Missouri v. Jenkins Petition for a Writ of Certiorari to the US Court of Appeals for the Eighth Circuit

    No

In T he

Supreme (Hmtrt a t the plniteh S tates
OctoberTerm, 1991

State of M issouri, et al., 

Petitioners,

vs.

Kalima Jenkins, et al., 
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

W illiam L. W ebster 
A ttorney General

M ichael J. Fields*
A ssistant Attorney General

B art A . M atanic 
A ssistant A ttorney General

Broadway Building, 8th Floor 
P. 0 .  B ox 899
Jefferson City, Missouri 65102  
(314) 751-3321

Corns el for Petitioners

’ Counsel o f  Record

St. Louis Law Printing,Inc. 13307 ManchesterRd. St. Louis, MO 63131 314-231-4477



QUESTION PRESENTED

Whether post-judgment interest under 28 U.S.C. § 1961 on 
an attorneys’ fees award should run from the date the prevailing 
party is deemed to be entitled to a statutory fee award or from the 
date when the amount of fees is quantified?



11

LIST OF PARTIES

Petitioners:

State of Missouri, the Honorable John Ashcroft, Governor, the 
Honorable Wendell Bailey, Treasurer, Dr. Robert E. Bartman, 
Commissioner of Education, and the Missouri State Board of 
Education and its members, Thomas R. Davis (Presiding), 
Roseanne Bentley, the Rev. Raymond McCallister, Jr., Susan D. 
Finke, Gary D. Cunningham, Rebecca M. Cook and Sharon M. 
Williams.

Respondents:

Kalima Jenkins, et al., a class consisting of all present and future 
elementary and secondary education students in the School 
District of Kansas City, Missouri

The School District of Kansas City, Missouri, its Board of 
Directors, and its Superintendent, Dr. Walter L. Marks

The American Federation of Teachers, Local 691



—  lii-

Page(s)

Questions Presented.........................................................  i

List of P arties.................................................................... ii

Table of Authorities.........................................................  iv

Opinions Below.................................................................  1

Jurisdiction...........................................................    2

Statute Involved.................................................................  2

Statement of the C ase.......................................................  2

Reasons for Granting the W rit........................................  6

Conclusion.......................................................................... 9

Appendix............................................................................ A-l

TABLE OF CONTENTS



---- I V -----

Page(s)

Cases:

Copper Liquor, Inc. v. Adolph Coors Company, 701
F.2d 542 (5th Cir. 1983).........................................  5

Fleming v. County of Kane, 898 F.2d 553 (7th Cir.
1990)...........................................................................  5,6

Harris v. Chicago Great Western Railway, 197 F.2d 829
(7th Cir. 1952)........................................................... 6

Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo.
1984), affd, 807 F.2d 657 (8th Cir. 1986), cert, 
denied, 484 U.S. 816 (1987)................................... 3

Jenkins v. Missouri, 838 F.2d 260 (8th Cir. 1988), affd,
Missouri v. Jenkins, 491 U.S. 274 (1989).............  4

Kaiser Aluminum and Chemical Corp. v. Bonjomo,___
U .S .___, 110 S. Ct. 1570 (1990)...........................  6,7,8

Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988).......... 5

Missouri v. Jenkins, 491 U.S. 274 (1989)...................... 4

Missouri v. Jenkins,___U.S. ____, 110 S. Ct. 1651
(1990)......................................................................... 4

Ohio-Sealy Mattress Manufacturing Company v. Sealy,
Inc., 776 F.2d 646 (7th Cir. 1985)..........................  6

Perkins v. Standard Oil Company of California, 487 F.2d
672 (9th Cir. 1973)..................................................  6,7

School District of Kansas City, Missouri v. State of 
Missouri, 460 F. Supp. 421 (W.D. Mo. 1978), 
appeal dism’d, 592 F.2d 493 (8th Cir. 1979)........ 2

TABLE OF AUTHORITIES



Statute:

28 U.S.C. § 1961 passim



No
In T he

Supreme (Uiuirt nf t\\t Jtlnttcb States
October Term, 1991

State of M issouri, et al., 

Petitioners,

vs.

Kalima Jenkins, et al., 

Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

The S tate of Missouri, and certain of its agencies and officials, 
petition for a writ of certiorari to review the accompanying 
judgment of the United States Court of Appeals for the Eighth 
Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 931 F.2d 
1273 and is reprinted at pages A-3 to A-13 of the accompanying 
appendix to this petition. The order of the District Court is 
reported at 731F. Supp. 1437 and is set forth in the accompany­
ing appendix at pages A-33 to A-40. Other unreported orders of 
the District Court which are relevant to this appeal are reprinted 
in the accompanying appendix at pages A -14 through A-32.



— 2 —

JURISDICTION

The judgment of the Court of Appeals was entered on April 
29, 1991. On July 16, 1991, Mr. Justice Blackmun granted an 
extension of time in which to file this petition until August 28, 
1991. The jurisdiction of this Court is invoked under 28 U.S.C. 
§ 1254(1).

STATUTE INVOLVED

The statute involved is 28 U.S.C. § 1961 (a) which provides in 
relevant part:

Interest shall be allowed on any money judgment in a civil 
case recovered in a district court. . .  Such interest shall be 
calculated from the date of the entry of the judgment, at a 
rate equal to the coupon issue yield equivalent (as deter­
mined by the Secretary of the Treasury) of the average 
accepted auction price for the last auction of fifty-two week 
United S tates Treasury bills settled immediately prior to the 
date of the judgm ent. . .

STATEMENT OF THE CASE

The lawsuit giving rise to the cause of action underlying the 
attorney’s fees proceeding in this case was originally filed in 
1977 by the Kansas City, Missouri School District (“KCMSD”) 
and certain plaintiffs, alleging claims of interdistrict segregation 
and seeking broad and sweeping relief.1 In 1978, KCMSD was 
realigned as a defendant. School District of Kansas City, 
Missouri v. State o f Missouri, 460 F. Supp. 421,442 (W.D. Mo. 
1978), appeal dism’d, 592 F.2d 493 (8th Cir. 1979). An 
amended complaint was filed by a class of schoolchildren, who 1

1 The State of Missouri recently filed a petition for certiorari, seeking 
review of separate issues pertaining to the remedies ordered in this case. See 
Missouri v. Jenkins, No. 91-____ , filed August 21, 1991.



3

were later certified as the Jenkins class. Arthur A. Benson, II 
entered his appearance on behalf of the class on March 15,1979. 
The case proceeded through discovery and trial, with most of the 
hours billed in the 1981-84 period. The NAACP Legal Defense 
Fund (“LDF”) entered their appearance in the case on May 27, 
1982 and provided additional representation to the Jenkins 
plaintiffs. On September 17, 1984, the Jenkins plaintiffs pre­
vailed, in part, on their liability claims. Jenkins v. Missouri, 593 
F. Supp. 1485 (W.D. Mo. 1984), affd, 807 F.2d 657 (8th Cir. 
1986) (en banc), cert, denied, 484 U.S 816 (1987). At that time, 
the district court found liability for intradistrict segregation on 
the part of the KCMSD and the State. The case then proceeded 
through the remedial phase.

The attorney’s fees proceedings went forward on a different 
track from the remedial issues presented by the underlying cause 
of action. Plaintiffs filed their initial fee petitions on February 5,
1986, and filed subsequent motions later. The district court first 
indicated that the Plaintiffs were entided to some measure of 
attorney’s fees on February 24,1986, Pet. App. A-14, but it did 
not establish the amount of “overall fees” to be awarded the 
Plaintiffs for the liability phase and the first part of the remedy 
phase at that time. Rather, the February 24,1986 order merely 
required an interim payment of $200,000 to Plaintiffs’ counsel 
Benson. Id.

The fee issues were briefed and a hearing on those issues was 
held on February 27, 1987. Thereafter, the district court quan­
tified the fee award for the liability phase of the proceedings and 
the first part of the remedy phase in its order issued on May 11,
1987, Pet. App. A-16, an order modified on July 14, 1987. In 
total, the district court awarded Benson $1,728,567.92 and the 
LDF $2,365,875.24.2

2 Benson had originally requested $3/700,010.30 and the LDF had re­
quested $3,170,600.20. Pet. App. A-16.



— 4

Plaintiffs and the State both pursued appeals of the district 
court’s May 11,1987 decision. The district court’s decision was 
affirmed in all respects by the Eighth Circuit in Jenkins v. 
Missouri, 838 F.2d 260 (8th Cir. 1988). Both the Plaintiffs and 
the State then filed petitions for writs of certiorari. Plaintiffs’ 
petition was denied, 488 U.S. 889 (1988), while the State’s was 
granted in part, 488 U.S. 888 (1988). This Court thereafter 
affirmed the Eighth Circuit’s decision. Missouri v. Jenkins, 491 
U.S. 274 (1989).3

While the fee litigation was pending the State made numerous 
partial payments to both Benson and the LDF. After this Court’s 
decision was handed down, the State paid Plaintiffs the balance 
of the principal of the fees judgment, along with post-judgment 
interest calculated from May 11, 1987, the date of the district 
court’s ruling quantifying the fees to be awarded to the prevail­
ing party.

The proceedings that are the subject of this petition followed, 
beginning with the filing of the Plaintiffs’ Motion for Award of 
Post-Judgment Interest. Plaintiffs’ motion requested post-judg­
ment interest from February 24, 1986 and requested, in the 
alternative, that the court grant pre-judgment interest. After 
further pleadings were filed on this issue, the district court 
granted the Plaintiffs post-judgment interest from February 24, 
1986. The State appealed, and the Eighth Circuit affirmed the 
district court’s order.

In affirming the district court’s judgment that post-judgment 
interest under 28 U.S.C. § 1961(a) was to accrue from the date 
when the court first determined the class was entitled to some fee 
award rather than the date when it quantified the fees, the Eighth 
Circuit acknowledged the Seventh Circuit’s contrary opinion in

3 This case has also been before the court on the issue of taxation beyond 
State law limits. Missouri v. Jenkins,___U .S .___ , 110 S. Ct. 1651 (1990).



— 5 —

Fleming v. County o f Kane, 898 F.2d 553 (7th Cir. 1990) and 
agreed that it “lends some support” to the position it was 
rejecting. Pet. App. at A-8,n.3. The court maintained, however, 
that the Fleming decision did not explain why it was awarding 
post-judgment interest from the date of quantification rather than 
the date of entidement, and it questioned whether the parties 
presented that issue to the Fleming court. Pet. App. at A-7. The 
Eighth Circuit then noted with approval the decisions of the Fifth 
and Federal Circuits awarding post-judgment interest as of the 
date the right to some fee award was first recognized, Pet. App. 
at A-7, citing Mathis v. Spears, 857 F.2d 749, 760 (Fed. Cir. 
1988); Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542, 
545 (5th Cir. 1983) (per curiam), and reasoned that the accrual 
of post-judgment interest as of the date of entitlement would 
serve the general purposes fostered by the statutory award of 
attorneys’ fees. Pet. App. at A-9 - A -10.

