Opposition Brief — Missouri v. Jenkins

Supreme Court of the United States

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No. 91-360 | P27 199?

area THE CLERK |

In The Ronis =

October Term, 1991

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STATE OF MISSOURI, et al.,

Petitioners,

VS.

KALIMA JENKINS, et al.,

Respondents.

+

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

- For The Eighth Circuit

BRIEF OF RESPONDENTS KALIMA JENKINS, et al.

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IN OPPOSITION TO THE PETITION

*Counsel of Record

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Russet E. Lovett II*

4055 42nd Street

Des Moines, Iowa 50310

(515) 271-2073

ARTHUR A. BENSON II

BENSON & McKay

1125 Commerce Bank Bldg.

1000 Walnut Street

Kansas City, Missouri 64106

(816) 842-7603

Jutrus L. CHAMBERS

CHARLES STEPHEN RALSTON

NAACP Legal Defense Fund

99 Hudson Street, 16th FI.

New York, New York 10013

(212) 219-1900

Counsel for Respondents

COCKLE LAW BRIEF

CO., (800) 225-6964

PRINTING

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Whether post-judgment interest under 28 U.S.C.

§ 1961 on an attorneys’ fees award should accrue from the

date of the judgment establishing plaintiffs’ entitlement

to a statutory fees award and ordering an immediate

$200,000 partial payment or from a subsequent judgment

that quantifies the fees award in its entirety?

ii

TABLE OF CONTENTS

Page

QUESTION- PRESENTED ....................00cee. i

STATEMENT OF THE.CASE...............cceceee. 1

REASONS FOR DENYING THE WRIT............. 4

I. SUMMARY OF ARGUMENT..................... 4

Il. THERE IS NO CONFLICT AMONG THE CIR-

os EE ee oe 6

A. The Fifth And Federal Circuit Decisions In

Copper Liquor And Mathis................. 6

B. The Seventh Circuit Decision in Fleming... 8

C. The Ninth Circuit Decision in Perkins ..... 13

Ill. THIS COURT’S DECISION IN BONJORNO IS

gt 3) Se ee OL) yohe 14

UCEALIGIIIN ok is ccess nds uanyyeepue alee 18

ili

TABLE OF AUTHORITIES

Page

Cases:

Copper Liquor, Inc. v. Adolph Coors Co., 506 F.2d

I Cia cece cece vsesvscdvtosevarecees 7

Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d

Mc eve cy tnccccsesccarecdasivescees 7

Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d

mee (oun Cie. 1963) (en banc).................. passim

FDIC v. Rocket Oil Co., 865 F.2d 1158 (10th Cir.

EE ee 17

Fleming v. County of Kane, 686 F. Supp. 1264

EE ee ee 9

Fleming v. County of Kane, 898 F.2d 553 (7th Cir.

ES yal Se a 5, 5, 9, 10, 11, 12

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo.

1985), aff'd, 807 F.2d 657 (8th Cir. 1986), cert.

RD) ee 1, 4

Jenkins v. Missouri, 731 F. Supp. 1437 (W.D. Mo.

ae pal eer ree ee Ce 2

Jenkins v. Missouri, 838 F.2d 260 (8th Cir. 1988),

aff’d, Missouri v. Jenkins, 491 U.S. 274 (1989)....1, 4

Jenkins v. Missouri, 931 F.2d 1273 (8th Cir. 1991) .. . passim

Kaiser Aluminum & Chemical Corp. v. Bonjorno,

ee See CEPOU) ...-.....6. 5, 6, 7, 14, 15, 16, 17

Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988)...2, 6, 7, 8

Missouri v. Jenkins, 491 U.S. 274 (1989)............ 1,9

iv

TABLE OF AUTHORITIES - Continued

Page

Northern Natural Gas Co. v. Hegler, 818 F.2d 730

(10th Cir. 1987), cert. dismissed, Northern Natu-

ral Gas Co. v. Mobil Oil Corp., 486 U.S. 1063

EI cs supe cesusdecseaneteieheswaturerecste xa 16, 17

Perkins v. Standard Oil Co., 487 F.2d 672 (9th Cir.

