United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1350EA

_____________ Little Rock School District * and Pulaski County Special * School District, * * Appellees, * On Appeal from the United * States District Court v. * for the Eastern District * of Arkansas. * State of Arkansas, * * Appellant. *

___________ Submitted: July 14, 1997 Filed: October 14, 1997

___________ Bef ore RICHARD S. ARNOLD, Chief Judge, HEANEY and WOLLMAN, Circui t Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
In 1994, the Little Rock School District (LRSD) and the Pulaski County Special School District (PCSSD) sought to enforce the terms of their settle ment agreement with the Arkansas State Department of Education (“the State”) in the Pulaski County school desegregation litigation. The District Court found that the State had broken the-2-

se ttlement

agreement in three respects: the disbursement of funds for the districts ’ worke rs’ compensation payments; the treatment of majority-to-minority students i n calculating loss funding for the d istricts; and the implementation of a statewide public school comp uter network. The State appealed the District Court’s order. This Court affirmed the District Court’s order with respect to the workers’ compensation payment scheme and the calculation of loss funding. We reversed the order with respect to the comp uter network. The school districts filed a petition for rehearing, which wa s denied.
LRSD and PCSSD then applied to the District Court for successive extensions of the attorneys’ fees deadline. The motion for fees was originally due on January 27, 1995. Th e school districts filed motions for, and the District Court approved , successive extensions to apply for fees. PCS SD filed its motion for fees in the District Court on August 19, 1996. LRSD filed its motion on August 30, 1996. Both school districts’ fee requests included expenses incurred in appellate litigation.

For at least part of the services rendered to each district, their lawyers ha d charged hourly rates lower than their normal rates as of August 1996. PC SSD’s motion showed that attorney Sam Jones’s current and nor mal billing rate was $175 hourly, but that P CSSD had been charged $135 hourly during 1995 and 1996, and $110 hourl y during 19 94. Attorney Claire Hancock’s current and normal billing rate was $14 5 hourly, but PCSSD was charged $110 hourly. Manager Angell Jones’s current an d normal billing rate was $75 hourly, but PCSSD was charged $55 hourly in 1994

. Similarly, LRSD attorney Chris Heller’s current and normal rate was $160 hourly, but LRSD was charged $105 hourly for his servic es. Attorney Clay Fendley’s current and normal rate was $100 hourly, but LRSD was charged $85 hourly.
The District Court found that LRSD and PCSSD were entitled to fees a s pre vailing parties pursuant to 42 U.S.C. § 1988. PCSSD was awarded $28,854.50 , based on the lower rates that it was actually charged by its lawyers. LRSD was-3-

awarded $42,520.00 i n attorneys’ fees, based on the higher current and normal rates, as well as $563.32 in costs. The District Court later amended PC SSD’s attorneys’ fees
awar dto $36,464.00, to reflect at least partially the attorneys’ higher current an d
norm al rates: it increased Sam Jones’s compensable hourly rate to $160 and Clair e Hancock’s to $145.
The State a ppeals the award of attorneys’ fees to the school districts on thre e grounds. First, it argues that LRSD and PCSSD were not entitled to attorneys’ fee s under42 U.S.C. § 1988 because they were not prevailing parties and becaus e enforcement of the settlement agreement is not a cause of action for which fee-shifting is provided. Second, it

argues that LRSD’s and PCSSD’s failure to make a motion to this Court, p ursuant to Eighth Circuit Rule 47C, precluded the District Court’s award of attorneys’ fees for services rendered on appeal. Third, it argues that the Distric t Court erre d in calculating the amount of the fee award by including time spen t unsuccess fullydefending against the appeal on the computer-network issue and b y using the attorneys’ current and normal rates.

Forthe most part, we agree with the District Court’s decision. It correctl y granted the motions for an award of fees and expenses. We think a few details should be worked o ut more precisely, however, and for that purpose we remand for furthe r proceedings. I. Applicability of 42 U.S.C. § 1988 We reject the State’s argument that 42 U.S .C. § 1988 does not provide for a fee award in this case, which involves the interpretation of a settlement agreement. To the contrary, where a settlement agreement serves to particularize the protections of th e Equal Protection Clause of the Fourteenth Amendment, as applied to a specific cas e originally brought under § 1983, we hold that 42 U.S.C. § 1988 allows attorneys’ fee awards to a prevailing party.Though this Court reversed the District Court’s determination, based on their 1 prevailing -party status, that the school districts should not pay attorneys’ fees to th e Joshua intervenors, it left undisturbed the District Court’s finding of that status: “That LRSD and PCSS D may be prevailing parties with respect to their cross-claim against the State is not material for present purposes.” Little Rock Sch. Dist. v . Pulaski County Special Sch. Dist. No. 1 , 921 F.2d 1371, 1392 (8th Cir. 1990). -4- First, LRSD and PCSSD are preva iling parties within the meaning of 42 U.S.C. § 1988. LRSD was the original plaintiff in the interdistri ct phase of the Pulaski County desegregation litigation. PCSSD, t hough a defendant, cross-claimed against the State. In response to their arguments, the District Court found that the State share d responsibility for the violation of Pulaski County’s black st udents’ constitutional rights. LittleRock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1 , 584 F. Supp. 328, 353 (E.D. Ark. 1984); Little Ro ck Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1 , 597 F. Supp. 1220, 1228 (E.D. Ark. 1984), remanded by 778 F.2d 404 (8th Cir

