943 F.2d 139 (1st Cir. 1991), 91-1165, Foster v. Mydas Associates, Inc.

Docket Nº:91-1165.
Citation:943 F.2d 139
Party Name:Darcy FOSTER, et al., Plaintiffs, Appellants, v. MYDAS ASSOCIATES, INC., etc., et al., Defendants, Appellees.
Case Date:September 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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943 F.2d 139 (1st Cir. 1991)

Darcy FOSTER, et al., Plaintiffs, Appellants,


MYDAS ASSOCIATES, INC., etc., et al., Defendants, Appellees.

No. 91-1165.

United States Court of Appeals, First Circuit

September 4, 1991

Heard June 6, 1991.

Joseph L. Kociubes, with whom Molly Cochran, Patricia M. McCarthy, Bingham, Dana & Gould, Ozell Hudson, Jr., Nadine Cohen and Lawyers Committee for Civil Rights Under Law--Boston Bar Ass'n, Boston, Mass., were on brief, for appellants.

Patrice C. Whalen, with whom Geoffrey A. Domenico and Piscitelli, Domenico &

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Murphy, Brockton, Mass., were on brief, for appellees.

Cornelius J. Moynihan, Jr., David H. Gibbs, Carla M. Rogers, and Peabody & Brown, Boston, Mass., on brief, for amici curiae Nat. Fair Housing Alliance, NAACP (Boston Branch), Civ. Liberties Union of Mass., Mass. Black Women Attys. Ass'n, and Mass. Bar Ass'n.

Asa D. Sokolow, Lori Barenkopf, Barbara R. Arwine, Thomas J. Henderson, and Rosenman & Colin, New York City, on brief, for amicus curiae Lawyers' Committee for Civil Rights Under Law.

Before SELYA and CYR, Circuit Judges, and STAHL, [*] District Judge.

SELYA, Circuit Judge.

Darcy and Marjorie Foster, husband and wife, together with their minor child, Terry Foster, were unsuccessful in a race-discrimination suit against four defendants (Robert McKean, Richard Sena, Mydas Associates, Inc., and Jeffrey Chabot). After having prevailed, the defendants sought counsel fees and costs against the plaintiffs and their attorneys. The district court obliged. The Fosters and five of their lawyers (Joseph L. Kociubes, Eve Jacobs-Carnahan, Molly Cochran, Patricia McCarthy, and Nadine Cohen) now appeal. Because we cannot afford meaningful appellate review on the record as it stands, we vacate the award and remand for further proceedings.


This civil action was filed in the United States District Court for the District of Massachusetts on April 1, 1988. The plaintiffs alleged that they were the victims of racial discrimination in connection with their unsuccessful efforts to purchase residential property located at 55 Warren Avenue, Brockton, Massachusetts. Their second amended complaint contained six counts. Count 1 alleged that the defendants violated the Fair Housing Act, 42 U.S.C. §§ 3604(a), 3617, in refusing to sell the property to the plaintiffs because of Darcy Foster's race, color, and national origin. 1 Count 2 alleged that the defendants' discriminatory behavior transgressed 42 U.S.C. § 1981. Counts 3 and 4 alleged violations of the state anti-discrimination and civil rights statutes, respectively. Mass.Gen.L. ch. 151B, § 4; Mass.Gen.L. ch. 12, §§ 11H, 11I. Counts 5 and 6 alleged that the defendants' actions constituted unfair business practices in derogation of the state consumer protection laws, specifically, Mass.Gen.L. ch. 93A, §§ 9, 11. 2

We need neither recount the underlying facts nor dwell on the details of the court proceedings. It suffices to say that, while the plaintiffs won an occasional battle--for example, the defendants' motions for summary judgment were denied--they lost the war. Counts 1, 2, and 3 were tried to, and repudiated by, a jury; count 4 was withdrawn by the plaintiffs prior to trial; and the consumer protection counts, reserved for consideration by the trial judge in accordance with state law, were summarily rejected.

