 F.2d 624,628 (6th Cir. 1979) 
(19 years), cert, denied, 447 U.S. 911 (1980); Swann v. Charlotte-Mecklenburg Bd. of 
Educ., 66 F.R.D. 483, 484 (W.D.N.C. 1975) (7 years).

-  24 -



Id. at 723, cited in Senate Report at 5. And so, in discussing the timing 
of awards under Section 1988, the Senate Report stated that “[i]n ap­
propriate circumstances, counsel fees under [Section 1988] may be 
awarded pendente lite.” Senate Report at 5.

If the timing of fee awards must take on flexibility to ac­
count for the “substantial hardship” that may result from delayed 
compensation, then it begs credulity to suggest that the term “reason­
able attorney’s fee” — which by its nature mandates discretion in the 
district courts and case-by-case determination, see Hensley, 461 U.S, 
at 429, 437 — must be read to ignore that same hardship.

In applying Section 1988, the lower courts have routinely 
provided compensation for delay in payment. 11/ As the Fourth Cir­
cuit has stated:

Civil Rights litigation often spans several years, and conse­
quently compensation under § 1988 often occurs long after the 
relevant services have been rendered. This delay in payment of 
attorney’s fees “obviously dilutes the eventual award and may 
convert an otherwise reasonable fee into an unreasonably low 
one”.

*  *  *

Delay necessarily erodes the value of a fee that would have 
been reasonable if paid at the time the services were rendered. 
Consequently, an award based upon historic rates which does 
not take delayed payment into account will not be a fully com­
pensatory fee.

Daly v. Hill, 790 F.2d 1071, 1081 (4th Cir. 1986) (quoting Johnson v. 
University College, 706 F.2d 1205,1210 (11th Cir.), cert, denied, 464 U.S. 
994 (1983)).

11/ See, e.g., Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 951,955 (1st cir. 1984); New 
York State Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1152 (2d Cir. 1983); 
Northcross v. BoardofEduc., 611 F.2d 624,640 (6th Cir. 1979), cert, denied, 447 U.S. 911 
(1980); Lightfoot v. Walker, 826 F.2d 516,523 (7th Cir. 1987); Sisco v.J.S. Alberici Constr. 
Co., 733 F.2d 55, 59 n.3 (8th Cir. 1984); Jordan v. Multnomah County, 815 F. 2d 1258, 
1262-63 n.7 (9th Cir. 1987); Ramos v. Lamm, 713 F.2d 546,555 (10th Cir. 1983); Gaines v. 
Dougherty County Bd. ofEduc., 775 F.2d 1565, 1572 (11th Cir. 1985) (per curiam).

-  25 -



This Court has also recognized the propriety of these ap­
proaches, albeit in dictum:

When plaintiffs’ entitlement to attorney’s fees de­
pends on success, their lawyers are not paid until a favorable 
decision finally eventuates, which may be years later, as in this 
case. Meanwhile, their expenses of doing business continue 
and must be met. In setting fees for prevailing counsel, the 
courts have regularly recognized the delay factor, either by 
basing the award on current rates or by setting the fee based on 
historical rates to reflect its present value. . . . Although delay 
and the risk of nonpayment are often mentioned in the same 
breath, adjusting for the former is a distinct issue that is not 
involved in this case. We do not suggest, however, that adjust­
ments for delay are inconsistent with the typical fee-shifting 
statute.

Pennsylvania v. Delaware Valley Citizens Council, 107 S. Ct. 3078, 3081 
(1987) (citations omitted); see also id. at 3099 (Blackmun, J., dissent­
ing).

II.

SECTION 1988 AUTHORIZES THE AWARD OF 
FEES FOR PARALEGALS AT MARKET RATES

In Blum v. Stenson, 465 U.S. 886 (1986), this Court held that 
fees under Section 1988 “are to be calculated according to the prevail­
ing mandet rate in the relevent community.” Id. at 895. Accordingly, 
the district court in this case awarded Mr. Benson $225,085, and the 
LDF $431,338, in paralegal and law clerk fees, based on hourly rates of 
$35 for law clerks (law students), $40 for paralegals and $50 for recent 
law school graduates. Mr. Benson’s law clerks and paralegals had 
worked 8,108 hours on the case; the LDF’s law clerks, paralegals and 
recent law school graduates had worked 15,517 hours. The court of ap­
peals affirmed the award, saying that “market considerations should 
govern, but it is not necessary to adopt an ironclad rule in this case.” 
Jenkins v. Missouri, 838 F.2d 260, 266 (8th Cir. 1988). Numerous other

