Brewster v. Dukakis

• Decision Date: 14 March 1986
• Docket Number: Nos. 85-1775,85-1776,s. 85-1775
• Citation: Brewster v. Dukakis, 786 F.2d 16 (1st Cir. 1986)
• Parties: David BREWSTER, et al., Plaintiffs, Appellees, v. Michael S. DUKAKIS, et al., Defendants, Appellants. David BREWSTER, et al., Plaintiffs, Appellants, v. Michael S. DUKAKIS, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 16

786 F.2d 16

David BREWSTER, et al., Plaintiffs, Appellees, v. Michael S. DUKAKIS, et al., Defendants, Appellants.

David BREWSTER, et al., Plaintiffs, Appellants, v. Michael S. DUKAKIS, et al., Defendants, Appellees.

Nos. 85-1775, 85-1776.

United States Court of Appeals First Circuit.

Argued Feb. 5, 1986.

Decided March 14, 1986.

Thomas A. Barnico, with whom William L. Pardee, Asst. Attys. Gen., Francis X. Bellotti, Atty. Gen., were on brief, for defendants, appellants.

Steven J. Schwartz, with whom Robert D. Fleischner, Center for Public Representation, were on brief, for plaintiffs, appellees.

Edward P. Leibensperger, Kurt A. Ogle, Nutter, McClennen and Fish, and Marjorie Heins, Massachusetts Civil Liberties Union Foundation, on brief for Civil Liberties Union of Massachusetts, Greater Boston Legal Services, Massachusetts Law Reform Institute and Massachusetts Correctional Legal Services, amicus curiae.

Before COFFIN and ALDRICH, Circuit Judges, and PETTINE, Senior District Judge ^*.

COFFIN, Circuit Judge.

These are appeals from an attorney's fee award covering work performed by counsel for the plaintiff class, residents of the Northampton State Hospital, during two and one half years subsequent to entry of a complex consent decree. The decree bound the responsible Massachusetts officials to establish a system for the care and treatment of mentally disabled persons in community residential facilities and nonresidential programs. ¹

The litigation commenced in 1976; the decree was entered in 1978; and the district court made its first fee award in 1982, covering work performed from 1976 through 1981, in the amount of $386,204. ² The decision, resulting in a two-thirds reduction of the amount claimed, included an extensive analysis in which the court discussed and distinguished four kinds of work done by plaintiffs' counsel in implementing and monitoring the decree. The court established different rates for court work, decree implementation and monitoring, general work, and travel. Id. at 1076. Although the decree called for a court-appointed Monitor, the decree also bestowed various responsibilities on the parties. Id. at 1072.

The present fee application covered the period from January 1, 1982 through June 30, 1984, and included 2537.93 hours of services performed by two lawyers and a paralegal. The 191-page application included some 3500 entries (at roughly eighteen items a page) accounting for time in tenths of an hour, and coded to identify six different kinds of work. ³ The entry described the kind of activity (e.g., "spoke w/", "met w/", "drafted letter", "reviewed letter", "deposition", "hearing", etc.), as well as the other person or group involved, and, usually, the subject matter (e.g., "on budget", "on crisis intervention program", "on deposition"). The amount claimed was $239,772.10.

The district court awarded $132,639.55, a reduction of forty-four percent. The court decided three issues in favor of the plaintiffs: (1) it rejected defendants' contention that, to recover post-judgment fees, plaintiffs must show that their efforts produced a better result than otherwise would have occurred, holding that "reasonable monitoring", under Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir.1984) imposes a lesser burden; (2) it rejected defendants' challenge to time spent on three motions to hold defendants in contempt, all settled before hearing, finding that the efforts helped produce favorable results; and (3) it rejected defendants' claim that the fee award should be reduced to the extent that hours included in the fee application were also compensated by the Association of Service Providers for Persons with Handicaps ("Association"), accepting counsel's representation that all time claimed was for service benefiting the plaintiff class.

The court decided five issues in whole or in part against the plaintiffs: (1) it disallowed time spent in the unsuccessful defense on appeal of a legal services program ordered by the district court; (2) it disallowed time spent in a candidate search for the position of court Monitor; (3) it cut in half time claimed in connection with a Supplemental Agreement that never came to fruition; (4) it reduced, among other items, the claimed hourly rates from $125 and $115 for court activities to $95, from $115 and $105 for decree implementation to $85, and from $105 and $95 for general work to $75; and (5) it refused to grant plaintiffs' request for a fifteen percent upward adjustment of the lodestar, while also denying defendants' request for a downward adjustment.