. 1985), cert. denied , 476 U.S. 1186 (1986). LRSD and PCSSD thus prevailed. Despite the Joshua intervenors’ subsequent involvement, the school districts ’
continued prevailing-party status was confirmed by the District Court in 1989. Little Rock Sch. Dis t. v. Pulaski County Special Sch. Dist. No. 1 , 726 F. Supp. 1544, 1555 (E.D. Ar k. 1989), rev’d in part, vacated in part on other grounds , 921 F.2d 1371 (8th Cir. 1990). The District Court found that “LRSD was the principal prevailing party ... [PCS SD] has cross-claimed against the State for recompense for constitutiona l violations in the same manner as the LRSD. ... PCSSD is also a prevailing party.” Id. This holding is now the law of the case. 1

Moreove r, the payments sought by the districts will benefit the blac k schoolchil dren of Pulaski County, because one of the purposes of the settlemen t agreementw as to vindicate their rights. To disallow fee awards to the districts fo r vindicating the constitution al rights of these schoolchildren would wrongfully shift the State’s burden to pay for remedial measures.-5-

Further, the fees and costs associated with enforcing the settlement agreement
are compen sable under 42 U.S.C. § 1988. The settlement agreement embodie d “significant relief” to which the plaintiff class was constitutionally entitled. Littl e Rock Sc hool District v. Pulaski County Special School District No. 1 , 921 F.2d a t 1388. E nforcing the settlement agreement is the equivalent of enforcing a constitutionally required remedy. Because monitoring and enforcement are essential to desegre gation remedies, a prevailing party may recover attorneys’ fees and cost s rel ated to defending such a remedy: “Monitoring implementation of the remedy is a crucial p art of the plaintiffs’ function in these cases: ‘Services devoted to reasonable monitoring of the court’s decrees, both to ensure full compliance and to ensure that the plan is indeed working to desegregate t he school system, are compensable services.’ ” Jenkins v. Missouri , 967 F.2d 1248, 1251 (8th Cir. 1992) (quoting Northcross v. Bd. of Education , 611 F.2d 624, 637 (6th Cir. 1979), cert. denied , 447 U.S. 911 (1980)). The State argues that this case should be governed by DeGidio v. Pung , 920F.2d 525 (8th Cir. 1990), which held that a prisoner could not in an independent action under § 1983 recover damag es for the prison’s violation of a consent decree entered against it in a previous class-action suit. Unlike the plaintiffs in DeGidio , LRSD and PCSSD didnot file an independent action. They are seeking, by motion in the same case, to obtain specific performance of the very judgment they had won against the State

. DeGidio thus does not bar the award of fees and costs to the school districts.
Th e settlement agreement marked the successful resolution of claims initiall y broughtunde r 42 U.S.C. § 1983, by LRSD and PCSSD, among others, against th e State. The school districts remain prevailing parties. Further, the interpretation an d enforcement

of the settlement agreement are an extension of the original § 1983 suit. The District Court was correct to determine that LRSD and PCSSD were entitled t o attorneys’ fees.-6- II. Attorneys’ Fee Procedure in the Eighth Circuit
The Sta te argues that Rule 47C of the Rules of this Court deprived the District Court of j urisdiction to award attorneys’ fees for work performed in this Court. Rule 47C provides: (a) Motion for

Fees. A motion for attorney fees ... shall be filed with the cl erk within 14 days after the entry of judgment. ... The court may gr ant on its own motion an allowance of reasonable attorney fees to a prevailing party. (b) Determination of Fees. On the court’s own motion or at the requ est of the prevailing party, a motion for attorney fee s may be remanded to the district court or administrative agency for appropriate hearing an d determination. ...
The usual practice for awarding fees and costs under 42 U.S.C. § 1 988 is for this Court to fix the compensation for services rendered be fore it, and for the District Court to do so for services rendered before it. Av alon Cinema Corp. v. Thompson , 689 F.2d 137, 138 (8th Cir. 1982) (en banc). The policy behind Rule 47C is that fee award s should be determined by the court most familiar with the legal services in question. In this case, as in any o ther before this Court, the plaintiffs should have filed a motion to th is Court for fees incurred on appeal. If they had done so, we could have remanded the matter to the District Court for its d etermination; but we probably would have kept the motion here and decided it ourselves.