-  26 -



lower courts have held that market considerations should govern para­
legal fees. 12/

The paralegals in this case performed a variety of tasks 
that traditional clerical employees could not handle — tasks that 
would otherwise have fallen to lawyers. The two paralegals whose work 
made up 80 percent of Mr. Benson’s paralegal claim were both college 
graduates. One had a B.A. in paralegal studies; the other has since 
graduated from law school. In this litigation, they assisted with docu­
ment discovery and established the filing system. They interviewed wit­
nesses. They summarized deposition transcripts and exhibits for ex­
pert witnesses. They prepared graphs, charts and exhibits for trial. 
They assisted at trial by logging the exhibits. (Johnson Aff., filed 
Jan. 16, 1987; Zinn Aff., filed Jan. 16, 1987.)

The State does not dispute that the work of paralegals in 
this case was reasonably necessary to prosecution of the action and 
contributed significantly to the result. The State does not dispute that 
the paralegal rate awarded reflected the market rate in the relevant 
community; it was in fact “a little bit below” the Kansas City average 
(Tr. 110). Nevertheless, the State contends that the paralegal work here 
should be compensated not at “prevailing market rates” — the meas­
ure prescribed by this Court, Blum, 465 U.S. at 895 — but at “cost.” 
There is no basis for such a result.

12/ See, e.g., Spanish Action Comm. v. City o f Chicago, 811 F.2d 1129,1138 (7th Cir. 
1987); Save Our Cumberland Mountains, Inc. v. Model, 826 F.2d 43, 54 & n.7 (D.C. Cir. 
1987) (30 U.S.C. § 1270), vacated in part on other grounds, 857 F.2d 1516 (D.C. Cir. 1988); 
Ramos v. Lamm, 713 F.2d 546, 558-59 (10th Cir. 1983); Richardson v. Byrd, 709 F.2d 
1016, 1023 (5th Cir. 1983) (Title VII) cert, denied, 464 U.S. 1009 (1983); Northcross v. 
Board o f Educ., 611 F.2d 624, 637 (6th Cir. 1979), cert, denied, 447 U.S. 911 (1980); 
Vaughns v. Board o f Educ., 598 F. Supp. 1262, 1283 (D. Md. 1984), affd, 770 F.2d 1244 
(4th Cir. 1985); Feher v. Department o f Labor & Indus. Relations., 561 F. Supp. 757, 766 
(D. Hawaii 1983).

-  27 -



A. The Result the State Seeks
Would Undermine the Purpose of 
Section 1988

Separate billing for paralegals is an “increasingly wide­
spread custom” in the legal community. Ramos v. Lamm, 713 F.2d 546, 
558 (10th Cir. 1983). 13/ And the record in this case confirms that the 
custom is to bill for that time at rates governed by market considera­
tions, not at “cost.” The evidence includes a 1986 Survey of Law Firm 
Economics, containing 1985 data (PI. Ex. 4). That survey shows that, in 
metropolitan areas with populations over one million like Kansas City, 
paralegals’ time was billed at an average hourly rate of $44 (id. at 58). 
But these paralegals were paid an average of $26,049 annually, includ­
ing benefits, for an average of 1,355 billable hours, or $19.22 per bill- 
able hour (id. at 79, 129).

The legislative history of Section 1988 suggests strongly 
that compensation for the work of paralegals in civil rights cases 
should follow the custom of the market. The purpose of the statute is to 
promote effective private enforcement of the civil rights laws by “at­
tracting] competent counsel in cases involving civil and constitutional 
rights.” House Report at 9. And to accomplish this, Congress deter­
mined to provide awards similar to what “is traditional with attorneys 
compensated by a fee-paying client.” Senate Report at 6. Thus, in 
Blum, the Court specifically rejected an argument, like the State’s here, 
that fees under Section 1988 should “be calculated according to the 
cost of providing legal services rather than according to the prevailing 
market rate.” 465 U.S. at 892.

13/ The State notes that one of plaintiffs’ witnesses, Kansas City attorney Max 
Foust, testified that he “does not bill separately for paralegal services” (Pet. Br. 6 n.5). 
Mr. Foust’s custom, however, is irrelevant, since at least 90 percent of his current prac­
tice is based on contingent fee contracts (Tr. 61) — that is, he charges his clients a pack­
age price. He averages $400-$500 an hour for his time on these packages, and so doubt­
less can afford to throw in paralegals (id. at 79). Significantly, Mr. Foust testified that 
Kansas City law firms that bill on a per diem basis regularly charge between $40 and $50 
an hour for paralegal services (id. at 67).

