The Joshua intervenors have petitioned this Court for an award of attorneys' fees in the amount of $36,458.00 and for a fifty percent enhancement of that amount because of the contingent nature of their counsels' representation. The movants also request reimbursement of out-of-pocket expenses in the amount of $37.75. The Joshua intervenors are prevailing parties, and we are satisfied from the records and affidavits submitted that the hourly rates and number of billable hours are reasonable and accurately reflect the time spent preparing for the underlying appeals. Accordingly, we grant the request for $36,458.00 in fees and $37.75 in costs. However, we find no special circumstances which justify a fee enhancement, and deny the request for a fifty percent enhancement.

The State of Arkansas, Pulaski County School District, Little Rock School District and North Little Rock School District shall pay the Joshua intervenors the fees and costs award in the following percentages:

State of Arkansas                  40%
Pulaski County School District     30%
Little Rock School District        15%
North Little Rock School District  15%

ARNOLD, Circuit Judge, concurring in part and dissenting in part.

I agree with the Court that fees should be awarded in the amount of $36,458.00, and that no contingency enhancement should be allowed.

I believe, however, that a somewhat different allocation of the liability for fees among the parties should be adopted. A good deal of the fee request, something in the neighborhood of $17,000.00, is attributable to time expended in connection with the intervenors' successful appeal from the district court's order denying their motion for leave to intervene. Only the Little Rock School District (LRSD) opposed the intervention in this Court. I believe, therefore, that this portion of the fees and costs should be charged exclusively to LRSD. It does not seem fair for the state, the Pulaski County Special School District (PCSSD), and the North Little Rock School District (NLRSD) to pay for the time spent on this portion of the case.

With respect to the time spent on the appeal on the merits, I would make no award against LRSD, because it, like the intervenors, is a prevailing party on the merits. Although it did not obtain the relief originally prayed for, LRSD did secure a substantial measure of interdistrict relief. I do not understand why one prevailing party should pay a portion of the fees and costs incurred by another prevailing party. I would allocate the award for this portion of the case among the other three parties as follows:

PCSSD                     60 percent
State Board of Education  30 percent
NLRSD                     10 percent

I take this position because PCSSD is, in my view, the most culpable of the defendants, and NLRSD is the least culpable, since no substantial interdistrict relief was granted against it. Accepting for present purposes the Court's decision that the State Board of Education must shoulder a substantial part of the burden of interdistrict relief, I still believe that the State Board's involvement was less serious than that of PCSSD, the primary actor.

BOWMAN, Circuit Judge, dissenting, with whom FAGG, Circuit Judge, joins.

If I could agree that any fees should be awarded to the Joshua interventors, I would agree with the Court that no contingency enhancement should be allowed, and I would agree with Judge Arnold's views regarding the allocation of the liability for fees among the parties. It seems to me, however, that the Joshua interventors came into the case very late, contributed nothing to its development, and argued only for the remedy of consolidation that the Court en banc rejected. I am unable to discern that they have added anything to the efforts previously expended by the Little Rock School District, and clearly they have not prevailed upon anything other than the question of their right to intervene. Accordingly, I would deny the request for fees altogether, and I respectfully dissent from the Court's decision to award fees.