Jenkins by Agyei v. State of Mo., 95-1829

• Decision Date: 04 March 1996
• Docket Number: No. 95-1829,95-1829
• Citation: 73 F.3d 201
• Parties: 106 Ed. Law Rep. 80 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, 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; Sharon M. Williams, Member of the 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.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 201

73 F.3d 201

106 Ed. Law Rep. 80

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, 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; Sharon M. Williams, Member of the 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.

No. 95-1829.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 12, 1995.

Decided Jan. 8, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied March

4, 1996. ^*

Bart A. Matanic, Assistant Attorney General, argued (John R. Munich, Chief Counsel for Litigation, and Michael J. Fields, Assistant Attorney General, on brief), for appellant.

Arthur A. Benson of Kansas City, Missouri, argued (Dianne E. Moritz of Kansas City, Missouri, on brief), for appellee.

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 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, 97 S.Ct. 2749, 53 L.Ed.2d 745 (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 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, 109 S.Ct. 2732, 105 L.Ed.2d 639 (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 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.

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, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987); Action on Smoking and Health...