United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

_____________

 No. 97-1968

_____________

 

Chinyere Jenkins, by her next friend, *

Joi Jenkins; Nicholas Paul Winchester- *

Rabelier, by his next friend, Paula *

Winchester; Margo Vaughn-Bey, by her *

next friend, Franklin Vaughn-Bey; *

Nicholas C. Light, by his next friend, *

Marian Light; Stephon D. Jackson, by *

his next friend, B. J. Jones; Travis N. *

Peter, by his next friend, Debora Chadd- *

Appeals from the United States

Peter; Leland Guess, by his next friend, *

District Court for the

Sharon Guess, * Western District of Missouri.

*

Plaintiffs - Appellants *

*

American Federation of Teachers, Local *

691, *

*

Intervenor below - Appellee *

*

v. *

*

State of Missouri; Mel Carnahan, *

Governor of the State of Missouri; Bob *

Holden, Treasurer of the State of *

Missouri; Missouri State Board of *

Education; Peter Herschend, Member of *

the Missouri State Board of Education; *

Thomas R. Davis, Member of the *
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Missouri State Board of Education; *

Robert E. Bartman, Commissioner of *

Education of the State of Missouri; Gary *

D. Cunningham, Member of the *

Missouri State Board of Education; Rice *

Pete Burns, Member of the Missouri *

State Board of Education; Sharon M. *

Williams, Member of the Missouri State *

Board of Education; Betty Preston, *

Member of the Missouri State Board of *

Education; Jacquelline Wellington, *

Member of the Missouri State Board of *

Education; Russell Thompson, *

Member of the Missouri State Board of *

Education; School District of Kansas *

City; Dr. Henry D. Williams, *

Superintendent thereof; Terry M. Riley, *

Member of the Board of Directors; *

Lance Loewenstein, Member of the *

Board of Directors; Marilyn Simmons, *

Member of the Board of Directors; *

Sandy Aguire Mayer, Member of the *

Board of Directors; John A. Rios, *

Member of the Board of Directors; *

Darwin Curls, Member of the Board of *

Directors; Patricia Kurtz, Member of the *

Board of Directors; Edward J. *

Newsome, Member of the Board of *

Directors; Dr. Julia H. Hill, Member of *

the Board of Directors; John W. Still, *

Member of the Board of Directors, *

*

Defendants - Appellees *
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_____________

 No. 97-2078

_____________

Chinyere Jenkins, by her next friend, *

Joi Jenkins; Nicholas Paul Winchester- *

Rabelier, by his next friend, Paula *

Winchester; Margo Vaughn-Bey, by her *

next friend, Franklin Vaughn-Bey; *

Nicholas C. Light, by his next friend, *

Marian Light; Stephon D. Jackson, by *

his next friend, B. J. Jones; Travis N. *

Peter, by his next friend, Debora Chadd- *

Peter; Leland Guess, by his next friend, *

Sharon Guess; *

*

Plaintiffs - Appellees *

*

American Federation of Teachers, Local *

691, *

*

Intervenor below - Appellee *

*

v. *

*

State of Missouri; Mel Carnahan, *

Governor of the State of Missouri; Bob *

Holden, Treasurer of the State of *

Missouri; Missouri State Board of *

Education; Peter Herschend, Member of *

the Missouri State Board of Education; *

Thomas R. Davis, Member of the *

Missouri State Board of Education; *

Robert E. Bartman, Commissioner of *

Education of the State of Missouri; Gary *

D. Cunningham, Member of the *
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Missouri State Board of Education; Rice *

Pete Burns, Member of the Missouri *

State Board of Education; Sharon M. *

Williams, Member of the Missouri State *

Board of Education; Betty Preston, *

Member of the Missouri State Board of *

Education; Jacquelline Wellington, *

Member of the Missouri State Board of *

Education; Russell Thompson, Member *

of the Missouri State Board of *

Education; *

*

Defendants - Appellants *

*

School District of Kansas City; Dr. *

Henry D. Williams, Superintendent *

thereof; Terry M. Riley, Member of the *

Board of Directors; Lance Loewenstein, *

Member of the Board of Directors; *

Marilyn Simmons, Member of the Board *

of Directors; Sandy Aguire Mayer, *

Member of the Board of Directors; John *

A. Rios, Member of the Board of *

Directors; Darwin Curls, Member of the *

Board of Directors; Patricia Kurtz, *

Member of the Board of Directors; *

Edward J. Newsome, Member of the *

Board of Directors; Dr. Julia H. Hill, *

Member of the Board of Directors; John *

W. Still, Member of the Board of *

Directors, *

*

Defendants - Appellees. *
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____________

 Submitted: September 10, 1997

Filed: December 1, 1997

_____________

Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.