In a concurring opinion, Chief Judge Lay disagreed with the 
majority’s rationale. In Chief Judge Lay’s view, the Fifth Circuit 
opinion in Copper Liquor was not germane, as that case involved 
an award of fees under the Sherman Act, 15 U.S.C. §§ 1, 15 
(1988), pursuant to which attorneys’ fees were recognized as a 
matter of right rather than as an element of the district court’s 
discretion. Pet. App. at A -11 (Lay, J., concurring). In Chief 
Judge Lay ’ s view, however, the determinative factor was that the 
district court entered a final judgment when it issued its order 
establishing the plaintiffs’ entitlement to fees and requiring an 
interim payment of $200,000. Pet. App. at A -12. It is not clear 
from the concurring opinion whether Chief Judge Lay regarded 
the quantifiability of the fee award to be a significant consider­
ation, but he did indicate he thought the award was “readily 
ascertainable by mathematical computation or other recognized 
standards,” as of the February 24,1986 Order. Pet. App. A -12.



—  6  —

REASONS FOR GRANTING THE W RIT

Certiorari should be granted to resolve a conflict between the 
Eighth Circuit’s opinion and the interpretations reflected by the 
recent decisions of the United States Court of Appeals for the 
Seventh Circuit in Fleming v. County of Kane, supra, and the 
earlier decision of the Ninth Circuit in Perkins v. Standard Oil 
Co. o f California, 487 F.2d 672, 675 (9th Cir. 1973). Not only 
is the grant of certiorari necessary and appropriate to address this 
conflict among the circuits, the Court’s review of the Jenkins 
case is necessary to reconcile the Eighth Circuit’s interpretation 
of the statutory post-judgment interest provision of 28 U.S.C. § 
1961(a) with the principles established in this Court’s decision
in Kaiser Aluminum and Chemical Corp. v. Bonjorno,___U.S.
___, 110 S. Ct. 1570 (1990). Unless resolved by this Court, the
conflicting interpretations among the federal courts of appeal 
will continue to generate applications that are inconsistent with 
one another and with the congressional intent in enacting the 
post-judgment interest statute, as reflected in this Court’s 
Bonjorno decision.

While recognizing that Fleming lent support to the position it 
proceeded to reject, the Eighth Circuit questioned whether the 
Fleming court had clearly been presented the question. Pet. App. 
at A-7. An examination of Fleming dispels any such questions, 
however. The Fleming court plainly considered the operative 
date of the post-judgment interest statute to be an issue, and it 
clearly held that “plaintiffs may collect interest on attorneys’ 
fees or costs only from the date that the award was entered,” by 
which it referred to the date the award was quantified. Fleming, 
898 F.2d at 565, quoting Ohio-Sealy Mattress Manufacturing 
Co. v. Sealy,Inc., 776F.2d 656,662 (7th Cir. 1985).4 In Fleming,

4 The Seventh Circuit also cited its earlier decision in Harris v. Chicago 
Great Western Railway, 197 F.2d 829, 836 (7th Cir. 1952) (noting that 
interest is to be awarded only after the fees obligation is “authoritatively 
defined.”)



7

the district court entered a memorandum opinion and order, 
datedApril 12,1988, in which it ruled that “plaintiff was entitled 
to attorney’s fees under § 1988, but did not rule on the exact 
amount to be awarded.” Id. at 562. After additional proceedings 
and a hearing, the Court entered a minute order on June 23,1988 
awarding plaintiffs $205,176.80 as attorney’s fees and costs. 
Apparently, judgment was entered the next day, June 24,1988. 
Id. at 565. It was this final date of June 24,1988 from which the 
Seventh Circuit held that interest under § 1961(a) would begin 
to run. The rationale for this holding was stated clearly. “Prior 
to the date the judgment on attorney’s fees was entered, plaintiffs 
attorneys’ claim for unpaid attorney ’ s fees was unliquidated and, 
as such, not entitled to interest.” Id.

Moreover, as an examination of the cases cited in the instant 
Jenkins decision and the Seventh Circuit’s competing result and 
rationale in Fleming will confirm, other circuits are divided on 
this question as well. As noted above, the Fifth and Federal 
Circuits appear to adopt the same rule as that announced in 
Jenkins and thus hold that a prevailing party’s entitlement to 
post-judgment interest on a fee award accrues at the time the 
party has been deemed entitled to receive a fee award rather than 
the time the award is quantified. The Ninth Circuit, by contrast, 
holds that interest only accrues when the attorneys’ fee award is 
reduced to a quantified judgment. See Perkins v. Standard Oil 
Co. of California, 487 F.2d 672, 675 (9th Cir. 1973).

The State submits, and Bonjorno confirms, that the date of the 
judgment quantifying a fee award is the appropriate date for the 
commencement of the accrual of post-judgment interest. Prior 
to that time, it is impossible to apply the statute and make a 
calculation of interest in a Section 1988 case in order to allow the 
paying party to know the extent of its obligation.5

5 As such, Chief Judge Lay’s concurring opinion rests on an incorrect 
premise. Chief Judge Lay apparently believed that the attorneys’ fees award

(Footnote 5 continued on next page)



—  8  —

In Bonjorno, the Court was unanimous in holding that the 
appropriate date from which interest should be calculated on a 
damage award under the antitrust laws is the date of the judgment 
and not the date of the verdict. Id. at 1576. The date of the 
verdict/date of the judgment distinction is comparable to the 
distinction between the date that the right to some attorney ’ s fees 
is recognized and the date the fee award is quantified. The date 
of the verdict will often be prior to the date of the judgment, but 
despite the fact that the party may obtain a damage verdict in a 
large amount, interest will not begin to run on the damages until 
the Court enters judgment, regardless of how long the period be­
tween judgment and verdict is. However, as this Court pointed 
out:

Even though denial of interest from verdict to judgment 
may result in the plaintiff bearing the burden of the loss of 
the use of the money from verdict to judgment, the alloca­
tion of the costs accruing from litigation is a matter for the 
legislature, not the courts. [Citation omitted].

Id. at 1576. Similarly, a holding that a party is entitled to 
attorney’s fees is different from a judgment requiring that the 
party be paid a specific amount of fees. Until the fee award is 
quantified, the losing party has not been required to do some­
thing on pain of the prevailing party executing on the judgment, 
because there is no judgment to execute on.

(Footnote 5 Continued)
was liquidated as of the time of the February 24,1986 Order, as he indicated 
that “[t]he total sum is readily ascertainable by mathematical computation or 
other recognized standards”. Pet. App. A-12. However, the facts of this case 
refute that contention. As indicated, supra, Note 2, Benson initially sought 
$3,700,010.30 and the LDF sought $3,170,600.20. Pet. App. A-16. They 
were awarded significantly less than those amounts. Pet. App. at A-16.



CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully submitted,

WILLIAM L. WEBSTER 
Attorney General

MICHAEL J. FIELDS* 
Assistant Attorney General

BART A. MATANIC 
Assistant Attorney General

Broadway Bldg., 8th Floor 
P.O. Box 899
Jefferson City, Missouri 65102 
(314) 751-0531

Counsel for Petitioners

— 9 —

‘Counsel of Record



APPENDIX



APPENDIX A

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

No. 90-1534

Kalima Jenkins, by her 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, Antoria 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; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on behalf 
of themselves and all others similarly situated; 

Appellees,
American Federation of Teachers, Local 691, 

v.
The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Gary M. Cunningham 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia R. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education of the State

of Missouri,
Appellants,



A-2

and
School District of Kansas City, Missouri and Claude C.

Perkins, Superintendent thereof.

77-420-CV-W-4
Appeal from the United States District Court 

for the Western District of Missouri.

Filed: May 23, 1991 

JUDGMENT

This appeal from the United States District was submitted on 
the record of the district court, briefs of the parties and was 
argued by counsel.

After consideration, it is ordered and adjudged that the judg­
ment of the district court in this cause is affirmed in accordance 
with the opinion of this Court.

April 29,1991

A true copy.

ATTEST: /s/M ichael E. Gans, Acting Clerk

CLERK, U. S. COURT OF APPEALS, 
EIGHTH CIRCUIT.

MANDATE ISSUED 5/21/91



A-3

APPENDIX B

United States Court of Appeals 
for the Eighth Circuit

No. 90-1534

Kalima Jenkins, by her 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, Antoria 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; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on behalf 
of themselves and all others similarly situated; 

Appellees,
American Federation of Teachers, Local 691, 

v.
The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Gary M. Cunningham 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education

Robert E. Bartman, Commissioner of Education 
of the State of Missouri,



—  A-4

Appellants.
and

School District of Kansas City, Missouri and Claude C. 
Perkins, Superintendent thereof.

Appeal from the United States District Court 
for the Western District of Missouri.

Submitted: December 12, 1990 
Filed: April 29, 1991

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, 
and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The State of Missouri appeals from an order of the district 
court1 holding that the Jenkins class is entitled to post-judgment 
interest on its attorneys’ fees accruing from the date when the 
court first determined that the class was entitled to an award of 
attorneys’ fees, rather than the date when the court quantified the 
fees. Jenkins v. Missouri, 731 F. Supp. 1437, 1440-41 (W.D. 
Mo. 1990). The district court thus held that post-judgment 
interest should accrue from February 24,1986, the date on which 
it determined entitlement to the fees. Id. at 1441. The State 
argues that the accrual should not begin until May 11,1987, the 
date when the district court quantified the fees. We affirm the 
order of the district court.

This action for post-judgment interest on attorneys’ fees has 
its origins in the 1977 lawsuit that challenged segregation in the 1

1 The Honorable RUSSELL G. CLARK, United States District Judge for 
the Western District of Missouri.



A-5

Kansas City, Missouri, School District. Arthur A. Benson, II, 
entered his appearance on behalf of the plaintiffs in March 1919, 
and the NAACP Legal Defense Fund entered as co-counsel in 
March 1982. Following a three-month bench trial, the district 
court in September 1984 held the State defendants and the 
KCMSD liable for intradistrict segregation. Jenkins v. Missouri, 
593 F. Supp. 1485, 1505-06 (W.D. Mo. 1984). In June 1985, 
after a two-week hearing on remedies, the district court entered 
judgment on the merits, ordering $87 million in capital improve­
ments and operating programs. Jenkins v. Missouri, 639 F. Supp. 
19,43-44 (W.D. Mo. 1985), a ff das modified, 807 F.2d 657,662 
(8th Cir. 1986) (en banc), cert, denied, 484 U.S. 816 (1987).

