Court Filings: District Court, supplemental response of Joshua intervenors concerning their fee petition; District Court, affidavit of John W. Walker; District Court, second supplemental affidavit of Joy C. Springer

This transcript was created using Optical Character Recognition (OCR) and may contain some errors. Date: To: From: Re: John W. Wall(er, P.A. 1723 Broadway Little Rock, Arkansas 72206 Telephone (501) 374-3758 Fax (501) 374-4187 ENCLOSURE MEMORANDUM August 30, 1996 All Attorneys John W. Walker, Esq. LRSD v. PCSSD AUG j O 1996 Office of Desegrega1ion Moni!Ofin~ Enclosure(s): Letter &Attachments to Judge Wright Supplemental Response of the Joshua Intervenors Concerning Their Fee Petition Affidavit of John W. Walker Second Supplemental Affidavit of Joy C. Springer IF ANY OF THE ABOVE LISTED DOCUMENT(S) ARE NOT ENCLOSED, PLEASE CALL THE ABOVE NUMBER. THANK YOU. JOHN W. WAIJ(ER/ RALPH WASHINGTON MARK BURNETTE AUSTIN PORTER JR. JOHN W. WALICER, P.A. 1723 Broadway Little Roc.k, Arkansas 72206 Telephone (501) 374-3758 Fax (501) 374-4187 FILED U.S. D1srn1c; WURT EASTERN DISTRICT ARKANSAS AUG 2 9 1996 JAMES W McCORMACK, CLERK By: -----n'.DE;:-;P:a_--c: =L=ER~K August 29, 1996 Honorable Susan Webber Wright United States District Judge United States Federal Court Building AUG j O 1996 600 West Capitol Little Rock, AR 72201 Re: LRSD v PCSSD; No. LR-C-82-866 Dear Judge Wright: Office of Des . e9regat1cn Mon#.oring - In preparing our reponse to LRSD's detailed analysis, we determined some additional errors in calculation after our detail analysis of the time records. You will find enclosed a revised Attachment One to our Motion of November 22, 1995, summarizing our entire claim based upon our most recent analysis oftime. The following correction should be made in our Memorandum filed on November 22, 1995: at page 12 - the first full paragraph should read as follows: The Joshua Intervenors seek, for the substantive work on the case through October 28, 1995, an award for 2,016 hours of attorney time and 3,444.4 hours of paralegal time, as well as reimbursement of the amount actually paid to six persons who worked on the Joshua monitoring reports. See motion, Attachment One. This includes: [attorneys] John W. Walker, (1761.0 hours), Wiley Branton, Jr. (79.8 hrs), Austin Porter (175.2 hrs.); and paralegals Joy C. Springer (3123.4 hrs.) and Opal Sims (365.3 hrs.) Intervenors submission,. viewed in the light of the record in this case, establishes that a claim is made for time "reasonablv expended on this litigation." Page Two August 29, 1996 at page 19 - in the first paragraph, the lodestar total for the work, other than for pursuing the fee award, should be for $742,590.81 for personnel and $17,636.00 for litigation costs. Thank you for your consideration JWW:js cc: Ms. Ann Brown All Counsel Of Record .. ATTACHMENT ONE Revised 8/29/96 SUMMARY OF AWARD SOUGHT A. Substantive Work On Case Number Individual Year(s) of Hours Rate Atty. John W. Walker 1990 6.85 $250.00 1991 562.4 same as above 1992 308.5 same as above 1993 329.2 same as above 1994 218.2 same as above 1995 335.85 same as above Sub-Total 1,761.00 $440,250.00 Atty. Wiley A. Branton, Jr 1990 1991 9.3 1395.00 1992 64.0 9600.00 1993 6.5 975.00 1994 1995 1 Sub-Total 79.8 $11,970.00 Atty. Mark Burnette [Time Waived] Atty. Austin Porter Jr. 1991-1995 175.2 $130.00 Sub-Total 175.2 $22,TT6.00 : Joy Charles Springer (Paralegal) 1990 27.5 $50.00 1991 854.7 same as above 1992 714.7 same as above 1993 553.9 same as above 1994 505.8 same as above 1995 466.8 same as above Sub-Total 3,123.4 $156,170.00 Opal Sims (Paralegal) 1991 365.3 $40.00 Sub-Total 365.3 $14,612.00 2 Other Paralegal Costs: (Reimbursement of amounts paid for work on Joshua Monitoring Reports). Amount Individual Year(s) Paid Kirke Herman 1991 $16,675.00 1992 $8,400.00 1993 $12,732.00 1994 $4,587.00 Evelyn Jackson 1991 $2,700.00 Debbie Parker 1992 $26,225.81 LaRhonda Pondexter 1991 $5,218.00 1992 $6,875.00 Clementine Rouse 1991 $2,200.00 1992 $1,000.00 1993 $2,000.00 Delores Sykes 1992 $1,000.00 1993 $3,600.00 1994 $3,600.00 Sub-Total $96,812.81 Sub-1 otal Substantive Nork on case (Personnel) $742,590.81 .. 