# 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 *

## -2-

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 *

## -3- _____________ 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 *

## -4-

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. *

## -5- ____________ Submitted: September 10, 1997
Filed: December 1, 1997

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

_____________
JOHN R. GIBSON, Circuit Judge.

The Jenk ins Class presents an application for fees for the appeal s that resulted in our affirmance of the district court's decision denying unitary status and ap proving 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 distric t court's order denying unitary status. Our decision on these appeals i s 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 unsu ccessful in its main goal of keeping the State in the case an d becaus e the Jenkins Class appeal sought unsuccessfully to enhance it s victoryin the district court. The State also argues that the Jenkin s Class's request should be reduced by sixty perce nt 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 th e Agreement, the Agreement issue was inextricabl y intertwined with the unitariness issue on which it did prevail. The State argues that the unitariness issue and Agreemen t issues were not inext ricably 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



## -6- The State also argues that if the Je nkins 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 p revail

on its other arguments, the court should exclude all time requested for th e staymotion 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 th e Agreement. This argument, however, is directly contrary to the ruling of the district court gr anting fees to the Jenkins Class for the trial court activities in litigating the unitary status/Agreement issues. The distric t court referred to these as inter-related claims. In affirming the distric t 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 appr oval of the agreement demonstrates the close inter

re lationship between the issues pertaining to unitary statu s and approval of the settlement. Indeed, the district court's fin dings that the achievement gap had not been remedied, bu t was t o be remedied within three years, and that the Green 1 factors, with the exception of extracurricular activities , wou ld be unitary within two or three years, were essentiall y the factual findings undergirding the district cour t's approval of the settlement between the State and the KCMSD.

## -7-

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 Octobe r 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 demonstrate d 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 th e Agreement was the assumption that KCMSD will be unitary within two to thre e yea rs. Id. at 601. We discussed in some detail the testimony of th e several witnesses. Id. at 601-02. Our discussi on leaves no question that the issues were closely inter-related. Therefore, the Jenkins Class i s 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 Clas s "appealed seeking to expand their victory by defeating the District Court' s approval of the Agreement." (citing Jenkins v. Missouri , 115 F.3d 554, 56 0 (8th Cir. 1997), as m odified , No. 96-3870, 1997 WL 629800 (8th Cir. Oct. 14, 1997) ( Jenkins Fees VI )). The Jenkins Class found itself caugh t between the State and KCMSD in an agreement by t he two that restricted the total amo unt of funds to be available for concluding the remedy for th e constitutional violat ions. 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 settlemen t to which it was not a party, the net result of which woul d reduce the funds available for the remedy. More over, we have already held that the Agreement issue was inextricably intert wined 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); J enkins v. Missouri , 862 F.2d 677 (8th Cir. 1988) ( Jenkins Fees II ); Jenkins v. Missouri , 931 F.2d 1273 (8th Cir.) (Je nkins 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 ).
-8- II.

The State further argues that if fees are awarded for the Agreement appeal, t he KCMSD should be required to pay them. It argues that th e district court's orde r 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 explic itlyin the Agreement itself. The Agreement provides generally : "[T]he Court shall not impose or order any further obligations on the Stat e and the State's only obligations during [the period in which the state is still mak ing payments] shall be those set forth in the Agreement." Th e lang uage of the Agreement recited that it was "contingent upon cour t approval" and, except for the section on interim payments, would not becom e binding o n any of the parties unless and until final court approval wa s obtained. Final court approval was said in section 2 to occur when "the District Court approves the Agreement and such a pproval has been upheld by the appell ate courts, or all appeals or requests for review have bee n dismis sed, whichever occurs earlier." The fee application before u s
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, th e litigation of the issues on the merits has been followed routinely b y requests for fees by the Jenkins Class, and upon occasion by others, and this in turn has spawned considerable additional litigation. We hav e publis hed six opinions on fee issues, one of which has gone on to th e 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 an y further duty tothe constitutional victims beyond the duty to pay the specified sums of money. The constitutional victims are not a partyto this agreement." 122 F.3d at 601.
-9- catalog the number of unpublished orders issued by this court dealing with fees. Under these circumstances, when the State and the KCMSD entered int o
an agreement to settle the claims and conclude the payments for the remedy , we cannot believe that fee litigation was a consideration that would escap e their attention. The State and the KCMSD could have specifically deal t 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 tha t it is foreclosed from seeking a fee from the Sta te for this litigation on both unitariness and the Agreement. First, the fees were incurred by the Jenkins Class before the action of this court inaffirming the approval of the Agreement, and se condly the final act that concludes liability of the State, the payment of the amounts due under the Agreement, has not ye t occurred. We theref ore 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.

Finall y, the State argues that time spent by the Jenkins Clas s attorneys seeking a stay order should be exclude d. 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 entire ly without effect, since it resulted in an expedited briefing and argument schedule for the appeal. Counsel for the Jenkins Class deducted from i ts fee request some of the time two of its attorneys recorded for the stay motion. We reject the argument that such time shoul d be excluded altogether.

## -10- In one respect, the State makes a valid assertion. Attorne y Lansford's time sheets submitted with the application show approximately one hour spent in talking to the media. We have held that public relation eff orts necessary to accomplish the objectives of the litigation may b e compensated under section 1988. Jenkins v. Missouri , 862 F.2d 677, 67 8 (8th Cir. 1988) ( Jenkins Fees II ). Since the Jenkins Class has no t informed the court of the purpose of attorney La nsford's press contacts so that we may determine if the services were neces sary 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.