___________

No. 95-1829

___________

Kalima Jenkins, by her friend, *

Kamau Agyei; Carolyn Dawson, by *

her next friend, Richard Dawson;*

Tufanza A. Byrd, by her next *

friend, Teresa Byrd; Derek A. *

Dydell; Terrance Cason, by his *

next friend, Antoria Cason; *

Jonathan Wiggins, by his next *

friend, Rosemary Jacobs Love; *

Kirk Allan Ward, by his next *

friend, Mary Ward; Robert M. *

Hall, by his next friend, *

Denise Hall; Dwayne A. *

Turrentine, by his next friend, *

Sheila Turrentine; Gregory A. *

Pugh, by his next friend, David *

Winters, on behalf of *

themselves and all others *

similarly situated, * Appeal from the United States

* District Court for the

 Plaintiffs - Appellees, * Western District of Missouri.

*

American Federation of *

Teachers, Local 691, *

*

 Intervenor - 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 Missouri State *

Board of Education; Sharon M. *

Williams, Member of the *
-2-

Missouri State Board of *

Education; Betty Preston, *

Member of the Missouri State *

Board of Education; Russell *

Thompson, Member of the *

Missouri State Board of *

Education; Jacquelline *

Wellington, Member of the *

Missouri State Board of *

Education, *

*

 Defendants - Appellants, *

*

School District of Kansas City; *

Walter L. Marks, Superintendent *

thereof; Paul V. Arena, 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; Terry Hamilton- *

Poore, Member of the Board of *

Directors; Dr. Julia H. Hill, *

Member of the Board of *

Directors; Carol A. Shank, *

Member of the Board of *

Directors; John W. Still, *

Member of the Board of *

Directors, ** Defendants - Appellees. *

___________

 Submitted: September 12, 1995

 Filed: January 8, 1996 ___________

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

___________

JOHN R. GIBSON, Circuit Judge.

The State of Missouri appeals from an award of attorneys' fees

to attorneys for the Jenkins class for representing the class in
 1

The Honorable Russell G. Clark, United States District Judge

for the Western District of Missouri.

-3-

opposing the adoption of the ShareNet program as part of a

voluntary interdistrict transfer plan. The district court approved

the ShareNet program, but we reversed in Jenkins v. Missouri, 38

F.3d 960 (8th Cir. 1994) (Jenkins XII). The State argues that the

Jenkins class attorneys are not entitled to fees because ShareNet

was not proposed as part of the remedy, and because the State, as

well as the Jenkins class, opposed ShareNet. The State also urges

us to reconsider our opinion in Jenkins v. Missouri, 967 F.2d 1248

(8th Cir. 1992) (Jenkins Fees IV). We affirm the judgment of the

district court.1

The Desegregation Monitoring Committee (DMC) proposed a

program in which students in suburban districts would communicate

by electronic mail or fax with students in the Kansas City,

Missouri School District (KCMSD). The district court approved the

plan as an initial positive step toward establishing a voluntary

interdistrict transfer plan. The Jenkins class, the KCMSD, and the

State all appealed from entry of the order. We held in Jenkins

XII, 38 F.3d at 965, that the ShareNet plan lay outside the limited

area available to the district court in crafting a desegregation

remedy under Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken

II).

The Jenkins class then sought fees and expenses from the State

of Missouri for its role in opposing the ShareNet program. The

district court concluded that the class incurred the attorneys'

fees in defending the desegregation remedy. Order of February 28,

1995, slip op. at 2. The court rejected the State's arguments that

the class was not a prevailing party because it did not obtain a

"benefit from victory which was the object of filing the lawsuit."

Id. at 1-2. The court also held that whether the State opposed the

ShareNet program was not a relevant factor in deciding whether to
-4-

award fees under Jenkins Fees IV. Id. at 2. The court awarded

$14,369.06 in attorneys' fees and expenses. The State appeals.

I.

The State first argues that the Jenkins class's fees were not

incurred "in defense of the remedy." This argument is based on

language in our opinion in Jenkins Fees IV. There, we permitted

the award of fees to the Jenkins class against the State for

defending the Jenkins remedy against attack by intervenors. At the

same time, we reversed the award of fees to the Jenkins class

against the State for defending against a collateral attack in a

separate lawsuit proposing an alternative, supplemental remedy (the

Rivarde case). Jenkins Fees IV, 967 F.2d at 1252. The State

argues that the ShareNet plan was like the alternative remedy for

which we reversed the fee award in Jenkins Fees IV, and that

therefore, we must reverse the fee award in this case.

