Brewster v. Dukakis

• Decision Date: 16 July 1982
• Docket Number: Civ. A. No. 76-4423-F.
• Citation: 544 F. Supp. 1069
• Parties: David BREWSTER, et al., Plaintiffs, v. Michael S. DUKAKIS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

544 F. Supp. 1069

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

Civ. A. No. 76-4423-F.

United States District Court, D. Massachusetts.

July 16, 1982.

Steven J. Schwartz, Mental Patients Advocacy Project, Western Mass. Legal Services, Northampton State Hosp., William C. Newman, Northampton, Mass., for plaintiffs.

Nonnie S. Burnes and Robert G. Bone, Hill & Barlow, Boston, Mass., for Mass. Ass'n for Retarded Citizens.

Michael Broad and Catherine A. White, Asst. Attys. Gen., Boston, Mass., for Evelyn McLean and Linda Glenn.

Michael Ponsor, Brown, Hart & Ponsor, Amherst, Mass., monitor for consent decree.

MEMORANDUM

FREEDMAN, District Judge.

This case is before the Court on plaintiffs' application for an interim award of attorneys' fees pursuant to 42 U.S.C. § 1988. This statute provides that:

In any action or proceeding to enforce a provision of 42 U.S.C. § 1983, the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fees as a part of costs.

The plaintiffs' attorneys have submitted extensive material purporting to summarize their efforts for the years 1976 to 1981.¹ Their total fee claim for these years exceeds 1.2 million. The defendants oppose the award of any attorneys' fees. Alternatively, they argue on a variety of grounds that plaintiffs' fee claim should be reduced. The Court agrees with defendants that a substantial reduction of the fee claim is warranted. For reasons detailed below, the Court finds that plaintiffs are entitled to $386,204.01 in attorneys' fees and costs.

I. The Decree

On December 15, 1976 plaintiffs filed this suit as a class action under 42 U.S.C. § 1983 and other federal and state statutes against various officials of the Commonwealth of Massachusetts. The essence of the action was plaintiffs' demand that the defendants create and maintain appropriate community programs for persons institutionalized at Northampton State Hospital. On August 22, 1977, the Massachusetts Association for Mental Health, Inc. ("MAMH") and the Massachusetts Association for Retarded Citizens, Inc. ("MARC") were permitted to intervene as plaintiff-intervenors.

The plaintiff class, defined as all persons who were, as of December 15, 1976, are, or may be hospitalized at the Northampton State Hospital, was certified by this Court on October 27, 1977. Between October 1977 and October 1978, the plaintiffs and defendants engaged in a "planning process"—at the request of the Court—in an attempt to negotiate a plan for community mental health services for class members in Western Massachusetts and, if possible, to resolve the issues presented by the litigation without a trial.

On October 23, 1978, plaintiffs and defendants agreed, again at the suggestion of the Court, to incorporate the result of their planning process into a Consent Decree. After approximately six weeks of drafting, all parties signed the Consent Decree on December 6, 1978, and the Court approved the Decree after hearing on December 7, 1978.

At the time of its signing, this Decree was—to the best of the Court's knowledge— the most comprehensive, judicially enforceable plan for the provision of community mental health services in the country. It was a direct product of the year-long cooperative planning efforts of plaintiffs and defendants. The Decree itself contains sixty-two paragraphs setting forth in broad outline the jurisdiction of the Court, definition of terms, principles for creating and maintaining community programs, models for the development of these programs, individual service planning, standards and regulations, personnel and training, evaluation of compliance, and placement procedures. The appointment of a Monitor to oversee implementation, and a description of his or her powers, is included. The Decree also contains over 200 pages of attachments, analyzing the sub-populations to be served, describing in great detail twelve different residential program models and thirteen non-residential models to serve clients with varying levels of need, and mandating various other responsibilities for defendants including development of needed management services.

