author: MORRIS SHEPPARD ARNOLD, Circuit Judge. HEANEY, Circuit Judge,

text:
    Denise Cleone RHODE, Appellant, v. Barbara OLK-LONG, Warden, Iowa Correctional Institution for Women, Mitchellville, State of Iowa, Appellee.
    No. 95-1898.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1995.
    Decided April 29, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied May 3, 1996.

      Jon M. Kinnamon, Cedar Rapids, IA, argued, for appellant.
    Thomas McGrane, Asst. Atty. Gen., Des Moines, IA, argued. Thomas G. Fisher, Jr., Asst. Atty. Gen., on brief, for appellee.
    Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

       Judge McMillian would grant the suggestion for rehearing en banc.

   MORRIS SHEPPARD ARNOLD, Circuit Judge.

Denise Rhode appeals the order of the district court denying her petition for a writ of habeas corpus. We affirm.

I.

On January 27, 1989, Rhode telephoned the Blank Clinic and informed a nurse that her four-month-old nephew, Matthew, had hit his head when his walker tipped against a wall. She said that he had a “goose egg” on his head, that his eyes were rolled back in his head, and that his arms and legs were stiff. The nurse told Rhode that Matthew needed immediate medical attention. Rhode then telephoned Matthew’s father, and the two took him to the hospital. Matthew died the following day.

Rhode was charged with felony murder and child endangerment. She waived her right to a jury trial, and the case was tried before a judge in Iowa state court. Although Rhode did not testify at trial, her testimony about Matthew’s death given at an earlier juvenile proceeding was read into evidence. In the juvenile hearing, she testified that, on the day Matthew was injured, she left him with her parents, Marilyn and Charles Marsh, between 11:00 a.m. and 1:00 p.m. or 1:30 p.m. During that time, she said, Matthew fell off the bed but sustained no apparent injuries. She further stated that after she returned, she fed Matthew, put him in the walker in the kitchen, left the room, and a short while later heard him crying. She testified that when she returned, she found the walker tilted and Matthew’s head against the wall. According to her, her two children, ages five and three, were playing nearby.

At trial, several doctors who treated Matthew and the pathologist who performed his autopsy testified for the state. The doctors all agreed that Matthew’s injuries could not have resulted from the walker tipping over or from falling off a bed. The injuries could only have resulted from a direct and intentional blow with extreme force to the baby’s head. The medical experts were unable to pinpoint exactly when the injury occurred, but they opined that Matthew was injured between 10:30 a.m. and 3:30 p.m.

Rhode’s parents, Marilyn and Charles Marsh, were subpoenaed to appear as witnesses for the state. In chambers, the Marshes asserted their Fifth Amendment privilege against self-incrimination and did not testify. At the conclusion of the trial, the court found that their refusal to testify was a “ruse, a ploy to generate doubt by their silence where no reasonable doubt otherwise exists.”

At the close of the state’s ease, Rhode’s attorneys asked to withdraw as defense counsel. The attorneys also told the court that they were concerned that Rhode might not be competent to assist in her defense. The court granted the attorneys’ request to withdraw and appointed replacement counsel. Her new attorneys told the judge that they believed Rhode was competent, so the judge decided not to hold a competency hearing. Rhode’s attorneys then rested without presenting any evidence. The' court then found Rhode guilty of felony murder and child endangerment and sentenced her to life imprisonment for felony murder and ten years for child endangerment. Rhode is serving her sentences concurrently.

Rhode appealed, contending in part that the trial court should have held a competency hearing at the time that her attorneys first indicated concerns about her competence. The Iowa court of appeals found that because reasonable grounds existed to question whether Rhode was competent to stand trial, the trial court should have held a competency hearing. The court remanded the ease to determine whether Rhode was competent at the time she was tried. Two and a half years after the trial, the trial court held a competency hearing. After the testimony was completed, the court found that the evidence presented by Rhode and the state was in “equipoise.” Because a defendant is presumed competent in Iowa, the court held that Rhode was competent to stand trial. The Iowa court of appeals then affirmed the competency determination as well as Rhode’s convictions. State v. Rhode, 503 N.W.2d 27, 35, 38-41 (Iowa Ct.App.1993) (en banc).

In her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Rhode set forth six grounds for relief. The district court denied the petition on all grounds and Rhode renews these claims on appeal.

II.

Rhode first argues that her conviction is invalid because the state trial court lacked jurisdiction over her case. It has long been established that federal habeas corpus relief is available when a conviction is void for want of jurisdiction in the trial court. See, e.g., Keizo v. Henry, 211 U.S. 146, 148, 29 S.Ct. 41, 41-42, 53 L.Ed. 125 (1908); Ex parte Siebold, 100 U.S. (10 Otto) 371, 375, 25 L.Ed. 717 (1879); and Houser v. United States, 508 F.2d 509, 512 (8th Cir.1974). (Indeed, for many years, the writ of habeas corpus was available solely in such eases. Houser, 508 F.2d at 512.) We disagree, however, with Rhode’s contention that the trial court lacked jurisdiction.

Rhode premises her jurisdictional argument exclusively on Iowa law. She asserts that the court lost jurisdiction over her case when it failed to conduct a competency hearing during her trial, as required by Iowa Code Ann. § 812.3. The Iowa court of appeals, however, held that the failure to conduct a contemporaneous competency hearing did not deprive the trial court of jurisdiction to try, convict, and sentence Rhode. State v. Rhode, 503 N.W.2d at 34. Because a “ ‘[determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary,’ ” Martin v. Solem, 801 F.2d 324, 331 (8th Cir.1986), quoting Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir.1976) (per curiam), the decision of the court of appeals conclusively establishes that the trial court had jurisdiction over Rhode.

III.

Rhode next challenges the post-conviction competency hearing. She alleges that the state of Iowa denied her due process by determining her competency two and a half years after the court was legally obligated to conduct a competency hearing; she further alleges that there was insufficient evidence to support a finding that she was competent.

