District Court, three Pulaski County Special School District (PCSSD) motions for enlargement of time; District Court, order; District Court, Pulaski County Special School District's (PCSSD's) response to the Joshua intervenors' motion for an award of attorneys' fees concerning the Pulaski County Special School District (PCSSD) strike issue; District Court, Pulaski County Special School District's (PCSSD's) brief in response to the Joshua intervenors' motion for an award of attorneys' fees concerning the Pulaski County Special School District (PCSSD) strike issue; District Court, Pulaski County Special School District's (PCSSD's) response to the Little Rock School District's (LRSD's) petition for attorneys' fees; District Court, Pulaski County Special School District's (PCSSD's) brief in response to the LRSD's petition for attorneys' fees; District Court, Pulaski County Special School District's (PCSSD's) reply to the response of Little Rock School District (LRSD) to its petition for attorneys' fees and interest; District Court, notice of filing, Arkansas Department of Education (ADE) semiannual monitoring report and executive summary; District Court, Pulaski County Special School District's (PCSSD's) amended reply to the response of Little Rock School District (LRSD) to its petition for attorneys' fees and interest; Court of Appeals, petition for additional time; Court of Appeals, entry of appearance; District Court, order  The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors.  IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. LR-C-82-866 PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. RECE~ /~r; - DEFENDANTS MRS. LORENE JOSHUA, ET AL . J~1 ~ ;  - 1997 INTERVENORS KATHERINE KNIGHT I ET AL. OFFICE OF PCS SD MOTION FOR ENLARGO!~{ijM'{'WJ !~friOO/NG INTER VENO RS The Pulaski County Special School District ("PCSSD") for its motion states: 1. Presently pending before the Court is the response of th/ LRSD to the PCSSD motion seeking an award of attorneys' fees concerning the "pooling" issue. Due to the impending holiday weekend, the PCSSD requests additional time to and including July 14 to reply. 2. Counsel for the LRSD has no objection to this extension of time. WHEREFORE, PCSSD prays for an extension of time to and including July 14, 1997 in which to reply to LRSD's response to the PCSSD motion for attorneys' fees and costs. Respectfully submitted: WRIGHT, LINDSEY & JENNINGS 200 West Capitol Avenue Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 By .. r. __ , M. Samuel Jones III (76060) Attorneys for Pulaski County Special __ ,.,.School District CERTIFICATE OF SERVICE On July ___ , 1997, a copy of the foregoing was served by U.S. mail on the following. Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, Arkansas 72201 Ms. Ann Brown ODM Heritage West Bldg., Ste. 510 201 East Markham Street Little Rock, Arkansas 72201 Mr. Richard W. Roachell Roachell and Street First Federal Plaza 401 W. Capitol, Suite 504 Little Rock, Arkansas 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 M. Samuel Jones, III a J: Es lfED JUL 7 - 1997 OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS PCSSD MOTION FOR ENLARGEMENT OF TIME The Pulaski County Special School District ("PCSSD") for its motion states: 1. Presently pending before the Court is the motion of thEf Joshua Intervenors seeking an award of attorneys' fees concerning - the PCSSD strike issue. Due to the impending holiday weekend and the issues raised in the Joshua's motion, the PCSSD requests additional time to and including July 14 to respond. Respectfully submitted: WRIGHT, LINDSEY & JENNINGS 200 West Capitol Avenue Suite 2200 Little Rock, Arkansas 72201-3699 (S01) 371-0808 By '-----;27-r. -~~ __ ,,-- M. Samue+ Jones ;rII (76060) - 1?-ttorn~ fok..../ Pulaski County <_______~ School District CERTIFICATE OF SERVICE On July 3 , 1997, a copy of the foregoing was served by U.S. mail on the following. Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, Arkansas 72201 Ms. Ann Brown ODM Heritage West Bldg., Ste. 510 201 East Markham Street Little Rock, Arkansas 72201 Mr. Richard W. Roachell Roachell and Street First Federal Plaza 401 W. Capitol, Suite 504 Little Rock, Arkansas 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 07 10 97 15:.?3 LJP I GHT, LI I l[1SE',' . IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LI7TLE ROCK SCSOOL DISTRICT V. NO. LR-C-82-866 PULASKI COUNTY SP~CIAL SC~OOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PCSSD MOTION FOR i;-NLARGEMEN:' OF TIME PLAINTI:::'F DEFC:NDAK'I'S J::-JTERVEl\ORS IJ:1;'7ERVEKORS ':'he P.1laski County Special School Jistrici: ( "PCSSJ") fol:' its motion states: , Prese:1i:l21 pending: be:'o::-e ~he Cour: :.s LRS'J' s :no~.:.or: for attorneys' feee and costs perta:ni~g to the 0 pool:~g'' issue. 2. So:;i.e of :.he issues raised ir1 :he LRSD' s CT',o~:on are s:milar to the :ssues ra1sed a~d pend:~g in ~RSD's ~sspcr.se to c~e PCSSD motion seeking an awa=d of atcor~eys' fees o~ the same issue. 7te reply to the response :s due on Mor.day, cu_y 14, 1997. 3. Due to the related nature of these pending ~otio~s, the PCSSD requests additional time to and !nc:ud::1g July 14, 1997 in which to respond to LRSD's motion. 4. Counsel for the LRSD has no cbjecticn to ~his exte~s:on of tiIT",e. WHEREFORE, PCS SD prays for an exce:1sicr: of t:1r.1e to and includ:~g July 14, :997 in which to ree9ond to the ~~SD ~otion :or 15:2J .~E: ,lill/Ci3 - attorneys' fees and coats. Respectfully submitted: WRIGHT, :,I~DSEY & JE!\-:-JIKGS 200 West Capitol Ave~~e suite 2200 Litt:e Rock, Arkansas 72201 -3699 (501) 371-0808 '-- , .. - I \ By ) ----:>--..  <- '- '- ';--_, ~- Samuel Jones rr:' (76060) Attorneys,,/ for ,..,.-Pulaski Coc.nty Sp_e_c_i_a ...] ,_/:Schcol Cistr.:.c'::. CcRT!FICATE CF SE~v:cs 1~ , 199~, a copy o! t~e fores=i~g was served by U.S. mail on t~e fol:owing. Mr. Joh~ W. Wal~er ~ctn W. wa:ker, F.A. 1 723 Brcaci,.;ay ~itt:e Roe~, AR 72201 Mr. Chr:s:oor.er Heller Friday, ~~d~edge & C~ark 2000 First Cc~~ercia~ Buildi~g Little Rock, Arka~sas 72201 ODM Heritage West Blcig., Ste. 510 201 Eas: Xarkham Stree~ Lit~le Rock, Arka~sas 722Cl ~r. Richard~- Roachell Koac~e:: anc Street F:rst Federa: Pla~a 401 ~- Caci:~:. s~~ce 524 Litc~e KoCk, ~r~a~sas 722~1 ~r . ::~ot~y Ga~ger Ass:sta~t At:or~ey Ge~eral 323 Cen'::.s= S;ree'::., Suite 20 ~it~le Rock, A=kaneas 72201 Mr. Stephe~ ~. ~ones 3400 :'CBY Tcwe1: 425 West Capitol A~enue Litt!e Rock, Ar~ansas 7220: I) M. Sa:r.ue:. :II -- ----- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION ~!lErJJ ~S DISTRICT COURT EAST::i,,'i Cc STRICT fa.RKANSAS LITTLE ROCK SCHOOL DISTRICT, * JAMES W. McCORMACK, CLERK Plaintiff, * By.~.!~ vs. * No. LR-C-82-866  oep CLERK * PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., * RECEIVED Defendants, * * MRS. LORENE JOSHUA, et al., * JUL 1 5 1997 Intervenors, * * OFFICE OF KATHERINE KNIGHT, et al., * DESEGREGATION MONITOR/NG Intervenors. * QB.DER Before the Court is a motion filed by the Pulaski County Special School District ("PCSSD") requesting an extension of time in which to respond to the Joshua Intervenors' motion seeking an award of attorneys' fees in regard to the PCSSD strike issue. Also before the Court is a motion filed by the PCSSD requesting an extension of time in which to file a reply to the Little Rock School District's ("LRSD") response to the PCSSD's motion seeking an award of attorneys' fees in regard to the "pooling" issue. In both motions, the PCSSD requests an extension of time to and including July 14, 1997. The PCSSD has indicated in its motion that the LRSD has no objection and has orally indicated to this Court that the Joshua Intervenors have no objection to this request. For good cause shown, this Court grants the PCSSD's motions for extension of time. The PCSSD has to and including July 14, 1997, in which to file its response to the Joshua Intervenors' motion for attorneys' fees in regard to the strike issue and its reply to the LRSD's response to the - PCSSD's motion for attorneys' fees in regard to the pooling issue. Jit 0 2 5. ,r/'- IT IS SO ORDERED THIS // day of July 1997. 