Appendix — Board of Education v. Sinajini

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APPENDIX A — OPINION AND JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT DATED AND

FILED NOVEMBER 30, 2000

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 99-4130

JIMMY SINAJINI, BILL JOE SINAJINI, JOE LEE

BEGAY, and HERBERT BEGAY, minors, through their

parents and/or guardian, LENA BEGAY; CECIL VIJIL,

SHIRLEY VIJIL, CLARA LAMEMAN, through their parent

and/or guardian, LEONA VIJIL; HOLLY NEZ, HOWARD

NEZ, and HANNAH NEZ, minors, through their parent and/

or guardian, MARION NEZ; GILBERT ROCKWELL and

LINDA ROCKWELL, minors, through their parent and/or

guardian, LENA ROCKWELL; EDITH BIGMAN,

JUANITA BIGMAN, and DOROTHY BIGMAN, minors,

through their parent and/or guardian, SETH BIGMAN;:

ANTHONY DEE, minor, through his parent and/or guardian,

GRAY DEE; HOWARD HOLIDAY and PETER

HOLIDAY, minors, through their parent and/or guardian,

TEDDY HOLIDAY; HAROLD VIJIL, ALFRED VIJIL,

minors, through their parent and/or guardian, TULLY VIJIL;

FERRELL COLLINS, SHERRIL COLLINS, and ILENE

COLLINS, minors, through their parent and/or guardian,

MARTHA COLLINS; SARAH BILLY and BRENDA

BILLY, minors, through their parent and/or guardian, JOHN

BILLY; LEROY ATCITTY PATRICIA DENNISON, a

minor, through her parents TOM DENNISON and ARLENE

DENNISON; JIMMY GOODMAN, JR. and GILBERT

WOODMAN, minors, through their parents and/or guardians,

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Appendix A

LUCY GOODMAN and JIMMY GOODMAN; ELAINE

WILLIAMS and LORINDA WILLIAMS, minors, through

their parent and/or guardian, MARY ANN WILLIAMS; THE

RED MESA CHAPTER OF THE NAVAJO TRIBE; and

THE OLJATO CHAPTER OF THE NAVAJO TRIBE,

Plaintiffs-Appellants,

and

UNITED STATES OF AMERICA; NAVAJO NATION,

ANETH CHAPTER; NATASHA LIVINGSTON; DAWNY

CLARK, NATHAN CLARK, and LATOYA CLARK, minors,

through their parent and/or guardian, SHERRILL CLARK,

Plaintiffs-Intervenors,

Vv.

BOARD OF EDUCATION OF THE SAN JUAN SCHOOL

DISTRICT; DAVID ADAMS, MAXINE NIELSON,

HAROLD LYMAN, TOM HOLIDAY, and ROBERT

BILLIE, all mdividually and as members of the Board of

Education of the San Juan School District; KENNETH

MAUGHAN, individually and as Superintendent of the San

Juan School District; THE SAN JUAN COUNTY

COMMISSION; DALE HOLMES, individually and as

Chairman of the San Juan County Commission; WILLIAM

G. DUNOW, and CASE E. BRODERICK, individually and

as commissioners of the San Juan County Commission;

UTAH STATE BOARD OF EDUCATION,

Defendants-Appellees.

3a

Appendix A

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF UTAH

(D.C. No. 74-CV-346-S)

* * *

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

This appeal is about the scope and amount of an attorney

fee award granted pursuant to 42 U.S.C. § 1988(b). The

district court determined that Plaintiffs had partially prevailed

in litigating their civil rights claims and awarded a reduced

amount of fees and costs. Plaintiffs appeal, contending that

the award was unreasonably limited.

In 1974, Appellants brought a class action under 42

U.S.C. § 1983, alleging that the San Juan County School

District denied equal educational opportunities to Native

Americans on the basis of race. In 1975, the parties reached

agreement and entered a comprehensive consent decree. The

decree imposed various legal duties upon the school district,

including obligations to construct and renovate educational

facilities, reimburse parents for travel expenses, operate

bus routes, allocate expenditures fairly, and implement

bilingual-bicultural awareness programs. See Appellees’

App. at 7-27.

In 1992, Appellants alleged noncompliance and filed a

motion to enforce the decree. Appellants made additional

allegations that called into question the school district’s duty

4a

Appendix A

to provide educational services for Native Americans living

on a remote part of the reservation and also the school

district’s duty to provide special education programs. The

district court limited the immediate proceeding to the

enforcement of the 1975 decree, striking multiple paragraphs

from Appellants’ pleadings that were based on facts outside

the scope of the decree. Consequently, in order to litigate all

their claims, Appeilants maintained this enforcement

proceeding, pursued two separate actions, and prepared to

intervene in a third discrimination action to be filed by the

United States.

In the action concerning the education of children living

on a remote part of the reservation, the district court

' concluded that the school district has a legal duty to provide

educational services. See Meyers v. Bd. oj Educ. of San Juan,

905 F. Supp. 1544, 1578 (D. Utah 1995). Respondents assert

in their brief that they agreed to pay $185,000 in fees to

Appellants, who “secured essentially the relief they sought”

in that litigation. Appellants’ Br. at 7. In the action

concerning discrimination in special education programs,

Appellants voluntarily dismissed their claims because the

parties were addressing those issues as part of their

comprehensive dispute resolution efforts. See Chee v. Bd. of

Educ. of San Juan, No. 2:94-CV-0386. The third

discrimination action — to be filed by the United States —

was contemplated and prepared by Appellants but never filed.

In 1997, dispute resolution efforts culminated in a formal

agreement and the district court entered a new consent decree

that explicitly superseded the 1975 instrument. See Sinajini

v. Bd. of Educ. of San Juan, 964 F. Supp. 319, 321 (D. Utah

Nea SIN NAN ty be

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Appendix A

1997). Appellants, who view the new agreement as an

omnibus resolution of their multiple and varied claims, filed

an application for fees and costs pursuant to 42 U.S.C.

§ 1988(b). The district court, relying primarily on the fact

that the proceedings had been previously limited to the

enforcement of the 1975 decree, granted limited fees and

costs. See Sinajini v. Bd. of Educ. of San Juan, 47 F. Supp.

2d 1316, 1320-21, 1327-28 (D. Utah 1999). This appeal

followed. eee

Appellants contend that the district court erred by

refusing to award fees and costs on multiple claims resolved

by the 1997 decree. Title 42 U.S.C. § 1988(b) authorizes

reasonable attorney’s fees for a prevailing party. “[W]Je

review an attorney’s fee award under 42 U.S.C. § 1988(b)

for an abuse of discretion.” Robinson v. City of Edmond,

160 F.3d 1275, 1280 (10th Cir. 1998). In this case, we hold

that the district court abused its discretion by limiting the

attorney fee award to issues pled when the court had entered

judgment on a negotiated settlement that was larger in scope

than the pleadings had been. Although the court

acknowledged that the resolution of the Chee litigation and

the anticipated action by the United States were both

“subjects of the 1997 Agreement,” the court limited the scope

of the award to allegations contained in the pleadings and

excluded any other issue. Sinajini, 47 F. Supp. 2d at 1320-

21. This limitation is unreasonable because it belies the nature

of the settlement process wherein a party might prevail on

claims that were previously stricken. That was the case here.

