                 United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-3870
                                 ___________

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;          *   Appeal from the United States
Leland Guess, by his next            *   District Court for the
friend, Sharon Guess,                *   Western District of Missouri.
                                     *
     Plaintiffs - Appellants,        *
                                     *
American Federation of               *
Teachers, Local 691,                 *
                                     *
     Intervenor below,               *
                                     *
     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 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.                      *

                                ___________

                   Submitted:     March 17, 1997

                       Filed:   May 22, 1997
                                ___________




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


JOHN R. GIBSON, Circuit Judge.


     The plaintiffs in the Kansas City school desegregation case appeal
the district court’s order denying them an award of attorneys’ fees for
their participation in the proceedings in the Supreme Court that culminated
in Missouri v. Jenkins, 115 S. Ct. 2038 (1995) (Jenkins III).   The district
court denied fees on the theory that, since the Supreme Court decided
Jenkins III against the Jenkins class, the Jenkins class could not be
considered the "prevailing party" within the meaning of the Civil Rights
Attorney's Fees Awards Act of 1976, 42 U.S.C.A. § 1988 (West Supp. 1997).1
We reverse.
     The Jenkins class argues that its status as "prevailing party" was
established when it won the determination that the State had violated the
Constitution and was obliged to remedy the unconstitutional conditions it
had created.   Thereafter, the class representatives were obliged to defend
the remedy they had won and entitled to fees for doing so.   They argue that
the purpose of section 1988 requires that they be compensated for efforts
necessary to defend the remedy, without constant   reevaluation of




     1
      42 U.S.C.A. § 1988(b) provides:

          In any action or proceeding to enforce a provision
     of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of
     this title, title IX of Public Law 92-318 [20 U.S.C.A. §
     1681 et seq.], the Religious Freedom Restoration Act of
     1993 [42 U.S.C.A. § 2000bb et seq.], title VI of the
     Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.],
     or section 13981 of this title, the court, in its
     discretion, may allow the prevailing party, other than
     the United States, a reasonable attorney's fee as part of
     the costs . . . . (footnote omitted).

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                                     3
their entitlement to fees, depending on whether they win every controversy
that arises.


     It is generally true that status as a prevailing party is determined
on the outcome of the case as a whole, rather than by     piecemeal assessment
of how a party fares on each motion along the way.     "Any given civil action
can have numerous phases.      While the parties’ postures on individual
matters may be more or less justified, the [Equal Access to Justice Act]--
like other fee-shifting statutes--favors treating a case as an inclusive
whole, rather than as atomized line items."     Commissioner, INS v. Jean, 496
U.S. 154, 161-62 (1990) (citing section 1988 case, among others).     This is
true of matters decided after judgment on the merits, as well as those
decided before.    See id.


      Naturally, reversal on appeal of the merits can change a prevailing
party into a non-prevailing party, and require that earlier fee awards be
vacated.     See Pottgen v. Missouri State High Sch. Activities Ass'n, 103
F.3d 720, 724 (8th Cir. 1997); Pedigo v. P.A.M. Transp., Inc., 98 F.3d 396,
398 (8th Cir. 1996).     Jenkins III did not affect in any way the holding
that the State had committed constitutional violations or that it was
obliged to remedy those violations.        In fact, Jenkins III only reversed
orders providing quality education programs for the year 1992-93, 115 S.
Ct. at 2045, and salary increases ordered in 1992 and 1993, id. These
orders represent a small fraction of the relief that has been ordered in
this case.    The State can hardly dispute the substantiality of the remedy
ordered by the district court and sustained in numerous appeals, since the
State described the remedy as "massive", "unprecedented", and "astounding"
in its brief before the Supreme Court.




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                                      4
     Even though the actual holding of Jenkins III is limited to reversing
the orders before it, the State argues that Jenkins III has ramifications
that must affect the case as a whole, either resulting in a finding of
unitariness or at least circumscribing the scope of the entire remedy.2
Regardless of the effect of Jenkins III on the future progress of this
case, it does not retroactively take away the Jenkins class's status as
prevailing party in the underlying case.   In Balark v. City of Chicago, 81
F.3d 658 (7th Cir.), cert. denied, 117 S. Ct. 507 (1996), the Seventh
Circuit rejected an argument that plaintiffs who enjoyed a consent decree
for ten years were deprived of prevailing party status when their decree
was dissolved under Fed. Rule Civ. P. 60(b).    Balark queried:


     How can one say that the plaintiffs did not prevail when their
     decree governed the parties' behavior for ten years, and the
     termination is prospective only? The only possible perspective
     from which the entitlement to fees can be considered is at the
     time the final judgment determining who prevails is entered
     (taking into account any appeals . . .).