On February 5, 1986, the Jenkins class filed application for 
attorneys’ fees under The Civil Rights Attorney’s Fees Award 
Act of 1976,42U.S.C. § 1988 (1988). OnFebruary24,1986, the 
district court found that “[cjlearly under the law, counsel for 
plaintiffs are entitled to an award of attorney’s fees” and ordered 
the State to make an immediate partial payment of $200,000 to 
Benson. Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at
1- 2 (W.D. Mo. Feb. 24, 1986). The State did not appeal this 
award, and it made three payments, totalling $347,332.93, to 
Benson during the litigation of the fees dispute in district court. 
In May and July of 1987, the district court entered two separate 
orders directing the State to pay Benson a total additional amount 
of $1,381,897.44 in attorneys’ fees and expenses. Jenkins v. 
Missouri, No. 77-0420-CY-W-4, slip op. at 16 (W.D. Mo. May 
11,1987); Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at
2- 3 (W.D.Mo. July 16,1987). It also awarded the Legal Defense 
Fund $2,365,875.74 in fees and expenses. Jenkins, slip op. at 16 
(May 11,1987). This court and the Supreme Court affirmed the 
district court’s order. Jenkins v. Missouri, 838 F.2d 260,268 (8th 
Cir. 1988), affd,  109 S. Ct. 2463, 2472 (1989).

In December 1989, the Jenkins class filed a motion for post­
judgment interest. The district court found that Benson and the



—  A-6 —

Legal Defense Fund were entitled to such interest from February 
24,1986, the date when it had first determined that the class was 
entitled to attorneys’ fees, rather than from May 11, 1987, the 
date when the court had quantified the fees. Jenkins, 731 F. 
Supp.at 1438-40. The district court also held that interest should 
accrue at a rate of 7.71 percent, the U. S. Treasury Bill rate on 
February 24, 1986. Id. at 1441. See also 28 U.S.C. § 1961(a) 
(1988) (prescribing application of Treasury Bill rate).

The parties here agree that the Jenkins class is entitled to post­
judgment interest on its attorney fee award under 28 U.S.C. § 
1961(a), which states:

Interest shall be allowed on any money judgment in a civil
case recovered in a district court......... Such interest shall
be calculated from the date o f the entry o f the judgment, at 
a rate equal to the coupon issue yield equivalent (as deter­
mined by the Secretary of the Treasury) of the average 
accepted auction price for the last auction of fifty-two week 
United States Treasury bills settled immediately prior to the 
date of the judgment.

(Emphasis added).

The phrase “any money judgment” in section 1961(a) is 
construed as including a judgment awarding attorneys’ fees. 
R.W.T. v. Dalton, 712 F.2d 1225, 1234 (8th Cir.), cert, denied, 
464 U.S. 1009 (1983); Spain v.Mountanos, 690 F.2d 742, 747- 
48 (9th Cir. 1982). In Dalton, this court held that post-judgment 
interest on attorneys’ fees was mandatory under section 1961 (a) 
and that denial of such interest constituted reversible error. 712 
F.2d at 1234-35.

With the entitlement to post-judgment interest clear, the 
parties’ disagreement is confined to the meaning of the phrase 
“shall be calculated from the date of the entry of the judgment.” 
The State contends that the proper construction of this language



A-7 —

establishes that the relevant date is when the fee award is 
quantified or “liquidated.” The Jenkins class contends that the 
relevant date is when the prevailing party becomes uncondition­
ally entited to fees, either because of a statutory right or because 
the court in its discretion has determined the party is entitled to 
attorneys’ fees.

The district court concluded that all of the relevant authority 
supported the plaintiffs’position. 731 F.Supp. at 1438-40. After 
the district court issued its opinion, however, the Seventh Circuit 
decided Fleming v. County of Kane, 898 F.2d 553,565 (7th Cir. 
1990), which awarded the plaintiff post-judgment interest on his 
attorneys’ fees from the date the fees were quantified. Id. at 565. 
The Fleming court did not explain why it selected the date of fee 
quantification rather than the date of fee entitlement, and it is not 
clear whether the parties presented this issue. Fleming reversed 
the district court’s ruling that had awarded pre-judgment interest 
on the attorney’s fees. The Fleming court explained: “Prior to 
the date the judgment on attorney’s fees was entered, plaintiffs 
attorneys’ claim for unpaid attorney ’ s fees was unliquidated and, 
as such, not entitled to interest.” Id. The court then concluded 
that the “award of attorney’s fees was entered” on the date the 
fees were quantified. Id.

The Fleming result runs counter to the holdings of the Fifth 
Circuit in Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 
542 (5th Cir. 1983) (per curiam), and the Federal Circuit in 
Mathis v. Spears, 857 F.2d 749, 760 (Fed. Cir. 1988). The 
Copper Liquor court prescribed a two-pan test to determine 
when attorneys’ fees should begin to accrue interest:

If a judgment is rendered that does not mention the right to 
attorneys’ fees, and the prevailing party is unconditionally 
entitled to such fees by statutory right, interest will accrue 
from the date of judgment. If, however, judgment is 
rendered without mention of attorneys’ fees, and the allow­



A-8

ance of fees is within the discretion of the court, interest will 
accrue only from the date the court recognizes the right to 
such fees in a judgment.

Id. at 545. Under either part of the Copper Liquor test, interest 
accrues from the date that the party becomes unconditionally 
entitled to fees, even if those fees are not yet quantified. Id. The 
Mathis court followed Copper Liquor, stating that “[ijnterest on 
an attorney fee award . .  . runs from the date of the judgment 
establishing the right to the award, not the date of the judgment 
establishing its quantum.” 857 F.2d at 760. The Jenkins class 
contends that under Copper Liquor and Mathis, post-judgment 
interest should accrue from a date no later than February 24, 
1986.2

The State argues that there is no need to apply Copper Liquor 
or Mathis because an Eighth Circuit case, Dalton, holds that 
post-judgment interest does not begin to accrue until the date 
when the fees are quantified.3 In Dalton, the district court

2 Although the Jenkins class sought and was awarded post-judgment 
interest from February 24,1986, the class maintains that under the first prong 
of Copper Liquor it is entitled to interest accruing from the June 14,1985, 
judgment on the merits. See Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 
1985), off d as modified, 807 F.2d 657 (8th Cir. 1986) (en banc), cert, denied, 
484 U.S. 816 (1987). As the Jenkins class does not actually seek interest 
accruing from the June 14,1985, judgment, we need not decide this issue.

3 The State, while relying primarily onDalton, also argues that support for 
its argument can be found in Fleming; Sun Ship, Inc. v. Matson Navigation 
Co., 785 F.2d 59,64 (3d Cir. 1986); Institutionalized Juveniles v. Secretary 
of Public Welfare, 758 F.2d 897,927 (3d Cir. 1985); Perkins v. Standard Oil 
Co, 487 F.2d 672,675 (9th Cir. 1973); and Kaiser Aluminum <4 Chemical 
Corp. v. Bonjorno, 110 S. Ct. 1570,1575-76 (1990). We agree that Fleming 
lends some support to the State’s position, but conclude that Sun Ship, 
Institutionalized Juveniles, Perkins, and Bonjorno do not address the issue 
before us.



A-9

granted summary judgment in favor of the plaintiffs on October 
14,1980. 712F.2dat 1228. On March 30,1982, it entered a final 
judgmentawardingcostsandfeestotheplaintiffs. Id. Following 
the district court’s denial of post-judgment interest on the attor­
neys’ fees, this court reversed and held that post-judgment 
interest should accrue from the March 30,1982, award of fees. 
Id. at 1234-35.

The State argues that Dalton stands for the proposition that 
post-judgment interest does not begin to accrue until the date 
when fees are quantified. We reject such a reading of Dalton, as 
did the district court. Jenkins, 731 F. Supp. at 1439. Dalton 
simply did not address the issue presented here. In Dalton, the 
district court apparently established the plaintiffs’ right to fees 
on the same date as it quantified the fees. Id. The court therefore 
had no need to address the issue before us.

After considering the purposes underlying the award of post­
judgment interest, we are convinced that Copper Liquor and 
Mathis establish the proper rule. In Dalton, we recognized the 
purposes that are furthered by the awarding of post-judgment 
interest on attorneys’ fees:

[A denial of post-judgment interest] would effectively 
reduce the judgment for attorneys’ fees and costs, because 
a certain sum of money paid at a certain time in the future 
is worth less than the same sum of money paid today. 
Failing to allow awards of attorneys’ fees to bear interest 
would give parties against whom such awards have been 
entered on artificial and undesirable incentive to appeal or 
otherwise delay payment.

Dalton, 712 F.2d at 1234-35. See also Mathis, 857 F.2d at 760 
(“The provision for calculating interest from entry of judgment 
deters use of the appellate process by the judgment debtor solely 
as a means of prolonging its free use of money owed the 
judgment creditor”). The award of interest also serves the make-



—  A-10 —

whole objective of fee awards in civil rights cases. Gates v. 
Collier, 616F.2d 1268,1275-76 (5th Cir. 1980). See generally 
S. Rep. 94-1011,94th Cong., 2d Sess. 2-5, reprinted in 1976 U.S. 
Code Cong. & Admin. News 5908-13 (discussing purposes of 
Civil Rights Attorney’s Fees Award Act of 1976). We also 
observe that if the accrual of post-judgment interest is delayed 
until fee awards are quantified and attorneys are thus not fully 
compensated for their successful efforts, they may be reluctant 
to take on complex and expensive litigation.

The State argues that until the fee award is liquidated, the party 
responsible for payment has no way to satisfy its obligation, and 
thus, no interest should accrue. We are not persuaded by this 
argument. The fee-paying party suffers no prejudice from any 
delay in quantifying the award because it has the use of the 
money in the interim and because the statutory interest rate is tied 
to the U.S. Treasury Bill rate. See 28 U.S.C. § 1961(a).