Although the district court recognized that the Chee case

was subject to the 1997 decree, the court instructed Appellants

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Appendix A

to “file any request for costs and attorney fees incurred in

Chee with the Chee case.” Sinajini, 47 F. Supp. 2d at 1320-

21. The consent decree that the court entered judgment on,

however, provided for uniform resolution “concerning costs

and attorney[ ] fees in connection with the Chee and Sinajini

litigation and the pending United States’ matters.” ©

Appellants’ App. at 129 n.4. Because the parties had

negotiated this arrangement and the court had approved it,

we direct the district court on remand to make a uniform

resolution on the question of attorney’s fees and costs.

In their brief, Appellants suggest that they are entitled

to additional fees for having confirmed the holding of the

Meyers case. We reject this argument summarily because it

appears to be made for the first time on appeal and also

because the provision in the 1997 decree that addresses fees

and costs does not address Meyers. We also summarily reject

‘Appellants’ assertion that they are entitled to fees for

monitoring the enforcement of the new decree. We have

reviewed the record and conclude that Appellants have failed

to meet their burden of proving that monitoring efforts are

necessary. See Joseph A. v. New Mexico Dep’t of Human

Servs., 28 F.3d 1056, 1060 (10th Cir. 1994).

Whether Appellants prevailed on claims pursued in the

enforcement proceeding, in the Chee litigation, or on issues

contained in the anticipated action by the United States are

ultimately mixed questions of law and fact. We review factual

findings for clear error, and we review the application of

legal standards de novo. See Robinson v. City of Edmond,

160 F.3d at 1280 (citing Jane L. v. Bangerter, 61 F.3d 1505,

1509 (10th Cir. 1995)). We have reviewed the Order granting

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Appendix A

limited attorney fees and costs and conclude that the district

court analyzed whether Appellants prevailed under an

erroneous legal standard.

The Supreme Court has articulated the applicable legal

standard. “In short, a plaintiff prevails when actual relief on

the merits of his claim materially alters the legal relationship

between the parties by modifying the defendant’s behavior

in a way that directly benefits the plaintiff.” Farrar v. Hobby,

506 U.S. 103, 111-12 (1992). Further, as the district court

noted, parties “may be considered ‘prevailing parties’ for

attorney’s fees purposes if they succeed on any significant

issue in litigation which achieves some of the benefit the

parties sought in bringing suit.” Hensley v. Eckerhart, 461

U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d

275, 278-79 (ist Cir. 1978)). It is well established that a

party may prevail through a settlement embodied in a consent

decree. See Maher v. Gagne, 448 U.S. 122, 129 (1979). When

correctly analyzed under the appropriate legal standard,

Appellants prevailed to a greater extent than the district

court’s Order acknowledged. The court erred when it

conflated the Farrar standard with a more exacting and

inapplicable two-part “catalyst test.” See Sinajini, 47 F. Supp.

2d at 1322.

The district court stated: “[W]hen there has been no

adjudication, the Tenth Circuit applies a two-part catalyst

test.”” Jd. (quotations omitted). That states the application

too broadly. Rather, the Tenth Circuit uses the catalyst test

to determine whether a party prevailed when the relief

pursued eventuates but there is “no final judicial

determination.” See Foremaster v. City of St. George,

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Appendix A

882 F.2d 1485, 1488 (10th Cir. 1989); see also Beard v.

Teska, 31 F.3d 942, 945 (10th Cir. 1994) (final judgment

had been withdrawn). The purpose of the catalyst test is to

prove a connection between a lawsuit and an eventual change

in a party’s conduct in cases where that connection is not

proven presumptively by a final judgment. The catalyst test

bridges a gap that does not exist when a judgment is in effect.

A judgment is in effect here, and the catalyst test does not

apply.

Taking the catalyst test out of context, the district court

examined whether Appellants’ lawsuit (as pled) was causally

linked to the relief obtained and whether the school district’s

conduct under the consent decree would be otherwise

required by law.' See Sinajini, 47 F. Supp. 2d at 1322-27.

Using that test, the court determined that Appellants

prevailed on only one claim: “for expansion, renovation, and

improvement of the two secondary schools... .” Jd. at 1326.

That, however, is not the test articulated in Farrar. On

remand, the district court must reevaluate whether the 1997

consent decree modified the school district’s behavior in

additional ways that benefitted Appellants.

For example, the 1997 decree altered the parties’

relationship by creating committees of experts empowered

to make recommendations about schoo! district programs.

See Sinajini, 47 F. Supp. 2d at 1326-27. The school district

accepted formal obligations regarding the free exchange of

information and accounting procedures, both of which alter

1. We observe that the district court’s interpretation of the

catalyst test results in a strict adherence to the language of the

pleadings, which interpretation we do not ratify.

PEER Se AR a CSL toe Mian

he 1 Ee ne tA AS Ri SL AA CIE ALIS OE Le i Hi

9a

Appendix A

the way the parties conduct business. The school district

agreed to use their best efforts to obtain funding for

construction of an elementary school. Although the school

district is not obligated to construct that facility, the parties’

relationship has been altered by imposition of an enforceable

legal standard, “best efforts.” See Firefighters v. Stotts, 467

U.S. 561, 574 (1984); Coors Brewing Co. v. Molson

Breweries, 51 F.3d 1511, 1513 (10th Cir. 1995). Throughout

its brief the school district contends that, notwithstanding

such alterations, their behavior is not modified by the decree

because they retain the final decision-making authority on

questions of district programs. That response does not suffice

because the district agreed to alter the processes through

which it approaches that decision-making, and such

alterations can be material and of benefit to Appellants.

After reconsidering the extent to which Appellants

prevailed, the district court must reexamine whether

Appellants obtained excellent results or only limited success.

When a party has obtained substantial relief, “the fee award

should not be reduced simply because the plaintiff failed to

prevail on every contention raised in the lawsuit.” Hensley,

461 U.S. at 435. The district court explained that some claims

were “not so related to the successful claim that they should

be compensable... .” Sinajini, 47 F. Supp. 2d at 1328. The

Supreme Court, however, excluded claims “distinct in all

respects from [ ] successful claims.” Hensley, 461 U.S. at

440. That less restrictive standard must be utilized in

determining whether certain claims are unrelated to the

pursuit of the ultimate result achieved.

10a

Appendix A

The district court determined that Appellants prevailed

on “a significant claim,” but concluded that “it was only one

of approximately 21 claims for relief, so the plaintiffs

achieved only limited success in view of the entire litigation.”

Sinajini, 47 F. Supp. 2d at 1328. However, “[s]uch a lawsuit

cannot be viewed as a series of discrete claims. Instead the

district court should focus on the significance of the overall

relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation.” Hensley, 461 U.S.

at 435. Whether a party prevails is ultimately an exercise of

judgment that is fundamentally qualitative, not quantitative.

See Jane L. v. Bangerter, 61 F.3d 1505, 1511 (10th Cir.

1995). Having outlined the appropriate legal standards, we

leave that judgment to the district court to exercise in the

first instance.

The final step of the analysis requires the district court

to determine a lodestar figure by making a calculation of

hours reasonably expended. See Jane L., 61 F.3d at 1509-

1510. The distrie’ court did not calculate a lodestar. Instead,

because the district court determined that Appellants had

prevailed on one of twenty-one claims, the court awarded

Appellants one twenty-first of the total hours worked plus

any hours actually spent on that claim. Appellant’s App. at

154. When recalculating the award, the court must calculate

the hours reasonably expended in light of the results achieved

and use that as the lodestar for the final award.

