                                                                                   F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                   JAN 8 1999
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                      Clerk
 JULIE L. ELLIS,

        Plaintiff-Appellant/
        Cross-Appellee,
 v.
                                                        Nos. 96-3343 and 96-3344
 UNIVERSITY OF KANSAS MEDICAL
 CENTER; UNIVERSITY OF KANSAS;
 KANSAS STATE BOARD OF
 REGENTS; RICK ROBARDS; DAVID
 LEWIN; ALICE P. HENDERSON, in
 those individuals’ official and individual
 capacity,

        Defendants-Appellees/
        Cross-Appellants.


                                          ORDER

Before BALDOCK, HOLLOWAY, and MURPHY, Circuit Judges.


       The court’s slip opinion filed on December 21, 1998, is corrected as follows. On page

7, line three, the statutory citations are corrected to read “42 U.S.C. §§ 1981, 1983, and

1985,”. On page 36, line 13, the claimed number of hours is corrected to “30”. Copies of

the corrected pages are attached to this order.

                                                  Entered for the Court
                                                  Patrick Fisher, Clerk of Court

                                                  By:    Keith Nelson
                                                         Deputy Clerk
                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         DEC 21 1998
                                       PUBLISH
                                                                     PATRICK FISHER
                      UNITED STATES COURT OF APPEALS                          Clerk

                                   TENTH CIRCUIT



 JULIE L. ELLIS,

       Plaintiff-Appellant/
       Cross-Appellee,
 v.
                                                     Nos. 96-3343 and 96-3344
 UNIVERSITY OF KANSAS MEDICAL
 CENTER; UNIVERSITY OF KANSAS;
 KANSAS STATE BOARD OF
 REGENTS; RICK ROBARDS; DAVID
 LEWIN; ALICE P. HENDERSON, in
 those individuals’ official and individual
 capacity,

       Defendants-Appellees/
       Cross-Appellants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                         (D.C. No. 95-CV-2376)


John B. Gage II, Overland Park, Kansas, for Plaintiff/Appellant/Cross-Appellee.

John C. McFadden, Special Assistant Attorney General, Kansas City, Kansas, for
Defendants/Appellees/Cross-Appellants.


Before BALDOCK, HOLLOWAY, and MURPHY, Circuit Judges.


HOLLOWAY, Circuit Judge.




                                                                            F I L E D
       Plaintiff/Appellant/Cross-Appellee Julie Ellis (Ellis) brought this suit on August 25,

1995, against defendants in the United States District Court for the District of Kansas

alleging violations of her rights under the First and Fourteenth Amendments and 42 U.S.C.

§§ 1981, 1983, 1985 and 1988. On about August 30, 1995, the parties entered into a

settlement agreement disposing of Ellis’s substantive claims. Ellis subsequently moved for

an award of attorney fees and costs, which defendants opposed. The district court granted

Ellis’s motion for fees and costs, but substantially reduced the amount of fees claimed.

Memorandum and Order, App. at 205-07. Ellis appeals the reduction in fees and defendants

appeal the district court’s ruling to award any fees or costs. We have jurisdiction pursuant

to 28 U.S.C. § 1291.

                                               I

                                               A

       Ellis, a white female, initially worked the day shift as a secretary in the Pharmacology

Department of the University of Kansas’ medical center. In January 1995, after obtaining

admission to nursing school, Ellis interviewed with defendant Alice Henderson (Henderson)

for a demotion to the position of night shift office assistant in patient admitting. App. at 10,

26, 47. Ellis advised Henderson that she was requesting the transfer and demotion in order

to permit Ellis to attend nursing school during the day and work at night. Henderson granted

the transfer and Ellis began working the night shift.

       The minor controversy that escalated into the present lawsuit occurred in June 1995


                                               2
when, on two occasions, Ellis advised her employer that she could not work due to illness.

Id. at 10, 47. Subsequent to her two occasions of illness, Ellis received a paycheck that did

not include two days’ worth of wages. Ellis inquired in writing as to why her pay was

reduced. She was informed by letter dated July 3, 1995, that the reduction was due to her

failure to meet the four-hour call-in policy, which requires employees to provide at least four

hours’ prior notice of not being able to report for work. Id. at 28. After failing to obtain

relief Ellis filed a formal grievance. Id. at 47-48.

       Ellis’s supervisor, Henderson, an African-American female, responded to Ellis’s

formal grievance with a series of memoranda dated July 17, 1995, (1) confirming the pay

reduction due to Ellis’s failure to properly report her intended absences, (2) admonishing

Ellis for unprofessional conduct during a July 13, 1995, meeting regarding her grievance, (3)

reducing Ellis’s pay by an additional 40 minutes for failure to be present at her station on July

13, 1995, following the meeting, and (4) recommending that Ellis be suspended for three

days without pay for repeated failures to report to work as scheduled. App. at 29-31.

Defendant Rick Robards (Robards), Director of the Department of Human Resources,

approved on July 26, 1995, Henderson’s recommendation to suspend Ellis. Because Ellis

had permanent status in the Kansas Civil Service system, Robards advised Ellis of her right

to further appeal the matter to the Kansas Civil Service Board. Id. at 33.

       Between July 17 and July 26, 1995, Ellis sought to dispute the claimed 40-minute

absence at a suspension hearing by producing records of patient accounts upon which she had


                                               3
recorded time entries. Id. at 48. Henderson then recommended to Robards on July 27, 1995,

that Ellis be terminated for gross misconduct for revealing confidential patient information.

Robards gave notice on July 28, 1995, to Ellis that he proposed her employment be

terminated. Id. at 34, 37.

       Ellis appealed her proposed termination to defendant David Lewin, the Appointing

Authority’s representative, asserting that the termination was in retaliation for Ellis’s

decision to exercise her rights under the Kansas Civil Service Act. Id. at 37, 49. On August

11, 1995, following Ellis’s appeal, Robards notified Ellis that the proposed dismissal would

be withdrawn and Ellis would be returned to her scheduled shift effective August 12, 1995.

       On that date, Ellis returned to work her scheduled night shift but was handed a

memorandum dated August 11, 1995, and authored by Henderson, advising Ellis that

effective August 14, 1995, Ellis would be scheduled to work the day shift between 8:00 a.m.

and 4:30 p.m. from Sunday through Thursday. Henderson reported in the memorandum that

Ellis was needed “to support staffing on day shift during the absence of an employee who

will be on medical leave.” App. at 39, 49. Ellis attempted to grieve the transfer, asserting

that defendants knew Ellis was due to begin her classes at nursing school on August 28,

1995. Id. at 49.

       Pursuant to University policy, Ellis met with Henderson to discuss the transfer

memorandum, inquiring why another night shift employee who had expressed an interest in

switching to the day shift was not transferred. Henderson told Ellis that the night supervisor


                                              4
did not want Ellis working the night shift.       Id.1 Because working the day shift would

preclude Ellis from attending her nursing classes,2 Ellis sought prompt action to return her

to the night shift.

       Believing that she might be the victim of racial discrimination and retaliation for

exercising her legal rights, Ellis sought the advice of counsel on August 1, 1995, and retained

John Gage on August 21, 1995,3 when it became apparent to her that defendants would not

consent to transfer her back to the night shift. Ellis gave Gage a $500 retainer and agreed to

pay a fee of $150 per hour. Id. at 126.

       On August 22, 1995, Ellis signed charges of race discrimination and retaliation, which

Gage transmitted to the Kansas Human Rights Commission the following day. Id. at 126-27.

Gage contacted Lewin by telephone on August 22 and 23, advising him that Henderson had

effectively undermined the decision not to terminate and constructively discharged Ellis by

transferring Ellis back to the day shift, knowing that Ellis would not be able to work due to

her nursing school class schedule. Id. at 127. Gage expressed Ellis’s position that


       Ellis was later informed that the transfer was implemented in order to monitor Ellis’s
       1

attendance problem. Id. at 50.
       2
        If Ellis missed her scheduled classes, she could be disqualified for one year from
attending nursing school. Thus the transfer to the day shift could severely impact her pursuit
of a degree in nursing. Id. at 40-44, 50-53.
       3
        The record indicates that prior to retaining Gage, Ellis had contacted Judy Simon, an
attorney, beginning August 1, 1995, to discuss her problems with defendants. Simon referred
Ellis to Gage, who initially consulted with Ellis on August 1, 1995. App. at 131. As
discussed more fully below, Ellis sought to recover fees for services provided by Simon in
connection with the referral to Gage. Id.