3 B. Work on this Motion Individual Number of Hours Rate Amount Atty. John W. Walker 37.0 $250.00 $ 9,250.00 Robert Pressman 120.0 $175.00 $21,000.00 Joy C. Springer 90.0 $ 50.00 $ 3,650.00 Austin Porter Jr. 2.5 $130.00 $ 325.00 Sub-Total 249.5 $35,075.00 C. Litigation Expenses Description Amount Reimbursement provided to Joy C. Springer for mileage costs anc $ 4,742.00 other monitoring expenses; see J. Springer Aff., para. 21 Reimbursement to Kirke Herman for monitoring costs; see $ 100.00 J. Springer Aff., para. 21 Cost of copying docket in clerk's office; see J. Springer Aff., $ 60.00 para. 21 Witness fees for LRSD budget Hearing and other costs; see $ 294.00 J.Springer Aff., para. 21 Copying and fax charges; see J. Springer Aff., para. 22 $ 9,250.00 4 Postage charges, see J. Springer Aft., para. 22 $ 3,190.00 Sub-Total 17,636.00 GRAND TOTAL $795,301.81 .. 5 INTHEUNITEDSTATESDIS~CTCO fl J:D E S DISTRICT OF 1\~cr"couAr A TERN RN DISTRICT ARKANSAS WESTERN DMSION AUG 2 9 1996 JAMES W McCORMACK Cl F..RL.- LITTLE ROCK SCHOOL DISTRICT, ET AL. By: PL"JUNlli'.rS D!:P. CL!:RK V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT,Ft AL. -LIBFENDANTS MRS. LORENE JOSHUA ET AL. E Ef V ~ DINTERVENORS KATHERINE W. KNIGHT, ET AL. AUG :5 0 1996 INTERVENORS Office of Desegregation M . . SUPPLEMENTAL RESPONSE OF THE JOSHUA INTE~~RS CONCERNING THEIR FEYPETm6N- -... _, This memorandum responds to the belated analysis of the Joshua intervenors' time entries by the LRSD. It also describes a ruling by the Court of Appeals for the Eighth Circuit on August 19, 1996 compensating lead counsel's time for work on a successful appeal. A LRSD's Belated Time Analysis Should Not Be Considered Near the completion of the hearing on August 19, 1996, the LRSD presented to the court a 99-page analysis of the time entries oflead counsel, Austin Porter, Jr., and Wiley A Branton, Jr. This analysis was based upon the activity schedules provided to LRSD counsel on or about November 22, 1995. Thus, it was presented to the intervenors and the court approximately nine months after the underlying material was made available to LRSD counsel. Moreover, it was advanced approximately five and one-half months after the date on which LRSD's response to the fee petition was due (March 1, 1996). The court should set aside the belated analysis as untimely. Contrary to LRSD's position, it did not satisfy its rebuttal burden by complaining generally about intervenors' time records without 1 particular examples.1 As the court observed at the recent hearing, the hearing was delayed due to the court's superseding obligations. It is simply unfair for intervenors to be presented with a task of such a great magnitude at the hearing, when so much time, which could have been used productively, elapsed between the presentation of material to LRSD and its response. If the court after studying this memorandum considers that a revised version of lead counsel's activity statement is needed, the court, we respectfully submit, should provide (i) for an interim award and prompt payment to intervenors, reflecting the fact that they will be entitled to a substantial award in any event, 2 and (ii) for a reasonable period for the filing of the revised statement (30 days).3 Materials submitted more recently by the Joshua Interveors are of a different character. Revisions of the chart summarizing our overall claim (see Enclosure One) make relatively minor changes in an item filed in November 1995 (and somewhat reduce the overall claim). Documents regarding the fairness hearing and its aftermath, and the 1990-91 appeal, involved materials long part of the record, as well as events in which LRSD counsel participated. The LRSD analysis should also be set aside because of the extent to which it is argumenative and otherwise flawed. The following examples illustrate this point. First. LRSD eliminates all of lead counsel's time for work on the fee petition. See 10\23\95, 10\30\95, etc. Second. LRSD views as noncompensable, "unrelated matters" all work designed to prevent individual class members from being subjected to discrimination in discipline, placement, and extracurricular activities. See 6\24\92, 1 See Joshua Intervenors' reply memorandum filed on April 1, 1996, at 7-9, and in particular the decisions cited in note 5. 