Several of the district courts that have considered the issue of 
when post-judgment interest begins to accrue on attorneys’ fees 
have applied the same approach used in Copper Liquor and 
Mathis. See, e.g., Water Technologies Corp. v. Calco Ltd., 714 
F. Supp. 899, 910 (N.D. 111. 1989); Proctor & Gamble Co. v. 
Weyerhaeuser Co., 711 F. Supp. 904, 908 (N.D. 111. 1989); 
Williamsburg Fair Hous. Comm. v. Ross-Rodney Horn. Corp., 
599 F. Supp. 509,522-23 (S.D.N.Y. 1984fBurstonv. Common­
wealth o f Virginia, 595 F. Supp. 644, 652 (E.D. Va. 1984). But 
see Griffin v. Ozark County, 688 F. Supp. 1372,1377 (W.D. Mo. 
1988) (post-judgment interest on attorneys’ fees accrues from 
date of judgment quantifying fees); McCullough v. Cady, 640 F. 
Supp. 1012, 1028 (E.D. Mich. 1986) (dictum suggesting that 
post-judgment interest properly accrues from date of judgment 
quantifying attorneys’ fees because the fee claim is unliquidated 
before that date).



—  A -ll

Applying the second part of the Copper Liquor standard,4 
which states that interest will accrue from “the date the court 
recognizes the right to such fees in a judgment,” we conclude that 
the Jenkins class is entitled to post-judgment interest on its 
attorneys’ fees accruing from the February 24, 1986, order 
declaring the class’s entitlement to those fees.

For the foregoing reasons, we affirm the judgment of the 
district court.

LAY, Chief Judge, concurring.

I concur in the award of post-judgment interest on the attorney ’ s 
fees beginning on February 24,1986. I must, however, disagree 
with the studied effort used by the majority in recognizing that 
award. The majority opinion relies on Copper Liquor, Inc. v. 
Adolph Coors Co., 701 F.2d 542 (5th Cir. 1983) (en banc) (per 
curiam). This case is not germane to our discussion and does not 
address the issue at hand. In Copper Liquor, the Fifth Circuit 
discussed an attorney’s fee award under the Sherman Act, 15 
U.S.C. §§ 1,15 (1988). Under the antitrust laws the attorney’s 
fee award was recognized as a matter of right under the appli­
cable statutes. The interest on the award accrued from the date 
of the judgment because the prevailing party was uncondition­
ally entitled to such fees by statute, even if the judgment did not 
mention the right to attorney’s fees. See Copper Liquor, 701 
F.2d at 545. In the present case, we are dealing with an award of 
attorney’s fees under the Civil Rights Act, 42 U.S.C. § 1988 
(1988). Under section 1988 attorney’s fees are awarded, not as 
a matter of right, but as a matter of discretion by the trial court. 
Id.-, see White v. New Hampshire Dep’t o f Employment Sec., 455

4 As the Jenkins class has not sought post-judgment interest accruing from 
the June 1985judgment on the merits, see footnote 2, we apply the second part 
of the Copper Liquor test



— A-12 —

U.S. 445,454 (1982). The prevailing party is not entitled to post­
judgment interest on an award for attorney ’ s fees unless the court 
specifically enters such a judgment.

This case is relatively simple. The statutory provision govern­
ing post-judgment interest is found in 28 U.S.C. § 1961(a) 
(1988), which states in part that “[sjuch interest shall be calcu­
lated from the date of the entry of the judgment.” In determining 
when the judgment is entered on an award of attorney’s fees, 
Rule 58 of the Federal Rules of Civil Procedure provides in part 
that “[ejvery judgment shall be set forth on a separate document. 
A judgment is effective only when so set forth and when entered 
as provided in Rule 79(a).” Fed. R. Civ. P. 58. In the present 
case, the district court, on February 24, 1986, awarded a judg­
ment under the Civil Rights Attorney’s Fees Awards Act of 
1976, 42 U.S.C. § 1988 (1988). At that time the district court 
ordered that “ ‘counsel for plaintiffs are entitled to an award of 
attorney’s fees’ and ordered the state to make an immediate 
partial payment” of $200,000 to attorney Arthur Benson. Jenkins 
v. Missouri, No. 77-0420-CV-W-4, slip op. at 1-2 (W.D. Mo. 
Feb. 26,1986). This clearly constituted a final judgment under 
Rule 58.

Post-judgment interest on the final judgment began to run on 
the total judgment from the date of the judgment awarding the 
attorney’s fees. The fact that the February 24 judgment con­
tained only a partial sum for attorney’s fees is immaterial. The 
total sum is readily ascertainable by mathematical computation 
or other recognized standards.1 We need only look to Rule 58

1 As the Supreme Court has indicated, in an award for attorney ’ s fees under 
section 1988, there can be several final judgments. White, 455 U.S. at 453.



— A-13

and section 1961 to ascertain the date from which the post­
judgment interest should run.2

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, 
EIGHTH CIRCUIT.

2 As pointed out in the majority opinion, the state urges that we should 
follow the Seventh Circuit decision in Fleming v. County of Kane, 898 F.2d 
553 (7th Cir. 1990). In Fleming, the Seventh Circuit acknowledged that the 
final judgment did not occur until June 24,1988. Id. at 565. Although the 
court recited that the district court had rendered a memorandum opinion and 
orderon April 12,1988, and a minute orderon June 23,1988,1 submit the only 
reasonable conclusion is that the earlier opinions of the district court were not 
final judgments under Rule 58. Under the circumstances, the decision in 
Fleming is not supportive of any argument to the contrary. As the Supreme 
Court has observed, “it may be unclear even to counsel which orders are and 
which are not ‘final judgments.’ “ White, 455 U.S. at 453. The purpose of 
Rule 58 was to obviate that confusion. See Bankers Trust Co. v. Mallis, 435 
U.S. 381, 386 (1978).



— A-14

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

No. 77-0420-CV-W-4

KALIMA JENKINS, et al.,
Plaintiffs,

vs.
STATE OF MISSOURI, et al.,

Defendants.

FILED: FEB. 24, 1986 

ORDER

On February 5, 1986, Mr. Arthur Benson, II, one of the 
attorneys for plaintiffs in the above-captioned case, moved for an 
allowance of attorney’s fees and in addition asked for an imme­
diate payment of $200,000.00, being only a very small percent­
age of the total fee requested. OnFebruary 11,1986, the NAACP 
Legal Defense Fund, Inc. likewise filed a request for attorney’s 
fees and asked for an immediate award of $280,000.00.

On February 20,1986, the State defendants filed a response to 
the requests for an immediate award of attorney ’ s fees and stated 
that they have no objection to the immediate allowance of 
attorney’s fees to Mr. Benson in the amount of $200,000.00 but 
opposed the immediate award of $280,000.00 to the NAACP 
Legal Defense Fund. The State defendants also take the position 
that the attorney’s fees should be borne equally by the State 
defendants and the KCMSD.

Clearly under the law, counsel for plaintiffs are entitled to an 
award of attorney ’ s fees. Mr. Benson has made a very persuasive 
argument that an immediate award of $200,000.00 should be



A-15

made to him. It is not so clear that any immediate award should 
be made to the NAACP Legal Defense Fund.

Without making a determination as to whether the award of 
attorney’s fees should be assessed against the State defendants as 
well as the KCMSD, the Court will not require KCMSD to 
participate in the payment of immediate fees being awarded to 
Mr. Benson. Therefore, it is hereby

ORDERED that Mr. Arthur Benson, II is entitled to an 
immediate award as partial payment of attorney’s fees in the 
amount of $200,000.00 to be paid by the State defendants; and 
it is further

ORDERED that the immediate award of $280,000.00 in 
partial payment to the NAACP Legal Defense Fund, Inc. is 
presently denied without prejudice.

/s/RUSSELL G. CLARK,
DISTRICT JUDGE 
UNITED STATES 
DISTRICT COURT

Dated: February 24, 1986



A-16

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR'THE 
WESTERN DISTRICT OF MISSOURI 

WESTERN DIVISION

No. 77-0420-CV-W-4

KALIMA JENKINS, et al„
Plaintiffs,

vs.
STATE OF MISSOURI, et al.,

Defendants.

FILED: MAY 11, 1987 

ORDER

Several motions for awards of attorney’s fees and expenses 
are presently before the Court. Plaintiffs’ cou-counsel, Arthur 
Benson, has moved for $3,310,587.00 in fees and expenses for 
services rendered by him and his staff through June 30, 1986. 
The Court will award Mr. Benson and his staff $1,614,437.43 for 
these services. Having previously received $347,332.93 of this 
amount, the balance due Mr. Benson for these services is 
$1,267,104.50. In addition, Benson has requested $72,702.49 in 
fees and expenses incurred in litigating his fee application. The 
Court will award this amount. The Legal Defense Fund (LDF), 
co-counsel for the plaintiffs in this case, moved the Court for 
$3,170,600.20 in fees and expenses for services rendered through 
May 31,1985. The Court will award the LDF $2,323,730.60 for 
these services. In addition, the LDF seeks $65,411.64 in fees and 
expenses incurred in pursuing its fee application. The Court will 
award the LDF $42,145.14 for such services. The State of 
Missouri defendants will be solely liable for the fees and ex­
penses awarded by the Court. Co-defendant KCMSD has moved 
the Court for $1,298,198.70 in attorney’s fees and litigation



— A-17

expenses for services rendered through June 30, 1986. This 
motion will be denied. Intervenor Kansas City Missouri Federa­
tion of Teachers Local 691 moved the Court for $62,169.37 in 
attorney’s fees and expenses incurred through March 1, 1987. 
This motion will be denied.

BENSON AND STAFF

Pursuant to 42 U.S.C. § 1988, the Court may allow the 
prevailing parties in this suit a reasonable fee as part of the costs. 
However, the plaintiffs in this case may only be considered 
prevailing parties for attorney’s fees purposes if they succeeded 
on any significant issue in the litigation which achieved some of 
the benefit the parties sought in bringing the suit. Hensley v. 
Eckerhart, 461 U.S. 424, 433 (1983), quoting Nadeau v. 
Helegemoe,581 F .2d275,278-79 (1stCir. 1978). Theplaintiffs 
in this action are undisputedly “prevailing parties” because this 
Court found in favor of the plaintiffs on their liability claims 
against the State of Missouri defendants and the KCMSD. 
Jenkins v. State o f Missouri, 593 F. Supp. 1485,1505 (W.D. Mo. 
1984).

The first step in determining a reasonable attorney’s fee is to 
multiply “the number of hours reasonably expended on the 
litigation times a reasonable hourly rate.” Blum v. Stenson, 465 
U.S. 886, 888 (1984). Mr. Benson acknowledges that under 
Henlsey v. Eckerhart, 461 U.S. 424 (1983), he and his staff 
cannot receive compensation for all their time spent on this 
litigation since the plaintiffs were not successful in their claims 
against the suburban school districts, the Kansas defendants, and 
the federal defendants. Accordingly, Mr. Benson excluded from 
the total time expended by him and his staff approximately 353 
hours which he claims was clearly allocable to work done on the 
unsuccessful claims against these other defendants. The State 
argues that Benson and his staff failed to exclude additional 
hours that were expended solely on the unsuccessful claims.



