Kimbrough v. Arkansas Activities Ass'n

Citation574 F.2d 423
Decision Date18 April 1978
Docket NumberNo. 77-1715,77-1715
PartiesMark KIMBROUGH, Appellant, v. ARKANSAS ACTIVITIES ASSOCIATION, a private non-profit corporation, and Lee Cassiday, Executive Director, and the Board of Directors of the Schools of the Little Rock School District, Paul Fair, Superintendent of Schools, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

John W. Walker, Walker, Kaplan & Mays, Little Rock, Ark., Sheila Phillips, Research Asst., filed brief for appellant.

Michael W. Mitchell, Little Rock, Ark., filed brief for appellee Ark. Activities Assn.

Robert V. Light, Little Rock, Ark., filed brief for appellee, Little Rock School Dist.

Before HEANEY and STEPHENSON, Circuit Judges, and BECKER, Senior District Judge. *

HEANEY, Circuit Judge.

Mark Kimbrough appeals from the District Court's denial of his motion for an award of attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. We reverse and remand.

Kimbrough, a black high school student, brought this suit under 42 U.S.C. §§ 1981 and 1983 in July, 1976, challenging a ruling by the Arkansas Activities Association (AAA) and its executive director which held him ineligible for interscholastic athletic competition during his senior year of high school. Kimbrough alleged that the AAA's "Eight Semester Rule" 1 was unconstitutional on its face and as applied to him in violation of the equal protection and due process guarantees of the Fourteenth Amendment. He sought declaratory relief and also temporary and permanent injunctive relief, enjoining the AAA and its executive director from prohibiting his participation in the Little Rock School District's Parkview High School football program. 2 The compliant also prayed for an award of costs including reasonable attorney's fees.

A hearing was held on Kimbrough's application for a temporary injunction on August 2, 1976. At the conclusion of the hearing, the court ruled that the "Eight Semester Rule" and attendant regulations were ambiguous and did not, in the court's judgment, prohibit Kimbrough from participating in interscholastic athletic competition for one more semester. The court, therefore, enjoined the AAA from denying Kimbrough eligibility for such competition through the fall semester of the 1976-1977 school year. Although the court stated that the injunction was granted pendente lite, it also stated that its order was appealable because it effectively disposed of the case. 3 An order incorporating the trial court's ruling was issued on August 2, 1976.

On March 10, 1977, the District Court requested a report from the parties as to the status of the case. On March 16, 1977, Kimbrough's attorney informed the court that the plaintiff was willing to have the remaining portion of the case dismissed without prejudice. Kimbrough's attorney also stated that the plaintiff felt that an award of costs and attorney's fees was appropriate and that a letter or motion in support thereof would be submitted in the future. The defendants concurred in the voluntary dismissal of the remainder of the case; and on March 18, 1977, an order to that effect was entered by the District Court.

Kimbrough submitted a motion to tax costs, including attorney's fees, on May 20, 1977. After a response resisting this motion was filed by the defendants, Kimbrough submitted a memorandum to the trial court in support of his request. On July 29, 1977, the trial court awarded Kimbrough his costs but denied his request for attorney's fees.

Kimbrough then filed a motion for reconsideration of his request for attorney's fees, which was denied by the court in a memorandum order dated August 29, 1977. In denying Kimbrough's request for attorney's fees, the court first noted that Kimbrough's original motion to tax costs was not accompanied by a supporting memorandum of law as required by E.D.Ark.R. 8(b). The court went on to note that in the memorandum which Kimbrough later filed, he "failed to address the real issue presented by his request for attorney's fees, i. e., whether an award of attorney's fees can be premised on successfully achieving interim relief rather than actually prevailing on the merits." Since Kimbrough cited no authority in support of an award of attorney's fees under these circumstances, the court concluded that his motion for reconsideration should be denied.