Id. at 665.   Like the Balark plaintiffs, the Jenkins class has enjoyed the
benefits of prevailing in this litigation for more than a decade.    Jenkins
III did not void the many remedial orders issued in this case that have
never been reversed "during the process of a direct appeal."      See Balark,
81 F.3d at 663.   There can be no serious doubt that the Jenkins class is
still the prevailing party in the case as a whole.




     2
      After briefing in this appeal was complete, the district
court determined that the KCMSD had attained unitariness in only
one of the five aspects enumerated in Green v. County School Board,
391 U.S. 430, 435 (1968). Jenkins v. Missouri, No. 77-0420-CV-W-
RGC, slip op. at 28-37, 59 (W.D. Mo. Mar. 25, 1997). The Jenkins
class has filed a notice of appeal from that part of the district
court's order approving a settlement between the State and KCMSD.

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                                      5
       Jean stated that status as the "prevailing party" is only the
beginning of the fees inquiry, since the "prevailing party" requirement is
"a generous formulation that brings the plaintiff only across the statutory
threshold."   Jean, 496 U.S. at 160-61 (quoting Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)); see Joseph A. v. New Mexico Dep't of Human Serv.,
28 F.3d 1056, 1060 (10th Cir. 1994).       Once over that threshold, important
questions still remain about whether fees should be awarded for matters on
which the plaintiff lost.     See Foster v. Board of Sch. Comm'rs, 810 F.2d
1021, 1024 (11th Cir.) (per curiam), cert. denied, 484 U.S. 829 (1987).



       Hensley v. Eckerhart, 461 U.S. 424 (1983), gives the paradigm for
determining whether fees are compensable under section 1988 in cases in
which the plaintiff has prevailed on some, but not all, of his claims.      If
any issues on which the plaintiff lost are unrelated to those on which he
won, the unrelated issues must be treated as if they were separate cases
and no fees can be awarded.     See id. at 434-35.    If, however, the claims
on which the plaintiff lost are related to those on which he won, the court
may award a reasonable fee.       See id.       The most important factor in
determining what is a reasonable fee is the magnitude of the plaintiff’s
success in the case as a whole.   See id. at 436; Farrar v. Hobby, 506 U.S.
103, 114 (1992).     If the plaintiff has won excellent results, he is
entitled to a fully compensatory fee award, which will normally include
time spent on matters on which he did not win.      See   Hensley, 461 U.S. at
435.   If the plaintiff’s success is limited, he is entitled only to an
amount of fees that is reasonable in relation to the results obtained.     See
id. at 440.   Finally, of course, any fees must be "reasonably expended,"
so that services that were redundant, inefficient, or simply unnecessary
are not compensable.   See id. at 434.




                                     -6-
                                      6
         Hensley itself did not address the treatment of fees incurred after
judgment on the merits, but we nevertheless apply its principles in such
cases.     See Association for Retarded Citizens v. Schafer, 83 F.3d 1008,
1010-12 (8th    Cir.), cert. denied, 117 S. Ct. 482 (1996).         However, it is
more complicated to assess the relations of each part of the litigation to
the whole in cases that proceed over an indefinite time than in a simple
action that comes to judgment and ends.         Reimbursement for post-judgment
litigation fees can be as important as reimbursement for pre-judgment fees
in accomplishing the purpose of section 1988.            In suits for long-term
injunctive     relief,    such   as   institutional   reform    cases   and   school
desegregation cases, the remedy can unfold in phases over many years.
     A plaintiff's attorney may engage in several kinds of post-judgment
activity.    Some types of post-judgment activities are readily seen to be
necessary adjuncts to the initial litigation, whereas other types of
activities are more like a new, separate lawsuit and require a fee
determination independent of the underlying case.          Thus, monitoring the
defendant's compliance with court orders and enforcing the remedy are
generally compensable as part of the underlying case.          See Pennsylvania v.
Delaware Valley Citizens' Council, 478 U.S. 546, 559 (1986)(various
monitoring and enforcement activities, including work before administrative
agencies that could have adversely affected rights under consent decree);
ARC, 83 F.3d at 1010-11; Duran v. Carruthers, 885 F.2d 1492 (10th Cir.
1989)(monitoring).       We have also stressed the importance of allowing the
plaintiff in such cases fees for successfully defending the remedy against
attacks.    In Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992)(Jenkins
Fees IV), we said:


     [G]iven the special nature of desegregation cases, withholding
     from the plaintiffs the means for paying




                                         -7-
                                          7
     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.

Id. at 1251.


