Little Rock School District v. State of Arkansas, et al

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, MICHAEL J. MELLOY and RAYMOND W. GRUENDER (PUBLISHED) [3893866] [11-2130, 11-2304, 11-2305, 11-2336]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-2130
___________
Little Rock School District,
Appellant,
v.
State of Arkansas; Arkansas
Department of Education,
Appellees.
___________
No. 11-2304
___________
Lorene Joshua; Leslie Joshua; Stacy
Joshua; Wayne Joshua,
Appellees,
v.
Pulaski County Special School
District,
Appellant,
Arkansas Department of Education,
Appellee.

Appellate Case: 11-2130

Page: 1

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Appeals from the United States
District Court for the
Eastern District of Arkansas.
(PUBLISHED)

Date Filed: 03/26/2012 Entry ID: 3893866

___________
No. 11-2305
___________
Alexa Armstrong; Karlos
Armstrong; Khayyam Davis; Alvin
Hudson; Tatia Hudson; Lorene
Joshua; Leslie Joshua; Stacy Joshua;
Wayne Joshua; Sara Matthews;
Derrick Miles; Janice Miles; John
M. Miles; NAACP; Brian Taylor;
Hilton Taylor; Parsha Taylor;
Robert Willingham; Donna Stone,
as class representative on behalf of
minor children, Denise, Dennis and
Danielle Stone; Dennis Stone,
Appellees,
v.
North Little Rock School District,
Appellant,
Arkansas Department of Education,
Appellee.

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___________
No. 11-2336
___________
North Little Rock Classroom
Teachers Association; Pulaski
Association of Classroom Teachers;
Little Rock Classroom Teachers
Association; Pulaski Association of
Support Staff; Katherine Knight,
Appellants,
v.
State of Arkansas; Arkansas
Department of Education,
Appellees.

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________________
Submitted: February 22, 2012
Filed: March 26, 2012
________________
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
________________
PER CURIAM.
In our most recent encounter with the ongoing school desegregation process in
the Little Rock, Arkansas metropolitan area, Pulaski County Special School District
(“PCSSD”) appealed the district court’s partial denial of its petition for a declaration
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of unitary status, opposed by appellee intervenors representing the class of black
children harmed by segregation (“Joshua Intervenors”), while Little Rock School
District (“LRSD”) appealed the district court’s decision to terminate certain funding
obligations of the State of Arkansas through its Department of Education (collectively,
“the State”). We affirmed the partial denial of PCSSD’s petition for unitary status and
vacated the portion of the order terminating the State’s funding obligations due to the
lack of notice and a hearing on that issue. See Little Rock Sch. Dist. v. Arkansas, 664
F.3d 738 (8th Cir. 2011). In the matter now before us, the Joshua Intervenors and
LRSD each seek attorney’s fees and costs associated with those appeals as prevailing
parties under 42 U.S.C. § 1988 and 28 U.S.C. § 1920. For the reasons discussed
below, we grant in part the motions for costs and attorney’s fees, subject to certain
modifications.
I.

LRSD

LRSD seeks attorney’s fees for the two attorneys who prosecuted its appeal of
the termination of state funding. According to LRSD’s detailed affidavits, attorney
Christopher Heller devoted 228.5 hours to the appeal. LRSD seeks compensation for
those hours at Mr. Heller’s typical billing rate of $300 per hour, although “it has long
been [his] practice” to represent LRSD at a reduced rate and, in fact, he charged LRSD
$200 per hour for his work in this case. In addition, attorney Clay Fendley devoted
151.3 hours to the appeal. LRSD seeks compensation for those hours at Mr. Fendley’s
typical billing rate of $160 per hour, although he customarily represents public entities
at a reduced rate and, in fact, charged LRSD $120 per hour for his work in this case.
Finally, LRSD also seeks $1,421.66 in copying costs, filing fees, and expenses
associated with Mr. Heller’s attendance at oral argument plus $152.50 in expenses
associated with Mr. Fendley’s attendance at oral argument. LRSD thus seeks $94,332
in total fees and costs.