2 See intervenor's initial memorandum of November 22, 1995, at 23, regarding interim' awards. 3 A prelminary analysis of legal counsel's time is attached to this supplemental response. 2 9\18\92, 11\17\92, 5\18\93, 12\15\93, 10\24\95, 10\26\95.4 Third. LRSD views efforts to promote racial diversity in the administrative corps and to prevent discriminatory treatment of staff members to be non-compensable. See 8\22\95, 9\14\95.5 Fourth. LRSD's position is not consistent with the recognition in ARC v. Schafer, 83 F.3d 1008, 1011, 1012 (8th Cir. 1996) that in the post-judgment phase a party is to be compensated for reasonable efforts to defend its victory, even if not totally successful - a principle of obvious significance where, as here, the court has repeatedly characterized LRSD's implementation performance in negative terms. See 6\8\93, 6\9\93, 6\6\94, 6\7\94, 6\22\95, 6\23\95, 7\6\95, 7\76\95, 9\1\95. B. The Allocation of Time Among the Districts LRSD notes, properly, that some of the time claimed for lead counsel pertains to the other systems. Of course, intervenors did not request that the LRSD pay the entire award. Paragrapgh (8.) of the motion provides: "The award which is sought should be apportioned among the three school districts as follows: Little Rock School District (75 to 80 percent), North Little Rock School District (5 to 10 percent), and Pulaski County Special School District Number 1 (15 to 20 percent) (with the final percentages totalling 100 percent). See the accompanying memorandum [at 22], and the affidavit of John W. Walker, paragraph [18]." 4 Compare LRSD Desegregation Plan, 4\29\92, at 1 (Para. F), at 3 (last paragraph), 28 (paras. 3, 6, 7, 8, 11, 14), 33, 39, 40, 45; Inter-District Desegregation Plan, April 1992, Overview, Part XIII (presumption against racial disparity in programs and activities in any school; special attention given to imbalance in various placements, extracurricular activities, and discipline); Affidavit of John W. Walker, Nov. 21, 1995, para. 10; Affidavit ofJoy C. Springer, Nov. 21, 1995, at paras. 12-19; Joshua Intervenors' reply memorandum, filed April 1, 1996, at 10-11 (work on discipline issues); Joshua Intervenors' supplemental memorandum filed August 9, 1996 (summarizing precedent establishing the compensability of work on behalfof individual class members). 5 Compare LRSD Desegregation Plan, 4\29\92, at 1 (para. H), 2 (sixth "bullet"), 3 (last full paragraph). 3 These suggested allocations were based upon lead counsel's "assessment of the time spent litigating against the three systems, including reviewing information and filings, and their relative culpability." Id.6 It is proper, under controlling precedent, for the court to follow this approach, based upon its familiarity with the post-judgment phase of the case. See citations to Jenkins and Hendrickson decisions at page 22 of our initial memorandum, filed November 22, 1995; see also Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983) (recognizing that a district court has broad discretion to resolve fee questions by approximation). This submission provides additional information bearing upon an allocation among the districts. See the attached Second Supplemental Affidavit of Joy C. Springer, showing the amouts of time which she, Ms. Sims, and Messrs. Branton and Porter expended with regard to each district. See also the attached statement of John W. Walker. C. Other Contentions Regarding Individuals Are Without Merit LRSD's contentions regarding the time of other persons are without merit. Joy Springer LRSD contends in its after hours submission that none of Ms. Springer's time is compensable. This is error. First. Her Second Supplemental Affidavit filed with this memorandum allocates her time by district. Second. More fundamentally, we have demonstrated that under the controlling principles all of her time is compensable.7 6 With regard to the greater culpability of the LRSD in the post-judgment period, we note the court's many statements which we submitted with our opposition to the LRSD's motion to terminate jurisdiction and the findings of ODM which we summarized in our recent motions regarding the incentive schools and ODM's recommendations. 