-  28 -



By definition, a lawyer can obtain from a paying client “the 
prevailing market rates in the relevant community” for the work of 
paralegals he or she employs. To hold that lawyers must receive less 
when they prevail in civil rights litigation is to discourage such litiga­
tion. And a prevailing civil rights lawyer denied market-based com­
pensation for the work of paralegals cannot obtain what he or she 
could have received from a paying client.

A lawyer negotiating with a paying client has the option of 
either billing for paralegals at market rates or billing for that work at 
some approximation of cost, and raising his or her own hourly fee to 
achieve the same total compensation. Prevailing counsel in civil rights 
cases, however, do not have the latitude to negotiate a reallocation of 
their income between paralegal time and their own, because their own 
hourly rates must by law derive from the prevailing market rates. De­
nied market-based compensation for paralegal work, a prevailing civil 
rights lawyer would be unable to approximate the overall fee available 
from a paying client for comparable work. The purpose of Section 1988 
would be undermined.

More specifically, the legislative history indicates that 
Congress approved of fee awards for paralegal work, calculated sepa­
rately at hourly rates, and there is no indication that Congress in­
tended such awards to be governed by anything other than market 
standards. The Senate Report cited three cases that “correctly ap­
plied” the “appropriate standards” set forth in Johnson v. Georgia 
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). 14/ (The Court, 
also, has recognized that these cases provide the benchmark of Con­
gress’ intent. Blum, 465 U.S. at 894; Hensley, 461 U.S. at 430-32.) In one 
of the cases cited by the Senate Report, the court had awarded $10 an 
hour for “statistical analysis, legal research, transcript summarization, 
interviewing, and general assistance carried out by a law clerk and a

14/ Senate Report at 6 (citing Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 
1974); Davis v. County o f Los Angeles, 8 Fair Empl. Prac. Cas. (BNA) 244,8 Empl. Prac. 
Dec. (CCH) H 9444 (C.D. Cal. June 5, 1974); Swann v. Charlotte-Mecklenberg Bd. o f 
Educ., 66 F.R.D. 483 (W.D.N.C. 1975)).

-  29 -



paralegal assistant.” Davis v. County o f Los Angeles, 8 Fair Empl. Prac. 
Cas. (BNA) 244, 246, 8 Empl. Prac. Dec. (CCH) 1 9444, at 5048 (C.D. 
Cal. June 5,1974). Although Davis did not state that the $10 rate was 
based on market rates, there is certainly no indication to the con­
trary. 15/ As this Court noted in Blum, the fee awards in Davis and the 
other cases cited by the Senate Committee “were calculated according 
to prevailing market rates. None of these four cases made any mention 
of a cost-based standard.” 465 U.S. at 894 (footnotes omitted).

In all events, the “widespread custom” is, by definition, to 
charge for paralegals at market rates. If it were the practice in some 
community to charge “cost,” that is precisely what the market would 
reflect. To single out prevailing civil rights lawyers, however, and to 
limit them to “cost” regardless of the custom in the relevant commu­
nity, is to contravene the very essence of Section 1988, and to send civil 
rights plaintiffs to the back of the bus.

B. The Result the State Seeks 
Would Increase the Costs of 
Litigation

In recent years, with the increasing scope, complexity and 
expense of civil litigation generally, paralegals (or “legal assistants”) 
have become an ever more familiar presence in the practice of law. Un­
der the supervision of lawyers, they assist in the delivery of legal serv­
ices by performing a variety of tasks that need not occupy the more 
costly time of lawyers, but require training, experience or ability differ­
ent from those of other customary non-lawyer employees. The Na­

15/ To the extent any inference is possible, it is hard to conceive that a rate of $10 an
hour in 1974 was derived in any manner comparable to that by which the State here 
calculated its proposed $15 rate more than a decade later. Moreover, the court in Davis 
awarded fees for work by attorneys at rates ranging from $35 to $60 an hour, the latter 
for an “able and experienced litigator.’’ 8 Fair Empl. Prac. Cas. (BNA) at 245, 8 Empl. 
Prac. Rec. (CCH) $ 9444, at 5048. Those rates bear about the same relationship to the 
$ 10 rate for paralegals as do the rates awarded for attorneys to those for paralegals in this 
case.

