P.A.C.E. v. School District of Kansas City

Submitted: November 14, 2002 This appeal was brought by certain individual members of the plaintiff class in the Kansas City, Missouri School District desegregation litigation to obtain review of the district court's 1 order denying those class members' motion to decertify the class, to certify a subclass, or to disqualify class counsel. The KCMSD has moved to dismiss the appeal for lack of a final, appealable order. We conclude that there is no final order and hence, that we lack jurisdiction over the appeal. The appeal is dismissed. The individual class members call themselves Plaintiffs for African Centered Education, or PACE. They moved for decertification of the class, certification of a subclass, or disqualification of the class's current counsel because they disagreed with the class counsel's position opposing what he characterized as an expansion of the KCMSD's African-centered program. 2 The district court denied PACE's motion on two alternative grounds. First, the district court held that the individual class members were not entitled to litigate this motion without having moved for permission to intervene in the case. The district court distinguished the recent Supreme Court case of Devlin v. Scardelletti, 122 S. Ct. 2005 (2002), in which an individual class member was permitted to appeal the approval of a settlement, to which he had objected in the district court, even though he had not been granted permission to intervene in the suit. The district court held that allowing non-intervening class members to challenge individual litigation decisions by class counsel during the pendency of the suit, as PACE wants to do, poses a far greater threat to the efficiency of class litigation than merely allowing individuals to appeal from settlement decisions, as was permitted in Devlin. Therefore, the court refused to extend Devlin to a different procedural posture. Alternatively, the district court held that the PACE members had not rebutted the presumption that their interests were represented by the class, as required by Jenkins v. State of Missouri, 78 F.3d 1270 (8th Cir. 1996), and this was a sufficient reason to deny their motion on its merits.