Jeffers v. ClintonJeffers v. Clinton
M.C. JEFFERS, on behalf of themselves and all others
similarly situated; Al Porter, on behalf of themselves and
all others similarly situated; Evangeline Brown, on behalf
of themselves and all others similarly situated; Clyde
Collins, on behalf of themselves and all others similarly
situated; Earl Foster, on behalf of themselves and all
others similarly situated; Rev. Ellihue Gaylord, on behalf
of themselves and all others similarly situated; Shirley M.
Harvell, on behalf of themselves and all others similarly
situated; Linda Shelby, on behalf of themselves and all
others similarly situated; J.C. Jeffries, on behalf of
themselves and all others similarly situated; Joseph Perry,
on behalf of themselves and all others similarly situated;
Clinton Richardson, on behalf of themselves and all others
similarly situated; T.E. Patterson, on behalf of themselves
and all others similarly situated; Earnest Simpson, on
behalf of themselves and all others similarly situated;
Brian Smith, on behalf of themselves and all others
similarly situated; Charlie Statewright, on behalf of
themselves and all others similarly situated, Appellees,
v.
Bill CLINTON, in his official capacity as Governor of
Arkansas and chairman of The Arkansas Board of
Apportionment; W.J. McCuen, in his official capacity as
Secretary of State of Arkansas and Member of the Arkansas
Board of Apportionment; Winston Bryant, in his official
capacity as Attorney General of Arkansas and member of the
Arkansas Board of Apportionment, Appellants.
No. 92-2903.
United States Court of Appeals,
Eighth Circuit.
Submitted March 15, 1993.
Decided May 7, 1993.
Tim Humphries, Little Rock, AR, argued, for appellants.
Perlesta A. Hollingsworth, Little Rock, AR (Don E. Glover, Dermott, AR, L.T. Simes of West Helena, AR, Julius LeVonne Chambers, Charles Stephen Ralston and Dayna L. Cunningham, New York City, and Penda D. Hair, Washington, DC, on the brief), for appellees.
Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
BRIGHT, Senior Circuit Judge.
In the present proceedings, appellants, in their official capacities, appeal the award of attorneys' fees for plаintiffs who successfully challenged the 1981 apportionment of the Arkansas legislature under the Voting Rights Act,
Only the enhanced fee is at issue. As a threshold question, the appellees contest the jurisdiction of this court to decide this appeal because the notice of appeal fails to namе several of the appellants.
We reject the jurisdictional defense to the appeal and reverse and remand this case for further consideration by the three-judge district court.
I.
Seventeen African-American citizens of Arkansas challenged the 1981 lеgislative apportionment plan as violating the Voting Rights Act and the U.S. Constitution. The plaintiffs sued the Arkansas Governor, Attorney General, Secretary of State, and Board of Apportionment.
The complaint in the case before the United States District Court for the Eаstern District of Arkansas, Eastern Division lists the following defendants:
BILL CLINTON, in his capacity as Governor of Arkansas and Chairman of the Arkansas Board of Apportionment; W.J. McCUEN, in his capacity as Secretary of State of Arkansas and member of the Arkansas Board of Apportiоnment; and STEVE CLARK, in his capacity as Attorney General of Arkansas and member of the Arkansas Board of Apportionment; and the ARKANSAS BOARD OF APPORTIONMENT
Appendix of Appellants at A-1.
A three-judge district court found the redistricting plan violated the Voting Rights Act and in a later decision found it also violated the fifteenth amendment. Jeffers v. Clinton,
The plaintiffs then filed an application under
The district court made adjustments to the hourly rates and hours worked for lawyers and paralegals serving plaintiffs' cause, arriving at a lodestar figure of $653,895 and enhanced this lodestar to account for the pоssibility of losing the case. The enhancement amounted to a fifty percent increase in fees applying to hours entitled to enhancement (excluding certain hours such as those spent on fee petition) and added $308,745 to the lodestar fee.2
Initially, all four defendants sought to appeal the fee award to the United States Supreme Court, the Court which had jurisdiction over the merits. See Clinton v. Jeffers, --- U.S. ----,
This appeal followed. The Notice of Appeal from the district court judgment is entitled "M.C. Jeffers, et al. v. Bill Clinton, et al." and recites that "Notice is hereby given that Bill Clinton, et al., defendants herein, appeal...." Appendix of Appellants at A-33.
II.