A-18 —

Contrary to the contentions of the State of Missouri, the Court 
finds that the specific exclusions made by Benson and his staff 
accurately represent the time allocable to unsuccessful claims in 
the litigation, and which was “distinct in all respects” from time 
spent on their successful claims. Hensley v. Eckerhart, 461 U.S. 
at 440.

The State also argues that the remaining time should be 
reduced by 50% because the plaintiffs were unsuccessful on their 
claim of interdistrict liability against the State and various other 
defendants. The Court finds that these remaining hours either 
related solely to the successful claims made by the plaintiffs 
against the State and the KCMSD or were so closely interrelated 
among the remaining claims that they cannot be separated or 
reduced by some arbitrary percentage.

Finally, the State also requests an additional reduction of 5% 
for alleged duplication of effort. The State argues that because 
the plaintiffs utilized thirteen attorneys and numerous staff 
personnel in this case that there was “inevitably” some duplica­
tion of effort. Having examined the time records submitted by 
Benson and his staff, the Court finds no such duplication. 
Retention of numerous attorneys and a large staff in this lengthy 
and complicated school desegregation case is certainly under­
standable and is not in itself a ground for reducing the hours 
claimed. Johnson v. University College o f the University of 
Alabama in Birmingham, 706F.2d 1205,1208 (11th Cir. 1983).

For the reasons stated, the Court finds the hours submitted by 
Mr. Benson and his staff represent the time reasonably expended 
on this litigation.

The next step in arriving at reasonable attorney’s fees is the 
determination of a reasonable hourly rate. In making such a 
determination, the Court has carefully considered the twelve 
factors enumerated in Johnson v. Georgia Highway Express, 
Inc., 488 F.2d 714,717-19 (5th Cir. 1974) that have been adopted



— A-19

by the Eighth Circuit. E.g., Hardman v. Board o f Education of 
Dollarway,Arkansas,7 14F.2d823,825 (8thCir. 1983). Among 
these factors are the customary fee of the attorney and his 
experience, reputation and ability. The Court finds that Mr. 
Benson does not regularly charge an hourly rate in his civil rights 
practice. Therefore, the Court must consider the current Kansas 
City, Missouri hourly rate for attorneys with the litigation 
experience and expertise comparable to that of Mr. Benson.

It is undisputed that Mr. Benson is an experienced trial 
attorney who is widely recognized as a highly qualified civil 
rights attorney in the Kansas City, Missouri area. Based on the 
evidence presented to the Court, the Court finds that the hourly 
rates for Kansas City, Missouri attorneys with litigation experi­
ence and expertise comparable to that of Mr. Benson range from 
$ 125.00 to $ 175.00 per hour. The Court finds that Mr. Benson’s 
rate would fall at the higher end of this range based upon his 
expertise in the area of civil rights.

Two additional Johnson factors are particularly applicable in 
this case, i.e., the preclusion of other employment by the attorney 
due to acceptance of a case, and the undesirability of a case. The 
Court finds that from early 1983 until the end of 1985 Benson 
devoted nearly all of his professional time to this case and was 
thereby precluded from accepting other employment. Similarly, 
Benson’s staff was also precluded from other employment for a 
period of at least one year while working full time on this 
litigation.

The undesirability of this case should also be considered in 
determining Benson’s reasonable hourly fee. Undeniably, this 
case has been very unpopular with many Missouri citizens as 
evidenced by various statements, editorials, articles and letters 
from parents, taxpayers and state officials.

In addition, the Court has considered delay in payment, a 
factor not listed in Johnson, in determining a reasonable attorney ’ s



— A-20

fee for Benson’s services. Mr. Benson’s application is for 
services rendered from March, 1979 through June 30, 1986. It 
is essential that his hourly rate include compensation for the 
delay in payment Jorstad v. IDS Realty Trust, 643 F.2d 1305 
(8th Cir. 1981).

Accordingly, having carefully considered the twelve factors 
set forth in Johnson, and the additional factor of delay in 
payment, the Court finds that a reasonable hourly rate for Mr. 
Benson’s services from 1979 through June 30,1986, is $200.00 
per hour. This rate, multiplied by the number of hours reason­
ably expended by Mr. Benson on the litigation, results in an 
attorney’s fee of $1,004,160.00. The Court will award Mr. 
Benson this amount for attorney’s fees for services rendered 
through June 30,1986.

Mr. Benson had requested an hourly rate of $125.00 an hour 
which when multiplied by his reasonable hours expended totals 
$627,600.00. However, he also requested additional awards of 
$370,042.00 for “quality of representation” and $1,135,800.00 
for the “risk of nonpayment,” creating a total fee request for his 
services of approximately $2.1 Million Dollars.

The Court finds that Benson’s request is improper because 
under Blum v. Stenson, 465 U.S. 886, 898-900 (1984) the 
“quality of representation,” along with the “novelty and com­
plexity of the issues,” “the special skill and expertise of counsel,” 
and the “results obtained” from the litigation are presumably 
fully reflected in the product of the reasonable hours and a 
reasonably hourly rate, and thus cannot serve as an independent 
basis for increasing the basic fee award. In the present case, the 
quality of Benson’s representation as well as the other factors 
mentioned above, are fully reflected in the $1,004,160.00 fee 
calculated by the Court.

The Court is aware that an upward adjustment is permissible 
in the rare case where the fee applicant offers specific evidence



— A-21 —

to show that the quality of service rendered was superior to that 
one reasonably should expect in light of the hourly rate charged 
and that the success was exceptional. Blum v. Stenson, 465 U.S. 
at 899. However, while Mr. Benson certainly provided quality 
representation in this case, the Court does not find that this is the 
“rare case” which warrants an upward adjustment.

The question of upward adjustment based on the risk of loss, 
or as described by the plaintiffs, risk of nonpayment, was left 
open in Blum b. Stenson, supra. However in Pennsylvania v. 
Delaware Valley Citizens Council for Clean Air, No. 85-5, slip 
op. at 20-21 (July 2,1986), the Supreme Court reset the case for 
argument on that particular issue. To date, no such opinion has 
been rendered. Notwithstanding, the Court finds that the plain­
tiffs’ likelihood of success in their claim against the State of 
Missouri defendants was very high, and thus Benson’s risk of 
nonpayment very slight, because the State had mandated segre­
gated schools for black and white children prior to 1954 and had 
failed to take any affirmative steps to eliminate the unlawful 
segregation after 1954. This small risk of nonpayment is fully 
reflected in the reasonable attorney ’ s fee calculated by the Court.

Benson also requests a fee award for the services of four 
attorneys whom he employed to assist him in the litigation of this 
case. Two of these attorneys, Ms. Burkdoll and Ms. Goering, 
were associates of Mr. Benson and billed 97% of the hours 
submitted by these four attorneys on the fee application. Mr. 
Benson requests an hourly rate of $80.00 per hour for Ms. 
Burkdoll and Ms. Goering. The evidence presented to the Court 
establishes that current Kansas City, Missouri hourly rates for 
associates with experience and expertise comparable to Ms. 
Burkdoll and Ms. Goering range from $60.00 to $95.00 per hour. 
After careful consideration, the Court finds that $80.00 per hour 
rate is approximately $15 to $20 higher than the average hourly 
rate for Kansas City associates in 1982-84, the years in which 
Ms. Burkdoll and Ms. Goering compiled their hours. However,



A-22

the differential is necessary to compensate Mr. Benson for the 
delay in payment. However, the differential is necessary com­
pensate Mr. Benson for the delay in payment. Accordingly, the 
Court will award Mr. Benson a total of $304,348.00 in fees for 
services rendered by Ms. Burkdoll and Ms. Goering from 1982 
to 1984.

Benson also requested that he be awarded enhancements of 
$319,328 and $287,912 for the services of Ms. Burkdoll and Ms. 
Goering for the risk of nonpayment. As previously stated, the 
risk of nonpayment was very small and is fully reflected in the 
$80.00 per hour rate found to be reasonable by the Court.

The remaining two attorneys employed by Mr. Benson, Mr. 
Routman and Mr. Thomas, collectively compiled 89 hours from 
1981 through 1983. At the time they began assisting Mr. Benson 
in this litigation, Mr. Routman had ten years of legal experience 
and Mr. Thomas five. Both are presently partners in Kansas 
City, Missouri law firms. After careful consideration, the Court 
finds that the hourly rate of $90.00 for Mr. Routman and $85.00 
per hour for Mr. Thomas requested in the fee application are 
reasonable for the Kansas City, Missouri area. Therefore, the 
Court will award Mr. Benson $7,663.00 in attorney’s fees for the 
services o f Mr. Routman and Mr. Thomas.

Mr. Benson also requested an enhancement of the above 
award for the risk of nonpayment. Again, the Court finds that 
such a risk is very small and is fully reflected in the hourly rate 
calculated by the Court.

Mr. Benson also employed seven paralegals and four law 
clerks for whom he requests fees. The evidence presented to the 
Court indicates that the current Kansas City hourly rates is 
$40.00 an hour for paralegals and $35.00 for law clerks, the rates 
requested by Mr. Benson. Therefore, the Court finds that the 
requested rates are reasonable for the services rendered and will 
award Mr. Benson $225,084.50 for paralegal and law clerk fees.



— A-23 —

Furthermore, the Court notes that it has adequately compensated 
Mr. Benson for the delay in payment by calculating this award 
based upon the current, rather than the historical, hourly rates.

In addition, Mr. Benson requests $73,182.43 in litigation 
expenses that he has personally incurred from 1979 to June 30, 
1986. The Court has carefully reviewed these expenditures and 
finds them necessary and reasonable costs. Therefore, the Court 
will award the requested amount.

Mr. Benson also seeks $72,702.49 in fees and expenses 
incurredin preparing and litigating his fee application. Such fees 
and expenses are compensable under 42 U.S.C. § 1988. Doulin 
v. White, 549 F. Supp. 152, 159 (E.D. Ark. 1982). Mr. Benson 
was represented in his fee application by Mr. Russell Lovell, a 
professor of law at Drake University. Mr. Lovell is a regular  
lecturer on civil rights litigation, including attorney’s fees. Prior 
to joining the law faculty at Drake University, Mr. Lovell 
practiced law for five years and served as counsel of record in 
approximately twenty federal court civil rights cases. Based 
upon the skill and experience of Mr. Lovell and type of work 
involved, the Court finds that $125.00 per hour is a reasonable 
Kansas City, Missouri hourly rate for preparing and litigating 
this fee application. The Court finds that the time records 
submitted by Mr. Lovell represent hours reasonably expended 
on the fee application. Therefore, the Court will award $47,387.50 
for services rendered by Mr. Lovell.