Ho wever, Rule 47C cannot and does not affect the jurisdiction of the distric t courts. The jurisdiction of the federal district courts is conferred by Congress. See 28 U.S.C. §§ 1331-1390. Rule 47C is a rule of procedure for the Court of Appeals and does not alter this grant of jurisdiction. Therefore, despite our local rule, the distric t courts retain jurisdiction to decide attorneys’ fees issues that we have not ourselvesThough Rule 47C was not then in existence, the preferred practice was for the 2 appellate court to decide appellate fee awards. See Vaughn , 526 F. Supp. at 1168. -7- un dertaken to decide. The District Court has awarded attorneys’ fees for service s renderedbefore the United States Supreme Court, reasoning that the Supreme Court ha dlost jurisdiction, and, in any event, would have been unlikely to undertake th e intensive fact-finding necessary in such matters. Vau ghn v. Westinghouse Elec. Corp. , 526 F. Sup p. 1165, 1169 (E.D. Ark. 1981). Such discretionary and practica l 2 consideratio ns continue to be relevant to a district court’s decision whether to grant a motion for attorneys’ fees for services before an appellate court. Rule 47C’s own language indicates that it is not a rigid jurisdictional rule. First, this Court has the power to grant attorneys’ fees on its own motion. 8t h Cir. R. 47C(a). Second, whether the fee award is on its own motion or that of the party seekin g compensation, this Court retains the discretion to remand the question to the District Court, ins tead of determining the award itself. 8th Cir. R. 47C(b). The Rule thu s preserves multiple procedural options for the determination of attorneys’ fees.
The choice of procedure should not obscure the end goal: calculation of a fair award. It would be mere procedural contortion to reverse the District Court’s award only to awa rd fees to the school districts on our own motion, which we would b e inclined to do rather than allow services nec essary to enforce the settlement agreement to go uncomp ensated. Therefore, we hold that the District Court had jurisdiction t o make the award, and we review its amount for abuse of discretion. See Winter v. Cerro Gordo County Conservation Bd. , 925 F.2d 1069, 1073 (8th Cir. 1991).
III. Amount of Award
The f irst issue in reviewing the amount of the award is whether the time that LRSD’s and PCSSD’s attorneys spent defending the School Board’s appeal is fully-8-

compensa ble. The State challenges the inclusion of time spent unsuccessfull y defen ding the appeal on the issue of the State’s computer network and subsequentl y petitioning this Court for rehearing. “Where the plaintiff has failed to prevail on a clai m that is distinct in all respects fromh is successful claims, the hours spent on the unsuccessful claim should b e excludedin considering the amount of a reasonable fee.” Hensley v. Eckerhart , 461 U. S. 424, 440 (1983). The issues on appeal before this court were distinct, and th e school districts’ failure on the computer net work issue was distinct from its success on other issue s. The amount of time spent defending the appeal on that issue, an d preparing the petition for rehearing, should be excluded from the fee award.
The second issue is whether the fee award to each school district should b e based on the rates each actually paid its lawyers at the time of litigat ion, or the lawyers’
curre nt and normal rates at the time of the fee request. As a general rule, 42 U.S.C

. § 1988 provides compensation for civil-rights li tigation, not a windfall for the plaintiffs
or their lawyers. See Hensley , 461 U.S. at 430 n.4. The District Court’s order does notexplain why it used the higher current and normal rates in its calculation of th e awards.
If the District Cour

t used the higher rates to compensate the school districts for delayed payment, the awards should be recalculate d using the actual rates. The statute does al low compensation based on current rates for past services when payment o f attorneys’ fees is delayed. Missouri v. Jenkins , 491 U.S. 274, 283-284 (1989). But in this case the passage of time was short. Moreover, th e delays in awarding fees were due to the school districts’ own requests for extensions: from January 27, 1995, t o February 1 7, 1995; to May 29,1996; to June 28, 1996; to August 19, 1996; and fo r LRSD, to Augu st 30, 1996. The school districts should not be compensated for th e short delay in payment that resulted from their own actions.-9-

On t he other hand, the higher rates may have been used because they wer e ac tually in effect at the time that the school districts’ lawyers provided the services

. This woul d be the case if the school districts and their lawyers had contracted fo r discounted rates. To the extent that the use of higher rates in the fee c alculation reflects such an arr angement, we are bound to accept the higher award, according to ou r decision in Little Rock Sch. Dist. v. Pulaski C ounty Special Sch. Dist. No. 1 , 959 F.2d 716 (8th Cir. 1992). In that case, also arising out of t his litigation, we upheld an award of attorneys’ fees to LRSD based on prevai ling rates, even though LRSD had received services at a discounted rate.

We woul d like the District Court to explain its reasoning for using the highe r hourly rate. We therefore vacate the order and remand for further proceedings. The awards s hould be reduced to exclude the hours spent on the computer-network issue. The Distr ict Court should determine whether LRSD and PCSSD contracted fo r discounted rates. If so, the higher rates can be upheld under the authority of our 1992 decision cited above. We agree with the District Court’s decisi on to include time spent by the school districts on their cross-appeals, a s well as its determination of costs. We also instruct LRSD and PCSSD to apply to this Cour t for attorneys’ fees related to this appeal.
The order of the District Court is vacated, and the cause remanded for furthe r proceedings consistent with this opinion.-10-

A true copy.

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