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In opposition, the State first contends that the award of attorney’s fees should
be reduced by a large percentage because LRSD achieved only partial or limited
success. See Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (“If . . . a plaintiff has
achieved only partial or limited success, the product of hours reasonably expended on
the litigation as a whole times a reasonable hourly rate may be an excessive amount.”).
The State suggests that LRSD prevailed only in a limited fashion on appeal because
we held solely that funding from the State could not be terminated without notice and
a formal hearing. See Little Rock Sch. Dist., 664 F.3d at 758. We agree that some
reduction is warranted because LRSD did not obtain its sought-after result, a holding
on the merits that continued funding from the State is justified under current
circumstances. Nevertheless, our stay and then vacatur of an order that would have
eliminated about $38 million from LRSD’s funding for the current school year is a
significant result. We hold that a reduction of twenty-five percent from the product
of hours reasonably expended on the litigation times a reasonable hourly rate is
appropriate in these circumstances. See Hensley, 461 U.S. at 436.
In a related argument, the State contends that LRSD should not receive fees for
billed hours attributable to arguing the merits of terminating the funding because we
did not reach the merits. However, “[l]itigants in good faith may raise alternative
legal grounds for a desired outcome, and the court’s rejection of or failure to reach
certain grounds is not a sufficient reason for reducing a fee. The result is what
matters.” Id. at 435. Accordingly, we hold that no additional reduction on this
ground is necessary.
The State next argues that the 380-hour total billed is excessive for this appeal
and implies duplicative or unnecessary work. While it is a large total, we note that,
in order to argue the merits of continued state funding, LRSD had to research and
brief the State’s history of performance of its desegregation obligations throughout
this entire thirty-year case. Although we did not reach the merits in our opinion,

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LRSD could not assume with certainty that we would not. Thus, we cannot say it was
unreasonable for LRSD’s attorneys to bill 380 hours of work for this appeal.
The State also contends in particular that the ten hours billed and $152.50 in
expenses associated with Mr. Fendley’s travel to attend oral argument are
unreasonable because he did not present oral argument. We disagree. In a case of this
complexity and magnitude, it was not unreasonable for LRSD to send two attorneys
to attend oral argument.
In its penultimate challenge, the State notes that LRSD is attempting to recover
fees for work associated with LRSD’s motion in the district court for a stay pending
appeal. We typically determine fees only for services rendered in this Court and allow
the district court to determine the proper compensation for services rendered before
it. Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 138 (8th Cir. 1982) (en banc).
Although the individual billing records are not entirely clear as to the number of hours
attributable solely to the attempt to obtain a stay in the district court, it appears
reasonable to delete six hours from Mr. Fendley’s billing total and two hours from Mr.
Heller’s billing total as representing services not performed in this Court.
Finally, the State argues that LRSD should receive fees at the hourly rate
actually charged by its attorneys, rather than at their nominal billing rate. LRSD
counters, accurately, that we have in the past awarded fees at the full nominal billing
rate despite the attorneys’ reduced fee arrangement with LRSD. See Little Rock Sch.
Dist. v. Arkansas, 127 F.3d 693, 697-98 (8th Cir. 1997). Neither the actual fee
arrangement nor our past practice controls the award in this case, however. As the
Supreme Court has explained:
[Section 1988] contemplates reasonable compensation, in light of all of
the circumstances, for the time and effort expended by the attorney for
the prevailing plaintiff, no more and no less. Should a fee agreement

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provide less than a reasonable fee calculated in this manner, the
defendant should nevertheless be required to pay the higher amount.
Blanchard v. Bergeron, 489 U.S. 87, 93 (1989). A reasonable hourly rate generally
means “the ordinary fee ‘for similar work in the community.’” Avalon Cinema, 689
F.2d at 140 (quoting Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 718 (5th
Cir. 1974)).
LRSD’s affidavits state that Mr. Heller’s and Mr. Fendley’s nominal rates are
reasonable for the Little Rock area in light of their respective experience and the type
of services rendered. The State does not challenge this representation, but instead
attempts to characterize any award beyond the rates actually charged as an “enhanced”
award, disfavored under Perdue v. Kenny A. ex rel. Winn, --- U.S. ---, 130 S. Ct. 1662
(2010):
Section 1988 serves an important public purpose by making it possible
for persons without means to bring suit to vindicate their rights. But
unjustified enhancements that serve only to enrich attorneys are not
consistent with the statute’s aim. In many cases, attorney’s fees awarded
under § 1988 are not paid by the individuals responsible for the
constitutional or statutory violations on which the judgment is based.
Instead, the fees are paid in effect by state and local taxpayers, and
because state and local governments have limited budgets, money that
is used to pay attorney’s fees is money that cannot be used for programs
that provide vital public services.
Id. at 1676-77. However, Perdue makes clear that the “enhancement” at issue was an
enhancement to the traditionally calculated reasonable fee, as distinguished from rates
initially set in a fee agreement. See id. at 1675.
To be sure, it appears that LRSD’s attorneys prosecuted this appeal at reduced
hourly rates not to enable “persons without means to bring suit to vindicate their