= PRR ge Pie Sn ARN etd Sats co a ON a of 5, 13, 14, 17

Perkins v. Standard Oil Co., 399 U.S. 222 (1970)..... 13

Revlon, Inc. v. Carson Products Co., 803 F.2d 676

(Fed. Cir.), cert. denied, 107 S.Ct. 671 (1986)....... 8

STATUTES:

EE oS U hs bkuw i cusses ese oe ee ede passim

ee ay Me oss aa veb ck eee ce 7,8

ee IS 4 oo on sw bs bob oo os oe ee enn 1, 4,9

Books:

1 M.Derfner & A.Wolf, Court Awarded Attorney

PO RN irs baie Cupane cees iy kee ene tees uk ee ty 8

STATEMENT OF THE CASE

The statement of the case in the petition does not

adequately describe either the district court’s attorneys’

fees judgments or the decision and reasoning of the

United States Court of Appeals.

The district court entered two judgments on the

underlying attorneys’ fees litigation.! On February 24,

1986, a judgment was entered which established respon-

dents’ entitlement to attorneys’ fees, per 42 U.S.C. § 1988,

and ordered petitioners to make immediate payment of

$200,000 to respondents’ lead counsel, Arthur Benson.

App. C., Pet. App. A-14. No appeal was taken from this

judgment and the ordered interim fees were paid.

Respondents’ fees award was quantified in its entirety in

a judgment entered on May 11, 1987, as modified on July

14, 1987. App. D, Pet. App. A-16. The total Benson fees

judgment was $1,729,230; the total NAACP Legal Defense

Fund (LDF) fees judgment was $2,365,875. This latter

judgment was affirmed in all respects by the Eighth Cir-

cuit, Jenkins v. Missouri, 838 F.2d 260 (8th Cir. 1988), and

by this Court, Missouri v. Jenkins, 491 U.S. 274 (1989).

The parties agreed that respondents were entitled to

post-judgment interest on their attorneys’ fees award

under 28 U.S.C. § 1961. The parties disagreed as to

1 The final judgment on the merits was entered on June 14,

1985. Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985), aff'd

as modified, 807 F.2d 657 (8th Cir. 1986) (en banc), cert. denied,

484 U.S. 816 (1987).

whether interest should accrue from the February 24,

1986 fees judgment or from the May 11, 1987 fees judg-

ment. On February 26, 1990, the district court granted

respondents’ motion for post-judgment interest on their

fees award, with interest accruing from the February 24,

1986 judgment. Jenkins v. Missouri, 731 F. Supp. 1437

(W.D. Mo. 1990); App. E, Pet. App. A-33.

The Eighth Circuit affirmed the district court’s judg-

ment awarding post-judgment interest, with Chief Judge

Lay writing a separate concurrence. Jenkins v. Missouri,

931 F2d 1273 (8th Cir. 1991); App. B, Pet. App. A-3. In

construing §1961, the court of appeals followed the lead

of the Federal Circuit in Mathis v. Spears, 857 F.2d 749

(Fed. Cir. 1988), and adopted the two-part test fashioned

by the Fifth Circuit in Copper Liguor, Inc. v. Adolph Coors

Co., 701 F.2d 542, 545 (5th Cir. 1983)(en banc)(per curiam),

to determine when interest commences to accrue on attor-

neys’ fees awards:

“If a judgment is rendered that does not

mention the right to attorneys’ fees, and the

prevailing party is unconditionally entitled to

such fees by statutory right, interest will accrue

from the date of the judgment. If, however,

judgment is rendered without mention of attor-

neys’ fees, and the allowance of fees is within

the discretion of the court, interest will accrue

only from the date the court recognizes the right

to such fees in a judgment.”

Jenkins v. Missouri, 931 F.2d at 1275-76; App. B, Pet. App.

A-7-A-8. The court concluded that the Copper Liquor stan-

dard stated the correct construction of §1961 and

furthered important public policies. It recognized that

awarding interest from the entry of a judgment establishing

entitlement to fees compensates prevailing parties for loss of

the use of their fees during the balance of the fees litigation

and removes any artificiai incentive which fees opponents

might otherwise -have to protract the fees litigation.