7 See, for example, Mc Donald v. Annontrout, 860 F.2d 1456, 1461 (8th Cir. 1988); Keith v. Volpe, 833 F.2d 850, 856-57 (9th Cir. 1987); Duran v. Carruthers, 885 F.2d 1492, 1496 (10th Cir. 4 Bob Pressman LRSD asserts in part that "most of Pressman's time" was spent reconstructing time records. This is error. Pressman's affidavit filed on November 22, 1955 documented 238.98 hours spent on this large project. The affidavit, confirmed by all versions of intervenors' summary chart, evidenced a claim limited to 120 of these hours. Aff., at para. (13.). This was attributed in part to "the nature of some of the work .. .. " Id. A review of Pressman's detailed statement of time shows that if all hours are totalled -- for the days on which any of the work supported efforts by other persons to reconstruct their time -- the total is 94.5 hours8 (a smaller total than the number of hours set aside). Thus, in substance, there is no claim for the time spent supporting efforts to reconstruct records. Austin Porter, Jr. Some of the time expended by Mr. Porter involved representation of students deflected by the systems to the juvenile process. Our position is that this is a facet of disriminatory discipline. Our approach is supported by the gross disparities in discipline rates, cited most recently at the August 19 hearing. Other Joshua Monitors Regarding the other monitors, LRSD is content with arguing that "Joshua has already been 1989), citing with approval Brewster v. Dukakis, 544 F.Supp. 1069, 1072 (D.Mass. 1982), affirmed as modified, 786 F.2d 16 (1st Cir. 1986); Joshua Intervenors' reply memorandum, filed April 1, 1996, at 10-11 (work on discipline issues); Joshua Intervenors' supplemental memorandum filed August 9, 1996 ( summarizing precedent establishing the compensability of work on behalf of individual class members). 8 Thisinfonnationis9\28(4.5), 10\24(3.0), 10\30(1.0), 11\1 (1.0), 11\8(3.75), 11\9(8.5), 11\10 (9.0), 11\11 (9.5), 11\12 (10.25), 11\13 (9.75), 11\14 (9.5), 11\15 (10.25), I 1\16 (10.25), 11\290 (4.25). Moreover, some other work was done on seven of these days. 5 compensated for monitoring during the life of the decree .... " Supplemental analysis, 8\19\96, at 2-3. However, LRSD has yet to offer an explanation for the fact that the 36-page settlement agreement contains no such provision - despite the fact that it has all the earmarks of a document setting forth the parties' full agreement, and in its specific section on attorneys' fees it begins with a statement that LRSD (but not Joshua) agrees not to seek further fees. The fact that, as here, a witness can later give testimony based upon what is "clear in my mind," "my understanding," and "what I in good faith thought" is, why, we submit, modern contract theory emphasizes the text of documents like this one. Moreover, as the hearing revealed, Mr. Chachkin did not participate in the negotiations in question, and the objective evidence from the Court of Appeals' opinion reveals no reliance on his statement, or the somewhat different statement of Mr. Heller. See 921 F.2d at 1392. D. Prevailing Party Status We have noted, given the stage of this proceeding, that LRSD has over-emphasized to a considerable degree to extent to which an award is to be predicated on assessing whether the label "prevailing" is to be attached to each piece of intervenors' work. We submit that the recent decision in the ARC case validates our approach. That decision emphasizes that a party can not walk away from a case and that defensive efforts must be made, with the resulting time compen!:able. See 83 F.3d at 1010-11, 1012. To the extent that ARC indicates that some