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides in relevant part:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

It is clear that Kimbrough was the prevailing party as against the AAA and its executive director. The relief which Kimbrough sought was the right to participate in the Parkview High School football program during the fall semester of his senior year. That relief was granted when the trial court enjoined the enforcement of the challenged rules and regulations on the ground that they were ambiguous and thus did not prohibit Kimbrough's participation in interscholastic athletic competition during the fall semester of his senior year. The fact that this relief was granted at a hearing on Kimbrough's request for a preliminary injunction does not change this result, since the injunction was granted as part of a final, appealable order which terminated the controversy. Cf. Inmates of Neb. Penal & Correctional v. Greenholtz, 567 F.2d 1381, 1384 (8th Cir. 1977) (voluntary discontinuance of challenged policy by defendants); Brown v. Culpepper, 559 F.2d 274, 277 (5th Cir. 1977) (litigation settled by voluntary agreement of the parties).

The more difficult question as to the applicability of the Act to the instant case is whether the fact that Kimbrough prevailed on a nonconstitutional ground renders the case inappropriate for a discretionary award of attorney's fees. Although the Act states that an award of fees may be made "(i)n any action or proceeding to enforce * * * sections 1981, 1982, 1983, 1985 and 1986 of this title," it does not squarely address the issue as to whether attorney's fees may be awarded when an action is brought under one of the enumerated sections but is decided on a nonconstitutional ground. A footnote to the Report of the House Judiciary Committee which accompanied the Act does, however, expressly approve of an award of fees under these circumstances:

To the extent a plaintiff joins a claim under one of the statutes enumerated in (the Act) with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F.2d 880 (7th Cir. 1973). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the nonconstitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528 (94 S.Ct. 1372, 39 L.Ed.2d 577) (1974). In such cases, if the claim for which fees may be awarded meets the "substantiality" test , see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715 (86 S.Ct. 1130, 16 L.Ed.2d 218) (1966), attorneys' fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact". United Mine Workers v. Gibbs, supra at 725 (86 S.Ct. 1130).

H.R.Rep.No. 1558, 94th Cong., 2d Sess. 4 n. 7 (1976).

Other courts which have considered this issue have followed this unambiguous expression of congressional intent. See Seals v. Quarterly County Court, Etc., 562 F.2d 390, 393-394 (6th Cir. 1977); Southeast Legal Defense Group v. Adams, 436 F.Supp. 891, 884-895 (D.Or.1977). See also Bond v. Stanton, 555 F.2d 172, 174 (7th Cir. 1977).

The "substantiality" test to which...

To continue reading

Request your trial
50 cases
  • Filipino Accountants' Assn. v. State Bd. of Accountancy
    • United States
    • California Court of Appeals Court of Appeals
    • April 25, 1984
    ...without adjudication. Following the lower federal courts that had considered the issue (see, e.g., Kimbrough v. Arkansas Activities Ass'n (8th Cir.1978) 574 F.2d 423, 426-427; Southeast Legal Defense Group v. Adams (D.Or.1977) 436 F.Supp. 891; Lund v. Affleck (D.R.I.1977) 442 F.Supp. 1109, ......
  • Woodland Hills Residents Assn., Inc. v. City Council
    • United States
    • California Supreme Court
    • April 3, 1979
    ...similarly indicated the propriety of awarding attorney fees under comparable circumstances. (See, e. g., Kimbrough v. Arkansas Activities Assn. (8th Cir. 1978) 574 F.2d 423, 426-427; Southeast Legal Defense Group v. Adams (D.Or.1977) 436 F.Supp. 891; Lund v. Affleck (D.R.I.1977) 442 F.Supp.......
  • Reproductive Health Services v. Freeman
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 9, 1980
    ...their substantial constitutional claim was no bar to an award of attorneys' fees. We agree. See generally Kimbrough v. Arkansas Activities Association, 574 F.2d 423 (8th Cir. 1978). The reasonableness of the district court's computation of the attorneys' fee is not disputed. Nor have defend......
  • Smith v. University of North Carolina
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 30, 1980
    ...the University had not discriminated, and that thus Smith would not prevail. Similarly distinguishable is Kimbrough v. Arkansas Activities Assoc., 574 F.2d 423, 426 (8th Cir. 1978), where an injunction was deemed to the district court to justify a claim for attorney's fees since "it effecti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT