# United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2626

_____________ 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- * Appeal from the United States Peter; Leland Guess, by his next friend, * District Court for the Sharon Guess, * Western District of Missouri. * Plaintiffs - Appellees * (UNPUBLISHED) * American Federation of Teachers, Local * 691, * * Intervenor * * v. * * State of Missouri; Mel Carnahan, * Governor of the State of Missouri; Bob * Holden,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 *

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Education of the State of Missouri; 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; William Kahn, Member of * the Missouri State Board of Education, * * Defendants - Appellants * * School District of Kansas City; 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; Henry D. Williams, * Superintendent; John W. Still, Member * of the Board of Directors, * * Defendants. *

## The Jenkin s Class has moved to vacate the stay of execution. In light of our 1 

## decision, the motion is moot.
-3- ___________ Submitted: August 12, 1997 Filed: August 14, 199 7

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

_____________ PER CURIAM. The State of Missouri appeals from an order of the district cour t granting fees and expenses to the Jenkins Class, including expert fees, fo r services rendered in the first three quarters of Year XII of the remedy. Those services included litigation of the State's motions for unitar y statu s and for approval of the State's agreement with the Kansas City , Missouri School District. District Court Order of March 27, 1997. I n addition, the district court entered a stay of execution pending appeal. District Court Order of May 14, 1997. We affirm the order granting fees and expenses to the Jenkins Class. 1

The district court held that the KCMSD was not yet unitary, bu t nevert heless approved the agreement between the State and the KCMSD

. Jenkins v. Missouri , 959 F. Supp. 1151 (W.D. Mo.), aff'd , 1997 WL 456549, No. 97-1968, 97-2078 (8th Cir. Aug. 12, 1997). The State argues that the fee award should be reduced because the Jenkins Class failed to preven t dismissal of the State from the litigation. The district court found that the issues were interrelated, Order of March 27, 1997, slip op. at 7,

## Green v. County School Bd. , 391 U.S. 430 (1968). 2


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The St ate argues that the district court erred in allowing th e shifti ng of expert witness fees, contrary to West Virginia Universit y Hospitals, Inc. v. Casey , 499 U.S. 83 (1991). The district court's order recited that plaintiffs had not claimed $17,359. 10 in expert expenses that clearly related to litigation. Order of March 27, 1997, slip op.

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at 9-10. The State specifically objected to a fee of $982.50 for Robert Thaler's work in computational assistance for pr eparing an analysis of the vestiges of segregation for Dr. Robert Crain, an d $11,275.00 for Dr. Crain and hi s associates for work that included scale construction an d pre parationof charts. With respect to Thaler's services, the distric t court stated that the work was completed in December and included helping Dr. Crain in analyzin g the vestiges of prior discrimination. Slip op. at 10. As one of the Jenkins Class's duties was as sessing the status of the KCMSD to monitor racial balance and racial attit udes, the court found that this expense was a reasonable cost for those monitoring activities. Id. at 11. With respect to the request for the workdone by Dr. Robert Crain, the court reduced the request by $1,000 for preparation of charts, which
was clearly litigation-related activity, and found that the othe r categories of expense, $10,275, were reasonable monitoring activities. Th e court allowed a payme nt of $1,380 for a video production that the Jenkins Class cou nsel used at the unitariness hearing. It found that the vide o showeda teaching method that the Jenkins Class had mentioned throughout the proceedings, and the video was useful because it gave form an d substance to an abstract teaching method. Id. at 11-12.

The St ate argues that the expert witness fees of Dr. Crain are no t recoverable because 4 2 U.S.C. § 1988 (b) (1994), as interpreted in Casey , gives no authority to shift expert fees for either testimonial or non

testimonial work. We are persuaded, however, that the district court did not err in concluding that Dr. Crain's work was monitoring activity, which the Jenkins Class has the responsibility to conduct and for which it has the right to be compensated. See Jenkins v. Mis souri , 967 F.2d 1248, 1251 (8th Cir. 1992) ("Monitoring implementation of the remedy is a crucial par t of the plaintiffs' function in these cases . . .").

### -6- The State also appeals the award of 13.5 hours for legal research on the Equal Educationa l Opportunities Act. These fees total $877.50. The distri ct court found that attorneys often research different courses t o follow in litigation efforts, and the hours were not excessive for a path that "did not lead where plaintiffs thought it m ight." Order of March 27, 1997, slip op. at 9. We reject the State's argument.

We affirm

the fees awarded for the first, second and third quarters of Year XII in the amounts which we have catalogued above.

A true copy.

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