-  30 -



tional Association of Legal Assistants, Inc., has characterized their 
function as follows:

Legal assistants are a distinguishable group of persons who as­
sist attorneys in the delivery of legal services. Through formal 
education, training, and experience, legal assistants have 
knowledge and expertise regarding the legal system and sub­
stantive and procedural law which qualify them to do work of a 
legal nature under the supervision of an attorney.

Model Standards and Guidelines for Utilization o f Legal Assistants 
(NALA 1984).

The legal profession recognizes the importance of 
paralegals. The American Bar Association has a Standing Committee 
on Legal Assistants. And the use of paralegals is widespread. Accord­
ing to the 1986 Survey of Law Firm Economics, law firms employed an 
average of one paralegal for every five lawyers in 1995, nationwide 
(PI. Ex. 4 at 17). The United States Department of Labor has pro­
jected that the number of legal assistants will double from 53,000 in 
1984 to 104,000 by 1995. Bureau of Labor Statistics, U.S. Dep’t of La­
bor, Occupational Outlook Quarterly (Spring 1986).

While paralegals naturally perform only those tasks that 
need not be performed by a lawyer, many of their tasks would fall to 
lawyers in the absence of paralegals, since the tasks fall between the 
skill levels of lawyers and non-legal employees. In consequence, the 
use of paralegals saves money. As discussed above, the paralegals in 
this case interviewed witnesses, digested discovery materials, prepared 
exhibits and assisted at trial. (See supra p. 27.) The courts have recog­
nized that these are not clerical tasks. 16/ In the absence of paralegals, 
they would be performed by lawyers, at higher hourly rates.

16/ See, e.g., Richardson v. Byrd, 709 F.2d 1016,1023 (5th Cir. 1983) (paralegals “as­
sisted the lawyers at trial” and “participated in telephone conferences with lawyers [and] 
witnesses”), cert, denied, 464 U.S. 1009 (1985); Spray-Rite Serv. Corp. v. Monsanto Co., 
684 F.2d 1226,1250 (7th Cir. 1982) (“digesting and indexing discovery and trial materi­
als”), a ff d, 465 U.S. 752 (1984); Easter House v. Illinois Dep’t o f Children & Family Serv., 
663 F. Supp. 456, 460 (N.D. 111. 1987) (“organizing and compiling exhibits”).

-  31 -



Accordingly, as courts have also recognized, “paralegal 
and law clerk personnel provide necessary services which, were they 
performed by attorneys, would be more costly.” Keith v. Volpe, 501 
F. Supp. 403, 413 (C.D. Cal. 1980); see also Garmong v. Montgomery 
County, 668 F. Supp. 1000, 1011 (S.D. Tex. 1987). And therefore, the 
use of paralegals “is to be encouraged by separate compensation in 
order to reduce the time of more expensive counsel.” Jacobs v. Man- 
cuso, 825 F.2d 559, 563 (1st Cir. 1987). Compensating for the work of 
paralegals as part of attorney’s fees under Section 1988 “encourages 
cost-effective delivery of legal services and, by reducing the spiraling 
cost of civil rights litigation, furthers the policies underlying civil rights 
statutes”. Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 846 
(7th Cir. 1984), cert, denied, 469 U.S. 1106 (1985).

To compensate for paralegal work at anything less than 
market, however, is to discourage the use of paralegals and thus to dis­
courage the cost-effective delivery of legal services. A potential civil 
rights lawyer who cannot be awarded a market rate for paralegals must 
either:

(a) forego civil rights work in favor of work for 
clients who will pay market for paralegals;

(b) accept civil rights cases, knowing that, re­
gardless of the results obtained, he or she will receive less in­
come than from a paying client; or

(c) accept civil rights work but use attorneys, at 
significantly higher hourly rates, to perform the chores that 
paralegals could do.

None of these alternatives is acceptable. The first would eviscerate the 
very purpose of Section 1988. The second is precisely the one that Sec­
tion 1988 is meant to avoid. The third would make the litigation more 
costly for all concerned.

-  32 -



C. The State’s Arguments Are 
Without Merit

Against all this, the State raises a number of arguments, 
each of which disintegrates under scrutiny.

First, the State contends that Congress did not specifically 
consider paralegal compensation in enacting Section 1988 (Pet. 
Br. 26). That statement, of course, is belied by the Senate Report’s cita­
tion to Davis (see supra pp. 29-30). Even if the State were correct, how­
ever, the argument would prove nothing, for the standard under Sec­
tion 1988 is the market and, in today’s practice of law, paralegal fees 
are undeniably a part of attorney’s fees customarily collected. A lack of 
specific consideration of paralegals by Congress would not suggest 
that their work should be compensated by some standard peculiar to 
them.