(“The provision for calculating interest from entry

of judgment deters use of the appellate process by

the judgment debtor solely as a means of prolong-

ing its free use of money owed the judgment credi-

tor’). The award of interest also serves the make-

whole obective of the fee awards in civil rights

cases. * * * We also observe that if the accrual of

post-judgment interest is delayed until fee awards

ire quantified and attorneys are thus not fully

compensated for their successful efforts, they may

be reluctant to take on complex and expensive

litigation.

The State argues that until the fee award is

liquidated, the party responsible for payment

has no way to satisfy its obligation, and thus, no

interest should accrue. We are not persuaded by

this argument. The fee-paying party suffers no

prejudice from any delay in quantifying the

award because it has the use of the money in the

interim and because the statutory interest rate is

tied to the U.S. Treasury Bill rate.

Jenkins, 931 F.2d at 1275; App. B, Pet. App. A-9-A-10. The

Court concluded that under the second part of the Copper

Liquor standard,” the district court correctly awarded

2 In the exercise of billing judgment, respondents did not

request post-judgment interest from the date of their June 1985

(Continued on following page)

respondents post-judgment interest from the February 24,

1986 judgment establishing respondents’ entitlement to

fees. Jenkins, 931 F.2d at 1275; App. B, Pet. App. A-11.

Judge John Gibson, who authored both the en banc deci-

sion on the merits, 807 F.2d 657 (8th Cir. 1986), and the

earlier panel decision on attorneys’ fees, 838 F.2d 260 (8th

Cir. 1988), wrote the Eighth Circuit decision on post-

judgment interest from which petitioners seek a writ of

certiorari.

REASONS FOR DENYING THE WRIT

I. SUMMARY OF ARGUMENT

It is noteworthy that petitioners make no attempt to

explain why this case has national importance worthy of

the attention of the United States Supreme Court. In

addition, petitioners do not address the reality that the

decision below turns on its own facts, and, as a prece-

dent, will affect relatively few other litigants. As a result

of the protracted nature of the instant complex class

action, the district court entered two fees judgments — one

(Continued from previous page)

merits judgment; however, they have consistently contended

that that judgment, which established their entitlement to fees

under §1988, satisfied the first prong of the Copper Liquor

standard for post-judgment interest and provided an alterna-

tive basis for affirmance of the district court’s judgment. Both

the district court and the Eighth Circuit declined to decide

whether under the first prong of the Copper Liquor standard

respondents were entitled to post-judgmeni interest from their

June 14, 1985 merits judgment. Jenkins, App. 8, Pet. App. A-8

n.2.

which established entitlement to fees and ordered a sub-

stantial interim payment, and one which quantified the

total fees award and ordered payment thereof. The more

typical case awarding attorneys’ fees under §1988 does

not present an issue as to which fees judgment tr.zgers

the accrual of post-judgment interest because there is

only one fees judgment, and it both establishes entitle-

ment to and quantifies the fees.

Petitioners contend that certiorari should be granted

to resolve a conflict between the Eighth Circuit’s decision

in the instant case and decisions of the Seventh Circuit in

Fleming v. County of Kane, 898 F.2d 553 (7th Cir. 1990), and

the Ninth Circuit in Perkins v. Standard Oil Co., 487 F.2d

672 (9th Cir. 1973). Petitioners are mistaken. There is no

conflict among the circuits as to the date post-judgment

interest begins to accrue on statutory awards of attor-

neys’ fees. Notably, neither Fleming nor Perkins was found

by the Eighth Circuit to be in conflict with its decision in

the instant case. The Eighth Circuit concluded Fleming

was inapposite —- a decision on pre-judgment interest

rather than post-judgment interest. Jenkins v. Missouri,

App. B, Pet. App. A-7; see Part II.B. infra. Although post-

judgment interest per §1961 was at issue in Perkins, the

Eighth Circuit found that Perkins did not “address the

issue before us.” Id. at A-8 n.3.; see Part II.C. infra.

Petitioners also contend that this “Court’s review of

the Jenkins case is necessary to reconcile the Eighth Cir-

cuit’s interpretation of ... §1961(a) with the principles

established in this Court’s decision in” Kaiser Aluminum

& Chemical Corp. v. Bonjorno, 110 S. Ct. 1570 (1990). Cert.

