Garrity v. Sununu, s. 83-1946

• Decision Date: 27 December 1984
• Docket Number: Nos. 83-1946,83-1947,s. 83-1946
• Citation: 752 F.2d 727
• Parties: Sandra GARRITY, etc., et al., Plaintiffs, Appellees, v. John SUNUNU, Governor of the State of New Hampshire, et al., Defendants, Appellants. Sandra GARRITY, etc., et al., Plaintiffs, Appellants, v. John SUNUNU, Governor of the State of New Hampshire, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 727

752 F.2d 727

40 Fed.R.Serv.2d 1025

Sandra GARRITY, etc., et al., Plaintiffs, Appellees, v. John SUNUNU, Governor of the State of New Hampshire, et al.,

Defendants, Appellants.

Sandra GARRITY, etc., et al., Plaintiffs, Appellants, v. John SUNUNU, Governor of the State of New Hampshire, et al.,

Defendants, Appellees.

Nos. 83-1946, 83-1947.

United States Court of Appeals First Circuit.

Argued April 4, 1984.

Decided Dec. 27, 1984.

Bruce E. Mohl, Asst. Atty. Gen., Boston, Mass., with whom Gregory H. Smith, Atty. Gen. and James A. Sweeney, Concord, N.H., were on brief, for John Sununu, Governor of State of N.H., et al.

Richard A. Cohen, Manchester, N.H., with whom John D. MacIntosh, Concord, N.J., was on brief, for Sandra Garrity, etc., et al.

Francis X. Bellotti, Atty. Gen., Judith S. Yogman, Asst. Atty. Gen., Boston, Mass., Government Bureau, James E. Tierney, Atty. Gen., Augusta, Me., Miguel Pagan, Deputy Sol. Gen., Gerardo Mariani, Asst. Sol. Gen., San Juan, P.R., and Dennis J. Roberts, II, Atty. Gen., Providence, R.I., on brief, for Com. of Mass., State of Me., Com. of P.R. and State of R.I., amici curiae.

William R. Yeomans, Atty., Washington, D.C., with whom Wm. Bradford Reynolds, Asst. Atty. Gen., and Jessica Dunsay Silver, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee U.S.

John D. MacIntosh, Concord, N.H., with whom Richard A. Cohen, and Alan Linder, Concord, N.H., were on brief, for Sandra Garrity, etc., et al.

Gerald M. Zelin, Salem, N.H., with whom Soule, Leslie, Bronstein & Zelin, Salem, N.H., was on brief, for appellees Salem School Dist., et al.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and HUNTER, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

These are two appeals concerning an award of attorneys' fees arising out of a largely successful civil rights class action brought by residents of the Laconia State School and Training Center ("Laconia") of New Hampshire. We affirm the judgment of the district court in all except one particular.

I. THE FACTS

We begin by recounting some of the history of the case. Laconia is the only state institution that provides services to the mentally retarded in New Hampshire. Intended originally for children, it was later expanded to accommodate handicapped adults as well. At the time of trial, its population consisted of 564 residents of whom only approximately 80 were under 21 years of age, the rest ranging from ages 21 to 62.

The action was filed on April 12, 1978, by six mentally retarded residents of Laconia against the Governor and various New Hampshire officials allegedly responsible for overseeing services provided to the mentally handicapped. The residents were joined by the New Hampshire Association for Retarded Citizens, and the United States also intervened in their support. On February 22, 1980, the court certified the action as a class action, defining the class as follows,

(1) Class

Developmentally disabled persons who are presently residing at LSS or who in the future may be institutionalized or reinstitutionalized at LSS.

(a) Subclass

Persons between the ages of three and twenty-one years who are or in the future may be confined at LSS, and whose rights under the Education of the Handicapped Act, 20 U.S.C. Sec. 1401, et seq., may be violated.

Garrity v. Gallen, 522 F.Supp. 171, 176 (D.N.H.1981).

It was alleged in the complaint that conditions at Laconia, including the institution's inadequate staffing, services and programs, violated the residents' rights under the Developmentally Disabled Assistance and Bill of Rights Act, ("DD Act"), 42 U.S.C. Secs. 6000 et seq.; under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794; under the Education for All Handicapped Children Act ("EAHCA"), 20 U.S.C. Secs. 1400 et seq.; under the federal Constitution; under the Civil Rights Act, 42 U.S.C. Sec. 1983; and under two New Hampshire statutes, N.H.Rev.Stat.Ann. ch. 171-A and N.H.Rev.Stat.Ann. ch. 186-C.

Before the case could go to trial, defendants tendered to plaintiffs an offer of judgment under Fed.R.Civ.P. 68. In the offer, defendants proposed the entry of a court decree affording extensive injunctive relief to plaintiffs along lines pleaded in the complaint. Minimum standards and individual service plans would be guaranteed to the residents of Laconia; state officials would use their best efforts to place all residents for whom Laconia was not the least restrictive environment in less restrictive community settings; and the court was to supervise compliance for a period of years. Plaintiffs refused this offer.