Second, the State contends that compensating for parale­
gal time at market rates produces a “windfall” for prevailing counsel 
because those market rates have “a built in profit factor within them” 
(Pet. Br. 26). Other than the State’s ipse dixit, however, there is no rea­
son to equate a market-determined rate with a “windfall.” Partners in 
law firms — including those who earn fees under Section 1988 — ordi­
narily obtain a profit on the work of the attorneys they employ. The 
State does do not suggest there is anything improper about this. And 
there is nothing extraordinary about lawyers earning a profit on the 
work of the paralegals they employ as well — they customarily do so.

Profit from the work of employees is fundamental to any 
enterprise in our society. A partner in a law firm, like the owner of any 
business enterprise, is responsible for the activities of his or her em­
ployees in the scope of their employment. It is the partners in a law 
firm, again like the owners of any business, who bear the risk that fees 
will not be paid at all. And there is nothing novel or untoward about 
compensating them for responsibility and risk. To the contrary, the 
cost-based limit that the State seeks to impose would produce a “wind­

-  33 -



fall" for it: the State would pay only a small fraction of the amount 
charged a paying client for comparable paralegal services.17/

Third, the State argues that its proposed amendment to 
Section 1988 would make “costs easier to calculate” (Pet. Br. 27). The 
State cannot be serious. It takes little imagination to perceive the diffi­
culties district courts would encounter in trying to apportion rent, sec­
retarial salaries and benefits, equipment and the other components 
that make up overhead. By contrast, the market rates awarded here 
were proved by uncontroverted testimony and extensive, readily avail­
able studies. Their calculation involved no difficulty whatsoever.

The State deliberately chose neither to proffer evidence 
nor to conduct discovery needed to calculate the “costs” of paralegals. 
Now the State wants a remand to do what it should have done; or it 
wants this Court to adopt a $15 number plucked from the air. There is 
no reason to do either.

Fourth, the State suggests that paralegals’ work should be 
compensated at cost because the paralegals here were hired specifi­
cally for this litigation (Pet. Br. 27). But nothing in the language, legis­
lative history or policies of Section 1988 suggests such a distinction. 18/ 
A fee-paying client could hardly avoid paying market rates for parale­
gal work simply because the paralegals involved were hired specifically 
for his or her case. And under the market standards articulated by this 
Court, that is dispositive.

171 According to the 1986 Survey of Law Firm Economics, the average 1985 billing
rate for paralegals in the west-central region of the nation, which includes Kansas City, 
was $42 an hour (PI. Ex. 4 at 52). For 73 percent of the paralegals surveyed in the region, 
their time was billed at or above the $40 an hour awarded here (id.). In metropolitan 
areas with populations greater than one million, the average billing rate for paralegals 
was $44 an hour (id. at 58). Sixty-five percent of the paralegals surveyed in such areas 
generated fees at or above $40 an hour (id.).

18/ The State purports to base this approach on Lamphere v. Brown University, 610 
F.2d 46 (1st Cir. 1979). That case, however, involved paralegals “not regularly” in coun­
sel’s employ, who had “volunteered a good deal of their time.” Id. at 48. The court ex­
pressly stated that its opinion “does not relate to salaried paralegals in counsel’s own 
office”, such as the paralegals in this case. Id. at 48 n.3; see Jacobs v. Mancuso, 825 F.2d at 
563.

-  34 -



In sum, to accept the State’s cost-based approach to para­
legal fees would send an unseemly —- and costly — message to all law­
yers: “If you need help on a civil rights case, use more lawyers, not 
paralegals.”

CONCLUSION

For the foregoing reasons, this Court should affirm the de­
cision of the Court of Appeals for the Eighth Circuit.

Respectfully submitted,

Jay Topkis 
D aniel J. Leffell 
Paul, Weiss, Rifkind,

Wiiarton & Garrison 
1285 Avenue of the Americas 
New York, New York 10019 
(212) 373-3000

Julius LeV onne Chambers 
Charles Stephen Ralston*
99 Hudson Street
New York, New York 10013
(212) 219-1900

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

R ussell E. Lovell, II 
3111 40th Place 
Des Moines, Iowa 50310 
(515) 271-3985

Theodore M. Shaw
634 S. Spring Street
Los Angeles, California 90014
(213) 624-2405

Attorneys for Respondents

*Counsel of Record

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