We REVERSE and REMAND for recalculation of

attorney’s fees and costs.

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Appendix A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 99-4130

JIMMY SINAJINI, BILL JOE SINAJINI, JOE LEE

BEGAY, and HERBERT BEGAY, minors, through their

parents and/or guardian, LENA BEGAY; CECIL VIJIL,

SHIRLEY VIJIL, CLARA LAMEMAN, through their parent

and/or guardian, LEONA VIJIL; HOLLY NEZ, HOWARD

NEZ, and HANNAH NEZ, minors, through their parent and/

or guardian, MARION NEZ; GILBERT ROCKWELL and

LINDA ROCKWELL, minors, through their parent and/or

guardian, LENA ROCKWELL; EDITH BIGMAN,

JUANITA BIGMAN, and DOROTHY BIGMAN, minors,

through their parent and/or guardian, SETH BIGMAN;

ANTHONY DEE, minor, through his parent and/or guardian,

GRAY DEE; HOWARD HOLIDAY and PETER

HOLIDAY, minors, through their parent and/or guardian,

TEDDY HOLIDAY; HAROLD VIJIL, ALFRED VIJIL,

minors, through their parent and/or guardian, TULLY VIJIL;

FERRELL COLLINS, SHERRIL COLLINS, and ILENE

COLLINS, minors, through their parent and/or guardian,

MARTHA COLLINS; SARAH BILLY and BRENDA

BILLY, minors, through their parent and/or guardian, JOHN

BILLY; LEROY ATCITTY PATRICIA DENNISON, a

minor, through her parents TOM DENNISON and ARLENE

DENNISON; JIMMY GOODMAN, JR. and GILBERT

WOODMAN, minors, through their parents and/or guardians,

LUCY GOODMAN and JIMMY GOODMAN; ELAINE

WILLIAMS and LORINDA WILLIAMS, minors, through

12a

Appendix A

their parent and/or guardian, MARY ANN WILLIAMS; THE

RED MESA CHAPTER OF THE NAVAJO TRIBE; and

THE OLJATO CHAPTER OF THE NAVAJO TRIBE,

Plaintiffs-Appellants,

and

UNITED STATES OF AMERICA; NAVAJO NATION,

ANETH CHAPTER; NATASHA LIVINGSTON; DAWNY

CLARK, NATHAN CLARK, and LATOYA CLARK, minors,

through their parent and/or guardian, SHERRILL CLARK,

Plaintiffs-Intervenors,

V.

BOARD OF EDUCATION OF THE SAN JUAN SCHOOL

DISTRICT; DAVID ADAMS, MAXINE NIELSON,

HAROLD LYMAN, TOM HOLIDAY, and ROBERT

BILLIE, all individually and as members of the Board of

Education of the San Juan School District; KENNETH

MAUGHAN, individually and as Superintendent of the San

Juan School District; THE SAN JUAN COUNTY

COMMISSION; DALE HOLMES, individually and as

Chairman of the San Juan County Commission; WILLIAM

G. DUNOW, and CASE E. BRODERICK, individually and

as commissioners of the San Juan County Commission;

UTAH STATE BOARD OF EDUCATION,

Defendants- Appellees.

13a

Appendix A

JUDGMENT

Filed November 30, 2000

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

This case originated in the District of Utah and was

argued by counsel.

The judgment of that court is reversed. The case is

remanded to the United States District Court for the District

of Utah for further proceedings in accordance with the

opinion of this court.

Entered for the Court

PATRICK FISHER, Clerk

by: s/ Amy Frazier

Deputy Clerk

l4a

APPENDIX B — OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF UTAH,

CENTRAL DIVISION DATED AND

FILED FEBRUARY 5, 1999

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

Civil No. 2:74-CV-346S

JIMMY SINAJINI, et al.,

Plaintiffs,

and

THE NAVAJO NATION and THE UNITED

STATES OF AMERICA,

Plaintiffs-Intervenors,

vs.

BOARD OF EDUCATION OF THE SAN JUAN

SCHGOL DISTRICT, et al.,

Defendants.

UTAH STATE BOARD OF EDUCATION and STATE

SUPERINTENDENT OF PUBLIC INSTRUCTION,

Amicus Curiz.

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Appendix B

ORDER

This case came before the court on three related motions.

The plaintiffs filed two motions for orders requiring the

defendant Board of Education of the San Juan County School

District (District) and amicus curiae the Utah State Board of

Education (State Board) to pay plaintiffs’ costs and attorney

fees pursuant to 42 U.S.C. § 1988(b). The State Board,

together with the State Superintendent of Public Instruction,

asked the court to consider separately issues of entitlement

to fees and reasonableness of the amount requested. In a

phone conference with the parties, the court granted the State

Board’s motion. A hearing on the issue of entitlement was

then held on December 15, 1998.

I. Procedural background

In 1974 the plaintiffs, all Native Americans, filed this

lawsuit against the District and its members, the State Board

and its members, and the State Superintendent of Public

Instruction. They alleged that the defendants violated the

'jnited States Constitution and various federal laws by

(1) expending more funds for construction and operation of

schools within the San Juan School District which served

non-Native American students than for those which

predominantly served Native American students, and

(2) failing to provide a bicultural and bilingual education

program to benefit non-English speaking Native American

students. (See Memorandum Decision of May 25, 1995 “1995

Decision” at 2.) The case was certified as a class, with the

plaintiffs representing all Native American students in the

San Juan School District.

16a

Appendix B

In 1975 the parties stipulated to an agreement which this

court, Judge Aldon J. Anderson presiding, incorporated into

a consent decree. (See file following doc. # 4 & Exhibit G to

District’s memorandum in opposition. )

The final provision of the 1975 Agreement specified,

“The parties shall pay their own costs and attorney’s fees.”

Id., 4 53.

More than seventeen years later, the plaintiffs filed a

Verified Motion in Supplemental Proceedings, and the

Navajo Nation intervened as a plaintiff, alleging that the

District had not complied with the 1975 Agreement and

Consent Decree. Judge Anderson agreed to reopen the case

and assert jurisdiction “for the purposes of enforcing this

court’s Judgment and Decree adopting the terms of the [1975]

Agreement.” (Memorandum Decision of May 27, 1993.)

Soon thereafter, the plaintiffs filed a Second Verified

Motion in Supplemental Proceedings which addressed

particular educational needs of Native American teenagers

at Navajo Mountain, Utah. Both motions raised claims and

allegations which were not contained in the 1975 Agreement

and Consent Decree. Because there had never been an

adjudication or admission of any constitutional violation in

this case, Judge Anderson determined that modification of

the Agreement would not be allowed absent “a clear showing

of extraordinary circumstances,” which the plaintiffs had not

made. (Order Denying Plaintiffs’ Motion to Modify of

November 30, 1993 at 7; quoting | 47 of Agreement.)

Accordingly, those paragraphs which raised claims and

allegations beyond the scope of the Agreement and Consent

Decree, were stricken from the plaintiffs’ motions.

