12
II.
The Arkansas Supreme Court’s order denying
Petitioners’ fee motion does not fairly appear to rest on federal law, rather than Petitioners’ state law procedural default.
While federal substantive law governs attorney’s
fee requests under 42 U.S.C. 1988, Arkansas procedural rules govern whether a fee request is timebarred and whether it was filed in the proper court. See
Hart, The Relations between State and Federal Law, 54
COLUM. L. REV. 489, 508 (1954) (“The general rule, bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes
the state courts as it finds them.”). Petitioners do not
argue otherwise. See Pet. 14–15 (acknowledging Arkansas’s procedural rules regarding attorney’s fees).
Under Arkansas law, where a party “fail[s] to comply
with Rule 54(e) of the rules of civil procedure,” which
Petitioners concede governs attorney’s fee requests,
she “is not entitled to receive attorney’s fees or other
expenses.” Norman v. Norman, 66 S.W.3d 635, 640
(Ark. 2002); see also Morehouse v. Lawson, 206 S.W.3d
295, 300 (Ark. Ct. App. 2005) (reversing trial court’s
award of attorney’s fees where motion was untimely
under Rule 54(e)).
Here, Petitioners failed to comply with Arkansas’s
procedural rules governing attorney’s fee requests and
therefore forfeited any ability to seek the fees they requested. In the proceedings below, Petitioners argued
that the trial court was the proper court to consider
Petitioners’ request for appellate attorney’s fees. Yet
they actually submitted their request for appellate fees