Pet. at 6. Petitioners contend that the distinction made in

Bonjorno between the date of verdict and the date of

judgment, with post-judgment interest held to run from

the date of judgment, is comparable to the distinction

“between the date that the right to some attorney’s fees is

recognized and the date the fee award is quantified.” Id.

at 8. The Eighth Circuit found “Bonjorno [did] not address

the issue before us.” Jenkins, App. B., Pet. App. A-8 n.3.

Petitioners fail to perceive that Bonjorno merely con-

firmed that it is a judgment which triggers the accrual of

interest per §1961. Consistent with Bonjerno, post-judg-

ment interest was awarded from the judgment which

established respondents’ entitlement to attorneys’ fees

and ordered immediate payment of $200,000. See Part III

infra.

Il. THERE IS NO CONFLICT AMONG THE CIR-

CUITS

A. The Fifth And Federal Circuit Decisions In

Copper Liquor And Mathis

As discussed preliminarily in the Statement of the

Case, the Eighth Circuit in the instant case followed the

lead of the Federal Circuit in Mathis v. Spears, 857 F.2d 749

(Fed. Cir. 1988), and expressly adopted the test developed

by the Fifth Circuit in Copper Liquor, Inc. v. Adolph Coors

Co., 701 F2d 542 (5th Cir. 1983) (en banc). Thus, three

circuits now hold that post-judgment interest on attor-

neys’ fees awards accrues either from the date of entry of

the judgment on the merits when “the prevailing party is

unconditionally entitled to such fees by statutory right,”

or “from the date the court recognizes the right to such

fees in a judgment” when fees are “within the discretion

of the court.” Copper Liquor, 701 F.2d at 545; Mathis v.

Spears, 857 F.2d at 760.

In Copper Liquor post-judgment interest on the fees

award was based on the first prong of the alternative

standard. Even though the actual amount of fees was not

finally resolved until three years later, post-judgment

interest was awarded from the district court’s merits/fees

judgment for legal services performed prior to that judg-

ment, because that judgment first established plaintiffs’

entitlement to fees.?

In Mathis v. Spears, the district court concluded that a

patent infringement suit was frivolous and conducted in

bad faith, which qualified defendants for an award of

attorneys’ fees under the “exceptional” case standard of

35 U.S.C. §285. The district court awarded §1961 post-

judgment interest on its fees award measured from the

date of the judgment on the merits, rather than the date

of its subsequent judgment quantifying fees. The

3 Like Bonjorno, Copper Liquor was a suit for damages

under the Sherman Act. The jury found Coors liable, but the

Fifth Circuit remanded the case for reconsideration of both

damages and attorneys’ fees. 506 F.2d 934 (Sth Cir. 1975). The

case was retried and the district court entered a judgment for

damages and fees on July 31, 1978. The Fifth Circuit upheld the

damages judgment but remanded for reconsideration of fees.

624 F.2d 575 (5th Cir. 1980). The district court entered an

amended judgment on fees on June 29, 1981. The Fifth Circuit

held that post-judgment interest on the fees award would run

from the July 31, 1978 judgment for work performed before

that date, because the 1978 judgment on the merits established

plaintiffs’ entitlement to fees, even though the fees were not

finally quantified until 1981. Correctly anticipating Bonjorno,

see Part III, infra, the Fifth Circuit did not award post-judgment

interest on either damages or fees from the original judgment

because it, by virtue of the retrial, was not a legally sufficient

judgment.

Federal Circuit upheld the award‘: “Interest on an attor-

ney fee award thus runs from the date of the judgment

establishing the right to the award, not the date of the

judgment establishing its quantum.” 857 F.2d at 760.

