838 F.2d 260 (8th Cir. 1988), 87-2075, Jenkins by Agyei v. State of Mo.

Docket Nº:87-2075, 87-2076 and 87-2077.
Citation:838 F.2d 260
Party Name: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, Mar
Case Date:January 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 260

838 F.2d 260 (8th Cir. 1988)

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; and 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, Terry A. Bond, President,

Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L.

Welling, Donald E. West, Members of the Missouri State Board

of Education, Arthur L. Mallory, Commissioner of Education

of the State of Missouri, Appellees,

and

School District of Kansas City, Missouri, Appellant,

and Claude C. Perkins, Superintendent thereof.

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, and 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, Terry A. Bond, President,

Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L.

Welling, Donald E. West, Members of the Missouri State Board

of Education, Arthur L. Mallory, Commissioner of Education

of the State of Missouri, Appellants,

and

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

Perkins, Superintendent thereof, Appellee.

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; Appellants, and 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, Terry A. Bond, President,

Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L.

Welling, Donald E. West, Members of the Missouri State Board

of Education, Arthur L. Mallory, Commissioner of Education

of the State of Missouri, Appellees,

and

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

Perkins, Superintendent thereof.

Nos. 87-2075, 87-2076 and 87-2077.

United States Court of Appeals, Eighth Circuit

January 29, 1988

Submitted Oct. 13, 1987.

Rehearing and Rehearing En Banc Denied in No. 87-2076 April

13, 1988.

Rehearing and Rehearing En Banc Denied Nov. 9, 1989.

Page 261

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Page 262

Jay Topkis, New York City, Russell E. Lovell, II, Associate Dean, Drake University Law School, Des Moines, Ia. for Jenkins.

Patricia Brannan, Washington, D.C. for Kansas City School District.

Bruce Farmer, Jefferson City, Mo., for State of Missouri.

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

JOHN R. GIBSON, Circuit Judge.

The award of attorneys' fees in the Kansas City, Missouri school desegregation case has resulted in this trio of appeals. The district court 1 awarded plaintiffs' co-counsel, Arthur Benson, and the Legal Defense Fund of the NAACP (LDF) fees and expenses for services rendered in the litigation, imposed solely against the State of Missouri. The district court denied the application of the Kansas City, Missouri School District (KCMSD) for attorneys' fees. On appeal the State of Missouri argues that the district court award compensated plaintiffs' counsel for time spent on unsuccessful claims and the fee should have been reduced because of plaintiffs' partial success; that there was error in awarding an hourly rate based upon a delay in payment factor because this is an award of interest against the State prohibited by the eleventh amendment; that 50 percent of the fee should have been imposed on KCMSD; and that the fees and expenses were unreasonable. KCMSD argues that as a party seeking to enforce the civil rights laws through litigation and as a prevailing party, it was eligible for an award of attorneys' fees. Plaintiffs argue that the district court erred in not enhancing their fee to compensate for the risk plaintiffs' counsel assumed. The judgment of the district court is affirmed.

The school desegregation case was filed in 1977 and the history of this litigation is outlined with a broad brush in this court en banc's opinion. Jenkins v. State of Missouri, 807 F.2d 657, 661-62 (8th Cir.1986) (en banc), cert. denied, --- U.S. ----, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). Plaintiffs submitted a detailed application for fees under 42 U.S.C. Sec. 1988 (1982). 2 The State filed a response cataloging specific items in the fee applications it deemed excessive, and the plaintiffs responded with an item-by-item rebuttal of the State's objections. Evidence was presented at a hearing.

The district court recognized that plaintiffs are entitled to attorneys' fees if they succeeded on any significant issue in the litigation. It found the plaintiffs were undisputedly prevailing parties.

The district court based its fee calculation on the number of hours and amount of expenses the plaintiffs submitted. The plaintiffs had cut their total hours to delete time spent on unsuccessful interdistrict claims against federal, Kansas and suburban school district defendants. The court adopted the plaintiffs' adjusted request as the basis for the number of reasonable hours, rejecting the State's arguments for further cuts because it found that the remaining hours were either expended solely on the successful claims or were "so closely interrelated" with them "that they cannot be separated or reduced by some arbitrary

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percentage." Jenkins v. Missouri, No. 77-0420-CV-W-4, slip. op. at 3 (W.D.Mo. May 11, 1987).

The district court concluded that the hours submitted by the plaintiffs after their suggested reductions for time spent on unsuccessful claims represented the time reasonably spent on this litigation, except for 3.5 of the hours requested for LDF attorney Liebman. The court also determined that the hours and expenses submitted by LDF and Benson for litigating fee requests were reasonable and allowed the expenses and a fee based on the hours submitted.

The court then turned to the determination of an hourly rate. It found that Benson's rate would fall at the higher end of a range of $125 to $175 per hour. In doing so it considered the attorney's customary fee, his experience, reputation and ability. In addition, because the application was for services rendered from March, 1979 through June, 1986, the court deemed it...

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