There are several flaws in the State's reasoning. First, the

State ignores the principal holding about the Rivarde case in

Jenkins Fees IV. The primary basis for denying the fee award for

Rivarde was simply that Rivarde was a separate lawsuit and the

Supreme Court had disapproved of awarding fees in one case for

services rendered in another. We said:

We believe that this question must be decided on the

basis of [Independent Federation of Flight Attendants v.

Zipes, 491 U.S. 754 (1989)]. Part of the Zipes

majority's reasoning was that plaintiffs should not be

awarded fees against intervenors, since they would not be

entitled to fees had the intervenors chosen to bring suit

in a collateral attack. 491 U.S. at 762. Rivarde was,

of course, a collateral attack, and therefore Zipes would

seem to forbid an award of fees in Jenkins for services

rendered in Rivarde.

967 F.2d at 1252. We belabor the obvious to say that the ShareNet
-5-

litigation occurred as part of the Jenkins case. Therefore, it

falls on the compensable side of the line we drew in Jenkins Fees

IV. 

This case differs critically from Rivarde in that it is not a

collateral suit and does not involve fees attributable to an

intervention. To the contrary, ShareNet was proposed by the

Desegregation Monitoring Committee, which is not an intervenor or

a stranger to the Jenkins suit, but rather an arm of the court.

See Jenkins v. Missouri, 890 F.2d 65, 67-68 (8th Cir. 1989)

(Jenkins III). The district court instituted the DMC to help

monitor the remedy. We approved the creation of the DMC. See id.

The DMC suggested the ShareNet program in its official capacity.

As we stated in Jenkins Fees IV, Zipes only considered whether it

was proper to award fees against an intervenor; Zipes does not

address the question of whether a defendant can be held liable for

fees incurred in litigation against an intervenor. 967 F.2d at

1250. Nor does Zipes consider the present situation, where the

fees were incurred due to suggestions made by an arm of the court.

Because the fees resulted from a suggestion of the DMC, this case

presents a stronger case for fee-shifting than did the award of

fees for intervenor litigation which we affirmed in Jenkins Fees

IV. 

The second flaw in the State's reasoning is its erroneous

assertion that the defeat of the ShareNet program did not aid the

Jenkins remedy. In making this argument the State relies on

language from Jenkins Fees IV that was phrased as a postscript to

the primary holding:

Further, in Rivarde the thrust of the litigation was

inadequacy of the remedy and the proposal of an

alternative remedy in addition to that in Jenkins. In

issues as close as those before us, this also militates

against awarding fees incurred in Rivarde.
-6-

967 F.2d at 1252. We did not state that the distinction between

defending against an attack on the remedy and defending against a

proposal of a supplemental remedy would, alone, have decided the

Jenkins Fees IV case. The State wrongly concludes that the Jenkins

Fees IV case turned on the distinction between defending against

proposals that would undo the remedy and those that would

supplement it.

Even indulging the State's erroneous assumption, this case

involves a program that threatened the integrity of the remedy, as

we held in Jenkins XII: 

There was testimony that the [ShareNet] program would

more likely have a negative effect on desegregation, that

it was incompatible with certain KCMSD magnet themes, and

that it might compete with the district's computer

magnets for suburban transfer students. In addition,

there was testimony that the requirement of two hour

blocks of time set aside for utilization of the program

would have a deleterious influence on not only the magnet

programs in many of the schools, but the other

educational programs in KCMSD.

38 F.3d at 965. Therefore, the Jenkins class was acting in defense

of the remedy when it incurred fees warding off the ShareNet

program. We reject the State's arguments based on Jenkins Fees IV.

II.

The State argues that the district court could not award the

Jenkins class fees against the State for opposing the ShareNet

plan, since the State as well as the Jenkins class opposed the

plan. The State cites United States ex rel. Taxpayers Against

Fraud v. General Electric Co., 41 F.3d 1032, 1045-46 (6th Cir.

1994); Bigby v. City of Chicago, 927 F.2d 1426, 1429 (7th Cir.

1991); Reeves v. Harrell, 791 F.2d 1481, 1484 (11th Cir. 1986),

cert. denied, 479 U.S. 1033 (1987); Action on Smoking and Health v.