B. The Seventh Circuit Decision in Fleming

The Seventh Circuit decision in Fleming v. County of

Kane, 898 F.2d 553 (7th Cir. 1990), is badly confused.5 The

district court in Fleming never discussed the question of

post-judgment interest. It never cited 28 U.S.C. §1961. In

order to appreciate that Fleming presents no §1961 post-

judgment interest issue whatsoever, it is necessary to

work one’s way through the details of the district court’s

studied effort to award a delay in payment enhancement

4 The district court’s opinion holding for defendants on

the merits also stated the plaintiff’s “ ‘course of conduct dem-

onstrates a recklessness with regard to the truth, which justi-

fies an award of attorneys’ fees under the “exceptional case”

provision of 35 U.S.C. §285.’ 1 USPQ2d at 1523.” Mathis, 857

F.2d at 751. Although the court of appeals did not explain its

application of the Copper Liquor alternative standard, this find-

ing of the district court unquestionably established the defen-

dants’ entitlement to fees in the judgment on the merits, which,

under the second prong of the alternative standard, caused

interest to begin to accrue. Without this finding interest would

not have commenced with the judgment on the merits, because

fees awards to prevailing defendants are not routine, much less

unconditional, in patent cases. Id. at 754. See also Revlon, Inc. v.

Carson Products Co., 803 F.2d 676 (Fed.Cir.), cert. denied, 107 S.

Ct. 671 (1986); 1 M.Derfner & A.Woif, Court Awarded Attorney

Fees, §10.05 [3][b] at 10-60.13 “1988).

> The panel was comprised of circuit judges Flaum, Rip-

ple, and Kanne. Judge Kanne authored the opinion.

and the contradictory reasoning of the court of appeals

upholding the principle of enhancement but reversing the

methodology of its calculation.

The district court did not adjust for the delay in

payment by awarding current market rates, as is com-

monly done. Fleming v. County of Kane, 686 F. Supp. 1264,

1272-73 (N.D. Ill. 1988). Instead, the district court made a

determination of historic billing rates and then adjusted

for delay in payment. The delay in payment adjustment

took “the form of adding interest at the prime rate from a

date 30 days after the end of the month in which the

services were rendered . . . to October 22, 1987.” Id. at

1274. As the Seventh Circuit observed, October 22, 1987

was “the date on which judgment was entered on the

jury’s initial verdict as to liability.” Fleming, 898 F.2d at

565. On June 23, 1988 the district court entered a minute

order allowing fees of $205,176.80, final judgment on the

fees award was entered on June 24, 1988.

On appeal the Seventh Circuit first held that it was

not an abuse of discretion for the district court “to

attempt to compensate plaintiff’s attorneys for the delay

[in payment] by applying an interest rate to the lodestar

amount.” Id. at 564 (footnote omitted). Although the

Court held that it could not conclude that use of the

prime rate in calculating the delay in payment adjustment

was an abuse of discretion, it, nonetheless, remanded to

the district court to explain why it selected the prime rate

6 Although not cited, the Seventh Circuit’s decision was

consistent with this Court’s ruling in an earlier stage of the fees

litigation in the instant case, Missouri v. Jenkins, 491 U.S. 274

(1989), which upheld the appropriateness of delay in payment

enhancements in §1988 fees awards.

10

rather than the lower rates for U.S. Treasury Bills or one-

year certificates of deposit.” Id. at 565. Then, in a cursory

two paragraphs,® the Seventh Circuit proceeded to

7 Such a remand would have been unnecessary had the

interest calculation been of post-judgment interest under 28

U.S.C. §1961. The district court has no discretion with regard to

the post-judgment interest rate. Section 1961 mandates use of

the U.S. Treasury Bill rate.

8 The Seventh Circuit stated:

In the Memorandum Opinion and Order of April

12th, the district judge directed that interest should

be added to the lodestar figure ‘from a date 30 days

after the end of the month in which the services wer?

rendered’ through October 22, 1987, the date on

which judgment was entered on the jury’s initial

verdict as to liability. This application of interest is

inappropriate.

As we have noted, ‘plaintiffs may collect interest

on attorney’s fees or costs only from the date that the

award was entered.’ Ohio-Sealy [Mattress Mfg. Co. v.

Sealy, Inc., 776 F.2d 646 (7th Cir. 1985)], at 662. Prior

to the date the judgment on attorney’s fees was

entered, plaintiff’s attorneys’ claim for unpaid attor-

ney’s fees was unliquidated and, as such, not enti-

tled to interest. Perkins v. Standard Oil Co. of Cal., 487

F.2d 672, 675 (9th Cir. 1973); see also In re Burlington

Northern, Inc. Employment Practices Litigation, 810

F.2d 601, 609 (7th Cir. 1986), cert. denied, 484 US.

821, 108 S.Ct. 82, 98 L.Ed.2d 44 (1987) (under 28

U.S.C. §1961(a), the statutory presumption is that

interest on money judgments ‘shall be calculated

from the date of the entry of the judgment’). In this

case, the record clearly indicates that the award of

attorney’s fees was entered on June 24, 1988. Accord-

ingly, interest will be allowed on the amount

awarded as attorney’s fees only from June 24, 1988

until the date the judgment is paid.

Fleming, 898 F.2d at 565.

11

instruct the district court that it had erred as to the date

at which interest began to accrue in calculating the delay

in payment adjustment. Id. Citing §1961 caselaw holding

that post-judgment interest runs only from entry of a

judgment, the Court instructed that the calculation of

interest in the delay in payment enhancement would be

allowed only from the June 24, 1988 fees judgment.

The Seventh Circuit’s discussion on the accrual date

of interest was solely in the context of advising the dis-

trict court how to calculate the delay in payment adjust-

ment on remand. Post-judgment interest on the fees

award per §1961 was not even considered by the district

court and was not at issue in the Fleming appeal. The

issue in Fleming was the proper calculation of the delay in

payment enhancement, which, in distinguishing Fleming,

the Eighth Circuit characterized as a “pre-judgment inter-

est” issue.? Jenkins, App. B, Pet. App. A-7. The Eighth

Circuit, in deciding the instant case, declined to follow

the Fleming reasoning, observing that “it is not clear

whether the parties [in Fleming] presented this [post-

judgment interest] issue.” Id.

% Although commenting that “[t]he Fleming result runs

counter to the holdings of the Fifth Circuit in Copper Liquor, Inc.

v. Adolph Coors Co., 701 F.2d 542 (5th Cir. 1983)(per curiam),

and the Federal Circuit in Mathis v. Spears, 857 F.2d 749, 760

(Fed. Cir. 1988),” Jenkins v. Missouri, App. B, Pet. App. A-7, the

Eighth Circuit stated: “The Fleming court did not explain why

it selected the date of fee quantification rather than the date of

fee entitlement, and it is not clear whether the parties pre-

sented this issue. Fleming reversed the district court’s ruling

that had awarded pre-judgment interest on the attorney’s

fees.” Id. at A-7.

12

Even under petitioners’ mistaken view of Fleming (as

a decision on post-judgment interest under §1961), Flem-

ing is not inconsistent with the Eighth Circuit decision in

the instant case. See Id. at A-13 n.2 (Lay, C.J., concurring).

Although the district court in Fleming made an initial

ruling that plaintiffs were entitled to attorneys’ fees prior

to final quantification of the fees, the initial ruling was

not entered as a judgment.!° In Fleming, as is typically the

case, there was only one judgment on fees. The June 24,

1988 judgment which established the Fleming plaintiffs’

entitlement to fees was also the judgment which quan-

tified the fees. Had the Seventh Circuit been deciding

post-judgment interest in Fleming, its comment that inter-

est should accrue from the June 24, 1988 judgment would

be consistent with Copper Liquor and the Eighth Circuit's

decision in the instant case because the Fleming plaintiffs’

entitlement to fees was not established in a judgment prior

to that date. In the instant case, unlike Fleming, the dis-

trict court’s order establishing respondents’ entitlement

to fees and mandating a partial payment of $200,000 was

‘0 Under the Copper Liquor standard, post-judgment inter-

est per §1961 conceivably could have commenced in Fleming

had the district court’s order of April 12, 1988 recognizing

plaintiff’s entitlement to fees been entered as a judgment

requiring payment of a portion of the fees. A judgment, how-

ever, was not entered at that time and the court did not address

the issue. Chief Judge Lay, in his concurrence in the instant

case, concluded that post-judgment interest could not have

begun to accrue in Fleming prior to the June 24, 1988 fees

judgment because “the only reasonable conclusion is that the

earlier opinions of the district court were not final judgments

under Rule 58.” Jenkins, App. B, Pet. App. A-13 n.2.