17a

Appendix B

The plaintiffs filed a Third and Fourth Verified Motions

in Supplemental Proceedings, and the United States filed a

Complaint-in-Intervention. The case was reassigned to Judge

David K. Winder.

Agreeing with Judge Anderson’s reasoning, Judge

Winder refused to consider “any allegations which raise

claims or request remedies not contained in either the

Agreement or the court’s 1975 Decree.” 1995 Decision at 6.

Accordingly, Judge Winder granted the District’s motions

to strike various paragraphs in the plaintiffs’ Third and Fourth

Verified Motions and in the United States’ Complaint-in-

Intervention. /d. at 5-11.

The plaintiffs commenced two new cases against the

District, both alleging discriminatory practices against Native

American students. Meyers v. Board of Education of the San

Juan School District, No. 2:93-CV-1080, and Chee v. Board

of Education of the San Juan School District, No. 2:94-CV-

0386. In Meyers, the plaintiffs reasserted the new claims they

had tried to raise in their Second Verified Motion in

Supplemental Proceedings in this case. See 1995 Decision

at 3 n.2. Judge Winder observed that the plaintiffs could also

pursue allegations stricken from their Third Verified Motion

by filing a new case or amending their complaint in Meyers

or Chee. Id. at 8.'

1. The plaintiffs had sought to consolidate Meyers with

Sinajini, but Judge Anderson found that the cases involved different

issues and were at disparate stages in the litigation process. (Order of

December 28, 1993.) Similarly, when the plaintiffs sought to consolidate

Chee with Sinajini, Judge Winder denied the request, explaining:

(Cont’d)

18a

Appendix B

Judge Winder distinguished this case from original civil

rights actions. /d. at 10. He wrote:

[B]ecause this is an enforcement proceeding and

not an original civil rights action, the better

approach is to limit the United States to arguing

about whether the District has or has not complied

with its obligations under the “clear and specific”

terms of the Agreement and the court’s 1975 Decree.

... [T]his case is and always has been about

whether the District is complying with the terms

of the Agreement and the court's 1975 Decree.

Id. at 10-11 (emphasis added).

The Fourth Verified Motion alleged for the first time

that the State Board had also violated the Agreement and

(Cont'd) :

Chee is anewly filed civil rights case which. . . focuses

on the District’s alleged racial discrimination in its special

education programs. . . . This case, by contrast, is a twenty-

year old enforcement proceeding the focus of which is

whether the District has complied with the express terms

of the Agreement and the court’s 1975 Decree.

... The court therefore sees no reason to delay

resolution of the Plaintiffs’ enforcement motions in this

case while it waits for the Chee litigation to wind its

way through the system.

1995 Decision at 13. Judge Winder suggested it might be more

appropriate to consolidate Chee with Meyers. Id. at 14.

19a

Appendix B

Consent Decree. /d. at 4n.4. The plaintiffs later filed a Fifth

Verified Motion, also directed at the State Board. Judge

Winder denied both the Fourth and Fifth Verified Motions

on the merits. (See Minute Entry of October 31, 1996.)

The Sinajini case then languished while the plaintiffs

pursued their claims in Meyers. On November 22, 1996, the

parties reached a settlement in Meyers. (See Exhibit G to

plaintiffs’ reply memorandum in response to amicus curiz.)

Later they stipulated to a significant award of costs and

attorney fees for the plaintiffs’ work in that case. (See file

doc. # 321 in Meyers.)’

Returning to Sinajini, the plaintiffs filed a Sixth Verified

Motion for Supplemental Proceedings and moved for partial

summary judgment on their claims that the District had

violated paragraphs 19, 31 & 46 of the 1975 Agreement.

Their motion for partial summary judgment was denied.

(Order of April 24, 1997.) ;

In 1997 the parties reached a new agreement which was

incorporated into a new consent decree.’ The 1997 Agreement

2. Plaintiffs ask the court to take judicial notice of the record

in Meyers. (Reply memorandum in support of second motion for

fees at 2 n.1.)

3. Parties to the 1997 Agreement are’ the District, the State

Board, the State Superintendent of Public Instruction, the Chee

plaintiffs, the Sinajini plaintiffs, the Navajo Nation, and the United

States. (Paragraph 1.) ;

The 1997 Agreement and Consent Decree are published in

Sinajini v. Board of Education, 964 F. Supp. 319 (D. Utah 1997).

20a

Appendix B

explicitly “superseded, dissolved and replaced” the 1975

Agreement. (Paragraph 9.) Its stated purpose was:

to resolve the dispute concerning compliance with

the 1975 Agreement and related issues, including

paragraphs | 1-16 of the United States’ Complaint-

in- Intervention ..., the issues raised in the

referral dated February 10, 1994 from the Office

for Civil Rights ... to the United States

Department of Justice concerning the District’s

compliance with Title VI of the Civil Rights Act

..., and the issues raised in the October 31, 1996

letter from the United States Department of

Justice to the District.

(Paragraph 5, emphasis added).

The 1997 Agreement reiterated:

The pending Sinajini case was limited to a

determination of the District’s compliance with

the provisions of the [1975 Agre ent].

(Paragraph 4).

The District again denied “any violation of any state or

federal law or any wrongdoing as alleged above,” and the

parties acknowledged “there has been no judicial

determination as to the validity of the claims and defenses

raised by the parties.” (Paragraph 5.)

The plaintiffs voluntarily dismissed their claims in Chee

and agreed to “stay any further enforcement proceedings”

2la

Appendix B

in Sinajini while the parties attempted to resolve their

disputes. (Paragraph 10.) The plaintiffs also dismissed their

claims against the State Board and its original members, on

condition that the State Board and State Superintendent

of Public Instruction act as “Amicus Curiz to the 1997

Agreement.” (Paragraph 11.)

The District agreed inter alia: (1) to hold a bond election

and use some portion of any proceeds to add classroom and

library facilities at two high schools in the southern part of

the district; (2) to provide appropriate bilingual education;

(3) to continue to incorporate a cultural awareness component

into its curriculum; (4) to provide a special education

program as required by state and federal statutes and

regulations, and (5) to administer a curriculum consistent

with applicable statutes and regulations. (Paragraphs 12, 17,

23, 24, 28.)

The parties created a Dispute Resolution Team and

procedures to follow before taking any court action

concerning issues covered by the 1997 Agreement.

(Paragraphs 32-34.)

The parties specifically reserved the question of costs

and attorney fees.*

4. Paragraph 36 provides:

The parties shall negotiate agreements concerning costs

and attorneys fees in connection with the Chee and

Sinajini litigation and the pending United States’ matters

... If they are unable to reach an agreement, any party

(Cont'd)

22a

Appendix B

II. Scope of the motions

The plaintiffs seek costs and attorney fees in three

matters which were subjects of the 1997 Agreement:

(1) Sinajini; (2) Chee; and (3) a lawsuit contemplated but

not yet filed by the United States. (Plaintiffs’ memorandum

in support at 3-5; see Consent Decree, J 5 & 36.)°

As noted above, a motion to consolidate Chee with

Sinajini was denied on May 26, 1995. Supra, n.2. Chee was

pending before Judge Jenkins at the time of its voluntary

dismissal. See District’s memorandum in opposition at 24

n.10. Accordingly, the plaintiffs should file any request for

costs and attorney fees incurred in Chee with the Chee case.

It is not properly before this court.