CAB, 724 F.2d 211, 216 (D.C. Cir. 1984); and Firebird Society v.
 2

The State and the Jenkins class both claim that they took the

laboring oar in opposing ShareNet. We need not resolve that

question, since it does not bear directly on any issue relevant to

our decision.

 3We said in Jenkins Fees IV:

[G]iven the special nature of desegregation cases,

withholding from the plaintiffs the means for paying

their attorneys could be devastating to the national

policy of enforcing civil rights laws through the use of

private attorneys general. School desegregation cases

can continue for years and affect nearly everyone in the

community in one way or another. Various interventions

and collateral attacks are not only predictable, but

inevitable in litigation affecting so many people in so

many different capacities. Furthermore, a school

desegregation case differs from much other litigation in

that the main action does not result in a monetary

recovery that might enable plaintiffs to finance a

defense against collateral attacks on their judgments.

The only monetary award received by the plaintiffs in a

desegregation case is simply payment of their attorneys'

fees, and it is inequitable to require the attorney for

the class to defend against collateral attacks on the

award. Such service is just as much a part of the

representation of the plaintiff class as obtaining relief

in the first instance. To deny plaintiffs fees in a

desegregation case would be to deny them the means to

respond to attacks on the remedy. Monitoring

implementation of the remedy is a crucial part of the

-7-

Board of Fire Commissioners, 556 F.2d 642, 644 (2d Cir. 1977) (per

curiam). If these cases hold that a court can only award

attorneys' fees against a defendant if the fees were incurred

directly litigating against the defendant, they conflict with

Jenkins Fees IV. However, since none of these cases involve school

desegregation litigation, they are distinguishable from Jenkins

Fees IV, which depends on the special nature of school

desegregation cases. See 967 F.2d at 1251. The reasons we gave

for permitting recovery in Jenkins Fees IV still exist here,

despite the fact that the State joined the Jenkins class in

opposing ShareNet.2 In Jenkins Fees IV we stressed that in school

desegregation cases there is no money award from which the

plaintiffs can pay extra fee expenses.3

 Moreover, interventions
plaintiffs' function in these cases: "Services devoted

to reasonable monitoring of the court's decrees, both to

insure full compliance and to ensure that the plan is

indeed working to desegregate the school system, are

compensable services. They are essential to the longterm success of the plaintiff's suit." Northcross v.

Board of Educ., 611 F.2d 624, 637 (6th Cir. 1979), cert.

denied, 447 U.S. 911 (1980).

[Moreover,] the State, unlike the intervenor in

Zipes, is a constitutional violator, and not entitled to

the solicitude Zipes showed the "blameless" intervenor.

See 491 U.S. at 761.

967 F.2d at 1251.

 4These include the cases we discuss at page 6, supra, and Rum

Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 177 (4th Cir.

1994), which disagrees with our reading of Zipes. 

-8-

and the attendant expenses are practically unavoidable in

litigation proceeding over long periods of time and affecting so

many people. Therefore, attorneys' fees must be available to

permit school desegregation plaintiffs to defend the remedy, or

else prevailing on the merits against the original defendants would

become a meaningless victory for plaintiffs who cannot afford to

defend the remedy against later intervenors. We held that it is

equitable to require the State, as a constitutional violator, to

pay the fees necessary to defend the remedy.

Therefore, the State's opposition to ShareNet does not exempt

it from liability for fees under the reasoning of Jenkins Fees IV.

III.

The State argues that, based on cases from other circuits,4

 we

should overrule Jenkins Fees IV. These cases all consider whether

defendants can be made to pay plaintiffs' fees incurred in

litigating against intervenors; those cases are not relevant here,

where the litigation did not involve an intervenor, but the DMC, an

arm of the court.
-9-

We further observe that none of the cases relied upon by the

State involved defending or monitoring implementation of a

desegregation remedy. We thus do not see these cases as contrary

appellate authority to our decision in Jenkins Fees IV. 

Finally, Jenkins Fees IV, as a decision of a panel, is the law

of the circuit and binds other panels. It may only be reconsidered

and overruled by the court en banc. Even though the same three

judges hearing this case were the panel in Jenkins Fees IV, we are

not at liberty to refuse to follow our earlier case, and the State

has not advanced any argument of sufficient merit to convince us to

suggest rehearing en banc.

We affirm the judgment of the district court. 

A true copy.

Attest:

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