_____________

JOHN R. GIBSON, Circuit Judge.

The Jenkins Class presents an application for fees for the appeals

that resulted in our affirmance of the district court's decision denying

unitary status and approving the settlement between the State of Missouri

and the Kansas City, Missouri School District. The Jenkins Class appealed

the order approving the settlement, and the State appealed the district

court's order denying unitary status. Our decision on these appeals is

Jenkins v. State of Missouri, 122 F.3d 588 (8th Cir. 1997) (Jenkins XIV ).

The State objects to the request for a fee because the Jenkins Class

was unsuccessful in its main goal of keeping the State in the case and

because the Jenkins Class appeal sought unsuccessfully to enhance its

victory in the district court. The State also argues that the Jenkins

Class's request should be reduced by sixty percent to account for the lack

of success on the Agreement appeal. The Jenkins Class responds that, even

though it did not succeed in its challenge to the Agreement, the Agreement

issue was inextricably intertwined with the unitariness issue on which it

did prevail. The State argues that the unitariness issue and Agreement

issues were not inextricably intertwined, and therefore the Jenkins Class

should not receive fees for briefing its appeal of the district court's

approval of the Agreement.
Green v. County School Bd., 391 U.S. 430 (1968). 1

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The State also argues that if the Jenkins Class receives any fee, it

should be paid by KCMSD under the terms of the settlement Agreement. 

The final position of the State is that, should the State not prevail

on its other arguments, the court should exclude all time requested for the

stay motion filed by the Jenkins Class and time spent by counsel for the

Jenkins Class in discussions with the media.

I.

The State first argues that the unitary status and agreement issues

were not inextricably intertwined, and thus the Class should not receive

fees for briefing the appeal of the district court's approval of the

Agreement. This argument, however, is directly contrary to the ruling of

the district court granting fees to the Jenkins Class for the trial court

activities in litigating the unitary status/Agreement issues. The district

court referred to these as inter-related claims. In affirming the district

court order, we stated in our unpublished order in Jenkins v. Missouri, No.

97-2626, 1997 WL 464173 (8th Cir. Aug. 14, 1997) (unpublished), vacated in

part on different grounds, (8th Cir. Oct. 10, 1997): 

The district court's order on the motions for unitariness and

approval of the agreement demonstrates the close interrelationship between the issues pertaining to unitary status

and approval of the settlement. Indeed, the district court's

findings that the achievement gap had not been remedied, but

was to be remedied within three years, and that the Green1

factors, with the exception of extracurricular activities,

would be unitary within two or three years, were essentially

the factual findings undergirding the district court's approval

of the settlement between the State and the KCMSD.
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Id. at **1. (Footnote omitted). The State filed a motion for rehearing

en banc with respect to that order, directed only to the issue of expert

witness fees. This court has granted the State's motion. Order of October

10, 1997. The State did not challenge that part of our order in No. 97-

2626 which concerns the same issues before us in this appeal.

The inter-relation between the Agreement issues and the unitariness

issues is demonstrated in our opinion in Jenkins XIV, 122 F.3d at 601-03.

We stated that the basic foundation of the district court's approval of the

Agreement was the assumption that KCMSD will be unitary within two to three

years. Id. at 601. We discussed in some detail the testimony of the

several witnesses. Id. at 601-02. Our discussion leaves no question that

the issues were closely inter-related. Therefore, the Jenkins Class is

entitled to a fee for both the work in defending the State's appeal of the

unitariness issue and the Agreement issues.

 

We further reject the State's argument that the Jenkins Class

"appealed seeking to expand their victory by defeating the District Court's

approval of the Agreement." (citing Jenkins v. Missouri, 115 F.3d 554, 560

(8th Cir. 1997), as modified, No. 96-3870, 1997 WL 629800 (8th Cir. Oct.

14, 1997) (Jenkins Fees VI)). The Jenkins Class found itself caught

between the State and KCMSD in an agreement by the two that restricted the

total amount of funds to be available for concluding the remedy for the

constitutional violations. We have no hesitation in saying that, in this

two on one struggle, the Jenkins Class's participation in the appeal was

as a whole defensive, not only in defending the ruling rejecting a finding

of unitariness, but also in attempting to escape the imposition of a

settlement to which it was not a party, the net result of which would

reduce the funds available for the remedy. Moreover, we have already held

that the Agreement issue was inextricably intertwined with the unitariness

issue, in which the Class was in this court defending its success below.
Jenkins v. Missouri, 838 F.2d 260 (8th Cir. 1988) (Jenkins Fees I), aff'd, 491 2

U.S. 274 (1989); Jenkins v. Missouri, 862 F.2d 677 (8th Cir. 1988) (Jenkins Fees II);

Jenkins v. Missouri, 931 F.2d 1273 (8th Cir.) (Jenkins Fees III), cert. denied, 502 U.S.

925 (1991); Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992) (Jenkins Fees IV);

Jenkins v. Missouri, 73 F.3d 201 (8th Cir. 1996) (Jenkins Fees V); Jenkins v. Missouri,

No. 96-3870, 1997 WL 329800 (8th Cir. Oct. 14, 1997) (Jenkins Fees VI).

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II.

The State further argues that if fees are awarded for the Agreement

appeal, the KCMSD should be required to pay them. It argues that the

district court's order approving the Agreement affirmed by this court, as

well as the Agreement itself, requires that the KCMSD bear this burden. 

The issue of attorneys' fees for the Jenkins Class is not dealt with

explicitly in the Agreement itself. The Agreement provides generally:

"[T]he Court shall not impose or order any further obligations on the State

and the State's only obligations during [the period in which the state is

still making payments] shall be those set forth in the Agreement." The

language of the Agreement recited that it was "contingent upon court

approval" and, except for the section on interim payments, would not become

binding on any of the parties unless and until final court approval was

obtained. Final court approval was said in section 2 to occur when "the

District Court approves the Agreement and such approval has been upheld by

the appellate courts, or all appeals or requests for review have been

dismissed, whichever occurs earlier." The fee application before us

concerns work performed before our judicial approval of the Agreement, and,

therefore, before the Agreement effectively altered the parties' relations.

As the long history of this litigation has demonstrated to all parties, the

litigation of the issues on the merits has been followed routinely by

requests for fees by the Jenkins Class, and upon occasion by others, and

this in turn has spawned considerable additional litigation. We have

published six opinions on fee issues, one of which has gone on to the

2

Supreme Court, and it would not be fruitful for us to
On several occasions, the State refers to "the three party Agreement," evidently 3

overlooking our statement in Jenkins XIV: "The two constitutional violators, the State

and the KCMSD, have agreed to release one of the violators, the State, from any

further duty to the constitutional victims beyond the duty to pay the specified sums of

money. The constitutional victims are not a party to this agreement." 122 F.3d at 601.

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catalog the number of unpublished orders issued by this court dealing with

fees. Under these circumstances, when the State and the KCMSD entered into

an agreement to settle the claims and conclude the payments for the remedy,

we cannot believe that fee litigation was a consideration that would escape

their attention. The State and the KCMSD could have specifically dealt

with this issue had they so chosen, but they did not do so. Further, as

the Jenkins Class was not a party to the Agreement, we cannot conclude that

it is foreclosed from seeking a fee from the State for this litigation on

both unitariness and the Agreement. First, the fees were incurred by the

Jenkins Class before the action of this court in affirming the approval of

the Agreement, and secondly the final act that concludes liability of the

State, the payment of the amounts due under the Agreement, has not yet

occurred. We therefore conclude that the terms of the Agreement did not

shift to the KCMSD any liability for an award of statutory attorneys' fees

incurred in opposing the district court's adoption of the Agreement.3

III.

Finally, the State argues that time spent by the Jenkins Class

attorneys seeking a stay order should be excluded. The motion for stay of

the district court's order pending the appeal was directly related to the

appellate activity before this court. We took the motion with the case,

to be disposed of at the time of disposition on the merits. However, the

motion was not entirely without effect, since it resulted in an expedited

briefing and argument schedule for the appeal. Counsel for the Jenkins

Class deducted from its fee request some of the time two of its attorneys

recorded for the stay motion. We reject the argument that such time should

be excluded altogether. 
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In one respect, the State makes a valid assertion. Attorney

Lansford's time sheets submitted with the application show approximately

one hour spent in talking to the media. We have held that public relation

efforts necessary to accomplish the objectives of the litigation may be

compensated under section 1988. Jenkins v. Missouri, 862 F.2d 677, 678

(8th Cir. 1988) (Jenkins Fees II). Since the Jenkins Class has not

informed the court of the purpose of attorney Lansford's press contacts so

that we may determine if the services were necessary to the litigation, we

disallow the hour.

IV.

We award the Jenkins Class fees and expenses as follows: 

Fees 

$68,295.00

Expenses $ 2,524.02

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.