III. Discussion

In their first motion for fees, filed on June 26, 1997, the

plaintiffs seek costs and attorney fees incurred up to the date

(Cont’d)

may file and serve an appropriate motion for costs and

attorneys fees by July 1, 1997, and the matter shall be

submitted to the Court for resolution after appropriate

briefing and any further proceedings deemed necessary

by the Court. This provision shall not be viewed as any

indication that fees are or are not due in this matter.

5. Plaintiffs refer to these matters as “three consolidated cases.”

(Plaintiffs’ First Verified Supplemental Fee Application at 1-2.) They

have never been consolidated by a judge of this district. Judge Sam’s

approval of the parties’ 1997 Agreement is binding in Sinajini but

may not be recognized in Chee or other matters.

Se ee ae

23a

Appendix B

of the 1997 Consent Decree. In their second motion, filed

on May 11, 1998, the plaintiffs seek costs and attorney fees

subsequently incurred in “monitoring the District’s

compliance with the [1997] Consent Decree and protecting

the interests and benefits bestowed . . . by the agreement and

decree.” (Plaintiffs’ First Verified Supplemental Fee

Application at 2.)

In other words, the first motion is for fees incurred in

enforcing the 1975 Agreement and Decree; the second

motion is for fees incurred in monitoring the 1997 Agreement

and Decree.

A. First motion for costs and attorney fees

The District argues that the plaintiffs are not entitled to

an award of fees on their first motion for three main reasons:

(1) the 1975 Agreement and Consent Decree preclude such

an award; (2) the plaintiffs had limited success and failed to

prevail in the enforcement proceedings; and (3) the plaintiffs

cannot recover for claims contemplated by the United States

but never filed. (District’s memorandum in opposition at

7-26.) They point out that the plaintiffs did not prevail on

the “sole issue before the court” — enforcement of the

original consent decree — because that decree was dissolved.

Id. at 21-23.

The State Board adds that it cannot be held liable for

attorney fees because: (1) the 1975 Agreement and Decree

contain no terms enforceable against the State; (2) the State

Board participated in the enforcement proceedings mostly

24a

Appendix B

as amicus curiz; and (3) the State Board is immune from

damages under the Eleventh Amendment. (Amicus curiz’s

memorandum in opposition at 7-19.)

1. Whether the 1975 Agreement and Decree

preclude an award under § 1988

Section 1988(b), also known as the “Civil Rights

Attorney’s Fee Awards Act of 1976,” provides:

In any action or proceeding to enforce

[enumerated civil rights statutes], 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....

(1996 amendment, emphasis added).

The plaintiffs argue they “were already prevailing parties

in 1975” because they had obtained an enforceable consent

decree. (Plaintiffs’ memorandum in support at 5-6.) The

Fee Awards Act was not passed until a year after the

parties signed the 1975 Agreement. See Pub. L. 94-559.

Nevertheless, the plaintiffs maintain the case was “pending”

when the Act passed because the court retained jurisdiction

for monitoring and enforcement purposes.

The plaintiffs then cite JNS v. Jean, 496 U.S. 154 (1990),

for the proposition that “the prevailing party status won by

civil rights plaintiffs in sustained institutional reform

litigation is a one-time threshold determination that carries

forward automatically and thus confers continuing prevailing

25a

Appendix B

party status in subsequent post-judgment monitoring and

enforcement proceedings.” (Letter to court dated February

20, 1998.) They insist “there is no de novo reconsideration

of whether plaintiffs ‘prevailed’ at each separate stage of

the proceedings for which they claim entitlement.” /d. (citing

Jenkins v. Missouri, 127 F.3d 709 (8" Cir. 1997)).

The plaintiffs ignore a critical distinction. No court has

yet found them to be a “prevailing party” at any stage of the

proceedings. Obtaining a consent decree, by itself, is not

sufficient to confer that status.

To “prevail” on a civil rights claim, a plaintiff must not

only “obtain an enforceable judgment against the defendant

from whom fees are sought . . . or comparable relief through

a consent decree or settlement,” but must show that “actual

relief on the merits of his claim materially alters the legal

relationship between the parties by modifying the defendant’s

behavior in a way that directly benefits the plaintiff.” Farrar

v. Hobby, 506 U.S. 103, 111-112 (1992).

Even if § 1988(b) could be applied retroactively to

services rendered in obtaining a consent decree entered

before its effective date, the court declines to determine in

1999 whether the plaintiffs might be considered “prevailing

parties” in 1975 when they agreed, “The parties shall pay

their own costs and attorney’s fees.” 1975 Agreement, § 53.

Cases where the plaintiff already had “prevailing party”

status in the underlying litigation and then sought an award

of costs and fees in supplemental proceedings, are therefore

26a

Appendix B

distinguishable. E.g., Jenkins, 127 F.3d at 714-20; Arvinger

v. Mayor & City Council of Baltimore, 31 F.3d 196 (4" Cir.

1994).

The District points out that a party can waive its statutory

entitlement to fees as part of a settlement arrangement. Evans

v. Jeff D., 475 U.S. 717 (1986); Chicano Police Officer's

Ass'n v. Stover, 624 F.2d 127, 132-133 (10" Cir. 1980). In

Evans, the waiver of any entitlement under § 1988(b) was

limited to “costs and attorney’s fees thus far incurred.” 475

U.S. at 722 n.5.

Because the fee provision in the 1975 Agreement is not

limited, the District argues it precludes an award of costs or

fees in the subsequent enforcement action as well. The court

disagrees. As explained above, the plaintiffs had no statutory

entitlement to waive when the 1975 Agreement was signed.

But when the enforcement proceedings were commenced in

1992, the Agreement was not the only basis for a fee award;

section 1988(b) had been passed. The parties’ contractual

fee provision is not a clear and unequivocal waiver of any

subsequent statutory entitlement.

Thus, the plaintiffs may be entitled to an award of costs

and fees subsequently incurred, if they can show that they

prevailed in the enforcement proceedings.

2. Whether the plaintiffs prevailed against

the District and to what extent

“Plaintiffs may be considered ‘prevailing parties’ for

attorney’s fees purposes if they succeed on any significant

One

27a

Appendix B

issue in litigation which achieves some of the benefit the

parties sought in bringing suit.” Hensley v. Eckerhart,

461 U.S. 424, 433 (1983). “/LJiability on the merits and

responsibility for fees go hand in hand.” Kentucky v.

Graham, 473 U.S. 159, 165 (1985). Therefore, “a civil rights

plaintiff must obtain at least some relief on the merits of his

claim.” Farrar, 506 U.S. at 111 (emphasis added).

“{[W]hen there has been no adjudication,” the Tenth

Circuit applies a two-part “catalyst test”:

The plaintiff must demonstrate that his lawsuit is

linked causally to the relief obtained, i.e., the suit

must be a “substantial factor or a significant

catalyst” in prompting the defendants to act or

cease their behavior. He must also demonstrate

that the defendant’s conduct in response to the

lawsuit was required by the Constitution or federal

law, 1.e., the defendant’s actions must be legally

required.

Kansas Health Care Ass'n, Inc. v. Kansas Dept. of Social &

Rehab. Servs., 31 F.3d 1052, 1053 (10" Cir. 1994). See also

Beard v. Teska, 31 F.3d 942, 951-52 (10" Cir. 1994);

Foremaster v. City of St. George, 882 F.2d 1485, 1488 (10"

Cir. 1989), cert. denied, 495 U.S. 910 (1990).