'll/ ) , r . ,1 :;:/7 ~/4 11,,-/.._,J... UNITED STATES DISTRI~ JUDGE Tttl IXDME.0- OOEREO ON DOCKET IHET ~ C~E ~TH RULE 58 ANc;}J8~RCf <Ml 1 ~1  1 av ~ 2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED JUL 1 4 1997 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS PCSSD'S RESPONSE TO THE JOSHUA INTERVENORS' MOTION FOR AN AWARD OF ATTORNEYS' FEES CONCERNING THE PCSSD STRIKE ISSUE The Pulaski County Special School District No. 1 ("PCSSD"), for its response to the motion of the Joshua Intervenors for Attorneys' Fees in connection with the PCSSD strike issue, states: 1. The basis asserted by the Joshua Intervenors for a fee award is without merit and their petition should be denied. 2. The Joshua Intervenors seek an award of fees relating to an issue which was litigated by and between the PCSSD and the Knight Intervenors (which included PACT, the striking teacher body). 3. The Joshua Intervenors' reliance on Jenkins v. Missouri, 1997 U.S. App. LEXIS 11895 (8th Cir. 1997) and Association of Retarded Citizens of North Dakota v. Schafer, 83 F.3d 1008 (8th Cir. 1996) is misplaced. 4. The Joshua Intervenors do not meet the requirements of "defending" their "remedy" as set forth in Jenkins and Schafer. Their limited participation in the post-judgment - litigation between the PCSSD and PACT was not in furtherance of enforcing the underlying desegregation obligations of the PCSSD. 5. The Joshua Intervenors' own petition for fees states that they filed a memorandum opposing the equitable relief sought by the PCSSD, arguing that "[m]oreover, resolution of the contract dispute between the teachers and the District is not a desegregation obligation covered by the settlement agreement." Joshua Motion for Fees, 12 (emphasis added). 6. This is the position taken by counsel for the Joshua Intervenors at the strike hearing on August 28, 1996. 7. As argued by the Joshua Intervenors, the Settlement Agreement was not implicated in the teachers' strike. The Eighth Circuit, on appeal, held that the teachers' strike was not covered by the Settlement Agreement or Desegregation Plan. LRSD v. PCSSD, F.3d (8th Cir. 1997). 8. The Joshua Intervenors' request for fees does not fall within the parameters for an award under either Jenkins or Schafer. 9. The Joshua Intervenors cannot simply label themselves the prevailing party whenever other parties litigate a matter, and request and expect an award of fees. WHEREFORE, the PCSSD respectfully requests that this Court deny the Joshua Intervenors' motion for an award of attorneys fees in its entirety. 2 Respectfully submitted: WRJGHT, LINDSEY & JENNINGS 200 West Capitol Avenue Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 - ' ----- ' (; ~ By ----:--;i ~, . -:- - \.__ . '---'-- M. Samuel Jone , III (76060) Claire Shows ancock ~013) Attorn~s. for the Pulaski County Special Scnoof District No. 1 CERTIFICATE OF SERVICE On July_, 1997, a copy of the foregoing was served by U.S. mail on the following. Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, Arkansas 72201 Ms. Ann Brown ODM Heritage West Bldg., Ste. 510 201 East Markham Street Little Rock, Arkansas 72201 Mr. Richard W. Roachell Roachell and Street First Federal Plaza 401 W. Capitol, Suite 504 Little Rock, Arkansas 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 M. Samlle1-Jo,, III . i ) 3 -----/ IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. RECE]VED \JUL 1 4 1997 OFFICE Of DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS PCSSD'S BRIEF IN RESPONSE TO THE JOSHUA INTERVENORS' MOTION FOR AN AWARD OF ATTORNEYS' FEES CONCERNING THE PCSSD STRIKE ISSUE The Pulaski County Special School District No. 1 ("PCSSD") submits this brief in response to the motion of the Joshua Intervenors for Attorneys' Fees in connection with the PCSSD strike issue. The basis asserted by the Joshua Intervenors for a fee award is, simply put, without merit and their petition should be denied. ARGUMENT The Joshua Intervenors seek an award of fees relating to an issue which was litigated by and between the PCSSD and the Knight Intervenors (which included PACT, the striking teacher body). Their brief addresses only two paragraphs to the "Predicate for Award," and they cite only two cases. Joshua Br. at 1-2. Their reliance on those cases, however, is misplaced. Jenkins v. Missouri, 1997 U.S. App. LEXIS 11895 (8th Cir. 1997), stands for the proposition that -- with regard to fee awards -- a prevailing plaintiff does not necessarily lose its "prevailing" status even if it does not prevail on an