The case went to trial, and following a 40-day trial the district court issued a comprehensive opinion. Garrity v. Gallen, 522 F.Supp. 171 (D.N.H.1981). It dismissed the claim under the DD Act, ruling that enforcement of this statute was up to the Secretary of Health and Human Services, not to private litigants. It also rejected plaintiffs' claim that federal and state law, or the federal Constitution itself, entitled them to placement in a less restrictive, community (rather than an institutional) setting. Finally, the court declined to pass on plaintiffs' other constitutional claims, on the ground that it was able to provide the same relief under section 504 of the Rehabilitation Act and N.H.Rev.Stat.Ann. Ch. 171-A. 522 F.Supp. at 236-37.

The court went on to hold that defendants had discriminated against the handicapped in violation of section 504 of the Rehabilitation Act by failing to provide many residents with the individual service plans (ISP) called for by state law. It found that defendants had also violated section 504 by denying many services, such as academic and recreational programs, to the more severely retarded residents, based upon generalized assumptions concerning their inability to benefit. The court also held that the procedures by which educational programs were structured at Laconia violated the EAHCA, and N.H.Rev.Stat.Ann. Ch. 186-C, with the result that Laconia was an "educational waste land." The court found that over half the children at Laconia received under 2 1/2 hours per day of educational services in contrast to the normal 5 1/4 hours for the non-handicapped. The court, in addition, found violations of N.H.Rev.Stat.Ann. Ch. 171-A, providing rights for the developmentally impaired. The court's detailed findings of illegality touched upon most aspects of Laconia's operations. The court ordered extensive relief. See Garrity v. Gallen, 522 F.Supp. at 239-44.

To implement its decision, the court directed the parties to work out a joint plan. Should they be unable to agree upon a plan, they were to file separate proposals. The parties did not, in fact, agree. They instead presented the court with two different plans which it combined in an implementation order issued on November 16, 1981. The State of New Hampshire has subsequently complied with most of the court's order. Substantial funding and law improvements have been provided by the legislature, and plaintiffs have helped monitor the state's compliance.

Following entry of the order of implementation, plaintiffs moved for attorneys' fees pursuant to 42 U.S.C. Sec. 1988 and 29 U.S.C. Sec. 794a. At about the same time, defendants moved under Fed.R.Civ.P. 68 for attorneys' fees in their own favor from the date of their earlier offer of judgment.

While these motions were pending, on January 25, 1982, nine school districts of the State of New Hampshire and the New Hampshire School Administrators Association sought to intervene to challenge the provisions of the district court's order which afforded relief to the school-age subclass of plaintiffs under the EAHCA and N.H.Rev.Stat.Ann. Ch. 186-C. The district court dismissed this attempt as untimely and we affirmed that decision in Garrity v. Gallen, 697 F.2d 452 (1st Cir.1983). Plaintiffs subsequently filed a separate motion claiming attorneys' fees and costs against the would-be intervenors for work occasioned by this abortive effort.

On August 25, 1983, the district court held that plaintiffs were entitled to receive attorneys' fees against the state defendants in the main action but refused to grant fees against the school districts which had sought to intervene. Defendants' motion for Rule 68 costs, including attorneys' fees, was dismissed on the ground that the language of the rule did not contemplate an award of attorneys' fees, and that defendants' offer had not, in any event, been more favorable than the relief obtained by the plaintiffs.

In computing the amount of the award, the court allowed plaintiffs to recover fees from defendants for legal work covering all claims, including certain unsuccessful ones. It also allowed fees to plaintiffs for services related to their monitoring activities. The court awarded a bonus of 20 percent to two of plaintiffs' counsel, for a total award of $220,140.58. Final judgment was entered. ¹

Defendants and plaintiffs both appeal from this determination. In No. 83-1946, defendants claim that the district court erred in denying their motion for fees and costs under Rule 68, and they challenge the inclusion of several items in the award made to plaintiffs. Plaintiffs cross-appeal, claiming the district court erred in failing to grant them interest on their fees award. In No. 83-1947 plaintiffs challenge the district court's refusal to grant them fees against the school districts. We discuss these contentions below.

II. DEFENDANTS' FEES CLAIM UNDER RULE 68

Defendants contend that their pretrial offer of judgment under Rule 68 ² was at least as favorable as the judgment plaintiffs finally obtained. For that reason, they say the district court erred in disallowing their motion for post-offer costs including attorneys' fees. In defendants' view, Rule 68 entitles them to recover their own attorneys' fees from plaintiffs, and bars plaintiffs from recovering their fees from defendants. At very...