The conviction of a legally incompetent person violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). While post-conviction determinations of competency are generally disfavored, id. at 387, 86 S.Ct. at 843, we have held that a post-conviction competency hearing is proper so long as “a meaningful hearing” remains possible. Harkins v. Wyrick, 552 F.2d 1308, 1311 (8th Cir.1977). We agree with the district court and with the Iowa court of appeals that Rhode received a meaningful and constitutional post-conviction competency hearing. At the hearing, there was testimony from several medical experts who had examined Rhode either during the trial or not long after her conviction. These witnesses offered their expert opinions on Rhode’s competence to stand trial in 1989, and we think that the “contemporary nature of these doctors’ examinations of appellant was sufficient to make an adequate hearing possible” in 1992. Id. at 1311-12. We are also of the view that the evidence presented at the hearing was, contrary to the petitioner’s contention, sufficient to support a conclusion that she was competent when she committed the offense. For instance, there was a great deal of testimony that she was not suffering from the mental illness that she claimed rendered her incompetent to stand trial and testimony that she was competent to stand trial. We have read the record of her post-trial hearing with care and find it more than adequate to support the finding of the trial court.

Rhode also argues that the state trial court deprived her of due process by requiring her to bear the burden of demonstrating that she was incompetent. We disagree. The Supreme Court recently held that the due process clause permits a state to require a defendant to bear the burden of proving his or her own incompetence. Medina v. California, 505 U.S. 437, 450-51, 112 S.Ct. 2572, 2580, 120 L.Ed.2d 353 (1992). In Iowa, criminal defendants are presumed competent when evidence about competency is in “equipoise.” State v. Pedersen, 309 N.W.2d 490, 496 (Iowa 1981). Rhode contends that Medina should apply only when the competency hearing and trial are held contemporaneously. She argues that applying a presumption of competence in a post-conviction competency hearing violates due process because it unfairly adds to the difficulties inherent in such hearings. This argument is without merit. In Medina, 505 U.S. at 445-46, 112 S.Ct. at 2577-78, the Supreme Court indicated that federal courts should not disturb state laws allocating the burden of proof in competency hearings. The Medina decision was based upon .the long-standing principle that state legislatures, not federal courts, should establish state rules of criminal procedure. Id. Because we believe that this principle applies with equal force to post-conviction competency hearings, we decline to adopt Rhode’s narrow reading of Medina.

IV.

Rhode argues that she was denied due process because there was insufficient evidence presented at trial to prove that she killed Matthew and because there was insufficient evidence that she acted with malice aforethought, this latter being an element of all murder offenses, even felony murder, under Iowa Code Ann. § 707.1.

In reviewing these claims, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). If the record supports conflicting inferences, we are required to assume that the trial court resolved all conflicts in favor of the prosecution. Id. at 326, 99 S.Ct. at 2793. Although it is true that some parts of the record could be read to support Rhode’s theories that either her parents or her children could have inflicted the fatal injuries, we find ample evidence in the record that Rhode killed Matthew. Particularly when read in the light most favorable to the prosecution, the evidence overwhelmingly supports the conclusion that Rhode killed Matthew.

The record also amply supports a finding that Rhode acted with malice aforethought. The medical experts testified that head injuries as severe as Matthew’s could result only from intentionally striking the baby’s head with great force against a hard flat surface. To sustain such severe injuries accidentally, one doctor opined that Matthew would have had to fall over twenty feet. Furthermore, in Iowa, malice may be inferred from the defendant’s prior dealings with the victim. State v. Johnson, 318 N.W.2d 417, 438 (Iowa 1982), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982). At trial, Rhode’s husband testified that he had seen her shake and spank Matthew, several doctors testified that he showed signs of “shaken baby syndrome,” and Matthew’s mother testified that she had previously found bruises on her son after he spent time with Rhode. Taken together, the evidence of Rhode’s prior mistreatment of Matthew and the severity of his injuries provided more than enough evidence for the court to find that Rhode acted with malice aforethought.

Y.

Rhode next argues that the trial court violated due process by concluding that the Marshes’ assertion of their Fifth Amendment privilege against self-incrimination was a ruse. We reject this argument. While it is well established that a trial court is not permitted to draw inferences from a witness’s assertion of his or her Fifth Amendment privilege, Johnson v. United States, 318 U.S. 189, 196, 63 S.Ct. 549, 553, 87 L.Ed. 704 (1943), a due process violation can serve as the basis for federal habeas corpus relief only if the alleged error so infected Rhode’s trial as to render the proceeding “ ‘fundamentally unfair.’” Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.1995), quoting Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985) (per curiam).

We are not convinced, in the first place, that the state trial court drew improper inferences from the Marshes’ assertion of the privilege against self-incrimination. Indeed, as both the district court and the Iowa court of appeals observed, it seems more probable that the trial court’s statement was actually a refusal to draw any inferences at all from the Marshes’ decision not to testify. We need not resolve the issue, however, because we find that even if the trial court erroneously considered the Marshes’ assertion of their constitutional rights in reaching its conclusions, we see no reasonable probability that the error affected the ultimate outcome of the trial. Anderson, 44 F.3d at 679. As we have already indicated, the great weight of the evidence indicated that Rhode maliciously inflicted the injury that led to Matthew’s death.

VI.

Rhode next contends that her convictions violate due process and double jeopardy. She claims that due process precluded the court from using child endangerment as a basis for her felony murder conviction. (In Iowa, a person commits murder if he or she “kills another person while participating in a forcible felony.” Iowa Code Ann. § 707.2.2.) Alternatively, Rhode argues that the principle of double jeopardy precludes convicting her for both child endangerment and first degree murder. We disagree.

Rhode’s argument that the Iowa court was precluded from using her participation in child endangerment to convict her of first degree murder lacks a constitutional basis. See Heaton v. Nix, 924 F.2d 130, 134 (8th Cir.1991), cert. denied, 500 U.S. 956, 111 S.Ct. 2266, 114 L.Ed.2d 718 (1991). Rhode is essentially arguing for the merger doctrine, which bars using felonies that are an integral part of a homicide to support a felony murder conviction. The Supreme Court of Iowa has rejected the merger doctrine for forcible felonies such as child endangerment. State v. Beeman, 315 N.W.2d 770, 776-77 (Iowa 1982). Even if it had not, violations of state law cannot serve as a basis for federal habeas relief, and Rhode fails to cite a single federal case (nor are we aware of any) that supports her due process argument.

Rhode’s double jeopardy arguments are also meritless. The Supreme Court has held that a state legislature may authorize cumulative punishment for the same offense. Missouri v. Hunter, 459 U.S. 359, 366-68, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983). In the context of felony murder, “a criminal defendant can be convicted of and punished for both the underlying felony and felony murder without violating the double jeopardy clause of the fifth amendment if he is prosecuted for both offenses in one trial and if the state legislature has authorized cumulative punishment.” Heaton, 924 F.2d at 134. The Iowa court of appeals held that the Iowa legislature has authorized cumulative punishment for felony murder. State v. Rhode, 503 N.W.2d at 40-41 (“[t]he Iowa legislature’s intent is clear: felony murder and the underlying felony can both be punished,” id. at 41); see also State v. Ragland, 420 N.W.2d 791, 793 (Iowa 1988). Because we are bound by the state court’s interpretation of the Iowa statutes, Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679, Rhode’s convictions for both child endangerment and felony murder did not violate double jeopardy.

VII.

Finally Rhode argues that, because her conviction stems from a single act, sentencing her to life in prison violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We have held that legislatures are entitled to “wide latitude in prescribing their punishments.” Simmons v. State of Iowa, 28 F.3d 1478, 1483 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1163, 130 L.Ed.2d 1119 (1995). Only sentences that are “grossly disproportionate” to the crime could conceivably violate the Eighth Amendment. Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836 (1991) (plurality opinion). We are not inclined to hold that a life sentence is grossly disproportionate to the crime of murdering an innocent four-month-old baby with malice aforethought.

VIII.

For the foregoing reasons, we affirm the district court’s order denying Rhode’s petition for a writ of habeas corpus.

HEANEY, Circuit Judge,

dissenting:

As the Iowa Court of Appeals determined, when Denise Rhode was tried in the Iowa state court, reasonable grounds existed to examine her competency to stand trial. Under Iowa Code § 812.3 (1994), the court was required to suspend the proceedings immediately and to hold a competency hearing. The court ignored this mandate. Instead, Rhode was given the hearing two and one-half years after her conviction. In my judgment, it was not possible for Rhode to. receive a meaningful hearing at that time. Thus, I dissent.

A post-conviction competency hearing is a proper remedy for a wrongful denial of a pretrial hearing only if a “meaningful hearing” is possible. Harkins v. Wyrick, 552 F.2d 1308, 1311 (8th Cir.1977); Griffin v. Lockhart, 935 F.2d 926, 931 (8th Cir.1991) (granting habeas corpus because it “seemed impossible to now conduct a meaningful nunc pro tunc hearing” over three years after defendant’s trial).

In this case, the hearing was not held until two and one-half years after Rhode’s conviction. The court had to determine both whether Rhode was competent at the time of the competency hearing and at the time of her trial. The expert testimony available to the state was inadequate to meaningfully address either of these issues. Three of the four expert witnesses for the state had only limited contact with Rhode, all of which occurred during her post-conviction incarceration. A review of their testimony clearly demonstrates that none of these expert witnesses had examined her prior to her conviction and they never examined her to determine her competency to stand trial.

Carol Rowe, a correctional counselor at the Iowa Correctional Institution for Women in Mtchellville, Iowa, testified that she had seen Rhode, along with over a hundred other inmates, for a routine, administrative “review of her stay”; beyond that, most of her knowledge of Rhode’s mental state came from incident reports prepared by other prison employees. Hrg. Tr. at 333. Rowe did not express an opinion about Rhode’s competency at the time of trial; she merely stated that she believed Rhode understood what was “going on” while incarcerated. Hrg. Tr. at 338.

Leonard Welsh, a staff psychologist with the Iowa Department of Corrections, performed a psychological evaluation of Rhode at the outset of her post-conviction incarceration as part of her prison entrance evaluation. He did not examine her to determine her trial competency, and he was not even aware of her history of mental illness. Hrg. Tr. at 297, 304-05. When asked about Rhode’s competency to stand trial, Welsh expressed serious doubt about his ability to form an opinion: “Since you are not there at the time, all you can do is make inferences; and to do anything other than that is to go beyond what you can say.” Hrg. Tr. at 302. He did not explicitly express his opinion as to Rhode’s competency at the time of the 1992 hearing; rather, based primarily on written records, he stated that in his opinion, Rhode did not suffer any significant form of mental illness. Hrg. Tr. at 302.

Peter Brainard, a psychologist at the Mitchellville prison, had twelve to fifteen psychotherapy sessions with Rhode during her incarceration and performed a mental status evaluation of her two years after her conviction. Hrg. Tr. at 323-24. When asked whether Rhode was currently suffering from a mental illness, Brainard answered that six months prior to the hearing she was not, but that he had “no basis for a judgment” as to her present mental condition. Hrg. Tr. at 325. Brainard never explicitly testified that Rhode was competent at the time of her trial, but only that he did not believe she had ever suffered from a mental illness during the two years he had contact with her at the prison. Brainard’s testimony highlights, not only the inadequacy of his opinion as to Rhode’s competency at the time of trial, but also the extreme difficulty in making these post-trial determinations generally.

Finally, Dr. Michael Taylor, the only state witness who testified that Rhode was competent both at the time of the hearing and when she stood trial, based his opinions solely on written records and a personal consultation with her just prior to the competency hearing. It is precisely this type of expert testimony, based on printed records alone, that the Supreme Court intended to discourage in Pate v. Robinson, 383 U.S. 375, 386-87, 86 S.Ct. 836, 842-43, 15 L.Ed.2d 815 (1966).

The Supreme Court of Iowa has consistently considered reversal of a defendant’s conviction to be the appropriate remedy for violation of section 812.3. See State v. Kempf, 282 N.W.2d 704, 710 (Iowa 1979) (reversing defendant’s conviction); Hickey v. District Court of Kossuth County, 174 N.W.2d 406, 412 (Iowa 1970); see also, State v. Myers, 460 N.W.2d 458, 460 (Iowa 1990) (“If the court of appeals was correct in concluding that matters known to the trial court mandated a hearing under section 812.3, then we believe the failure to hold such a hearing was probably not capable of being cured by an ex post facto determination of competency.”). The instant decision by the Iowa intermediate appellate court is inconsistent with these clear precedents of the Iowa Supreme Court and does not, in my opinion, comport with Iowa Law. See State v. Rhode, 503 N.W.2d 27 (Iowa App.1993).

Because the opinions of the state witnesses were based primarily on limited, purely administrative, post-conviction contact with Rhode, the trial court was not able to conduct a meaningful competency hearing in this case. I believe that we must vacate Rhode’s conviction to remedy the court’s error at trial. The state, of course, may retry her if at the appropriate time and in the appropriate proceeding it is determined she is competent to stand trial.

      . The Honorable Charles R. Wolle, Chief United States District Judge for the Southern District of Iowa.

      . All citations to expert testimony refer to the transcript of the post-conviction competency hearing held October 20, 1992.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mary Ellen PINKHAM, Appellee, v. CAMEX, INC., a corporation; Jay Columbus; Victor Benedetto, Defendants, L’Eggs Brands, Inc., Appellant, L’Eggs Brands, Inc., Third Party Plaintiff-Appellant, CAMEX, INC.; Jay Columbus; Victor Benedetto, Third Party Plaintiffs, v. MARY ELLEN ENTERPRISES, INC., Appellee. Mary Ellen PINKHAM, Appellant, v. CAMEX, INC., a corporation; Jay Columbus; Victor Benedetto, Defendants, L’Eggs Brands, Inc., Appellee, L’Eggs Brands, Inc., Third Party Plaintiff-Appellee, CAMEX, INC.; Jay Columbus; Victor Benedetto, Third Party Plaintiffs, v. MARY ELLEN ENTERPRISES, INC., Appellant.
    Nos. 95-1705, 95-2353.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 1, 1996.
    Decided May 21, 1996.

      Rodrick J. Enns, Winston-Salem, NC (Michael R. Cunningham, on brief), for appellant.
    Frank R. Berman, Sandra K. Kensy, Minneapolis, MN, for appellee.
    Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges.
   PER CURIAM.

L’Eggs Brands, Inc. (L’Eggs) appeals from the postjudgment order of the District Court for the District of Minnesota awarding Mary Ellen Pinkham $229,420.13 in attorney’s fees and $8,702.46 in costs. Pinkham cross-appeals from the order denying expert witness fees in excess of the statutory amount under 28 U.S.C. § 1821. For the reasons discussed below, we affirm.

Pinkham brought a copyright infringement case against L’Eggs and others. Pinkham’s corporation, Mary Ellen Enterprises, Inc., brought a diversity action against all the defendants except L’Eggs. The two cases were consolidated for trial, and the jury awarded damages against defendants in both cases. We affirmed. Mary Ellen Enters. v. Camex, Inc., 68 F.3d 1065 (8th Cir.1995). We also affirmed the decision to award attorney’s fees in the copyright action under 17 U.S.C. § 505 and to apportion the fees between L’Eggs (40%) and the other defendants (60%).

In support of Pinkham’s motion for attorney’s fees and costs, Pinkham’s counsel attested to their trial experience, range of individual' billing rates, total number of hours at each rate, and the novelty and number of issues involved. In opposition, counsel for L’Eggs attested Pinkham had refused to produce documents reflecting any retainer agreement she had with counsel and any apportionment of time between the diversity and copyright cases. L’Eggs attached a survey of billing rates of Minnesota law firms, showing hourly billing rates lower than those charged by Pinkham’s counsel.

The district court concluded, based on the billing rate survey, that the hourly rates charged were “out of step with the local legal community” and reduced them. As for the allocation of time between the diversity and copyright cases, the district court agreed with Pinkham that nearly all of the work was necessary to both actions, concluded that 10% of the billed time should be allocated solely to the diversity case, and reduced the fee by $25,491.13.

The district court also concluded, inter alia, that costs were limited to those identified in 28 U.S.C. § 1920, that expert witness fees in excess of the statutory amount (set in 28 U.S.C. § 1821 at $40 per day) were not recoverable, and that costs for long distance telephone calls, faxes, messengers, and express mail were recoverable. The district court reduced the cost award accordingly. These appeals followed.

We review awards of attorney’s fees and costs for abuse of discretion. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 122 (8th Cir.1987). We are bound by the district court’s factual findings on the fee issue unless they are clearly erroneous; review of the applicable legal principles is plenary. Id.

I.Attorney’s Fees

L’Eggs argues the district court abused its discretion in establishing reasonable attorney’s fees in the absence of evidence of an agreement between Pinkham and her attorneys. We conclude that the copyright statute provides for “reasonable” fees based on a lodestar figure represented by the reasonable hourly rate multiplied by the hours expended in the litigation; the actual fee arrangement between the client and the attorney is immaterial. In any event, the monthly statements counsel provided Pink-ham and her partial payments on that account sufficiently indicate Pinkham was obligated to pay her attorneys. The amount of the fee to be awarded under the statute is left entirely to the district court’s discretion. Factors that courts may consider in awarding attorney’s fees include “ ‘frivolousness, motivation, objective reasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.’ ” Fogerby v. Fantasy, Inc., 510 U.S. 517,-n. 19, 114 S.Ct. 1023, 1033 n. 19, 127 L.Ed.2d 455 (1994) (quoting with approval Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir.1986)). We conclude that the district court did not abuse its discretion in awarding “reasonable” attorney’s fees to Pinkham.

II. Allocation Between Copyright and Diversity Actions

L’Eggs argues the district court abused its discretion in deciding to apportion to the diversity action only those hours dedicated “solely” to it and to allocate to the copyright action hours which were necessary to both actions. We conclude that the determination that 90% of the billed time was necessary to both actions is sufficient to recover for all the time spent in joint preparation. See Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 420 (3d Cir.1993) (if fees incurred in other litigation were for work product actually utilized, time spent in other litigation was “inextricably linked” to issues in present litigation, and plaintiff was not previously compensated, court may include all fees); Nanetti v. University of Ill. at Chicago, 944 F.2d 1416, 1419 (7th Cir.1991) (time for joint preparation allowed even where only one claim produces recovery). Accordingly, we affirm the attorney’s fees award.

III. Costs

We agree with L’Eggs that costs for long distance and fax ($4,664.89) and for messenger and express mail ($1,606.10) are not “exemplification and copies of papers necessarily obtained for use in the case” under 28 U.S.C. § 1920(4). We believe that their inclusion was harmless error, however, because such costs were reasonable out-of-pocket expenses of the kind normally charged to clients by attorneys, and thus should have been included as part of the reasonable attorney’s fees awarded. See West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 87 n. 3, 111 S.Ct. 1138, 1141 n. 3, 113 L.Ed.2d 68 (1991); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n. 7 (9th Cir.1986) (out-of-pocket litigation expenses reimbursable as part of attorney’s fees); Laffey v. Northwest Airlines, Inc., 241 U.S.App.D.C. 11, 746 F.2d 4, 30 (1984) (same), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985); Northcross v. Board of Educ., 611 F.2d 624, 639 (6th Cir.1979) (reasonable out-of-pocket expenses incurred by attorney which normally are charged to fee-paying client were includable in 42 U.S.C. § 1988 “attorney’s fee” award), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 3000, 64 L.Ed.2d 862 (1980).

As for Pinkham’s cross-appeal concerning expert witness fees, 28 U.S.C. § 1821 provides that, “[e]xcept as otherwise provided by law,” witness fees and allowances are limited to that set forth in the statute ($40 per day). Pinkham argues that 17 U.S.C. § 505’s “full costs” language comes within the “otherwise provided by law” exception and is sufficient authority to exclude it from the cost limitations set forth in 28 U.S.C. §§ 1920 and 1821. In support, Pinkham argues that 17 U.S.C. § 505 was not at issue in West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. at 87, 111 S.Ct. at 1141 (42 U.S.C. § 1988 expert witness fees limited by §§ 1920 and 1821(b)), or Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385 (1987) (costs under Fed.R.Civ.P. 54 limited by § 1920), and that expert testimony was crucial to determine L’Eggs’ profits based on the peculiar circumstances of this case and was necessary to protect the copyright. Thus, Pinkham argues, because one of the purposes of 17 U.S.C. § 505 is compensation, the plain language of “full” should authorize full expert witness fees.

The Supreme Court held in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. at 445, 107 S.Ct. at 2499 (citations omitted):

We will not lightly infer that Congress has repealed §§ 1920 and 1821, either through Rule 54(d) or any other provision not referring explicitly to witness fees. As always, “ ‘[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one regardless of the priority of enactment’ ”.... Any argument that a federal court is empowered to exceed the limitations explicitly set out in §§ 1920 and 1821 without plain evidence of congressional intent to supersede those sections ignores our longstanding practice of construing statutes in pari materia. []

See also West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. at 86, 96, 111 S.Ct. at 1140-41, 1145 (explicit statutory authority to contrary is necessary to exclude witness fees from § 1821(b) limits; expert witness fees not attorney’s fees under 42 U.S.C. § 1988).

The parties have not directed us to any authority discussing the source or meaning of “full costs” in 17 U.S.C. § 505. We do not agree that the “full costs” language “clearly,” “explicitly,” or “plainly” evidences congressional intent to treat 17 U.S.C. § 505 costs differently from costs authorized in other statutes. Thus, we conclude costs under 17 U.S.C. § 505 are limited to the costs expressly identified in 28 U.S.C. § 1920, and that expert witness fees in excess of the 28 U.S.C. § 1821(b) $40 limit are not recoverable.

Accordingly, we affirm the order of the district court.

      . The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota.

      . Title 17 U.S.C. § 505 provides:
      In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided hy this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

      . Statutes "in pari materia” (i.e., upon the same matter or subject) are those having a common purpose. Black’s Law Dictionary 791 (6th ed.1990).


author: WOLLE, District Judge.

text:
    John GRAHEK, John Swenson, and Brent Nagle, Appellants, v. The CITY OF ST. PAUL, MINNESOTA; William Finney, Chief of Police; and Mark Robertson, Director of Personnel, Appellees.
    No. 95-2399.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1995.
    Decided May 23, 1996.
    Mark W. Gehan, St. Paul, Minnesota, argued for appellants.
    Gerald Thomas Hendrickson, St. Paul, Minnesota, argued for appellees (Timothy E. Marx, City Attorney for St. Paul, Minnesota, on the brief).
    Before BOWMAN and LOKEN, Circuit Judges, and WOLLE , District Judge.

       The HONORABLE CHARLES R. WOLLE, Chief United States District Judge for the Southern District of Iowa, sitting by designation.

   WOLLE, District Judge.

John Grahek, John Swenson, and Brent Nagle, three white males, applied to become police officers for the City of St. Paul in 1992. Their gender and race discrimination complaint alleges the defendant city, its police chief, and its personnel director violated their rights under federal and state law by using hiring procedures that allegedly favored women and minority applicants. On the threshold issue of standing, the district court granted summary judgment for defendants because no plaintiff had shown injury in fact. In this appeal, the plaintiffs do not challenge the facts on which the district court relied, but they contend the district court erred in applying principles of law governing standing. We agree with the well-reasoned decision of the district court and affirm.

I.

Defendants raised the standing issue in their motion for summary judgment. The plaintiffs resisted and filed a cross-motion for partial summary judgment on the merits of their claims, thereby clarifying their theory for recovery and the relief they were seeking.

General principles governing standing are well settled. The burden is on a plaintiff seeking to invoke the federal judicial power to demonstrate more than a generalized grievance against allegedly illegal government conduct.

[T]he irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.... Second, there must be a causal connection between the injury and the conduct complained of... _ Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations, footnote, and internal quotation marks omitted), quoted in Northeastern Florida Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 2302, 124 L.Ed.2d 586 (1993).

Plaintiffs acknowledge they must satisfy these general requirements for standing. They contend they met their burden by demonstrating that defendants’ hiring methods allowed women and minority applicants greater opportunity than white male applicants to be interviewed and then hired to be police officers.

II.

Plaintiffs do not dispute the facts relied on by the district court. St. Paul Civil Service Rule 8 governed the filling of vacancies on the police force. First, all applicants were required to pass a civil service examination designed to measure job performance. When the police department needed to fill vacancies, the department was required to request a certified list of qualified candidates from the city personnel office. That office then certified a list of candidates who had passed the civil service examination and an investigative background check. In placing names on the certified list submitted to the police department, Rule 8 required the personnel office to draw names of qualified applicants from three separate groups: current city employees who had passed the test; the highest ranked non-city employee candidates regardless of gender, race, or disability; and the highest ranked proteeted-class applicants. The applicants comprising each group were ranked separately by test score. Only the highest ranked persons in the three groups were placed on the list certified to the police department by the personnel office.

Each police department request for a certified list of police officer applicants identified a specific number of vacancies. Each certified list was required by a so-called “Rule of 3” to have the requested number of vacancies plus two. The chief of police, acting for the department, would interview the persons on the certified eligible list and cotdd hire any of those persons.

Four certified lists submitted to the police department in 1992 and 1993 spawned this litigation. In the autumn of 1992, Grahek, Swenson, and Nagle applied to become police officers and passed the civil service examination. Compared with all applicants, test scores, Grahek ranked 38, Swenson ranked 42, and Nagle ranked 65. A list on December 16, 1992, included nine persons to fill seven vacancies; lists submitted on March 17, 1993, included twenty-two applicants to fill twenty vacancies and seven applicants to fill five vacancies; and a list submitted on November 18, 1993, included twenty-two applicants to fill twenty vacancies. None of the three plaintiffs was on the lists certified on December 16 and March 17. Before the personnel office' presented the certified list on November 18, Swenson voluntarily withdrew his application. Grahek and Nagle were included on the list certified to the police department on November 18, 1993. They were interviewed and both were offered positions as police officers. Grahek accepted, but Nagle did not.

Having made these factual determinations that are not here challenged, the district court determined that none of the three plaintiffs would have been on the lists certified on December 16 and March 17 even if the proteeted-class applicants had not been used to fill those certified lists. The district court clearly explained how Rule 8 and the Rule of 3 would have kept Grahek, Swenson, and Nagle from qualifying for the certified lists even if there had been no separate group of protected-class applicants. The district court held:

deafly, neither Grahek, Swenson nor Na-gle would have been certified for interview under the Rule of 3 any earlier than each was in fact certified for interview under the Rule of 3 with expanded certification. Their allegation that they were not interviewed sooner “because they'were white males” is erroneous. Therefore, neither Grahek, Swenson, nor Nagle was injured by expanded certification, and none have standing to bring this claim.

III.

Plaintiffs contend they were injured because they were excluded from the protected-elass group of applicants, one of the three ranked groups used to fill each certified list. They point out that the hiring process of Rule 8, with expanded certification for pro-teeted-class applicants, allowed defendants to interview and hire women and minority applicants who had lower examination scores than the three plaintiffs. They therefore challenge expanded certification because it required white male applicants to compete with all candidates, while members of protected classes competed only against other persons within their own class.

Plaintiffs’ arguments miss the mark. Even if no persons from the separate group of protected-class applicants had been included in the certified lists submitted on December 16,1992, and March 17,1993, none of the three plaintiffs would have been placed on those lists. Grahek, Swenson, and Nagle did not have a ranking adversely affected by the protected-class group of applicants on any of the dates here in question when certified lists were submitted to the police department.

Plaintiffs argue that the district court decision is contrary to two decisions of the United States Supreme Court: Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); and Northeastern Florida Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). In Bakke, a white male applicant to the medical school at the University of California at Davis had standing to challenge an affirmative action program that reserved for minority applicants 16 of 100 places in an entering class, even though Bakke could not demonstrate he would have been admitted in the absence of the program. In Northeastern Florida Contractors, a general contractor’s association was allowed to challenge a minority set aside program even though it could not prove any member of the association would have been awarded a contract in the absence of the set-aside program. Plaintiffs emphasize the following language the Court wrote in Northeastern Florida Contractors:

Singly and collectively, these cases stand for the following proposition: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is -for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.

Id. 508 U.S. at 666, 113 S.Ct. at 2303.

Plaintiffs, reliance on those decisions is misplaced. The City of St. Paul process for hiring police officers did not set aside a particular number of positions for protected-class applicants. The expanded opportunity for interviews for protected class members did not reserve positions for that class of applicants. Fundamentally, Grahek, Swen-son, and Nagle were placed on a certified list as soon as they would have been placed on the list without expanded certification for protected-class applicants.

The district court decision is consistent with United States v. Hays, — U.S. -, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). In reversing a trial court ruling that found standing for persons challenging boundaries of newly mapped congressional districts in Louisiana, the Court explained that standing was dependent on a showing of direct injury to a person denied equal protection by the redistricting plan. The Court wrote:

The fact that Act I affects all Louisiana voters by classifying each of them as a member of a particular congressional district does not mean — even if Act I inflicts race-based injury on some Louisiana voters — that every Louisiana voter has standing to challenge Act I as a racial classification. only those citizens able to allege injury “as a direct result of having personally been denied equal treatment,” may bring such a challenge, and citizens who do so carry the burden of proving their standing, as well as their case on the merits.

Id — U.S. at-, 115 S.Ct. at 2437 (citations omitted).

The district court properly relied on a ease we decided in 1991 that is strikingly similar on its facts. In Donaghy v. City of Omaha, 933 F.2d 1448 (8th Cir.1991), cert. denied, 502 U.S. 1059, 112 S.Ct. 938, 117 L.Ed.2d 109 (1992), the plaintiff contended he was injured by a race conscious employment decision of the City of Omaha, because the city did not strictly follow rank order in the referral and promotion process. Donaghy, like the plaintiffs in this case, would not have been referred for the openings for which he applied even if the police chief had not based the decision on whom to interview on an affirmative action plan imposed by a federal court order that gave preference to minority officers in selection for promotion. Donaghy is consistent with Hays in requiring that a plaintiff show injury in fact, not a conjectural or hypothetical reduced opportunity resulting from implementation of a hiring plan.

The district court correctly concluded, on the facts in the summary judgment record, that no plaintiff had satisfied standing requirements for challenging the process by which defendants selected law enforcement officers.

AFFIRMED.

      . The Honorable Paul Magnuson, Chief Judge, United States District Court for the District of Minnesota.

      . The complaint was jointly filed by the three applicants for police officer positions who are appellants and by the St. Paul Police Federation and its president. The district court also granted summary judgment against the federation and its president for lack of standing. They did not appeal.


author: LOKEN, Circuit Judge.

text:
    INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, LOCAL 878, Plaintiff-Appellee, v. COMMERCIAL WAREHOUSE COMPANY, Defendant-Appellant.
    No. 95-2093.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1996.
    Decided May 24, 1996.

      Tim Boe, David P. Martin, argued, Little Rock, AR, for appellant.
    Melva Harmon, argued, Little Rock, AR, for appellee.
    Before LOKEN, REAVLEY, and HANSEN, Circuit Judges.

       The Honorable THOMAS M. REAVLEY, United States Circuit Judge for the Fifth Circuit, sitting by designation.

   LOKEN, Circuit Judge.

Teamsters Local 878 (the “Union”) brought this action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to enforce an arbitrator’s award in favor of Charles Keller against his former employer, Commercial Warehouse Company (“CWC”). The arbitrator found that CWC had just cause to discharge Keller but awarded three months back pay for CWC’s failure to follow proper discharge and grievance procedures. CWC appeals the district court’s decisions to enforce the arbitrator’s award and to deny CWC’s motion to join Keller in the lawsuit. We affirm.

I.

On September 26,1992, Keller suffered an on-the-job accident that damaged CWC property, his second such accident in eight months. Keller was suspended pending a drug test. CWC learned on October 2 that he had tested positive for cocaine metabolites and immediately informed Keller that he would be discharged. Article 5 of the Collective Bargaining Agreement (“CBA”) between CWC and the Union provided:

[CWC] shall not discharge or take any other disciplinary action as respects any employee without just cause.... No [written] warning needs to be given to an employee prior to discharge if the cause of such discharge is ... [being] under the influence of ... drugs while on duty_ Discharge must be by proper written notice.

On October 8, the Union wrote CWC, asking that Keller be reinstated and requesting the chain of custody for the urine sample that had tested positive for cocaine. CWC responded with a written notice of termination to Keller and a letter to the Union that neither disclosed the chain of custody nor specified the reason for the discharge. On October 16, CWC and the Union submitted Keller’s grievance to arbitration. Despite repeated Union inquiries, not until the January 1998 arbitration hearing did CWC disclose the chain of custody documentation and clarify that Keller was fired because of the drug test rather than the property damage.

Following the hearing, the arbitrator upheld Keller’s discharge, finding sufficient evidence of a dischargeable drug offense despite Keller’s evidence of two later negative drug tests. However, the arbitrator also found that CWC had violated the CBA because “[t]he Company was needlessly resistant and uncooperative in facing up to its duty to cooperate with the Union in processing the grievance and arbitration.” CWC’s “procedural irregularities” “impeded the proper preparation of [Keller’s] case up to the very day of the arbitration hearing.” Therefore, the arbitrator awarded Keller back pay from the date of discharge to January 15, 1993, when the arbitration hearing began. The Union sued to enforce that award, and CWC moved to join a claim against Keller for the property damage resulting from the accident. CWC now appeals the district court’s adverse rulings.

II.

Federal labor law favors resolving disputes arising under a collective bargaining agreement through arbitration. To promote this policy, federal courts defer to an arbitrator’s interpretation of the agreement so long as the arbitrator has not ignored its plain language. See United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36-38, 108 S.Ct. 364, 369-71, 98 L.Ed.2d 286 (1987). Thus, the scope of our review of the arbitrator’s back pay award is limited to determining whether that award “draws its essence” from the CBA. International Woodworkers v. Weyerhaeuser Co., 7 F.3d 133, 135 (8th Cir.1993) (quotation omitted), cert. denied, — U.S. -, 114 S.Ct. 2135, 128 L.Ed.2d 865 (1994).

The arbitrator construed Article 5 of the CBA as requiring notice to the Union of CWC’s reasons for discharge and cooperation with the Union in processing the resulting grievance through arbitration. The arbitrator found a breach of these duties. This decision was clearly within his power to resolve the discharge grievance before him. A grievance is expressly defined in the CBA as a dispute “about the meaning, application, or compliance with the provisions of this Agreement,” and we have long recognized that “just cause” discipline provisions “may imply procedural as well as substantive requirements.” Chauffeurs Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716, 719 (8th Cir.), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980).

Although CWC suggests that the arbitrator erred in finding that CWC breached contractual duties to cooperate with the Union— a contention we reject as totally without merit — CWC primarily argues that the arbitrator lacked authority to award Keller back pay for CWC’s “procedural irregularities.” First, CWC argues that the award is not compensatory and therefore violates the rule that punitive awards must be expressly authorized by the CBA. See International Ass’n of Heat & Frost Insulators, Local 34 v. General Pipe Covering, Inc., 792 F.2d 96, 100 (8th Cir.1986). However, this was not a punitive award — the arbitrator compensated Keller because CWC’s breach of the CBA “impeded the proper preparation of [Keller’s] case up to the very day of the arbitration hearing.”

When a party’s procedural recalcitrance unjustifiably increases the costs of litigation, federal courts may award an aggrieved party the reasonable expenses thereby incurred, whether or not those expenses were in fact paid by the aggrieved party’s attorneys, or even an absent stakeholder. See Fed.R.Civ.P. 37(a)(4), (b)(2). Likewise, in this arbitration under the federal labor laws, it was appropriate to award such monetary relief in favor of the grievant, Keller, even if the Union as Keller’s representative in the grievance and arbitration process incurred the increased costs resulting from CWC’s recalcitrance. Moreover, to the extent CWC’s “procedural irregularities” delayed the arbitration process, Keller’s work status remained in limbo. CWC does not contend that back pay from the date of Keller’s discharge to the arbitration hearing was an unreasonable approximation of the real— albeit hard to measure and rather limited— damages caused by CWC’s breach of its procedural obligations under the CBA. We conclude that the arbitrator made a legitimate attempt to fashion a compensatory remedy that must therefore be enforced.

CWC also contends that the award should not be enforced because the arbitrator improperly reduced CWC’s discipline for Keller’s violation of a “well-defined and dominant public policy” against on-the-job drug abuse. Union Pacific R.R. Co. v. United Transp. Union, 3 F.3d 256, 261 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 881, 127 L.Ed.2d 76 (1994). We disagree. The arbitrator did not order Keller reinstated nor suggest that discharge was an inappropriate sanction for drug-impaired operation of CWC’s equipment. Thus, CWC’s reliance on St. Louis Theatrical Co. v. St. Louis Theatrical Bhd. Local 6, 715 F.2d 405 (8th Cir.1983), is misplaced because the arbitrator did not exceed his authority by second-guessing CWC’s decision that Keller’s drug abuse warranted discharge. Rather, the arbitrator awarded limited compensation for CWC’s separate procedural violations of the CBA, not the sort of retrospective approval of Keller’s conduct that would violate the nation’s public policy against on-the-job drug abuse. See Exxon Corp. v. Baton Rouge Oil & Chem. Workers Union, 77 F.3d 850, 856 (5th Cir.1996). The award must be enforced.

III.

CWC also appeals the denial of its motion to join Keller in the lawsuit so that CWC could assert its property damage claim against him. Joinder of an additional party is mandatory only in the circumstances described in Fed.R.Civ.P. 19(a). Neither sub-part of that Rule is applicable here. Failure to join Keller does not prevent complete relief between the Union and CWC on the Union’s suit to enforce the arbitrator’s award. See Gwartz v. Jefferson Memorial Hosp. Ass’n, 23 F.3d 1426, 1428 (8th Cir.1994) (the focus of Rule 19(a)(1) “is on relief between the parties and not on the speculative possibility of further litigation between a party and an absent person”). And Keller’s absence neither impairs his ability to protect his interests nor exposes CWC to the risk of multiple or inconsistent obligations. See Rule 19(a)(2).

Because Keller’s joinder was not mandatory, the district court did not abuse its discretion in denying the motion to join. Although CWC’s property damage claim may well be subject to arbitration under the CBA, the agreement did not require CWC to present this claim in the Union’s arbitration on behalf of Keller, and the arbitrator’s award did not affect the property damage claim. In these circumstances, the fact that CWC would belatedly like to link these potentially offsetting claims does not override the federal labor policy favoring expeditious enforcement of valid arbitration awards. CWC’s joinder motion was properly denied.

The judgment of the district court is affirmed. The Union’s request for attorney’s fees for a bad faith appeal is denied.

      . The Honorable HENRY WOODS, United States District Judge for the Eastern District of Arkansas.

      . We reject the Union's contention that CWC has waived or is collaterally estopped to pursue its claim against Keller for damaging CWC property. The property damage claim was not a defense to the Union's arbitration claim, CWC did not present this claim to the arbitrator, and property damage issues were not decided. Nor did CWC withhold information relevant to the fashioning of an appropriate remedy for the Union’s grievance, as the employer did in United Food & Commercial Workers Local 100A v. John Hofmeister & Son, Inc., 950 F.2d 1340, 1344-45 (7th Cir.1991).


text:
    Angela PIGGEE, Appellant, v. Jimmy JONES, Individually and as Superintendent of Schools of the Hope, Arkansas School District No. 1A; The Board of Education of the Hope, Arkansas School District No. 1A, Appellees.
    Nos. 95-2492, 95-3716.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1996.
    Decided May 24, 1996.
    Mark Burnett, Little Rock, Arkansas, argued (John W. Walker and Austin Porter, Little Rock, Arkansas, on the brief), for appellant.
    R. Gary Nutter, Texarkana, Arkansas, argued (William Clay Brazil, Conway, Arkansas, on the brief), for appellees.
    Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.
   PER CURIAM.

Angela Piggee appeals the district court’s ruling that the Arkansas Teacher Fair Dismissal Act of 1983, Ark.Code Ann. §§ 6-17-1501 et seq. (“TFDA”), does not create a property interest in the renewal of her teacher’s contract that is protected by the federal Constitution. She also contends the district court improperly denied her request for attorney’s fees after ruling in her favor on her state law claim that the Hope Arkansas School District violated the TFDA by renewing her elementary school principal’s contract at the assistant principal level. A review of the record and the parties’ contentions on appeal persuade us that the district court was correct in ruling (i) our decision in Hilton v. Pine Bluff Public Schools, 796 F.2d 230, 232 (8th Cir.1986), that the prior TFDA did not create a protected property interest in nonrenewal applies to the 1983 TFDA as well, see Hubbard v. Parker, 994 F.2d 529, 531 (8th Cir.1993); and (ii) a claim for violation of the TFDA’s mandatory procedures is not a claim “for labor or services, or breach of contract” for which attorney’s fees may be awarded to the prevailing party under Ark.Code Ann. § 16-22-308.

Accordingly, we affirm.