Mr. Benson requests a fee of $10,125.00 for his services in 
litigation of his fee application. Having reviewed the time 
records submitted by Mr. Benson, the Court finds that the 81 
hours listed represent time that was reasonably expended on the 
litigation. In addition, the Court finds that the $125.00 hourly 
rate requested by Mr. Benson is a reasonable rate for the work 
performed. Therefore, the Court will award Mr. Benson the 
amount requested.



— A-24

In addition, Mr. Lovell and Mr. Benson collectively employed 
three paralegals and two law clerks to assist in the preparation of 
the fee application. The Court has reviewed the hours submitted 
by these individuals and finds them reasonable. Furthermore, 
the rates requested, $40.00per hour for paralegals and $35.00per 
hour for law clerks, are certainly reasonable rates for the Kansas 
City area. Therefore, the Court will award $7,865.00 in fees 
requested for these staff members.

Finally, Mr. Benson requests $7,324.49 for expenses incurred 
in litigation of this fee application. Having reviewed the record 
submitted, the Court finds that these expenditures were neces­
sary and their cost reasonable and will award the amount re­
quested.

In summation, the Court finds that Mr. Benson and his staff are 
entitled to a total award of $1,687,139.92 in fees and expenses 
for services rendered from 1979 to June 30, 1986, and for fees 
and expenses incurred in litigating his fee application. To date, 
Mr. Benson has received $347,332.93 of this amount, leaving a 
balance due of $1,339,806.99.

THE LEGAL DEFENSE FUND

The Court finds that this highly complex case required re­
sources far beyond those available to Mr. Benson. Therefore, it 
was necessary for Mr. Benson to obtain the assistance of an 
organization such as the LDF. The LDF entered the case in 
March, 1982 as co-counsel for the plaintiffs and is now request­
ing an award of $3,170,600.20 in fees and expenses for services 
rendered through May, 1985.

Approximately $2.5 Million of the total amount requested by 
the LDF represents fees of attorneys, paralegals and law clerks. 
As stated previously, the first step in determining a reasonable 
fee is to multiply the number of hours reasonably expended on 
the litigation times a reasonable hourly rate. Blum v. Stenson, 
465 U.S. 886,888 (1984). Regarding the hours submitted by the



— A-25 —

LDF, the Court finds that the LDF properly excluded the time 
that was clearly allocable to work done on the unsuccessful 
claims pursuant to Hensley v. Eckerhart, 461 U.S. 424 (1983). 
The Court finds that the remaining hours, except for 3.5 hours 
submitted by Mr. Liebman for a 12-21-83 flight from Kansas 
City to New Mexico, were reasonably expended on the litiga­
tion, and are deserving of compensation.

In determining a reasonable hourly rate for the services of the 
various LDF attorneys and support personnel, it is noteworthy 
that such fees are to be calculated according to the prevailing 
market rates in the relevant community, regardless of whether 
plaintiff is represented by private or nonprofit counsel. Blum v. 
Stenson, 465 U.S. at 895. The “relevant community” is the 
“general locality in which the litigation takes place.” Interna­
tional Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 
1255, 1275 (8th Cir. 1980). Therefore, the hourly rates to be 
awarded the attorneys and staff of the New York based LDF will 
be determined according to Kansas City, Missouri rates.

Seven of the LDF staff attorneys assisted Mr. Benson in the 
litigation of this case from March 1982 to May 1985. In 
determining a reasonable hourly rate for each attorney’s ser­
vices, the Court has considered the twelve factors in Johnson v. 
Georgia Highway Express, Inc., 488 F.2d at 717-19. The LDF 
attorneys are salaried and do not charge a customary fee. There­
fore, the Court must judge the experience, reputation and ability 
of the individual attorneys and determine a reasonable hourly 
rate for a Kansas City, Missouri attorney with similar expertise 
and experience. Based upon the evidence presented the court 
finds that the current Kansas City, Missouri hourly rate for 
attorneys with litigation experience and expertise comparable to 
that of LDF attorneys Liebman, Johnston, and Lief range from 
$125 to $175 per hour. In addition the court finds that these 
attorneys are entitled to compensation for delay in payment. 
Therefore, the Court will award the LDF attorney’s fees at the 
current, rather than historical, rates. Accordingly, the Court



A-26 —

finds that the $160.00 requested by Mr. Liebman is a reasonable 
hourly rate and will award the LDF $650,688.00 for his services 
rendered through May of 1985. Similarly, the Court finds that 
$175.00 per hour is a reasonable hourly rate for the services of 
Mr. Johnston and Ms. Lief and will award fees of $62,002.50 and 
$122,447.50 respectively for their services.

The Court finds that the experience and expertise of attorneys 
Shaw, Fins, Winter and Hair at the time of their involvement in 
this case is comparable to that of associates with five or fewer 
years experience. The current Kansas City hourly rate for such 
associates ranges from $60.00 to $95.00 per hour. Therefore, the 
Court finds that a reasonable hourly rate for the services of Mr. 
Shaw, Mr. Winter, Ms. Hair and Ms. Fins in $95.00 per hour and 
the Court will award the LDF a total of $384,617.00 for their 
services.

LDF had requested rates higher than those awarded by the 
Court claiming that the complexity and scope of litigation 
prompted a hiring freeze and precluded it from accepting other 
cases for which it would receive payment sooner. The Court 
considered this factor, but finds that during this litigation the 
LDF employed additional attorneys who were not involved in 
this litigation and were available for work on other cases.

The LDF also requested the Court to award it a contingency 
enhancement of $688,874.30. As stated previously, the Court 
finds that the plaintiffs’ risk of loss, and thus the LDF’s risk of 
nonpayment, was very slight and is fully reflected in the reason­
able fees calculated by the Court.

In addition, the LDF requests an award for the services of 
numerous paralegals, law clerks andrecentlaw graduates. Based 
upon the evidence presented, the Court finds that the requested 
rates of $50.00 an hour for recent law graduates, $40.00 for 
paralegals, and $35.00 an hour for law clerks are comparable to 
the current Kansas City, Missouri rates for these services.



A-27

Therefore, the Court will award the LDF $431,337.75 in fees for 
the services rendered from March, 1982 to May 1985.

In addition, the LDF requests $627,637.85 in litigation ex­
penses. The Court has carefully reviewed these expenditures 
and finds that they were necessary and their cost reasonable. 
Accordingly, the Court will award the LDF the requested amount.

The LDF also requested an award of $65,411.64 in attorney’s 
fees and expenses incurred in the preparation and litigation of 
their fee application. The Court has reviewed the time records 
submitted by the four attorneys who represented the LDF in their 
fee application and finds that they contain only those hours that 
were reasonably expended on the litigation. However, the Court 
finds that the New York rates requested by these attorneys, 
ranging from $ 160.00 to $330.00 per hour, are excessive and do 
not reflect a reasonable hourly rate in the Kansas City, Missouri 
area for similar work. As the Court found in considering Mr. 
Benson’s request for attorney’s fees incurred in litigating his fee 
application, $ 125.00 per hour is a reasonable hourly rate for such 
work in the Kansas City, Missouri area. Thus, the Court will 
award the LDF $29,050.00 in fees for services rendered in 
litigating its fee application.

The LDF also requests $11,441.33 for expenses incurred in 
litigating its fee application. Having carefully reviewed these 
expenditures, the Court finds that they were necessary and their 
cost reasonable and will award the amount requested.

KCMSD

KCMSD requests an award of $1,298,198.70 for attorney’s 
fees and expenses for work performed from March 1977 through 
June, 1986. The issue before the Court is whether the Kansas 
City, Missouri school district is a “prevailing party” within the 
meaning of 42 U.S.C. § 1988.



— A-28

A party may be considered a prevailing party for attorney’s 
fees purposes of they “succeed on any significant issue in the 
litigation which achieves some of the benefit the party sought in 
bringing suit.” Hensley v. Eckerhart, 461 U.S. at 433. For 
purpose of analysis of the attorney’s fees issues, the “notion of 
‘prevailing party’ is to be interpreted in a practical, nor formal, 
manner.” Northcross v. Board o f Education, 611 F.2d 624, 636 
(6th Cir. 1979), cert, denied, 447 U.S. 911 (1980).

This Court did find in favor of the defendant KCMSD on its 
crossclaim against the State of Missouri defendants. Jenkins v. 
State o f Missouri, 593 F. Supp. 1485, 1505 (W.D. Mo. 1984). 
However, in its crossclaim, the KCMSD simply reiterated the 
allegations of the plaintiffs that the State of Missouri had failed 
to take action to dismantle its prior dual school system, and had 
acted to perpetuate the segregation. This Court found for the 
plaintiffs on this same claim against the state defendants. Jenkins 
v. State o f Missouri, 593 F. Supp. at 1505. While the KCMSD 
has certainly been improved by the remedial plans ordered by the 
Court after assessing liability against the State and the KCMSD, 
it is the plaintiffs, the victims of unlawful segregation, who have 
benefited by prevailing on this claim originally alleged in their 
complaint and subsequently made by the KCMSD in its crossclaim 
against the State of Missouri. Moreover, the Court finds that the 
same remedial plans would have been ordered, and thus the 
KCMSD would have received the same benefits, even if it had 
not reiterated the plaintiffs’ allegation in its crossclaim.

In addition, KCMSD in its crossclaim charges that the State 
should be required to contribute financially to any remedial plan 
the Court might order as relief against the KCMSD. The 
KCMSD was adjudged liable for adopting ineffective policies to 
change the segregative patterns and was subsequently directed to 
fund approximately 20% of the initial remedy ordered by the 
Court. Jenkins v. State o f Missouri, 639 F. Supp. 19 (W.D. Mo. 
1986). However, on appeal, the Eighth Circuit held that the 
desegregation costs ordered by this Court should be divided



A-29

equally between the KCMSD and the State of Missouri because 
both were adjudged constitutional violators. Jenkins v. State of 
Missouri, 807 F.2d 657, 684-85 (8th Cir. 1986).

Finally, the KCMSD alleges in its crossclaim, as did the 
plaintiffs in their complaint, that the S tate is liable for interdistrict 
violations. It is undisputed that the KCMSD and the plaintiffs 
failed in their attempt to prove an interdistrict liability against the 
State of Missouri.