issue so long as it was defending its remedy. The plaintiff's claims in the post-judgment litigation must be inextricably intertwined with the underlying claims. Id. at 11. The Joshua Intervenors pay mere lip service to the requirements of "defending" their "remedy", and do not explain how their participation (limited as it was) in the post-judgment litigation between the PCSSD and PACT was in furtherance of enforcing the underlying desegregation obligations of the PCSSD. Indeed, their position is belied by their own petition for fees, in which they state that they filed a memorandum opposing the equitable relief sought by the PCSSD, arguing that "[m]oreover, resolution of the contract dispute between the teachers and the District is not a desegregation obligation covered by the settlement agreement." Joshua Motion for Fees, 1 2 (emphasis added). Counsel for the Joshua Intervenors made this plain at the strike hearing, as well. The - Court, referring to a pleading filed by the Joshua Intervenors the morning of the hearing stated, and Mr. Walker responded: THE COURT: And Mr. Walker -- I won't enunciate all that he [Mr. Walker] has responded to, in fact, I have not read it all carefully, but in essence, you are asking the Court not to intervene in this dispute because the teachers union and negotiations between employer and employee has never been really a part of the Settlement Agreement. And that the black children do not stand to be harmed any more than any other children. And yet, you do concede that this Court has jurisdiction -- MR. WALKER: No, we don't, Your Honor. * * * THE COURT: All right. MR. WALKER: There was no issue in the original case that sought to raise liability of the teacher's union with respect to the constitutional rights of black children, there is none. 2 - Transcript of Hearing, August 28, 1996, at pp. 16-17 (emphasis added). Mr. Walker later stated to the Court: MR. WALKER: Your Honor, understand our position. This has been presented to the Court as a conflict between two parties, the Teacher's Union and the School District. It does not involve at this particular point the Joshua Intervenors other than to the extent that Joshua would talce a position with respect to the Settlement Agreement. . . . Id. at 27. As argued by Joshua, the Settlement Agreement was not implicated in the teachers' strike. Indeed, as this Court is aware, the Eighth Circuit, on appeal, held that the teachers' strike was not covered by the Settlement Agreement or Desegregation Plan. LRSD v. PCSSD, _ F.3d _ (8th Cir. 1997). Thus, the Joshua Intervenors' request for fees does not fall within the parameters for an award under either Jenkins or Association of Retarded Citizens of North Dakota v. Schafer, 83 F.3d 1008 (8th Cir. 1996).1 The Joshua Intervenors did not have a dog in this fight. They cannot simply label themselves the prevailing party whenever other parties litigate a matter, and request and expect an award of fees. Given their present posture, it is surprising that they did not request attorneys' fees in the pooling dispute between the LRSD and the PCSSD, or the teacher retirement dispute between the LRSD/PCSSD and the ADE. The Joshua Intervenors could, and should have requested this Court's permission to absent themselves from proceedings on the strike issue, just as the PCSSD has done in the 1 In Schafer, the Eighth Circuit reversed that portion of the district court's judgment awarding attorneys' fees because the plaintiffs' were not defending their remedy, and failed to persuade the panel that the State continued to violate federal law. As the court stated: "We must avoid creating a framework in which 'the decree institutionalizes the attorney, as well as the system."' 83 F.3d at 1012 (quoting Brewster v. Dukakis, 786 F.2d 16, 18 (1st Cir. 1986). 3 CERTIFICATE OF SERVICE On July~. 1997, a copy of the foregoing was served by U.S. mail on the following . Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, Arkansas 72201 Ms. Ann Brown ODM Heritage West Bldg., Ste. 510 201 East Markham Street Little Rock, Arkansas 72201 Mr. Richard W. Roachell Roachell and Street First Federal Plaza 401 W. Capitol, Suite 504 Little Rock, Arkansas 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 5 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 I ' / ' IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. PCSSD'S RESPONSE TO THE LRSD'S PETITION FOR ATTORNEYS' FEES .JUL 1 4 1997 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Pulaski County Special School District No. 1 ("PCSSD"), for its response to the motion of the Little Rock School District ("LRSD") for attorneys' fees and costs, states: 1. The LRSD's motion should be denied because it is untimely and fees are not warranted on the merits. 2. In August 1996, the PCSSD made a motion to this Court for an enlargement of time in which to present its petition for attorneys' fees and costs, specifically requesting that the Court defer the requirement of a petition and defer ruling until thirty days after entry of a final order on the pooling issue. 3. The LRSD did not object to the PCSSD's motion, nor did it made a motion to extend its own time. On August 16, 1996, the Court entered and order granting the PCSSD's motion: "The PCSSD is hereby given 30 days from the issuance of the Eighth - Circuit's mandate on the pooling issue in which to file its petition for attorney's fees and costs." 4. The Eighth Circuit affirmed the District Court's ruling on the pooling issues in favor of the PCSSD, and its mandate issued on May 30, 1997. The PCSSD timely filed its petition for attorneys' fees, in accordance with the extension granted by this Court, on June 5, 1997. 5. Following the filing by PCSSD, the LRSD made a motion to extend its time to respond to the PCSSD's petition for fees until June 30, 1997, indicating that it would be filing its own fee petition on that date, to wit, thirty days after the Eighth Circuit mandate had issued. The PCSSD objected to the requested extension and to the LRSD's claim that it had until June 30th to file its own petition for fees and costs. 6. In its order granting the LRSD's request for an extension of time until June 30, 1997 to respond, this Court specifically noted that LRSD did not request and was not - granted an extension, and that any motion filed on or before June 30, 1997, by LRSD for attorneys' fees and costs in regard to the pooling issues would be untimely. Order, dated  June 18, 1997. 7. The LRSD filed its petition on June 30, 1997. That fee petition is untimely. 8. The LRSD stated grounds for not seeking an extension, to wit, that it has "previously worked cooperatively [with the PCSSD] to share legal work and save fees for both school districts whenever possible" and that the "LRSD did not expect that either district would file a fee petition with respect to the pooling issue." (LRSD Br. at 3) do not excuse the LRSD's failure to obtain an extension of time . 2 9. The LRSD's and PCSSD's cooperation follows when the PCSSD and the LRSD are aligned on a legal issue and not when, as here, the PCSSD was moving against the LRSD to enforce its rights under the pooling agreement. 10. The LRSD was on notice that PCSSD intended to file a fee petition on the pooling issues, if it prevailed on appeal, at least as early as August 1996 when the PCSSD filed its motion for an enlargement of time. 11. The LRSD did not request a similar extension, and thereby failed to preserve its rights. 12. The case of Jenkins v. Missouri, 1997 U.S. App. LEXIS 11895 (8th Cir. 1997), does not support the LRSD's claim for attorneys' fees. The Eighth Circuit, in Jenkins, held that the class plaintiffs had not lost their status as "prevailing party" where they - were required to defend their original remedy, and did so reasonably. 13 . The Eighth Circuit, in Jenkins, also specifically endorsed the distinction that the issues in the post-judgment litigation must be inextricably intertwined with those on which the plaintiff prevails in the underlying suit. 14. This distinction has been applied 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. 15. The LRSD's status as prevailing party as to certain remedies has been extinguished, and the pooling fee litigation was initiated by the PCSSD to enforce contractual issues under the consent decree, not the underlying civil rights claim. 