## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2809

___________ 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 - Appellants * * Appeals from the United States American Federation of Teachers, Local* District Court for the 691, * Western District of Missouri.
* 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*-2-

D. Cunningham, Member of the * Missouri State Board of Education; * Terry M. Riley, Member of the Board of* Directors; Sharon M. Williams, Member* of the Missouri State Board of * Education; Lance Loewenstein, Member* of the Board of Directors; 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; Marilyn Simmons, Member * of the Board of Directors; Sandy * Aguire Mayer, Member of the Board of * Directors; School District of Kansas * City; Dr. Henry D. Williams, * Superintendent thereof; 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; John W. Still, Member of the* Board of Directors, *
* Defendants - Appellees. *

__________ No. 96-2918

__________ Chinyere Jenkins, by her next friend, * Joi Jenkins; Nicholas Paul Winchester- * Rabelier, by his next friend, Paula * Winchester; Margo Vaughn-Bey, by her *-3-

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 - 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; 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 *-4-

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. *

__________ No. 96-3215

__________ 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 *-5-

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 - 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; * 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, *
*-6-

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. *

__________ No. 96-3568

__________ 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, Deborah * Chadd-Peter; Leland Guess, by his next *-7-

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 * 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. *-8-

Henry R. 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.

__________ No. 96-3870

__________ Chineyere 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 - Appellants *-9- * American Federation of Teachers, Local* 691, *
* Intervenor *
*
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; * 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 - Appellees *
* School District of Kansas City; Dr. * Henry D. Williams, Superintendent * thereof; Terry M. Riley, Member of the * Board of Directors; Lance Loewenstein, *-10-

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 * 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. *

____________ Submitted: November 6, 1997
Filed: March 15, 1999

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

___________ JOHN R. GIBSON, Circuit Judge.

TheJenkins class seeks an award under 42 U.S.C. § 1988 (Supp. II 1996) for attorneys'fees and expenses incurred in defending against the State's petitions for rehearingon earlier fee awards. We grant an award of fees and expenses reduced to account for partial success.

After we awarded fees in Jenkinsv. Missouri , Nos. 96-2809, 96-2918, 96- 3215, and 96-3568 (8th Cir. July 11, 1997) (unpublished), and held that fees should-11-

beawarded in Jenkins v. Missouri , No. 96-3870, 115 F.3d 554 (8th Cir. 1997), the State petitioned for rehearing on both orders. Rehearing was denied as to No. 96- 2809 and consolidated cases, but granted as to No. 96-3870. Jenkinsv. Missouri , 124 F.3d1310 (8th Cir. 1997). We then entered a revised panel opinion in No. 96-3870 i n which we adhered to our original holding that fees should be awarded and in fact awarde d fees. However, we only awarded half the amount requested by the class, to reflectthe class's limited success in the particular matter for which fees were requested. Jenkinsv. Missouri , 127 F.3d 709 (8th Cir. 1997) (JenkinsFees VI ). The Jenkinsclass then requested an award of fees and expenses for defending against the rehearing petitions. The State and the KCMSD oppose the request.

The State argues that the Jenkins class is not entitled to fees because it was not successfulin resisting the rehearing petition in No. 96-3870. This is a question of whether the glass is half full or half empty, since the Jenkins class retained its award butsuffered a reduction from its requested amount. Fortunately, Hensleyv. Eckerhart , 461 U.S. 424 (1983), gives us a framework for handling such cases. As

wedeveloped at length in Jenkins Fees VI , 127 F.3d at 716, the Jenkinsclass is the prevailingparty in this litigation, and the litigation at issue in No. 96-3870 was integrallyrelated to the underlying case in which the class has been quite successful. 127 F.3d at 719. The fees requested here were incurred in work that was “useful and of a type ordinarily necessary.” Id. at 718 (quoting Pennsylvania v. Delaware Valley Citizens'Council , 478 U.S. 546, 561 (1986)). Because we held that an award of fees

wasproper in the two underlying appeals, it follows that defending against an attack

onthe propriety of those awards is also work that is a proper subject for a fee award.

TheKCMSD argues that fee awards for fee litigation must have an end, and thatawarding fees in this case will encourage counsel to file further requests “ in seriatimand in perpetuity.” The short answer to that argument is that the Jenkins class-12-

didnot file the rehearing petitions; it is hardly equitable to blame the class for litigation initiated by the State, which the class was required to defend.

Werecognized in JenkinsFees VIthat success in the particular matter litigated is “relevant but not determinative to the reasonableness of the fee” in that matter. 127 F.3dat 718. We therefore conclude that a reasonable fee for defending against the partiallysuccessful rehearing motion in No. 96-3870 is half the amount requested. We thus award the Jenkins class fees of $11,648.75 and expenses of $835.78 in No. 96-3870. In No. 96-2809 and consolidated cases, in which the rehearing petition was denied, we award full compensation of $1,840.35 for fees and expenses. As the fees andexpenses were all incurred before November 10, 1997, the State is liable for the award, in accordance with our opinion in Jenkinsv. Missouri , 158 F.3d 980, 983 (8 th Cir. 1998) (Jenkins Fees IX ).

A true copy.

Attest:

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