Therefore, after a closs[sic] examination of the KCMSD’s 
crossclaim against the State of Missouri defendants, the Court 
finds that the KCMSD, as a practical matter, is not a “prevailing 
party” within the meaning of 42 U.S.C. § 1988.

Notwithstanding the foregoing analysis, there exists a sepa­
rate and compelling reason why the KCMSD should not be 
awarded attorney’s fees and expenses in this case. In Jenkins v. 
State o f Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984), this 
Court found that the KCMSD had violated the United States 
Constitution by adopting policies which perpetuated, rather than 
eliminated, segregation in its schools. Therefore, the Court finds 
it inappropriate to award attorney’s fees to a constitutional 
violator.

Accordingly, the KCMSD ’ s motion for an award of attorney ’ s 
fees and expenses will be denied.

AFT 691

Intervenor Kansas City, Missouri Federation of Teachers 
Local 691 (AFT 691) requests an award of $62,169.37 for 
attorney’s fees and expenses incurred through March 1, 1987. 
This determination lies within the sound discretion of this Court. 
Little Rock School District v. Pulaski County Special School 
District, 787 F.2d 372 (8th Cir. 1986).



— A-30 —

As noted several times in this opinion, a party may be 
considered a prevailing party under 42 U.S.C. § 1988 if it 
succeeds on any significant issue in the litigation which achieved 
some of the benefits the party sought in bringing suit. Hensley 
v. Eckerhart, 461 U.S. at 433. AFT 691 was granted leave to 
intervene in this case on November 5, 1985, following the 
Court’s liability order of September 17, 1984. AFT 691 had 
sought leave to intervene to protect the interests of its members 
and to assist the Court in fashioning a remedy to further litiga­
tion. Notwithstanding, AFT 69l ’sparticipation in this litigation 
has been de minimis. As other courts have recognized, this Court 
finds that an intervenor should not be awarded attorney’s fees 
unless it has played a significant role in the litigation. Grove v. 
Mead School District No. 354, 753 F.2d 1528 (9th Cir. 1985), 
cert, denied, 106 S. Ct. 85 (1985).

Accordingly, AFT 691’s application for attorney’s fees and 
expenses will be denied.

LIABILITY FOR THE FEES AND EXPENSES 
AWARDED

For the reasons set forth in this opinion, the Court will award 
the plaintiffs approximately $4 Million in attorney’s fees and 
expenses for work performed in this case. The remaining 
question before the Court is against whom will these fees be 
charged.

Plaintiffs succeeded on their liability claim against the State of 
Missouri defendants in this case. Jenkins v. State o f Missouri, 
593 F. Supp. 1485,1505 (W.D. Mo. 1984). This Court found the 
State of Missouri to be the primary constitutional violator 
because it had mandated separate schools for black and white 
children prior to 1954, and after 1954 had failed to take any 
affirmative action to eliminate the vestiges and devastating 
effects of the dual school system it had created. Jenkins v. State 
of Missouri, 593 F. Supp. at 1505-06. Accordingly, the Court



A-31 —

finds that the State of Missouri defendants are liable for the 
attorney’s fees and expenses to be awarded plaintiffs’ counsel in 
this case.

This Court also found in favor of the plain tiffs in their claim 
against the KCMSD. Jenkins v. State o f Missouri, 593 F. Supp. 
at 1505. However, the Court did not find that the KCMSD 
caused the unlawful segregation within its district, but rather that 
it failed to fulfill its constitutional obligation to act to disestablish 
the dual system created by the State of Missouri. Jenkins v. State 
of Missouri, 593 F. Supp. at 1504. This Court found that the 
KCMSD had adopted policies which were ineffective in elimi­
nating the unlawful segregation. Id.

Despite the adjudged constitutional violations of the KCMSD, 
the Court finds that the KCMSD is not chargable[sic] for the 
attorney’s fees and expenses to be awarded by the Court. The 
KCMSD, originally a plaintiff in this action, was involuntarily 
made a defendant by the Court in 1978. School District of 
Kansas City, Missouri v. State o f Missouri, 460 F. Supp. 421,445 
(W.D. Mo. 1978). After 1978, the KCMSD and the plaintiffs 
cooperated closely in the development and prosecution of the 
litigation and the KCMSD actually acknowledged prior to trial 
that it had violated the constitutional rights of the plaintiffs.

In addition, the Court notes that in May, 1980 the State of 
Missouri defendants were adjudged “primary constitutional 
violators” in the St. Louis school desegregation case on facts 
very similar to those in the present case. Liddell v. Board of 
Education o f the City o f St. Louis, Missouri, 491 F. Supp. 351, 
359 (E.D. Mo. 1980), affd,  667 F.2d 643 (8th Cir. 1981). 
Despite this finding, the State of Missouri defendants persisted 
in denying liability during the 10 1/2 month trial in this case on 
the liability issues.

For the reasons stated, the Court will order that the State of 
Missouri defendants are solely liable for the $4,053,015.66 in 
fees and expenses to be awarded the plaintiffs in this case.



A-32 —

Accordingly, it is hereby

ORDERED that the Court awards Mr. Benson $1,614,437.43 
in fees and expenses for services rendered by him and his staff 
from 1979 through June 30, 1986; and it is further

ORDERED that the Court awards Mr. Benson $72,702.49 in 
fees and expenses incurred in litigating his fee application; and 
it is further

ORDERED that because Mr. Benson has previously received 
$347,332.93 of this award, the balance due Mr. Benson is 
$1,339,806.99; and it is further

ORDERED that the Court awards the LDF $2,323,730.60 in 
fees and expenses for services rendered through May of 1985; 
and it is further

ORDERED that the Court awards the LDF $42,145.14 for 
fees and expenses incurred in litigating its fee application; and it 
is further

ORDERED that the State of Missouri defendants are solely 
liable for the $4,053,015.66 in fees and expenses awarded by the 
Court, including the $347,332.93 the State has previously paid 
Mr. Benson; and it is further

ORDERED that the KCMSD’s motion for an award of 
attorney’s fees and expenses is denied; and it is further

ORDERED that AFT 691 ’ s motion for an award of attorney ’ s 
fees and expenses is denied.

/s/RUSSELL G. CLARK,
DISTRICT JUDGE,
UNITED STATES 
DISTRICT COURT

Dated: May 11, 1987



A-33

APPENDIX E

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

No. 77-0420-CV-W-4

K ALIM A JENKINS, et al.,
Plaintiffs,

vs.
STATE OF MISSOURI, et al„

Defendants.

FILED: FEB. 26, 1990

ORDER

Before the Court is plaintiffs’ motion for award of post­
judgment interest. The State filed a response and plaintiffs filed 
a reply to the State’s response. The State filed a memorandum 
reply to plaintiffs’ reply and plaintiffs filed a comment to the 
State’s memorandum reply. Plaintiffs’ motion for award of post­
judgment interest will be granted.

On September 17, 1984, the Court entered judgment in the 
above-captioned case in favor of plaintiffs and against the State 
and the KCMSD. Jenkins v. State o f Missouri, 593 F. Supp. 1485 
(W.D. Mo. 1984). On February 24,1986, the Court entered an 
order stating that “[cjlearly under the law, counsel for plaintiffs 
are entitled to an award of attorney’s fees” and ordered t he State 
to make an immediate partial payment of attorneys’ fees to 
Arthur Benson in the amount of $200,000. Id.., Order of February 
24, 1986, at 1-2. Subsequently, on May 11, 1987, the Court 
entered an order stating that plaintiffs were entitled to recover 
attorneys’ fees in the above-captioned case and directing the 
State to pay Benson $1,687,139.92 in attorneys’ fees and ex­



A-34

penses and to pay the Legal Defense Fund $2,365,875.74 in 
attorneys’ fees and expenses.

Plaintiffs’ motion for award of post-judgment interest argues 
that plaintiffs are entitled to post-judgment interest on attorneys ’ 
fees from the date of the February 24, 1986, order in which the 
Court first determined plaintiffs were entitled to an award of 
attorneys’ fees. The State responds that post-judgment interest 
is only available from the date of the May 11, 1987, order 
quantifying plaintiffs’ attorneys’ fees and that even if post­
judgment interest runs from a date earlier than the quantifying of 
the fee award, the Court’s award of current market rates and 
enhancement of Benson’s rate for delay in payment should 
preclude awarding post-judgment interest prior to the quantify­
ing of the fee award, as it would result in a windfall to plaintiffs.

Plaintiffs originally alleged claims against defendants under 
42U.S.C. §§ 1983 and 2000d and under the 14th Amendment to 
the United States Constitution. Id., 593 F. Supp. at 1488. 
Plaintiffs were successful on their claims, see id. at 1506, and 
were subsequently awarded attorneys’ fees as a “prevailing 
party” pursuant to 42 U.S.C. § 1988. Id., Order of May 11,1987, 
at 2. 28 U.S.C. § 1961(a) (emphasis added) provides:

Interest shall be allowed on any money judgment in a 
civil case recovered in a district court. Execution therefor 
may be levied by the marshal, in any case where, by the law 
of the State in which such court is held, execution may be 
levied for interest on judgments recovered in the courts of 
the State. Such interest shall be calculated from the date of 
the entry o f the judgment, at a rate equal to the coupon issue 
yield equivalent (as determined by the Secretary of the 
Treasury) of the average accepted auction price for the last 
auction of fifty-two week United States Treasury bills 
settled immediately prior to the date of the judgment. The 
Director of the Administrative Office of the United States



A-35

Courts shall distribute notice of that rate and any changes in 
it to all Federal judges.

It is well-settled that the language “any money judgment” in 
§ 1961 includes a judgment awarding attorneys’ fees, see, e.g., 
Mathis v. Spears, 857 F.2d 749,760 (Fed. Cir. 1988); R.W.T. v. 
Dalton, 712F.2d 1225,1234-35 (8th Cir.), cert, denied,464 U. S. 
1009 (1983); CopperLiquor,Inc. v. Adolph Coors Co., 701 F.2d 
542, 543 (5th Cir. 1983) (en banc) (per curiam); Spain v. 
Mountanos, 690 F.2d 742, 748 (9th Cir. 1982), and therefore 
plaintiffs are entitled to an award of interest on their attorneys’ 
fees judgment pursuant to § 1961. The dispute resulting in the 
current motion arises from the following § 1961 language: 
“Such interest shall be calculated from the date of the entry of the 
judgment. . . .” Plaintiffs contend that interest on plaintiffs’ 
attorneys’ fees award should begin to accrue on February 24, 
1986, which is the date the Court first entered an order stating 
that plaintiffs were entitled to recover attorneys’ fees. The State 
argues that interest on the attorneys ’ fees award should not begin 
to accrue until May 11,1987, which is the date the Court entered 
an order quantifying plaintiffs’ attorneys’ fees award.