     Where, however, the plaintiff asks for remedial measures that are
ultimately denied, he cannot be said to be "defending" the remedy, because
the thing he sought has been declared not to be part of the remedy.
Assuming the plaintiff can still be characterized as the prevailing party
in the case as a whole,     the question arises whether he is entitled to fees
despite his failure on the particular matter, and if so, whether the fees
should be reduced to reflect his lack of success.         Under Hensley the first
inquiry   is   whether   the   issues   in    the   post-judgment    litigation   are
inextricably intertwined with those on which the plaintiff prevails in the
underlying suit or whether they are distinct.                 The Fourth Circuit has
applied this distinction to deny fees in civil rights cases where the
parties   entered   a    consent   decree     and   further    litigation   concerned
contractual issues under the consent decree, not the underlying civil
rights claim.    See Willie M. v. Hunt, 732




                                        -8-
                                         8
F.2d 383, 386 (4th Cir. 1984).          In Arvinger v. Mayor of Baltimore, 31 F.3d
196 (4th Cir. 1994), the Fourth Circuit summarized its cases on this issue:


             Thus, when subsequent litigation seeks to enforce or
       interpret a settlement agreement or consent decree, involving
       facts and principles different from those considered in the
       underlying   litigation,   the   second   is   not   considered
       "inextricably intermingled" with the first. On the other hand,
       a subsequent litigation initiated against the successful party
       to modify or "replay" the issues of the first litigation may be
       so intermingled.    Plyler [v. Evatt, 902 F.2d 273 (4th Cir.
       1990)] applies to carry forward prevailing party status only in
       this latter circumstance, and only that when the plaintiffs are
       forced to litigate to preserve the relief originally obtained.

Id. at 202.    We applied this distinction in Schafer, where we held that the
plaintiffs’ post-judgment activities were so much greater than would have
been   necessary for monitoring the decree that they amounted to the
assertion     of    distinct,   new     claims     for   relief,     which     could   not    be
compensated on the strength of the plaintiffs’ prevailing party status in
the underlying suit.         83 F.3d at 1011.
       If, on the other hand, the plaintiff’s claim in the post-judgment
litigation is inextricably intertwined with the underlying claims, then we
must determine what fee award, if any, would be reasonable.                      See Farrar,
506 U.S. at 115 ("In some circumstances, even a plaintiff who formally
'prevails' under § 1988 should receive no attorney's fees at all.").
Assessing     the    reasonableness     of   a     fee   requires    us   to   consider      the
plaintiff's        overall   success;    the       necessity   and    usefulness       of    the
plaintiff's activity in the particular matter for which fees are requested;
and the efficiency with which the plaintiff's attorneys conducted that
activity.




                                             -9-
                                              9
     The most critical factor in the fixing of a reasonable fee is the
overall success obtained.   See id. at 114.   We must therefore determine the
relationship the post-judgment litigation bears to the case as a whole,
rather than assessing the plaintiff’s success on the particular question
in isolation.   See Plyler v. Evatt, 902 F.2d 273, 281 (4th Cir. 1990).   The
outcome of disputes about the scope of the remedy can greatly reduce the
magnitude of relief obtained in the case as a whole; changes in the scope
of the remedy    may not change a prevailing party into a non-prevailing
party, but they certainly can change the overall significance of the
plaintiff’s victory.


     Even if the issue on which the plaintiff lost is minor in the context
of a substantial victory, to be compensable, post-judgment work must be
"useful and of a type ordinarily necessary", Delaware Valley, 478 U.S. at
561 (quotation marks omitted), to secure the result obtained in the
underlying litigation.    See Schafer, 83 F.3d at 1012.   The courts have not
interpreted this requirement tautologically, to mean that any unsuccessful
efforts were perforce unnecessary, but rather have asked whether the
plaintiff’s attorneys would have been expected or obliged to take the
position they took.    See Plyler, 902 F.2d at 281 (awarding fees to counsel
who were under clear obligation to defend remedy, though they lost on issue
in question).   For instance, in People Who Care v. Rockford Bd. of Educ.,
90 F.3d 1307, 1314 (7th Cir. 1996), the Seventh Circuit reversed the
district court's denial of fees for a certain appeal.      The district court
had refused to award fees because the appeal had been dismissed.          The
Seventh Circuit stated:
     A court's focus should not be limited to the success/failure of
     each of the attorney's actions.     Rather, it should be upon
     whether those actions were reasonable. In other words, the
     court should not look to whether F & H 'won' the 1990 appeal,
     but should instead




                                     -10-
                                      10
      look to whether the fees F & H requests for that appeal were
      reasonably incurred.