The plaintiffs’ enforcement proceedings in this case were

commenced with a Verified Motion in Supplemental

Proceedings for Order to Show Cause which sought the

following relief:

28a

Appendix B

(1) a finding of exceptional circumstances and

appointment of a special master to monitor the District;

(2) an order finding the District in contempt;

(3) monetary sanctions;

(4) an independent audit of the District finances;

(5) an order preserving all District records;

(6) an order placing the District in partial receivership;

(7) amending the Agreement to require such changes

as implementation of bilingual and affirmative action

programs in hiring teachers and staff;

(8) requiring the expenditure of funds to ensure

compliance;

(9) imposing “specific accounting methods and

practices”;

(10) additional monitoring of the Decree, including

quarterly reporting to the court and other parties;

(11) eliminating time limits for objection to reports;

(12) eliminating negotiation as a prerequisite to court

action;

(13) “dismantling the dual education system”;

29a

Appendix B

(14) enjoining improper expenditure of categorical

funds;

(15) providing compensatory educational services;

(16) amending the Agreement to require relatively

higher expenditures in southern schools;

(17) amending the Agreement to require construction

and improvement of elementary facilities in the south;

(18) amending the Agreement to require expansion,

renovation, and improvement of secondary schools in the

south;

(19) amending the Agreement to require construction

of an elementary school at Navajo Mountain;

(20) amending the Agreement to require construction

of an elementary school at Monument Valley; and

(21) amending the Agreement to increase reimbursement

to parents for transporting their children.

(Verified Motion, {§ 21(b)-35, Ex. E to District’s memorandum

in opposition).°

The plaintiffs did not prevail on a number of the claims

asserted in this first Verified Motion. The court struck certain

allegations — corresponding to claims (1), (7), (11), (14),

(16), and (19) — as outside the scope of an enforcement

6. The plaintiffs also requested an award of costs and attorney

fees.

30a

Appendix B

proceeding. New claims in their Second, Third and Fourth

Verified Motions were likewise stricken, and some were

reasserted in Meyers. Their Fourth and Fifth Verified

Motions were denied on the merits. Their sixth and final

Verified Motion sought relief similar to claims 2-4, 6, 8-10,

13, 15, 17-18, and 20. (Sixth Verified Motion, 4 10(a)-(1),

file doc. # 196.)’

Some of the remaining claims are mentioned in the 1997

Agreement. Other claims are not mentioned at all, including

claims (3), (4), (5), (6), (8), (13), (15), (17) and (21).

Thus, fifteen of these claims for relief were either

stricken or abandoned. The remaining six claims are

discussed in more detail below.

a. Claim (2): an order finding

the District in contempt

The plaintiffs never obtained any order finding the

District in contempt. The 1997 Agreement mentions the issue

without resolving it:

The 1997 Agreement and corresponding Order

and Consent Decree ... are intended to resolve

the dispute concerning compliance with the 1975

Agreement...

7. The Sixth Verified Motion also sought: (1) an award of costs

and attorney fees; (2) retention of jurisdiction by the court to enforce

the 1975 Decree and supplemental orders; (3) certification of a

plaintiff class that would include future Native American students;

and (4) “other relief as the Court deems just and proper.” Paragraphs

10(m)-(p).

31a

Appendix B

The District denies any violation of any state or

federal law or any wrongdoing as alleged above.

... Nothing in this Agreement should be

construed as an admission or acknowledgment in

any way that the District has not complied with

the provisions of the 1975 Agreement and the

Consent Decree or that the District is not in

compliance with existing state or federal law in

any regard.

(Paragraphs 5 & 41.)

Therefore, the plaintiffs did not prevail on this claim.

b. Claim (9): imposition of specific

accounting methods and practices

The plaintiffs asked that court to “require specific

accounting methods and practices to account for all

expenditures required by the Decree.” (Verified Motion

at 19.) The 1997 Agreement provides:

ACCOUNTING PROCEDURES AND EXPEN-

DITURES

The District and the parties plaintiff shall each

designate one individual to work together in a

cooperative effort with the District Business

Administrator to make the District’s financial

information and records more understandable to

the public. The District, through its Board of

Education, shall consider and, in its sole

ce | ;

32a

Appendix B

discretion, implement appropriate policies or

procedures, consistent with existing state law and

regulations, pursuant to the recommendations that

result from this effort.

(Paragraph 27, emphasis added).

The District retained the “sole discretion” to implement

or reject “recommendations” about its accounting policies

and procedures. Thus, the plaintiffs did not succeed in having

any specific accounting methods or practices imposed on

the District as a legal requirement. See Farrar, 506 U.S. at

111 (plaintiff “prevails” only when relief on merits of his

claim “materially alters the legal relationship between the

parties by modifying the defendant’s behavior in a way that

directly benefits the plaintiff”).

c. Claim (10): additional monitoring including

quarterly reporting to the court & other parties

The plaintiffs asked for an order requiring the District

to report to the following on a quarterly basis: (1) the court;

(2) the plaintiffs; (3) the United States Office of Education’s

Office for Civil Rights; (4) the United States Department of

Justice, Civil Rights Division; and (5) the Utah State Office

of Education. (Verified Motion at 19-20.)

As to monitoring, the 1997 Agreement provides:

The State, as Amicus Curiz, agrees to use

reasonable efforts according to applicable law to

33a

Appendix B

monitor the District’s educational efforts in the

areas of bilingual education, special education,

and curriculum.

(Paragraph 40). This does not require the District to make

any additional reports to the court or other parties, nor does

it subject the District to any monitoring that is not required

by existing state and federal laws. _

Because the monitoring relief granted in the 1997

Agreement does not “materially alter the legal relationship

between the parties,” the plaintiffs did not prevail on this

claim.

d. Claim (12): eliminating negotiation

as a prerequisite to court action

Rather than eliminating the need for negotiation, the

1997 Agreement established a detailed Dispute Resolution

Process. (Paragraphs 32-34.) Any disagreement between the

parties must now be submitted in writing to a Dispute

Resolution Team before action can be taken in any court. /d.

The plaintiffs did not prevail] on this claim.

e. Claim (20): construction of an elementary

school at Monument Valley

Regarding an elementary school at Monument Valley,

the 1997 Agreement provides: 7

[T]he parties ... shall use their best efforts to

obtain funding from Congress and appropriate

34a

Appendix B

federal or state agencies for (1) the construction

of an elementary school at Monument Valley

sufficient in size to accommodate Arizona and

Utah students residing in the Monument Valley/

Oljato areas. . . All parties acknowledge, however,

that without substantial financial contributions

- from the United States, the [Navajo] Nation, or

the State of Arizona, . . . the. . . potential elementary

facility at Monument Valley shall be designed to

accommodate only the Utah student population. . . .

Nothing in this Agreement shall be construed as

imposing any duly or obligation to construct an

elementary school at Monument Valley on the

District, the State, the Nation, or the United

States, that does not exist under current federal,

state, or tribal law....

(Paragraphs 14 & 16, emphasis added).

The District agreed only to seek funds from others

for the construction of an elementary school. The 1997

Agreement expressly indicates that it imposes no additional

duty on the District to build such a facility.