                                              5
Henderson’s action was motivated by race discrimination and retaliation for Ellis having

exercised her right to grieve unfavorable decisions by defendants. Id.

       Lewin advised Gage on August 23 that neither he nor Robards would interfere with

Henderson’s decision to transfer Ellis to the day shift and that Ellis’s only available recourse

was to file a complaint with the Civil Service Board, the Kansas Human Rights Commission,

or the courts. Id.

                                                B

       Gage filed the instant suit on Ellis’s behalf on August 25, 1995, against the

University’s medical center and several employees of the center in their individual and

official capacities under the First and Fourteenth Amendments and 42 U.S.C. §§ 1981, 1983,

1985 and 1988. Id. at 8-9. That day Gage also filed a motion for a temporary restraining

order (TRO) as well as a motion for a preliminary injunction, seeking to enjoin defendants

from carrying out the decision to transfer Ellis to the day shift.        Id. at 40. The judge

scheduled a hearing for August 28, the same day Ellis was scheduled to begin classes. At the

hearing the judge denied the TRO but scheduled a preliminary injunction hearing for

September 20, 1995, noting that he might change his ruling and order Ellis restored to the

night shift. Id. at 101-104.

       On August 30, 1995, defendants’ counsel forwarded a letter to Gage offering to allow

Ellis to return to the night shift in order to permit her to attend nursing school during the day;

this was expressly contingent on no further attendance problems occurring. Id. at 108. In


                                                6
return defendants demanded by letter that Ellis dismiss “the underlying lawsuit which seeks

relief pursuant to 42 U.S.C. §§ 1981, 1983, and 1985,” withdraw her application for a

preliminary injunction, and withdraw her charge of racial discrimination filed with the

Kansas Human Rights Commission. Id. at 108, 127-28.

       An affidavit of Gage states that he phoned Ellis and told her that, in his opinion, such

a settlement offer that failed to address costs or attorneys’ fees would not affect her right to

claim fees and expenses as a prevailing party pursuant to 42 U.S.C. § 1988. App. at 127-28.

Pursuant to Ellis’s instruction, Gage transmitted on August 30, 1995, a notice of acceptance

on the terms stated in the offer to defense counsel.    Id. at 109, 128. Ellis further advised

defendants in this transmittal that she would return to the night shift on September 10, 1995.

Id. at 108-09. Nothing in this correspondence made any mention of fees or costs.

       Ellis then moved to withdraw her motion for a preliminary injunction on

September 13, 1995, which request the district court granted on September 20. App. at 3.

Although the parties agreed to settle the matter at the end of August 1995, a settlement

agreement and release of claims was not signed by Robards on behalf of defendants until

January 26, 1996. Ellis did not sign the agreement until February 27, 1996. The signed

six-page “Settlement Agreement and Release of Claim” made no mention of fees or costs.

Id. at 159-64.4 Gage forwarded the settlement agreement along with the stipulation for


       4
        The document is captioned “Settlement Agreement and Release of Claim.” We note
that the first paragraph of the document reads:


                                               7
dismissal to defense counsel. The stipulation was not filed until May 9, 1996. On

February 28, 1996, Gage participated in a scheduling conference by telephone with

Magistrate Judge Rushfelt; Gage was the only counsel on the phone. Gage advised the judge

that the case had been settled except for Ellis’s claim for attorney fees under 42 U.S.C.

§ 1988. See Report and Recommendation of Magistrate Judge Rushfelt at 1, Supp. App. at

1.5

       While the parties had agreed to the settlement outlined above, five days after the suit


              This Settlement Agreement and Release of Claims (hereinafter referred
       to as ‘Agreement,’ made and entered into this 27th day of February, 1996, by
       the undersigned: . . .”

We add the emphasis under the “s” on “Claims.” Later in the document in the recitations of
agreements made, it is stated:

              It is further agreed that in the event any part of this Settlement
       Agreement and Complete Release of All Claims shall be declared invalid, it
       shall not affect the validity of any terms or provisions of this Settlement
       Agreement and Complete Release of All Claims.

App. at 162 (emphasis added).

The concluding paragraph of the settlement instrument states:

              IN WITNESS WHEREOF, the parties hereto have executed this
       Settlement Agreement and Complete Release of All Claims on the date first
       written above.

App. at 163 (emphasis added).
       5
        On this court’s own motion, a supplement to the record has been obtained consisting
of this Report and Recommendation. Fed. R. App. P. 10(e). In part this instrument states:
“Counsel for plaintiff orally reported that this case has been settled, except for an issue of
attorneys’ fees as authorized by 42 U.S.C. sec. 1988.”

                                              8
was filed, Ellis nevertheless moved to have default judgments entered against defendants on

March 1, 1996.6 Defendants filed a motion to dismiss on April 24 and a motion to set aside

default on April 26.7 Id. at 4-5. On May 9, the same day a stipulation for dismissal was filed,

Ellis filed a brief opposing defendants’ motion to dismiss. Id. at 5.

       As noted in the civil docket below, Ellis also filed on May 9, 1996, her motion for

attorney fees and costs. App. at 4-5. The motion itself is not included in the record. In a

letter to defense counsel dated May 16, 1996, authored by Gage, Gage advised defendants

that the “final tally of attorneys’ fees I am requesting in settlement of plaintiff’s claim as a

‘prevailing party’ under 42 U.S.C. § 1988 is $13,097.50. Costs amount to $334.16.” App.

at 220. Defendants responded by a letter dated May 28 declining to pay the claimed fees and

costs and labeling any such claim “absurd.” Id. at 222-24. Defendants took the position that

the settlement agreement and release disposed of any potential claim for fees. Id. at 222.

Defendants also responded on May 16, 1996, to the motion for fees by forwarding to Ellis,

but not filing with the court, suggestions in opposition to the fee motion. Id. at 110-18.

       On July 4, 1996, Ellis filed a lengthy memorandum in support of her request for fees




       6
         Notwithstanding the fact that the parties agreed to settle their dispute immediately
following the filing of this action, Ellis continued to maintain on appeal that defendants were
in default since September 1995, apparently because defendants did not file an answer to
Ellis’s complaint. Brief of Appellant at 16.
       7
        The record does not indicate the district court ever ruled on these motions, apparently
finding them moot. See Brief of Appellees at 6-7.

                                               9
and costs, which is also not included in the record.8 Defendants claim that after they declined

to pay Ellis’s initial demand of $13,097.50 for fees and $334.16 in costs, Ellis filed her

memorandum in which she increased the amount of fees claimed to $21,662.50.9 Defendants

filed their opposition to Ellis’s motion for fees and costs on July 18, 1996.

       The district court entered an order on September 17, 1996, holding Ellis was entitled

to attorney fees and costs, but finding the claimed amount of fees to be excessive and

unreasonable. The court awarded Ellis $3,000 in fees and $499.37 in costs. Memorandum

and Order at 14, App. at 207. The amount awarded in costs is equal to the full amount

claimed by Ellis. Id. at 147. Judgment was entered that day.

       On appeal, Ellis complains of the district court’s denial of her motion for an extension

of time in which to file a reply to defendants’ opposition to Ellis’s requested fees and costs.

She also makes several claims of error with regard to the district court’s reduction of her

claimed fees. Defendants cross-appeal, asserting the district court erred in awarding any

amount of fees and costs to Ellis.

                                              II

                                              A


       8
        The district court noted that this memorandum was 65 pages in length, with six
attached exhibits. The court stated that it considered “the 65-page memorandum alone to be
sufficient evidence that the requested fees are excessive.” App. at 204-05.
       9
        Although the memorandum in support of fees is not included in the record, Ellis’s
attorney’s billing record dated July 3, 1996, reveals a total charge of $21,662.50 for
professional services rendered. App. at 131, 146.