consideration should be given to "overall success" (88 F.3d at 1011), the Joshua Intervenors have had considerable success, taking account of the inadequacies in the LRSD which they have faced. Intervenors' input at hearings led to directives or suggestions by the court to LRSD representatives. AS ODM does not have counsel, Joshua Intervenors have been the advocates for ODM recommendations adopted by the court.' ' Joshua's contempt motion led to an agreement for regular meetings with LRSD representatives to 6 enhance intervenors' consultative role. The time statements oflead counsel and Ms. Springer show that our participation in discipline hearings has often been of benefit to students. See also J. Springer Aff., 11/21/95, at paras. 13, 17, 18. E. Recent Precedent Regarding Lead Counsel's Rate On August 19, 1996 the Court of Appeals for the Eighth Circuit entered an order in the case of Harvell v. Blytheville School District, Appeal No. 93-1009EAJ, approving the requested rate of $ 250 per hour for the time oflead counsel for work on a successful appeal. See Enclosure Two. F. Correction of Claim for Day-Hollowell Case LRSD and NLRSD have referred to the total time claimed for lead counsel on August 11, 1995 - one of the 175 days in 1995 alone, for which time has been claimed for him in this case. As explained in open court on August 19, 1996, the Walker firm's Reply filed in the Day-Hollowell case, LR-C-94-849, on July 10, 1996, corrected errors accounting for the example cited by the parties here [an entry in Day-Hollowell should have been .5 rather than 5.5, and some of the time for the Davis case, No. 88-4082 (W.D. Ark.) should have been claimed for August 12, 1996]. Respectfully submitted, 11-i l, I// !f 0!4,,, Jo~' Walker# 64046 John W. Walker, P. A. 1723 Broadway Little Rock, AR 72206 501-374-3758 Bob Pressman MA # 405900 22 Locust Avenue Lexington, MA 02173 617-862-1955 7 .. CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Supplemental Response, as well as Enclosure One and Enclosure Two, were sent via United States mail to all counsel of record on this 29th of August, I 996. l t tJ /ild;L ~ V .. 8 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKAN~ LED WESTERN DMSION U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS LITI1..E ROCK SCHOOL DISTRICT, ET AL. AUG 2 9 1996 PLAINTIFFS V. NO. LR-C-82-866 JAMES W McCORMACK, CLERK By: PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ETA-;L; -_------;:D;~EP:;.- -c,D.J#ij!:::n:r.,,,..,....-NDANTS MRS. LORENE JOSHUA ET AL. KATHERINE W. KNIGHT, ET AL. STATE OF ARKANSAS ) )ss. COUNTY OF PULASKI ) AFFIDAVIT INTERVENORS INTER VEN ORS 4UG JO 1996 Office of Desegregation Monitoring I, JOHN W. WALKER, affiant herein, states under oath the following:~- - -- ____ . _ _ - ... ~~-' _.,. I hereby state that I have made a preliminary appraisal of my fee petition and determined the approximate time whicn I have expended on work for each of the districts and for joint work involving all the districts. It is attached hereto. I have not had time to make a thorough analysis using concepts such as monitoring, or unrelated work. I have read the foregoing statement and certify that it is true and correct to the best of my knowledge and belief \) - /~ / ,./ 41_ ,/'' ~ .__-f'/< ~W. Walker SUBSCRIBED AND SWORN to before me this 29th day of August 996. My Commission Expires: C, j 17 ) -:z.C03 , . . ..: io \ : I \ ~ ~ ~. ... ...~.... ,_~,,,,,. . . ATTACHMENT ONE ANALYSIS OF JOO W. WALKER'S TIME 1990 1991 1992 1993 1994 1995 TOTAL , LRSD 6.25 253.9 132.2 163.8 118.4 221.65 896.2 50.9% PCCSD .6 70.3 35.4 68.8 48.6 33.0 256.7 .. 