Again, the plaintiffs did not prevail because the relief

they obtained did not materially alter the parties’ legal

relationship.

35a

Appendix B

f/ Claim (18): expansion, renovation, and

improvement of secondary schools in the

southern part of the district

The plaintiffs asked the court to amend the 1975

Agreement “to require the District to expand, renovate and

improve both secondary schools in the southern portion of

the District.” (Verified Motion at 22.)

The 1997 Agreement contains some provisions about

improvements at these schools. It requires the District to hold

a bond election in May 1997. (Paragraph 12.) The District

did so, and voters in the district approved the issuance of

bonds. In that event, the 1997 Agreement provides:

If the issuance of bonds is approved in that

election, portions of the proceeds therefrom shall

be used to add additional permanent classroom

facilities at Whitehorse High School: Monument

Valley High School shall also be improved by

expanding the existing library facilities and

adding additional classroom facilities. Nothing

in this Agreement shall require the District to use

all proceeds from the May 1997 bond election, if

approved, on projects mentioned herein or at

Navajo Mountain.

(Paragraph 12, emphasis added).

If voters had not approved the issuance of bonds, these

building projects would “revert to projects considered from

district pay-as-you-go resources” and be “subject to

prioritization by the Board and the availability of funds.”

(Paragraph 13.)

36a

Appendix B

The District concedes that the plaintiffs obtained the

relief they sought on this claim because construction on

projects in the south is going forward. The District

nevertheless argues that plaintiffs did not prevail on this

claim for several reasons. First, the District maintains it

already planned to do the projects when funds became

available for them. However, no evidence was submitted in —

support of this self-serving contention.

Second, the District argues that the 1997 Agreement did

not alter the legal relationship of the parties on this issue,

since the “case was settled without any assurance that the

projects would be built.” (District’s memorandum in

opposition at 18.) The District says it did not promise to

complete the projects, but only to pursue a bond election.

However, the District also promised to use an unidentified

“portion” (not all) of the proceeds for improvements at

Whitehorse and Monument Valley High Schools if the bonds

were approved. (Paragraph 12.)

The District points out that it had already agreed to hold

the May 1997 bond election in connection with Meyers. But

while the District had agreed to hold a bond election, it had

not agreed to use any portion of the proceeds for improvements

at Whitehorse and Monument Valley High Schools, the relief

sought here.*®

8. The Meyers Agreement, dated November 22, 1996, required

the District to use its best efforts in “[c]onducting a bond election

in May, 1997, and from the bond issue committing such funds as

are necessary to construct the permanent secondary facility at Navajo

Mountain to serve grades 9-12.” Paragraph 7(a)(1), Ex. G to

Plaintiffs’ reply memorandum of July 28, 1997.

sia

Appendix B

Finally, the District argues that to prevail in these

enforcement proceedings, the plaintiffs must show that

failure to make these improvements at Whitehorse and

Monument Valley High Schools, violated the 1975 Agreement.

The District admits the 1975 Agreement required construction

of the two schools, which was done, but maintains that

expansion, renovation, or improvements were not required

more than 17 years after their construction.

Again, the court disagrees. Paragraph 17 provides:

The District shall construct secondary facilities

in the Oljato-Monument Valley-Mexican Hat area

and in the Montezuma Creek-Aneth-Red Mesa

area. The District shall use its best efforts to

provide an educational program (consisting of

facilities, curriculum and extra curricular

activities) at each of the new schools which is of

substantially as high quality as the existing

secondary programs in the District. Such facilities

shal! accomodate, [sic] withe ut overcrowding, all

students based upon a reasonable projection of

student enrollment.

(1975 Agreement, Ex. A to Plaintiffs’ reply memorandum,

emphasis added).

Throughout the litigation, the District has maintained

that it has complied with all requirements of the 1975

Agreement and Consent Decree. However, it has never filed

a motion to dissolve the Decree, based upon an adequate

showing of compliance. Judge Anderson even suggested that

38a

Appendix B

the District file such a motion. (Order of November 30,

1993.) Since the Decree remained in force, the District had

a continuing obligation to provide “facilitics [which]

accommodate, without overcrowding, all students.”

(Paragraph 17.)

Moreover, the claim for improvements at these high

schools was never stricken with other allegations found to

be beyond the scope of an enforcement proceeding. The court

will not dismiss them as irrelevant now that the plaintiffs

have obtained relief.

Accordingly, the court finds that the plaintiffs did prevail

on their claim for expansion, renovation, and improvement

of the two secondary schools in the southern part of the

District. (See J 30 of first Verified Motion & § 10(1) of Joint

Sixth Verified Motion.)

g. Creation of committees of experts

The court will now address the plaintiffs’ argument that

they obtained an additional benefit in the 1997 Agreement

and Consent Decree, which shows they are prevailing parties.

The plaintiffs consider the creation of certain committees as

one of their greatest achievements in this litigation:

The [1997] consent decree requires committees

of experts to review district programs, make

recommendations, and present plans for changes

in District programs and services to Native

American students. Substantial progress has been

made in regards to the work of the committees. . . .

39a

Appendix B

Plans and/or recommendations have been

submitted by the Finance Committee, the Special

Education Committee and the Bilingual

Committee, with recommendations from the

Curriculum committee to be submitted shortly.

The work of the committees has provided a

substantial and significant benefit on behalf of

the Native American class of students in this case.

(Plaintiffs’ trial brief at 2, emphasis added.)

The District responds that this benefit does not meet the

standard enunciated in Farrar or the Tenth Circuit’s catalyst

test:

[T]he Plaintiffs did not obtain “comparable relief”

through the Decree, that is, they cannot show that

the [D]istrict’s obligations set forth in the Decree

are required by law in response to the Plaintiffs’

lawsuit. Rather than ordering the District to take

affirmative action that “materially alters the legal

relationship between the parties by modifying the

defendant’s behavior in a way that directly

benefits the plaintiff,” Farrar, 506 U.S. at 111-

12, the [1997] Decree is nothing more than a

statement of the parties’ intention to work

cooperatively and the process by which such

cooperation will take place. Indeed, while parties

are required under the [1997] Decree to work

together in various committees, they are not

ordered to develop a particular plan or result.

Thus, the committees’ work, which Plaintiffs cite

40a

Appendix B

as positive proof that they have “prevailed.” is

not binding on the District. Paragraph 31 (e) of

the [1997] Decree specifically provides that the

“Board may reject or approve each committee

plan or any part thereof” and that “If the Board

rejects a committee plan, or any part thereof, the

plan shall not be binding on the District.”

(District’s trial brief at 4, emphasis added.)

The court agrees that the “creation of committees” is

not a claim or issue on which the plaintiffs’ prevailed for

purposes of attorney fees. Such relief was never requested

in any of the Verified Motions, although it relates to several

of the plaintiffs’ claims in this case, including “dismantling

the dual education system” (13 above), requiring the

expenditure of funds to ensure compliance with the decree

(8 above), and implementing bilingual programs (7 above).

Nor were committees of experts mentioned in the 1975

Agreement and Decree.

In any event, the test is not whether the relief obtained

is beneficial to the plaintiffs:

If it has been judicially determined that

defendant’s conduct, however beneficial it may

be to plaintiffs’ interests, is not required by law,

then defendants must be held to have acted

gratuitously and plaintiffs have not prevailed in a

legal sense.