                                              10
                                Ellis’s Motion for Extension

       We first examine whether the district court erred in denying Ellis an extension of time

in which to file a reply to defendants’ opposition to her fee motion. Rule 6(b)(1) of the

Federal Rules of Civil Procedure provides that the district court “for cause shown may at any

time in its discretion” extend the time for filing a pleading. We “review the denial of a

motion for extension of time made under [Rule 6(b)(1)] for abuse of discretion.” Buchanan

v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995).

       Ellis claims that the denial of the extension worked a manifest injustice which denied

her due process of law. We disagree. First, the district court did not preclude Ellis from

filing a reply to defendants’ opposition; it merely enforced its rules governing the timing of

submissions and denied any enlargement. Second, we are unable to determine from the

record whether there is any merit to Ellis’s contention that she was unable to respond to new

issues raised by defendants in their opposition to fees. Last, the record reveals that the trial

judge granted Ellis at least four extensions to file her memorandum in support of fees. We

hold that the judge did not abuse his discretion in denying Ellis the requested extension.

                                               B

                        The Claim for Attorneys’ Fees and Costs

       Ellis also argues on appeal that the district court erred in reducing the fees she

claimed. On cross-appeal, defendants argue that the district court erred in awarding any fees

or costs. “We review the district court’s award of attorney’s fees for clear abuse of


                                              11
discretion,” but we review de novo the district court’s “statutory interpretation or legal

analysis that formed the basis of the award.” Malloy v. Monahan , 73 F.3d 1012, 1017

(10th Cir. 1996). Moreover, “because the district court’s ultimate determination as to the

reasonableness of the fees awarded is a factual question, it [is] reviewed under a clearly

erroneous standard.” Beard v. Teska, 31 F.3d 942, 955 (10th Cir. 1994). In fashioning an

appropriate fee award, we have cautioned the district courts to “provide a concise but clear

explanation of [their] reasons for the fee award.” Malloy, 73 F.3d at 1017 (citing Hensley

v. Eckerhart, 461 U.S. 424, 437 (1983)).

                                              1.

                                Ellis’s Entitlement to Fees

       42 U.S.C. § 1988 provides that a court, in its discretion, may award a “reasonable

attorney’s fee” to the “prevailing party” in a 42 U.S.C. § 1983 action. 42 U.S.C. § 1988(b);

see also Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1247

(10th Cir. 1998)(“As the attorneys of prevailing plaintiffs in a civil rights action, the

appellants were entitled to an award of attorney’s fees, expenses, and costs associated with

the prosecution of the case. See 42 U.S.C. § 1988; 28 U.S.C. § 1920.”). Claiming that she

was the “prevailing party” in settling her civil rights action against defendants, pursuant to

42 U.S.C. § 1988 Ellis filed her application for fees, along with her stipulation for dismissal

with prejudice, on May 9, 1996.

       Defendants opposed the fee application on numerous grounds: (1) Ellis is not a


                                              12
“prevailing party” within the meaning of 42 U.S.C. § 1988; (2) even if Ellis is a prevailing

party, she surrendered her right to pursue attorney’s fees by entering into a valid, complete

settlement agreement with defendants; and (3) the district court erred in awarding any fees

once it determined that Ellis’s fee request was excessive and unreasonable. We take each

argument in turn.

                                              a.

                                 “Prevailing Party” Status

       The district court rejected defendants’ contention that Ellis is not a “prevailing party”

entitled to fees under section 1988. A party may prevail within the meaning of the section

either by obtaining an enforceable judgment or comparable relief through a consent decree

or settlement. Farrar v. Hobby, 506 U.S. 103, 111 (1992). When a settlement agreement

represents the termination of the case, a party may prevail for § 1988 purposes only if the

agreement “materially alters the legal relationship between the parties.” Texas St. Teachers

Ass’n v. Garland Ind. Sch. Dist., 489 U.S. 782, 792-93 (1989).

       The district court correctly used this circuit’s two-prong “catalyst test” to determine

whether a party prevails for purposes of § 1988 when it enters into a settlement agreement.10


       10
           Ellis argues that the catalyst analysis used by the district court was unnecessary.
Under Farrar she claims she is the prevailing party because she succeeded on a “significant
issue . . . which achieves some of the benefit [she] sought in bringing the suit.” Farrar, 506
U.S. at 109. However, we have “continued to speak in catalyst terms post-     Farrar,” and have
rejected the interpretation advanced by Ellis that Farrar rendered the “‘catalyst’ theory
nonviable as a basis for awarding fees” in a case such as this. Beard, 31 F.3d at 951;
see also Kansas Health Care Assoc. Inc. v. Kansas Dept. of Social & Rehabilitation Servs.,

                                              13
Foremaster v. City of St. George, 882 F.2d 1485, 1488 (10th Cir. 1989). The “catalyst test”

requires the party claiming “prevailing party” status to show: (1) the legal action is causally

linked to securing the relief obtained; and (2) the defendant’s conduct in response to the

action was required by law rather than a gratuitous response to a frivolous or groundless

action. Id.; Beard, 31 F.3d at 952. Using the catalyst test, the district court concluded that

Ellis was the prevailing party because defendants returned Ellis to the night shift in response

to her lawsuit, defendants’ response was not gratuitous, and the settlement agreement

“materially altered the legal relationship between the parties . . . .” App. at 200.

       We begin consideration of the “catalyst test” by examining the first prong. Because

this inquiry is factual in nature we review the determinations for clear error. Beard, 31 F.3d

at 952. The district court found “that defendants’ decision to return plaintiff to the night shift

was the direct result of plaintiff filing this lawsuit.” App. at 198. We hold the district court

did not clearly err in finding that Ellis has satisfied the first prong of the “catalyst test.”

       The second prong requires more scrutiny. Defendants assert that Ellis cannot satisfy

the second prong because their response was merely gratuitous and motivated by a desire to

avoid the nuisance of defending a lawsuit and an investigation by the EEOC and the Kansas

Human Rights Commission. Defendants further contend that their action restoring Ellis to

the night shift was not “legally required” because the defendants enjoy Eleventh Amendment




31 F.3d 1052, 1053 (10th Cir. 1994). Thus we conclude the district court correctly employed
the two-prong “catalyst test.”

                                               14
immunity from Ellis’s suit.

                                               (i)

                                 The Eleventh Amendment

       We first address defendants’ contention that Ellis cannot satisfy this second prong of

the catalyst test because, as entities of the State of Kansas, their action in restoring Ellis to

the night shift was not subject to being ordered in the federal court action due to Eleventh

Amendment immunity.

       In discussing whether the defendants’ conduct in settling plaintiff’s claims was

required by law, the district judge here understandably relied on Ramirez v. Oklahoma Dept.

of Mental Health, 41 F.3d 584, 589 (10th Cir. 1994), and its broad statement of the exception

to the bar of the Eleventh Amendment where injunctive relief would govern only future

action and remedy continuing violations of federal law. See Memorandum Opinion and

Order at 6-7; App. at 199-200. As explained later, that broad statement in
                                                                         Ramirez must now

be narrowed to conform to subsequent Supreme Court pronouncements, although our result

in the instant case conforms to the conclusion on the Eleventh Amendment issue reached by

the district judge here.

       The Eleventh Amendment provides: “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one

of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign

State.” U.S. Const. amend. XI. Though the text of the Amendment does not expressly so


                                               15
provide, the Supreme Court has interpreted the Amendment to apply to federal question suits

against a State brought in federal court by the State’s own citizens. See Idaho v. Coeur

d’Alene Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 2033 (1997); Hans v. Louisiana, 134

U.S. 1, 10 (1890); ANR Pipeline Co. v. LaFaver, 150 F.3d 1178, 1187 (10th Cir. 1998). The

Amendment is implicated here because the University and its medical center are arms of the

State of Kansas. K.S. 76-711; Brennan v. University of Kan., 451 F.2d 1287 (10th Cir.

1971).

         Two circumstances exist where a citizen may sue a State in federal court without

running afoul of the Eleventh Amendment. First, a federal court may hear such suits if the

State has expressly waived its Eleventh Amendment protection and consented to such suit

in the federal courts. The test for determining whether a State has waived its Eleventh

Amendment immunity “from federal-court jurisdiction is a stringent one” and in “the absence

of an unequivocal waiver specifically applicable to federal-court jurisdiction,” we will not

find that a State has waived its constitutional immunity. Atascadero St. Hosp. v. Scanlon,

473 U.S. 234, 241 (1985). Though Kansas has generally authorized suits against any state

educational institution brought in state court, K.S.A. § 76-713, Kansas has not expressly

consented to suit in federal court and we cannot imply a waiver of Eleventh Amendment

immunity into the statute. Brennan, 451 F.2d at 1289; see also Atascadero St. Hosp., 473

U.S. at 241 (“Although a state’s general waiver of immunity may subject it to suit in state

court, it is not enough to waive Eleventh Amendment immunity absent a clear intention to


                                            16
subject itself to suit in federal court.”); Edelman v. Jordan, 415 U.S. 651, 673 (1974)(a

waiver of Eleventh Amendment immunity will be found only when stated by the “most

expressive language” or by such “overwhelming implications” as will leave no room for

doubt); V-1 Oil Co. v. Utah St. Dept. of Pub. Safety, 131 F.3d 1415, 1421 (10th Cir. 1997);

Amisub (PSL), Inc. v. Colorado Dept. of Soc. Servs., 879 F.2d 789, 792 (10th Cir. 1989),

cert. denied, 496 U.S. 935 (1990).

       Moreover, the fact that the defendants here entered into a settlement agreement with

Ellis does not act as a waiver of the defendants’ constitutionally protected immunity because

the settlement agreement does not itself indicate, nor does the record otherwise reflect, an

unequivocal intent to waive the immunity by the agreement. See Johns v. Stewart, 57 F.3d

1544, 1554 (10th Cir. 1995)(because constructive consent is insufficient, state’s partial

settlement does not constitute a waiver of Eleventh Amendment immunity in absence of

unequivocal expression of a waiver); see also Saahir v. Estelle, 47 F.3d 758 (5th Cir.

1995)(state’s participation in settlement agreement not sufficient to waive its sovereign

immunity).11

       Second, a State may have its Eleventh Amendment immunity abrogated by Congress

if such abrogation was accomplished pursuant to a valid exercise of power by Congress. The

Court in Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), held that Congress may not



        Our conclusion here does not foreclose the possibility that a State may demonstrate
       11

an unequivocal intent to waive Eleventh Amendment immunity by participating in a
settlement.

                                             17
abrogate a State’s Eleventh Amendment immunity by an exercise of power under the Indian

Commerce Clause of Article I. Id. at 72-73 (“The Eleventh Amendment restricts the judicial

power under Article III, and Article I cannot be used to circumvent the constitutional

limitations placed upon federal jurisdiction.”). However, Seminole Tribe recognized that

Congress has the constitutionally permitted power to abrogate a State’s Eleventh Amendment

immunity in one circumstance -- when Congress acts pursuant to its enforcement power

under section 5 of the Fourteenth Amendment. Id. at 72 n.15 (Congress’ authority to

abrogate a State’s Eleventh Amendment immunity pursuant to section 5 of the Fourteenth

Amendment is undisputed); ANR Pipeline, 150 F.3d at 1188.

       In order to invoke the Fourteenth Amendment exception to the Eleventh

Amendment’s bar to federal court jurisdiction, Ellis must show that Congress, in clear and

unmistakable terms, intended to abrogate a State’s Eleventh Amendment immunity when it

enacted 42 U.S.C. §§ 1981, 1983 and 1985.12 Seminole Tribe, 517 U.S. at 55; ANR Pipeline,

150 F.3d at 1188; Aaron v. Kansas, 115 F.3d 813, 814 (10th Cir. 1997); Ramirez, 41 F.3d


       12
          We note that the Supreme Court has held that the Eleventh Amendment does not bar
an award for attorneys fees pursuant to 42 U.S.C. § 1988 because Congress specifically
enacted the statute pursuant to section 5 of the Fourteenth Amendment. Hutto v. Finney, 437
U.S. 678, 693-94 (1978); see also Weaver v. Clarke, 933 F. Supp. 831, 835 (D. Neb. 1996),
aff’d., 120 F.3d 852 (8th Cir. 1997), cert. denied, 118 S. Ct. 898 (1998). Here, a money
judgment to be entered after further determinations on remand, against the individual
defendants in their official capacities, will not run afoul of the Eleventh Amendment. But
the fact that immunity has been abrogated as to 42 U.S.C. § 1988 does not excuse us from
analyzing Eleventh Amendment issues with respect to the underlying civil rights claims in
order to determine prevailing party status to meet the demands of § 1988 for an award of fees
and costs.

                                             18
at 588 (“[A]bsent an unmistakable waiver by the state of its Eleventh Amendment immunity,

or an unmistakable abrogation of such immunity by Congress, the amendment provides

absolute immunity from suit in federal court for states and their agencies . . . .”). The

Supreme Court has previously held that Congress did not abrogate the States’ Eleventh

Amendment immunity when it enacted 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332,

345 (1979).13 Thus, because Kansas has not unmistakably waived its Eleventh Amendment

immunity, and Congress has not abrogated that immunity, the Eleventh Amendment bars

Ellis’s suit against Kansas and its state agencies in the federal courts.

       The bar to federal court jurisdiction with respect to Kansas and its agencies applies

both to claims for monetary and injunctive relief. V-1 Oil Co., 131 F.3d at 1420-21. We

recognize that we previously held that despite the Eleventh Amendment, a claim for

prospective injunctive relief to govern only future action may be maintained against a State

agency that is an arm of the State, to remedy continuing violations of federal law.           See

Ramirez, 41 F.3d at 589. However, in its Seminole Tribe opinion in 1996, the Court has

since instructed us that: “[t]he Eleventh Amendment does not exist solely in order to

‘preven[t] federal-court judgments that must be paid out of a State’s treasury,’ . . . it also

serves to avoid ‘the indignity of subjecting a State to the coercive process of judicial tribunals

at the instance of private parties.’” Seminole Tribe, 517 U.S. at 58 (internal quotations and


       13
         Of course Congress could abrogate a State’s Eleventh Amendment immunity with
respect to 42 U.S.C. §§ 1981, 1983 and 1985 because the statutes clearly fall within the
confines of the Fourteenth Amendment.

                                               19
citations omitted). Defendants argue that in light ofSeminole Tribe, it is “impermissible to

seek injunctive relief against a state agency or a public official on the basis of federal statutes

which clearly do not abrogate the state’s entitlement to Eleventh Amendment immunity.”

Brief of Cross-Appellants at 14.

       We believe the defendants’ interpretation of Seminole Tribe is too broad. While the

Eleventh Amendment bars federal court jurisdiction over a state agency for both money

damages and injunctive relief, or a state official acting in her official capacity in a suit for

damages, a suit for prospective injunctive relief against a state official acting in her official

or individual capacity may still be brought in federal court pursuant to the Ex parte Young

doctrine, subject to new limitations discussed in Seminole Tribe and noted below.

       Ex parte Young holds that federal jurisdiction exists “over a suit against a state

official when that suit seeks only prospective injunctive relief in order to ‘end a continuing

violation of federal law.’” Seminole Tribe, 517 U.S. at 73. The rationale for the doctrine’s

existence is rooted in the Supremacy Clause: “Both prospective and retrospective relief

implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort

awarded in Ex parte Young gives life to the Supremacy Clause.” Green v. Mansour, 474

U.S. 64, 68 (1974). The Supreme Court continues to recognize the validity of the Ex parte

Young doctrine, Couer d’Alene, 117 S. Ct. at 2034 (“We do not . . . question the continuing

validity of the Ex parte Young doctrine.”). Couer d’Alene, id. at 2038, noted that “where

prospective relief is sought against individual state officers in a federal forum based on a


                                                20
federal right, the Eleventh Amendment, in most cases, is not a bar.” However the Court has

recently recognized new limitations to the Ex parte Young doctrine which we must now

consider. See ANR Pipeline, 150 F.3d at 1189.

          First, the Supreme Court held in Seminole Tribe that a court should hesitate before

casting aside Eleventh Amendment limitations and permitting an action against a State

officer based on the Ex parte Young doctrine “where Congress has prescribed a detailed

remedial scheme for the enforcement against a State of a statutorily created right         . . . .”

Seminole Tribe, 517 U.S. at 74 (emphasis added); see ANR Pipeline, 150 F.3d at 1189. We

read from this pronouncement an “obligation for the federal courts to examine Congress’

stated intent with respect to the scope of statutory remedies that may be available in any case

where” an Ex parte Young issue is raised. ANR Pipeline, 150 F.3d at 1189.

          We need not reach the issue whether Congress prescribed in §§ 1983 and 1985 a

detailed remedial scheme barring application of Ex parte Young because Ellis’ claims with

respect to those remedial statutes arise under the Constitution.14 The Court inSeminole Tribe

stated:

          Where Congress has created a remedial scheme for the enforcement of a particular
          federal right, we have, in suits against federal officers, refused to supplement that
          scheme with one created by the judiciary. Schweiker v. Chilicky, 487 U.S. 412, 423,
          108 S. Ct. 2460, 2468, 101 L.Ed.2d 370 (1988) . . . Here, of course, the question is not
          whether a remedy should be created, but instead is whether the Eleventh Amendment



          As noted above, Ellis alleges in her complaint that the defendants deprived her of
          14

her equal protection and due process rights, secured by the Fourteenth Amendment, and her
right to free speech, secured by the First and Fourteenth Amendments. App. at 16-24.

                                                21
       bar should be lifted, as it was in Ex parte Young, in order to allow a suit against a
       state officer. Nevertheless, we think that the same general principle applies:
       therefore, where Congress has prescribed a detailed remedial scheme for the
       enforcement against a State of a statutorily created right, a court should hesitate
       before casting aside those limitations and permitting an action against an officer based
       upon Ex parte Young.

Seminole Tribe, 517 U.S. at 74 (emphasis added). Use of the phrase “statutorily created

right” indicates that the Court did not limit use of Ex parte Young as the means of enforcing

a constitutional right. Since §§ 1983 and 1985 did not create any substantive rights,      see

Albright v. Oliver, 510 U.S. 266, 271 (1994), and Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979), but merely enforce existing constitutional and federal statutory rights, we hold that

Seminole Tribe’s “detailed remedial scheme” analysis does not apply here.

       42 U.S.C. § 1981 does provide Ellis substantive rights. See Meade v. Merchants Fast

Motorline, Inc., 820 F.2d 1124, 1126 (10th Cir. 1987)(“§ 1981 provided a substantive right

against racial discrimination in employment . . . .”); see also Great American Fed. Sav. &

Loan Ass’n v. Novotny , 442 U.S. 366, 377 (1979)(“passage of Title VII did not work an

implied repeal of the substantive rights to contract conferred by the same 19th-century statute

and now codified at 42 U.S.C. § 1981.”); Napoleon v. Xerox Corp., 656 F. Supp. 1120, 1123

(D. Conn. 1987)(§ 1981, unlike § 1983 and § 1985(3), creates substantive rights, as well as

provide remedies.”). Thus we should consider whether § 1981 provides a “detailed remedial

scheme” before Ex parte Young may be used as a remedy for a violation of the rights

contained therein.

       From our examination of § 1981, we see nothing that indicates a “detailed remedial

                                              22
scheme” designed to limit or prevent potential remedies within the Seminole Tribe meaning.

To us, the language of the statute indicates an intent by Congress not to limit the remedies

available. Section 1981 provides in relevant part: “[a]ll persons within the jurisdiction of the

United States shall have the same right in every State and Territory to make and enforce

contracts, to sue . . . and to the full and equal benefit of all laws and proceedings for the

security of persons and property enjoyed by white citizens . . . .” There is nothing in § 1981

that shows Congress intended to limit or bar remedies generally available to an aggrieved

party. Our conclusion is bolstered by the Supreme Court’s decision in Johnson v. Railway

Express Agency, 421 U.S. 454, 460 (1975), where the Court stated: “[a]n individual who

establishes a cause of action under § 1981 is entitled to both equitable and legal relief,

including compensatory, and under certain circumstances, punitive damages.”

       Second, the Court recognized a further limitation on the use of Ex parte Young

recently in Idaho v. Couer d’Alene Tribe of Idaho, supra. The Court held that a federal court

cannot grant prospective injunctive relief under the Ex parte Young doctrine when that relief

“implicates special sovereignty interests” that results in an intrusion “functional[ly]

equivalent” to an award of money damages. Couer d’Alene, 117 S. Ct. at 2040.15 Our court

has noted that Couer d’Alene imposes a two-part inquiry to determine whether Ex parte

Young may be used: first, whether the relief being sought against a state official implicates


       15
         The issue in Couer d’Alene was whether a Native American tribe could bring suit
in federal court against state officials for prospective injunctive relief declaring the tribe the
owner of submerged lands. 117 S. Ct. at 2033.

                                               23
special sovereignty interests, ANR Pipeline, 150 F.3d at 1190; second, if the answer to the

first question is in the affirmative, we then ask whether the requested relief is the functional

equivalent “to a form of legal relief against the state that would otherwise be barred by the

Eleventh Amendment.” Id.

       We are not persuaded that the claims asserted here under 42 U.S.C. §§ 1981, 1983 or

1985 implicate “special sovereignty interests.” Buchwald v. University of New Mexico Sch.

of Med., – F.3d –, 1998 WL 730156 *9 n.6 (10th Cir. 1998)(party’s claims for injunctive

relief to enjoin State from prospective use of residency criteria in medical school admissions

does not implicate special sovereignty interests because “[t]here is certainly no threat that the

New Mexico government would cease to exist without UNMSM’s disputed policy.”). There

are no unusual or special interests of the State that are interfered with by granting Ellis

injunctive relief pursuant to §§ 1981, 1983 and 1985. In Couer d’Alene, special sovereignty

interests were implicated because granting the Native American tribe the prospective relief

it requested would in effect divest Idaho of sovereign control over its submerged lands. 117

S. Ct. at 2041. In ANR Pipeline, granting the prospective relief would rob the state of its

power to assess and levy personal property taxes on property within its borders.           ANR

Pipeline, 150 F.3d at 1193. We stated, “it is impossible to imagine that a state government

could continue to exist without the power to tax.” Id.

       In sum, we hold that the Ex parte Young doctrine may be invoked here for Ellis’s

claim for prospective injunctive relief against the defendant state officials acting in their


                                               24
official capacities.

                                             (ii)

              The Individual Defendants’ Actions Were Required By Law

       Having determined that the Eleventh Amendment does not bar federal court

jurisdiction with respect to prospective injunctive relief against the individual defendants,

we now consider a further question concerning the second prong of the catalyst test. We ask

whether the individual defendants’ actions in restoring Ellis to the night shift were required

by law or wholly gratuitous. Our focus is on whether the record reveals the individual

defendants’ “conduct was required by law, i.e., not a wholly gratuitous response to an action

that in itself was frivolous or groundless.” Beard, 31 F.3d at 952 (quoting J&J Anderson, Inc

v. Town of Erie , 767 F.2d 1469, 1475 (10th Cir. 1985)). In this respect, the settlement

agreement between Ellis and the defendants must have “materially [altered] the legal

relationship between the parties by modifying the [defendants’] behavior in a way that

directly benefits the plaintiff.” Farrar, 506 U.S. at 111-12.

       We agree with the district court that Ellis’s lawsuit seeking prospective injunctive

relief against the individual defendants was neither frivolous nor groundless and that the

settlement agreement materially altered the legal relationship between Ellis and the

individual defendants. Ellis had substantial allegations in her complaint that the individual

defendants violated federal law by transferring her to the day shift at a time when they knew

that she could not work such a shift due to her nursing class schedule. The trial judge


                                             25
appeared to be concerned that Ellis’s reassignment to the day shift amounted to a violation

of her federal rights. At the hearing on Ellis’s application for a TRO, the judge expressed

his desire to promptly hold a hearing on Ellis’s request for a preliminary injunction so that

if the injunction were granted requiring Ellis to be reinstated to the night shift, the harm to

Ellis would be minimal. App. at 102.

       Accordingly we hold that Ellis’s action against the individual defendants was not

frivolous or groundless and that the individual defendants’ action in restoring her to the night

shift was not wholly gratuitous.16 Thus, Ellis has satisfied the catalyst test with respect to the

remaining individual defendants.

                                                b

                                 The Settlement Agreement

       Defendants further argue on their cross-appeal that Ellis released them from any

liability for attorneys’ fees by executing a settlement and complete release of all claims.

According to the defendants, the term “all claims” includes Ellis’s request for attorneys’ fees

and expenses. We disagree and affirm the district court’s ruling on this issue.

       The district judge directly addressed the issue whether the settlement agreement

waived and released Ellis’s claim for attorneys’ fees. Memorandum and Order at 12-13. The


       16
         Although defendants cite other reasons for transferring Ellis back to the night shift,
including a “desire to give one of its employees a second chance,” Brief of Cross-Appellant
at 11, we have said previously that the “lawsuit need not have been the sole reason for
prompting” defendants to change their behavior as long as the suit was a “substantial factor
or a significant catalyst” in making the decision. Foremaster, 882 F.2d at 1488.

                                               26
order concluded as follows:

              Defendants also contend that plaintiff should not recover attorneys’ fees
       because the terms of the settlement agreement released defendants from that
       obligation. The settlement agreement provides that plaintiff ‘fully, finally and
       forever release, acquit and discharge defendants’ from ‘all liability, claims,
       actions, demands, suits or cause of action, which she has on account of the acts
       alleged in her civil complaint.’ Defendant asserts that the discharge from ‘all
       claims’ includes plaintiff’s request for attorneys’ fees and expenses. The court
       disagrees.

               A party may waive its statutory eligibility for attorneys’ fees as part of
       a settlement agreement. See Evans v. Jeff, 475 U.S. 717, 725 (1986) (waiver
       of § 1988 right to attorneys’ fees in a class action); Chicano Police Officer’s
       Ass’n v. Stover, 624 F.2d 127, 132 (10th Cir. 1980). Absent express language
       in the settlement agreement waiving the right to recover attorneys’ fees, the
       intent of the parties governs. Brown v. General Motors Corp., Chevrolet Div.,
       722 F.2d 1009, 1012 (10 th Cir. 1983).17 In this action, the settlement
       agreement is silent regarding plaintiff’s right to recover fees and expenses.
       Additionally, plaintiff’s request for attorneys’ fees does not constitute a new
       claim or cause of action against defendants because the recovery of fees and
       costs under § 1988 is not a separate action. Brown, 722 F.2d at 1012. The
       court concludes that plaintiff did not waive her right to pursue the recovery of
       her attorneys’ fees and expenses in this matter.

App. at 205-06.

       We feel that the district court properly applied the principles underlying 42 U.S.C.

§ 1988. The Supreme Court has held that a prevailing plaintiff in a civil rights action “should

ordinarily recover an attorney’s fee unless special circumstances would render an award

unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting Newman v. Piggie Park

Enter., Inc., 390 U.S. 400 (1968)). The presumption in favor of attorneys’ fees may be


       17
          This Memorandum and Order mistakenly cites Brown as a Tenth Circuit opinion;
it is a Second Circuit opinion.

                                              27
overcome in a variety of ways, including a waiver of attorneys’ fees by the prevailing

plaintiff. Evans v. Jeff D., 475 U.S. 717, 720 (1986)(district court has the power, in its sound

discretion, to refuse to award fees where settlement is conditioned upon waiver of attorneys’

fees).

         Here the settlement agreement is entirely silent on the issue of fees and costs. App.

at 159-163.18 Absent express language in the settlement agreement waiving the right to

recover attorneys’ fees, the intent of the parties governs. Brown v. General Motors Corp.,

Chevrolet Div., 722 F.2d 1009, 1012 (2d Cir. 1983).19 When the language of a settlement

agreement or release is inconclusive, as here, our examination must focus on whether such

fees were discussed and intended to be covered by the settlement.           See Chicano Police

Officer’s Assoc. v. Stover, 624 F.2d 127, 132 (10th Cir. 1980). In Chicano, we noted that

the usual American rule is that attorneys’ fees are not recoverable, citing Alyeska Pipeline

Serv. Co. v. Wilderness Society, 421 U.S. 240 (1975). We held, however, that Chicano

presented a different case:



          In the circumstances before us, the use of the terms “all liabilities” and “all claims”
         18

in the settlement agreement need not necessarily be held to include attorneys’ fees and costs.
See Parker v. Metropolitan Water Reclamation Dist. of Greater Chicago, 782 F. Supp. 387,
388 (N.D. Ill. 1992). We agree with the view expressed by the district judge in the instant
case, noted earlier, that the plaintiff here did not waive her right to pursue the recovery of her
attorneys’ fees and expenses. App. at 206.

        We are in agreement with the Ninth and Sixth Circuits that silence in a settlement
         19

agreement does not equal a waiver of a claim for attorneys’ fees. Muckleshoot Tribe v.
Puget Sound Power & Light Co. , 875 F.2d 695, 698 and n.5 (9th Cir. 1989); Jennings v.
Metropolitan Gov. of Nashville, 715 F.2d 1111, 1114 (6th Cir. 1983).

                                               28
         The instant case is different, however; there is a statutory provision for
         awarding fees, and the importance of awarding attorneys’ fees in making
         private enforcement of the Civil Rights Act possible has been consistently
         emphasized. Nevertheless, this is not one of those situations in which
         Congress has prohibited settlements covering payment of attorneys’ fees.
         Therefore, plaintiffs can give up their statutory entitlement to fees as part of
         the settlement arrangement.

                 The settlement agreement here is at best ambiguous; the $16,000
         payment could be construed as a settlement of all that is to be paid to plaintiffs
         and their attorneys. That is one of the questions to be determined on remand.
         The trial judge should conduct an evidentiary hearing on whether attorneys’
         fees were discussed and intended to be covered by the cash settlement. If not,
         the court should consider whether plaintiffs took actions to mislead defendant
         or otherwise were responsible for ‘special circumstances’ which would make
         an attorneys’ fees award in their favor inequitable under the Piggie Park
         standard. If there was no agreement and no such conduct by plaintiffs, the
         court, without setting aside the settlement, should award attorneys’ fees to
         plaintiffs, assuming it finds they prevailed under the standards above
         discussed, in order to carry out the congressional policy expressed in the Civil
         Rights Act.

Id. at 132 (emphasis in original).

         We noted above the conclusions here by the trial judge, namely the court’s rejection

of the defendants’ claim that the agreement discharged the request for attorneys’ fees and

expenses. App. at 205. The judge applied our Chicano ruling, noted above. Id. at 205-06.

And he held that here the settlement agreement is silent on recovery of fees and expenses;

that Ellis’s request for fees does not constitute a new claim because recovery of fees and

costs under § 1988 is not a separate action; and the judge concluded plaintiff did not waive

her right to pursue recovery of her attorneys’ fees and expenses here. App. at 206. We

agree.


                                                29
       Here, the record reveals that settlement negotiations consisted solely of written

communications containing no references to Ellis’s claim for attorneys’ fees and costs. App.

at 108-09. Ellis asserts in her brief that the parties never discussed the § 1988 claim at “any

time before or after execution of the Settlement Agreement and Release of Claim.” Brief of

Appellant at 14. Defendants do not contradict in their brief Ellis’s assertion when they are

discussing negotiations for the settlement agreement. Brief of Appellees at 2. The record

also indicates that Ellis’ counsel never revealed an intention to waive the fees, as evidenced

by Gage’s representation to the magistrate judge that all of Ellis’ claims had been settled

except for her claim for attorneys’ fees under 42 U.S.C. § 1988. Defendants, on the other

hand, vigorously argue that they would have never agreed to settle the case had the settlement

not released them of all liabilities, including attorneys’ fees and costs.

       Thus, we must decide who must bear the loss where a settlement agreement of civil

rights claims is silent on the issue of attorneys’ fees and costs and the parties claim

conflicting intentions. We believe that the “losing” party must shoulder the burden of

showing that the parties mutually intended a settlement agreement to include a release of a

§ 1988 claim.    See Muckleshoot Tribe, 875 F.2d at 698 (“Rather than adopting a rule

requiring plaintiffs to reserve the right to sue, we [the Ninth Circuit], along with the Third

Circuit, have made it clear that any party wishing to foreclose a suit for § 1988 fees must

negotiate a provision waiving attorney’s fees.”); El Club Del Barrio v. United Community

Corporations, 735 F.2d 98, 100 (3d Cir. 1984); cf. Valley Disposal, Inc. v. Central Vermont


                                              30
Solid Waste Management Dist., 71 F.3d 1053, 1058 (2d Cir. 1995) (Valley I). This rule best

furthers the policy behind § 1988, which not only allows a civil rights claimant to pursue

meritorious constitutional claims without having to pay an attorney out-of-pocket, but also

encourages “competent attorneys to prosecute those claims.”Valley Disposal, Inc. v. Central

Vermont Solid Waste Management Dist., 113 F.3d 357, 361 (2d Cir. 1997)(Valley II).20

Moreover, our result does not conflict with, but instead furthers, the presumption in favor of

awarding attorneys’ fees.

       Under this rubric, Ellis’s claim for attorneys’ fees and costs survives the settlement

agreement and release. As we hold above, defendants are not the prevailing party in this

action. Thus the burden rests with defendants to show the settlement agreement was intended

to release a claim for attorneys’ fees and costs. El Club Del Barrio, 735 F.2d at 101 (“the

best rule of law would be one that places the burden [of showing the parties’ intent on fees]

on the party losing the underlying litigation.”). Defendants had ample opportunity to


       20
          We note that some of our sister circuits have held that the prevailing party must
show that a settlement agreement and release specifically does not waive a section 1988
claim. See Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998); Elmore v. Shuler, 787 F.2d
601, 603 (D.C. Cir. 1986). We respectfully disagree with the view that the burden of
showing the disposition of a § 1988 claim lies with the prevailing party. Wray and Elmore
fail to consider the disruption of the policies behind § 1988 caused by their conclusions. See
Piggie Park, 390 U.S. at 401 (“If successful plaintiffs were routinely forced to bear their own
attorney’s fees, few aggrieved parties would be in a position to advance the public interest
by invoking the injunctive powers of the federal courts.”); Albemarle Paper Co. v. Moody,
422 U.S. 405, 415 (1975)(citing Piggie Park , the Court reasoned that the strong public
interest in having injunctive actions brought in order to remedy civil rights violations can
only be vindicated if successful plaintiffs, acting as “private attorneys general,” are awarded
attorneys’ fees in all but very unusual circumstances).

                                              31
condition the settlement on a waiver of attorneys’ fees. Moreover, they were on notice that

Ellis had asserted a claim for attorneys’ fees in her complaint. At oral argument of this

appeal, defense counsel conceded he missed the point, he was busy, and he could not imagine

fees being demanded.

       In sum, we are convinced that the judge correctly held that Ellis did not waive her

claim for attorneys’ fees and costs by the settlement agreement.

                                               2.

                               Reasonableness of Fee Award

       Having determined that Ellis is entitled to seek attorney’s fees from the individual

defendants, we turn now to Ellis’s claims of error regarding the district court’s calculation

of allowable hours and a reasonable rate. We also address defendants’ remaining claim that

since Ellis submitted an “outrageously” excessive fee request, the district court should have

summarily denied her motion.

       “[O]nce a party has established its entitlement to fees as a ‘prevailing party’ . . . ‘[i]t

remains for the district court to determine what fee is “reasonable.” The most useful starting

point for determining the amount of a reasonable fee is the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly rate.’” Beard, 31 F.3d at 955

(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “On both those issues of

reasonableness the burden of proof is on the fee applicant.” Id. (citing Hensley, 461 U.S.

at 437). Moreover, “the district court need not identify and justify every hour allowed or


                                               32
disallowed, as doing so would run counter to the Supreme Court’s warning that a ‘request

for attorney’s fees should not result in a second major litigation.’” Malloy, 73 F.3d at 1018

(quoting Hensley, 461 U.S. at 437).

                                               a

                                      Allowable Hours

       Because not all hours expended in litigation are normally billed to a client, “an

applicant should exercise ‘billing judgment’ with respect to a claim of the number of hours

worked.” Malloy, 73 F.3d at 1018 (citing Hensley, 461 U.S. at 437). Hence, “‘[c]ounsel for

the prevailing party should make a good-faith effort to exclude from a fee request hours that

are excessive, redundant, or otherwise unnecessary’ . . . [and the] district court has a

corresponding obligation to exclude hours not ‘reasonably expended’ from the calculation.”

Id.

       The district court first rejected defendants’ invitation to summarily deny Ellis’s motion

for fees in its entirety due to the excessive nature of the request. While the judge agreed that

the time submitted was excessive, he did not agree that Ellis’s fee request should be denied

in its entirety. App. at 201. Given the recognized importance of awarding fees to encourage

individuals to vindicate their civil rights, as well as our determination that Ellis is otherwise

entitled to such fees, we hold that the judge did not abuse his discretion in denying

defendants’ request for a blanket rejection of the fee request.

       Further, although Ellis makes several claims of error with respect to the district


                                               33
judge’s determination of reasonable hours expended, we do not find that the judge abused

his discretion or clearly erred in fixing the total number of allowable hours at 30. With

respect to the number of hours reasonably expended to settle this matter, as detailed more

fully above, the parties agreed to the settlement almost immediately after this action was

filed. Ellis’s counsel became involved in this controversy on August 1, 1995, made some

attempts to settle the dispute informally, and then filed this action on August 25, 1995. App.

at 131-33. Within days of commencing this action, Ellis agreed to a settlement on August 30.

As the judge below noted, “[n]otwithstanding this relatively quick and uncomplicated

resolution to the parties’ dispute, plaintiff did not file her stipulation for dismissal of all

claims until May 9, 1996.” App. at 202-03. This prolonged delay was motivated by Ellis’s

desire to preclude any transfer back to the day shift during the school year. Brief of

Appellant at 14-15 (“In order to preclude any transfer back to days during the school year,

plaintiff’s counsel purposefully delayed closing the settlement and dismissing plaintiff’s suit,

as well as asserting her claim for attorney’s fees, until after the spring semester was over at

William Jewell College.”).

       If it had not been for Ellis’s desire to delay filing her stipulation for dismissal for

almost nine months, thereby causing her attorney to devote more hours to this case, the

dismissal could have reasonably been filed, along with the motion for fees, in the early part

of September 1995 at the latest. Hence, virtually all hours expended by Ellis’s counsel on

this case between the settlement date of August 30, 1995, and the filing of the stipulation for


                                              34
dismissal on May 9, 1996, were unreasonably expended. The judge below found that many

of the hours expended by Ellis’s counsel in settling this case were “unnecessary and

excessive,” and the judge concluded that “twenty hours is a closer approximation of the time

reasonably required to settle plaintiff’s claims.” App. at 204. We find this conclusion

well-supported and not clearly erroneous.

       The district judge similarly found unreasonable the number of hours that Ellis’s

counsel expended in handling the motion for fees. The judge pointed to Ellis’s 65-page

memorandum in support of her motion for fees, which was accompanied by six

“voluminous” exhibits. App. at 204-05. The judge considered this “65-page memorandum

alone to be sufficient evidence that the requested fees are excessive.” Id. The judge then

concluded that “ten hours represents the appropriate number of hours to expend preparing

the request for fees in this action.” Id. Given the overall nature of this action, as well as its

prompt resolution through settlement, we believe the district court was justified in reducing

the number of hours.

       Accordingly, we hold that the trial judge’s findings as to reasonableness are not

clearly erroneous and that his reduction in Ellis’s claimed number of hours to 30 was not an

abuse of its discretion.

                                               b

                                         Hourly Rate

       After determining the number of hours reasonably expended, a reasonable hourly rate


                                               35
must be determined. “A reasonable rate is the prevailing market rate in the relevant

community.” Malloy, 73 F.3d at 1018 (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)).

The relevant market value is not necessarily the price which a party’s lawyer charged to

prosecute the case, but, rather, the market value is “the price that is customarily paid in the

community for services like those involved in the case at hand.” Beard, 31 F.3d at 956.

Thus, Ellis bore the burden of showing that the “requested rates are in line with those

prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation.” Malloy, 73 F.3d at 1018 (quoting Blum, 465 U.S. at 895 n.11).

       The relevant community is Kansas City, Kansas. App. at 1. And, although Ellis’s

attorney’s billing rate is relevant, it is not conclusive. Ramos v. Lamm, 713 F.2d 546, 555

(10th Cir. 1983). The district court is also authorized to consider the quality of Ellis’s

counsel’s performance in the case when placing a value on his services. Ramos, 713 F.2d

at 555. However, as we have recently held, a district court abuses its discretion “when it

ignores the parties’ market evidence and sets an attorney’s hourly rate using the rates it

consistently grant[s].” Case, 157 F.3d at 1255 (internal quotations omitted).

       In her motion for fees, Ellis requested an hourly rate of $150. The judge held that in

“light of the authority, the affidavits, and the court’s own familiarity with the relevant rates

in the community, the court awards plaintiff’s counsel $100.00 an hour . . . .” App. at 207.

Ellis complains that the district judge improperly and arbitrarily reduced the requested rate

and erred by ignoring undisputed evidence tending to show that the prevailing market rate


                                              36
for services rendered in a case such as the instant one is between $150 and $235 an hour.

       In his affidavit Ellis’s counsel, John Gage, states that he has been in practice since

1979 and his customary hourly rate is $165. He says, however, that he is charging Ellis his

former hourly rate of $150. App. at 119, 123. Ellis also presented evidence from three civil

rights attorneys practicing in the Kansas City area: Arthur Benson stated by declaration that

he was admitted to the Missouri bar in 1969 and his customary hourly rate is $235, App. at

166-67; Nick Badgerow stated by affidavit that he has practiced law in Kansas City since

1976 and his firm bills his time at $190 an hour, id. at 171, 178; and David Hauber stated by

affidavit that he has practiced law in Kansas City since 1983 and his firm bills $150 an hour

for work similar to that done in this case. Id. at 186, 189. Each of these attorneys further

represented that an hourly rate of $150 is both reasonable and below the market rate for

similar work.

       We have recently observed that “[t]he first step in setting a rate of compensation for

the hours reasonably expended is to determine what lawyers of comparable skill and

experience practicing in the area in which the litigation occurs would charge for their time.”

Case v. Unified School Dist., 157 F.3d at 1256 (quoting Ramos, 713 F.2d at 555).21

Moreover, there is no indication that defendants made any attempt to dispute these rates or

contradict them by submitting their own evidence as to the prevailing market rate.


       21
         While the district judge needs evidence in order to determine the prevailing market
rate, we stated in Ramos that “the practice of presenting experts to testify to the total fee that
should be awarded in a given case is not very helpful.” Ramos, 713 F.2d at 555 n.6.

                                               37
       We believe our recent decision in Case controls the resolution of this issue. In Case,

the parties presented sworn affidavits that the market commanded an attorney’s hourly rates

at a certain level. Id. at 1256. The district court ignored the evidence of the market rate and

applied a rate it consistently granted in civil rights actions. Id. We reversed, holding that the

district court abused its discretion in departing from the competent evidence of the market

rate. Id. “The object in awarding a reasonable attorney’s fee . . . is to simulate the market

where a direct market determination is infeasible.” Id. (quoting Steinlauf v. Continental Ill.

Corp., (In re Continental Ill. Sec. Litig.), 962 F.2d 566, 572 (7th Cir. 1992)). Under Case,

the district court must “award rates compatible with competent, trustworthy evidence of the

market.” Case, 157 F.3d at 1256. Only if the district court “does not have before it adequate

evidence of prevailing market rates may the court, in its discretion, use other relevant factors,

including its own knowledge, to establish the rate.” Id. at 1257; see also Lucero v. City of

Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987).

       We hold the district court abused its discretion in awarding a rate of $100 here. First,

the court made only a conclusory explanation therefor that such a rate is reasonable in light

of the judge’s own familiarity with the market rates in the community, the authorities, and

the affidavits. Second, the judge makes no mention of the evidence submitted by Ellis

indicating a market rate between $150 and $235. Finally, this evidence was not disputed or

otherwise contested by defendants below. While it is true that a district court is “uniquely

qualified” to determine the reasonable hourly rate, and “we give great deference to its factual


                                               38
findings,” Malloy, 73 F.3d at 1019, without a more detailed statement explaining the reasons

for its findings the appearance is given that the judge arbitrarily determined the reasonable

rate.

        Further, a review of recent decisions from the Kansas district courts reveals that the

district judge’s hourly rate determination in this case is comparatively low. See Baty v.

Willamette Indus., Inc., 985 F. Supp. 1002, 1005 (D. Kan. 1997) (the “court concedes that

the $135 rate that the court has applied since 1995 is now too low,” and an hourly rate of

$145 is reasonable in the Kansas City area); T.Y. by Petty v. Board of County

Commissioners of the County of Shawnee, 912 F. Supp. 1416, 1423 (D. Kan. 1995) (hourly

rate of $125 is generally reasonable for Topeka civil rights attorneys); Brown v. Unified Sch.

Dist. No. 501, Shawnee County, Kan., 878 F. Supp. 1430, 1436 (D. Kan. 1995) (same); Franz

v. Lytle, 854 F. Supp. 753, 756 (D. Kan. 1994) (hourly rate of $125 reasonable for Wichita

area); Campbell v. Kansas St. Univ., 804 F. Supp. 1393, 1397 (D. Kan. 1992) (hourly rates

of $112 and $135 reasonable for civil rights attorneys). We are therefore left with the

compelling inference that the finding of $100 as a reasonable rate is arbitrary.

        Accordingly, we hold that the judge abused his discretion in reducing Ellis’s requested

fees from $150 to $100 an hour, and therefore remand for reconsideration on this issue. See

Malloy, 73 F.3d at 1017 (citing Hensley, 461 U.S. at 437) (district court should provide a

clear, concise explanation of its reasons for the fee award).




                                              39
                                            III

                                       Conclusion

       The district court’s rulings with respect to Ellis’s motion for extension, Ellis’s

entitlement to fees, and the number of allowable hours are AFFIRMED. We REMAND

with instructions to dismiss the state agencies as defendants and for reconsideration of the

reasonable hourly rate for fees and entry of a new judgment for attorneys’ fees and costs

based thereon. See n.12, supra.




                                            40
Nos. 96-3343, 96-3344, Ellis v. University of Kansas Medical Center

BALDOCK, Circuit Judge, concurring.

       While I concur, I write separately to express my views on the effect of the settlement

agreement upon Plaintiff’s claim for attorneys’ fees. An ounce of prevention is worth a

pound of cure. A comprehensive settlement agreement explicitly addressing the issue of

attorneys’ fees would have prevented this appeal.         Nevertheless, where the settlement

agreement is silent as to attorneys’ fees, I agree that the intent of the parties governs. I can,

however, foresee circumstances in which a general release in a settlement agreement may be

so sweeping as to establish that the parties intended to resolve all claims, including attorney’s

fees. See Muckleshoot Tribe v. Puget Sound Power & Light, 875 F.2d 695, 698 (9th Cir.

1989) (“[i]f the decree contains an explicit reference to fees or the breadth of the release is

so ‘sweeping’ that it necessarily includes attorneys’ fees, a waiver may be found”) (internal

citations omitted); see also Elmore v. Shuler, 787 F.2d 601, 602 (D.C. Cir. 1986) (“[i]n view

of the sweep of the release, we hold that it was incumbent on plaintiffs . . . explicitly to

reserve the issue of attorneys’ fees in order to remove that matter” from the settlement

agreement).

       This is not such a case, however. Although the settlement agreement in this case is

certainly broad enough to resolve the issue, the surrounding circumstances compel the

conclusion that the parties did not intend to resolve the attorneys’ fees claim. Namely, the

record shows that the settlement negotiations contained no reference to attorneys’ fees, and

Plaintiff’s counsel represented to the magistrate judge that all claims, except for attorneys’
fees, had been resolved. Without these accompanying facts, the release itself would be

sufficient to waive attorneys’ fees.




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