14.6% NLRSD 13.8 24.5 18.7 5.3 9.9 72.2 4.1% JOINT 224.4 116.4 77.9 45.9 71.3 535.9 30.4% TOTAL 6.85 562.4 308.5 329.2 218.2 335.85 1761 UNITED ST ATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 93-1009EAJ Shirley M. Harvell, et al., Appellants, vs. Blytheville School District, etc., et al., Appellees. Appeal from the United States District Cou.rt fox the Eastern District of Arkansas Appellants' motion fox attorneys' fees and costs and appellees' response to the motion have been considered by the court. It is hereby ordered that appellants shall recover from appellees $53,280.81 fox attorneys' fees and costs on appeal. The clerk of the United States District Court is directed to place these - costs and fees in the previously issued mandate. August 19, 1996 o~J:;rt~irection of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. I I - XII TD UllITBD STATBS COURT OJ' APPBALS l'OR TD BIGBTB CIRCUIT HO. 93-1009 SHIRLEY M. HARVELL; BKKAHUEL LOFTON, Reverend; HATTIE JUDDLEBROOX; ALICE JOHBS; and JACQUELINE HlDl'TOH APPELLANTS v. DR. PRAHX LADD, Individually and in hi official capacity as Superintendent of the Blytheville School District Ho. 5; BLYTHEVILLE SCHOOL DISTRICT No. 5, a PUblio Body Corporate; THE BOARD 07 DIRECTORS OF THE BLYTHEVILLE SCHOOL DISTRICT Ho.5; and Individual Board Members: WILLIAM "BILL" TOKLIHSOH; NORVELL KOORE WILLIAM "BILL" SULLIVAN; HAROLD StJDBtJRY; HBLBH HtJNN7 KAREN FRAZIER; STEVE LITTRELL; AND WILLIAM "BILL STOVELL, JR.; Individually and in Their Official Capacities as School Board Members of the Blytheville School District Ho. 5. APPELLBBS MOTION FOR AWARD OF ATTORNEYS' FEES AND REQUEST TO REMAND MOTION FOR ATTORNEYS' FEES TO DISTRICT COURT Come the Plaintiffs/ Appellants by and through their undersigned counsel and move for an award of attorneys' fees and cost pursuant to 42 U.S.C. 1973l(e) in the above styled appeal and in the predecessor appeals in this case, Harvell v. Ladd, CA Nos. 91-1914 EAJ, and 91-2037EAJ and request remand of this Motion to the district court. In support of their motion, appellants submit 1. That this Court's en bane opinion of December 5, 1995 establishes for the first .. time in these appeals that plaintiffs/ appellants are "prevailing parties" for purposes of a fee award. 2 A Brief in Support of Motion for an Award of Attorney's Fees and Costs to I I - .. the Plaintiffs/ Appellants as the prevailing parties in this action. 3. The attached Affidavits of Mark Burnette and John W. Walker, attorneys for the plaintiffs/ appellants describing their general qualifications and the time each reasonably expended; 4. A summary of the work performed in this case by John W. Walker and Mark Burnette, and the expenses necessarily incurred. 5. Plaintiffs/ Appellants are entitled to reasonable attorney's fees and costs in the amount detailed in the accompanying submissions. The hours detailed in this application represent the minimum hours for which an award must be granted. 6. Plaintiffs have not petitioned the district cout for fees yet, as additional work on remand of this case is inevitable. In order to conserve judicial resources, and, in light of the district court's familiarity with the overall work in the case, plaintiffs' request that this motion be remanded for consideration with plaintiffs' petition for fees in that court Plaintiffs/ Appellants also seek reimbursement of all costs incurred which were reasonably necessary for the appellant's success in the court of appeals as is described herein below. Accordingly, Plaintiffs/ Appellants move for an award of attorneys' fees and costs in the Court of Appeals in the following amounts: ATTORNEY HOURS John W. Walker 16.8 Mark Burnette 341.5 RATE $250.00 $135.00 Sub Total (Fees) TOTAL $ 4,200.00 $46,102.50 .. $50,275.50 Court Fee Transcript Travel and accomodations Photocopying Postage By: COSTS Sub Total (Costs) GRAND TOTAL Respectfully submitted, JOHNW. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 Mark Burnette, Bar No. 88078 CERTIFICATE OF SERVICE $ 210.00 900.00 942.70 727.16 198.35 $2,978.21 $53,280.71 .. I hereby certify that a copy of the foregoing has mailed, postage prepaid to Mr. Robert Llgh~ Friday Eldridge and Oark, 400 West Capitol, Little Rock, Arkansas 72201 thisg'Ldayo!December, 1995. ~~ & ;&- . ~aU Mark umette Re:Harvell, et al. v. Ladd, et al. SUMMARY OF COSTS Description Amount Court Fee [04/17/91] [12/23/93] $ 210.00 Postage charges $ 198.35 Transcript $ 900.00 Copies $ 727.16 Hotel $ 356.70 Transportation $ 586.00 Total $2,978.21 . .. . ... IR TD mlITED STATBS