Having prevailed, the defendants sought attorneys' fees and costs. They suggested three main sources of entitlement for such an award: 42 U.S.C. § 1988, Fed.R.Civ.P. 11, and Mass.Gen.L. ch. 231, § 6F. 3 The application asked that the plaintiffs and

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their attorneys be made to pay $34,347.48. The district court was quick to respond. On January 16, 1991, some five days after the plaintiffs filed their opposition and requested a hearing (which never materialized), the court entered a footnote order which provided in its entirety: "Application allowed. Court awards $26,000 in fees, costs and expenses." It is this award which has been appealed.


This appeal conjures up images of Sir Lancelot, in quest of the Holy Grail, stumbling instead into a storehouse full of paper cups. While appellants and the amici raise a series of important questions regarding the propriety of sanctions in civil rights actions generally, the record before us is hopelessly inadequate to permit enlightened discussion of these questions. Of necessity, our response must be much more narrowly focused.


It is well established that, in shifting fees or imposing sanctions, the district court is expected to explain its actions. See, e.g., Langton v. Johnston, 928 F.2d 1206, 1226 (1st Cir.1991); Morgan v. Massachusetts General Hosp., 901 F.2d 186, 195 (1st Cir.1990). We have said countless times before, and today reaffirm, that "[a]ppellate review of fee awards ordinarily requires that concrete findings be made and that the court below supply a clear explanation of the reasons undergirding a particular fee award." Peckham v. Continental Casualty Ins. Co., 895 F.2d 830, 842 (1st Cir.1990). While such findings "need not be infinitely precise," United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 16 n. 4 (1st Cir.1988), they must at least offer a "clear explanation of [the district court's] reasons for the fee award," Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), and the method and manner of the award's calculation, beginning with "the number of [attorney] hours reasonably expended on the litigation times a reasonable hourly rate," Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984). When a district court does not make such findings, remand is often required. See Langton, 928 F.2d at 1226. And the more tenebrous the record, the more cryptic the lower court's order, the more likely that the court of appeals will find it advisable, if not essential, to remand the matter. 4

Our review function is utterly thwarted here because we know virtually nothing about the district court's award. For one thing, we do not know under what legal authority the court presumed to act. The plaintiffs requested fees under a federal statute, a state statute, and a procedural rule. In addition, there was a fourth possible source of fee-assessing authority as, in a proper case, a district court may award fees in the exercise of its inherent powers. See Chambers v. NASCO, Inc., --- U.S. ----, 111 S.Ct. 2123, 2135-36, 115 L.Ed.2d 27 (1991). These different sources of authority impose varying criteria for judging the appropriateness of fee awards. Compare, e.g., Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir.1990) (setting out standard for awarding fees as a sanction under Fed.R.Civ.P. 11) with, e.g., Brown v. Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir.1990) (setting out standard for awarding fees to prevailing defendants under 42

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U.S.C. § 1988). 5 In order intelligently to review a fee award, the authority upon which the award is based must be known--or, at least, knowable. It follows inexorably that, at a bare minimum, the trial court must indicate, either expressly or by unmistakable implication, which source of authority it is invoking when it makes a fee award. See Jones v. Pittsburgh National Corp., 899 F.2d 1350, 1358 (3d Cir.1990); Insurance Benefit Administrators, Inc. v. Martin, 871 F.2d 1354, 1359-60 (7th Cir.1989); Ho v. Martin Marietta Corp., 845 F.2d 545, 549 (5th Cir.1988); cf. Langton, 928 F.2d at 1226 (ordering remand where record was "murky" as to whether judge "actually intended" to shift fees as a reward to prevailing plaintiffs or as a punishment for the defense's foot-dragging). Here, this prudential principle was honored only in the breach: we are left entirely to blind conjecture.

For another thing, we do not know against whom the district court wished the award to run. The possibilities are varied and feature a number of permutations. The court might have intended to make the award effective against some or all of the plaintiffs, some or all of the attorneys, or various combinations drawn from those groups. The order does not say. The problems presented by this uncertainty are compounded by the equally vexing uncertainty...

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