3 16. Further, the proceedings relating to the pooling issues concerned contractual issues under the consent decree, not the underlying civil rights claims. WHEREFORE, the PCSSD respectfully requests that this Court deny the LRSD's petition for attorneys' fees and costs, in its entirety. Respectfully submitted: WRIGHT, LINDSEY & JENNINGS 200 West Capitol A venue Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 ___ ., ('(~ By( ___.TJ:.---"- y~~-~~ M: Samuel JfnesUI)76060) Claire Shows Hancock (95013) , _}..~or the Pulaski County Special School District CERTIFICATE OF SERVICE On July~. 1997, a copy of the foregoing was served by U.S. mail on the following. Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, Arkansas 72201 Mr. Richard W. Roach ell Roachell and Street First Federal Plaza 401 W. Capitol, Suite 504 Little Rock, Arkansas 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 4 Ms. Ann Brown ODM Heritage West Bldg., Ste. 510 201 East Markham Street Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 / Ms SamuelJ nes, III. _~ I / , _____ / 5 IN THE UNITED ST A TES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PCSSD'S BRIEF IN RESPONSE TO THE LRSD'S PETITION FOR ATTORNEYS' FEES J\JI_ l ,1 1997 omcE OF OESEGREGA110N MON\10RING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Pulaski County Special School District No. 1 ("PCSSD") submits this brief in - response to the motion of the Little Rock School District ("LRSD") for attorneys' fees and costs. The LRSD's motion should be denied because it is untimely and fees are not warranted on the merits. ARGUMENT I. THE LRSD's FEE PETITION IS UNTIMELY In August 1996, the PCSSD made a motion to this Court for an enlargement of time in which to present its petition for attorneys' fees and costs, specifically requesting that the Court defer the requirement of a petition and defer ruling until thirty days after entry of a final order on the pooling issue. The LRSD did not object to the PCSSD's motion, nor did it make a motion to extend its own time. On August 16, 1996, the Court entered an order - granting the PCSSD's motion: "The PCSSD is hereby given 30 days from the issuance of - the Eighth Circuit's mandate on the pooling issue in which to file its petition for attorney's fees and costs." The Eighth Circuit affirmed the District Court's ruling on the pooling issues in favor of the PCSSD, and its mandate issued on May 30, 1997. The PCSSD timely filed its petition for attorneys' fees, in accordance with the extension granted by this Court, on June 5, 1997. Following the filing by PCSSD, the LRSD made a motion to extend its time to respond to the PCS SD' s petition for fees until June 30, 1997, indicating that it would be filing its own fee petition on that date, to wit, thirty days after the Eighth Circuit mandate had issued. The PCSSD objected to the requested extension and to the LRSD's claim that it had until June 30th to file its own petition for fees and costs. In its order granting the LRSD's request for an extension of time until June 30, 1997 to respond, this Court specifically ruled: As PCSSD points out, this Court granted only PCSSD an extension of time to and including thirty (30) days after the Eighth Circuit issued the mandate regarding the pooling issues in which to file a motion for attorneys' fees and costs. LRSD did not request and was not granted a similar extension. Therefore, any motion filed on or before June 30, 1997, by LRSD for attorneys' fees and costs in regard to the pooling issues would be untimely. Order, dated June 18, 1997. Notwithstanding the express language in the Court's order that any such filing by the LRSD for fees in connection with the pooling issues would be untimely, the LRSD filed its petition on June 30, 1997. 