United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-1350EA

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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. *

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Submitted: July 14, 1997

Filed: October 14, 1997

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Before RICHARD S. ARNOLD, Chief Judge, HEANEY and WOLLMAN, Circuit

Judges.

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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 settlement 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
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settlement agreement in three respects: the disbursement of funds for the districts’

workers’ compensation payments; the treatment of majority-to-minority students in

calculating loss funding for the districts; and the implementation of a statewide public

school computer 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

computer network. The school districts filed a petition for rehearing, which was

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. The school districts filed motions for, and the District Court approved,

successive extensions to apply for fees. PCSSD 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 had

charged hourly rates lower than their normal rates as of August 1996. PCSSD’s motion

showed that attorney Sam Jones’s current and normal billing rate was $175 hourly, but

that PCSSD had been charged $135 hourly during 1995 and 1996, and $110 hourly

during 1994. Attorney Claire Hancock’s current and normal billing rate was $145

hourly, but PCSSD was charged $110 hourly. Manager Angell Jones’s current and

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 services. 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 as

prevailing 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
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awarded $42,520.00 in attorneys’ fees, based on the higher current and normal rates,

as well as $563.32 in costs. The District Court later amended PCSSD’s attorneys’ fees

award to $36,464.00, to reflect at least partially the attorneys’ higher current and

normal rates: it increased Sam Jones’s compensable hourly rate to $160 and Claire

Hancock’s to $145.

The State appeals the award of attorneys’ fees to the school districts on three

grounds. First, it argues that LRSD and PCSSD were not entitled to attorneys’ fees

under 42 U.S.C. § 1988 because they were not prevailing parties and because

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, pursuant to Eighth Circuit Rule 47C, precluded the District Court’s award

of attorneys’ fees for services rendered on appeal. Third, it argues that the District

Court erred in calculating the amount of the fee award by including time spent

unsuccessfully defending against the appeal on the computer-network issue and by

using the attorneys’ current and normal rates.

For the most part, we agree with the District Court’s decision. It correctly

granted the motions for an award of fees and expenses. We think a few details should

be worked out more precisely, however, and for that purpose we remand for further

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 the

Equal Protection Clause of the Fourteenth Amendment, as applied to a specific case

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 the

Joshua intervenors, it left undisturbed the District Court’s finding of that status: “That

LRSD and PCSSD 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).

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First, LRSD and PCSSD are prevailing parties within the meaning of 42 U.S.C.

§ 1988. LRSD was the original plaintiff in the interdistrict phase of the Pulaski County

desegregation litigation. PCSSD, though a defendant, cross-claimed against the State.

In response to their arguments, the District Court found that the State shared

responsibility for the violation of Pulaski County’s black students’ constitutional rights.

Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 584 F. Supp. 328,

353 (E.D. Ark. 1984); Little Rock 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. Dist. v. Pulaski County Special Sch. Dist. No. 1, 726 F. Supp. 1544, 1555

(E.D. Ark. 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 ...

[PCSSD] has cross-claimed against the State for recompense for constitutional

violations in the same manner as the LRSD. ... PCSSD is also a prevailing party.” Id.

This holding is now the law of the case. 

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Moreover, the payments sought by the districts will benefit the black

schoolchildren of Pulaski County, because one of the purposes of the settlement

agreement was to vindicate their rights. To disallow fee awards to the districts for

vindicating the constitutional rights of these schoolchildren would wrongfully shift the

State’s burden to pay for remedial measures.
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Further, the fees and costs associated with enforcing the settlement agreement

are compensable under 42 U.S.C. § 1988. The settlement agreement embodied

“significant relief” to which the plaintiff class was constitutionally entitled. Little

Rock School District v. Pulaski County Special School District No. 1, 921 F.2d at

1388. Enforcing the settlement agreement is the equivalent of enforcing a

constitutionally required remedy. Because monitoring and enforcement are essential

to desegregation remedies, a prevailing party may recover attorneys’ fees and costs

related to defending such a remedy: “Monitoring implementation of the remedy is a

crucial part 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 the 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, 920 F.2d

525 (8th Cir. 1990), which held that a prisoner could not in an independent action under

§ 1983 recover damages 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

did not 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.