Kansas Health Care, 31 F.3d at 1055 (quoting Nadeau v.

Helgemoe, 581 F.2d 275, 281 (1* Cir. 1978)).

4la

Appendix B

The creation of committees was not a legal requirement

in this case and cannot be an indication that the plaintiffs

prevailed.

h. Standards for the partially prevailing plaintiff

In Hensley v. Eckerhart, 461 U.S. 424 (1983), the

Supreme Court addressed the question “whether a partially

prevailing plaintiff may recover an attorney’s fee for legal

services on unsuccessful claims.” 461 U.S. at 426. The Court

held:

Where the plaintiff has failed to prevail on a claim

that is distinct in all respects from his successful

claims, the hours spent on the unsuccessful claim

should be excluded in considering the amount of

a reasonable fee. Where a lawsuit consists of

related claims, a plaintiff who has won substantial

relief should not have his attorney’s fee reduced

simply because the district court did not adopt

each contention raised. But where the plaintiff

achieved only limited success, the district court

should award only that amount of fees that is

reasonable in relation to the results obtained.

Id. at 440.°

9. The Hensley standard applies not only to fees generated

before a judgment but to those accrued in post-judgment proceedings.

Joseph A. v. Department of Human Servs., 28 F.3d 1056, 1060 (10"

Cir. 1994).

42a

Appendix B

These plaintiffs prevailed on their claim for renovation,

expansion and improvement of two secondary school

facilities, a significant claim. However, it was only one of

approximately 21 claims for relief, so the plaintiffs achieved

only limited success in view of the entire litigation.

Furthermore, the claims on which the plaintiffs failed to

prevail are not so related to the successful claim that they

should be compensable as well.

The court therefore holds that the plaintiffs are entitled

to award against the District of costs and attorney fees

incurred in pursuing claim (18) only.

3. Whether the plaintiffs can recover for the

United States’ contemplated claims

The plaintiffs say the United States contemplated filing

a separate action after the court struck various allegations

from its Complaint-in-Intervention, and they planned to

intervene in the contemplated lawsuit “to protect the benefits

they had received in the Sinajini consent decree, to expand

those benefits by requesting new relief, and to guard against

the danger of inconsistent adjudications.” (Plaintiffs’

memorandum in support at 14.)

Clearly, the plaintiffs did not prevail on allegations

which were stricken from this case as outside the scope of

an enforcement action. Nor does an intention to pursue those

claims in a separate action make them compensable here.

43a

Appendix B

4. Whether the plaintiffs prevailed

against the State Board

The State Board contends there are no terms enforceable

against the State in the 1975 Agreement or Decree. Indeed,

that is the “law of the case.”

The State Board was named a defendant in the original

complaint filed in 1974, and the “State defendants” are

defined in the 1975 Agreement to include the State Board.

(Paragraph 1(u).) However, the only other reference to any

of the State defendants is in § 21, where it says the District

shall pay certain tuition “subject to approval by the Utah

State Board of Education.”

Accordingly, Judge Winder denied the plaintiffs’ only

verified motions in supplemental proceedings which were

directed against the State Board. (Minute Entry of October

31, 1996.) “[T]here’s nothing in that agreement, of any kind,

that the State defendants agree to do anything,” Judge Winder

commented. The 1975 Agreement simply “doesn’t cover the

State.” (Transcript of hearing held on October 31, 1996, at 6

a

“[W]here a defendant has not becn prevailed against,

either because of legal immunity or on the merits, § 1988

does not authorize a fee award against that defendant.”

Kentucky v. Graham, 473 U.S. at 165.

10. In the 1997 Agreement, the plaintiffs dismissed the State

Board as 1 named defendant in this case, without prejudice, on the

condition that it participate in the Agreement as amicus curiz.

(Paragraph 11.)

44a

Appendix B

The plaintiffs’ allegations against the State Board were

all denied on the merits, so they are not entitled to a fee

award against the State Board.

B. Second motion for costs and attorney fees

The plaintiffs already seek an award for monitoring the

1997 Agreement and Consent Decree.

Under Tenth Circuit precedent, fees for post-judgment

monitoring of a consent decree are available to the party that

prevailed in the underlying litigation upon a showing that

“the effort expended was necessary and the fees requested

by plaintiffs are reasonable.” Joseph A. v. New Mexico Dept.

of Human Servs., 28 F.3d 1056, 1060 (10" Cir. 1994).

However, these plaintiffs had limited success in the

underlying litigation. They prevailed on only one of 21

claims for relief.

The claim on which they prevailed sought renovation,

expansion, and improvement of two secondary schools in

the southern part of the district. It does not appear that the

plaintiffs’ monitoring activities are in any way related to that

claim. See Ass'n for Retarded Citizens of North Dakota v.

Schafer, 83 F.3d 1008, 1011 (8" Cir.), cert. denied, 117 S.Ct.

482 (1996) (plaintiffs must prevail on unrelated claims to be

entitled to fee award for post-judgment work).

The 1997 Agreement and Consent Decree contemplate

that future disputes between the parties be resolved through

a Dispute Resolution Process involving a Dispute Resolution

Team. (Paragraphs 32-34.) Only when those procedures have

45a

Appendix B

been exhausted will the parties take action in any court

“concerning any issue which is the subject of this

Agreement.” (Paragraph 34.) The parties also provided for

continuing dialog among committees of experts appointed

by the parties and for “continuing cooperation” in

implementing the terms of the Agreement. (Paragraphs 3i

& 35-38.) The plaintiffs’ request that attorneys be compensated

for monitoring compliance with the Agreement does not seem

reasonable or necessary in these circumstances.

Thus, the plaintiffs are not entitled to fees for monitoring

the 1997 Agreement and Consent Decree.

IV. Order

The plaintiffs’ first motion for costs and attorney fees is

granted in part and denied in part as provided in this order.

The plaintiffs’ second motion for costs and attorney fees is

denied.

The plaintiffs are directed to submit detailed records of

costs and fees they incurred in pursuing and prevailing on

claim (18): the claim for renovation, expansion, and

improvements to the two secondary high schools in the

southern part of the district. All submissions to the court

must be supported by affidavit to which the District is

directed to respond if there is any opposition. The court will

then deciu. *vhether a hearing is necessary to determine what

award would be reasonable.

46a

Appendix B

DATED this Sth day of February, 1999.

BY THE COURT:

s/ David Sam

David Sam

United States District Judge

47a eras:

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

DENYING PETITION FOR REHEARING DATED

AND FILED JANUARY 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 99-4130

JIMMY SINAJINI, et al.,

Plaintiff-Appellant,

t

and

UNITED STATES OF AMERICA;

NAVAJO NATION, et al.,

Plaintiffs-Intervenors,

V.

BOARD OF EDUCATION OF THE SAN JUAN

SCHOOL DISTRICT,

Defendant-Appellee.

ORDER

Filed January 17, 2001

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

48a

Appendix C

Appellee’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all

of the judges of the court who are in regular active service

as required by Fed. R. App. P. 35. As no member of the

panel and no judge in regular active service on the court

requested that the court be polled, that petition is also denied.

Entered for the Court

PATRICK FISHER, Clerk of Court

by: s/ Amy Frazier

Deputy Clerk