Defendants appeal the court's refusal to adopt a rigorous "but for plaintiffs' efforts" standard for post-judgment monitoring fees and its refusal to reduce the award to reflect payments received from the Association. Plaintiffs cross appeal from the court's elimination of time spent in helping select a Monitor, from its reduction of time spent on the Supplemental Agreement, and from its reduction of hourly rates.

I. Post-Judgment Monitoring

Defendants' position is that in a post-judgment context where a defendant-funded court monitor is created by the decree, the only way to avoid creating a state-funded, open-ended "sinecure for counsel" is "to compensate counsel only where a substantial issue arises as to the defendants' obligations under the decree, and the work of plaintiffs' counsel yields a resolution more favorable to the class than the defendants were prepared to concede." They argue that such an extra burden is required to sift out progress or benefits flowing from the decree itself. They seek to distinguish Garrity v. Sununu, supra, on the ground that the instant case has in place a court Monitor, paid some $70,000 during the period at issue, whose presence presumably should have made unnecessary all time spent in routine monitoring. They argue alternatively that Garrity may need to be limited in light of Webb v. Board of Education of Dyer County, --- U.S. ----, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985), which held that there should be no 42 U.S.C. Sec. 1988 fee award for work in optional administrative proceedings unless it is "of a type ordinarily necessary" to advance the litigation. Id. 105 S.Ct. at 1929.

We appreciate the fact that devising workable ways, fair to performer and payor, to compensate legal services during the formative period (following issuance of a complex system-creating decree and before satisfactory implementation becomes largely routine) is a difficult and sensitive task. The services are of lower profile and often of a more routinized nature than services preceding judgments. Missing the refining fire of the basic litigation, plaintiffs' attorney may slip into a mode of spending too much time on too many matters, with the result that the decree institutionalizes the attorney, as well as the system.

Defendants' proferred standard, however, leaves us traumatized at the prospect of a multitude of trials--not necessarily mini-trials--on whether issue A, for which X hours are claimed, was really a "substantial" issue regarding a defendant's obligations, and, if so, did plaintiffs' work produce a more favorable resolution than defendants "were prepared to concede". Must the result be measurably more favorable? How may one prove what defendants were prepared to concede, but did not? Such a standard implies the availability of appellate review of each issue, an addition to our domain that we would welcome with something less than unbridled enthusiasm. Moreover, as Amicus points out, defendants' proposed standard would stimulate posturing and undercut the amicable cooperation that a consent decree is designed to foster; plaintiffs would opt for a combative, litigious route in preference to quiet negotiation. Whether we view the likely results in terms of delay, cost to the parties, inflated counsel fees, acrimony, or the additional burden on both the district court and the court of appeals, we see little to recommend the suggested innovation.

Perhaps the most salient approach is to see if the normal method of determining fees for monitoring has broken down. We cannot say that it has in this case, because, while it was begun, it was never completed. Plaintiffs supplied their compendious fee application, which, while often not facially self-explanatory, contained the necessary keys to testing its reasonableness. Defendants generally knew the dates, subject matter, and people involved. They, at some expense to be sure, could have mounted challenges to specific claims--if not on a comprehensive basis, at least on a random one. Had this happened, the district court would have had the benefit of the adversary process and could have developed a sense of the extent to which the claim for services was reasonable. We recognize that a specific challenge to every item in a 3500-item catalogue of time charges would be impracticable, but it is not too much to expect the Commonwealth, relying on its deep involvement in the litigation, to target significant and vulnerable areas for testing. We would have confidence that, given reasonable assistance by counsel, a court could arrive at a fair decision without a dismaying investment of time, particularly during the later, "tapering off" stages of implementing a decree.

This traditional approach not having been attempted, we are left with the general attack on the standard, together with the "Association issue", infra. Without specific indicia of unreliability, we are left with more general indicators, which do not support the Commonwealth. We note first the consistency of the district court's fee decision-making in this case with the approach taken in its earlier decision on the 1976-1981 applications. Second, we are mindful of the extensive forty-four percent reduction made in this case. Third, we do not think it excessive for attorney Schwartz to have spent about one-fourth of his time for two and one half years on this case (i.e.,...