Id. at 1314.     The Fourth Circuit stated that the court should consider
whether the position the fee applicant unsuccessfully advocated was
"essential to the preservation of the integrity of the consent decree as
a whole."     Plyler, 902 F.2d at 281.


      Nevertheless, success or failure on the particular matter in question
(as   opposed to overall success) is still a factor in deciding the
reasonableness of the attorney's efforts.              See    Schafer, 83 F.3d at 1012;
Ustrak   v.    Fairman,     851   F.2d   983,    990    (7th     Cir.    1988)("Since      the
reasonableness of a fee is a function in part of the success achieved by
the expenditure, lack of success . . . is certainly material in deciding
how large the reimbursement should be."); Stewart v. Gates, 987 F.2d 1450,
1454 (9th Cir. 1993) (plaintiffs not entitled to fee award for unsuccessful
defense of section 1988 fee award on appeal).


      Making    success      on   the    particular          matter     relevant    but    not
determinative    to   the    reasonableness      of    the     fee    fits   well   with   our
observations in Jenkins Fees IV, 967 F.2d at 1251, about the importance of
providing post-judgment fees to assure enforcement of civil rights awards.
If the plaintiffs’ attorneys in extended civil rights cases must succeed
on every matter they litigate, they are likely to be less vigorous in their
representation of the class.        The Ninth Circuit rejected an argument that
section 1988 only permits fees for phases of the litigation in which the
plaintiff won:
      Lawsuits usually involve many reasonably disputed issues and a
      lawyer who takes on only those battles he is certain of winning
      is probably not serving his client vigorously enough; losing is
      part of winning. The County




                                          -11-
                                           11
      would have us scalpel out attorney's fees for every set- back,
      no matter how temporary, regardless of its relationship to the
      ultimate disposition of the case. This makes little sense.


Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991).
Awarding fees that were reasonably incurred, though perhaps they did not
lead to a success in court, is more likely to result in responsible
management of the remedial phase of desegregation suits.


      Another factor that has been considered in deciding whether post-
judgment fees were necessary and useful is whether the attorneys' activity
was defensive, seeking to preserve relief obtained earlier, or offensive,
seeking to augment what had already been approved.         In Ustrak v. Fairman,
the Seventh Circuit distinguished between a case in which the fee applicant
unsuccessfully defends an appeal of relief he had won below and a case in
which the fee applicant unsuccessfully appeals, seeking to expand his
victory.   851 F.2d at 990.   The Seventh Circuit concluded that it would be
more likely to award fees in the former case than in the latter.           We have
referred to this case with approval in Schafer, 83 F.3d at 1012, and denied
a fee where the prevailing party was seeking a greater victory, rather than
defending the remedy.


      Applying Hensley to this case therefore requires us to decide first
if the issues litigated were related to those on which the class prevailed.
Two kinds of orders were at issue in Jenkins III, the orders instituting
salary increases, see 115 S. Ct. at 2045, and the order requiring the State
to   continue   funding   quality   education   programs   despite   the   State’s
contention that the KCMSD had achieved partial unitary status with respect
to those programs.




                                       -12-
                                        12
See id.    Both matters had been decided in the class’s favor in the
district court and in this court, and the class was defending the orders
against the State’s petition for certiorari.


     The State's certiorari petition raised issues that were integrally
related to the underlying case.   The Supreme Court summed up the nature of
the State's arguments:   "In short, the State has challenged the scope of
the District Court's remedial authority."    Id. at 2048.   Although we have
pointed out that the actual holding of Jenkins III only affected a very
limited portion of the relief that has been ordered in this case since its
inception, the scope of the arguments in Jenkins III was not so limited.
The State mounted a challenge to remedial theories that were fundamental
to the district court's remedial approach.


     Though we have decided that the Jenkins III litigation was integrally
related to the underlying case, it is still necessary to determine what fee
would be reasonable in light of the Jenkins class's success in the case as
a whole; the necessity and usefulness of the class's participation in the
Jenkins III proceedings in the Supreme Court; and the cost-effectiveness
of counsel's efforts.    The Jenkins class asks us to remand the matter to
the district court to award fees.     However, we have in the past awarded
fees in this court under section 1988 for appellate work.   See Campbell v.
Cauthron, 623 F.2d 503, 509 (8th Cir. 1980); Ustrak, 851 F.2d at 990.    We
think the matter may be more efficiently disposed of if the parties file
the request for fees and any objection thereto directly with this court.
Accordingly, the Jenkins class shall file its fee request with supporting
affidavits within thirty days of this order, and the State shall file its
response within ten days of the Jenkins class's filing.




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A true copy.


     Attest:


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




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