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rights,” but rather under a longstanding client discount. Nevertheless, Perdue does
not overturn the Supreme Court’s earlier holding that, “[s]hould a fee agreement
provide less than a reasonable fee . . ., the defendant should nevertheless be required
to pay the higher amount.” Blanchard, 489 U.S. at 93. Because the State does not
directly challenge LRSD’s affidavits as to the reasonableness of Mr. Heller’s and Mr.
Fendley’s nominal rates for the Little Rock area in light of their respective experience
and the type of services rendered, we award fees at their nominal hourly rates.
The resulting award to LRSD from the State is 226.5 hours billed by Mr. Heller
at $300 per hour and 145.3 hours billed by Mr. Fendley at $160 per hour, for an
intermediate total of $92,772.16, reduced by twenty-five percent to $68,398.50, plus
$1,574.16 in costs, for an award amount of $69,972.66.
II.

Joshua Intervenors

The Joshua Intervenors claim prevailing party status against both PCSSD and
the State. They seek attorney’s fees for five attorneys and two paralegals in the
amount of $69,632.50 attributable solely to opposing PCSSD’s appeal, $95,087.50
attributable solely to appealing the termination of state funding, and $157,662.50
attributable to hours that cannot be divided between the two appeals (“common”
hours), for a total of $322,382.50. The Joshua Intervenors also seek $3,050 in costs
applicable to both appeals.1
As an initial matter, the Joshua Intervenors are not a “prevailing party” against
the State. They filed no notice of appeal in this matter, much less one naming the
State as an appellee. Instead, they merely participated as an appellee opposing the
1

The Joshua Intervenors initially requested $366,582.50 in attorney’s fees and
$10,008.35 in costs but voluntarily reduced their request in response to PCSSD’s and
the State’s oppositions. In addition, the initial request already incorporated a
voluntary ten percent reduction in common hours.
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appeals of PCSSD and North Little Rock School District.2 While the Joshua
Intervenors addressed the issue of state funding in a footnote in their Appellee’s Brief,
this is insufficient to make them a prevailing party. See 42 U.S.C. § 1988(b).
Accordingly, we deny the request for $95,087.50 in attorney’s fees attributable solely
to the Joshua Intervenors’ “appeal” of the termination of state funding, and we hold
the State responsible for no part of the requested costs or fees for common hours.
With regard to attorney’s fees requested from PCSSD, PCSSD first challenges
the Joshua Intervenors’ decision to hire new counsel for this appeal. Although
attorneys John Walker (whose office has represented the Joshua Intervenors in this
matter since at least 1991) and Robert Pressman (who has represented the Joshua
Intervenors in this matter periodically since at least 1997) handled the unitary status
hearing in the district court, they aver that the scope and compressed schedule of this
appeal made it necessary to associate with additional counsel, and they selected
attorneys with the NAACP Legal Defense and Educational Fund, Inc. (“LDF”) for
that purpose. The introduction of new counsel led to billing charges for coordination
and familiarization with the case that PCSSD challenges as unreasonable. In total,
the Joshua Intervenors seek compensation from PCSSD for 656.35 combined hours
from Mr. Walker, Mr. Pressman, the LDF attorneys, and two paralegals (comprising
218.05 hours attributable solely to PCSSD and 438.3 common hours).3
While 656 billable hours is an unusually high number for an appeal, we agree
with the Joshua Intervenors that it is a reasonable number in light of the unusual
circumstances of this case. Given the compressed appeal schedule, the large number
2

North Little Rock School District prevailed on its appeal, see Little Rock Sch.
Dist., 664 F.3d at 748, and the Joshua Intervenors seek no attorney’s fees or costs
associated with that appeal.
3

