chinyere-jenkins-by-her-next-friend-joi-jenkins-nicholas-paul , 170 F.3d 846 ( 1999 )

170 F.3d 846

133 Ed. Law Rep. 344

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,
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; 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.
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-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. 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.
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-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. 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.
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 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 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.
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,
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, 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.

Nos. 96-2809, 96-2918, 96-3215, 96-3568 and 96-3870.

United States Court of Appeals,
Eighth Circuit.

Submitted Nov. 6, 1997.
Decided March 15, 1999.

Arthur A. Benson, II, Jamie Kathryn Lansford, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, John R. Munich, Michael J. Fields, Bart A. Matanic, for Appellee.

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

JOHN R. GIBSON, Circuit Judge.

1

The Jenkins 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 rehearing on earlier fee awards. We grant an award of fees and expenses reduced to account for partial success.

2

After we awarded fees in Jenkins v. Missouri, Nos. 96-2809, 96-2918, 96-3215, and 96-3568 (8th Cir. July 11, 1997) (unpublished), and held that fees should be awarded in Jenkins v. Missouri, 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. Jenkins v. Missouri, 124 F.3d 1310 (8th Cir.1997). We then entered a revised panel opinion in No. 96-3870 in which we adhered to our original holding that fees should be awarded and in fact awarded fees. However, we only awarded half the amount requested by the class, to reflect the class's limited success in the particular matter for which fees were requested. Jenkins v. Missouri, 127 F.3d 709 (8th Cir.1997) (Jenkins Fees VI ). The Jenkins class then requested an award of fees and expenses for defending against the rehearing petitions. The State and the KCMSD oppose the request.

3

The State argues that the Jenkins class is not entitled to fees because it was not successful in 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 but suffered a reduction from its requested amount. Fortunately, Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), gives us a framework for handling such cases. As we developed at length in Jenkins Fees VI, 127 F.3d at 716, the Jenkins class is the prevailing party in this litigation, and the litigation at issue in No. 96-3870 was integrally related 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, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986)). Because we held that an award of fees was proper in the two underlying appeals, it follows that defending against an attack on the propriety of those awards is also work that is a proper subject for a fee award.

4

The KCMSD argues that fee awards for fee litigation must have an end, and that awarding fees in this case will encourage counsel to file further requests "in seriatim and in perpetuity." The short answer to that argument is that the Jenkins class did not 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.

5

We recognized in Jenkins Fees VI that success in the particular matter litigated is "relevant but not determinative to the reasonableness of the fee" in that matter. 127 F.3d at 718. We therefore conclude that a reasonable fee for defending against the partially successful 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 and expenses were all incurred before November 10, 1997, the State is liable for the award, in accordance with our opinion in Jenkins v. Missouri, 158 F.3d 980, 983 (8th Cir.1998) (Jenkins Fees IX ).