Although the Consent Decree is an extensive document, it explicitly fails to wrap up definitively all issues related to implementation. The development of a secure treatment center for the residual Northampton State Hospital population inappropriate for community placement (Paragraph 16), the processes for retraining and transfer of hospital staff (Paragraph 35), the creation and maintenance of an adequate training system for community mental health staff (Paragraph 35), the necessity for and design of legal advocacy services for community mental health clients (Paragraph 59), the reorganization and phase-down of the Hospital (Paragraph 43) and the drafting of Regulations (Paragraphs 32 and 33) exemplify issues left by the Decree to further negotiation between the plaintiffs and the defendants. All of these paragraphs mandate active plaintiff involvement in resolution of outstanding issues.

Beyond this, the Decree itself reaches years into the future with its provisions for community placements (Paragraph 15), upgrading of existing programs (Paragraph 19), development of psychiatric beds in general hospitals (Paragraph 17), program licensing (Paragraph 38), funding (Paragraph 47), individual service planning (Paragraphs 26 and 27), management information services (Paragraph 40), and programming for persons denominated as mentally retarded (Paragraph 20).

Since 1978 the efforts of defendants and plaintiffs have gradually resulted in the emergence of a community mental health system in Western Massachusetts. Hospital census has been reduced by one-third. Plaintiff class members have been assessed and individual service plans drafted to reflect each client's needs and strengths. Crisis intervention programs now function to reduce or entirely eliminate the necessity for institutionalization for many individuals. Both residential and non-residential, including vocational, programming have been expanded and enriched. Appropriations for services for class members have more than quadrupled.

While the full implementation of the Decree has been delayed, significant progress has been made towards providing every plaintiff class member adequate and appropriate treatment in the environment most respectful of his or her freedom and dignity.

Plaintiffs' counsel have played a vigorous and necessary role in implementation. They have assisted in the drafting of regulations, negotiated myriad administrative disputes with the defendants without the necessity of court intervention, consulted with the court-appointed Monitor and participated in mediation with the Monitor regarding disputes not subject to administrative resolution, evaluated the progress towards implementation of the Decree through frequent meetings with Department of Mental Health personnel, reported and vigorously pressed charges of client abuse or neglect both in the community and in the hospital, represented clients during hearings on the drafting of individual service plans called for in the Decree, negotiated several amendments to various paragraphs of the Decree and participated in final negotiations around issues left open by the Decree itself. Several evidentiary hearings on issues such as human resources, legal advocacy and budgetary matters have taken place before this Court, particularly in the past two years. Plaintiffs' counsel have represented the class in three hearings before the First Circuit Court of Appeals.

As in other institutional reform litigation, the entry of the Court's judgment has not terminated the role of the plaintiffs' counsel. In important respects, entry of judgment has represented only a beginning. Without determined, competent and dedicated representation, the provisions of this Consent Decree might have had little practical significance for the class members.

II. Attorneys' Fees: General

Although 42 U.S.C. § 1988 provides for the award of attorneys' fees in the court's discretion, the Supreme Court has held that a successful plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). (Action for attorneys' fees under Title II of the Civil Rights Act of 1964 § 204(b), 42 U.S.C. § 2000a-3(b)).

The First Circuit has stated: "Parties may be considered to have prevailed when they vindicate rights through a consent judgment." Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978).

There is no bar to fees for post-judgment remedial work.

Services devoted to reasonable monitoring of the court's decrees, both to insure full compliance and to ensure that the plan is indeed working ... are compensable services. They are essential to the long-term success of the plaintiff's suit.

Northcross v. Board of Education, 611 F.2d 624, 637 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980).

It is clear that, in an appropriate case, an interim award of attorney's fees may be ordered. Hanrahan v. Hampton, 446 U.S. 754, 757-58, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980). Given that judgment has entered pursuant to the Consent Decree and given further that implementation of the Decree has been protracted, the Court finds consideration of an interim award at this time reasonable.

Defendants do not apparently contest any of these propositions. They insist, however, that the plaintiffs are not entitled to any attorneys' fees for two reasons. First, they say that the application for fees is not timely, second, they allege that the plaintiffs are not "prevailing parties," as that term is to be understood under the doctrine of Nadeau v. Helgemoe, supra.

Defendants note that plaintiffs first filed their application for attorneys' fees on March 21, 1981,...