The appellees contend only one of the four defendants filed a timely notice of appeal. They claim this court has no jurisdiction over the three parties not named in the appeal: Arkansas Secretary of State W.J. McCuen, Attorney General Clark, and the Board of Apportionment. The аppellees concede that Bill Clinton is a proper party. The title of the action establishes Clinton is sued in his official capacity as Governor of Arkansas and Chairman of the Arkansas Board of Apportionment.
We need to resolve the question whether the notice of appeal complies with
The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court tо which the appeal is taken.
The appellees contend the appeal is defective because it fails specifically to name parties other than Bill Clinton. The appellees rely on Torres v. Oakland Scavenger Co.,
We reject this jurisdictional challenge. The Torres decision does not apply in this case. In Torres, the Supreme Court considered whether petitioner Torrеs, one of sixteen plaintiffs who intervened in an employment discrimination suit against the respondent, Oakland Scavenger Company, could claim a right to be an appellant when the notice of appeal and the order of the court of appеals, which granted relief on the appeal to the appellants, did not contain his name. Torres contended the use of "et al." in the notice of appeal was sufficient to indicate his intention to appeal. Justice Marshall, writing for the majority, statеd:
Petitioner urges that the use of "et al." in the notice of appeal was sufficient to indicate his intention to appeal. We cannot agree. The purpose of the specificity requirement of
Torres,
The Torres case relates to an individual party who had an individual interest in the case and who was not named as an appellant. The instant case differs in that the parties here are sued in their official capacities and the State of Arkansas is responsible for paying the attorneys' fees.
The relevant and persuasive authority for us is Brown v. Palmer,
The federal district court granted relief to the plaintiffs and the defendants attempted a timely appeal in which the United States Attorney for the District of Colorado filed a notice listing Colonel James O. Palmer, et al., as defendants-appellants. The notice of appeal failed to specify whether Palmer was sued in his official capacity and further failed to name Colonel Eugene T.M. Cullinane, the second defendant in the original complaint.
The Tenth Circuit determined that the plaintiffs received fair notice under Torres because they understood that an appeal by Colonel Palmer was in effect an appeal by the United States, as they had sued Colonel Palmer аnd Colonel Cullinane only in their official capacities. Brown,
As with Brown, the appeal by Govеrnor Bill Clinton, who was sued in his official capacity, gives fair notice that the State of Arkansas, which was the obligor on the fee bill, sought to appeal.
Furthermore, in this case, appellees could not mistake that all defendants intended to appeal because in the initial appeal to the United States Supreme Court on the fee award which was later reinstated by the three-judge district court, all of the named defendants had joined in the notice of appeal. Thus, the second notice of appеal to this court naming "Bill Clinton, et al., defendants herein," Appendix of Appellants at A-33, obviously included all of the defendants who serve in an official capacity as officers of the State of Arkansas.3
Accordingly, we hold the notice of appeal here gave fair notice to the appellees that the State of Arkansas and Bill Clinton, on behalf of the State, were appealing the fee award. We reject the jurisdictional challenge and reach the merits of the challenge to the enhanced fee claim.
III.
More than two months after the substituted judgment in this case, the law regarding fee enhancements on the basis of contingency changed significantly. On June 24, 1992, the Supreme Court decided City of Burlington v. Dague, --- U.S. ----,
Contingency enhancement is a feature inherent in the contingent-fee model (since attorneys factor in the particular risks of a case in nеgotiating their fee and in deciding whether to accept the case). To engraft this feature onto the lodestar model would be to concoct a hybrid scheme that resorts to the contingent-fee model to increase a fee award but not to reduсe it. Contingency enhancement is therefore not consistent with our general rejection of the contingent-fee model for fee awards, nor is it necessary to the determination of a reasonable fee.
Burlington, --- U.S. at ----,
The appellees suggest that language in the City of Burlington case permit factoring contingency into the lodestar rates. The appellants disagree, referring to the following language:
The risk of loss in а particular case (and, therefore, the attorney's contingent risk) is the product of two factors: (1) the legal and factual merits of the claim, and (2) the difficulty of establishing those merits. The second factor, however, is ordinarily reflected in the lodestar--either in thе higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so.
City of Burlington, --- U.S. at ----,
Notes
The lodestar is "the product of reasonable hours times a reasonable rate." Pennsylvania v. Delaware Vallеy Citizens' Council for Clear Air,
Senior United States District Judge Eisele dissented, opining that the fee award was excessive and the enhancement unjustified
The Eighth Circuit case of Wise v. Parkman,