COUJlT 0~ APPllLS :r0R TD EIGB'l'II CIRCUIT HO. 93-1009 SHIRLEY x. HARVBLL; BKJIMltJBL LOFTON, Reverend; HATTIE MIDDLBBROOlt; ALICE JOHBS; and JACQOBLIHB HBHTOH APPELLANTS v. DR. PRAHX LADD, Individually and in his official capacity as Superintendent of the Blytheville School District Ho. 5; BLxTHBYILLB SCHOOL DISTRICT No. s, a PUblic Body Corporate; TD BOARD OP DIRBCTORS OP TD BL'xTHBYILLB SCHOOL DISTRICT No.5; and Individual Board Kamber: WILLIAM "BILL" TOKLIHSON; NORVELL KOORB WILLIAM "BILL" SULLIVAN; HAROLD SUDBURY; HBLBN HmDI; KAREN PRAZIER; STEVE LITTRELL; AND WILLIAM "BILL STOVELL, JR.; Individually and in Their Official capacities as School Board Members of the Blytheville School District No. s. APPELLBBS BRIEF IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS' FEE I. BACKGROUND OF CASE Plaintiffs filed this action in federal district court on November 14, 1989, under the Voting Rights Act, 42 u.s.c. 1973, to secure equal voting rights pursuant to the fourteenth amendment to the U.S. Constitution. After trial, the district court held that the plaintiffs had failed to prove a violation of the statute. Harvell Y, Ladd, 759 F.Supp. 525 (E.D.Ark. 1991). Plaintiffs appealed that decision to this court. .. Defendants cross appealed as to the district court's denial of a motion for sanctions against the plaintiffs and their attorneys. On appeal, this Court held that the district court had ~fred in its decision on the merits, affirmed the denial of sanctions, and remanded the case for further findings pursuant to the guidance of the court of Appea1s decision. Harvell y.Ladd, 958 F.2d 226 (8th cir. 1992). Since that decision remanded the case for further findings, it did not establish plaintiffs as "prevailing parties;" hence no petition for fees was submitted even though that was a successful appeal for plaintiffs. on remand, the district court again held that plaintiffs had failed to establish a violation of the Voting Rights Act. (unpublished Opinion). Plaintiffs again appealed. A panel of this Court reversed the district court on August 24, 1994, holding that the plaintiff had proved a violation of the Voting Rights Act, and instructed the district court to implement a remedy. Harvell v, Blytheville School District No, 5, 33 F.3d 910, (8th Cir. 1994). Defendants moved for rehearing en bane. Their motion was granted and the panel opinion was vacated. Finally, on December 5, 1995, the full Court reversed the district court and remanded the case for a remedy order. Harvell v, Blytheville school District, __ F.3d __ (8th cir. 1995) (en bane). II. 11:NTITLEHENT TO F1!3!:S 'C7N'IlE:R U. S. C. 19 7 31. ( e J In order for individuals to pursue their rights to equal protection under the voting rights act, Congress provided for the recovery of a prevailing party's costs, including reasonable attorney's fees, with the following provision: In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in it., di.,cretion, may allow the prevailing party, other than the United States, a ' ' . .. reasonable attorney's fee as part of the costs. - 42 u.s.c. 1973l(e). In this case, all -of the proceedings before this court in the two appeals of the case are "proceedings to enforce the voting guarantees of the fourteenth or fifteenth amendment," and therefore, plaintiffs are entitled to . an award of reasonable attorney's fees and costs. Plaintiffs were not "prevailing parties" under the statute until the conclusion of the final appeal. Therefore; application for fees for the first appeal is appropriately made now. see Hester y. McGee, 815 F.2d 1193, 1198 (8th Cir. 1987)(Holding that plaintiff's attorney in an earlier appeal, which merely reversed the granting of summary judgment to the defendants in a section 1983 action, was entitled to submit application for fees in light of the ultimate success of plaintiff on second appeal after trial . .Id.). III. ESXABLISHING A REASomlB.Lr FD The standards for awarding attorney's fees under 42 u.s.c. 19731(e) are the same standards applied under 42 U.s.c. 1988. ~ .e....a,..., Riddell Y, National Democratic