13

a final judgment and the accrual of post-judgment inter-

est properly commenced upon its entry.

C. The Ninth Circuit Decision in Perkins

Contrary to the contention of petitioners, and as rec-

ognized by the Eighth Circuit in the instant case, Perkins

did not address the issue raised by this petition. Jenkins,

App. B, Pet. App. A-8 n.3. Indeed, close examination of

the Ninth Circuit decision in Perkins demonstrates that it

is consistent with the Copper Liquor standard and the

decision in the instant case.

In Perkins v. Standard Oil Co., 487 F.2d 672, 673-75 (9th

Cir. 1973), the plaintiffs had prevailed in the United

States Supreme Court, but its mandate made no reference

to attorneys’ fees. On remand the district court concluded

fees were foreclosed and denied fees. The Supreme Court

reversed, holding that the omission of fees from its man-

date “left open” the matter of fees for the district court.

Perkins v. Standard Oil Co., 399 U.S. 222 (1970). Thereafter

the district court awarded fees, which were subsequently

reduced on appeal. Perkins, 487 F.2d at 674. The Ninth

Circuit held that post-judgment interest on the reduced

award ran from the date of the district court’s fees award,

rather than the date of the Supreme Court's earlier judg-

ment on the merits or the date the fees were correctly

quantified on appeal. Id. at 675-76.

It is clear from the Supreme Court’s second ruling in

Perkins that the award of attorneys’ fees was not manda-

ted upon the judgment on the merits (the Supreme

‘ r

14

Court’s first ruling), but was discretionary with the dis-

trict court. The plaintiffs’ entitlement to fees was, there-

fore, not established until eniry of the district court's

subsequent fees judgment. Thus, because the plaintiffs’

entitlement to fees was established in the same judgment

which quantified the fees, the court in Perkins would have

had no occasion to consider the issue presented in the

instant case.

lil. THIS COURT’S DECISION IN BONJORNO IS

INAPPOSITE

Bonjorno held that post-judgment interest properly

ran from the date of entry of the damages judgment,

rather than the date of verdict.1! 110 S. Ct. at 1576.

11 The original jury verdict in Bonjorno, a suit for damages

under the Sherman Act, was on August 21, 1979; judgment was

entered for plaintiff Bonjorno on August 22, 1979 for $5,445,000

in damages. Defendant Kaiser filed a motion for new trial.

Nearly two years later, the district court concluded there was

insufficient evidence to support the damages awarded and

granted defendant Kaiser’s motion for a new trial on damages

only. On December 2, 1981 a limited retrial on damages

resulted in a jury verdict of $9,567,000; judgment was entered

on that amount on December 4. Thirteen months later, on

January 17, 1983, defendant Kaiser’s motion for judgment not-

withstanding the verdict as to a portion of the damages award

was granted and the judgment was reduced by the district

court to $4,651,560. Nearly two years later, on December 27,

1984, the Third Circuit reversed and vacated the January 17,

1983 judgment and reinstated and affirmed the December 4,

1981 judgment of $9,567,000.

Thereafter, the district court held that post-judgment inter-

est per 28 U.S.C. §1961 ran from December 2, 1981, the date of

(Continued on following page)

15

Bonjorno also held that interest should not run from the

1979 judgment, the damages portion of which the district

court found was not supported by the evidence and

which was the subject of a new trial. Id.

As the Eighth Circuit recognized, Bonjorno has no

application to the instant case. Jenkins, App. B, Pet. App.

A-8 n.3. Bonjorno’s construction of §1961 to allow interest

from the date of the judgment rather than the date of the

jury verdict is, of course, inapposite to constitutional

litigation conducted without a jury and involving only

equitable relief. Bonjorno’s holding that interest should be

calculated from the December 4, 1981 judgment, rather

than the original 1979 judgment subsequently vacated by

the district court, is inapposite because the underlying

judgment in the instant case, the February 24, 1986 fees

judgment establishing entitlement to fees and ordering

immediate partial payment, was unaltered by subsequent

judicial proceedings or appeals.