2 The LRSD states that it is simply seeking the same time within which to file its fee petition as was previously granted the PCSSD, stating that it did not seek an extension for two reasons. Neither reason is persuasive. First, the LRSD states that it has "previously worked cooperatively [with the PCSSD] to share legal work and save fees for both school districts whenever possible. The LRSD did not expect that either district would file a fee petition with respect to the pooling issue." LRSD Br. at 3. While it is true that the LRSD and PCSSD attempt -- as they should -- to work cooperatively, that cooperation flows when the PCSSD and the LRSD are aligned on a legal issue. That was certainly not the circumstance in this instance, where the PCSSD was moving against the LRSD to enforce its rights under the pooling agreement. Further, it is somewhat disingenuous of the LRSD to claim that it did not expect the PCSSD to file a fee - petition with respect to the pooling issue. The LRSD was on notice that PCSSD intended to do so, if it prevailed on appeal, at least as early as August 1996 when the PCSSD filed its motion for an enlargement of time. The LRSD did not request a similar extension, and thereby failed to preserve its rights. 1 Second, the LRSD states that its "right to recover fees in this case was firmly established only last month by an Eighth Circuit Court of Appeals decision in the Kansas City desegregation case. Jenkins v. State of Missouri,_ F.3d _ (8th Cir. 1997)(slip op., May 22, 1997)" As discussed fully in Point II, infra, the LRSD's reliance on the Jenkins 1 Even if the LRSD had requested and been granted an extension of time to file a fee petition up to and including thirty days after the Eighth Circuit issued its mandate, the fee petition would have been due June 29, 1997, i.e., thirty days from May 30, 1997. The LRSD filed its petition on June 30, 1997. 3 - case is wholly misplaced. It provides no support to the LRSD, either as to the timeliness (or lack thereof) of its fee petition, or on the merits. II. THE LRSD IS NOT ENTITLED TO FEES ON THE MERITS The LRSD misconstrues the holding of Jenkins v. Missouri, 1997 U.S. App. LEXIS 11895 (8th Cir. 1997) and misapplies it to the facts of this case. In Jenkins, the prevailing class plaintiffs were denied fees by the district court for their participation in the proceedings in the United States Supreme Court that culminated in Jenkins III (515 U.S. 70 (1995). The Eighth Circuit reversed, finding that the class plaintiffs had not lost their status as "prevailing party" where they were required to defend their original remedy, and did so reasonably. The Jenkins class plaintiffs had obtained orders at the district court level, and affirmed by the - Eighth Circuit, which related directly to the issues they won initially -- issues from which their prevailing party status flowed. The Court of Appeals held that even though they did not successfully defend their remedy at the Supreme Court level, they did not lose their prevailing party status. The Eighth Circuit, in Jenkins, also specifically endorsed the distinction set forth in Hensley v. Eckerhart, 461 U.S. 424 (1983) and applied by the Fourth Circuit in multiple cases: 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. 4 - 1997 U.S. App. LEXIS 11895, *10 (citing Willie M. v. Hunt, 732 F.2d 383, 386 (4th Cir. 1994). The Eighth Circuit applied this distinction in Association for Retarded Citizens v. Schafer, 83 F.3d 1008, 1011 (8th Cir.), cert. denied 117 S.Ct. 482 (1996)(plaintiffs' post judgment activities so much greater than necessary for monitoring the decree, 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). The facts and circumstances of this case do not fit within the Eighth Circuit's "prevailing party" ruling in Jenkins for two reasons. The LRSD's status as prevailing party as to certain remedies has been extinguished, and the pooling fee litigation was initiated by the PCSSD to enforce contractual issues under the consent decree, not the underlying civil rights claim. While the LRSD was the prevailing plaintiff in its suit against the PCSSD initiated in 1982, any past "liability" of the PCSSD was extinguished by the remedy afforded the LRSD in 1985, the Settlement Agreements (and releases), and the Desegregation Plan approved by this Court and by the Eighth Circuit Court of Appeals. As the Eighth Circuit noted: The remedy prescribed was intended to be a full and sufficient correction of wrongs done in the past. If PCSSD or some other governmental entity commits another constitutional violation in the future which has an interdistrict segregative effect, the courts will of course be open and able to order an appropriate remedy on pr