Chinyere Jenkins v. State of Missouri , 73 F.3d 201 ( 1996 )

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No. 95-1829
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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 *
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. *
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Submitted: September 12, 1995
Filed: January 8, 1996
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Before McMILLIAN, HEANEY and JOHN R. GIBSON, Circuit Judges.
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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
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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
1
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
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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
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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.
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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.
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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
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.
3
We 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
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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.
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 long-
term 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.
4
These 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.
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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.
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