All courts that have specifically addressed this issue have 
determined that interest should accrue from the date the Court 
recognizes the party’s right to recover attorneys’ fees even if the 
fees were not quantified. The Fifth Circuit has stated:

If a judgment is rendered that does not mention the right to 
attorneys’ fees, and the prevailing party is unconditionally 
entitled to such fees by statutory right, interest will accrue 
from the date of judgment. If, however, judgment is 
rendered without mention of attorneys’ fees, and the allow­
ance of fees is within the discretion of the court, interest will 
accrue only from the date the court recognizes the right to 
such fees in a judgment.



A-36

Copper Liquor, 701 F.2d at 545 (emphasis added). In a footnote 
that court stated that the “rule should not extend to the allowance 
of interest prior to the time of the judgment recognizing the right 
to costs and fees." Id. at 544 n.3 (emphasis added). The Federal 
Circuit agreed with the Fifth Circuit:

The provision for calculating interest from entry of 
judgment deters use of the appellate process by the judg­
ment debtor solely as a means of prolonging its free use of 
money owed the judgment creditor. Interest on an attorney 
fee award thus runsfrom the date o f the judgment establish­
ing the right to the award, not the date o f the judgment 
establishing its quantum.

Mathis, 857 F.2d at 760 (citation omitted) (emphasis added). 
The district courts which have specifically addressed the issue 
reach the same result as Copper Liquor and Mathis. See Water 
Technologies Corp. v. Calco Ltd., 714 F. Supp. 899, 910 (N.D. 
111. 1989); Proctor & Gamble Co. v. Weyerhaeuser Co., 711 F. 
Supp. 904, 908 (N.D. 111. 1989); Williamsburg Fair Housing 
Committee v. Ross-Rodney Housing Corp., 599 F. Supp. 509, 
522-23 (S.D.N.Y. 1984fBurstonv. Commonwealth of Virginia, 
595F. Supp. 644,652 (E.D.Va. 1984). The court in Williamsburg 
justified its award of interest on attorneys’ fees from the date the 
fees were awarded as follows:

If a dollar amount had been set by this Court when the 
order was entered [granting plaintiffs’ request for attor­
neys’ fees], the plaintiffs’ attorneys would have been en­
titled to immediate payment. Since the amount of the award 
was not set forth at that time, the defendants have enjoyed 
the use of that money and the plaintiffs’ attorneys have not.

Williamsburg, 599 F. Supp. at 523.

It appears that the cases cited by the State to support the 
proposition that interest begins to accrue on the date an attor­



A-37

neys’ fees award is quantified are distinguishable from the 
current case and do not specifically address the issue raised in the 
current motion. In R.W.T. v. Dalton, 712 F.2d 1225, 1228 (8th 
Cir.), cert, denied, 464 U.S. 1009 (1983), the district court 
granted summary judgment in favor of plaintiffs on October 14, 
1980, and on March 30,1982, entered a final judgment awarding 
plaintiffs’ attorneys’ fees in the amount of $34,815, but with no 
award of post-judgment interest. The Eighth Circuit determined 
that the district court should have awarded interest on plaintiffs’ 
attorneys’ fees award from March 30,1982, until payment. Id. 
at 1234-35. The State argues that Dalton indicates that the 
Eighth Circuit intended for post-judgment interest on an attor­
neys’ fees award to begin to accrue only from the date of an order 
quantifying such award. Although Dalton is somewhat ambigu­
ous on this issue, the Court does not agree with the State’s 
interpretation of Dalton. From the Eighth Circuit’s opinion it 
would appear that the district court determined that plaintiffs 
were entitled to an award of attorneys’ fees and quantified the 
award of fees both in the March 30,1982, order. Therefore, there 
was no need for the Eighth Circuit to specifically address and 
determine if post-judgment interest began to accrue on the date 
the court determined plaintiffs were entitle[sic] to an award of 
attorneys’ fees or the date the attorneys’ fees award was quanti­
fied. In addition, the Court notes that in Dalton the Eighth Circuit 
approvingly cited Copper Liquor as authority. Id. at 1234.

The State also cites Griffin v. Ozark County, Missouri, 688 F. 
Supp. 1372 (W.D. Mo. 1988). In Griffin, the court entered an 
order on December 8,1987, in favor of plaintiff in the amount of 
$500plus attorneys’ fees. Id. at 1372. On June 1,1988, the court 
entered an order quantifying the attorneys’ fees award. Id. at 
1377. The court cited Dalton in awarding plaintiff interest on 
attorneys’ fees from the date of the order quantifying the attor­
neys’ fees award. However, based upon the discussion o fDalton 
previously in this order, it appears that the Griffin court’s



— A-38

reliance on Dalton is misplaced. In addition, the Court notes that 
the Griffin court did not specifically address the issue raised by 
the current motion.

The remaining cases cited by the State or disclosed through 
the Court’s research are not dispositive on the issue of when post­
judgment interest begins to accrue on an attorneys’ fees award 
because the cases do not specifically address that issue and the 
courts in those cases both awarded attorneys’ fees and quantified 
such awards on the same date. See Institutionalized Juveniles v. 
Secretary o f Public Welfare, 758 F.2d 897, 927 (3d Cir. 1985); 
McCullough v. Cady, 640 F. Supp. 1012, 1028 (E.D. Mich. 
1986); Advo System, Inc. v. Walters, 110 F.R.D. 426,433 (E.D. 
Mich. 1986); Spell v. McDaniel, 616 F. Supp. 1069, 1115 
(E.D.N.C. 1985), vacated in part on other grounds, 824 F.2d 
1380(4thCir. 1987), cert, denied,484U.S. 1027(1988). Infact, 
the court in Spell cited Dalton when stating that “interest accrues 
as a matter of course from the date of entry of the judgment 
awarding fees,” as opposed to quantifying fees. Id. (emphasis 
added). The court in Advo also stated that interest accrues “from 
the date of the judgment allowing this award.” Advo, 110 F.R.D. 
at 433 (emphasis added). Although the court in McCullough 
made the correct statement that“[c]laims for attorneys’ fees and 
costs are unliquidated until finally determined by the court and 
a judgment entered,” the court continued by stating that “interest 
will be applied to the total amount of [the attorneys’ fees award] 
from the date of the judgment allowing this award.” Id. (empha­
sis added).

Therefore, the Court finds that the weight of authority favors 
an award of interest on plaintiffs’ attorneys’ fees award from 
February 24, 1986, the date the Court first determined that 
plaintiffs were entitled to an award of attorneys’ fees. The State 
argues that even if post-judgment interest is available to plain­
tiffs from February 24, 1986, such an award would not be 
appropriate in this case because plaintiffs received both current



A-39

market rates and an enhancement for delay in payment in the 
May 11, 1987, order quantifying plaintiffs’ attorneys’ fees 
award. Thus, the State argues that allowing plaintiffs to receive 
post-judgment interest form February 24, 1986, results in a 
windfall to plaintiffs. However, allowing plaintiffs to receive 
post-judgment interest from February 24, 1986, does not result 
in a windfall to plaintiffs. In its order of May 11,1987, the Court 
determined that Benson’s hourly rate would fall at the high end 
of a $125 to $175 per hour range. Jenkins, Order of May 11, 
1987, at 4. The Court then considered the preclusion of other 
employment by Benson due to this case, the undesirability of the 
case and the delay in payment and found that “a reasonable 
hourly rate for Mr. Benson’s services from 1979 through June 
30,1986, is $200.00 per hour.” Id. at 4-5. Thus, it is clear that 
the enhanced hourly rate for Benson was not based solely on 
delay in payment, but also included the undesirability of the case 
and preclusion of other employment. In addition, although the 
Court stated that the enhanced hourly rate was for Benson’s 
services through June 30, 1986, Benson’s last time entry for 
litigation other than Year I monitoring and attorneys’ fees 
litigation, which were compensation at a lower hourly rate of 
$125, id. at 8; id., Order of July 14,1987, at 2, was on September 
3, 1985. Benson was the only attorney whose hourly rate was 
enhanced and this enhancement was for services rendered prior 
to September 3, 1985. Benson was the only attorney whose 
hourly rate was enhanced and this enhancement was for services 
rendered prior to September 3,1985. This fact, combined with 
the Court’s statement that “a reasonably hourly rate for Mr. 
Benson’s services from 1979 through June 30,1986, is $200.00 
per hour,” id., Order of May 11, 1987, at 4-5, indicates that the 
May 11,1987, order did not compensate Benson at current 1987 
market rates, but instead at 1986 rates. The attorneys’ fees award 
at the 1986 rates and its enhancement was not meant to be a 
substitute for post-judgment interest. Therefore, the Court finds 
that an award of post-judgment interest on plaintiffs’ attorneys 
fees award is appropriate.



— A-40

In the alternative, plaintiffs’ motion requests the Court to 
award Benson $178,859.18 in prejudgment interest. Because 
the Court will grant plaintiffs’ motion, it is unnecessary for the 
Court to address the issues contained in plaintiffs’ alternative 
motion.

For the foregoing reasons the Court will grant plaintiffs’ 
motion for award of post-judgment interest. The United States 
Treasury Bill rate on February 24,1986, was 7.71% and, there­
fore, plaintiffs are entitled to an award of interest on their 
attorneys’ fees award at a rate of 7.71% from February 24,1986. 
The State shall be solely liable for such interest payments. See 
id. at 14-16. The State’s post-judgment interest obligation to 
Arthur Benson and the Legal Defense Fund shall be credited 
$113,379.44 and $184,124.26, respectively, for June 23, 1989, 
payments of post-judgment interest by the State.

Accordingly, it is hereby

ORDERED that plaintiffs’ motion for award of post-judg­
ment interest is granted; and it is further

ORDERED that plaintiffs are awarded post-judgment interest 
at a rate of 7.71% from February 24, 1986, on their attorneys’ 
fees award; and it is further

ORDERED that the State shall be solely liable for post­
judgment interest payments to plaintiffs; and it is further

ORDERED that the State’s post-judgment interest obligation 
to Arthur Benson and the Legal Defense Fund shall be credited 
$113,379.44 and $184,124.26, respectively, for previous post­
judgment interest payments.

RUSSELL G. CLARK, JUDGE 
UNITED STATES 
DISTRICT COURT

Date: February 26, 1990