The settlement agreement marked the successful resolution of claims initially

brought under 42 U.S.C. § 1983, by LRSD and PCSSD, among others, against the

State. The school districts remain prevailing parties. Further, the interpretation and

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 to

attorneys’ fees.
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II. Attorneys’ Fee Procedure in the Eighth Circuit

The State argues that Rule 47C of the Rules of this Court deprived the District

Court of jurisdiction 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 clerk within 14 days after the entry of judgment. ... The court may

grant 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 request

of the prevailing party, a motion for attorney fees may be remanded to the

district court or administrative agency for appropriate hearing and

determination. ...

The usual practice for awarding fees and costs under 42 U.S.C. § 1988 is for this

Court to fix the compensation for services rendered before it, and for the District Court

to do so for services rendered before it. Avalon Cinema Corp. v. Thompson, 689 F.2d

137, 138 (8th Cir. 1982) (en banc). The policy behind Rule 47C is that fee awards

should be determined by the court most familiar with the legal services in question. In

this case, as in any other before this Court, the plaintiffs should have filed a motion to

this Court for fees incurred on appeal. If they had done so, we could have remanded

the matter to the District Court for its determination; but we probably would have kept

the motion here and decided it ourselves.

However, Rule 47C cannot and does not affect the jurisdiction of the district

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 district

courts retain jurisdiction to decide attorneys’ fees issues that we have not ourselves
Though 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. 

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undertaken to decide. The District Court has awarded attorneys’ fees for services

rendered before the United States Supreme Court, reasoning that the Supreme Court

had lost jurisdiction, and, in any event, would have been unlikely to undertake the

intensive fact-finding necessary in such matters. Vaughn v. Westinghouse Elec. Corp.,

526 F. Supp. 1165, 1169 (E.D. Ark. 1981). Such discretionary and practical

2

considerations 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. 8th Cir. R. 47C(a).

Second, whether the fee award is on its own motion or that of the party seeking

compensation, this Court retains the discretion to remand the question to the District

Court, instead of determining the award itself. 8th Cir. R. 47C(b). The Rule thus

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 award fees to the school districts on our own motion, which we would be

inclined to do rather than allow services necessary to enforce the settlement agreement

to go uncompensated. Therefore, we hold that the District Court had jurisdiction to

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 first 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
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compensable. The State challenges the inclusion of time spent unsuccessfully

defending the appeal on the issue of the State’s computer network and subsequently

petitioning this Court for rehearing. 

“Where the plaintiff has failed to prevail on a claim that is distinct in all respects

from his successful claims, the hours spent on the unsuccessful claim should be

excluded in 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 the

school districts’ failure on the computer network issue was distinct from its success on

other issues. The amount of time spent defending the appeal on that issue, and

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 be

based on the rates each actually paid its lawyers at the time of litigation, or the lawyers’

current and normal rates at the time of the fee request. As a general rule, 42 U.S.C.

§ 1988 provides compensation for civil-rights litigation, not a windfall for the plaintiffs

or their lawyers. See Hensley, 461 U.S. at 430 n.4. The District Court’s order does

not explain why it used the higher current and normal rates in its calculation of the

awards. 

If the District Court used the higher rates to compensate the school districts for

delayed payment, the awards should be recalculated using the actual rates. The statute

does allow compensation based on current rates for past services when payment of

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, the delays in awarding fees were

due to the school districts’ own requests for extensions: from January 27, 1995, to

February 17, 1995; to May 29,1996; to June 28, 1996; to August 19, 1996; and for

LRSD, to August 30, 1996. The school districts should not be compensated for the

short delay in payment that resulted from their own actions.
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On the other hand, the higher rates may have been used because they were

actually in effect at the time that the school districts’ lawyers provided the services.

This would be the case if the school districts and their lawyers had contracted for

discounted rates. To the extent that the use of higher rates in the fee calculation reflects

such an arrangement, we are bound to accept the higher award, according to our

decision in Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 959 F.2d

716 (8th Cir. 1992). In that case, also arising out of this litigation, we upheld an award

of attorneys’ fees to LRSD based on prevailing rates, even though LRSD had received

services at a discounted rate. 

We would like the District Court to explain its reasoning for using the higher

hourly rate. We therefore vacate the order and remand for further proceedings. The

awards should be reduced to exclude the hours spent on the computer-network issue.

The District Court should determine whether LRSD and PCSSD contracted for

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 decision to include time spent

by the school districts on their cross-appeals, as well as its determination of costs. We

also instruct LRSD and PCSSD to apply to this Court for attorneys’ fees related to this

appeal.

The order of the District Court is vacated, and the cause remanded for further

proceedings consistent with this opinion.
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A true copy.

Attest:

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