We note that the hours totals are slightly less than the totals reported on the
Joshua Intervenors’ final summary table, Joshua Intervenors’ Reply Br. at 35,
apparently due to typographical or mathematical errors in the table.
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of issues presented by PCSSD, see Little Rock Sch. Dist., 664 F.3d at 748-57
(addressing nine areas appealed by PCSSD), PCSSD’s novel legal theory for avoiding
its desegregation obligations, and the necessity to review and draw upon a lengthy,
complex record, it was reasonable to associate with additional attorneys, even if that
entailed additional time for familiarization with the case and coordination. See L.B.
ex rel. A.J. v. Kierst, 56 F.3d 849, 863 (8th Cir. 1995) (“The use of more than one
attorney in multiple party litigation has been recognized by courts, including our own,
as both desirable and common.”). We note that although 656 hours is almost twice
the number of hours requested by LRSD, LRSD’s attorneys had to deal with a single
issue rather than nine.
PCSSD next challenges the hourly billing rates requested for the LDF attorneys.
As discussed above, a reasonable hourly rate generally means “the ordinary fee ‘for
similar work in the community.’” Avalon Cinema, 689 F.2d at 140 (quoting Johnson,
488 F.2d at 718). However, rates are not limited to those prevailing in a local
community where those rates would not be “sufficient to attract experienced counsel”
in a specialized legal field. Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993).
In such a case, “[a] national market or a market for a particular legal specialization
may provide the appropriate market.” Id. (quoting Hendrickson v. Branstad, 740 F.
Supp. 636, 642 (N.D. Iowa 1990), rev’d in part on other grounds, 934 F.2d 158 (8th
Cir.1991)).
Here, the Joshua Intervenors request fees for LDF attorneys Elise Boddie,
Damon Hewitt, and Rachel Kleinman at rates of $525 per hour, $450 per hour, and
$350 per hour, respectively. The Joshua Intervenors do not aver that these hourly
rates are ordinary for similar work in the Little Rock community, but instead contend
that the national market exception (more specifically, the prevailing hourly rates in
Washington, D.C. and New York) should apply in this case. The problem with the
Joshua Intervenors’ argument is that their own affidavits belie any notion that local
community rates were not “sufficient to attract experienced counsel.” See Casey, 12
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F.3d at 805. In particular, the Joshua Intervenors’ affidavits establish that their local
counsel, Messrs. Walker and Pressman, are both experienced and lauded experts in
the field of civil rights litigation. In light of the fact that Mr. Walker billed his time
for this matter at $400 per hour and Mr. Pressman billed his time at $325 per hour
(and the reasonableness of these rates has not been specifically challenged), it cannot
be said that the claimed national market rates were required to attract experienced civil
rights counsel.
Accordingly, we proceed to determine reasonable local rates for the LDF
attorneys by comparing the information provided by the Joshua Intervenors regarding
the LDF attorneys’ experience to that of local counsel. Mr. Walker has practiced civil
rights litigation in Little Rock and throughout Arkansas since 1966. His office has
been intimately involved with the instant case, including responsibility for monitoring
the implementation of the governing settlement agreement since 1991. He received
the top award of the Southern Trial Lawyers Association in 2005. Mr. Pressman
began his civil rights work in 1965 for the Civil Rights Division of the United States
Department of Justice, working on school desegregation cases in Mississippi, Illinois,
and Alabama, before spending twenty-five years with the Center for Law and
Education, where he continued to serve as counsel in desegregation cases in Boston
and Omaha, among other locations. He has been working with Mr. Walker on the
instant case since at least 1997. The billing rates charged by Mr. Walker and Mr.
Pressman thus represent those charged by the most senior and skillful attorneys in the
local community.
By comparison, the Joshua Intervenors’ affidavits state that Ms. Boddie has
litigated complex affirmative action, employment, and school desegregation cases
with LDF from 1999-2005. Before that, she served as a law clerk in the Southern
District of New York and practiced litigation at a New York law firm, but no time
frame or additional details are given for that work. She also has taught at New York

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Law School. While clearly an accomplished civil rights attorney, Ms. Boddie’s
résumé does not yet compare with Mr. Walker’s or Mr. Pressman’s.
Similarly, the Joshua Intervenors’ affidavits state that Mr. Hewitt began his
career with LDF in 2001 after a clerkship in the Sixth Circuit and also has served as
an adjunct law school professor. Fewer details are given of Ms. Kleinman’s
experience, but the Joshua Intervenors’ reply brief suggests that she is equivalent, for
billing purposes, to an associate with four-to-seven-years’ experience. After weighing
the LDF attorneys’ résumés against those of local counsel, it appears that reasonable
local rates for Ms. Boddie, Mr. Hewitt, and Ms. Kleinman in this matter are $275 per
hour, $250 per hour, and $175 per hour, respectively. See B & B Hardware, Inc. v.
Fastenal Co., No. 4:10–cv–00317, 2011 WL 6829625, at *9 (E.D. Ark. Dec. 16,
2011) (collecting recent cases in the Eastern District of Arkansas involving attorney’s
fee awards).
The resulting award to the Joshua Intervenors from PCSSD is 16.75 hours
billed by Mr. Walker at $400 per hour, 90.3 hours billed by Mr. Pressman at $325 per
hour, 18.7 hours billed by Ms. Boddie at $275 per hour, 251.5 hours billed by Mr.
Hewitt at $250 per hour, 148.3 hours billed by Ms. Kleinman at $175 per hour, 130.8
hours billed by two paralegals at $125 per hour, and $3,050 in costs, for a total of
$149,417.50.4
It is so ordered.
_____________________________

4

The reasonableness of the $125 claimed hourly rate for paralegal work is not
challenged.
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