Party, 624 F.2d 539, 543 (5th Cir. 1980); campaign for Progressive Bronx v, Black, 632 F.Supp. 647 (S.D.N.Y 1986); and Connor v, winter, 519 F.supp. 1337, 1339 (S.D. Miss. 1981). The appropriate standard for "prevailing party" status is whether "plaintiff has succeeded on 'any significant issue in litigation which achieve[d] some of the benefit the. parties sought in bringing the suit.'" Texas State Teachers Association Y, Garland Independent school District, 489 u.s. 782, - 792, 103 L.Ed.2d 866, 877 109 S.ct. 1486 (1989) (citation omitted). .. ' . . , As with other federal civil rights tee statutes, e.g. 42 u.s.c. 1988, and 42 u.s.c. 2000, the Supreme Court directs that: "The most useful starting point tor determining a reasonable fee is the number of hours . reasonably expended on the litigation I multiplied by a reasonable hourly rate." Hensley y. Eckerhart, 461 U.S. 424, 433, 103 S.ct. 1933 (1983). In this case, plaintiffs are 100% successful on the appeal and on the underlying claim. Thus, no reduction is necessary for work on unsuccessful claims. Each of the plaintiffs/appellants' lawyers' time and rate, and a description of their expertise are itemized in the accompanying affidavits, actvity statements, and motion. These submissions represent the time reasonably expended by each attorney for particular activity necessary to the successful resolution in favor of plaintiffs/appellants before this court. The hours submitted were screened to remove redundant or excessive time. CONCLUSION For the foregoing reasorr, plaintiffs/appellants' urge the Court to grant their motion for attorney's fees and costs as set forth in the accompanying motion. By: Respectfully submitted, JOHN W. WALKER, P.A. 1723 Broadway Arkansas 72206 ( ~ .. Mark Burnette, No.880'18 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has mailed, postage prepaid to Mr. Robe~ Jdght Friday Eldridge and Clar~ 400 West Capitol, Llttle Roe~ Arkansas 72201 this.2,J_ day of December, 1995. 220/lh &t~~- Mark Burnette l'.)I THB tJIIITBD STATES COmlT 01' APPDLS l'OR THB BIGJl'l'B CIRCUIT )IQ. 93-1009 SHIRLEY x. HARVELL; BKKAliTIJEL LOFTOH, Reverend; BATTIB KIDDLBBROOlt; ALICB JOHBS; and JACQOBLIHB BEHTOH APPBLLAN'l'S v. DR. FRANX LADD, Individually and in hia official capacity as superintendent of the Blytheville School District Ho. 5; BLY'l'BBVILLB SCHOOL DISTRICT No. 5 1 a Public Body Corporate; '1'HB BOARD OJ' DIRBC'l'ORS OF TBB BLXTBEYILLB SCHOOL DISTRICT Ho.s; and Individual Board Members: WILLIAM 11BILL11 TOMLINSON; NORVELL KOORB WILLIAM 11BILL11 SULLIVAN; HAROLD SUDBURY; BELEN NtJNH; KAR.EN FRAZIER; STBVB LITTRELL; AND WILLIAM "BILL STOVELL, JR.; Individually and in Their Official Capacities as School Board Members of the Blytheville School District No. s. AFFIDAVIT OF JOHN W, WALKER STATE OF ARKANSAS) )SS. COUNTY OF PULASKI) APPELLBES Comes now the affiant, JOlDI w. WALDR, who submits the following affidavit under oath: 1. I graduated from Arkansas AM&N College in Pine Bluff, Arkansas in 1958 with a major in Sociology. In 1960, I was awarded a John Hay Whitney Opportunity Fellowship which I used to obtain a Master's Degree from New York University in Education (Human Relations) in 1961. In 1961, I enrolled in the Yale University Law School from which I received my law degree in 1964. At Yale Law school in 1964, I was a finalist in the Thurman Arnold Appellate Moot court Competition. I have studied further at Fisk University (the Race Relations Institute) and at many legal training seminars which focused upon the subject of civil rights law in particular. 2. In 1964, I was admitted to practice before the Bar of Arkansas. Subsequently, I was admitted to, and still practice before, the United States Supreme Court, the Courts of Appeals for the Eighth, Fifth, Eleventh, and Tenth Circuits, the United States District Court, Western District of Texas, and the United States District Court, Eastern and Western Districts of Arkansas. 3. I completed a legal training internship in New York City with the NAACP Legal Defense and Educational Fund (LDF) in September, 1965. I