The decisive consideration in Bonjorno was the plain

language of §1961, which mandated that “interest [be]

calculated from the date of entry of the judgment.” In

light of this statutory text, and in the absence of legisla-

tive history to the contrary, this Court held that interest

(Continued from previous page)

the damages verdict on which the correct judgment would

have been entered but for the district court’s erroneous partial

grant of judgment notwithstanding the verdict. The Third Cir-

cuit affirmed the district court’s determination that interest

should be calculated from December 2, 1981, but reversed the

district court’s interest determination to the extent it did not

utilize the amended version of §1961 effective October 1, 1982.

16

would accrue only upon entry of the damages judgment

even though policy considerations might favor the award

of interest from the earlier date of verdict. The statutory

text was dispositive. Bonjorno, 110 S. Ct. at 1576.

In the instant case the post-judgment interest issue

relates to attorneys’ fees rather than damages. Petitioners

disingenuously assert that “a holding that a party is

entitled to attorney’s fees is different from a judgment

requiring that the party be paid a specific amount of

fees.” Cert. Pet. at 8. The “holding” to which petitioners

allude is contained in the district court’s February 24,

1986 judgment establishing respondents’ entitlement to

fees and ordering partial payment. App. C, Pet. App.

A-14. Aware that their Bonjorno argument crumbles in the

face of this judgment, petitioners attempt to avoid

acknowledging it. The Eighth Circuit, fully appreciative

of Bonjorno’s judgment requirement, held that post-judg-

ment interest accrued from the February 24, 1986 judg-

ment.

Bonjorno said absolutely nothing about quantification

or liquidation of the amount of the judgment. Indeed,

petitioners’ liquidation argument has been uniformly

rejected in the context of post-judgment interest on dam-

ages judgments, the context in which Bonjorno was

decided. Error as to the dollar value of a damages judg-

ment is routinely held to be a matter of degree which, for

purposes of determining the commencement of interest

under §1961, does not undermine the basic integrity of

the judgment. E.g., Northern Natural Gas Co. v. Hegler, 818

17

F.2d 730 (10th Cir. 1987), cert. dismissed, Northern Natural

Gas Co. v. Mobil Oil Corp., 486 U.S. 1063 (1988).}?

In Perkins and Copper Liquor it was held that interest

ran from the date of the original fees judgment, even

though the fees awarded were reduced by the court of

appeals in Perkins and increased by the court of appeals

in Copper Liquor. The benchmark for post-judgment inter-

est on the fees award was the date of the judgment

establishing the plaintiffs’ entitlement to fees, and not the

date the final, corrected dollar amount was determined

on appeal. In the instant case, respondents’ February 1986

fees judgment was never appealed; post-judgment inter-

est necessarily commenced to accrue upon its entry.

¢

12 Were quantification or liquidation the key, as petitioners

contend, the verdict in Bonjorno would have been sufficient to

commence the accrual of interest under §1961. Indeed, after all

appeals, the final judgment reinstated and affirmed the origi-

nal jury verdict and judgment.

Bonjorno relied principally upon the Tenth Circuit decision

in FDIC v. Rocket Oil Co., 865 F.2d 1158 (10th Cir. 1989). 110 S.

Ct. at 1576. The Tenth Circuit held that while Northern Natural

Gas stated the generally applicable post-judgment interest

principles in cases where damages were reversed on appeal, it

was not applicable when the appeals court “completely

reversed the district court's determination of liability and sub-

stantive rights of the parties.” Rocket Oil, 865 F.2d at 1161.

18

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Russet. E. Lovett II*

4055 42nd Street

Des Moines, Iowa 50310

(515) 271-2073

ARTHUR A. BENSON II

BENSON & McKay

1125 Commerce Bank Bldg.

1000 Walnut Street :

Kansas City, Missouri 64106

(816) 842-7603

Jutius L. CHAMBERS

CHARLES STEPHEN RALSTON

NAACP Legal Defense and Educ.

Fund, Inc.

99 Hudson Street, 16th FI.

New York, New York 10013

(212) 219-1900

Counsel for Respondents

* Counsel of Record